R v Garschagen - [2006] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GARSCHAGEN
Criminal Trial by Judge Alone
[2006] SADC 78
Reasons for the Verdict of Her Honour Judge Shaw
11 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
R v Prasad (1979) 23 SASR 161, applied.

R v GARSCHAGEN
[2006] SADC 78

In this matter Dirk Garschagen is charged before me sitting as a judge alone with five counts of indecent assault and three counts of unlawful sexual intercourse. He has pleaded not guilty to each of those counts.
At the conclusion of the prosecution case, Mr MacFarlane, counsel for the accused, made an application that I consider directing myself in accordance with the judgment of the Court of Appeal in The Queen v Prasad (1979) 23 SASR 161 in view of the unsatisfactory nature of the prosecution case at its conclusion.
Having heard the submissions of counsel, I have decided to adopt that course. I direct that verdicts of not guilty be entered in respect of each count on the information. I give reasons for my findings and the verdicts as follows:
In this matter the accused is charged with a number of sexual offences. The first count is a charge of indecent assault contrary to s56 of the Criminal Law Consolidation Act. Particulars of that offence are that Dirk Garschagen between 2 March 1991 and 25 December 1991 at Ascot Park and other places indecently assaulted CRW, a person of the age of 13 years.
The accused is also charged with indecent assault on the second count. Particulars of the offence are that between 2 March 1991 and 25 December 1991 at Christie Downs he indecently assaulted CRW, a person of the age of 13 years, by placing his mouth on her vagina.
Thirdly, he is charged with indecent assault in that between 2 March 1991 and 25 December 1991 at Christie Downs he indecently assaulted CRW, a person of the age of 13 years, by placing his penis against her vagina.
Fourthly, he is charged that between 2 March 1991 and 25 December 1991 at Christies Beach he had sexual intercourse with CRW, a person of the aged of 13 years, by inserting the finger into her vagina whilst they were in the car. This fourth count was a charge of unlawful sexual intercourse contrary to s49(3) of the Criminal Law Consolidation Act.
Fifthly, he is charged with indecent assault in that between 2 March 1991 and 25 December 1991, at Christies Beach he indecently assaulted CRW, a person of the age of 13 years, by holding her face over his penis.
Sixthly, he is charged with indecent assault in that between 2 March 1991 and 25 December 1991, at Christie Downs he indecently assaulted CRW, a person of the age of 13 years, by touching her nipples.
Seventhly, he is charged with unlawful sexual intercourse in that on 2 March 1991 and 25 December 1991, that is between those dates, at Christie Downs he had sexual intercourse with CRW, a person of the age of 13 years, by inserting a finger into her vagina whilst they were in the lounge room and, eighthly, he is charged that between 2 March 1991 and 25 December 1991 at Christie Downs he had sexual intercourse with CRW, a person of the age of 13 years, by inserting a finger into her vagina on a night when SK was at the house. That is, another charge of unlawful sexual intercourse.
The prosecution case is that all of the sexual misconduct alleged against the accused occurred between the complainant’s 13th birthday in 1991 and around Christmas Day in 1991. At the time, the complainant was living with her mother and her younger brothers and the accused at Christies Downs.
Count 1 is a charge of indecent assault. The complainant, CRW gave evidence before me that the first time that any sexual contact occurred between her and the accused was in the car on the way home from a party. She said that her mother was driving and one of her brothers was in the front passenger seat. The accused sat with the complainant in the back seat with another one of her brothers. A blanket was spread over them. She said that the accused rubbed her leg and then rubbed across her vagina on the outside of her clothing.
In relation to count 2, a charge of indecent assault, the complainant said that the accused came into her bedroom after she had gone to bed. He was next to her bed and he touched her vagina with his hands and he then placed his mouth on top of her vagina.
In relation to count 3, a charge of indecent assault, the complainant gave evidence that the accused laid on top of her and put his penis against her vagina. There was no penetration. He was wearing a browny orange robe at the time.
In relation to count 4, a charge of unlawful sexual intercourse, the complainant said that she was with the accused probably at Dyson Road. It happened at night in a car. She was in the passenger seat. Digital penetration occurred.
In relation to count 5, a charge of indecent assault, the complainant said that this happened after the accused had placed his fingers in her vagina. The accused pushed her head down over his erect penis and she felt his penis against her eyelid. She remained there for about ten seconds before he pushed her head back up.
In relation to count 6, a charge of indecent assault, the complainant said that she was lying on the floor in the lounge room of her home watching television from under a quilt. The accused laid on the floor and touched her nipples underneath her night clothes.
In relation to count 7, a count of unlawful sexual intercourse, the complainant said that the accused placed his fingers in her vagina whilst she was laying on an L-shape lounge. Her mother was in the kitchen cooking dinner. She was watching the television with a blanket over her.
Count 8 relates to a charge of unlawful sexual intercourse. The complainant said that on a night when her friend SK was sleeping over, they had been watching television. Everyone else had gone to bed. SK was asleep and the accused came into the lounge room. The accused sat next to the complainant and placed his fingers in her vagina.
The complainant also gave evidence of sexual misconduct on other occasions which she said occurred in the house when her mother would have a shower at night. She said that it happened two to three times a week.
She said that sexual misconduct also occurred in the car at Middleton when the accused went to pick up his son. The prosecution said that these acts, placed in context, the charged acts and also might explain some of the complainant’s behaviour.
The complainant said that the offences happened when the accused came to live in the home, namely between about the month of March 1991 and December 1991. Although the complainant’s evidence as to the time frame during which the offences were alleged to have occurred was consistent with the charges as particularised on the information, it was inconsistent with the evidence of her mother and with what the accused said to the police when he was interviewed in January 2004.
The complainant described occasions when the accused would come into her bedroom when her mother would shower in the evening. Her mother gave evidence that, ordinarily, she would shower in the morning but, in certain circumstances, she would shower in the evening.
The complainant was cross-examined about entries she had made on a website. She agreed that she had said on the website that she was a person who told lies, who stole things and who suffered from postnatal depression and who self-mutilated. She said that the content of each of these entries was true.
The prosecution also called the complainant’s mother, who said that the accused came to live in the home for a short period in 1989, and she renewed contact with the accused in about May 1991. The complainant’s mother said that the accused remained in the home until later in 1992 because of the proximity of the accused living in her home to his father’s funeral, which she was certain occurred in 1992.
Sergeant Britton gave evidence of his conversation with the accused in January 2004 which was recorded on videotape. I viewed that videotape which was tendered in evidence. It is plain that the accused willingly answered all questions and denied the allegations put to him. He said that he had children of his own whom the police could speak to if they wished to test his denials and his assertion that he was not like that. He denied, as I said, all of the allegations put to him.
Mr MacFarlane, on behalf of the accused, submitted that the complainant’s evidence was unreliable and lacking in credibility. In particular, he pointed to her vagueness about the dates of the alleged offences, the lack of independent support for her evidence in relation to the happening of any of the alleged offences and her admissions on the website of being a dishonest person from an early age and of being a thief. He pointed to the denials of the accused when he was spoken to by the police in 2004.
Ms Abbey, who appeared for the prosecution, submitted that the complainant’s inability to be more specific about the dates of the alleged offences was not fatal. Further, she submitted that independent support was not necessary. She submitted that the concessions by the complainant in cross-examination, that she was a dishonest person was a mark of her honesty in the witness box. It was submitted that the complainant’s evidence is sufficiently cogent that it would be open for me to say that it is safe to convict upon the basis of her evidence.
I reiterate what I conveyed to Ms Abbey during argument that I have no regard to the complainant’s evidence that she suffers from postnatal depression and that she self-mutilates, to arrive at a view that she suffers from a mental condition which might make her evidence unreliable. In the state of the evidence at the close of the prosecution case, I have had no regard to it, that is, to these topics, in my consideration of whether I could be satisfied, beyond reasonable doubt that the complainant’s evidence is credible and reliable.
The onus of proof is on the prosecution to satisfy the court beyond a reasonable doubt that each of the alleged offences occurred. The prosecution case, in this respect, depends entirely upon the credibility and reliability of the complainant.
I bear in mind that I have been asked to direct myself in accordance with the principles in The Queen v Prasad in order to determine whether or not it is appropriate for me to return verdicts at this stage.
The complainant’s evidence was that she could not recall when, during the time frame that the accused lived at the home, that any of the alleged offences occurred. There was no evidence of the order in which these alleged incidents occurred apart from what the complainant described as the first incident in the back of the car. If the complainant’s evidence in relation to the time frame is incorrect, and the evidence of the complainant’s mother about the time frame when the accused lived in the home is accurate, then there is a real issue as to whether the prosecution has established the time frame particularised in relation to each separate offence in the information. This is a relevant matter in relation to the reliability of the complainant’s account, but is not necessarily fatal to the prosecution case on any particular count.
I bear in mind that upon the prosecution case, the complainant was only 13 years of age at the time of the alleged offences. I take into account that she was endeavouring to recall events that allegedly happened approximately 14 years ago. I find that there is no independent support for the occurrence of any of the alleged offences. There was no evidence of a recent complaint. In this respect, I bear in mind the relevant provisions of the Evidence Act. I direct myself that I am entitled to act upon the complainant’s evidence in the absence of a recent complaint and in the absence of any independent support for the happening of any of the offences, if I can be satisfied, beyond reasonable doubt as to the truth and accuracy of the complainant’s evidence upon each separate count.
I direct myself that I am required to consider each count separately in the light of all of the evidence in the case. I received evidence from the complainant of uncharged acts. That evidence was of a very general nature. I bear in mind the remarks in The Queen v Clifford as to the permissible use of the evidence. Because I formed the view that the complainant’s evidence in relation to both the charged and uncharged acts is unreliable, I need not concern myself in this respect with the permissible use of the uncharged acts.
I have also taken into account that the accused was first interviewed in detail by the police on 17 January 2004. I bear in mind the difficulty that an accused faces when contesting allegations after such a long period of time, where the allegations are vague and where there are no identifiable events or dates against which the allegations can be considered.
Having observed the complainant giving her evidence and having listened to all of the evidence before me and having heard the submissions of counsel, I am of the view that the complainant’s evidence is unreliable. The complainant’s evidence in relation to each of the separate counts was somewhat vague and unconvincing. I could not act on her evidence so as to be satisfied, beyond a reasonable doubt, as to the proof of any of the separate charges.
Having heard the submissions of counsel and applying the principles in The Queen v Prasad, I conclude that although there is evidence upon which the accused could be lawfully convicted “the evidence is so lacking in weight and reliability that no reasonable tribunal could safely act upon it”. I refer to The Queen v Prasad at p.163.
At the end of the day, I could not be satisfied beyond reasonable doubt of the proof of any of the charges before me, upon the basis of an acceptance of the credibility and reliability of the complainant. For these reasons, I directed that a verdict of not guilty be entered in relation to each and every count.