R v GOH
[2011] SADC 44
•8 April 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GOH
[2011] SADC 44
Reasons for the Verdicts of His Honour Judge Brebner
8 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone. Charges of indecent assault. Credibility. Evidence of complaint. Verdicts of not guilty.
Evidence Act 1929 s34M, referred to.
Questions of Law Reserved No. 5 of 1999 (2000) 76 SASR 356; R v Lobban (2000) 77 SASR 24; Driscoll v The Queen (1977) 137 CLR 517; Spence v Demasi (1998) 48 SASR 538; M v R (1994) 62 SASR 364; R v HML [2006] SASC 240; R v HT [2010] SASCFC 24; R v JJA [2009] SASR 401; R v Seigneur (2009) 103 SASR 207, considered.
R v GOH
[2011] SADC 44Criminal trial by judge alone
The accused is charged with two counts of aggravated indecent assault. Each count alleges that between 16th May 2009 and 23rd May 2009, at Gilberton, he indecently assaulted a boy of the age of 13 years contrary to s56 of the Criminal Law Consolidation Act 1935. He elected for trial by judge alone.
The complainant was born on 22nd June 1995. He was aged 13 years and 11 months at the time the assaults were said to have taken place and he was 15 years and four months at the time of the trial.
The accused was aged 47 at the time of the alleged offences. He was born in Singapore. He has lived in Australia since about July 2007. He is admittedly homosexual.
The complainant says that he was not previously acquainted with the accused. The accused raises the possibility that they might have shared a limited and entirely innocent acquaintanceship. The relevance of this will become apparent.
In essence the complainant says that the accused drugged him and that he was then indecently assaulted during two separate and distinct incidents after his ability to resist had been overcome by the drugs.
The accused denies drugging and indecently assaulting the complainant or otherwise associating with the complainant on the occasion in question.
Issues
The crime of aggravated indecent assault is established by proof beyond reasonable doubt of a touching, handling or other application of physical force to a person aged less than 14 years of age which occurs in circumstances which would ordinarily be regarded as offensive to contemporary standards of decency and personal propriety, and thus indecent.
It is not disputed that the complainant was aged less than 14 at the relevant time.
As will become apparent, the fundamental issue is whether I am satisfied beyond reasonable doubt that the complainant is both truthful and reliable in the essential aspects of his evidence about what he says happened to him.
Whenever I use expressions such as “proved,” or “satisfied”, or any other expression of that kind in the balance of these reasons, I will always be meaning proof or satisfaction beyond reasonable doubt.
Evidence
The prosecution called the complainant, the person to whom he ultimately complained, the investigating police officer and a person who made some relevant observations of the accused. The accused gave evidence and he called a number of witnesses in his defence. Given the nature of some of the evidence and the way in which the issues were defined by counsel, it will be possible for me to make a number of findings of fact as I summarise the evidence.
The complainant had run away from home about a week before the indecencies are said to have taken place and he was living on the streets when he says that he first met the accused.
On a Friday, which is said to have been a week or two before 23rd May 2009, the complainant and a group of other young people were congregated on the banks of the River Torrens beneath the City Bridge. The complainant said that he only knew one of these youths by name and that was an African boy who he knew as Narcin. He said that a girl gave him a small bottle of bourbon. He said that eventually a man joined the group. Some seven months later, and from an array of photographs, he identified the accused as being this man.
The complainant said that the accused said that his name was Brazley and that he came from Singapore. The accused’s Christian name is Rasley and he originates in Singapore. He speaks with an accent, and when he articulates his Christian name it is easy to see how someone could believe he was saying Brazley rather than Rasley. The complainant described Brazley as apparently Asian, short with a shaved head and in his forties, and perhaps 50. As far as it goes, this is a reasonably accurate description of the accused’s appearance at the time of trial.
The complainant said that the accused was stumbling, slurring his words, over-excited and apparently drunk and that he was carrying two bottles of alcohol which were ultimately passed around amongst the group. He said that the accused then produced a bag containing about 100-150 pills. He said that he knew from experience that these pills were ecstasy. He said that the accused offered some of the pills to the group and that he accepted about five of them. He said that he ingested two of the pills a short time later. He described the pills as tasting strong and somehow different from other ecstasy he had taken and as having a strong effect which made him “pumped” and “high”.
The complainant said the group and the accused eventually walked from the City Bridge to the vicinity of an outdoor cinema in what must have been the Botanic Park where they remained drinking and talking for some 30 to 45 minutes. He said he had never before attended this outdoor cinema.
An outdoor cinema does in fact operate in the Botanic Park from time to time. It was not operating during May 2009. The most recent occasion on which it operated when the complainant could have attended was the night of 7th January 2009.
The complainant said that after the group had been in the vicinity of the cinema for a while, the accused invited them back to his house and he said that the accused said that his home was next to an old television station building, which was nearby.
The complainant said he had drunk about half the bottle of bourbon by this time and he described his condition as “high” however, he said that he was not intoxicated by either the ecstasy or the alcohol.
According to the complainant, the group then followed the accused out of the park to a block of flats situated on what must have been Park Terrace Gilberton. He said that the group entered a flat within the block, which he took to be the accused’s flat. He estimated the time of arrival to be about 9pm to 9.30pm.
The complainant said this was the first time that he had visited the accused’s flat.
The complainant said that immediately after he entered the flat he cased it for up to 15 minutes looking for money, valuables or drugs to steal. He said while he was inspecting the flat he went into the bathroom and onto the balcony. The bathroom window is frosted glass and it overlooks the balcony.
The complainant said that he eventually joined the others in the lounge room of the flat. He said that the accused was smoking. The accused is in fact a smoker. He said that he eventually fell asleep on a couch in the lounge room and he said that he had a vague recollection of asking the accused if he could stay the night and of the accused telling him that he could.
The complainant said that he awoke on the couch the following morning to find that two other members of the group were also in the lounge room. He said that one of them was the youth Narcin. He said Narcin and the other youth left the premises relatively soon after he had awoken.
The complainant said that the accused then emerged from his bedroom and asked him if he would like some shots. He said the accused produced a bottle of Jim Beam and two shot glasses. He said that he then drank two shot glasses of the Jim Beam in quick succession. He said that the accused went into the kitchen and returned with two shot glasses of liquid of some kind. He said that he drank one these glasses and that the accused drank the other. He said that the liquid tasted different from the Jim Beam and he said that after he drank it he quickly became drowsy and incapable of movement or speech.
The complainant said that the accused then removed his (the complainant’s) track pants and boxer shorts and that he was incapable of resistance. He said that the accused then swung his legs onto the arm of the chair which he was sitting on. He said that the accused then removed his own trousers and underwear. He said that the accused’s penis was erect and that his pubic hair was short and prickly. He said that he felt something prickly touching the inside of his thigh and that the accused’s penis was touching his anus whereupon he blacked out.
The prosecution relies on this evidence in order to establish count one.
The complainant said that he eventually regained consciousness to find that someone was masturbating him and fondling his testicles. He said that he was unsure of where he was and he said that he thought that his eyes were shut. He said that he felt a burning sensation on his right leg and his left wrist. He said that he was again unable to resist and that he again blacked out. He did not purport to identify or describe the person who was handling him in this manner.
The prosecution relies on this evidence in order to establish the second count.
The complainant said that he was on the bedroom floor of the flat when he eventually regained consciousness for the second time. He said that it was night time when he awoke. He said that he was half-dressed and that his anus, back, leg and wrist were sore. He said that he looked for his track pants and boxers but that he was unable to find them so he took some pants and underwear which he found in the bedroom. He said that he found his shoes in the lounge room and he said that both the shoes and their laces had been cleaned by someone. He said that he stole about $800 and what was left of the Jim Beam and that he then ran from the flat. He said that he could hear the shower running from the moment he regained consciousness and that it was still running when he left the flat. He did not say whether or not the bathroom door was open or not or whether or not he looked into the bathroom before he decamped.
The accused did not make any reports to police of any thefts of money from his flat at around this time.
A photograph of the accused’s genitalia was taken on the day of his arrest. As depicted in the photograph, his pubic hair appears to have been trimmed to a length of about three to five millimetres. The accused said in his own evidence that he trimmed his pubic hair fortnightly and that he had done so for about five years. The complainant said that the photograph was an accurate representation of the accused’s pubic hair as he remembered it.
The complainant said that after he left the flat he made his way back to the City Bridge where he commenced drinking with some other youths. He said that he did not tell anyone about what had happened to him because he was feeling scared and ashamed. He said that he eventually abandoned the clothes he had taken from the flat somewhere near Tea Tree Plaza. He ultimately indicated the relevant area to police some months later however, the clothes were not located. This is hardly surprising and, in my view, has no capacity to detract from his credibility.
The complainant said that he suffered burn marks to his leg and wrist and what he described as scratches or a carpet burn while he was at the flat. He did not seek any treatment for these burns. Photographs of the complainant which were taken in January 2010 depict a small mark on the inside of his left wrist and a similar mark on his right knee. Neither mark appears fresh.
The complainant said that some four or five days later he was at a fast food outlet on Hindley Street when he overheard two or three girls talking about a man who they said had indecently assaulted them and that he then overheard a youth say that he knew where this man worked. He said that he then accompanied the girls and the youth to Gouger Street. He said that the girls described the man as Asian, about 30 or 40, short and had a shaven headed. He said that he thought they could be talking about the accused.
The complainant went on to say that the others pointed out a restaurant or bar on the southern side of Gouger Street near West Terrace however, he said he did not notice the name of the particular establishment. As of May 2009 the accused was employed at a nightclub named La Sing. La Sing is situated on the southern side of Gouger Street a short distance from West Terrace.
The complainant said that he did not say anything to these other young people about what the accused had done to him because he was scared about people knowing what had happened to him and judging him accordingly. He said that he could not remember the names of these people.
On 23rd May 2009 the complainant was arrested for an attempted robbery and it is the prosecution case that the alleged indecencies must have occurred about a week or so before the date of his arrest.
Thereafter the complainant was detained at the Magill Youth Training Centre (Magill) from 24th May 2009 until 22nd June 2009 and then again from 5th July 2009 until 26th November 2009.
On 19th September 2009 the complainant assaulted another youth who was also detained at Magill by way of reprisal for an insult of some kind. Staff at Magill intervened and separated the complainant and the other youth. A short time after he had committed this assault the complainant asked to speak to a youth worker at Magill named Axisa. He said he told Mr Axisa about what had happened to him and he said that he thought he could trust Mr Axisa enough to tell him. He said that by the time he spoke to Mr Axisa he believed that police would be attending Magill in relation to the assault. He said that initially he did not want the police to become involved in what he said the accused had done to him but he then went on to say that about 15 minutes later he decided that he wanted to report the matter. He said that he complained to Mr Axisa about eight months after the incident had occurred and that he could not remember precisely what he had said to Mr Axisa.
Mr Axisa said that the complainant approached him and said that he wanted to talk to him about something important. He said that he then spoke to the complainant in an office at Magill at some time between 11.30 and noon and his evidence about what the complainant said to him was as follows:
ASomething about an incident that had happened, he was sexually assaulted and he was a little bit unclear of the time but he did say he thought it was approximately seven months ago from the time that he told me.
QDid he tell you anything of the identity of the person who had assaulted him.
AHe did say it was a man of Asian appearance and that his name was Brazely.
QDid he tell you where he thought the man lived.
AI think it was Channel 7, around the Channel 7 area.
QDid he tell you something of the circumstances of how he had met this man.
AYeah, I think that was – was it on the Torrens, I think he was on a bench and he was approached and they were talking about life as a street kid, I think that’s what that was about.
QDid [K] tell you where the assault had occurred.
AHe said it was at Brazley’s house.
QDid he tell you what had occurred prior to the assault occurring.
A[K] told me that Brazley had served up some food and drink and that [K] had suspected that he might have been drugged from the coca-Cola that he’d drunk and that was trying to pull his pants down and then he fell unconscious.
QDid he ask [K] any details about the assault that had occurred on him.
AI did ask him if he had any details that he wished to share with me but all he said was about having his – trying to pull his pants down and that he woke up with his pants down. He appeared to me as though he was a bit shy about telling me any more than that.
QDid you push him to tell you any more than that.
ANo.
QDid he tell you what he recalled after he woke up.
AAfter he woke up I think he said he saw Brazley in the shower. I’ll just refer to my notes. Yes, he’s seen him in the shower and he noticed that his pants were down.
QWhat did he actually tell you about Brazley showering, what did he actually say about that.
ANothing, just the man was showering.
QWhat did [K] tell you he did after he woke up.
AHe pulled his pants up and ran.
QDid he tell you where he ran to.
ANo, I don’t remember him telling me he ran anywhere, just out.
QCan you describe the demeanour, how was [K] whilst he was talking to you.
A[K] was extremely upset and most of the time he was crying.
By reference to his statement, Mr Axisa later provided some additional details of what the complainant had said to him and he said that the complainant had told him that he had been sitting on a bench by the River Torrens when an Asian man approached him and spoke to him for about an hour. His evidence then proceeded as follows:
QWas it the case you asked [K] what he and the Asian man had talked about when he and [K] was on the bench.
AYes, we did talk about that.
QDid [K] avoid telling you exactly what they talked about.
AYes, to a certain extent he did. He did tell me one thing.
HIS HONOUR
QAre you effectively saying he was reluctant to discuss the details of the conversation with you.
AI’d say he was very reluctant to discuss the details.
XXN
QDid [K] tell you that he went to the Asian man’s house and was given food and a drink of Coke.
AYes, that’s true.
QDid [K] then tell you that he thought he was drugged with the drink.
AYes.
QAnd that the Asian man tried to pull his pants down.
AThat’s correct.
QAnd that [K] fell unconscious
AYes.
QDid he tell you that when he woke up he remembered the Asian man was showering.
AYes.
QAnd [K] remembered that his pants were down at that time.
AYes, he did.
QDid he say he pulled his pants up and ran away from the house.
AYes.
QWas it the case that [K] didn’t seem to remember much.
AIt did not appear as though he couldn’t remember much, it appeared more like he didn’t want to discuss too much with me.
As can be seen, there are inconsistencies between what the complainant reported to Mr Axisa and what he said in his evidence.
Some half an hour to an hour after the complainant began speaking to Mr Axisa, two police officers attended at Magill. They spoke to the boy who was said to be the victim of the assault and then about a half an hour after their arrival they interviewed the complainant about the assault. Whilst they were talking to him, he made some form of report to them about the incident which gives rise to the charges in which he claimed that “he had been whipped, or similar on his back but that he no longer had any visible marks.”
On 26th October 2009 a Detective Perkins went to Magill and spoke to the complainant. He said that the complainant provided him with some very basic information including a description of the premises where he believed that the accused worked. He said that the complainant told him that he could not remember exactly what happened. He said that the complainant was very reluctant for the matter to be taken any further and he said that the complainant eventually signed a pro forma stating that he did not want the matter to proceed.
The complainant eventually explained his reluctance to speak to the police and his desire that the matter should not proceed, on the basis that he was scared and ashamed about what had happened to him and that he did not want his family to know.
Armed with the information which the complainant had provided, Detective Perkins went to La Sing and spoke to the accused on 28th October 2009. He said that the accused pronounced his Christian name with an accent and he said that it sounded like “Brasely”.
Detective Perkins arrested the accused at his flat on Sunday 8th November 2009. He was spoken to at the flat and then taken to the Holden Hill Police Station and interviewed.
Application to exclude evidence
In conformity with s 78a Summary Offences Act , the accused was informed of his right to have a solicitor, relative or friend present at any interview which might subsequently be conducted. On being informed of this right the accused told Detective Perkins that he wanted his aunt to be present if he was to be interviewed. The interview eventually proceeded in the absence of the accused’s aunt.
Counsel for the accused contended that Detective Perkins should not have proceeded to interview the accused in the absence of his aunt and that what was said after he had said that he wanted her to be present, should be excluded.
As exclusion was sought on discretionary grounds, the onus was on the accused on the balance of probabilities to establish facts having the capacity to enliven any relevant discretion: Question of Law Reserved No. 5 of 1999 (2000) 76 SASR 356 at [33], [103], [155].
Detective Perkins gave evidence on the voir dire, the accused did not. Detective Perkins said that he arranged for the accused to speak to his aunt by telephone. He said that he was in the room while the accused was speaking on the telephone and that he heard the accused using expressions such as “not bothered” and “not being afraid of the police” and that he “wanted to go ahead with it” and that he took these utterances to mean that the accused was prepared to continue if his aunt was unable to attend at the police station immediately. He said that the accused did not say that he was not prepared to continue in the absence of his aunt. He said that he continued with the interview because the accused appeared to be happy to proceed in her absence. He said that the accused did not appear to be in any way intimidated by the situation.
There are passages in the interview which occur after the accused had spoken to his aunt which suggest that although he would have preferred his aunt to be present, he was nonetheless willing to proceed in her absence, and there is no evidence to the contrary.
After hearing submissions, I ruled that I would not exclude what was said after the accused expressed his wish to have his aunt present and I indicated that I would incorporate my reasons for my ruling into these reasons.
Detective Perkin’s evidence was unremarkable. There was nothing in his demeanour which suggested that he had anything to hide. An objective assessment of what was said when the accused was advised of his rights and what was then said about his desire to have his aunt present at any subsequent interview and about her availability to be present at the interview is in no way inconsistent with his evidence.
On the basis of Detective Perkin’s evidence, and on the basis of what the accused said to Detective Perkins on the topic of his aunt and her availability, I am not satisfied on the balance of probabilities that the accused had not waived his right to have his aunt present during any interview. Accordingly, the public policy discretion is not enlivened.
If I am wrong about this and if the accused was in fact unwilling to proceed without his aunt being present, then I would nonetheless not exclude the interview. It is easy to see from the face of the interview and from what the accused said while he was talking to his aunt on the telephone, how Detective Perkins might have thought that the accused was willing to continue in his aunt’s absence and there is nothing to suggest that Perkins was being anything other than sensitive to the accused’s rights. Accordingly, and bearing in mind the seriousness of the offence, the balance falls in favour of the admission of the interview. Also, there is nothing to suggest that the accused did not understand his privilege against self-incrimination, or that anything he said was unreliable, or that there was anything else arising out of the circumstances of the interview which would render it unfair to him to admit what he said into evidence: See R v Lobban (2000) 77 SASR 24.
The balance of the evidence
During the course of the interview, the accused stated that the flat was rented by his aunt and that he was living there. He said that he was living in the flat as of May 2009. For convenience I shall simply continue to refer to the premises as the accused’s flat. He said that no teenagers had ever stayed at the flat overnight and that he had never met any teenagers on the banks of the Torrens. He said that an amount of $800 or $900 had never been stolen from the flat. He denied that he had indecently assaulted the complainant in the manner alleged.
In evidence, and by reference to some diagrams, which he drew when he ultimately gave his statement to police, the complainant described the layout of the block of flats he said that he went to and the location of the accused’s flat within the complex in terms which are entirely consistent with the location of the accused’s flat.
Also by reference to diagrams he had drawn, the complainant described the layout, interior, furnishing and décor of the flat that he said he went to in detail and terms which are entirely consistent with the accused’s flat.
The complainant also said that while he was casing the master bedroom he looked in the top right hand drawer of a cupboard and saw condoms and sexual lubricant. Condoms and lubricant were in fact located in a drawer in the master bedroom when police searched the flat on the day of the accused’s arrest.
No drugs or alcohol were found during the course of the search however, the accused had known for over a week that the police might be interested in him for some reason and so the fact that neither drugs nor alcohol were located is thus of little consequence, and would not have been of any great consequence in any event.
In all these circumstances, I do not think that it is reasonably possible that the complainant could have acquired his apparently detailed knowledge of the accused’s flat and some of its contents second hand and I am satisfied that he could not have described the location, layout, décor and furnishing of the accused’s flat and the contents of one of the drawers in the bedroom in such detail and with such accuracy unless he had visited the flat and spent sufficient time on the premises to enable him to become reasonably familiar with them and also to look inside the bedroom drawer.
The accused said in evidence that he lived at the flat with his aunt. He said that his aunt worked as a live-in carer and that she spent most of her time at the home of the man she cared for. He said that she would come to the flat between 6.00 am and 6.30 am each morning for breakfast and to make her lunch and that she would then leave the premises. The accused’s aunt confirmed that this was her routine and she said that ordinarily she did not sleep at the flat.
The accused denied that the sequence of events described by the complainant had ever taken place. In particular, he denied that he had ever engaged with a group of young people under the City Bridge or that he had invited any of them back to his flat. He denied that he engaged in any sexual impropriety with the complainant.
During the course of the defence case, evidence was led with a view to demonstrating that the complainant might have acquired his apparently accurate knowledge of the accused’s pubic hair in circumstances other than those which he had described.
In this regard, the accused said that there were two photographs which depicted him naked on a website titled Manhunt. However, he said that these photographs were taken over twenty years ago and well before the time when he began to trim his pubic hair. He also said that the photographs were on a locked page of the website which could only be accessed by other members of the website and then only with his permission. There is no suggestion that the complainant had access to the website. It thus follows that the complainant could not have acquired his apparently accurate knowledge of how the accused maintained his pubic hair from the website even in the unlikely event that he had ever obtained access to the site.
Also in this regard, a man who was acquainted with the accused’s former sexual partner was called as part of the accused’s case. He said that he and the accused’s former partner had visited the flat in the accused’s absence in about 2006 and that he had viewed a number of photographs which depicted the accused posing naked. He said he merely glanced at the photographs. The accused said under cross-examination that the only photographs depicting him naked which were ever at the flat were the same as the photographs which were on the website. So again the complainant could not have acquired any relevant information about the accused’s pubic hair from any photographs he might have viewed at the flat. I am thus satisfied that the complainant must have actually observed the accused’s pubic hair first hand on some occasion.
There was also evidence led with a view to demonstrating that the complainant might have acquired his apparently accurate knowledge of the accused’s flat in circumstances other than those which he claimed.
In this regard, the accused sought to suggest that the complainant might have been a boy who he had befriended some six months or more before the indecencies are said to have taken place and who had ultimately visited him at his flat in innocent circumstances. He said that in October 2008 he was sitting on a bench near the Torrens when a boy on a bicycle rode up and spoke to him. He said that they fell into conversation. He said that he gave the boy his address and told him that if he ever wanted to talk about any of his problems then he was welcome to visit. He said that the boy told him that he was 15 and that he thought that the boy’s name started with P. The complainant’s initials are KB. He was unable to provide any workable description of the boy. He said that the boy came to his flat in about February 2009. He said he was about to go out and so he told the boy to come back later. He said that the boy returned to the flat in about May 2009 and then remained there for some hours. He said that he had a shower while the boy was in the flat and that he always leaves the bathroom door open when he showers. He said that two acquaintances of his came to the house and that they: he, the boy and his acquaintances all eventually departed together. He said that his acquaintances dropped him off at La Sing. He said that the complainant must have been this boy.
As summarised at [58], when the accused was interviewed he was asked if he had ever met up with any teenagers by the Torrens and he said that he had not. Under cross-examination he was asked why he had given this answer if he had met the boy who he thought must have been the complainant in the circumstances which he described and he said, in effect, that he had simply forgotten the boy and that he was a trifle intoxicated at the time of the interview as a result of drinking after he had finished work in the small hours of the morning of his arrest.
The accused’s aunt and his two acquaintances confirmed that there had been an occasion in May when they had seen a boy at the flat.
The accused’s aunt said that she saw a boy at the flat. She said that he was slender and that she did not see his face. She said that she had seen him again outside the courtroom. She said that she had not told anybody that she had seen the boy at court, but she quickly changed her position and said that the build of the boy she had seen outside court resembled that of the boy she had seen at the flat and she said that she told the accused that she had seen the boy and that he had told her to keep quiet. For obvious reasons, I found this aspect of her evidence to be quite unconvincing. It also emerged that the accused’s aunt held two passports in different names, her explanation for this lacked cogency and it was plain from other aspects of her evidence that she was prepared to resort to dishonesty and her demeanour reflected as much. In all the circumstances, I found the accused’s aunt to be lacking in credit in relation to the critical aspects of her evidence.
The first of the accused’s acquaintances was a Mr Munoz-Raddatz. He said the he went to the flat with his partner Ms Ung. He said that he saw a boy of about 14 years of age at the flat. He said that the boy was Caucasian with very light brown or blonde hair. He said that the boy’s hair colour was natural. The complainant is Caucasian and he has dark brown hair. Mr Munoz-Raddatz said he could not remember the boy’s name. He said everybody left the flat together, that the accused was dropped off at La Sing and that the boy was then dropped off at a restaurant where the boy said that he had been working a few days earlier. The complainant was not cross-examined to suggest that all this had happened.
Ms Ung gave evidence to much the same effect. She said that the boy had hair which was ‘dirty ash blond” in colour and that she did not learn his name. She said that they dropped the boy off at his place of work.
Although I have some concerns about where the allegiances of Mr Munoz-Raddatz and Ms Ung might ultimately lie, their evidence nonetheless remains reasonably possibly true however, and on the basis of their descriptions of the colour of the boy’s hair, I do not think that it is a reasonable possibility that the boy that they say they saw, could have been the complainant.
With regard to the identity of the boy who was seen at the flat by the accused’s aunt, Mr Munoz-Raddatz and Ms Ung, an incident occurred during the course of the defence case which led me to grant leave to prosecuting counsel to re-open her case in order to call a youth worker at Magill named Peters. Mr Peters was escorting the complainant at court on the day in question. He said that he had accompanied the complainant to a public toilet in the court building and that as they were leaving the toilet, he observed the accused some two metres away and looking in their direction. He said that the accused would have been looking at them for about two to three seconds and that he then placed his body between the complainant and the accused in order to obscure the accused’s view.
Under cross-examination, the accused said that he had not looked at the complainant’s face after he had exited the toilet and that he had not made any observations of the complainant while the complainant was in the witness box, however there was a screen separating the witness box from the dock in place for the course of the complainant’s evidence. The accused was somewhat evasive under cross-examination on the issue of whether he had seen the complainant’s face either while he was in the witness box or as he was emerging from the toilet and at no stage did he say that he recognised the complainant as the boy. There is thus no positive evidence that the complainant was the boy in question.
The accused denied bringing a group of young people to the flat as alleged. One of the accused’s neighbour’s lives in a flat adjacent to the stairs which lead up to the accused’s flat. He said that he would have noticed if a large group of young people had arrived at the flats and ascended the stairs however, he said that it was his usual practice to watch television at about the time the complainant suggested that the group had arrived and that he sometimes has a drink while he is doing so and thus the possibility that he might not have noticed the group cannot be discarded.
The accused’s aunt said that the person she cared for was in hospital in May of 2009. By reference to her diary she said that she slept at the flat rather than at her patient’s home between 16th May 2009 and 23rd May. She said that at no time had she ever seen any young people sleeping in the lounge of the flat when she arrived in the morning in accordance with her normal routine. As I have already said, I find the accused’s aunt to be lacking in credit and I am not prepared to rely on this aspect of her evidence either.
Issue and principles
There is no corroboration of the complainant’s evidence. None is required either as a matter of law or as a matter of practice. As I said at the outset, the principal issue is whether I am satisfied beyond reasonable doubt that the complainant is both truthful and reliable in the essential aspects of his evidence about what happened to him.
The prosecution must prove the charge beyond reasonable doubt. If I am uncertain about where the truth lies then I must acquit. The accused is presumed to be innocent. He carries no onus. If I reject his evidence, that does not of itself mean that he is to be convicted and the prosecution must nonetheless prove the charges beyond reasonable doubt. I must consider each charge separately.
It is open to me to both accept and reject different parts of the same witness’s evidence. As the complainant was the principal prosecution witness it is thus open to me to be satisfied that some aspects of his evidence are truthful and reliable while at the same time rejecting other parts of his evidence, remembering always that if I reject part of his evidence as being untruthful or unreliable, then that finding can be taken into account in assessing his overall credibility and/or reliability.
Any inconsistencies between the complainant’s evidence and any previous statements made by him go to his credibility and thus to his reliability and the significance which is to be attached to any inconsistency, or combination of inconsistencies, is essentially a matter of fact: Driscoll v The Queen (1977) 137 CLR 517 at 586-587.
The previous convictions of a witness are relevant to the question of whether the witness should be believed on his oath or affirmation: Bugg v Day (1949) 79 CLR 442. The existence of previous convictions does not of necessity mean that a witness cannot be believed. Whether the previous convictions of a witness undermine his credit to the extent that the tribunal of fact is not prepared to believe him will depend on the circumstances of the case including the nature and extent of the convictions and whether any of them involve an element of deception or falsehood. In this regard, the complainant admitted that he has committed a number of offences of dishonesty. Whether he was convicted of all or any of these offences is unknown however, by parity of reasoning, his offending can be treated in the same way as convictions for the purposes of assessing his credibility.
Any exculpatory statements made by the accused during the course of his interview provide some evidence of what he asserted. The significance, if, any, to be given to his exculpatory statements is a matter for me as the tribunal of fact: Spence v Demasi (1998) 48 SASR 538 at 540, M v R (1994) 62 SASR 364 at [21], R v HML [2006] SASC 240 at [25].
The accused is under no obligation to point to an explanation as to why the complainant might have fabricated his account of sexual abuse by the accused: Palmer v The Queen (1998) 193 CLR 1. However, the accused’s counsel submitted that the impending arrival of the police to talk to him about the assault might have motivated the accused to fabricate in order to draw attention away from the assault. Counsel did not put this proposition to the complainant in cross-examination and plainly he should have done so. Notwithstanding this, I must nonetheless assess the suggested motive for the complainant to fabricate on its merits, but in doing so I must bear in mind that he was not cross-examined about it. In considering the suggested motive to fabricate, I must bear in mind that the accused bears no onus to point to an explanation for the complainant to fabricate and, even if I ultimately find that it is not a reasonable possibility that the suggested explanation might have influenced him to fabricate and that there is no other apparent motive for him to fabricate, that finding would neither advance the prosecution case nor weaken the accused’s case. Palmer v The Queen (1998) 193 CLR 1, R v Wallace (2008) 100 CLR 47 at [59]-[60]
The complainant
The complainant has committed a number of offences of dishonesty during the course of his short life. He committed some of these offences in suburbs adjacent to the suburb in which the accused’s flat is situated. He has committed offences of trespass in the knowledge that the occupier was within the premises at the time. It is plain that he had no respect for the property of other people. By his own admission, he is not an entirely truthful person. He has a reputation for dishonesty in his dealings with the staff at Magill.
In the final analysis the complainant was not an impressive witness. When he was under cross-examination his demeanour seemed to change at times and at times he would drop his voice when he was denying propositions which had been put to him. None of this inspired my confidence.
Evidence of complaint
As the information was filed after 23rd November 2008, s34M Evidence Act 1929 applies to the conduct of the trial: R v Seigneur (2009) 103 SASR 207. Section 34M(3) provides that evidence of an initial complaint is admissible in order to establish when an allegation of a sexual offence was first made, to whom it was made and why it was made to a particular person at a particular time. Section 34M(4) proscribes the manner in which any such complaint is to be evaluated and it is now well settled that if evidence of complaint is admitted, the judge must direct the jury that it is admitted to inform them about how the allegation first came to light and as evidence of consistency of conduct on the part of the complainant, that it is not evidence of the truth of that which was asserted in the complaint, that there may be varied reasons why a complainant might complain, when and to whom he or she did, but otherwise it is for the jury to determine the significance, (if any) to be attached to the evidence in the circumstances of the case. If evidence of complaint has the capacity to demonstrate consistency of conduct on the part of the complainant, it possesses the further capacity to enhance his or her credit: R v JJA [2009] SASR 401 at [93], R v HT [2010] SASCFC 24 at [49]
Evaluating the evidence of complaint set out at [41]-[44] in accordance with s34M includes a consideration of whether the evidence has the capacity to demonstrate consistency or inconsistency of conduct on the part of the complainant, which in turn might enhance or detract from his credit: R v HT at [46]-[49] Gray J. In evaluating the evidence of complaint in this way and in determining whether it has any capacity to enhance the complainant’s credit, it must be borne in mind that even false allegations have a starting point in the making of a complaint of some kind.
The complainant’s explanations about why he did not complain when he returned to the City Bridge and when he accompanied the other youths to Gouger Street are both unremarkable and cogent.
However, the temporal coincidence between the assault, the complainant’s expectation that the police would be attending Magill to talk to him about it and the emergence of the complaint, gives rise to concerns that the complaint might well be a fabrication designed to meet the exigencies of the situation in which the complainant found himself at the time that he made his initial complaint to Mr Axisa and that he incorporated his knowledge of the accused and his flat, however acquired, into his account to Mr Axisa, and subsequently, in order to lend credence to his complaint.
The complaint thus lacks the capacity to enhance the complainant’s credibility.
Other evaluation
I have already found that the complainant must have visited the accused’s flat, that he was not the boy who is said to have visited the flat in innocent circumstances and that he must have observed the accused’s pubic area first hand. Prosecuting counsel submitted that his esoteric knowledge of the flat and the accused’s pubic hair enhanced his credit accordingly.
Although the complainant’s ability to accurately describe the flat and the accused’s pubic hair is consistent with his account being true, it does not necessarily follow that his account is in fact true and the possibility that he acquired the relevant knowledge on another occasion or occasions, that neither he nor the accused are prepared to acknowledge, cannot be overlooked and I thus do not think that his credit is necessarily enhanced for the reasons submitted.
Counsel for the accused submitted that in addition to the matters summarised at [88], there are a number of features of the evidence as a whole which, either alone or in combination, tell against the complainant’s credibility and reliability to the extent that I should not accept him beyond reasonable doubt about the essential features of his evidence. Without being exhaustive they include the following:
·The complainant said that he had never heard of criminal injuries compensation however, the pro forma he signed stating that he did not want the matter taken any further contains an acknowledgement on his part that he was thereby abandoning any entitlement he might have had to compensation.
·The inconsistency between the complainant’s evidence and his report to police on 19th September that he had been “whipped or similar” during the incident.
·The complainant’s insistence that his parents should not be told about what he said had happened to him, his reluctance for the matter to proceed and his signing of the pro forma.
·The inconsistency between the complainant’s evidence and his statement to Detective Perkins on October 26th that the incident had occurred about a year earlier.
·The complainant’s statement to Detective Perkins that he did not remember exactly what had happened.
·The complainant’s statement to Detective Perkins that he had spoken to other youths who knew Brazley and who told him that Brazley had done similar things to them and his failure to acknowledge that he had done so.
·The fact that the outdoor cinema was not operating in May 2009 and that the last time the complainant could have attended the cinema was 7th January 2009.
·The complainant’s inability to name any of the other young people he was with on the night in question except for the youth named Narcin.
Some of these matters are of little or no consequence however, in all the circumstances some of them do cause me to experience concerns about the complainant’s credibility.
The complainant’s evidence about compensation and the pro forma was that he was not sure if the police explained to him that he would not be eligible for compensation if the matter did not proceed and that he could not remember whether or not the police had read the pro forma to him. In all the circumstances, it is quite possible that the complainant either did not realise that by signing the pro forma he was waiving his right to seek compensation or that he has simply forgotten about it.
When the complainant’s insistence that his parents should not be notified and his desire that the matter should not proceed any further are viewed in isolation, I regard his explanations as reasonable and it is easy to understand why someone of his age and in his position might experience doubts about whether they would want their parents to know and to be adamant that they did not want any further steps to be taken.
Some inconsistencies between what a complainant says in his or her evidence and what he or she has said on earlier occasions are inevitable in a case such as this because of the passage of time and the potential frailty of human memory.
However, the complainant’s failure to repeat in evidence his report to the police that he had been “whipped or similar” is not so readily explicable. If the complainant had in fact been whipped or assaulted in a similar fashion while he was at the flat, then that would have been an incident of some significance in the overall sequence of events and thus something which he would have been highly likely to remember. However, the complainant said he had no recollection of telling the police that he had been “whipped or similar” and he did not describe any such incident during the course of his evidence. In my view this inconsistency is thus significant and possesses the capacity to tell against his credibility.
Similarly, if he had told Detective Perkins that other youths had told him that they had had similar experiences with Brazley, then one might have expected him to remember having done so, although this is not necessarily so.
As far as the suggested inconsistency about when the indecencies were said to have taken place is concerned, the complainant said that the night in question was proximate in time to when he was arrested on 23rd of May. However, he also said that he complained to Mr Axisa about eight months afterwards which would put the night in question in around January and he also said he could not remember whether the indecencies occurred before or after his birthday in late June and he told Detective Perkins that they had occurred about a year before 26th October 2009. Although some inconsistency and uncertainty about when the events had occurred is to be expected, the divergence and vagueness in his account about when he says the indecencies occurred is more than one might ordinarily expect.
As set out in [41] and [42], the complainant made a very general allegation of sexual assault to Mr Axisa on 19th September 2009 and then on 26th October 2009, he told Detective Perkins that he could not remember exactly what had happened to him. Mr Axisa said that the complainant was reluctant to discuss the details of what had happened and Detective Perkins said that the complainant was reluctant for the investigation to proceed any further. Given the detailed description of the sexual assaults which the complainant provided during his evidence, it is plain that he must have had some recollection of those details when he spoke to Mr Axisa and Detective Perkins. Although the complainant’s reluctance to go into details with Mr Axisa might well be explicable on the basis of the shame he said he was experiencing, his statement to Detective Perkins that he could not remember exactly what had happened to him is inconsistent with the detail he provided in evidence and, at the very least, the possibility exists that was not being entirely truthful with Detective Perkins when he said he could not remember exactly what happened.
There is no doubt that the outdoor cinema was not operating during the time period particularised in the charge and the last time the complainant could have been in the Park when it was operating was early January 2009. If the indecencies occurred in January, which is one of the times suggested by the complainant at [106] then the group could have seen the cinema on their way to the flat as the complainant says, but if the indecencies took place on a night proximate to the complainant’s arrest on 23rd of March then there would have been no cinema in the Park. In all the circumstances, I regard the evidence about when the cinema was operating to be neutral.
The complainant said that although he knew some of the young people he joined under the bridge by sight, he did not know any of their names with the exception of the youth Narcin. I regard this as somewhat surprising but not implausible to the extent that it undermines his credit.
In the final analysis, the combination of the complainant’s change of demeanour when under cross-examination, the temporal coincidence surrounding the making of the complaint and his expectation that the police would be attending Magill in relation to the assault, his offences of dishonesty, his admitted ability to be less then truthful, his reputation for dishonesty in his dealings with the staff at Magill and the principal inconsistencies set out at [102] and [104] all combine together to cause me to experience doubts about the complainant’s credibility and reliability with regard to the essential aspects of his evidence which, in all the circumstances, cannot be dispelled by the complainant’s esoteric knowledge about the accused’s flat and his pubic hair.
Although I am highly suspicious that something of a sexual nature did take place between the accused and the complainant on some occasion, be it the occasion particularised or not, suspicion is not enough and the accused must be acquitted.
I enter verdicts of not guilty on both counts accordingly.
0
12
1