R v Girvan (No 2)
[2013] ACTSC 138
•17 July 2013
R v WILLIAM THOMAS GIRVAN (NO 2)
[2013] ACTSC 138 (17 July 2013)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Indictment – whether indictment may be amended - s 264 Crimes Act 1900 (ACT)
CRIMINAL LAW – offence of act of indecency on a child under the age of 16 years
Crimes Act 1900 (ACT), ss 61, 264
Supreme Court Act 1933 (ACT), s 68
Evidence Act 2011 (ACT), ss 60, 136
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2B, ss 40, 43
Ayles v The Queen (2008) 232 CLR 410
Borodin v The Queen [2006] NSWCCA 83
Fleming v The Queen (1998) 197 CLR 250
Gillard v The Queen [2013] ACTCA 17
MM v The Queen [2011] NSWCCA 262
Rv DF (No 3) [2013] ACTSC 22
R v DM [2010] ACTSC 137
R vDossi (1918) 13 Cr App R 158
R v Fahey & Ors [2002] 1 Qd R 391
R v Forsti [2010] ACTSC 85
R v Pfitzner (1976) 15 SASR 171
R v Radley (1973) 58 Cr App R 394
R v Shevlin [2013] ACTSC 88
R v Suarwata [2008] ACTSC 140
R v Westerman (1991) 55 A Crim R 353
No. SCC 13 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 17 July 2013
IN THE SUPREME COURT OF THE )
) No. SCC 13 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
WILLIAM THOMAS GIRVAN
ORDER
Judge: Refshauge J
Date: 17 July 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave be granted to amend the indictment.
The indictment be amended by omitting “1st day of January 2004” in each count in the indictment and substituting “22nd day of June 2001” in each case.
AND THE COURT FINDS THAT:
William Thomas Girvan is guilty of committing between 1 January 2001 and 23 March 2006 an act of indecency on KMA who was under the age of 16 years.
William Thomas Girvan is guilty of committing between 1 January 2001 and 23 March 2006 an act of indecency on KMA who was under the age of 16 years.
On 23 September 2009, the complainant, to whom I shall refer as KMA, was interviewed by two police officers and stated that the accused, William Thomas Girvan, to whom I will refer as Mr Tom Girvan, had forced her to touch his genitals on two occasions in her home.
As a result, Mr Tom Girvan was charged with two counts of committing an act of indecency on KMA.
On 13 July 2011, he elected under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone.
On 2 August 2012, the evidence of KMA was given at a pre-trial hearing conducted under Div 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act). Part of the evidence consisted of the interview that KMA had with police on 23 September 2009 which had been recorded under Div 4.2A of the same act.
The trial commenced on 13 August 2012. On 14 August 2012, I reserved my decision.
Trial by Judge Alone
Section 68C of the Supreme Court Act 1933 (ACT) authorises a judge who tries proceedings for the prosecution of a person on indictment without a jury to make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court, in considering very similar New South Wales legislation, stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]-[9]; R v Shevlin [2013] ACTSC 88 at [10]-[20]. The directions I take into account are as follows.
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of either of the offences charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
I must not be prejudiced against the accused because he is facing two charges. Although they are being tried together as a matter of convenience, I must consider each separately and give a verdict on each separately.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
As the evidence on which the Crown relies largely depends upon me accepting the reliability of the evidence of one witness, I must exercise caution and I must be satisfied beyond reasonable doubt that the complainant is an honest and accurate witness in the evidence she has given before I can convict the accused. That requires me to examine her evidence carefully in order to satisfy myself that I can act upon that evidence to the high standard required in a criminal trial.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.
The accused, Mr Tom Girvan, gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
I also note that, as this was a sexual offence, s 43 of the Miscellaneous Provisions Act required that the complainant, KMA, give evidence by audiovisual link from a place other than the courtroom, as she did. Under s 46 of that Act, I am required to warn the jury that it should not draw any inference adverse to Mr Tom Girvan in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.
In addition, I have noted that part of the evidence of KMA consisted of a recording of the interview she had with police which, under s 40J of the Miscellaneous Provisions Act, is admissible in the trial. Under s 40K of that Act, I am required to tell the jury that this is usual practice and warn the jury that it should not draw any inference against Mr Girvan, or give the evidence any more or less weight, because it is given in this way. I give myself that direction.
Finally, I note that some questions were asked of KMA which could be construed as tending to suggest that there was a delay in making complaint about the offence.
Accordingly, were this trial by jury, I would be required to give the jury a warning that the absence of or delay in making a complaint does not necessarily indicate that the allegation that the offence was committed is false. I would be required to tell the jury that there may be good reasons why a victim of a sexual offence may not make or may hesitate to make a complaint about an offence. I give myself this warning. In this case, KMA said that she was concerned that she may not be believed, that she felt ashamed and she was concerned about the effect on relations with Mr Tom Girvan’s brother of whom she was very fond.
I will give myself these warnings and directions and I apply the directions and follow the rules I have set out above.
The Indictment
The indictment dated 1 April 2011 presented by the Crown was in the following terms:
... between the 1st day of January 2004 and the 23rd day of
March 2006 at Canberra in the Australian Capital Territory WILLIAM THOMAS GIRVAN committed an act of indecency on [KMA] who was under the age of 16 years.
SECOND AND FURTHER THAT between the 1st day of January 2004
COUNT and the 23rd day of March 2006 at Canberra in the Australian Capital Territory WILLIAM THOMAS GIRVAN committed an act of indecency on [KMA] who was under the age of 16 years.
At the end of the evidence and submissions, the Crown sought to amend the indictment to substitute “22 June 2001” for the first date in each count in the indictment.
The evidence was that on 22 June 2001 power and water were connected to the house in which it is alleged the indecent acts occurred and a number of witnesses agreed in the evidence that this was when KMA and her family moved in.
At the time, Mr Roderick Girvan, brother of the accused and part-owner of the house, also moved into the house. He stayed there for a period that was not clear on the evidence but, it appears, between about eighteen months and two years, though also said he left in late 2003 or some time in 2004. One witness suggested 2004 to possibly 2005, but that seems unlikely. It was only while he lived there that Mr Tom Girvan ever visited the house.
There was no challenge in the evidence to the fact that Mr Tom Girvan visited the house, although some details were in contention. Further, it was not put to KMA that the dates were important or critical. It was not suggested that the dates were relevant to any defence raised by Mr Tom Girvan. His defence was that the alleged indecent acts never occurred and he did not rely on any dates to support this, or any evidence or submissions that made the dates central to his defence.
Though KMA was unclear in her evidence as to when the events occurred, she thought it may have been after her tenth birthday, but the dates did not become an issue in the proceedings and no submissions were made about that matter at all. It was accepted that the incident must have occurred, if at all, when Mr Roderick Girvan was living in the house at Banks.
Accordingly, while it is more likely that the events, if they occurred, occurred within the time specified in the indictment, it is possible that they occurred earlier, probably in 2003. This would accord with the evidence.
Ms T Warwick, who appeared for Mr Tom Girvan, opposed the amendment. It was late, very late in the proceedings. She identified no specific prejudice that Mr Tom Girvan would suffer by the amendment to the indictment. She did not submit that his defence would be in any way compromised by the amendment.
In this jurisdiction, s 264 of the Crimes Act 1900 (ACT) regulates the amendment of an indictment. Section 264(1) is in the following terms:
If, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make the order for the amendment of the indictment that the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.
As can be seen, an amendment to an indictment may be made at any stage of a trial. Indeed, in R v Fahey & Ors [2002] 1 Qd R 391, an indictment was amended after conviction, though in that case the accused pleaded guilty to the indictment.
The power to amend an indictment is a wide power as to the amendment and when it may be made. In R vDossi (1918) 13 Cr App R 158 (Dossi), it was made when the jury pronounced its verdict. The fundamental limit is that no amendment should be permitted where injustice or irreparable prejudice is caused to the accused. Thus, where an amendment results in an unfair trial, whatever the cause of the unfairness, there will be a miscarriage of justice.
Nevertheless, it is necessary, as the Court of Appeal pointed out in Gillard v The Queen [2013] ACTCA 17 at [65]-[69], to identify the prejudice or unfairness that the amendment is said to cause. As to what will amount to such unfairness, Howie J observed in Borodin v The Queen [2006] NSWCCA 83 at [25] in respect of the statutory power to amend an indictment in New South Wales which is substantially similar to s 264 of the Crimes Act 1900 (ACT),
Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.
The dates when offences against children are alleged to have occurred are often problematic. It is understandable that young children will have difficulty in providing dates for actions unless by reference to particular events; it is hard enough for adults. In Dossi, Atkin J pointed out:
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence.
A date may, however, be important because of the age of a complainant is a critical issue as in Rv DF (No 3) [2013] ACTSC 22. It would also be important if the case were to be conducted on the basis that the accused had an alibi for the charged date as suggested by Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 185, though even there it was accepted that amendment may be permitted so long as the accused was given appropriate opportunity to meet it, such as by an adjournment.
This was not such a case. Indeed, it was not such a case as Westerman (1991) 55 A Crim R 353 where an amendment of a date in an indictment charging the accused with certain sexual offences caused a miscarriage of justice. That was, however, because of the way the case had been conducted, namely, that the complainant had not been present in the house at the time alleged in the indictment and that she was, accordingly, fabricating her evidence. Further, the amendment would, in effect, invite the jury to be required to decide who was to be believed, apart from the dates, and would prejudice seriously the jury accepting the defence case as put to the jury by the accused’s counsel.
This is very much like MM v The Queen [2011] NSWCCA 262, where the accused’s case there was that he did not assault the complainant at any time while she was in her mother’s care as he had no opportunity to do so.
In this case, the defence was that Mr Tom Girvan did not commit either of the alleged indecent acts though he accepted that he visited the house in which KMA lived, while his brother lived there and KMA accepted that it must have been during this time period.
Amendments have been permitted in this jurisdiction after a complainant has completed giving evidence. See R v Suarwata [2008] ACTSC 140 at [39]; R v Forsti [2010] ACTSC 85 at [78]-[79].
I consider that there is no irremediable prejudice to the accused in permitting the amendment and I will do so.
I have also considered whether it is necessary to re-arraign the accused. Relying on R v Radley (1973) 58 Cr App R 394 at 404 and Ayles v The Queen (2008) 232 CLR 410 at 436; [83], both followed in Gillard v The Queen at [75]-[77]. I do not consider that it is necessary to re-arraign the accused.
The offences were proscribed by s 61(2) of the Crimes Act 1900 (ACT) which is in the following terms:
A person who commits an act of indecency on, or in the presence of, another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
The family
KMA, born in October 1994, was the second daughter of her mother. At the time of the alleged events, KMA’s mother was married to KMA’s stepfather.
KMA had four siblings, an older sister, to whom I shall refer as CHM, and two younger stepsisters and a stepbrother.
The House at Banks
In June 2001, KMA’s family moved into a house at Banks in the ACT, where the Crown alleged that the incidents, the subject of the counts in the indictment, occurred.
They had purchased the house with Mr Roderick Girvan, younger brother of the accused. Mr Roderick Girvan lived in the house with them for some time, though he moved out a while before it was sold and the family then also moved out.
A number of witnesses described the house. There was little dispute between them and it is appropriate to describe it generally.
The house faced the street and, from the street, had the garage with two doors at the right hand side. A verandah stretched from the garage at the right across the front to where the outside wall of the master bedroom began on the left hand side. Windows in the master bedroom also faced the street.
The front door was at the master bedroom end of the verandah and opened into a living room or lounge room. I call it the lounge room in these reasons, as KMA called it. Off to the right was a study, accessible from the lounge room and to the left but across from the front door was a door that led to a large room that contained the kitchen area to the right separated there by a wall and the dining room that extended past the kitchen, opening out to a larger room extending to a wall at the back. The kitchen was also accessible from the lounge room, just near the door to the study. A bench, however, was all that, facing towards the back of the house, separated the kitchen from the dining room.
On the right, beyond the kitchen, were some double sliding glass doors which opened onto a courtyard bounded by the study and the garage to the front of the house, the dining room (through the study glass doors) at one side and a larger room called the back room, at the back of the house.
The courtyard had quite a lot of glass around it: the double sliding doors from the dining room; to the left of those, two large double glass sliding doors from the back room; and a window into the garage and one to the study on the third side.
Off the dining room opposite the courtyard were a number of rooms, namely the master bedroom (which, as noted, extended to the front of the house) and which included an ensuite, another bedroom, the laundry and a bathroom.
Behind the wall at the back of the dining room was a hallway accessed by a door at the left. At the left end of the hallway was a toilet, apparently the only toilet in the house other than the one in the ensuite to the master bedroom. Three bedrooms came off the hallway towards the back of the house.
At the back right of the dining room, but accessible through an archway coming directly off the dining room, and down a short passage (about a metre and a bit in length) was the back room, also called the rumpus room, or the kid’s room. It formed the back of the courtyard.
In the back room, as I will call it, were the two sets of double windows opening onto the courtyard to which I have referred, and windows on the wall opposite the entrance passageway into the back room.
The study had windows that opened onto the courtyard and the kitchen also had a small window that opened onto the courtyard.
There was, KMA agreed, a lot or visibility “within reason” from the courtyard into the back room.
Through the archway that led to the back room, was the short passage to which I have referred and, about a metre and a bit down the passage, the wall sloped diagonally away from the passage into the back room. A vent was inserted into the diagonal wall.
It was possible to see some of what was happening in the back room if one chose to look down the passage, though it was not possible to see all of the room from the dining room. KMA said that it was possible to see what was immediately in front of anyone standing at the archway, but the wall blocked most of what was to the left of the passageway. Obviously, less would be seen the further the viewer was from the entrance to the passageway.
The dining room was apparently not always used as a dining room. It was a central room through which the residents and others had to move in order to get to many of the rooms in the house. As KMA acknowledged, if there were people home they would be moving through the dining room from time to time.
It seems that, apart from the bedrooms, all those who lived in the house had quite free access to all the rooms in the house.
The furniture varied in the house from time to time. It appears that there were television sets at least in the lounge room, the dining room and the back room at the relevant times. There was also a couch in the back room which was against the wall adjacent and perpendicular to the wall that formed one side of the courtyard. At one time, it was a futon – style fold-out couch/bed. The TV set in the back room was against the wall opposite to the wall that formed one side of the courtyard.
The curtains against the windows that opened onto the courtyard were not heavy curtains; they were gauze or net-type light curtain and there was some capacity to see through them.
The relationship with the accused
As has been noted above, Mr Roderick Girvan was part owner of the house at Banks and lived there from its acquisition until about late 2003 or 2004.
He was employed by ACTEWAGL as was his brother, the accused, Mr Tom Girvan. Mr Tom Girvan would drive to the house and pick up his brother each day to take him to work and then bring him home, as Mr Roderick Girvan did not have a driver licence.
The brothers did some shift work. It appears that their usual hours were 7.30am to 3.50pm but sometimes they would work from about noon to 8.00pm. Mr Tom Girvan would arrive at the house at Banks at about 7.00am for the earlier of the shifts; he would wait in the car until his brother emerged and then drive off to work. For the later shift, the same process would be followed.
Sometimes, if the men were working in the area, they would come to the house at Banks for lunch. Mr Tom Girvan suggested that he might not always go into the house on those occasions but eat his lunch in the car.
At the end of the shift, Mr Tom Girvan would drive his brother home to the Banks house and they would arrive between 4.00pm and 4.30pm. Sometimes he would come into the house and have a cup of tea or coffee and then go home; sometimes he would just drop his brother off and go home.
There was evidence that Mr Tom Girvan would sometimes drive over at the weekend to collect his brother to drive him for some shopping or other chores. On those occasions he would go into the house and have coffee before they went out, although Mr Tom Girvan suggested that he would rarely come into the house on those occasions. If he did, he would stay in the lounge room, though he said he had coffee once or twice in the dining room when it was a dining room.
In giving his evidence about these matters, it seemed to me that Mr Tom Girvan was trying to minimise the frequency and time that he spent at the house in Banks and the rooms in it that he visited. While some of his evidence was supported by other evidence, there was evidence, even from his brother, Mr Roderick Girvan of greater frequency and access to the house. I prefer that other evidence.
It was clear that he was regarded as part of the family; he was referred to as being “there [i.e. at the house] so much that he could be part of the family” by KMA. She told a school friend he was a close family friend that she considered as an uncle. The evidence was that it was not unusual for Mr Tom Girvan to hug KMA and her sister CAM and that KMA and her younger siblings would sit on his lap. Photographs were tendered showing Mr Tom Girvan with the children on his lap or being hugged or cuddled by him. They show that the children were familiar with him and treated him fondly. That does not seem to me to be consistent with rare or fleeting visits which seemed to me to be the impression that Mr Tom Girvan was suggesting as his visiting pattern.
Indeed, Mr Roderick Girvan gave evidence that Mr Tom Girvan would come to the house occasionally on non-work days and watch television. That was consistent with the evidence of KMA’s mother who also said that the two men would watch TV from time to time. He said that they mostly watched television in the dining room but sometimes in the lounge room. He could not recollect watching television in the back room with Mr Tom Girvan but could have done so. KMA’s mother said they did watch it there on occasions as that was where the house had a pay TV connection with Foxtel.
The complaints
KMA said that, on an occasion for which she could not give a date, she was in the back room playing Nintendo. She said that she was there when she heard someone coming and walked up to find it was Mr Tom Girvan, who just hugged her. She said he was then standing with his back to the diagonal wall at the end of the passage and she was facing him. He took her right wrist and pushed it down his trousers. She said he made her squeeze his penis and when she tried to pull her hand out, he pushed it back again. He told her not to let go of his apparently erect penis and to “move my hand or something”.
At one stage, her sister CHM came up to them and KMA said “it looked like we were hugging”. She said that her sister said something like “You’re such a suck up” and KMA replied “No, I’m not” and then her sister left.
She said she did not remember how the incident ended, but Mr Tom Girvan simply went home.
KMA said that the second incident occurred a week or two after the first incident. On this occasion, she was sitting in the back room on a couch, it appears watching TV on this occasion. She thought it was the Futon-style couch. She said that Mr Tom Girvan came in, sat behind her and pulled her up onto him, presumably his lap. She said she “sort of moved and that’s how he got to sit down behind me”. He pulled her by her back so that she was sort of kneeling on his legs, facing him. Again, he made KMA put her hand down his pants and hold his apparently erect penis. She said it was difficult to get her hand down his pants because they were done up. He was also quite overweight. Again, she did not remember how it stopped.
KMA thought both events occurred at a time of year when “it would get really hot outside”.
KMA made no complaint about these incidents at the time. She said she did not want to “because I kind of didn’t think it was real ... So I didn’t think it actually happened”.
The first complaint she made was to a friend at school, whom I shall call MM. KMA and MM were at high school together; they met in Term 4 of Year 7 and continued together until Year 10. They became close friends in about Year 9 or Year 10.
In 2009, they were both in Year 9 and undertook a course at the school designed to give them skills to help friends who were going through a hard time, giving them a chance to support them and let them come to them for support. It was apparently conducted by Lifeline. There were about ten students in the course.
MM said that during the course she and KMA sat next to each other and she noticed that KMA was not her usual happy self. Normally, she said, she was a bubbly, happy girl but she became really quiet.
As a result, MM approached her and told her that she could talk to her and KMA took up the offer. They walked away from the other students and KMA took a bit of time to tell her that “something had happened to her, that she ... just wanted to tell someone about”. MM said she seemed very nervous and started to cry but eventually said that “her ‘uncle’ Tom had molested her”. She said he was not actually her uncle but he was a close family friend and so she considered him an uncle. KMA did not give her friend MM any further details, though she did say it happened before she was in high school.
As she was telling MM, KMA “paced around a lot ... couldn’t really sit still and was very nervous. And it took her a while before she could actually say the words”.
KMA told MM that she had not told anyone but MM urged her to tell her parents. She said she felt ashamed and did not want her parents to be ashamed of her.
This evidence was not subject to any objection and I was not asked to make a direction in respect of this evidence. It is available, not only as evidence of complaint, but also available under s 60 of the Evidence Act 2011 (ACT) to be taken into account when assessing the truth of the substance of the complaint.
A few weeks later KMA told MM that she had found out that Mr Tom Girvan was to be babysitting a young female relative and she was really nervous about that. Again MM urged her to tell her parents but she did not do so.
KMA tells her mother
The circumstances under which KMA told her mother involved some evidence about which I had to give a specific direction.
Evidence was given that KMA’s mother was told that Mr Tom Girvan had been arrested in New South Wales and placed in custody for “touching” a girl. No objection was taken to this evidence, but I was asked to give a direction under s 136 of the Evidence Act as to the use to be made of this evidence.
Such a direction can be made if there is a danger that the use of the evidence might be unfairly prejudicial to a party or misleading or confusing. There is no doubt that evidence of the commission of a sexual offence committed by Mr Tom Girvan on a young girl would be highly prejudicial given the risk that the trier of fact may reason that because he has committed that offence (or even just been charged with it) he is more likely to have committed these offences.
Even though, in a trial by judge alone, the trier of fact is a judge and not a jury, and judges are experienced in ensuring that inadmissible evidence, even if known, is excluded from consideration and that impermissible reasoning is not followed, it is desirable that the position be quite clear and marked by the making of the direction.
The direction I was asked to give and which I do give myself, as to the evidence of the allegation that Mr Tom Girvan had been arrested and charged with a sexual offence against a young girl, is that it is admitted solely for the purpose of proving that KMA’s mother was told this but not as evidence of the allegations themselves or the truth of the assertions, that were made.
The evidence was given directly to KMA’s mother and indirectly when MM, without objection, recounted what KMA had told her about what happened.
KMA’s mother became aware of the allegation against Mr Tom Girvan. Because of the relationship between them, KMA’s mother followed the case and, it appears, was told about it and its progress by Mr Roderick Girvan.
KMA’s mother was asked to provide a character reference for Mr Tom Girvan and agreed to do so. It appears that such a reference was prepared.
Later, KMA’s mother had a conversation with KMA about the matter because KMA overheard a telephone conversation she had with a friend in which the matter was discussed. It appears that KMA pestered her mother to tell her what Mr Tom Girvan had done as initially her mother told her not to worry about it. Eventually she told KMA that Mr Tom Girvan had “been arrested for touching a young girl in New South Wales”.
KMA’s mother said that KMA started shaking and “fell onto the lounge and started to cry”. When asked what was wrong, KMA said, “He did it to me”. Her mother said “What?” and KMA said “He made me touch him”. KMA then gave her mother some details; she said it happened in the house at Banks in the back room and that it happened twice. She said that it happened once when KMA was sitting on Mr Tom Girvan’s lap and once when he was against the wall.
KMA’s mother rang Mr Roderick Girvan straight away and told him that the character reference was not to be used in the New South Wales court proceedings. Mr Roderick Girvan agreed that she did so and that she told him it was because “Tom played around with” KMA. She also told him that they would report KMA’s allegations to the police the next morning, which they did.
MM also gave evidence of KMA telling her about those matters. KMA said that her mother had been angry at the allegations being made against Mr Tom Girvan because, KMA said, her mother suggested that he would not have done something like that because “[h]e’s not like that” and KMA told her mother that he was like that because of what he did to her.
The back room
There was quite a bit of evidence about the back room, where KMA says that both incidents occurred.
The evidence was clear that it had windows on at least two sides – to the courtyard and to the side of the house. As I have noted, the windows were covered with gauze-type curtains which did not substantially impede visibility.
As I have also noted, the courtyard was visible from the three sides, through windows in the back room on one side, the dining room and kitchen on the next side and the study and the garage on the third side. The dining room had the same type of gauze curtains as the back room. There was no evidence about the curtains on the other windows, but it appears that there was no real impediment to visibility from them.
While there was such visibility from the courtyard into these rooms, however, the evidence did not support a significant likelihood of anyone seeing the acts complained of when they were being committed.
The evidence of KMA was that the acts were committed at a time of year when it was very hot; indeed, she said it was too hot to be outside. This makes it unlikely that there would be anyone in the courtyard.
The evidence also suggested that the study was only used by KMA’s mother’s husband and that he arrived home later than Mr Tom Girvan and Mr Roderick Girvan, probably after Mr Tom Girvan had left. The evidence also was that the kitchen was not used much when Mr Tom Girvan was there in the afternoon.
The physical layout and the photographs show that there would have been a restricted view into the back room from the windows in the dining room and probably none from the kitchen, especially at the point at the end of the passageway into the back room where the wall sloped diagonally around to the back of the house. Better visibility could have been available if a viewer went up close to the windows and peered through but, on the evidence, it seems unlikely that that occurred.
The access to the back room was from the dining room. It was obviously quite a busy room because it was central and had to be used to access many of the other rooms. That access was, however, all to the far side of that room from the entrance to the back room, so occupants using the dining room as a passage to elsewhere would not be passing close to the entrance to the back room.
The evidence was that from the entrance to the back room, there was a view into the back room, but that it was restricted and, as is confirmed by the physical layout, it was not possible to see the whole of the room.
Thus, while the potential visibility of the room was significant, the actual likelihood of any of the occupants looking in was not commensurately high at all.
The evidence about the use of the room was somewhat limited, but somewhat helpful in assessing the allegations. I would have thought that the Crown could have provided more useful evidence about this issue, but I cannot tell what was available and I have to decide the case only on what is evidence before me.
It appears that there was, for a time, pay TV (Foxtel) connected to the TV in the back room and that was the only TV set to which it was connected. There were, however, TV sets in the dining room and the lounge room.
The evidence of KMA’s mother was that Mr Tom Girvan would watch pay TV in the back room while it had pay TV. That was in direct contrast with the evidence of Mr Tom Girvan who said that he had only been in the back room on one occasion. Mr Roderick Girvan said that Mr Tom Girvan and he would have used the back room, though he was rather vague. He also confirmed that there had been a pool table there and that “it was the room where the kids watched TV and played”.
It appears that most of the socialising when Mr Tom Girvan was on the premises was in the lounge room, though Mr Roderick Girvan said some would take place in the dining room. KMA’s mother, on the other hand, said it was rarely in the dining room, but either in the lounge room or the back room.
At some stage, as well as a TV, there was a card table in the back room and at some other stage there was a pool table. There were also two poker machines.
It was also used to store the children’s toys. As noted above (at [78]), KMA was playing her Nintendo game there on the occasion of the first incident that is alleged to have constituted an indecent act.
Despite these matters, there was no evidence to suggest that the back room itself was used a great deal. The evidence was that when Mr Tom Girvan was at the house at Banks, the children would be with him climbing over him and showing him things. This seemed to happen more in the lounge room. Mr Roderick Girvan’s evidence was that he was not often in the back room. When KMA’s sister came upon Mr Tom Girvan and KMA at the time of the first alleged incident she apparently was not going into the back room to do anything as she left after making the jibe at her sister that I have recounted.
The impression I gained from the evidence was that the back room was not used regularly, certainly not as regularly as the other two main living rooms in the house.
Relations between KMA and Mr Tom Girvan
KMA’s evidence was that she did not like Mr Tom Girvan. She said that on one occasion she hid from him. She said that when travelling with him in his vehicle she did not like to sit behind him because he would look at her in the mirror. She would race her siblings to the car to get a seat on the other side of the vehicle.
She did not, however, tell anyone else that she did not like him; he was, after all, a close friend of the family and a brother to one of the residents of the house who was also godfather to her sister. She did not even tell her friend, MM.
The evidence from others is that she appeared to behave toward Mr Tom Girvan in the same way as the other children; she would sit on his lap on occasion, hug him or accept a hug from him and the like. She was not challenged about this in cross-examination.
There was no evidence, either, that Mr Tom Girvan had a particular affection for or interest in KMA. KMA’s sister saw no sign of that; indeed she said he paid the same attention to all the children.
When Mr Roderick Girvan left the house at Banks, he moved to a place in Queanbeyan. The children would visit on occasion and sometimes would stay over. At one stage, KMA’s sister lived there. Mr Tom Girvan would visit the premises from time to time.
This evidence shows that direct contact between Mr Tom Girvan and KMA was a normal part of their interaction and that it was not unusual for them to hug each other.
The offences
Committing an act of indecency on, or in the presence of, a young person involves the commission of an act which has the quality of being indecent.
There is no doubt that, if proved beyond reasonable doubt, the putting of KMA’s hand down his pants and keeping them there while she touched his penis was an act of Mr Tom Girvan.
Whether an act is indecent is relatively straight-forward. In R v DM [2010] ACTSC 137 at [219]-[221], I said:
219.The meaning of indecency is now well-known. In R v Court [1989] AC 28 (at 42), Lord Ackner said:
The judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter alia, a definition used by Professor Glanville Williams, Textbook of Criminal Law, 2nd ed (1983), p 231: ‘“indecent’ may be defined as ‘overtly sexual.’” This is a convenient shorthand expression, since most, but not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones. A simpler way of putting the matter to the jury is to ask them to decide whether ‘right-minded persons would consider the conduct indecent or not.’ It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.
See also per Lord Griffiths (at 5).
220.This approach has been adopted in Australia. In R v Manson (New South Wales Court Criminal Appeal, Gleeson CJ, Clarke JA, Sully J, 60773/91, 60820/91, 17 February 1993, unreported) Gleeson CJ referred (at 3) to, inter alia, R v Court and then said:
An indecent act is one which right-minded persons would consider to be contrary to community standards of decency. In the New Zealand case to which I have just referred the following was said:
The word indecent has no definite legal meaning and it must be taken therefore in its modern and popular affection. In the Standard Dictionary indecent is defined to be anything that is unbecoming or offensive to common propriety.
If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion.
221.This approach has been followed in this Territory: R v Morton (1998) 143 FLR 268 (at 275); R v Taylor [2010] ACTSC 121 (at [11]).
Following this authority, it seems to me that, undoubtedly, the act described above (at [129]) if proved beyond reasonable doubt, would be indecent.
It is also clear that, if the act is proved beyond reasonable doubt, it would have been committed at least in the presence of, if not on, KMA.
The witnesses
(a) MM
KMA’s friend, MM, gave evidence about the first complaint made by KMA.
Her evidence was relatively unchallenged and I accept it. Although it was noted that KMA did not specify who had molested her when she first made the complaint to MM, she did tell her later. It did not seem to me that this weakened the evidence she gave.
(b) KMA’s sister
The evidence of KMA’s sister was somewhat different from that of other witnesses.
She said, however, that it was not unusual for Mr Tom Girvan to be in the house, though she related that to him coming in for lunch more than other times, though she did agree that after work he would come in for tea or coffee; “just come in and say hi, have a cuppa and then go.” She thought that the TV in the back room was not a pay TV; in fact, she did not think the family even had pay TV, contrary to the evidence of her mother.
She was not asked about the first alleged incident, where it was said that she came upon Mr Tom Girvan and KMA while KMA’s hand was down his pants but he made out they were just hugging.
She said that her mother was not working while Mr Roderick Girvan was living at the house at Banks, but this was also contrary to the evidence of her mother.
There was evidence about a funeral of an uncle which the family attended. Her evidence was generally consistent with that of her mother, Mr Roderick Girvan and Mr Tom Girvan, but she could not recall a part of the incident that was said to be inconsistent between the evidence they gave and that of KMA.
In general terms, her evidence was consistent with the other evidence and I accepted her evidence, except where it conflicted with her mother’s evidence, which I preferred.
(c) Mr Roderick Girvan
The evidence of Mr Roderick Girvan was generally consistent with the other evidence in the case. He seemed to minimise to some extent the frequency of visits into the house by his brother, Mr Tom Girvan, but did acknowledge that they did happen and with some frequency. He also gave evidence about them being in more rooms than just the lounge room, though he was somewhat vague about it.
He also gave evidence that Mr Tom Girvan would come over to the house on non-work days and that sometimes he would come in and watch TV, consistent with the evidence of KMA’s mother.
In general terms, I accept his evidence.
(d) KMA’s mother
The evidence of KMA’s mother was broadly consistent with that of KMA and supported it. There were differences between it and some evidence of other of the witnesses.
As she was the adult of the family who gave evidence, I consider that I can rely on it for some of the historical matters more confidently than, for example, that of KMA’s sister.
There were some challenges to the reliability of her evidence, however, which were said by Ms T Warwick, who appeared for Mr Tom Girvan, to undermine her evidence.
The first was the evidence that the house was connected to pay TV, namely Foxtel. KMA’s mother said that the house had such a connection and it was to the TV in the back room. KMA’s sister did not think that they even had pay TV. It was suggested in submissions that Mr Roderick Girvan had also denied that the house had pay TV connected, but he did not actually at any stage say that. Mr Tom Girvan, on the other hand, said that as far as he knew there was no Foxtel connected to the house. While that may make it unlikely that he watched it, as asserted by KMA’s mother, I do not regard it as such an inconsistency as to undermine the credibility of KMA’s mother. Despite the difference in evidence between mother and sister, I prefer the evidence of KMA’s mother and do not consider that her credibility was affected adversely.
The second was in relation to the phone call which KMA apparently overheard and which caused her to make the complaint to her mother. It was suggested that, in evidence to me, she had said that this phone call was to Mr Roderick Girvan; indeed, after a break, she seemed to acknowledge that. It was asserted, however, and accepted by her that it was actually to a friend of hers as she had told police. I have looked carefully at the transcript and it is not correct – as was put to her and she acknowledged – that in her evidence, she said the phone call was to Mr Roderick Girvan. It is just possible, with a stretch of inference, that this could be inferred but it was not an inference I would have drawn.
That she acknowledged this, even though she did not actually say it, is more likely to have been the circumstances of her giving evidence than a genuine acceptance that she had said so. There were, in fact, two phone calls to Mr Roderick Girvan, one of which KMA may have heard, though at least the second would have been after her complaint. In any event, there was no actual inconsistency between KMA’s mother’s evidence as given and what she told the police.
I considered that KMA’s mother was telling the truth and that her evidence was reliable.
It was also put that, after the complaint by KMA, the two had engaged in some attempt to reconstruct events. In her interview with police, KMA said that after she had told her mother about the incidents:
mum and I tried to just put it all together. And she actually brought up a picture of the room on All Homes in something ... And I said, “Yeah, it was in that room”.
She had also said in relation to the timing of the incidents:
mum and I were sitting down trying to work out when it was, whether it was before my uncle died. And I’m pretty sure it was after I went to Queensland with, um, my friend.
It was never put to KMA or her mother that they had concocted any evidence together or that there had been any impropriety in this, such as coaching.
While it is perhaps undesirable for there to be much discussion between witnesses, it is likely to be a natural reaction of a mother to such a revelation to try and find out exactly what happened.
I do not consider that what was said detracts from the credibility of either KMA or her mother. Certainly nothing was put that suggested any attempt to fabricate any of the evidence or tailor it in anyway.
(e) Detective Sergeant Stephen Ladd
The informant, Detective Sergeant Ladd, gave brief, formal and uncontroversial evidence.
(f) KMA
The evidence of KMA was in part through the interview with police and then taken at a pre-trial hearing.
KMA gave her evidence in a clear and forthright manner. She showed an appropriate sense of embarrassment when talking about the alleged acts of indecency themselves. She did not embellish her evidence or appear to exaggerate it. She was cross-examined at some length and maintained her narrative consistently. I found her an impressive witness.
Something was also made of KMA’s description of the events she recounted. She said she “thought it was a dream”. Indeed, as I have noted above (at [83]) she seemed to think it was not real. That was, she said, part of why she did not tell her mother.
She was, also, concerned that she would lose the affection she had from Mr Roderick Girvan, someone she said she loved. In her evidence, she also said that she felt ashamed and did not want her family to be ashamed of her.
These emotions can clearly be powerful, especially in a young girl and I do not accept that the reference to a dream or to unreality was a reference to something she had made up. Indeed, that was not suggested to her in cross-examination.
Such acts must have been at the very least challenging to a child of ten or thereabouts and her reaction does not, in my view, especially having seen her give evidence, both in the interview with police and later in the pre-trial hearing, suggest fabrication or imaginative creation but simply the emotional reaction to the confronting experience she says she had.
There were a number of issues that were said to affect her credibility. In her evidence, she said that Mr Roderick Girvan and Mr Tom Girvan both used walking sticks at some stage. Evidence from Mr Roderick Girvan and from others confirmed that he did use a walking stick in about 2006. The evidence of all the witnesses asked about it, including Mr Tom Girvan and Mr Roderick Girvan was that Mr Tom Girvan had never used a walking stick.
This was clearly an error on the part of KMA. It was something that she volunteered; it was not suggested to her by either counsel nor, indeed, was it in response to some relevant issue. I consider it to be an isolated but odd error. I reject her evidence on that issue, but do not consider that it undermines her credibility to any relevant degree as to the balance of her evidence.
Evidence was also given about KMA’s attendance at the funeral of an uncle.
The evidence that KMA gave was that she was driven to the funeral by Mr Tom Girvan with her sister and Mr Roderick Girvan. She said that they drove into a small alleyway and her sister and Mr Roderick Girvan got out to get some flowers. She stayed in the car with Mr Tom Girvan where she says she was scared and then Mr Tom Girvan went and parked. They then got out of the car and walked over to the church.
It was put to her in cross-examination that all four got out of the car at the same time but that her sister and Mr Roderick Girvan went to buy flowers and she and Mr Tom Girvan walked over to the church. She denied that.
Her sister recalled the incident and said they all travelled in the car together but could not remember much about the arrival. She did speculate that they walked over to the church together but I consider that was entirely speculative. Her evidence did not advance the assessment of KMA’s evidence one way or another.
Mr Roderick Girvan’s evidence was that the four arrived together, all walked over to the church and met the family there and then he and KMA’s sister went off to get the flowers. This was not what was put to KMA in cross-examination.
The evidence of KMA’s mother was different again. She said that the four had “stopped to get flowers on the way”. She said that the four arrived together and denied that KMA’s sister and Mr Roderick Girvan went off to get flowers.
Mr Tom Girvan said that he had picked up KMA, her sister and his brother at his brother’s house and that they drove to a car park opposite the church. He said that they all walked over to the church together and that Mr Roderick Girvan and KMA’s sister then went to get flowers, consistent with the evidence of his brother but not with what was put to KMA in cross-examination.
It is difficult to say what happened. In the light of the evidence of KMA’s mother, there would have been a period when KMA was alone in the car with Mr Tom Girvan, but there were some differences. It was not suggested to KMA that the four had walked over to the church together, which could have happened on her version.
Given the varying versions of the incident, I do not find that it necessarily happened as KMA said; it may well have happened, otherwise. I do not, however, consider that it undermines to any relevant degree the reliability of KMA’s evidence as to the alleged incidents.
(g) Mr Tom Girvan
I have noted above (at [21]) that I must assess the evidence that Mr Girvan gave in the same way as I assess other evidence. I accept, too, that he was not obliged to give evidence and that by doing so, he exposed himself to cross-examination.
I carefully followed his evidence and gave careful attention to his demeanour in the witness box, which did not inspire confidence that he was telling the whole truth.
I have already noted (at [141]) that I consider he sought to minimise the access he had to the house at Banks and the rooms in it during the time his brother lived there. Even his brother’s evidence, which was most favourable to him of all the other witnesses, showed a greater degree of access than he seemed to accept in his evidence.
I also do not accept that, as he emphatically said, he had only been in the back room on one occasion. That is not consistent with the evidence, especially that of KMA’s mother and, though given much less certainly, not supported by that of his brother.
He denied committing the alleged incidents, but I was not convinced by his denials and do not accept them.
I have carefully excluded from consideration the allegations in respect of which I gave myself a direction under s 136 of the Evidence Act and I do not take them into account.
While I accept that the delay in KMA making the complaint had the capacity to affect Mr Tom Girvan’s defence, he did not suggest in his evidence any area where he was actually prejudiced and at a disadvantage. I accept that there were some difficulties in recollection of some witnesses who may have assisted, but that seemed more relevant in the Crown case than in his.
Mr Tom Girvan, of course, bears no onus of proof and the obligation remains at all times on the Crown to satisfy me beyond reasonable doubt that the offences have been committed.
Much of his evidence was consistent with the other evidence in the proceedings which made the inconsistencies about his access and use of rooms in the house more significant and troubling.
Findings
I have carefully considered all the evidence. In particular, I have scrutinised the evidence of KMA. I am satisfied that she was telling the truth about the incidents that have formed the basis for the counts on the indictment.
It seems to me that her evidence is supported to a significant degree by the other evidence though, of course, there was no direct evidence to support her account of the events themselves. I take into account, however, the complaints made to MM and to her mother which are consistent with her evidence. I note that her account was consistent, too, from the interview with police through to her cross-examination nearly three years later.
I take into account that Mr Tom Girvan gave evidence and that he denied that the incidents took place.
Conclusion
As a result, I am satisfied beyond reasonable doubt that the incidents alleged by KMA did take place and that Mr Tom Girvan is guilty of the offences charged in the indictment.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the Crown: Ms S Jowitt
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Ms T Warwick
Solicitor for the defendant: Wilson Phillips Lawyers
Date of hearing: 13 and 14 August 2012
Date of judgment: 17 July 2013
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