R v Elrick
[2011] ACTSC 66
•28 April 2011
R v SHAWN MATTHEW ELRICK
[2011] ACTSC 66 (28 April 2011)
CRIMINAL LAW – jurisdiction practice and procedure – trial by judge alone – offences of sexual intercourse with a person between ten and sixteen years –accused not guilty.
CRIMINAL LAW – jurisdiction practice and procedure – trial by judge alone – offence of committing an act of indecency with a person between ten and sixteen years – accused not guilty.
CRIMINAL LAW – particular offences – offences against the person – committing an act of indecency with a person between ten and sixteen years – elements of the offence – offending against recognised standards of propriety or good taste according to contemporary standards.
CRIMINAL LAW – jurisdiction practice and procedure – prosecution seeking to adduce evidence in reply – exceptional circumstances required – reply evidence permitted.
EVIDENCE – admissibility and relevancy – admission of case statement – reliance to credibility of prosecution witnesses – not relevant.
Crimes Act 1900 (ACT), s 50
Evidence (Miscellaneous Provisions) Act1991 (ACT), ss 40, 40Q, 40U Div 4.2B
Supreme Court Act 1933 (ACT), s 68B
Criminal Procedure Act 1986 (NSW), s 33
R v Massey [2000] ACTSC 107
Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
Shaw v The Queen (1952) 85 CLR 365
The Queen v Chin (1985) 157 CLR 671
R v Morton (1998) 143 FLR 268
R v Goodwin (2009) 233 FLR 473
No. SCC 185 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 28 April 2011
IN THE SUPREME COURT OF THE )
) No. SCC 185 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
SHAWN MATTHEW ELRICK
ORDER
Judge: Refshauge J
Date: 28 April 2011
Place: Canberra
THE COURT FINDS THAT:
On the first count on the indictment, the accused is not guilty.
On the second count on the indictment, the accused is not guilty.
On the third count on the indictment, the accused is not guilty.
The accused, Shawn Matthew Elrick, was charged on 29 January 2008 with two offences against the Crimes Act 1900 (ACT), alleging that he had committed prohibited sexual acts against a young woman. On 6 March 2008, he was charged with a further such offence against another young woman.
In order to comply with s 40 of the Evidence (Miscellaneous Provisions) Act1991 (ACT) (Miscellaneous Provisions Act), I shall refer to the complainants by the use of initials; the first I will refer to as TBL, the second as WEN.
Mr Elrick was arrested on 27 January 2008, and having earlier pleaded not guilty, he was, on 16 May 2008, committed for trial to this court. On 8 September 2008, he made an election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT).
The charges
The indictment presented to the court, charged Mr Elrick as follows:
FIRST COUNT: ... that on or about the 19th day of January 2008 at Canberra in the Australian Capital Territory [he] engaged in sexual intercourse with a person, namely TBL, being a person above the age of 10 years but under the age of 16 years, to wit, 14 years of age.
SECOND COUNT: And further that on or about the 19th day of January 2008 at Canberra aforesaid [he] engaged in sexual intercourse with a person, namely TBL, being a person above the age of 10 years but under the age of 16 years, to wit, 14 years of age.
THIRD COUNT: And further that on or about the 19th day of January 2008 at Canberra aforesaid [he] committed an act of indecency upon a person, namely WEN, being a person above the age of 10 years but under the age of 16 years, to wit, 12 years of age.
The proceedings
The proceedings commenced before me on 23 September 2009. Because of amendments made to the Miscellaneous Provisions Act, the proceedings initially were conducted as a Pre-Trial Hearing under Div 4.2B of that Act. The trial then proceeded as a trial conducted by judge alone.
In R v Massey [2000] ACTSC 107, Einfeld J held that the principles set out by the High Court in Fleming v The Queen (1998) 197 CLR 250, in considering similar provisions in New South Wales, namely s 33 of the Criminal Procedure Act 1986 (NSW), as it then stood, should be applied in conducting such a trial. In that case, the High Court held (at 262-3), amongst other things, that:
(1) the finding referred to in the section is of the character that would have been expressed in “a verdict of a jury”, namely a finding of the ultimate guilt or otherwise;
(2) a failure to comply with the requirement to include the principles of law and the findings of fact is an error of law and may mean that justice has miscarried; and
(3) this obligation is not “satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”.
In R v DM [2010] ACTSC 137, I referred to and adopted what Nield AJ had said in R v Mulcahy [2010] ACTSC 98 in discharge of the obligation to set out the principles of law that are required to be included. His Honour said (at [13] to [24]):
13.A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14.The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15.The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16.The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
17.In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18.As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
19.I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20.I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21.I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22.I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
23.The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.
24.In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
I respectfully adopt what fell from his Honour and direct myself accordingly.
I note that in this case, TBL and WEN gave evidence by CCTV from a location remote from the court room at a pre-trial hearing, although it was conducted immediately before the trial. This is required by s 40Q of the Miscellaneous Provisions Act.
Were the trial by jury, I would be required by s 40U(2) of that Act to tell the jury the following:
(a)the witness gave the evidence by audiovisual link at a pre-trial hearing; and
(b) admission of the audiovisual recording is a usual practice; and
(c)the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the evidence was given in that way.
I accept what is there required and will approach the evidence accordingly.
The trial
The two complainants gave evidence and were cross-examined. In addition, the Crown led evidence from Mr C D Doyle, a young man who knew Mr Elrick and TBL and WEN, and from Federal Agent Amy Burnip.
Mr Elrick gave evidence on his own behalf and his mother also gave evidence.
The Crown sought to call evidence in rebuttal of certain evidence that had been given by Mrs Elrick but which had not been put to Federal Agent Burnip.
There are, of course, only very limited circumstances in which the Crown should be allowed to call further evidence once it has closed its case. The principle was set out in Shaw v The Queen (1952) 85 CLR 365 where Dixon, McTiernan, Webb and Kitto JJ said (at 379-80):
Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional.
In The Queen v Chin (1985) 157 CLR 671, Dawson J (with whom Mason J, as his Honour was, agreed) said (at 684–5)
The rule (sometimes referred to merely as a practice) which governs the reopening of the prosecution case after the close of the case for the defence, was examined in Shaw v The Queen [(1952) 85 C.L.R. 365] and was reconsidered recently in Killick v The Queen [(1981) 147 C.L.R. 565] and Lawrence v The Queen [(1981) 38 A.L.R. 1]. The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula. In Shaw’s Case [(1952) 85 C.L.R. at p.380], Dixon, McTiernan, Webb, Kitto JJ, expressed the view that:
It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.
The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, e.g., where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence.
In this case, Mr Elrick’s mother gave evidence that Federal Agent Burnip had rejected her offer to give a statement about the events of the evening, even though she had been present and had offered to make one.
It seemed to me that this was relevant to the credibility of Mrs Elrick. I noted also that there had been no cross-examination of the Federal Agent that put such an allegation squarely to her, though it was arguably raised.
In the circumstances, I permitted the Federal Agent to be recalled for the purpose of eliciting her evidence on that issue.
In addition to these witnesses, the following materials were admitted into evidence on the tender of the Crown:
A Photographs of the living room in the house in which Mr Elrick lived
B Statement of Jaxson William Connelly dated 11 March 2008
C Statement of Patrick Ian Connelly dated 11 March 2008
D Statement of CMT dated 8 February 2009
E Two DVDs recording the interview with Mr Elrick
F Statement of Federal Agent Amy Burnip dated 28 February 2008
G Transcript of interview with Mr Elrick on 28 January 2008
H Statement of Senior Constable Michael Harris dated 18 February 2008
J Statement of CMT attaching birth certificate of TBL
K Statement of TAW attaching birth certificate of WEN
L Sketch of house in which Mr Elrick lived
The following exhibits were admitted on the tender of Mr Elrick:
1. Case Statement filed by the Crown;
2. Photographs of the lounge room of the house in which Mr Elrick lived.
I now turn to consider this evidence.
The evidence
The prosecution case
The first complainant, TBL(a)
TBL, was a high school student at a school in Canberra. She knew Mr Elrick and WEN. At the time of the alleged offences, she lived near Lanyon Shopping Centre (the Shopping Centre).
She said that between 8:30pm and 9pm on 18 January 2008 she was called by the second complainant, WEN, who was using Mr Elrick’s mobile phone, inviting her to sleep over at her house that evening. She asked her parents for their approval, which they gave.
TBL’s father then dropped her off at the front of the Shopping Centre. She then saw Mr Elrick come from around a corner and WEN shortly after that.
TBL and WEN asked Mr Elrick to buy a four pack of Vodka Cruisers and TBL gave him $10. He purchased the alcohol for them and they all then walked to Lanyon High School to drink the alcohol.
While drinking, TBL received a phone call from another friend who asked if they wanted to meet at the front of the Shopping Centre. The three of them agreed to do so and walked back to the Shopping Centre.
When they arrived, there was a large group gathered at the front of the Shopping Centre and Security Guards came and split the large group up.
Between 10pm and 10.30pm, the two girls and Mr Elrick walked to McDonalds, and Mr Elrick ordered food and ate.
Eventually, the larger group also arrived at McDonalds. WEN told TBL that TBL could not sleep over at her place because WEN had been “kicked out of home”. Another friend offered to let TBL sleep over at her house, but TBL declined because WEN wanted to go to Mr Elrick’s house to get some more drinks.
Mr Elrick and the two girls went to a service station where WEN and Mr Elrick bought some cigarettes and then went to his home.
TBL said that they all arrived at the house together. She said that no one else was home when they arrived. The three of them sat down in the lounge room which is situated near the front entrance, and watched Foxtel television.
She described three couches in the lounge room, two single-seater couches and one three-seater couch. TBL sat down on the singe-seater couch that was closest to the front door. WEN sat down on the other one-seater couch and then moved to the three seater couch where Mr Elrick was sitting. TBL was shown photographs of the lounge room. She identified where WEN and Mr Elrick sat.
She said that the three of them stayed in the lounge room for about 30 minutes watching television and talking. At one point, Mr Elrick asked TBL to get some beers from the fridge in the kitchen for all three of them. She said she got three beers and gave one each to WEN and Mr Elrick, but she did not drink hers.
TBL recalled that the three of them moved from the lounge room to Mr Elrick’s bedroom. The light was not on in the room. She said that Mr Elrick’s bed was against the wall, beneath a window. There was a small television and DVD player beside the top end of his bed. According to her, the three of them lay down on the bed lengthways facing the window, on their stomachs. Mr Elrick was closest to the wall, WEN was in the middle of the bed and TBL was closest to the television beside the bed.
TBL said that Mr Elrick played a pornographic DVD and the three of them watched it for about 30 minutes.
TBL recalled that she was wearing track pants with an elastic waist, a top and was wearing a bra and underpants.
TBL then saw Mr Elrick lean over and try to kiss WEN on the side of her face or on the back of her neck and then saw, out of the corner of her eye, Mr Elrick try to put his hand down the back of WEN’s pants. TBL heard WEN say ‘No’, and he stopped. This went on for between 5 to10 minutes.
TBL said that Mr Elrick then leant over WEN and attempted to kiss TBL and put his hand down the back of her pants. TBL said ‘No’ and moved away a little. A few minutes later, Mr Elrick, she said, attempted again to put his hand down the back of her pants. This time, she felt one finger penetrate her vagina. TBL again said ‘No’ and again moved a little further away. Mr Elrick tried again, but TBL again said ‘No’ and moved a little further away again. Mr Elrick once more tried again to put his hands down her pants and she again felt one finger penetrate her vagina. TBL moved a little further away again and said ‘No’.
TBL recalled that WEN then got up off the bed and Mr Elrick got up off his stomach as well. He sat on TBL’s back and gave her a back massage.
TBL said that, while being massaged, she needed to go to the bathroom and she and WEN left the room. While they were in the bathroom, they agreed that they would tell Mr Elrick that they needed to leave and meet up with other friends.
The two girls left the bathroom and went back to Mr Elrick’s bedroom. TBL, while with WEN, called a friend on her mobile telephone and made plans to meet up at his house.
The two girls left Mr Elrick’s house between 1.00 a.m. and 2.00 a.m. and walked in the rain, for about an hour, to the house of the friend they had called.
When they arrived, they were met by two male friends and a man TBL thought was one of the friend’s father. TBL recalled that, as soon as she arrived, she told them that Mr Elrick had “tried making a move on [them]” and that he “fingered [her]” and that is why they wanted to leave.
Both of the girls stayed at the friend’s house, and, although she had told her friends and one of their father’s what had happened, she said that another friend of hers had told her parents.
In cross-examination, TBL admitted that she should have called her parents to let them know about the change of plans about where she would be sleeping that night. She denied a suggestion that she arrived with WEN at Mr Elrick’s house after he arrived home. She affirmed that she and WEN walked with Mr Elrick back to his house.
She also maintained that there was Foxtel available and they watched it despite a suggestion it was not available there. When asked, she said she had no recollection of selecting ‘Scary Movie 3’ to watch with WEN and Mr Elrick on the television in the lounge room.
TBL admitted that she was unsure, when they were all on his bed in the bedroom, whether Mr Elrick leant over WEN with his left arm, she said she did not look to see.
TBL also admitted in cross-examination that after she and WEN had been to the toilet she went back to the bedroom and lay down on the bed.
She also expressed some uncertainty about whether WEN was still in the bed when she says that Mr Elrick leant over to try and kiss her but then seemed sure that she was.
She admitted that she asked Mr Elrick to borrow his jacket to walk to her friend’s place and he gave it to her willingly. She has not returned it; she left it at her friend’s place.
TBL said that she had most of the Vodka Cruisers, though WEN, who had been drinking earlier, had only a few sips.
TBL also identified that she saw a freezer in the lounge room of Mr Elrick’s home from where she thought that she had got some beers. She also rejected a suggestion that there were no beers in the house that night.
The second complainant, WEN(b)
At the time of giving evidence, WEN was currently working and proposed to go to the Canberra Institute of Technology the next year.
WEN said she was a friend to TBL and that they had known each other for about a year or two.
WEN told of meeting Mr Elrick on 18 January 2008 and drinking beer with him at Lanyon High School. She said they had brought the beer from Mr Elrick’s house at around 7pm.
Between 7.30 pm and 8.00 pm, she called TBL on Mr Elrick’s mobile telephone and arranged to meet at the Shopping Centre. She did not mention a sleepover and when it was mentioned said “I’m not quite sure about that”.
TBL was already at the Shopping Centre by the time WEN and Mr Elrick arrived.
She said that TBL asked Mr Elrick to purchase a four pack of Vodka Cruisers. He did so and the three of them then went to Lanyon High School to drink it. She said they stayed for around fifteen minutes and TBL received a telephone call that there was going to be a fight at the Shopping Centre so the three of them walked back to the Shopping Centre.
She said that the three of them then went to McDonalds, for between ten and fifteen minutes, while Mr Elrick ordered food there, though the girls did not.
Afterwards, the three of them walked to Mr Elrick’s house. They walked through the front entrance and sat down on the couch in the lounge room. She said that she had been to Mr Elrick’s house before. She said that TBL sat down on the side of the three seater couch but could not remember where Mr Elrick sat.
She said that Mr Elrick put on ‘Scary Movie 4’ which the three of them watched and that Mr Elrick and WEN drank some more beers, which came from the fridge.
WEN said that, after watching the movie for approximately two hours, Mr Elrick asked both of the girls to go over to his bed. WEN identified Mr Elrick’s bed from photographs of his house and she identified where each of them lay.
She said that his bedroom was situated very close to the lounge room, approximately eight steps away. All three of them lay down on the bed on their stomachs she said “facing near the window near the TV”.
Mr Elrick, she said, then put on a pornographic movie but that neither of the girls had asked him to do so. She could not remember how long the pornographic movie lasted.
She said Mr Elrick then asked WEN for a back massage and she gave him a back massage. She recalled that she was wearing jeans and a t-shirt, a bra and underpants.
She said that Mr Elrick then tried to kiss her on the right cheek and tried to take her bra off. He also tried to put his hand down the back of her pants. He got as far down as her lower back, but WEN pulled his hand away and said ‘No’.
Mr Elrick then reached over her with his left arm and started touching TBL. WEN did not move from between the two of them.
WEN said she looked over her left shoulder and could see Mr Elrick’s hand go down the back of TBL’s pants, touching her skin.
WEN said that TBL looked at WEN and WEN could tell that TBL was scared. WEN then said she saw Mr Elrick try to put his hands down TBL’s pants two or three times.
WEN then said she pretended to be very drunk, so that Mr Elrick would not be suspicious and said that she needed TBL’s help to go to the toilet.
The two girls then got up from the bed and went to the bathroom. While they were in the bathroom they called a friend and asked him to pick them up, but he said no. They went back to the bedroom and half-an-hour later went back to the bathroom and called their friend again. This time he agreed they could meet up. They then decided to leave.
Before leaving, the girls asked Mr Elrick for some cigarettes and he said ‘Yes’. He then said, as the girls were leaving, that “nothing happened, I didn’t do anything to you”.
The girls then ran to their friend’s house which was about 125 metres away. When they arrived at between 2:30 am and 3.00 am, there were two male friends there.
WEN said that, upon seeing the two male friends, TBL began to cry and told them what had happened at Mr Elrick’s house, but WEN did not tell them what had happened to her.
In cross-examination, WEN said she had been to Mr Elrick’s house no more than five times, though it was put to her that in the police interview she said she had been there “like 10 or 15 times” and she admitted she was unsure how many times she had been there.
WEN could also not recall saying to the police that Mr Elrick’s mother was on the computer when she arrived or that she said to police that TBL played ‘Scary Movie 3 on the big TV’. She also did not recall saying to the police that she was wearing Adidas tracksuit pants.
She also denied inviting TBL to sleep over at her house and said she was unsure what the arrangement was regarding where they were going to sleep that night.
She said that she did not see TBL put any beers in the fridge in the kitchen, or get any beers out of that fridge in the kitchen
WEN also maintained that the DVD player in the bedroom was working and she said that she could see what Mr Elrick was doing to TBL because she looked over her shoulder.
(c) Christopher Dale Doyle
Mr Doyle was one of the male friends at the house the girls went to after leaving Mr Elrick’s house. He knew the two girls and Mr Elrick.
He said that, on 18 January 2008, he saw Mr Elrick and the two girls at the Shopping Centre around 9.00 pm. He greeted WEN and gave her a hug but does not remember how he greeted TBL. He stayed with them for around twenty minutes.
Afterwards, he went to McDonalds and saw a large group of people, including the girls and Mr Elrick. He thought that the girls were going to go back to Mr Elrick’s house with him after they left McDonalds.
The next time he spoke to either of the girls was around 12.00 am when he was at a friend’s house and he received three telephone calls from them. During the third telephone call, they said they were coming over because TBL “said she needed to talk to me”. He said that she sounded upset on the phone and was shouting that she wanted to talk to him.
He met the girls at the bottom of the street. As he saw them approaching he noticed that TBL was crying and that WEN looked upset. He walked them to his friend’s house.
The girls did not tell him what had happened at first. They talked a bit to his friend’s father and then went inside. One of the complainant’s told him and his friend what had happened. He said:
That [Mr Elrick] was in his boxer shorts and flirting with them and he was trying to give them massages. And then he tried to go down [WEN’s] pants and then she moved away and then he tried to get up [TBL’s] pants and she said no. And then he kept doing it and then he fingered [TBL] and then I think after that they left and as they were leaving he said that he was angry and saying I didn’t touch you and never touched you and things like that and then they left [Mr Elrick’s] house.
In answer to some questions in cross-examination, Mr Doyle said that at the Shopping Centre his sister and TBL had a conversation with the girls and arranged to ask Mr Doyle’s father if TBL would be allowed to stay with him as she wanted to come back to his house.
He also gave further evidence about the phone calls he had received from TBL. The first was apparently about 11.00 p.m. He said that WEN had spoken to him and told him “something... about her boyfriend cheating on her”. He said about an hour later he received another call from TBL saying she was at Mr Elrick’s place and asking to meet up later. He said that there was then a further call after which he walked up the street and met the girls. He also said that he did not think that they had been drinking.
In cross-examination, Mr Doyle could not recall what they were wearing or whether TBL said she was meant to sleep over at WEN’s house. Mr Doyle did say that the complainants were walking normally towards him when they met him and that they did not appear drunk.
(d) Federal Agent Amy Burnip
The next witness called was Federal Agent Amy Burnip. A number of documents, including Federal Agent Burnip’s statement were tendered.
In her statement, Federal Agent Burnip sets out her attendance on TBL and her parents on 27 January 2008 as well as WEN and her parents. Interviews were separately conducted with both and recorded.
She records that the next day she went with Senior Constable Harris to the defendant’s home and spoke to him. He said “Mum told me last night that everyone is saying that I raped someone called Chloe but I haven’t”. He was cautioned and admitted knowing WEN and TBL. He was then arrested.
Federal Agent Burnip recorded her inspection of the house. She wrote that she saw Mr Elrick’s mother in the house and Senior Constable Harris asked permission to take some photographs, which was consented by Mrs Elrick. Federal Agent Burnip heard Mr Elrick deny permission. She took the photographs anyway.
Her statement records that later in the morning Senior Constable Harris invited Mr Elrick to participate in an interview, in which, he put the allegations to him. Mr Elrick made contact with Legal Aid before the interview.
Federal Agent Burnip also recorded that she and Senior Constable Harris went to a liquor store at the Shopping Centre and viewed surveillance tape which appeared to show Mr Elrick entering the store at 9.00 pm and leaving it at 9.02 pm. She also records that she seized a computer printout which detailed Mr Elrick’s transaction at the liquor store.
She and Constable Harris, her statement records, also went to the McDonalds Restaurant and viewed surveillance material which appeared to show Mr Elrick in the covered outdoor area at about 10.20 pm. It appears he entered the restaurant and returned to the covered area where a number of persons were gathering. It appears he then entered the restaurant again and returned to the covered area.
The statement further records the obtaining and execution of a search warrant at Mr Elrick’s home on 7 February 2008. The execution of the search warrant was recorded on a hand-held audio tape recorder.
In cross-examination, Federal Agent Burnip was referred to her attendance at Mr Elrick’s home on 28 January 2008 and that she said that she did not obtain a statement from Mr Elrick’s mother, Mrs Jennifer Elrick.
She said she could not recall seeing a freezer behind the couch even though TBL, in her interview with police, had referred to her putting beers in a freezer behind the couch. She could not recall examining the television in Mr Elrick’s bedroom to see if it could play DVD’s.
(e) Statements
A number of other statements were tendered. A statement of Jaxson William Connelly was tendered. He knew WEN and TBL. He recalled on a Friday in January 2008 going to Chris Doyle’s house and later walking to the Shopping Centre. He saw Mr Elrick and the two girls there. He then returned to his father’s girlfriend’s house. Later, Chris Doyle came over. At about 1.00 am to 1.30 am on Saturday, “Chris and I” received a call on one of their mobile phones. He thought that he answered it, but said that Chris mainly spoke. He said when he spoke it was to TBL who “sounded a bit sad or scared” and asked if she and WEN could come over. He checked with his father who consented.
The two girls arrived after about ten minutes, the statement recorded. TBL was crying and WEN looked upset. TBL told them that she had been sexually assaulted by Mr Elrick at his house. The statement says that TBL said that “Shawn had held her down, kissed her and then fingered her” and that she was trying to get away while he was doing that. The statement continued that WEN ‘told me that Shawn had been trying to kiss her but she had told him that she was going to the toilet to get away”.
The statement further recorded that TBL and WEN said that as they were leaving, Mr Elrick “yelled out something like ‘I didn’t do any of this’, ‘don’t tell anyone’ and threatened them”.
The next statement was of Patrick Ian Connelly, Mr Connelly’s father. His statement confirmed his attendance at his girlfriend’s home at about 12.30 a.m. on a Saturday during January 2008. He was heavily intoxicated. He heard Jaxson, his son, and Jaxson’s friend, Chris Doyle out the front of the residence. He asked the girls what they were doing and they told him that they had nowhere to stay, so he told them they had better stay at his place and arranged for them to sleep in the lounge room.
A statement from TBL’s mother was tendered to which was annexed a birth certificate showing that on 19 January 2008, TBL was between the ages of ten and sixteen years.
Similarly, a statement from WEN’s mother was tendered to which was annexed a birth certificate showing that on 19 January 2008, WEN was between the ages of ten and sixteen years.
The final statement tendered by the prosecution was that of Constable Michael Harris, who accompanied Federal Agent Burnip in her investigations. His statement corroborated the evidence of Federal Agent Burnip.
The defence case
(f) The defendant
Mr Elrick gave evidence. He said that on 18 January 2008 he left work at 5:30pm and caught a bus home. When he arrived, his mother was there. He was shown a photograph of his house and he identified his bed.
He said that he had a shower and then he left home at around 8:15pm to go to the Lanyon Youth Centre which was approximately 700 metres from his house. He ran into WEN at the Youth Centre.
His evidence was that after talking for a while, WEN used Mr Elrick’s mobile telephone to call TBL inviting her to sleep over at WEN’s house.
He said that between ten and fifteen minutes after WEN had called TBL, he and WEN walked down to meet TBL at the front of the Shopping Centre.
TBL asked him if he could buy her a four pack of Vodka Cruisers and he agreed. She gave him $10. He also bought a four-pack of Jim Beam and Cola for himself.
The three of them walked to Lanyon High School to drink the alcohol. He drank three and a half of the four drinks he had bought and he saw TBL drinking the Vodka Cruisers but was unsure how many she drank. He was unsure whether WEN drank any alcohol.
Mr Elrick said that TBL then received a mobile phone call from friends who were at the Shopping Centre. They told TBL that there was meant to be a fight at the Shopping Centre, so the three of them walked back there.
He recounted how when they arrived, there were approximately fifty people there and Mr Elrick recognised a few people. A security guard told the large group to move on so the two girls and Mr Elrick walked to McDonalds. Mr Elrick went into the restaurant and purchased some food to eat while both of the girls waited outside talking to other people from the large group from the Shopping Centre who had arrived at McDonalds.
Mr Elrick recalled joining the two girls outside McDonalds while he ate his food there.
He said that he then started to walk home and WEN asked him to buy her some cigarettes from the service station, but he did not do so and kept walking home.
He recounted that when he arrived home, his mother was sitting at the computer which is located in the family room. The lights were on in the lounge room, family room and kitchen. He walked through and started talking to his mother.
He said that around fifteen minutes after he arrived home he heard a knock at the door. He answered it and saw TBL and WEN at the door. He let them both in and then lay down on the three-seater couch and started watching television.
He then said that the girls asked if they could put a movie on and he asked them to choose one. TBL chose ‘Scary Movie 3’ from a shelf containing DVDs and put it on. The girls each sat on a single seater couch. Mr Elrick was shown a photograph and he identified the couches on which the girls sat.
He recalled that after approximately thirty minutes watching the movie, the girls went to the toilet and said they were leaving to meet up with some other friends and go to a party. TBL and WEN left his house at between 11:30pm and 11:45pm.
After they had left his house, he turned off the front light and the movie, walked into the family room and spoke to his mother for ten to fifteen minutes and then went to bed.
He denied asking the complainants to watch a pornographic movie with him, laying down on the bed with them, trying to kiss either of them, trying to put his hands down TBL’s pants, inserting a finger in TBL’s vagina, attempting to undo WEN’s bra, putting his hand on WEN’s lower back, saying ‘I didn’t do anything, I didn’t kiss you’ and threatening them.
Mr Elrick also gave evidence that on the morning of 28 January 2008, the police attended his house and he was taken from his home to City Police station by police officers for questioning about the allegations concerning what the girls said he did to them and in relation to the purchase of the Vodka Cruisers. He admitted that he did not tell the truth when asked in the interview as to whether he bought the alcohol because he was scared of the repercussions.
On 6 March 2008, he was subsequently charged with supplying alcohol to TBL. On 3 April 2008 he pleaded guilty to the charge.
In cross-examination, Mr Elrick was challenged about his claim that he arrived home first and the girls arrived at his house afterwards. He was asked about the following statements he had made in a recorded police interview:
Q 115 What time do you think you got to your house with [the first and second complainant]
A 115 I’m not too sure
...
Q 63 Mm’m
A 63 Then we went – ‘cos we met up at the shop then we went around to McDonalds in Lanyon and they seen a lot of other people that were there drinking and they kept getting alcohol off them
Q 64 Yeah
A64 And then we went back to my house for a while then they ended up leaving to go to a party and I don’t know whose house the party was at or whose party it was and I don’t know what time they left there but otherwise I was sitting on the couch watching Scary Movie three.
He agreed that what he remembered one week after the event was more likely to be correct than what he could remember more than one year after the event. He also agreed that the answers he provided in the recorded interview indicated that when he went home, the girls went home with him.
Mr Elrick was also challenged regarding his evidence that when he arrived home his mother was on the computer. The Crown prosecutor drew the accused’s attention to the following questions and answers from the recorded police interview:
Q 113 Okay. Who went back to your place?
A 113 [TBL] and [WEN].
Q114 Was anyone else?
A114 My mum was in bed and no one else home ‘cos they came past my house then they were going to a party.
Mr Elrick admitted that when he told the police his mother was in bed that that was a lie. He said “I was under a lot of stress”. He referred back to an earlier answer where he said that when he was getting questioned, he “wasn’t in the right state of mind at the time, due to I was stressed out”. He admitted that he had “... said stuff in this statement ... that was not true”.
He again denied: trying to kiss WEN, trying to put his hands down either of the girls’ pants, inserting a finger in TBLs vagina and attempting to undo WEN’s bra.
He denied that TBL was crying when she left his place, nor that she looked upset. He also said that he had spoken to WEN in passing three or four days later.
(g) Jennifer Fae Elrick
Mr Elrick’s mother, Jennifer Fae Elrick, was called. She said that on 18 January 2008, Mr Elrick was living with her. She had come home from work at around 5.00 pm and did not leave her home that night. She went to bed at around 12.30 pm that night.
She said that on that day Mr Elrick came home from work, had a shower, talked to her for a little while and then, after 8.00 pm, he said he was going out to meet some friends and left the house.
She recalled that he did not return home until a little before 11pm that night. She saw him walk into the lounge room, say hello to her, sit down and then turn on the large television in the lounge room.
She further recalled that, at around 11.00 pm that night, she heard a knock at the front door which Mr Elrick answered. She saw two females enter the house. She did not see their faces, but did see them walk into the lounge room. She could see them when they were sitting in the lounge facing the television. Mr Elrick walked to the kitchen and said to her that the two girls would not stay long, they had come in to get out of the rain.
She said that she could hear the television in the background and the ‘odd smatterings of words’. She did not go to the lounge room, but could see that the girls were facing the larger television.
Her evidence was that there were two televisions, a larger and smaller television in the lounge room. The girls, when she saw them, were watching the larger television. The smaller television was in an alcove area where there was a fold-out bed. She said that the television worked, but most DVDs did not work in the DVD player. She said there was no freezer in the lounge room.
She said that, at one point, while the girls were in her home, Mr Elrick went to the fridge in the kitchen and poured himself a drink, she thought it was a glass of water or Cola.
At around 11.20 pm the two girls left the lounge room, walked through the kitchen and family room area and were standing, whispering, in the vanity area of the bathroom which was about five metres to her left. She said she recognised WEN and knew her name, but did not recognise TBL. She did not say anything to either of girls. After the girls left the vanity area of the bathroom, they walked back the lounge room where they stayed for around fifteen minutes.
She recalled that a little after 11.30 pm, the girls left through the front door of the house. That was the last she saw of them. Mr Elrick then walked to the family room area where the computer was and said that the girls have gone to a party and that they probably would have been caught in the rain.
Mrs Elrick said that she did not make a statement to police but offered to do so. She said that she was told “it would be a waste of my time and the police’s time and effort for me to give a statement”.
In cross-examination, Mrs Elrick was shown a diagram depicting the layout of her house. She confirmed that it was correct, but out of proportion. Using the diagram she identified where Mr Elrick slept, namely in the alcove behind a dividing wall separating it from the lounge room. She marked on the diagram where the computer was located at which she was working. She also marked where she saw the girls whispering, her bedroom and where Mr Elrick had his bag. The mark the witness made showed the computer to be on an angle facing a wall, thus, when she sat at the computer she was facing the wall and could not see if anyone was on the bed in the lounge room.
She was also cross-examined on the beverage Mr Elrick poured himself when she saw him in the kitchen. It was suggested to her that Mr Elrick took a beer out of the fridge. She denied that it was beer and said that she was the only beer drinker in the house. She said that while her son drank beer, it was not his drink of choice. Furthermore, she said that there was no beer in the house at that time, the last time there was beer in the fridge, according to her, would have been New Years Eve.
In response to a suggestion to her, however, that if Mr Elrick had put some beer in the fridge on 18 January 2008 she would not have necessarily known, she agreed that this could be true.
She was shown a photograph in an exhibit which showed the bed where Mr Elrick slept and a carton with ‘Tooheys’ written on it. She said that the carton was Mr Elrick’s which contained his car stereo and speakers. Although the witness had never looked in the box, she had seen Mr Elrick and his friend taking the parts out of the car he wanted to keep so she knew what was in that box.
Mrs Elrick was also cross-examined about the small television set near the fold-out bed. She was further questioned regarding whether the DVD player was working at all. She said that her sister had given it to her and she had a parental lock on it. She also said that it played the DVDs they had bought, but not some DVDs that were copied.
She was then cross-examined about why she did not give a statement to the police. She maintained that she was told it would be a waste of her time and police’s time and that it was unnecessary. She said she was shocked by that response but did not ask why it was not necessary for her to give a statement. She also said she did not know who to go to within the Police Force to speak to about the refusal.
As noted above (at [18]), the prosecution sought and was given leave to call evidence in reply. Federal Agent Burnip was recalled to deal with the evidence of Mrs Elrick that she had offered to make a statement, an offer that had been refused.
Federal Agent Burnip denied using the words attributed to her by Mrs Elrick. She said Mrs Elrick had been quite polite in all her dealings and she would not have been rude to her in her answer. She says she would have said “In [sic] I do require that, thank you. I’ll come back to it”. She said she did not specifically recall Mrs Elrick offering to make a statement but would not have refused one, but may have deferred it.
In cross-examination, Federal Agent Burnip agreed that she knew from the statement of WEN that Mrs Elrick was in the house at the time of the events of that evening. She agreed she did not ask Mrs Elrick about the events of the evening. She suggested as a reason that Mr Elrick had said she was in bed at the time. She also referred to the transcript of the execution of the search warrant where, at the end, Federal Agent Burnip asked Mrs Elrick if she had anything to say in relation to the matter and she said no.
Consideration
The elements of the offences are as follows: for the first two counts:
(1) that TBL was between the age of ten and sixteen years;
(2) that Mr Elrick engaged in sexual intercourse with her;
(3) that it occurred on or about 19 January 2008 in Canberra;
and for the third count:
(1) that WEN was between the age of ten and sixteen years;
(2) that Mr Elrick committed an act of indecency upon her;
(3) that it occurred on or about 19 January 2008 in Canberra.
There was no real dispute about the first and third elements in each case. There must be some doubt about whether the alleged incidents, on the evidence, occurred on 18 January (i.e. before midnight) or on 19 January (i.e. after midnight) but the pleading is apt to encompass either.
I am satisfied beyond reasonable doubt that these elements have been proved.
In relation to the first two counts, sexual intercourse is defined in s 50 of the Crimes Act. Relevantly, it is defined to mean:
the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
Thus, the insertion of Mr Elrick’s finger into the vagina of TBL, as alleged, would amount to sexual intercourse within the meaning of the Crimes Act.
In relation to the third count, “act of indecency” is not defined in the Crimes Act itself. An act simply means a thing done, it is an ordinary English word and should be given its ordinary meaning. There are many authorities which define “indecent” which is, of course, the adjective from the noun of “indecency”.
After considering a number of authorities, Crispin J in R v Morton (1998) 143 FLR 268, said (at [25]) in the context of whether certain tapes were indecent, 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.
The allegations against Mr Elrick in relation to WEN were that he tried to kiss her on the cheek and that he tried to take off her bra and then moved his hand down her back to her tailbone, touching her skin but not under her pants. It seems to me that, apart from attempting to take off her bra, the other actions are probably not indecent, but the attempt to take off her bra both by itself and in conjunction with the other actions does amount to an act of indecency. No submission was made to the contrary by Mr Elrick’s counsel, though he did raise the question of whether the attempt to undo WEN’s bra had been particularised as part of the conduct that constituted count 3.
For this purpose, he had tendered the Case Statement as part of his case. The relevant passage was, as follows:
The accused put an adult pornographic movie on the television. Whilst lying on the bed, the accused repeatedly kissed [WEN] on the lips and neck and also tried to kiss [TBL] on the lips. The accused undid [WEN’s] bra and then repeatedly tried to put his hands down the back of [WEN’s] pants. [WEN] told the accused to stop, hit him and pulled his hand away. The accused’s hand reached [WEN’s] lower back just above her buttocks (Count 3).
Mr Sabharwal, who appeared for Mr Elrick, pointed out that it was confusing. It seems to suggest that the act that constituted Count 3 was the touching of her lower back. This, is re-inforced by the fact that the full stop for the last sentence comes after the brackets which contain the reference to count 3. In addition, there is a reference in the paragraph to Mr Elrick’s attempt to kiss TBL and, as Mr Sabharwal submitted, that cannot be an act of indecency upon WEN.
It was confusing, but I described the history and purpose of the Case Statement in R v Goodwin (2009) 233 FLR 473 (at 478-9; [26] to [35]). As I said (at 479; [33]):
Until formally relied upon by the prosecution, which may never happen, the case statement does not constitute the prosecution opening by which certain elements in the trial are judged.
In this case, Mr D Sahu Khan, counsel for the prosecution, did make an opening statement and it was somewhat different from the case statement. The relevant passage in the transcript of Mr Sahu Khan’s opening reads:
The accused had put on an adult pornographic movie on the television and whilst lying on the bed, the accused repeatedly kissed [WEN]. The accused undid [WEN’s] bra – should be tried to do [WEN’s] bra – and then repeatedly tried to put his hands down the back of [WEN’s] pants. [WEN] told the accused to stop and pulled his hand away, the accused then reached over – reached [WEN’s] lower back just above her buttocks.
While there was no express reference there to Count 3, it was clear enough that this is what was intended.
I am satisfied that if it is proved that Mr Elrick repeatedly kissed WEN, attempted to undo her bra and put his hand down her back, that would amount to an act of indecency.
Credibility
This case turned primarily on the credibility of the witnesses. This was the thrust of the submissions of both counsel. I have carefully perused the transcript and my contemporaneous notes. This has brought back to me the atmosphere of the court proceedings and a clear recollection of the demeanour of the witnesses.
I did not form the view that any of the witnesses were lying or deliberately not telling the truth. That, however, is not sufficient in itself. I carefully scrutinised the evidence, particularly of TBL and WEN.
I felt somewhat hesitant about Mr Elrick’s evidence. He had clearly either lied to police or not told the truth in the witness box. He said he had lied to the police. It is understandable that young people, as Mr Elrick was, might be tempted, when arrested by police, to say things that may not be true or completely true, in order to try and exculpate themselves. I felt, however, that unless otherwise corroborated, I could not rely on his evidence. It was, however, corroborated in a number of substantial ways.
Apart from the girls, the other witnesses appeared to me to be reliable and creditworthy. No real challenge was made to the evidence of Mr Doyle. It was not suggested to Mrs Elrick that she was lying or that she would lie in order to protect her son.
She was asked questions in cross-examination about her statement that she had offered to the police to make a statement, but it was not, at least expressly, put to her that she was lying or mistaken. Differing evidence was subsequently given by the police officer she identified as the one to whom she made the offer.
In relation to the tendered statements, I have only the printed words. As they were tendered by consent, I assume that nothing in them is challenged.
As noted, I must scrutinise the evidence of the two girls with care. There were a number of inconsistencies in the evidence of the girls and of Mr Elrick and between their evidence and that of other witnesses. That is to be expected when they rely on memory, especially of events that, at the time of trial, had occurred twenty months earlier. By itself, that is not necessarily indicative of lack of creditworthiness. Where, however, there are significant discrepancies or discrepancies on issues where ordinarily it would be expected that the events would be particularly memorable, especially where other similar matters are better and consistently remembered, then it is more likely that a doubt will be generated, not so much about the truthful character of the witness but as to the reliability of his or her evidence.
There were, in the evidence of TBL and WEN a number of inconsistencies between each of their accounts. Some of these seemed to me to be significant because, while they were broadly consistent in the evidence they gave of the actual offences, there were inconsistencies about matters closely related to them. For example, TBL gave evidence that after the alleged offences had occurred, Mr Elrick gave her a back massage whereas WEN referred to Mr Elrick asking her to give him a back massage, which she did. Neither mentioned the other massaging though it was in the midst of the touching they alleged and, in the circumstances, would have been a not insignificant matter.
Similarly, when the girls related that they decided to go to the toilet to get away from the situation, each claimed that they had suggested the need rather than the other, WEN giving a somewhat complicated scenario inconsistent with TBL’s evidence. Also, TBL said she called her friend after they had been in the bathroom as she needed to get her phone from Mr Elrick’s bedroom. WEN said they called while in the bathroom.
Again, TBL said that when they left Mr Elrick’s home they walked for an hour in the rain to the home of their friend. On the other hand, WEN said that they ran all the way and that it was only a distance of 125 metres.
While not major inconsistencies, they are significant because they are so closely associated with the events themselves, where as to the central allegations, there was consistency.
More substantial inconsistencies were to be found between the evidence of the girls and that of other witnesses. For example, the evidence of the girls was that they had arrived with Mr Elrick. The evidence of Mrs Elrick, and Mr Elrick, was that they had arrived ten to fifteen minutes later.
The evidence about the phone contact with their friend was quite troubling. TBL said that she made a phone call after she had been in the bathroom with WEN. She said she went into the room to get her phone and phone Mr Jaxson Connelly. WEN said that they called Mr Connelly from the bathroom and he said that he could not pick them up and they made a second call about half an hour later when “they”, presumably Mr Connelly and Mr Doyle, could come and meet up with them.
Mr Doyle gave evidence initially of only one call but in cross-examination referred to two calls. He also gave evidence that in the first call the girls had asked whether they could meet up later and WEN had told him something about “her boyfriend cheating on her”. That call seems to have come before the girls reached Mr Elrick’s house for Mrs Elrick puts the time of their arrival about 11.00 pm. She was the only one who appears to have given a time for their arrival.
Further, Mr Doyle’s evidence about the second call was that TBL was shouting into the phone, which does not appear to be at all consistent with any other version.
Mr Connelly’s statement recorded only one call when both he and Mr Doyle spoke to the girls “for a bit”.
Again, TBL said that she saw Mr Connelly’s father when she arrived at his place and told them what happened but Mr Connelly’s father, in his statement, only said that they asked him whether they could stay the night and, after consultation, he agreed. The timing of this conversation was also inconsistent with the timing that others, including the complainants, gave in evidence.
There were inconsistencies about matters that were said to have occurred at Mr Elrick’s house. The girls’ referred to viewing a pornographic DVD on the small TV; Mrs Elrick suggested that the TV would not work with DVD’s and no pornographic video was produced following the search warrant, even though a photograph of the “Scary Movie 3” was tendered.
The evidence of Mrs Elrick was also, it seemed to me, largely inconsistent with the events as described by the girls. While she could not see them all the time, it seemed to me that timing, layout and her evidence raised a real doubt in my mind about the girls’ version of the events.
The demeanour of the girls on arrival at Mr Connelly’s house is powerful evidence to support their allegations as is the consistency of their version of the actual alleged incidents themselves. On the other hand, this consistency, worryingly, does not include surrounding events, contemporaneous with the alleged incidents.
Nevertheless, at the end of the day, the inconsistencies in the evidence of the complainants leave me with a reasonable doubt as to whether the allegations have been made out and I must therefore acquit Mr Elrick.
I certify that the preceding one hundred & eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 April 2011
Counsel for the prosecution: Mr D Sahu Khan
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
Counsel for Mr Elrick: Mr J Sabharwal
Solicitor for Mr Elrick: ACT Legal Aid
Date of hearing: 23-24 September 2009
Date of judgment: 28 April 2011
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