R v DF (No 3)
[2013] ACTSC 22
•19 February 2013
R V DF (NO 3)
[2013] ACTSC 22 (19 February 2013)
CRIMINAL LAW – jurisdiction, practice and procedure – trial by judge alone – offence of committing act of indecency on a person between ten and sixteen years – accused not guilty.
CRIMINAL LAW – evidence – complaints – where made by complainant to a number of persons – whether appropriate to give a direction in accordance with R v Murray (1987) 11 NSWLR 12 – direction given.
CRIMINAL LAW – evidence – miscellaneous matters – date of offence – whether particular – whether date can be changed to comply with evidence – not able to change date.
Crimes Act 1900 (ACT), ss 61, 92K, Pt IIIA
Evidence Act 1995 (Cth), s 165B
Evidence Act 2011 (ACT), s 60
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 43
Legislation Act 2001 (ACT), s 102(2)
Supreme Court Act 1933 (ACT), ss 68B, 68C
D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011)
DF v The Queen [2011] ACTCA 11
Director of Public Prosecutions v Walker [2011] ACTCA 1
Dossi (1919) 13 Cr App R 158
Fleming v The Queen (1998) 197 CLR 250
Harkin v DPP (1989) 38 A Crim R 296
R v Court [1988] 2 All ER 211
R v DF [2010] ACTSC 31
R v DM [2010] ACTSC 137
R v Elrick [2011] ACTSC 66
R v James (1923) 17 Cr App R 116
R v Morton (1998) 143 FLR 268
R v Mulcahy [2010] ACTSC 98
R v Murray (1987) 11 NSWLR 12
R v Stringer (2000) 116 A Crim R 198
R v Young [1923] SASR 35
Wishart v Fraser (1941) 64 CLR 470
No. SCC 14 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 February 2013
IN THE SUPREME COURT OF THE )
) No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
V
DF
ORDER
Judge: Refshauge J
Date: 19 February 2013
Place: Canberra
THE COURT ORDERS THAT:
DF is not guilty of the charge that between 1 January 1987 and 31 January 1987 at Canberra in the Australian Capital Territory he committed an act of indecency upon a young person, C, the said C being a person above the age of 10 years but below the age of 16 years, namely 15 years.
On 18 September 2006, the complainant, to whom I shall refer as C, spoke to a Victim Liaison Officer of the Australian Federal Police (AFP) about her uncle inappropriately touching her in January 1987.
In January 2007, she gave a statement to officers of the AFP. On 20 June 2007 an information was sworn, charging her uncle, whom I shall call DF, with an offence under s 92K(2) of the then Crimes Act 1900 of the State of New South Wales in its Application to the Australian Capital Territory (ACT) (the Crimes Act). That offence is commonly referred to as committing an act of indecency on a young person.
These proceedings have a complex procedural history, some of which I will need to refer to below, but an indictment was filed on 4 April 2008 containing a count:
THAT between 1 January 1987 and 31 of [sic] January 1987 at Canberra in the Australian Capital Territory [DF] committed an act of indecency upon a person, namely [C], the said [C] then being a person above the age of 10 years but below the age of 16 years, to wit, 15 years of age.
On 11 November 2008, DF was arraigned and pleaded not guilty to that charge.
On 15 May 2008, DF signed an election under s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), to be tried by a judge alone.
On 28 November 2011, DF appeared before me for trial.
THE OFFENCE
As at January 1987, s 92K(2) and (3) of the Crimes Act were in the following terms:
(2)A person who commits an act of indecency upon, or in the presence of, another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
(3)It is a defence to a prosecution for an offence under sub-section (2) if the defendant establishes that –
(a)he or she believed on reasonable grounds that the person upon whom the offence is alleged to have been committed as of or above the age of 16 years; or
(b)at the time of the alleged offence, the defendant was not more than 2 years older than the person upon whom the offence is alleged to have been committed.
and that that person consented to the committing of the act of indecency.
The elements of the offence with which DF has been charged are, therefore,
(1) that DF committed an act;
(2) the act was an intentional act;
(3) in the presence of or upon C;
(4) the act was indecent;
(5) at the time, C was above the age of 10 years but under the age of 16 years.
Indecency
Whether an act is indecent is a matter that has been considered in many authorities. Most commonly referred to is what Lord Ackner said in R v Court [1988] 2 All ER 211 at 229 where his Lordship said a simple way of expressing the meaning of “indecent” was to ask whether “right-minded persons would consider the conduct indecent or not”. This approach has been adopted in Australia in Harkin v DPP (1989) 38 A Crim R 296 and R v Stringer (2000) 116 A Crim R 198.
After considering a number of the relevant authorities, Crispin J in R v Morton (1998) 143 FLR 268 at 275; [25], in the context of whether certain tapes were indecent, adopted the following formulation, that it:
...depended upon whether the content offended recognised standards of propriety or good taste according to the contemporary standards of the Australian community, those being judged by reference to standards accepted by ordinary, decent minded, but not unduly sensitive, people.
I followed that approach in R v Elrick [2011] ACTSC 66. I follow it here.
Knowledge of the Complainant’s Age
A question arose at the trial as to whether DF had to know that C was above 10 years but under 16 years of age.
I formed the preliminary view that, in the light of the terms of s 92K(3), this knowledge was not required to be proved by the prosecution. No submission was made to the contrary by DF’s counsel. I have not been able to find any authority on the question.
It seems to me that if an accused has, as an element of the offence, to know, or be reckless as to whether, a complainant is above 10 years of age and under 16 years of age, there is no need for the defence to set out in s 92K(3), for that state of mind would mean the Crown could not prove the requisite element.
These are, however, provisional views, because, although DF gave evidence that he did not know how old his daughter was and was unsure whether C was younger, in the event, I am not required to rule definitively on this issue.
TRIAL BY JUDGE ALONE
Under s 68C of the Supreme Court Act, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the Court in such a case must include the principles of law that I, as the judge of the law, apply and the findings of fact on which I, as the judge of the facts, rely. In Fleming v The Queen (1998) 197 CLR 250 at 262–3; [28], the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge, to take into account any warning, direction or comment, that any Territory law requires to be given or made to a jury in such proceedings in considering my verdict.
General Directions
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]; R v Mulcahy [2010] ACTSC 98 at [13]–[24].
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately, and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The Onus of Proof
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence, unless the evidence which I accept satisfies me beyond reasonable doubt of his or her guilt.
The Presumption of Innocence
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
Reliability, Facts and Inferences
I must determine whether each of the witnesses is a reliable witness, that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.
It is essential that where I am required to draw inferences, the evidence from which I am to draw them is examined with care and assessed as reliable before drawing conclusions from the facts established by it. In order to draw any such inferences, I must be satisfied that the facts are established from which I can draw the inferences and that I can draw the inferences from them and not merely speculate or engage in conjecture in arriving at them. They must, also, be the only conclusion in each case which, in my view, can be drawn beyond reasonable doubt. If there is more than one inference than that for which the prosecution contends, and that other inference or those other inferences are inconsistent with the accused’s guilt or consistent with his innocence, then the prosecution has obviously not proved its case beyond reasonable doubt.
The audiovisual evidence
At trial, C gave evidence from a remote location as authorised under s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). I direct myself that I should not draw any inference adverse to DF from that fact.
Delay
There was, as is clear above (at [1]), considerable delay between the alleged events and the complaint to police, though there had been complaints earlier, as I note below (at [57]-[59]). I direct myself that the delay in making a complaint does not necessarily indicate that the allegation that the offence was committed is false and there may be good reasons why a complainant, such as C, may not make or may hesitate to make, a complaint about the offence. In this case, C specifically referred to the fear that she may not be believed and that she felt shame.
The Crown raised the question of a direction under s 165B of the Evidence Act 1995 (Cth). Counsel for DF did not seek such a direction. I am, in any event, not persuaded that s 165B applies to a trial by judge alone. See the decision on this issue in R v DF [2010] ACTSC 31 at [133]-[141] per Penfold J. In the circumstances, it was not required that I give this matter further consideration, save to note that since the enactment of the Evidence Act 2011 (ACT), the issue which Penfold J considered will no longer arise, as that Act is, under s 68C(3) of the Supreme Court Act, a Territory law.
Necessity of a “Murray direction”
I was, however, requested to direct myself in terms of what has become known as a “Murray direction”. In R v Murray (1987) 11 NSWLR 12 at 19, Lee J, with whom Maxwell and Yeldham JJ agreed, said:
In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.
The evidence of the alleged acts by DF came only from C. She did, however, make complaint to her best friend and some years later to her mother. These complaints were relied upon by the Crown under s 60 of the Evidence Act as evidence of the truth of the allegations. Hence, it was suggested by Ms M Moss, who appeared for the Crown, that there was more than one witness asserting the commission of the crime, namely, not only C, but also the persons to whom she made complaint.
There are a number of responses to this. In the first place, what Lee J said should not be construed like a statute; it is the broad intention of what his Honour said that needs to be considered. Secondly, while I should give full force and effect to s 60 and what it requires, the fact is that the source of all the complaints is C and they depend for their credibility on her. Thirdly, it does not seem to me that a complainant can avoid the kind of scrutiny to which Lee J refers by simply making a complaint to someone else or, perhaps worse, a whole lot of other people.
Accordingly, I will scrutinise the evidence of C with great care before I decide that I can rely on it for a verdict of guilty.
Identifying Information
Under s 40 of the Miscellaneous Provisions Act, it is an offence to publish, in relation to a sexual offence proceeding, the name of a complainant, certain identifying or contact information of the complainant, or references that disclose the identity of the complainant or from which her identity may reasonably be worked out. A sexual offence is defined as follows:
sexual offence means an offence against the Crimes Act 1900 part 3 (Sexual offences), part 4 (Female genital mutilation) or part 5 (Sexual servitude).
As at January 1987, however, s 92K appeared in Pt IIIA of the Crimes Act. Prima facie, it would not be a sexual offence for the Miscellaneous Provisions Act and
s 40 would not apply. Section 102(2) of the Legislation Act 2001 (ACT), however, resolves the issue, for it includes, in a reference to a provision of an Act, “the provision as originally made, and as amended from time to time since it was originally made”.
It is clear that s 61 of the Crimes Act (which is in Pt 3 of that Act), as at the date
s 40 was inserted into the Miscellaneous Provisions Act in 2004, is the same provision as originally made as s 92K. Thus s 40 applies to these proceedings. There are always problems in referring to legislation remade or renumbered, but as D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011), p 223 states, “Section 102 of the Legislation Act 2001 seems to deal with all variables both in relation to Acts and instruments”.
On 15 April 2010, Penfold J ordered that the identities of the complainant and the family members that had been referred to in R v DF; including the accused, not be published.
Accordingly, I will refer to them by initials which I set out below.
The following witnesses gave evidence for the Crown:
(a) the complainant, C;
(b) her friend, Ms Bobbie Husking;
(c) one of the daughters of DF, to whom I will refer as NJ;
(d) the complainant’s mother, to whom I will refer as MC; and
(e) the informant, Detective Senior Constable Tara Ducker.
The following witnesses gave evidence for the accused:
(f) the accused, DF;
(g) one of the accused’s sons, to whom I will refer as AJ;
(h) the younger daughter of the accused, to whom I will refer as DM;
(i) the wife of the accused, to whom I will refer as MA;
(j) another daughter of DF, the twin sister of NJ, and to whom I will refer MH.
I also received the following exhibits:
D Plan of DF’s house made by C;
E Detective Senior Constable Ducker’s statement, made on 30 August 2007;
7 DF’s prior criminal record;
8 Page 57 of the evidence of NJ at the committal proceedings on 14 January 2008.
The procedural history referred to above (at [3]), is a reference, inter alia, to the fact that there was an earlier trial: R v DF. The conviction then entered was set aside on appeal: DF v The Queen [2011] ACTCA 11.
As is proper, I have not had any regard to the court’s decision on the earlier trial, nor the decision on appeal.
The Crown evidence
(a) The complainant, C
The principal evidence for the Crown was given by C. She said that, in January 1987, she was 15 years old. That evidence was not subject of any objection. Ordinarily, a child cannot prove her own age because, of course, she only knows what others have told her: R v Young [1923] SASR 35 at 38. However, C’s mother also gave evidence of C’s date of birth. There is no doubt that, in January 1987, C was 15 years of age.
She had an uncle and aunt, being the accused DF and his wife MA, who lived in Canberra with their six children. She referred to her grandmother as Nan; she also lived in Canberra.
C referred to a visit she said that she and her sister, to whom I shall refer as K, made to Canberra in, she said, January 1987, sometime after the New Year. It was during the school holidays. Her Nan had come to Sydney for Christmas and she and K returned with Nan on the bus to Canberra. They stayed with Nan in her bedsitter but visited DF.
C was sure that the visit was in January 1987 because she had just finished Year 10 in 1987 and her father had told her that if she did not get a job before she turned 16, which was in February 1987, she would have to return to school. She did get a job and did not return to school. It was by reference to this that she identified the date of the Canberra visit.
On one particular occasion during this time, the date of which she could, understandably, not give more accurately, she and K were collected by DF’s son, their cousin, AJ, and driven to DF’s place. She says that DF was there, as was DF’s daughter, DM, who was a year older than she was. C was, she said, wearing pink shorts and a T shirt.
C said that she kept close to DM during the day. They looked at an aviary that DF had out the back and fed the birds.
She said that her sister, K, went for a drive with their cousin AJ who, she said, had “the truck and there was plants on the back of the truck and he’d asked my sister if she wanted to go for a drive”. She said that, then, only DF and DM were left with her in the house. In particular, there was no mention of where MA, her aunt, was.
At the back of the house was a garage converted to a rumpus room, where the girls also went during the day. C said she followed DM about and at one stage was following her through the laundry to go to the rumpus room. She said that she was “trying to keep up with” DM, who was going out the screen door at the back, when the adjacent toilet door from the laundry opened and DF came out.
She then gave the following evidence:
And then what happened? My uncle grabbed me, and he had his hand up my shirt touching my breast, and his hand down my shorts, and he was trying to kiss me with his tongue in my mouth.
You said that he put his hand under your shirt, do you remember which hand he used to put under ...? It was his left – left hand.
And what did he do with that hand? He had hold of me around my ribs and his thumb was rubbing on my nipple.
And what was he doing with his other hand? It was down the front of my shorts.
And how far into his shorts was your hand? Into your shorts? Down to my pubic line.
And what else was happening? He was trying to kiss me and put his tongue n my mouth.
And did he succeed in doing that? Yes.
And then what happened? I told him to stop. And I told him to stop or I’ll call [DM].
And did he stop. Yes
And did you call [DM]? No
Why not? What would I say? I just ran out the back to the rumpus room where [DM] was.
And what was [DM] doing in the rumpus room? She was sorting something out with the skis and the wetsuits.
And did you speak to [DM] about what had happened at that point? No.
And why not? Who would believe me? And shame.
She said she was upset at what had happened.
She also said that she did not tell anyone else at the time, though later she told her best friend, Bobbie Husking, and still later told her mother, MC. Later still, she had a conversation about it with her cousin, NJ, one of DF’s daughters.
In 2006, she spoke to a Victim Liaison Officer of the AFP and saw a counsellor.
Ultimately, she made a formal statement to police in January 2007.
She was asked in cross-examination where Nan was and she said that she did not recall her being with them. She could not recall what Nan was doing that day.
She was asked whether the truck was an open tray truck and she seemed to accept that, pointing out that “the back was up”. It was also put to her that there were, contrary to her evidence, no plants in the truck. She denied the suggestion, saying she had a clear recollection of plants being there.
She was also asked where her aunt, MA, was, and she said that she could not recall.
She was asked about the timing of the incident. She said that, when DF came out of the toilet, DM was “only a couple of steps in front of [her]” and that she was “going out the door”. She said “I just remember him there, and the screen door banged”.
She said that the visit was during the day. She thought it was in the morning because they had lunch there, though she was not quite sure. She was not, however, challenged in cross-examination about her statement that DM was “sorting something out with the skis and wetsuits”, which assumed an importance in further evidence.
C gave her evidence in quite a convincing way. She was uncertain about details, as may be expected of an incident that happened more than 20 years ago, but was clear about the central details. She was not shaken in cross-examination. She did not appear to exaggerate her evidence and was neither argumentative nor did she appear to be motivated by malice or other cause. Her evidence was given in a forthright and direct manner and she appeared to be sincerely trying to do her best to tell the truth.
(b) Bobbie Husking
Ms Husking met C when her family and C’s family both moved into the same neighbourhood in Sydney in late 1986. She was about a year younger than T. They became close friends.
She said that, about a year after they met, they were together under C’s bed as they were eating cheese spread sandwiches which they were not supposed to be doing. She said that C told her that C’s uncle had “touched her, that he’d put his hand up her top and his hand down her pants and had his tongue in her mouth”. She said C told her that this had happened on several occasions in Canberra at her uncle’s house.
Ms Husking was cross-examined about different statements she had made about the timing of their conversations. She agreed that, in a statement she gave to police in February 2007, she had said that the conversation had taken place in late 1987, about a year after she had met C.
She agreed, however, that, in the committal proceedings, she had maintained that the conversation had occurred in early 1987. She said that it occurred before Easter in 1987. Her only explanation was that she “may have meant to have said ’88 rather than ’87”.
She also said that she did not ask where C was staying on her visits to Canberra, although she was curious about whether she may have stayed with her uncle, though she did say “[t]he opportunity might not have been there”.
Ms Husking also gave her evidence in a direct manner, though she was a little more argumentative. I accept, however, that, despite the confusion about the date, C did make a complaint to her of inappropriate touching by DF, and that it is likely it was made in late 1987.
(c) DF’s daughter, NJ
The evidence of NJ was that, as at January 1987, she was living at DF’s house with her two sisters and her brother, AJ. She was not sure where her other brother was then living.
In about mid to late 2006, she contacted her cousin, C, on the telephone and C made a complaint to her that the accused, DF, NJ’s father and C’s uncle, had “abused” her. She did not give specific details.
She gave evidence that the family had a holiday caravan at Burrill Lakes, near Ulladulla, NSW, in a caravan park. The family would go there very frequently in the summer, at the weekends, at least every fortnight and would spend a lot of Christmas holidays there, depending on the leave availability of her parents. The family might not, however, be down there all at the same time.
They had a ski boat and skied regularly. The members of the family had wet suits which were kept at the coast, though she said that the boat was occasionally brought back to Canberra. She could not quite remember about the wet suits, but said that they could have been brought back. She had her own wet suit which, she said, did not always stay at the coast. When brought back, they would have been kept in the boat or in the rumpus room.
In cross-examination, she agreed that, as a general rule, the ski boat would be taken down the coast at the start of the summer. She did refer, however, to mechanical problems it suffered which required it to be brought back to Canberra, but generally it would be down the coast for the summer. Although the family skied from the October long weekend to Easter, she was “pretty sure” that the boat did not stay down the coast for the whole six months.
She recalled C visiting a few times, but could not remember exact dates. She said that sometimes C would be accompanied by her parents and sometimes not.
Her father did, she agreed, sell plants at the EPIC markets in Canberra during the 1980s. She felt that around Christmas time they had “more markets”. She had a “feeling” they could be held on Saturday and Sunday sometimes. Her parents operated the stall at the markets and the children would help to load the plants onto the truck, which was used to take the plants to the markets and unload and, “on occasion”, help at the stall. Sometimes there would have been a couple of trips to the markets.
She said that her parents were not always together at the markets; sometimes one would be there and not the other. She had some vague memory of AJ driving the truck. She never drove the truck, which was not an open-tray truck, but a fully enclosed truck with a roller door.
NJ said that, as at January 1987, she was working and that both her parents had full-time jobs, working Monday to Friday. In January 1987, if they were not working, they would have been at the coast or at home.
Part of the evidence that NJ gave at the committal proceedings was tendered. In that evidence, she said that there were times when the family spent a whole month at the coast. She said that this would happen over the Christmas period; they would “sort of” leave after Christmas and effectively come back to go to school. It varied each year, but the family were “usually” at the coast for “a few weeks minimum over the “Christmas break”.
Her evidence continued:
I know I’m talking about 21 years ago when you turned 21, going back to 1987. That was in March? That’s correct.
Are you able to say whether that January you had a long trip down the coast or it’s just too long ago to remember now? I would say yes, we did. We were down there every Christmas holidays.
And at that stage in your 21st year or just before it you and [DM] would have gone because you were still living at home? Yes, I went with my husband, actually, I recall.
When were you married? Well, he wasn’t my husband at the time. We were engaged at the time.
Okay then? We – he would have come down the coast with me.
So you and [her then fiancée] and DM and your mother and father and maybe some others went down for a month over Christmas ’86/’87? Would have been [her other sister and her husband] as well.
[Her other sister and her husband] in the Christmas holidays before your 21st? Couldn’t tell you how long for but we would have been there at some stage.
Yes, and as far as you can recall when you were down there it was there for awhile, not a weekend or even a week? That’s correct.
Portion of her evidence of the first trial was also tendered. That showed that she could not recall whether her parents were at the coast in January 1987, though it was their usual practice to take their summer holidays at the coast. She did say that she believed that her parents were down the coast for the summer of ’86/’87, and that she and her fiancée joined them for some period. She thought, however, that she would not have been there for more than two weeks herself.
NJ, in giving her evidence was, at times, a little emotional, but I accept that she was attempting to give truthful evidence, though she was, perhaps inevitably, a little vague about the details.
(d) Detective Senior Constable Tara Ducker
Detective Senior Constable Ducker was the informant. Her statement was tendered, which showed the statements she had taken and that, although she had approached DF for a statement, his solicitor said that he was not going to give one.
She confirmed that, when she spoke to AJ, he told her that he married in 1989 and that, for 18 months in 1987-8, he worked at the Statesman Hotel in Curtin, including during January 1987. He had also told her that he did not remember C and K visiting Canberra by themselves. He had no memory of taking K for a drive, though, if he had been reminded of the car that was used, he might remember.
She also gave evidence of having conducted a criminal check of DF; it showed that in 1967 he was convicted of a false pretences offence and, in 1969, of 7 false pretences offences. For the first offence he was sentenced to 1 month’s imprisonment, which was suspended with a recognizance to be of good behaviour for 12 months, and to pay compensation of $10. For the second set of seven offences, sentence was deferred upon him entering into a recognizance to be of good behaviour for 3 years and with a probation condition.
(e) C’s mother, MC
The next witness was MC, who was C’s mother. She confirmed C’s date of birth and gave some family history. She had three daughters, including C and K. She said that, in December 1986, the family moved to a new home in an outer Sydney suburb.
She said that her mother, known to the children as Nan, spent Christmas, 1986, with them in Sydney. She said that, sometime after Christmas, she returned, by bus, to Canberra, where she lived, taking C and K with her so that they could have a holiday with her, partly because MC was then working part-time.
She gave some evidence also about difficulties with K, who clearly had some behavioural problems, and was removed from her custody, and placed in care for a time. A conversation with K’s case worker led to MC having a telephone conversation with C in about 1993 or 1994, in which C told her that DF had kissed her and had touched her inappropriately. She said that C did not want to do anything about it at that stage as Nan was still alive.
MC had a recollection of the girls’ trip to Canberra. She had found a photo of the girls at the bus stop where the bus picked up her mother to take her to Canberra, and of the three of them on the bus.
In cross-examination, MC said that she could not be specific about how long Nan had stayed with them, but it appeared to be “several weeks” at their new house, into which they had moved a few days before New Year’s Eve. This appeared to conflict with the dates of their Sydney move and a trip to Canberra, but I do not have particular regard to this.
She was also referred to evidence she gave at the first trial, when she was then asked about when the incident occurred. She agreed that her evidence was as follows:
And it could have been September holidays, it could have been Easter holidays, you weren’t ...? I [sic] could have been any of the holidays.
Sorry? It could have been any of the holidays but I do remember them going back with Mum.
She also acknowledged that she had the photos at the time that she gave this evidence. She said to me that her photos showed it was summer stating “Well, it wouldn’t have been winter because the trees were all covered in leaves. They weren’t covered in blooms so it wasn’t spring.”
She could not remember how long her children were in Canberra. She thought that they returned by bus, but was not sure, though they returned before the school holidays finished. She also thought that there may have been three or four other times when they caught the bus to Canberra by themselves.
I accept that MC was doing her best to give truthful evidence, though I formed the impression that she thought it was, understandably, important to support her daughter. Thus, her evidence about the date of the visit seemed to be vested by her with more certainty than may have been justified.
There was no evidence given by K and no explanation as to why she was not called.
The Evidence for the Accused
(a) The accused, DF
DF then gave evidence. He explained that he was, at the relevant period, namely December 1986 to January 1987, employed at the Australian National Gallery (as it was then known), where he worked from 7.00am to 4.00pm each Monday to Friday.
He confirmed the evidence about the family having a caravan at the coast. He said that, in January 1987, if he was not at the coast, he would have been working. He would then spend weekends at the coast.
He confirmed that the family had a ski boat which was taken to the coast, normally at the long weekend in October and that it remained there until winter, or at least until after Easter. He agreed that the boat had to be brought back for repairs to Canberra, but that this was in 1984 or 1985, though he was not certain of the year. Other repairs, he said, were done at Milton or Ulladulla.
He also confirmed that the family had wetsuits and skis. He said that the skis and wetsuits were kept in an annex to the caravan “from September to winter”. In the winter they were washed and packed in the boat and brought back to Canberra with it until the next October.
DF was also asked about his work records, and said he had made inquiry of the Gallery to see if he could access them to ascertain when he went on leave or whether he was working in January 1987, but they were not available. No receipts for the caravan rent were available either.
He confirmed that he and his wife sold pot plants at the EPIC Markets and that they did so in 1986 and 1987. Before sale, the plants were kept in a shed, or the rumpus room, or the carport, but only for a matter of days.
There were, he said, 12 markets a year – one each month, except in January, and two in December. He said, perhaps inconsistently, that “[t]he January market was normally a wash-out so nobody went to it...”. He transported the plants to the markets in a Pantech truck, a truck with an aluminium cover right over it, like a milk truck. He drove the truck to the markets and no-one else drove it. Plants were only left in the truck during winter, but with a heater in the truck; in the summer, to leave the plants in the truck would be to cook them and they would be destroyed. He denied going to the markets in January 1987.
He said, too, that if he were to be working in January 1987, his wife would also be working. If he were to be home at the weekends, his wife would also be home.
He also gave evidence about his son, AJ. He was not living at home in January 1987; he was working at the Statesman Hotel in Curtin and lived there.
In cross-examination, DF confirmed his relationship with C, K and MC, but said he did not know how old C was. He confirmed that the family came together on occasions, but that he did not see MC and her family very often. He also said he did not know how old DM was or her age relationship with C.
He said that it would have been very rare for his wife to have been down the coast while he stayed in Canberra. The children would not, however, have been left at the coast without either of their parents there. He said that his wife and he always took their leave at the same time.
He confirmed that he worked from 7am to 4pm, but, after work, would sometimes call into “the club or the pub” and stay there for a time before getting home. He mostly arrived home before his wife, who finished work later than he did, but generally it was at about the same time.
At weekends, he confirmed, there may be occasions when his wife went shopping and he would be at home, but generally they did things, including shopping, together. She would, however, not have gone to the shops during working hours.
He was asked a good deal about his work records. I accept that he made reasonable inquiries, though not absolutely exhaustive inquiries, about them, and was not able to access them. He did not attempt to get his bank records which, if available, may show when he was paid a leave loading during January 1987, which would show whether he was on leave or working at that time.
He acknowledged that some of his children owned their own wetsuits and so could use them whenever they wanted. He denied, however, that they brought their wetsuits home to his house. They did not ski other than at Burrill Lakes and so only used them there. He denied that they removed them from the caravan to his knowledge.
When his children were married, they may have used their wetsuits elsewhere, he accepted, but they would then not have kept them at his house.
He was also asked questions in cross-examination about the selling of plants at the EPIC Markets. He confirmed that he did not sell plants in January. He seemed to suggest, contrary to earlier evidence, that there may have been a market in January, but he did not sell plants then. He knew it was “a washout” because other stall holders told him that when he did go at other times of the year.
He said that AJ may have driven the truck, but that was rare as it was his, DF’s, mode of transport.
He would go to Sydney to buy the plants and re-sell them at the markets. The plants he did not sell, he would sell the next day, Sunday, at the Trash and Treasure Market “at giveaway prices”. He denied having any plants in January 1987.
He denied discussing the allegations or his evidence with his family, even his wife.
He acknowledged his prior convictions, though, at the time, they were nearly 40 years old. They related to passing valueless cheques. He admitted that, after the first conviction, he “didn’t learn his lesson”. He accepted that the offences were offences of dishonesty, involving deceit on his part. He said, however, that, on the second occasion, he did learn his lesson and has not, since then, touched a cheque book.
He denied the allegations of C. It was put to him that he was not telling the truth and he rejected that.
He rejected the plan of his house drawn by C as not being accurate in a number of particulars, though none of them seem to be especially relevant to these proceedings.
He also denied that C came to visit in January 1987. He rejected the suggestion that she came but that he just did not remember the visit.
DF was a somewhat unsatisfactory witness. He was aggressive and argumentative. He did admit of some possibilities but rejected others with a curiously emphatic certitude that the passage of time might not have justified. I do not believe, however, that he was lying, but I do treat his evidence cautiously. Despite his earlier convictions, I do not consider that he is a dishonest person or that the 40 year old offences have much bearing on his current character or credibility.
(b) DF’s son, AJ
The accused’s son, AJ, confirmed that in January 1987 he was employed at the Statesman Hotel in Curtin and that, at the time, lived in the hotel and not at home. He worked each Tuesday to Saturday.
He said that around Christmas time in 1986 he would, when not working, have been down the coast or “would probably go home to Mum and Dad’s and do some washing”.
He owned his own vehicle, a Ford Laser hatchback. He recalled DF’s truck but denied driving it in January 1987.
He confirmed the family’s arrangements of holidaying at the coast and that their ski boat was kept there during the summer months. He also confirmed that the wetsuits and skis were kept at the caravan during the summer months. He said there was no need to bring them home during summer.
He denied picking up C and K from his grandmother’s home in Canberra in January 1987. He only became aware of C’s allegations when the police approached him.
In cross-examination he expressed the view that he believed the actions alleged against his father by C did not happen. He denied speaking to his father or other members of his family about the allegations. He said he had seen how DF behaved with his, AJ’s, daughter and did not believe the events as alleged could have occurred.
He said that he had received his truck licence by learning to drive in DF’s truck and so by January 1987 would have driven it many times. He denied, however, driving it in January 1987 as he “wouldn’t have needed it in January”. There were no markets held then and he only drove it to help DF there. He accepted that he would possibly have visited his parents in January 1987, but did not recall C or K ever being there at that time.
AJ said he would have definitely been water-skiing in January 1987 and that, at that time, he would have owned his own wetsuit. He said it would sometimes be taken to DF’s house and may have been in the rumpus rooms, but not in January 1987 because it would then have been at the coast. He accepted, however, that it was possible that one of his siblings may have brought their wetsuit to his parents’ home in January.
I considered AJ gave his evidence carefully, trying to tell the truth. He was committed to the innocence of his father and that may have given an edge to his evidence but he did not appear to me to be embellishing his evidence.
(c) DF’s youngest daughter, DM
The accused’s youngest daughter, DM, is the child that C says she was with on the day in January 1987 when the alleged offence occurred.
In January 1987 she had been working for nearly 2 years at the Department of Finance, doing shift work either 7am to 3pm or 3pm to 11pm.
She confirmed the family’s summer holidays in the terms about which evidence had already been given.
She could not recall C or her sister, K, visiting in January 1987. She did go that year to the coast but could not recall how long she stayed there. Her parents were there at the same time. She had bought herself a wetsuit at some time and said it would be kept, with the others, at the coast. She did not recall “sorting out or doing something to [her] skis and wetsuit” in the rumpus room in January 1987.
In cross-examination, she said that she learnt of the allegations when reading the summons served on her father. She said she only found out more at the committal hearing but did not seek further information as she did not believe that the offence has been committed by DF. She had not spoken to DF or other members of her family about the allegations.
She said that she had children and, despite not knowing actually what has been alleged, she was happy for her children to be in the company of their grandfather, DF.
She was 17 in January 1987 and knew that C was about a year younger. She accepted that, at the time, C was 15.
She said that in January 1987 the family “would have been” down at the coast, though she accepted that she did not have “any proof to say [she] was down the coast”. She could not remember C and K ever coming in a January.
She also confirmed that the wetsuits and skis were always down the coast in December and January, though she did not have an actual memory of that being the case in January 1987.
I found DM to be making a genuine attempt to tell the truth, though I found it odd that she knew so little about the allegations in which she was allegedly a fairly central participant. Again, she expressed a firm belief that, despite not being aware of the details, the acts alleged could not have occurred. This may have somewhat affected her evidence. She made appropriate concessions, however, and did not try to embellish her evidence.
(d) DF’s wife, MA
The accused’s wife, MA, had been married to DF for 51 years. She confirmed the various family relationships. She confirmed that her mother-in-law, Nan, lived in Canberra.
She said that the family’s normal practice was to go down the coast at Christmas and come home after New Year, but, if they had leave, to stay there for the whole of January.
She was as, at January 1987, employed full-time; her working hours were 8am to 5pm, Monday to Friday. She said that she and DF arrived home around the same time. At weekends, if not down the coast, they would be home together.
She did not recall C and K coming to visit in January 1987. Nan visited DF and MA a lot as they brought her over quite a few times.
She also said that the family owned some wetsuits and ski gear but that they remained at the coast and were not brought back during January. She also confirmed they had a swimming pool at home.
In cross-examination, she confirmed the normal practice about the family’s visits to the coast. The only deviation was that if they had leave, when they would stay at the coast all January. They would, however, go down at weekends on other occasions. She said that she and her husband, DF, were never at the coast at different times, always there together. She also confirmed that she and DF always took their leave together.
She said that Nan regularly visited but could not recall a specific visit in January 1987. She also did not recall C and K visiting in that month.
She said that generally when she went shopping, DF would help her and she did not recall going shopping on her own. She accepted that there were times when she arrived home from work before DF and that she could have been alone in the house.
She said that she finished work before DF but when it was pointed out that she said she worked until 5pm and DF finished work at 4pm, she suggested that he had to come from further away (she worked “two streets away”) and that she worked flex time, sometimes finishing “4/4.30”. It was not a very satisfactory explanation of some differences in her evidence.
MA was forthright in her evidence. She did not appear to be dissembling but her clear faith in the innocence of DF may have given a certitude to it that was perhaps greater than it deserved. As noted, I thought she did try to explain away what might have seemed an inconsistency in her evidence though not on a critical issue.
(e) The twin sister of NJ, namely MH
In January 1987, MH was living at the home of DF and MA. She was then employed as a hairdresser. She worked Tuesday until Saturday each week.
She confirmed the family arrangements with their coast visits and arrangements. She said that, in 1986, she spent Christmas Eve and Christmas Day in Canberra, but had spent time down the coast as well as at home.
She owned her own skis and a wetsuit, and said they were kept down the coast and that there was no need for them to be at home in January.
She knew C, but had no recall of her coming to Canberra in January 1987.
She also confirmed that DF used to take plants to the EPIC Markets in a Pantech truck and that he did not attend the markets in January.
In cross-examination, she said that there were never occasions when either DF or MA were down the coast but not both and when the other stayed home.
She also said that it would not be unusual for her mother to go to the shops, “to duck up to the shops without [her] dad”. She then tried to correct herself, saying that in 1987 it would probably be unusual because there would not then have been extended trading hours.
She was also a little vague about her father’s working hours, despite saying that he “worked longer hours than [MA]”.
She could not recall being at home in January 1987 when only MA or only DF were home. She did not recall how long her parents were down the coast that year. She accepted that they could have been at home during January 1987.
She did not recall C coming to visit in January 1987. There were reasons for this. What she said was:
Yes. Do you recall your cousin [C] coming to visit in January 1987? No, I don’t and I – I really don’t believe she was here in 1987 and I’m – I’m quite clear about that for the specific reason, my 21st was in March.
Yes? So January’s very close to March, and I’m very clear about my birthday in March.
Yes? I really do not believe seeing her in January 1987.
Sorry, but I’m not quite sure of the significance of your birthday being in March? I have very vivid memories of my birthday.
Yes? A 21st is very significant.
...
Yes? So because that’s very clear, the January, when I started thinking back about things, when I knew I had to come and give evidence, I could actually recall and I can remember the boyfriend I had at the time, so that starting bringing back a lot of memories and I can quite clearly remember that summer of ’87 and I can quite clearly remember her not being here. If she was here she would have met that boyfriend. She never met him.
...
It is possible she could have around and you didn’t even know she was here? That’s possible but what I’m saying when I finished at 5.30 I would have went to see her at my Nan’s and she would have met my boyfriend.
Yes, but it is possible that you might not have known that she was here? No, if she was here, I would have known she was here. I used to visit my Nanna a lot. I used to do my Nan’s hair once a week.
Yes? Go to my Nan’s flat and do her hair.
There was also no significant event like your 21st that you have described that happened in January so it may be that you simply don’t recall something that happened? But if she was here for a significant amount of time I would have known because I used to go, as I said, to my Nan’s once a week and do her hair. I used to wash my Nan’s hair and set it in rollers so I would have seen my cousin at my Nan’s house.
Yes, [C] was in Canberra in January ’87 wasn’t she? I don’t believe so.
She said she did not ever bring her wetsuit home in the summer and she was not aware that other family members did so because they were transported to the coast in the boat at the beginning of summer and transported back at the end of summer. She could not have brought her skis back because she could not fit them in her car.
As MH gave her evidence, I sensed that she was trying a bit hard to be credible and support DF. I did not form the impression that she was not telling the truth or being inaccurate, but that she was clearly influenced by her strong belief that DF was not guilty. However, her complex explanation about why she thought C did not visit in January 1987 was so complicated that it actually seemed to me to be rather credible. It was supported by the entirely credible explanation that she did her Nan’s hair every week.
Consideration
As I have already assessed, the evidence of C was convincing and credible. Were it to stand alone and unchallenged, then, even after the careful scrutiny I have said I should give it, I would rely on it.
It is supported by the evidence of Bobby Husking, though the date of the disclosure to her is a little problematic. I am inclined to accept that it was in late 1987.
In respect of Ms Husking’s evidence, I was referred to Director of Public Prosecutions v Walker [2011] ACTCA 1 at [64]-[68], where it was made clear that the evidence of complaint is not only available to show consistency in the evidence of C but that it is evidence of the truth of the complaint itself. I accept that.
I am entitled to use what was said in the complaint as evidence of the truth of the fact that DF inappropriately touched C and kissed her. I do so. I also accept that the way and time at which the complaint was made is supportive of me accepting the evidence of C.
I am satisfied that the complaint was made. As noted above (at [72]), I consider it to have been made in late 1987.
That raises the possibility that, as MC had said in the earlier proceedings, it may have happened in another school holiday, say Easter or September. That would be consistent with the evidence of Ms Husking.
While I accept that MC resiled from that, finding support for the visit occurring in January 1987 from the photos, I did not have the benefit of seeing the photos and have some doubt as to whether her suggestion that the trees shown were only consistent with January and not, say May or September.
Timing became important because the preponderance of the evidence was that it was unlikely that the visit occurred in January 1987. It was more likely than not that the visit to DF’s house would not have been on a weekday for, if DF was on leave, he would be down the coast and, if he was working, he would not be at home during the day and be likely to be down the coast at the weekend. If it was on a weekend, MA would also have been at home.
I also accept that it would be very unlikely that skis or wetsuits would be in the rumpus room in January. I accept, too, that it would be unlikely that there would be pot plants on the back of the truck in January.
None of these make the evidence of C impossible, but they are so unlikely that they raise any reasonable doubt as to whether the visit happened in January.
They are consistent with it happening at another time of the year.
The date of an alleged offence is not ordinarily an element of an offence; it is a particular, as Dixon J said in Wishart v Fraser (1941) 64 CLR 470 at 486.
In Dossi (1919) 13 Cr App R 158 at 159, Atkin J (as his Lordship then was) said “[f]rom time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence.”
His Lordship relied on Coke’s Institutes for this proposition. See also R v James (1923) 17 Cr App R 116 at 117.
In this case, however, time has somewhat more importance. Since C would turn 16 in February 1987, the offence charged could not be made out after that date because an element of the offence is that C was, at the time above 10 and under 16 years of age.
Secondly, the Crown had presented its case on the basis that it occurred in January 1987. This was the express evidence of C, because she dated it by reference to her impending 16th birthday and MC said her memory, jogged by the photos, meant she now placed it clearly in January 1987.
Thus, even were there to be an amendment allowed to the date in the indictment, the accused would be entitled to an adjournment for the purposes of investigating the new date. No amendment was sought.
Accordingly, I do not consider further whether the events outlined by C could have occurred but at a time other than that specified in the indictment.
The question then is whether I am satisfied beyond reasonable doubt that the events alleged by C occurred in January 1987.
There is no doubt that it is possible that they could have occurred and could have occurred then.
It is possible that DF was working and that he and MA were not at the coast at this time. No-one said that, in those circumstances, they necessarily went to the coast every January weekend, though that was, it seems to me, likely.
The visit by C and K to DF’s house could have possibly happened on a Sunday, when AJ was not working so that he collected the girls and brought them over. He may have been at home, doing his washing and been asked to do that job. In this scenario, which I hasten to add, was never put to any witness, he could have been asked to collect the girls he may have used the truck, his father’s mode of transport, when at his parent’s place doing the washing.
There was no reference by C to MA being present. It is possible she was at the shops. The extended trading house referred to by MH did not mean that there were, before that extension, no shops open on Sundays.
That it is possible that the events as outlined by C occurred as she stated is, of course, not enough. I may have a grave and heavy suspicion that such events did occur. I have, however, to be satisfied beyond reasonable doubt that they occurred before I can convict DF of the offence that they constitute.
I have doubts about whether they could have occurred for the following reasons:
(a) It seems possible, but highly unlikely that there were skis or wetsuits in the rumpus room in January. Though C was not cross-examined about this discrepancy, I do not consider that the evidence of unlikelihood was recently invented nor that it was, having regard to the earlier trial, an issue of which the Crown was unaware.
(b) It also seems highly unlikely, while strictly possible but perhaps so improbably as to make it virtually impossible, that there would have been pot plants in the truck in January.
(c) I found it difficult to accept that the incident may have occurred so contemporaneously with DM going out the back door. This evidence of C was that the screen door banged and DF came out of the toilet. DF must have been aware of the proximity of DM and yet he is said to have committed the offence in those circumstances.
I combine these matters with the likelihood that the family would have been down the coast in January 1987, the unlikelihood that DF would have been home without MA, the fact that MH has actual reasons for thinking that C did not visit in January, the unexplained absence of evidence from K, and the unlikelihood that she went for a drive with AJ.
Though there may be grave suspicions that, at some time, some event of the kind alleged did occur, I have a doubt, which I consider to be reasonable, that the offence charged actually occurred.
Conclusion
In the light of my finding, there must be a verdict of not guilty.
I will record that verdict accordingly.
I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 19 February 2013
Counsel for the Crown: Ms M Moss
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr J Sabharwal
Solicitor for the accused: Howes Kaye Halpin
Date of hearing: 28, 29 and 30 November 2011
Date of judgment: 19 February 2013
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