R v Faulkner No. Sccrm-02-73

R v FAULKNER
[2002] SASC 286
Court of Criminal Appeal : Nyland, Williams and Gray JJ

NYLAND J: This is an appeal against conviction. The appellant was charged on information with two counts of indecent assault, one count of serious criminal trespass in a place of residence and one count of attempting to abduct a child under 16.
The appellant pleaded guilty to Count 2 which was a charge of indecent assault committed at Port Adelaide between 1 November and 30 November 2000. The appellant elected to be tried by judge alone as to the remaining counts and was found guilty of each of them by a District Court judge on 22 February 2002. The victim with respect to each of these offences was a 12 year old boy (J). J resided with his father but at the time of the alleged offences was staying with his mother (R) and her partner Jack in their unit (Unit 3) at Glanville. The appellant resided in the adjoining unit (Unit 2). J met the appellant not long after his mother moved into Unit 3 which was in about October 2000. Jack is a fisherman and is often away from home. Occasionally the appellant visited Unit 3 and J’s mother visited Unit 2.
The first count of indecent assault is alleged to have occurred in the lounge room of Unit 3 at a time when J’s mother was present. J was sitting on a chair watching TV and the appellant was seated on a nearby lounge. J’s mother had previously caught him smoking cigarettes. On this particular night she encouraged J to smoke excessively, thereby hoping to dissuade him from continuing to smoke. J was wearing shorts and underpants. After smoking about 10 cigarettes he felt ill. According to J, the appellant then moved from the lounge to the chair next to him. J said:
“[the appellant] ‘moved on to my chair, but he picked me up and put me on his lap, on the same chair that I was sitting on’. The accused, he said, was ‘touching where my pulse is... Between my legs like, in the gap thing and like up on my neck and under my arms... he had his hand up the leg of my shorts, but on the top of my underpants’. That touching continued for about five minutes. The [appellant] also ‘touched my penis with this thumb... He just sort of rubbed his thumb along my penis... Once or twice’.”
J thought that he was seated on the appellant’s lap for about 15-20 minutes and that his penis was touched for about 10 minutes.
J said that his mother was tired and he subsequently went next door to the appellant’s unit where he remained for “three, four, five hours” during which time he drank alcoholic liquor and the appellant pulled out the elastic of his “pants” and looked down his “pants”.
J described other occasions on which he visited the appellant’s unit in the course of which he had been shown pornography and the appellant had touched his penis.
Count 2, is the charge of indecent assault to which the appellant pleaded guilty. This occurred in the course of a fishing trip. In the afternoon of the day preceding this incident, J went with the appellant to fish for bait from the Semaphore jetty. At about 3 am the following morning, the appellant drove them in his car to fish under the Jervois Bridge. Because it was cold they spent sometime in the car. The appellant picked J up and put him on his lap and rocked him from side to side. J said he thought that the appellant had an erection. He felt it on his leg. J stayed there for a minute and then got off the appellant’s lap and checked the fishing rods because he did not want to stay in the car with the appellant. At some stage, according to J, while he was urinating at a nearby pole, the appellant looked at his penis and remarked “we can use that for bait”. J said that he also saw the appellant’s penis which he thought was erect “He was standing in front of me, just like standing there with his penis out of his shorts”.
The events which are the subject of Counts 3 and 4 occurred between 25 and 26 January 2001. At about 9 pm on 25 January 2001, J and Jack were driven by the appellant to Semaphore to purchase a pizza for dinner. They then returned to Unit 3. While J was eating the pizza with his family, the appellant left the unit. After the appellant left, J asked his mother whether he could go to the appellant’s unit but she said “No”.
J then went to his bedroom. He said he read a book for about five minutes and then went to bed with the light on because he was afraid of the dark. He said that when he went to his bedroom the window was open “about 3cms wide”. He said that he was asleep for about a quarter of an hour and then heard a tapping noise on his window. He got scared so he went to his mother’s room because it was hot anyway so he went there to be near the air cooler. His mother and Jack were sleeping on the sofa in the lounge room. He said before leaving his bedroom he locked the window and “put the piece of wood in the runner” to prevent the window from being opened from the outside. The fly screen was then positioned in the window frame. A bed was made for him with cushions from the lounge, on the floor in front of the lounge near a coffee table. His mother and Jack were sleeping on the sofa at the other end.
Later when J was lying on his bed he saw the appellant enter Unit 3 through the open front door and unlocked screen door. The appellant asked J whether he wanted to come over and play the computer with him. J’s mother was in the toilet so the appellant asked Jack’s permission but Jack told the appellant to go home because it was late and he did not think J wanted to play the computer. After the appellant left, J thought that Jack got up and got a drink and then his mother came out of the toilet. They all went back to bed. J thought he went straight to sleep.
Later that night, J said that he again saw the appellant in Unit 3 when he was awoken. He said “I looked up at his face when he was carrying me through the door frame of my hallway.... I opened my eyes and I was around where mum's bedroom is”. He said that as he was being carried by the appellant he said they spoke to each other “I said to him first, ‘Mum said I’m not allowed to go out because it’s too late’ and [the appellant] said - I think that’s what he said - he said, ‘Mum said you could come over’, or ‘No, she didn’t’, or something like that”. J said that the appellant “put his foot up on the window thing” and J then yelled out to his mother. The appellant dropped him on the floor and his mother came out of the lounge room into his bedroom.
J said the appellant jumped through the bedroom window, which was fully open with the fly screen removed. J believed that the appellant put his right foot up on the window ledge. He said “I think it was his right foot, and I think he put his other arm - his other hand like that on this part of the window here”. After he screamed for his mother J said “My mum come running through and found me on the floor down there and I said, ‘Jamie [the appellant] tried to take me through the window’, and I knew it was [the appellant] because I saw his face in the light of the toilet”. In dropping him, the appellant first released J’s legs and then the top part of his body. Jack then also came into the bedroom. Later, J said “Mum took me outside. She said, ‘Before I ring the police, you've got to tell Jack that he’- Jamie – ‘did do it’. I didn’t want to, because I was scared Jamie might do something to me, so I didn’t say it. Mum kept on telling me to say it, so I punched the fence and walked back inside.... [feeling] Angry and sad”.
In cross-examination, J denied that he had ever left the unit through his bedroom window at night to visit the appellant and not done so that night. He denied having any arrangement with the appellant to meet him later that night.
In addition to calling J to give evidence, the prosecution called J’s mother R, her partner Jack, Mr Mallon a friend of Jack’s, and Senior Constable Goodwin, a crime scene examiner.
The appellant was subsequently spoken to by the police and denied having entered J’s bedroom through the bedroom window. He said that when the police arrived he had already been awoken by Jack and a friend of his. He said he had heard some noises towards the rear of his unit which had been broken into previously, that he had gone out with a short piece of wood and that he had been confronted by Jack and his friend and accused of breaking in and molesting.
The appellant admitted that he had been to Unit 3 with J’s mother (but not on a regular basis) and had offered to allow J to come to his unit to play computer games but denied there was any child pornography on the hard drive of his computer.
The appellant subsequently gave sworn evidence at his trial in the course of which he admitted that shortly after meeting J his friendship with him had deepened and he had sexual feelings towards him. He admitted that he had a computer which was connected to the internet, on to which he had downloaded pornographic images. He also said that occasionally J and he played games on the computer and occasionally together they looked at the pornography. He facilitated the smoking of cigarettes and the drinking of alcohol by J in his unit.
He said that with J’s mother’s permission, there was an occasion when he had taken J fishing underneath the Jervois Bridge. While the appellant was urinating J came over, looked at his penis and laughed. The appellant said his penis was not erect. He said when J urinated the appellant looked at his penis and remarked “You won’t catch much with that”. While in the appellant’s car, J sat on his lap and the appellant’s penis became erect to the awareness of J, that being the incident constituting the indecent assault charge to which the appellant has pleaded guilty.
The appellant recalled being present in Unit 3 on the occasion on which J had smoked between six and 10 cigarettes but denied having had J sit on his lap. He denied having used the words “pulse points” or “pressure points” and denied having placed his fingers on J’s neck, wrist or near his groin.
The appellant said that occasionally J had indicated that he wished to come over to his place late at night and had asked him to remove the screen so he could exit the premises and come over.
He said that to facilitate those proposals, unbeknown to J’s mother, the appellant had removed the fly screen from J’s bedroom window so that J could leave his bedroom by climbing through the window. He recalled that happening a few times. On those occasions J would come into his unit, smoke offered cigarettes, occasionally drink offered alcohol and play computer games or look at pornography on the computer.
The appellant said that on 25 January 2001, he went to Unit 3 in the evening. He offered to drive Jack and J to Semaphore for the purchase of a pizza. On returning to Unit 3, he only stayed for about 10 minutes and did not eat any pizza. Earlier that day, he had seen and spoken with J outside the units. He had asked J if he would like to come over that evening to play the computer, to which J had agreed.
Contrary to what he told the police in his record of interview, the appellant admitted having re-entered Unit 3 “fairly late” that night. He said:
“I knocked on the door and I heard Jack say ‘Who is it?’ or words to the effect of. I entered the premises and said, ‘It’s Jamie. I just wanted to know if [J] wanted to come over to play the computer’ that night. He said words to the effect of, ‘No, piss off, [J’s] not coming over’. I then left.”
His evidence continued:
“I went to the rear of flat 3 and called out [J’s] name fairly softly. He came to his window and I asked him if he wanted to come over and play the computer. He said ‘Yes’. So, he opened the inside window, I removed the screen, he climbed out and came over and did that.”
In his unit that night, the appellant said:
“We played some games, possibly ten or 15 minutes, and [J] indicated that he wished to look at the pornography, which I did. I loaded the program so that he could look at it. Shortly after [J] started looking at the pornography on the computer, he began to touch himself. After this, I touched him, masturbated him. I grabbed his wrist and attempted to place his hand on my penis. At this point, he became very upset, extremely agitated, and tried to leave. He left the flat through the rear door, climbed back in through his own rear window in an extremely agitated and upset state.”
The appellant said he followed J. He was concerned that J was upset and that he would get into trouble for his actions that evening. Then, the appellant said :
“I climbed through the window, [J] was standing in his own room, still looking extremely upset and agitated. I was talking to him saying, ‘It’s all right mate’. I wanted to try and calm him down. He screamed out, ‘Mum’, I don’t recall whether it was once or twice. I then left the unit via the window and went back to my own unit.”
The appellant admitted that he had not told the truth during the police interview but denied having committed the offences alleged in Counts 3 and 4.
The explanation for his denial of having gone to Unit 3 before midnight was firstly, because of the “way the question was phrased”. Then he said that he wished to omit it, “Because I was frightened that what had occurred that evening would be found out”. When asked why he had gone to the front door on that occasion, in view of the previous occasions which he had described of J having climbed out of his bedroom window at night, the appellant replied, “I’m not sure. I just went around to see if they were awake. There was some lights on in the place”. He also admitted that he had lied about there not being any pornography on the hard drive of his computer.
The learned trial judge gave detailed reasons for reaching a decision with respect to each count. He carefully summarised all of the evidence and gave himself appropriate directions as to each count. He then recorded his findings in the following way:
“Upon all of the evidence, I am satisfied that (as he quite frankly admitted in evidence) the accused became sexually attracted to J and gave physical expression to that attraction. He admittedly took J fishing, sat him on his lap in the car, hugged him and achieved an erection, which J felt on the back of his leg (count 2). J was understandably attracted to the accused's unit because of the computer and the computer games which he could there play. The accused encouraged that attraction. He occasionally gave J cigarettes and alcohol. He occasionally used the computer to look at child pornography with J. He occasionally exposed his penis to J when they were looking at the computer screen. Quite frankly, the accused admitted all of that behaviour or conduct towards J. He denied having touched J's penis until (he said) the night of 25 January 2001. (According to J, the accused had touched his penis on about three occasions.)
The offence alleged in count 1 (“the smoking incident”) occurred, I am satisfied, not long after the accused first met J and before the accused’s sexual feelings for J had found expression in the events which subsequently took place between them in his unit. In relation to that alleged offence, there were inconsistencies and discrepancies in the evidence. J said that the accused sat him on his lap on the same chair; that the accused touched his penis on top of his underpants while touching his pressure points; and that he told his mother about the accused having touched his pressure points after returning from the accused's unit that night. In cross-examination, J agreed that he had said, in his police statement, that he was not wearing underpants that day or night; and that he had spoke to his mother immediately after the accused had touched his pressure points. (There was no suggestion in J's evidence that he had complained to his mother of the accused having touched his penis.)
R said that, when checking for a pulse in J’s neck, wrist and groin, the accused was sitting on the corner of J’s chair; that she then went to the refrigerator; and that J did not subsequently discuss that incident with her. In cross-examination, it emerged that R had not said that the accused was present when she spoke to J about smoking, until she made her fourth statement while waiting to give evidence; and that she had not told of the accused then having touched J’s pulse points, until here giving evidence. Those omissions, she explained, resulted form her having blocked things from her mind.
The accused denied that J had sat on his lap; that he had referred to pulse or pressure points; and that he had anywhere felt for J’s pulse when J smoked between six and ten cigarettes.”
The judge then set out his findings as to the credibility of the various witnesses. He was satisfied that the appellant’s guilt of the offence alleged in Count 1 had been established beyond reasonable doubt.
The judge went on to consider the issues to be determined with respect to Counts 3 and 4. He then made the following findings:
·after J went to bed in his bedroom that night, he heard noises at the window;
·he became frightened and went to sleep in the lounge room near his mother and Jack;
·his mother then removed the piece of wood from the window frame and further opened the window in an effort to obtain an air flow on a hot night;
·the accused had been drinking alcoholic liquor that night;
·the accused entered unit 3 just before midnight through the unlocked front screen door;
·he spoke to Jack and asked whether J could go into his unit and play on the computer;
·the accused was then sexually attracted to J and had previously given expression to that attraction;
·around Christmas 2001, J had been told by his mother and Jack that he was not allowed to go into the accused's unit and the accused was aware of that direction;
·after Jack had told the accused to go home, he locked the screen door and checked the security of unit 3;
·when he checked J’s bedroom window, the window was open to an extent greater that that which the piece of wood permitted when positioned in the window frame;
·when J’s mother subsequently went to his bedroom in response to his screams, J was sitting on the floor near the window and beginning to stand up;
·in response to the question of his mother (and then Jack, who followed R into the room), J said that the accused had tried to take him through the window; and
·J’s body was then shaking, his voice was trembling and his eyes were wide open.”
The learned trial judge went on to consider the possibility that the events of that night had unfolded in the manner described by the appellant. The judge considered, however, that had the events occurred as postulated by the appellant, it was highly improbable that J, in his upset and agitated condition, upon seeing the appellant beginning to climb in through the window, would not have immediately moved into the lounge room near his mother and Jack. The judge concluded:
“In application of the legal directions and warning here given, upon all of the admissible evidence in relation to the offences alleged in counts 3 and 4, including: my acceptance of the evidence of J, R and Jack; the accused's admitted sexual attraction to J; his probable frustration at J not being allowed to go into his unit; his belated admission (in evidence) of having gone to unit 3 just before midnight that night; the statements that J made to R and Jack in his bedroom that night (which, I am satisfied, were made and with sufficient spontaneity and approximate contemporaneity with the event which excited those statements as to exclude the possibility of concoction or distortion to the advantage of J or the disadvantage of the accused) which provide some affirmative evidence of the truth of what J asserted in those statements; and the adverse affect of the accused's admitted lies upon his credibility as a witness, I am satisfied that all of the elements of those two offences have been established beyond reasonable doubt and that his guilt of each of those offences has been established.”

The learned trial judge therefore recorded a verdict of guilty with respect to the offences alleged in Counts 1, 3 and 4 on the information.
Ground 1:
The first ground of appeal relates to the principle of res gestae. The appellant complains that the trial judge did not properly or adequately direct himself as to the application of the principle of res gestae with respect to the evidence of J that the appellant “tried to take me through the window”. The appellant argued that even assuming the pronouncement had been made by J, it might have been based on J’s perception of matters consistent with the appellant’s version of events.
The appellant further argued that that the learned trial judge had erred in finding that conversations with J which took place immediately after the initial pronouncement qualified as res gestae on the basis that such conversations “so clearly occurred in circumstances of spontaneity or involvement in the events that the possibility of concoction or distortion could be disregarded”.
The doctrine of res gestae provides that an assertion may be admitted to prove the facts asserted if it is part of the res gestae. The res gestae is the “things done” which are done so close in time to a matter being proved as to be inseparable from it. As such, the doctrine allows an exception to the rule against hearsay.
The assertion must possess the requisite elements of spontaneity or contemporaneity to form part of the res gestae. These will then go on to exclude the possibility of concoction or distortion: Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 531. To be admissible, the statement must throw light on the nature of a relevant act because of its proximity to it. In the absence of such proximity, the statement would lack connection with the act and become a hearsay assertion about it.
In the course of his reasons, the learned trial judge directed himself as to the principle of res gestae in the following way:
“In determining the admissibility in evidence of these statements (as the trial judge), I have considered whether J might have had a motive of his own to fabricate or concoct, namely, concern for his own position (on the accused's case) in having gone at night to the accused's unit without parental permission. In all the circumstances, including the appearance of J at the time of making the statements, and upon my general assessment of his intelligence and capacity to dissemble, I am satisfied that the statements that J made to his mother and Jack in his bedroom that night were so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. For these reason, those statements are admitted as some evidence of the truth of what was asserted in the statements and shall be so regarded by me (as the jury).” (emphasis added)
It is clear that the events which are the subject of Count 4 occurred in a very short passage of time. J said he woke up in the appellant’s arms in circumstances which it could reasonably be inferred that the appellant was in the process of abducting him. J said he screamed for his mother when the appellant put him down, preparatory to climbing through the window. J’s mother said when she heard her son scream she “flew into the bedroom”. She observed him to be shaken and asked him what had happened and was told the appellant had tried to take him through the window. Jack confirmed this. He estimated the time interval to be about 15 seconds. Taking all those matters into account, it was open to the learned trial judge to find that the statements made by J were both sufficiently spontaneous and sufficiently contemporaneous to the acts for them to be regarded as an integral part of those acts and thus part of the res gestae. It was also open to the judge to conclude that there was insufficient time for J to have fabricated that evidence.
The learned trial judge was well aware of the preconditions as to admissibility of the evidence of the statements made by J. The judge had regard to the appellant’s explanation for what had occurred in the bedroom and considered that version of events as improbable. He appears to have also taken into account, and rejected, the possibility that J had misperceived the actions of the appellant. The learned trial judge did not treat the statements alone as proof of the offence but only regarded them as “some evidence of the truth of what J asserted”. I am not persuaded that the learned trial judge fell into any error in his approach to the admission of J’s statements as part of the res gestae. This ground of appeal therefore fails.
Ground 2:
The second ground of appeal asserts that the learned trial judge erred in determining that the inconsistencies and discrepancies in the evidence of J, R and Jack were of “little moment”.
The particulars of that ground as set out in the amended notice of appeal are as follows:
“iThe discrepancies and inconsistencies in the evidence of the prosecution witnesses considered as a whole were capable of little significance and required greater scrutiny before the rejection of the appellant’s account beyond reasonable doubt.
iiThe learned trial judge gave inadequate consideration to the inherent unlikelihood of the incident constituting Count 1 occurring in front of the complainant’s mother R. In this regard the extremely late revelation on the part of R that she could remember and describe the incident was of significance in considering not only whether the incident occurred at all or whether she was prone to active concoction or reconstruction in favour of her son’s account.”
The learned trial judge was mindful of the fact that the prosecution case depended entirely upon the evidence of J who was then 12 years and a “young child” pursuant to s 4 of the Evidence Act 1929. He reminded himself that there was no independent evidence supportive or confirmatory of J’s evidence as to the commission of any of the three alleged offences. He warned himself that it would be dangerous or unsafe for him to find the appellant guilty on the evidence of J alone. He directed himself that he should scrutinise, consider and evaluate J’s evidence most carefully, cautiously and critically as his evidence was crucial to the case. Each of the witnesses was examined in some detail as to discrepancies and inconsistencies arising out of the evidence. The learned trial judge had regard to that evidence and concluded:
“… that the demeanour of J, R and Jack and the probability of occurrence of their general account were persuasive; and that inconsistencies and discrepancies in their evidence concerning detail were of little moment. I found them to be credible and reliable witnesses whose evidence was not undermined by any inconsistencies or discrepancies. Although J did not complain of the offence alleged in count 1, in assessing his evidence and credibility it was borne in mind that he might have been reluctant to resist and complain for reasons adverted to by Gaudron J in M v The Queen (supra), about which I have given legal direction.”
The fact that the incident which was the subject of Count 1 occurred in the presence of J’s mother in some respects might seem surprising, but J’s mother was cross-examined at length about the matter and it is implicit in his reasons that the learned trial judge considered the possibility of concoction or reconstruction by her and rejected them. The judge was the best person to determine R’s credibility as a witness. Notwithstanding any inconsistencies or discrepancies, he accepted that R was a reliable witness. He was therefore entitled to act on what she said in determining the guilt of the appellant.
This ground of appeal must therefore fail.
Ground 3:
Ground 3 is a complaint by the appellant that the learned trial judge erred in that he did not properly or adequately direct himself as to the impact of the appellant’s record of interview with the police upon the assessment of his evidence on oath.
I have earlier referred to statements made by the appellant to the police. The appellant admitted in evidence that he had lied in his record of interview but gave an explanation for not telling the truth. The learned trial judge directed himself as to the way in which he should take those lies into account. He said:
“The telling of a lie by a witness or an accused person, either in evidence or elsewhere, may affect the credibility of that person; that is, the telling of a lie may be relevant to whether the person is to be believed in other respects. However, there may be many reasons for which a person may lie which do not adversely affect his or her credibility. Such reasons must be considered when deciding whether an established lie does adversely affect that person's credibility.”
Although the appellant did not take issue with this direction he complained that it was not specifically related to the circumstances of this case. He argued that the learned trial judge had failed to take into account the circumstances in which the appellant had given his interview, as he had failed to mention in his findings such matters as the appellant wearing handcuffs during the interview and the specific stressors upon an accused person in the situation of the appellant when first confronted by accusations.
The learned trial judge referred to the lies told by the appellant on the topic of lies in the following way:
“The accused presented in a direct and emphatic manner, both in his record of interview and in evidence. However, he here admitted to having lied in that interview about not having gone into unit 3 just before midnight on 25 January 2001 and not having any pornography on the hard drive of his computer. His explanation for having lied about the former matter was fear that what he said had occurred that night would be revealed. I am satisfied that those lies do adversely affect the accused's credibility as a witness.”
Although the judge did not refer to the circumstances in which the police interview took place, I do not think that it was necessary to do so as the lies told by the appellant to the police related to matters which were central to their enquiry. As a result, the judge may well have considered that they disclosed a consciousness of guilt of the crimes charged. If he had approached the matter in that way it would have been necessary for him to have given more detailed consideration to the circumstances in which they were told and consider whether there was some other explanation for their telling; Edwards v R (1995) 178 CLR 198. This, however was not an Edwards case. The learned trial judge did not use the appellant’s lies as positive evidence of guilt. He simply had regard to them as part of his assessment of the appellant as a witness and found that they impacted adversely upon his credit as a witness, as clearly they did. Although the judge did not give detailed reasons as to the circumstances of the police interview, there is nothing to suggest that he failed to take into account any relevant matter when reaching his conclusion as to the credibility of the appellant. In my opinion, this ground of appeal also fails.
Ground 4:
Ground 4 is a complaint that the verdicts were unreasonable and/or could not be supported having regard to the evidence. The particulars set out in the amended notice of appeal essentially constitute a complaint about the learned trial judge’s approach to the assessment of the evidence of the witnesses. In particular, it refers to the evidence of J and R and suggests that in the light of the appellant having been placed in a difficult situation of admitting to sexual behaviour in respect of J after having lied about it to the police, that the learned trial judge failed to give adequate consideration to the inherent unlikelihood of the accounts of J and R on important issues.
As I have already indicated, in my view, the learned trial judge gave very careful consideration to the assessment of each of these witnesses. He was mindful of inconsistencies arising out of their evidence. At the end of the day, the learned trial judge was satisfied that he was able to rely upon the evidence of J to reach a finding as to proof of guilt beyond reasonable doubt as to each of the charges before him. In my opinion, the appeal against conviction must be dismissed.
WILLIAMS J: I agree.
GRAY J: I agree with the reasons of Nyland J.

[2002] SASC 286

20 August 2002