R v Harvey
[2021] SADC 111
•13 October 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARVEY
Criminal Trial by Judge Alone
[2021] SADC 111
Reasons for the Verdicts of his Honour Judge Press
13 October 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
The accused was charged with six counts of unlawful sexual intercourse, two counts of supply controlled drug to a child, one count of maintaining an unlawful sexual relationship with a child and one count of aggravated threatening to cause harm. The accused elected for trial by judge alone.
Verdicts:
Count 1 – Not Guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Not Guilty
Count 5 – Guilty
Count 6 – Not guilty
Count 7 – Guilty
Count 8 – Not Guilty
Count 9 – Guilty
Count 10 – Guilty
Controlled Substances Act 1984 s 4(2); Controlled Substances Act 1984 S 33E ; Criminal Law Consolidation Act 1935 (SA) s 50(12); Criminal Law Consolidation Act 1935 (SA) s 63B(1)(b)(i), referred to.
R v Symons (2018) 130 SASR 503; R v Zappavigna [2015] SASCFC 8; R v K, GA [2019] SASCFC 2; R v Becirovic [2017] SASCFC 156; R v Middlin-Hannah [2020] SADC 31; Johnson v R [2018] HCA 48; Police v Kyriacou (2009) 103 SASR 24, considered.
R v HARVEY
[2021] SADC 111Introduction
Mr Harvey (‘the accused’) elected for trial by judge alone. He is charged on an Information dated 27 April 2021 with the following offences:
First Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Section 33F(a) of the Controlled Substances Act, 1984).
Particulars of Offence
Cecil James Harvey between the 1st day of October 2017 and the 31st day of December 2017 at Glenelg, supplied a controlled drug to [JL], a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cecil James Harvey between the 1st day of October 2017 and the 9th day of August 2018, at Glenelg, Noarlunga and Seaford Meadows maintained an unlawful sexual relationship with [JL], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [JL], namely:
(a) causing or inducing her to expose her body on more than one occasion;
(b) licking her vagina on more than one occasion;
(c) inserting his penis inside her mouth on more than one occasion;
(d) inserting his penis inside her vagina on more than one occasion; and
(e) inserting his penis inside her anus on one occasion.
Third Count
Statement of Offence
Aggravated Threatening to Cause Harm. (Section 19(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cecil James Harvey between the 31st day of May 2018 and the 1st day of July 2018, at Seaford Meadows, without lawful excuse, threatened to cause harm to [JL], intending to arouse a fear that the threat would be, or was likely to be, carried out, or being recklessly indifferent as to whether such a fear was aroused.
It is further alleged that Cecil James Harvey used an offensive weapon, namely ignitable liquid, when committing the offence.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 23rd day of December 2018 at Hallett Cove, had sexual intercourse with [JL], a person under the age of 17 years, by performing an act of cunnilingus upon her.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 23rd day of December 2018 at Hallett Cove, had sexual intercourse with [JL], a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Sixth Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Section 33F(a) of the Controlled Substances Act, 1984).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 23rd day of December 2018 at Hallett Cove, supplied a controlled drug to [JL], a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 23rd day of December 2018 at Hallett Cove, had sexual intercourse with [JL], a person under the age of 17 years, by inserting his penis into her vagina.
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 25th day of December 2018 at Aldinga, had sexual intercourse with [JL], a person under the age of 17 years, by performing an act of cunnilingus upon her.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 25th day of December 2018 at Aldinga, had sexual intercourse with [JL], a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Tenth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Cecil James Harvey between the 11th day of December 2018 and the 25th day of December 2018 at Aldinga, had sexual intercourse with [JL], a person under the age of 17 years, by inserting his penis into her vagina.
General directions
The prosecution has the burden of proving the offences. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of each offence beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear and not be influenced by public opinion.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’s evidence.
The complainant gave evidence with special arrangements in place. I must not allow the fact of these special arrangements to influence the weight that I give to the witness’s evidence, nor draw an adverse inference against the accused from the fact that these arrangements were in place.
The accused exercised his right to decline to give or call evidence. I do not draw any inference adverse to him, or the case he puts forward, from his exercise of that right. His silence cannot be used to fill any gaps in the prosecution case. He is not required to prove anything.
The accused was interviewed by police twice. Both the parts that help the prosecution and the parts that help the defence are evidence in this case. Insofar as the prosecution submits lies were told in those interviews, those lies are only relevant to an assessment of the credibility of other answers given in the course of those interviews. I have not and will not reason that any lie is evidence of guilt.
In the course of the interviews the accused declined to answer some questions. I draw no adverse inference against him from the fact he exercised his right to silence and declined to answer those questions. The accused also referred to the fact he was on bail as at 9 August 2018. I have no regard to that fact and draw no adverse inference against him for being on bail.
The accused suggested that JL had a motive to lie. It was said her motive was financial compensation. I remind myself that if I reject that motive that does not mean that JL is telling the truth. An absence of a motive to lie does not strengthen the Crown case. It is neutral. It would be wrong to conclude that because there is no apparent reason for her to lie, that her evidence must, on that account, be true. It is not for the accused to prove a motive for her to lie. At all times the prosecution bears the onus of proving its case beyond reasonable doubt.
The accused is charged with 10 separate counts. I may consider the whole of the evidence insofar as it indicates the relevant background, context and sequence of events however each of these counts must be considered separately and only in relation to the evidence that is admissible in respect of each.
If I refer to being satisfied in the course of these reasons I mean satisfied beyond reasonable doubt.
The elements of the offences
Each element of an offence must be proved beyond reasonable doubt by the prosecution in order to prove the offence.
Counts 1 and 6: supplying a controlled drug to a child
1.The elements of counts 1 and 6 are:
2.the accused supplied a substance to JL;
3.the substance was a controlled drug, namely methylamphetamine or amphetamine;
4.the accused knew or was reckless as to the fact the substance was a controlled drug;
5.that JL was under the age of 18 years at the time of the supply.
Supply is defined in the Act as ‘provide or distribute or offer to provide or distribute’.
Elements 1 and 2 are in dispute and no express acceptance was made as regards element 3. I will return to those elements later in these reasons. As to element 4 there is no dispute that JL was under the age of 18 years at the time of the alleged supply. It is not necessary for the prosecution to prove the accused knew JL was a child and there is no evidence the accused believed on reasonable grounds that JL was 18 years of age[1]. I am satisfied this element is proved.
[1] Section 33E Controlled Substances Act 1984.
Count 2: maintaining an unlawful sexual relationship with a child
The elements are;
1.the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
2.the accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3.the complainant was a child and under the age of 17 during the period in which the particularised unlawful sexual acts occurred;
4.the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship.
The first and fourth elements are in dispute.
There was no dispute at the trial about the second and third elements. The accused’s date of birth is 21 April 1982. He was an adult at the time of all the alleged unlawful sexual acts. JL’s date of birth is 28 November 2002. The accused was arrested on 24 December 2018 and charged with these offences. At that time the complainant was 16 years of age. At the time of all alleged unlawful sexual acts JL was therefore under the age of 17 years.
I indicate now that I am satisfied the second and third elements of the offence are established beyond reasonable doubt.
As to the fourth element, an ‘unlawful sexual act’ is defined in s 50(12) of the Criminal Law Consolidation Act. Particular (a) is alleged to be an offence contrary to s 63B(1)(b)(i) of the CLCA and particulars (b) to (e) are alleged to be acts of unlawful sexual intercourse with a person under 17 years. There is no dispute that each of the alleged acts particularised in the Information are unlawful sexual acts as defined. The issue at the trial is whether the prosecution has proved the accused committed the acts alleged in the particulars. I will not therefore outline the elements of s 63B(1)(b)(i) or the elements of unlawful sexual intercourse. I do however indicate that I am satisfied beyond reasonable doubt that the acts as alleged do each satisfy the elements of those offences and that the concession was appropriately made.[2].
[2] In particular I accept the prosecution submissions on this issue at T333-T334.
Count 3: aggravated threatening to cause harm
The elements of this count are:
1.the accused made a threat to JL;
2.the threat was a threat to cause harm to JL;
3.the accused intended to cause JL to fear that the threat would or was likely to be carried out, or was recklessly indifferent to whether JL would fear the threat;
4.there was no lawful excuse for the threat;
5.the accused used or threatened to use an offensive weapon, namely ignitable liquid, when committing the offence.
As to the first and second elements, a threat may be communicated directly or indirectly and may be made by words or conduct, or partially by words and partially by conduct. Harm is defined as ‘physical or mental harm (whether temporary or permanent)’.
Counts 4, 5, 7, 8, 9 and 10: unlawful sexual intercourse
The elements of unlawful sexual intercourse with a person under 17 years age are as follows:
1.the accused had sexual intercourse with the complainant.
2.the complainant was under 17 years at the time of the intercourse.
For the purpose of this trial, sexual intercourse relevantly includes penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object, as well as cunnilingus and fellatio. Cunnilingus does not require penetration of the labia. It is sufficient if the vagina or vulva is licked or sucked. Fellatio means the penis entering the mouth or being licked.
Again, consent is no defence to this charge. A child under 17 is incapable in law of consenting to sexual activity.
The issue in this trial is whether it has been proved beyond reasonable doubt that the alleged acts occurred, it is not whether the alleged acts satisfy the elements of the offence.
Evidential Chronology
The following chronology provides convenient reference points to the discussion that follows.
Early – Mid November 2017 – 1st visit
JL attended with her friend IN at the residence of the accused which was an apartment on the road in Glenelg with the tram line. This was the first time she met the accused. It was night time. JL was 14 years old and IN was about the same age. The accused also had some friends at the house. At this first meeting IN asked the accused if he had any ‘gear’. JL was present when this question was asked. The accused provided a substance to IN and then IN and JL went to the bathroom where they both smoked it. IN held the glass pipe in JL’s mouth and then lit it for JL while JL inhaled. It made her feel ‘energetic and happy’ (Count 1).[3] JL and IN caught an uber to the house of a friend of IN later that night.
Mid November 2017 – 2nd visit
[3] T33, T34.
Within a week of the first visit, JL returned to the accused’s apartment with IN as IN had organised for the accused to give them tattoos. JL was told there were two housemates in another room but they remained in that room and JL did not meet or see them. On the first night the accused and JL were in his bedroom. The accused started touching her and they ‘ended up’ engaging in cunnilingus, fellatio and penile-vaginal intercourse for the first time. Almost immediately after sexual intercourse with the accused, JL informed IN that she had ‘sex’ with the accused.[4] JL remained at the apartment for three or four nights and she and the accused had sexual intercourse numerous times over that period. JL smoked a drug she believed to be methylamphetamine more than once while she was there. IN did not stay at the apartment with JL for the whole period. JL believes she stayed the first night and then left but returned later. JL returned to her home where she lived with her parents. The drugs she consumed made her manic and angry and made her lose her sense of reality.
Late November 2017 – 3rd visit
[4] T41, T50.
Prior to her birthday on 28 November 2017 JL returned to the apartment by herself. She had been communicating with the accused through Snapchat. JL and the accused engaged in sexual intercourse and consumed drugs during this visit. The accused gave JL a stone elephant as a birthday present during this visit.
27 November 2017
JL turns 15 years old.
December 2017
JL again visited the accused’s apartment with a friend, AB. JL consumed drugs and had sexual intercourse with the accused while AB was in the room and sitting on the end of the bed. JL states she was under the influence of drugs as she would not have done this otherwise. AB consumed cannabis but not methylamphetamine.
Later JL and AB were already in Glenelg when JL visited the apartment to collect her sunglasses. JL believes this was in December although concedes it might have been in January.
JL discovered that the accused was in a relationship with a woman – LW when she saw something on the accused’s Facebook profile. After that occurred she did not see the accused for a couple of months, but she was not exactly sure how long she did not see him.
December 2017 – Late March 2018
Throughout this period JL did not see the accused but they communicated through social media. During this period and other periods of their relationship the accused asked JL to send nude photos of herself, which she did. The accused also sent photographs of his penis to her. JL only sent ‘nude photographs’ of herself when asked to do so. She did this ‘a lot of times’.[5] No other description of the photographs sent by JL was led in evidence.
[5] T45.
21 March 2018
The bond for the apartment on Jetty Road Glenelg was refunded to the accused.[6]
[6] Agreed Fact number 8.
Late March – Early April 2018
JL and the accused communicated through social media and arranged for JL to attend at a motel in Port Noarlunga. She caught a bus from Mount Barker then a train to Noarlunga and then a taxi to the hotel which the accused paid for. JL believed she was getting a tattoo. When she arrived another person had obtained a tattoo from the accused. When that person left JL and the accused had sexual intercourse on the bed.
The accused’s friend S arrived in a car and drove them to JL’s house.
After April 2018
JL recalls the first time she attended at the accused’s address in Anchor Road, Seaford Meadows. It was after they had been at the motel in Port Noarlunga. The accused organised for her to go to his house over Snapchat. The accused’s friend picked her up from a house in Nairne and drove her to Seaford Meadows. JL recalls the trip as the driver was travelling quite fast on the back roads and it was ‘quite scary’. This was the first time she went to this address. After arriving she slept on a couch for a while and after the accused’s friend left, the accused and JL had sexual intercourse in his bedroom and consumed drugs. She was not sure whether the drugs were consumed before or after sex. JL thinks she was there for about three days.
The accused informed JL the house belonged to LW. JL described the layout of the address. JL attended at the house regularly. When she attended at the house she consumed drugs. The drugs were provided by the accused and the accused prepared the drugs for her beforehand. The accused did not ask JL to pay for the drugs.
There was no direct evidence from JL that they had sex throughout the period that the accused was living at Anchor Road. However, her evidence that she slept at the house, that they discussed whether she was having sex with anyone else and that they discussed having children in the future would be consistent with such an allegation.
30 June – 1 July 2018
While at the Anchor Road address the accused gave a tattoo to JL on 30 June and 1 July 2018. Photographs of this tattoo were saved on JL’s phone. These photos were tendered as Exhibit P5. When asked, JL could not recall whether this tattoo occurred before or after the petrol incident. However, given the messages and her evidence that messages on 18 July related to the petrol incident and the manner in which other events unfolded I accept the tattoo occurred prior to the petrol incident.
The petrol incident – count 3
During the period the accused was residing at Anchor Road, Seaford Meadows, JL states the accused saw JL’s underwear on the couch and a message from JL to one of her friends. He then accused her of sending nude pictures to the other person. JL had been consuming drugs on that day. JL tried to sleep however the accused was playing loud music. JL became angry and punched herself in the head and walked into the kitchen. The accused then obtained a ‘Pump’ bottle from the kitchen and while both were in that room the accused tipped some of the liquid from the Pump bottle over JL’s head and hair. She said it mostly went on her top half. She could smell petrol and her skin was burning. The accused then went into the bedroom and obtained a lighter and started to walk towards her. The accused told her it was ‘rocket fuel’ at some point. JL could not recall exactly what the accused said but stated he said ‘like setting me on fire, like he was gonna – he, I can’t remember, there was something, but these questions, I don’t know’.[7] The accused was also flicking the lighter after he had put petrol on her. JL was not sure whether the acts with the lighter were before or after he said something to her. She said the bottle was about ¾ full at the beginning and about half full at the end.[8]
[7] T68.
[8] T67.
JL stated she tried to calm him down. The accused did calm down and started crying. JL then had a shower with her clothes on and eventually put her clothes in the bathroom sink. The accused asked if she wanted him to call the police and an ambulance and she told him not to. When they were in the bathroom the accused removed his pants and said ‘I’m fucked up. This is the type of stuff that makes me hard’.[9] They ended up in the bedroom but JL did not want to have sex. The accused then wanted to know whether they were still together. The accused stated that if they were not together he would contact LW and get her to bash JL. JL was scared. JL and the accused ended up having sexual intercourse including oral sex and anal sex. This was the only time she engaged in anal sex. She recalls being ‘off her head’ and the sex beginning at night time and continuing through to the morning.
[9] T71.
Notwithstanding this incident she continued her relationship with the accused because she ‘thought I loved him’.[10]
[10] T72.
July 2018
JL was ‘not sure’ when the move occurred but the accused left Anchor Road and moved to an address in Navigation Street with his friend MT. JL thought it occurred around June or July but she also confirmed that the messages around 18 July related to the petrol incident and were around the time he moved from Anchor Road into Navigation Street with MT.[11] This is, I note, consistent with the messages around that time which suggest JL and the accused had not seen each other for at least a short time.
[11] T79.
When the accused moved to Navigation Street, JL also stayed there but not permanently. She would still return to her parent’s house ‘every now and then’. She was spending more time at Navigation Street than at her parent’s house. At Navigation Street JL stayed in the accused’s room. When she lived at Navigation Street she received drugs from the accused and MT.
From a phone seized from the accused on 9 August 2018 the police extracted information as regards communications between JL and the accused on Facebook Messenger.
The call log indicated communications between JL and the accused on 17 July, 18 July, 20 July, 21 July, 28 July, 2 August, 3 August, 6 August, 7 August and 8 August. On most of those dates there were numerous communications on each day.
Police also extracted details of messages sent between JL and the accused by Messenger Chat and by text message. Files were sometimes attached to messages but they could not be accessed and JL often could not recall what they were. In date order and time those messages are as follows[12]:
July text messages
[12] I have not indicated each spelling or grammatical error. The messages are reproduced as recorded in Exhibit P6 except that the accused’s use of her name has been edited to [J].
Date Time Sender Recipient Message 18/07/2018 7:17:56 JL Accused You need to let me go 18/07/2018 7:17:58 JL Accused I deserve so much fucking more than this 18/07/2018 7:18:44 Accused JL Hey 18/07/2018 7:19:14 Accused JL You won’t me to let u go bub? :( 18/07/2018 7:22:40 Accused JL Just got pH working 20/07/2018 12:35:55 Accused JL I miss you so fucking much U are the nicest most genuine caring person I have ever meet plz [J] please don’t throw our friendship away I understand were I went wrong and I’m sorry 20/07/2018 2:22:59 Accused JL I miss you so fucking much U are the nicest most genuine caring person I have ever meet plz [J] please don’t throw our friendship away I understand were I went wrong and I’m sorry 20/07/2018 2:23:19 Accused JL My new number 20/07/2018 3:07:04 JL Accused But you broke my heart 20/07/2018 3:09:03 Accused JL Plz let me help U put it back together stronger than ever xo 20/07/2018 3:09:58 Accused JL Two files attached, one .jpg and one .xml file 20/07/2018 3:10:43 Accused JL I’m at the new hospital in city 20/07/2018 3:11:26 JL Accused Wtf why 20/07/2018 3:14:32 Accused JL I was at Noarlunga hospital last night its all to do with my cracked tooth I put up with the pain to long now the poison stuff can really fuck me up on the bright side I’m 11 days clean bub xo most ofever done I miss u so much 20/07/2018 3:20:09 JL Accused Is it ok what did they say about it? 20/07/2018 3:20:15 JL Accused Good job for being clean 20/07/2018 3:29:38 Accused JL I’m still here waiting to have like surgery or what ever and I got clean coz of U bub U were with me First 7 days 20/07/2018 3:32:16 JL Accused Im proud of u i dont really know what to say though 20/07/2018 3:43:56 JL Accused It’s not loading 20/07/2018 3:48:35 Accused JL Say we can catch up and U forgive me xo 20/07/2018 4:15:57 JL Accused I don’t know if I do 20/07/2018 4:41:08 Accused JL Plz 20/07/2018 6:25:03 Accused JL I accepted on Facebook babe it won’t let me msg U on there tho was gonna see if can catch up on weekend! 20/07/2018 6:58:42 Accused JL I’m going to bed bub I’m in so much pain X I’ll answer if U call but don’t make it to late plz 20/07/2018 7:04:47 JL Accused I’ll call you in the morning I need to think. Good night im proud of you ok. 20/07/2018 7:07:58 Accused JL Thankyou bub xo I miss u so fucking much 20/07/2018 7:22:24 JL Accused I miss you so much im so sad tho 20/07/2018 7:22:58 Accused JL [J] I’m gonna do everything possible 20/07/2018 7:23:44 Accused JL [J] I’m gonna do everything possible to make things right between us ok 2 August – 8 August 2018
JL could not recall the reason for the argument but at Navigation Street, JL and the accused were arguing. In the course of the argument the accused told JL he was going to ‘paint the room red’. He then explained this meant that he would kill JL and then himself. Shortly thereafter JL and the accused were speaking with MT. JL states MT then went to the carport and grabbed the Pump bottle which was about half full of liquid. MT then emptied the petrol onto the driveway. JL stated this was the same Pump bottle as the accused used at Anchor Road.[13] JL stated in cross -examination that she had informed MT about the petrol incident but she was not sure whether she told her straight away or later.[14]
[13] T81.
[14] This alleged prior consistent statement is only used as evidence to explain why MT would have acted as she did. I do not use it to bolster JL’s credit or reliability. Repetition does not make an allegation more likely to be true.
In light of the police locating the Pump bottle when they attend at Navigation Street on 9 August 2018, then if true, this incident must have occurred in the week preceding the police attendance as otherwise the bins would have been emptied. This is consistent with JL’s evidence that this incident occurred within a week of her contacting police.
JL stated the accused was asked to leave the premises by MT when MT was told about JL’s age. The accused moved from his bedroom into the carport for a few days. She was unable to be any more precise as to the time frame. The accused then left the house altogether and it was after he left that she spoke to police. She spoke to police on 8 August 2018.
JL stated that the following messages located on the accused’s phone were in response to the accused being asked to leave the house.[15] Her evidence was not however clear as to whether this included the messages on 2 August or whether it related to only messages around 7 August.
August Facebook Messenger messages
[15] T87.
Date Time Sender Recipient Message 02/08/2018 6:06:21 Accused JL [J] missed a call from you.[16] 02/08/2018 11:33:42 JL Accused I fucking hope youre ok. 02/08/2018 1:38:47 JL Accused I don’t know what you’re doing but it’s hurting everyone. I was looking at you last night and can tell this isn’t you, you’re in there somewhere Cecil – but you’re loosing yourself. I’m the one that caused all do this, I did not mean too – just please don’t take this out on anyone else but me. They don’t deserve this, they were only trying to help me. If you truely love me like you say you do – you would listen to me. I’m begging you just please stay away from them, this is my fault. Please don’t blame anyone else. 03/08/2018 8:08:37 Accused JL Take care [J] it’s your sisters 18th bday tomorrow plz go home for it” trust me U will never forgive yourself if you don’t be with her on this day family is everything take that from someone who doesn’t get to see his’ peace out ouga bouga 05/08/2018 7:41:05 JL Accused :/// (emoji sent by JL to represent an ‘unsure face’.)[17] 05/08/2018 7:44:22 JL Accused Text with 6 files attached 05/08/2018 8:00:20 Accused JL Xo 06/08/2018 2:04:45 Accused JL [J] missed a call from you. 06/08/2018 6:12:11 Accused JL Yo 06/08/2018 6:20:27 Accused JL Text with one file attached 06/08/2018 6:24:02 Accused JL Text with 6 files attached 06/08/2018 7:37:33 Accused JL [J] 07/08/2018 12:38:32 Accused JL . 07/08/2018 12:46:30 Accused JL Text with 6 files attached 07/08/2018 1:41:08 Accused JL Can we chat on here jen-merrr 07/08/2018 2:06:49 Accused JL The phone 07/08/2018 2:07:07 Accused JL I’m confused was I ment to take it 07/08/2018 2:07:23 Accused JL Why U and Mel being wierd towards me 07/08/2018 2:08:36 Accused JL [J] missed a call from you. 08/08/2018 12:45:28 Accused JL Oi 08/08/2018 1:59:07 Accused JL You called [J]. 08/08/2018 1:59:46 Accused JL Text with two files attached 08/08/2018 2:12:57 JL Accused Time to stay away from me I reckon 08/08/2018 2:13:50 JL Accused Believe it or not – you’re the only one causing me any sort of issues lately 08/08/2018 2:14:39 Accused JL [J] missed a call from you. 08/08/2018 2:15:50 Accused JL [J] U believe that 08/08/2018 2:16:07 JL Accused I honestly do 08/08/2018 2:16:37 JL Accused Just stay away from me 08/08/2018 2:16:56 Accused JL [J] are the people around you your team mates are they Ur long life friends 08/08/2018 2:17:33 Accused JL Call me if need to speak 08/08/2018 2:17:45 JL Accused I don’t want to speak to u 08/08/2018 2:17:50 Accused JL Don’t txt plz 08/08/2018 2:17:58 JL Accused Cecil we’re over 08/08/2018 2:18:05 JL Accused Move on 08/08/2018 2:21:03 Accused JL You called [J]. 08/08/2018 2:21:43 JL Accused Stay away from me 08/08/2018 2:22:34 JL Accused Move the fuck on 08/08/2018 2:22:53 JL Accused I’m fifteen for fucks sake Cecil get that thru you’re fucken head 08/08/2018 2:24:52 JL Accused And leave me alone 08/08/2018 2:29:49 Accused JL [J] get the fuck away from Mel and Shane 08/08/2018 2:48:31 JL Accused I will if you leave me and Mel both the fuck alone 08/08/2018 3:37:11 Accused JL [J] we talk that’s it I do not trust any of u 08/08/2018 3:50:31 JL Accused Huh 08/08/2018 4:14:08 Accused JL [J] missed a call from you. 09/08/2018 10:15:52 Accused JL I hope Ur well Missy x [16] T86 – when a user makes a call that is not answered this message indicates the call was missed by the other party.
[17] T86.
8 August 2018
JL gives her first statement to police.
9 August 2018
Police attended at Navigation Street and located a Pump bottle in a bin.[18] The police officer removed the lid and could smell ‘a fuel type smell’.[19] Whilst there was some criticism as to the order in which the detective may have moved the bottle or whether he smelt inside the bottle I do not consider anything turns on this apparent discrepancy in the detective’s evidence. The bottle was subsequently tested by Forensic Science South Australia.[20] Testing indicated that both methylated spirits and petrol had been present in the bottle although there was a higher volume of methylated spirits than petrol. It was not possible to determine whether both were in the bottle at the same time or whether the bottle contained one substance and after it was removed the other substance.
[18] T211.
[19] T212.
[20] Evidence of Michael Cook, T223.
Police further located a letter addressed to the accused at the Navigation Street address.[21]
[21] The presence of a letter addressed to the accused at this address is circumstantial evidence of his association with that address. See R v Becirovic [2017] SASCFC 156.
JL stated earlier in her evidence that the accused would often wear a penis ring during sexual intercourse. JL stated he had a few of them – ‘five, over five’. She said the rings looked the same but they were all different and they were made out of stretchy rubber. Some were different colours and some were the same.[22] She said they were ‘commonly used’ but there was no evidence as to which specific occasions he wore one or the last time he wore one with JL prior to his arrest.
[22] T43.
On this day the accused was arrested and his phone was seized. When interviewed the accused agreed that he had been living at both Anchor Road and Navigation Street.
Police located the accused at 2 Kurandah Street O’Sullivan Beach in a shed. The accused was sitting on a couch when located. Inside the shed a sports bag was also located. The bag contained a wallet with the accused’s birth certificate in it and a number of penis rings. No one else was in the shed when the accused was located.
Those penis rings were swabbed and the swabs were subjected to DNA analysis. The statistical weighting in favour of the accused being one of the contributors to rings 3, 4 and 5 was in each case greater than 100 billion in favour of the accused being a contributor. The DNA analysis did not exclude JL as a contributor in relation to ring 2 and ring 3. I note however that the statistical weighting was relatively low in favour of JL being a contributor to the DNA located on those rings.[23] I consider the statistical weighting is sufficiently low that all that can be said is the evidence is not inconsistent with her account that penis rings were used in the course of their sexual intercourse. I do not however consider the DNA evidence provides any positive support for her evidence in that regard and I therefore consider the evidence has limited weight.[24]
[23] See table tendered as Exhibits P21 and P22 and the evidence of Emma Koch.
[24] I further note that DNA analysis indicated a statistical weighting in favour of JL not being a contributor in relation to ring 4 and ring 5. Given JL does not indicate which of the rings were used or whether there were different rings used on each occasion, this result does not, I consider, undermine her evidence.
The forensic scientist, Ms Koch, gave evidence that the rings appeared used and a number had hairs on them. I agree with the prosecution submission that it is highly unlikely that anyone other than the owner and user of those rings would choose to keep them in his bag. In light of the bag containing the accused’s birth certificate and the bag being in a shed in which only the accused was located and in light of the used appearance of the rings, I am satisfied beyond reasonable doubt that those rings were used by the accused in the course of sexual activity with other people.[25]
[25] I further note that ring 2 was found to have five contributors and rings 3, 4 and 5 all had 4 contributors. The profile was too complex for analysis as regard the swab taken from ring 1. These results are also consistent with the owner of the rings using them for the purpose for which they were intended.
The accused was remanded into custody on this day.
August – September 2018
JL continued to reside at Navigation Street for a time but believes she moved in September to 3 Kurandah Street in O’Sullivan Beach. JL continued to use drugs at this address.
27 November 2018
JL turns 16.
December 2018
The accused is released from custody on 13 December.
JL agreed she attended at a police station on or around 14 December. She agreed she informed police that everything she had said in her 8 August statement was a lie and she signed a charge discontinuance form. She said she did so because three men had attended at a house at which she was staying at Hove. Those men had bashed her friend with a steel baseball bat and a police baton and had told her that she had to drop the charges.
An intervention order was in place preventing contact between them but JL started messaging the accused on Facebook using a different profile and then by using a fake profile.[26]
[26] T90. Prior to this contact the accused had coincidentally visited her house at 3 Kurandah Street to pick up his tattoo equipment but JL stated they did not speak and the accused did not have any friends at number 3. The defence submitted this aspect of her account was implausible. I note however that she was living at number 3 and the accused was living at number 2 and had been at this house in August when arrested. That he would know the people at number 3 without necessarily being friends with them is not in my view implausible.
JL described her life in December as ‘a mess’ she was badly addicted to methylamphetamine and making ‘really bad decisions’. At that point she did not feel that she had anyone in her life that she could talk to.
JL believes it was before Christmas and about a week after the accused was released that they met at a McDonalds in Hallett Cove. The accused took JL to a house in Hallett Cove which he said belonged to his friend’s grandmother. They spoke about their relationship. JL said she wanted to be friends but the accused became upset. They then engaged in sexual intercourse and they used drugs. The incident at Hallett Cove encompasses counts 4, 5, 6 and 7. JL referred to an act of fellatio and penile-vaginal intercourse. She did not however refer to an act of cunnilingus which is the subject of count 4. The evidence of the acts the subject of count 6, supplying a controlled drug, was that she and the accused used ‘meth’ by snorting it, that she could not recall when it occurred as regards the other events of the day and that the drug was brought to the house by the accused.[27]
[27] T96.
Toward the end of December but before Christmas, JL stayed with her mother at Aldinga for a short time but then returned to visit the house at 3 Kurandah Street. When she arrived the accused was present and he informed JL she could not stay at that house. He was ‘stern’ but not ‘angry’. JL left the house with the accused and caught a taxi to JL’s mother’s house at Aldinga. She was wearing one of the accused’s hoodies. She described his behaviour as weird. At the house JL expressed reluctance to have sex but the accused became upset and was crying. They then engaged in fellatio and penile-vaginal sexual intercourse. JL gave no evidence as to an act of cunnilingus which was the subject of count 8. The accused left when a friend picked him up. JL could not recall where she went.
Christmas Eve 2018
JL was at the 3 Kurandah Street address when the accused arrived.[28] JL attempted to hide but the accused found her in the cubby house of the property. The accused told her she could not return to the property. From the cubby house JL saw the accused go back inside the Kurandah Street house and start ‘smashing the house up, like TVs, like, throwing drawers at walls’. JL then went inside whilst the accused was ‘smashing the house up’ and went into a bedroom. The accused followed JL into the bedroom, picked up a bedside drawer table and threw it at the wall, about 30-40cm away from JL’s head. A mirror sliding door of the wardrobe also shattered. JL described the lounge room and the second bedroom as a mess, two televisions were shattered, one had a crack in it and the stand of the other was broken.[29]
[28] T101.
[29] T169, T146.
JL then left the house with a friend and called police. This was the last time she saw the accused.
Two police officers attended at the address at 5.40pm on Christmas Eve 2018.[30] On arrival at the address, police saw two males present. They both appeared drug or alcohol affected. Police then entered the house and observed the lounge room to be disturbed, with items strewn around, a glass display cabinet that appeared to have had glass items on it that had been tipped over and those glass items were smashed on the floor. Police observed the state of the bedrooms to be messy and unkempt. Senior Constable Rees could not recall any observations about TV’s in the house, or four TV’s being smashed, or any of the walls.
[30] T237.
28 January 2019
The accused is arrested and interviewed.
31 January 2019
JL gives a further statement.
13 May 2019
JL gives a further statement.
12 July 2019
JL gives a further statement.
22 January 2020
JL gives a further statement. On the occasion of taking the statement on 22 January 2020, JL stated in evidence that ‘when I was asked about cock rings then I mentioned yes we used cock rings numerous times’.[31] The detective could not recall if she told JL that rings had been located by police and she gave no evidence as to how she elicited the information from JL, as to the penis rings.
[31] T160.
JL further agreed she had been shown a photo of the five penis rings a few days before she gave evidence. It is an agreed fact that the photo shown to her is the photo in Exhibit P20.
23 April 2021
JL gives a further statement.
Discreditable conduct and cross-admissibility of counts
There was no dispute that the counts were cross-admissible and there was no objection to the admissibility of any of the discreditable conduct. The discreditable conduct and the evidence of acts the subject of a count which are cross-admissible may be separated into five categories.
1.the accused’s drug use;
2.acts of supply of drugs by the accused to JL and IN;
3.uncharged sexual acts;
4.acts of aggression;
5.messages.
Permissible uses
The accused’s drug use
The evidence of the accused’s drug use over the period of their relationship including the text message from which his drug use can be inferred is admissible to show the accused was familiar with drugs and in particular the drug he was providing to JL. This evidence was therefore relevant to whether the accused knew any substance he supplied to JL was a controlled drug or was at least reckless as to that fact.
JL’s account was that they would both consume drugs and that this was very much a part of their relationship and the drug use was frequently accompanied by acts of sexual intercourse. JL’s evidence was also that she was frequently supplied drugs whenever the accused was using drugs. It was therefore necessary to hear this evidence to properly assess her evidence as regards their relationship, the alleged offences, that she was under the influence of drugs during many of the charged incidents and that on occasion they stayed up all night engaging in sexual intercourse. It was also relevant to an assessment of her account as to her familiarity with the drug and her addiction given both were closely associated with the number of times the accused was using drugs.
Acts of supply of drugs by the accused to JL and IN
The accused’s alleged supply of drugs to JL and IN was relevant as it comprised the acts the subject of count 1. That act and the allegation as to multiple subsequent occasions of supply are relevant, on the prosecution case, in the manner I have described under the heading of ‘the accused’s drug use’ as to assessing her account. His use and the supply to JL are obviously connected.
His supply is potentially relevant to the extent of her use. Her use is potentially relevant to her reliability, to explain some of her behaviour whilst under the influence of drugs, to explain why she made certain decisions when her life was ‘messed up’ and to explain her inability to remember every detail of every incident.
Her familiarity with the drug and the existence of this understanding between the accused and JL as to her use of his drugs, is also relevant to an assessment of the acts which comprise count 6.
Uncharged and charged sexual acts
The uncharged act of sending photographs of his penis to JL by electronic communication is said to indicate that the accused intended that JL would respond by sending him intimate photographs of herself in response to his photographs. These acts are therefore to be used when assessing whether the accused was ‘acting for a prurient purpose’ and whether his request for ‘nude photographs’ in combination with the photos he sent caused or induced JL to expose a part of her body so that it could be photographed by her and sent to him. That the accused sent photographs of his penis also potentially informed the meaning of JL’s evidence that she sent ‘nude photographs’.
The charged acts alleged between November 2017 and August 2018 are relevant to the alleged subsequent offences committed at Hallett Cove and Aldinga, as those earlier acts potentially explain why JL would accompany the accused to Hallett Cove and Aldinga and have sex with him, notwithstanding she was reluctant to do so. The earlier acts are also relevant as without them, JL’s account of their subsequent interactions would not make sense.
The charged and uncharged acts were also led to explain why JL may not recall every aspect of every incident.
Acts of aggression
This evidence comprises the events surrounding the ‘petrol incident’ (as a result of the accused believing JL had sent a nude photograph of herself to another person), the accused’s statement to her that he would get LW to bash JL if JL and the accused were not still together, the accused’s comment to JL to the effect he would ‘paint the room red’ when indicating he would kill her and then himself and the property damage done to the house at 3 Kurandah Street on Christmas Eve 2018.
These acts were relevant in a number of ways on the prosecution case. Firstly, it was said they may explain why JL agreed to or acquiesced in sexual intercourse after the accused had acted in the way alleged. I pause here to indicate that in the absence of any evidence from JL that fear was a contributing factor to her decisions to engage in sexual intercourse, I do not use the evidence for this purpose.
Secondly, the petrol incident and the threat to ask JW to bash JL were integral parts of the same narrative which then led to acts of sexual intercourse which are relied on to prove count 2. In the course of an ongoing relationship involving numerous acts of sexual intercourse, these alleged acts by the accused were relevant to an assessment of the whole JL’s account as to that incident. These acts may explain why she was able to recall the acts of sexual intercourse which followed as the circumstances in which they occurred had the potential to be more memorable. It is further potentially relevant to the environment in which JL agreed to engage in anal sex – an act she had not previously wanted to engage in.
Thirdly, the ‘paint the room red’ incident was relevant to the petrol incident as it explained why the same Pump bottle found its way into a bin and why police were able to locate it at Navigation Street.
Fourthly, this evidence of these acts was relevant to an assessment of JL’s account because any one incident in isolation may have suggested a gross exaggeration on the part of JL as regards the accused’s behaviour. If evidence of only one incident was led it may have suggested her account of that incident was implausible as such an over-reaction may appear unbelievable.[32] JL’s account was to the effect these acts were committed in circumstances in which this possessiveness may be inferred to be the motivating factor behind some of the accused’s behaviour.[33] I note also that her account included the accused becoming upset when JL indicated she wanted the relationship to end or that she did not want to have sex. The entirety of the evidence was therefore necessary to properly assess her account that this was a relationship punctuated by acts of possessiveness and frustration by the accused.
[32] Johnson v R [2018] HCA 48, [54-55].
[33] T336 of Prosecution closing address.
This evidence of discreditable conduct and the circumstances in which it was allegedly committed originate from the evidence of JL and are directed at an assessment of her evidence. I do not therefore consider the uses I have identified rely on tendency or propensity for its probative value.
I am however mindful of the possibility of contrary views particularly in light of the evidence of JL disclosing the accused’s possessiveness towards her and a tendency to act out on occasion. I note the messages are said to support aspects of JL’s account and are led for that purpose. The messages are said to indicate the existence of a relationship between the accused and JL which is not of a kind one would expect between a 15-year-old girl and a 38-year-old male. If the purpose or use of the discreditable conduct evidence as to the acts of aggression is to prove that the accused’s interest in the complainant was sexual rather than platonic then such an interest may rely on tendency for its probative value. I refer to the reasoning in R v Zappavigna.[34]
[34] [2015] SASCFC 8, [41]-[44].
If the use of this evidence in this way does rely on tendency, I indicate I am nonetheless satisfied that both the tests in ss 34P(2)(a) and (b) of the Evidence Act 1929 are satisfied and that I am able to keep the permissible uses separate and distinct from the impermissible uses such as to remove any appreciable risk of the evidence being used impermissibly.
The prosecution did not purport to rely on tendency reasoning however if this use does in fact rely on tendency I do not consider any unfairness arises to the accused as its use by me will be confined to assessing the consistency and plausibility of her account. It will not be used to reason he had a particular propensity and to reason from that fact that JL was truthful and reliable.
Messages
The messages were said to be evidence of the existence of a relationship in the period charged as regards count 2. This is therefore not discreditable conduct in relation to count 2. The messages are however also potentially relevant to:
(i)the existence of a sexual relationship during that period;
(ii)the existence of a sexual relationship after the timeframe in which count 2 is said to have occurred;
(iii)whether something significant occurred in July, such as the petrol incident, which then caused the accused to apologise for his behaviour;
(iv)the use of drugs by the accused;
(v)whether something happened in August when the tone and nature of the messages changes.
The prosecution submitted that the text messages were not discreditable conduct and relied on the decision in R v K, GA.[35] Whilst the messages are said to reveal the nature of their relationship those messages may also be said to show a willingness to express a sexual interest and a willingness to send what may be described as inappropriate messages to a 15-year-old girl. I note the court in R v K, GA did not consider letters sent by an accused to be subject to s 34P of the Evidence Act 1929 however the court nonetheless indicated the possibility of a contrary view and indicated that the letters would have met the test for admissibility in any event.
[35] [2019] SASCFC 2.
The warnings that I give myself therefore also relate to the use of these messages.
Impermissible uses
If I am satisfied any of these acts occurred I direct myself that I may not reason in any of the following ways:
1.I must not reason that because the accused has engaged in criminal activity or bad behaviour on one occasion, that he is a person of bad character and that therefore he is more likely to have behaved inappropriately or committed crimes on other occasions. Similarly, I cannot reason that he is a person of bad character and therefore more likely to have committed any of the charged offences because he is the sort of person who behaves badly.
2.I must not reason that the accused was threatening or aggressive on one occasion and therefore he is a violent person and therefore more likely to have been violent on another occasion.
3.Similarly, as regards supplying drugs I must not reason that he has supplied drugs on one occasion therefore it is more likely that he supplied drugs on another occasion- whether to the same person or a different person. This same reasoning applies to any and all of the discreditable acts to which I have referred, including the sending of inappropriate messages to a 15 year old girl.
4.I also must not allow the evidence of both the charged and uncharged acts to distract me from the need to consider whether the prosecution has proved each individual charge beyond reasonable doubt. I must not reason that simply because the accused has committed one criminal act he must have committed the charged act. I must consider each offence on its merits.
Discussion
Count 4 and 8
Count 4 relates to an allegation of cunnilingus said to have occurred at a Hallett Cove address at the same time as the acts the subject of counts 5, 6 and 7 occurred. JL did not make any reference to an act of cunnilingus in the course of her evidence and in particular in the course of describing the sexual acts which occurred at the Hallett Cove address. I therefore find the accused not guilty of count 4.
Count 8 also relates to an allegation of cunnilingus said to have occurred at an Aldinga address at the same time as the acts the subject of counts 9 and 10. In the course of her evidence JL made no reference to an act of cunnilingus at this address. I therefore find the accused not guilty of count 8.
In the course of my deliberations I have had regard to the fact JL omitted any reference to these acts in the course of her evidence. In the absence of cross-examination as to a prior inconsistent statement I doubt it is fair to a witness to take it into account without giving the witness an opportunity to explain it. I further doubt that taking into account this omission is consistent with the notion that the crown opening is not evidence. However, as there is some conflict in the authorities I have taken it into account when considering her credibility and reliability.
Assessment of JL’s credibility and reliability
I found JL to be an impressive witness. The manner in which she gave her evidence was thoughtful, careful and quite matter of fact. She appeared genuine when she spoke of being in love with the accused and at no time did I form the impression she was exaggerating or doing other than attempting to recall the events accurately. When she admitted to lying to police and her mother she did so without hesitation.
She was visibly shaken when recounting the events surrounding petrol being poured on her. During cross-examination she also became frustrated at one point. At no point during her evidence did I form the impression however that her reactions or presentation were contrived or other than genuine. I formed the distinct impression that she attempted to maintain her composure when recounting the incident involving the petrol but that she was simply unable to do so.
There was nothing about her demeanour in the course of examination in chief or cross-examination which caused me any concern about her credibility or reliability. To the contrary I found her presentation to be highly convincing and genuine.
It is however vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by the accused in the course of the trial and whether there is support for her evidence.
I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of JL’s evidence. However, in light of the significance of her evidence to the prosecution case and the interrelationship between her evidence as to a sexual relationship, mutual drug use, acts of aggression and the circumstances in which she interacted with the accused, a doubt about one aspect of her reliability or credibility as regards one topic would clearly be an important consideration as regards the other topics.
The defence case
The defence case is that the prosecution has not proved beyond reasonable doubt the credibility and/or reliability of JL in relation to her account of each charged offence. It is submitted the absence of a greater amount of JL’s DNA on the penis rings is possibly exculpatory of the accused. It is submitted her admitted lies to police, the omissions from her statements and the prior inconsistent statements are significant. It is submitted aspects of her account are implausible and that financial reward is an obvious motive for her to lie. It is further submitted that those considerations in combination with an inadequate investigation and that a number of witnesses refused to provide a statement means the prosecution has not met its onus of proof.
The forensic scientist, Ms Koch gave evidence that the vagina is a rich source of DNA. Ms Koch stated there was moderate support for JL being a contributor to two of the penis rings however this result is close to being neutral. As regards the rings Ms Koch also identified the proportion of DNA left by the main contributor and the proportions left by the other contributors. The profiles consistent with JL were in each case less than 12% and as low as 1.42%. It was submitted that if these rings had been used as indicated by JL more of her DNA would have been located. I reject this submission. Ms Koch agreed that repeated contact with the vagina would increase the likelihood of DNA being left but indicated there are however a ‘lot of variables’.[36] I also note that there was no evidence from JL as to the last occasion on which such a ring was used prior to the accused’s arrest on 9 August 2018 when the rings were seized. Ms Koch stated that DNA will be lost over time. The absence of some precision as to the last time these rings were used by JL and the accused undermines the defence submission. I further note that each ring had DNA from multiple contributors. The proportion of DNA left by those other contributors was also around 10% and less. There is also no evidence as to whether any or all of the rings had been used by the accused with another person after having used it with JL. Contact between the rings and other people or objects, whether in the course of sexual acts or not, would then be a further reason why a more complete profile of JL’s DNA was not located on the rings.
[36] T306.
I do not consider the evidence as to the DNA located on the penis rings undermines JL’s evidence in any way. It is not inconsistent with her evidence but that is all. I do not place any further weight on the evidence which indicates moderate support for JL being one of the contributors to profiles on two of the rings. In light of the evidence of Ms Koch, I accept that the statistical weighting is in effect too low for this evidence to be used as positive support for JL’s evidence.
I was asked to take into account that there was no witness corroborating JL even though a number of people were contacted by police. JL’s mother, IN, AB, and MT were not called to give evidence. As to each witness, evidence was led that each of them had declined to provide a statement to police. This was not disputed. It was submitted that these witnesses were people who would be expected to be in JL’s ‘camp’. It was submitted that I should therefore infer from their refusal to give a statement that the witness either disbelieved JL or would not have said anything in support of her.[37]
[37] T381-T384.
I do not consider it is appropriate to speculate as to why those witnesses declined to give a statement. There are simply too many variables and unknowns to draw such inferences. Not only is it unknown whether those witnesses knew what JL had said, there is no evidence as to the state of the relationship between JL and any of those witnesses at the time the statement was requested. There is also no evidence of the personal circumstances of those witnesses and whether each may have their own reason for declining to give a statement.[38]
[38] I note the use of drugs and the possibility drugs were supplied by MT are but two possible explanations for the reluctance of some of those witnesses.
I do however consider these witnesses were potentially material witnesses. JL’s mother could have given evidence as to whether JL was absent from their home for days at a time, whether she appeared to be under the influence of drugs and whether she did in fact meet the accused. MT could have given evidence as to whether JL stayed in the accused’s bedroom at Navigation Street and the discarding of the Pump bottle. IN could have given evidence as to any meeting, the events surrounding count 1, whether JL stayed overnight with the accused at their second meeting and the initial complaint. AB could have given evidence as to whether she was present in the room when JL and the accused had sexual intercourse. These witnesses were therefore clearly material.
I note a failure to obtain a statement from a witness may not necessarily be a satisfactory explanation for not calling a witness.[39] There was however no application by the accused for the prosecution to call these witnesses and I was not requested to enquire as to the reasons for the witnesses not being called. [40]
[39] Police v Kyriacou (2009) 103 SASR 243.
[40] Reference was also made to LW and J not being called.
I was also not asked to infer from the failure to call those witnesses at the trial that each witness would not have assisted the prosecution. In the absence of any request by the accused that those witnesses be called and given the evidence at the trial I do not consider it would be appropriate to draw that inference. It requires speculation as to what those witnesses would have said and it is not consistent with either the evidence at the trial or the manner in which the accused conducted the trial.
However, I do consider that their absence is relevant to whether the prosecution has proved its case beyond reasonable doubt. When there are unknowns, such unknowns may be relevant to whether the trier of fact has a doubt. I further consider that whilst this would not normally be a case in which it is necessary to find some support for the complainant’s evidence before accepting it, I consider the absence of those witnesses does have that consequence in this matter. I consider such an approach is also consistent with the requirement the accused receive a fair trial. I will therefore consider whether there is support for the more significant aspects of her evidence. Those aspects are that they were in a sexual relationship, that the relationship involved the use of drugs and that the accused threatened JL by pouring an ignitable liquid on her. I will also take into account the absence of those witnesses when considering whether the prosecution has proved its case beyond reasonable doubt as regards each count.
The adequacy of the investigation was also criticised.
First, there was no investigation of information received to the effect that the complainant was interested in victims of crime compensation. Second, there was evidence that JL wore a hoodie of the accused in December 2018, but police did not seize any of the accused’s clothes to enable DNA testing for the presence of JL’s DNA. This, it was said, would have confirmed that JL and the accused reunited as she alleged after his release from custody. Third, the police did not attend at the Anchor Road address to investigate whether any petrol could be located on carpet within the house to support JL’s account of what occurred.
As to the first, I note that JL was not asked whether she had put in a claim. She denied that she had any financial motive and she was not then asked whether or not she had made such a claim. Whilst I consider further investigation of that information should have been undertaken, there is no evidence that the information was from a reliable or accurate source or that JL has acted in a manner consistent with such a motive.
I note the incident as regards the pouring of petrol over JL occurred in the kitchen of the Anchor Road premises and JL gave evidence the petrol went on the floor and was later wiped up. The photographs in Exhibit P4 indicate the kitchen area is tiled. She agreed she walked into the bedroom but there is no evidence any petrol went on the floor. The failure to attend at the address for that purpose does not, on its face, appear to have resulted in any unfairness to the accused or the loss of potentially relevant information.
I take into account that clothes were not seized from the accused upon his arrest and tested for JL’s DNA however I consider the relevance of this failure is minimal. The accused was not arrested until late January and DNA may be lost over time – particularly if clothes are worn or washed. Testing which showed an absence of her DNA would not therefore have been particularly significant. Alternatively, DNA can also be retained on an item and therefore the presence of her DNA may be equally consistent with their contact prior to August 2018 or through later secondary transference from an item touched earlier by JL. In any event I take into account this is a further unknown when considering whether the prosecution has proved its case.
As to the evidence of JL, it was submitted her lack of specificity may be a consequence of her drug use but it may also equally be explainable on the basis she was simply lying. I indicate now I do not consider her evidence was lacking in specificity to any significant degree but I will return to this later.
JL gave evidence that during her second visit there were two housemates in the accused’s apartment at Glenelg and they remained in a room so she did not meet them. This was said to be inconsistent with the agreed fact that the apartment only had one bedroom. I was then asked to infer that she had not been to the apartment and was lying about that.
I put to one side that it was not put to JL that she had never been to the apartment. I accept that counsel did not consider that needed to be done and I therefore ignore that fact. I also put to one side that JL gave evidence that she had photos from the first night that IN and she went to the accused’s apartment[41] and she was not challenged about that evidence and nor was she asked to produce those photographs. In light of there being no explanation by the prosecution as to why those photographs were not led I also place no weight on her evidence as to the existence of those photographs.[42] I do, however, note that there is no evidence of the layout of the apartment or what other rooms existed. That there was only one bedroom does not preclude a dining room, for example, being used as a bedroom for a short time. JL’s evidence is that she did not see or meet those people. There was no evidence those people were staying at the apartment for a long period of time and in fact she did not suggest those people were there every time she visited. Her reference to other people staying in the apartment on that one occasion in circumstances in which there was only one bedroom does not, in my view, undermine her reliability or credibility or her evidence that she attended at the apartment.
[41] T35.
[42] JL referred throughout her evidence to having a record of certain events on her phone including photos. This included her second visit to the apartment with IN and her time at Anchor Road. She also stated she had shown police these photos.
A significant aspect of the defence case was her admitted lies and the prior inconsistent statements.
The first inconsistency and lie arises out of her statement on 8 August 2018 wherein she said ‘I have been in an on and off relationship with Cecil James Harvey for about 12 months. For the last five months we have been together I have only spent about 10 days during this time with Cecil.’ Her evidence was obviously that she spent far longer than 10 days with the accused over the previous 12 months. Before considering her explanation I further note she agreed that in this statement she also omitted to make any reference to her attendances at the Glenelg apartment.
Her explanation was to the effect she was ‘hysterical’ prior to going into the police station. She said that whilst she made her own decision to give the statement it came about as a result of MT learning about JL’s true age and telling JL that she should go to the police. She said that she was in love with the accused and therefore conflicted about getting him into trouble.
It may be thought to be inconsistent that she gave a statement implicating the accused in at least some wrongdoing when she also lied about the number of times she spent with him because did not want him to get into trouble. However, I found her explanation to be convincing. The person she was living with, MT, was suggesting to her that the situation was ‘wrong’ and she had also recently been the victim of the petrol incident which I infer was one of the topics she attended to speak with police about. She was however 15 years old, in love with the accused and in the throws of a drug addiction. That she would want to protect the accused at least to some degree is entirely plausible. I do not consider this lie undermines her credibility. In fact I consider her explanation to be internally consistent with other aspects of her account including that she sought him out after he was released from custody. As to the omission as to what occurred at the Glenelg apartment her explanation is also relevant to that omission as is the absence of any evidence as to the nature of the questions asked by police at that time.
The next inconsistency arises from JL’s evidence that three men attended at a house at which she was staying in Hove. She gave evidence that they bashed her friend, J, with a steel baseball bat and a police baton when telling her that she had to drop the charges against the accused. This, said JL, was the reason she attended at the police station on or around 14 December when she signed the discontinuance form and informed police that everything she had said in the 8 August statement was a lie.
I pause here to make clear that I draw no inference adverse to the accused in relation to this alleged incident. There is no evidence or suggestion that such an event was encouraged or assisted or even known by the accused. Its only relevance is as an explanation for JL attending at the police station to inform police that her statement on 8 August 2018 was a lie and that the charges should therefore be discontinued.
The accused submitted that the absence of any reference to the incident where she was threatened in her next statement dated 31 January 2019 was an important omission.
The police officer who took the statement accepted that she must have known that the discontinuance notice had been retracted because she took a statement on 31 January from JL as to alleged offending. The police officer said she ‘would have asked’ JL about the discontinuance being retracted and she ‘would have’ included any reason for it in the statement if something was said. The officer did not however have a specific recollection of what was said or asked.
I am satisfied JL did in fact say something to police about why she had lied at some point prior to the taking of this statement. It makes no sense that police would have simply taken a new statement from her without enquiring about the discontinuance notice and why she was retracting it. Whatever she had earlier said was not however put into the statement on 31 January 2019. I do not consider there was an omission on the part of JL and I accept JL’s explanation for its absence in that statement being that she was not asked about it at that time.[43]
[43] T147.
It was next submitted that the reference in the statement taken on 13 May 2019 that JL lied in the ‘no police action’ form because she was ‘getting pressure from friends of Cecil to drop the matter’ was inconsistent with her evidence. It was submitted that the reference to ‘pressure’ could not have been a reference to something as significant as her friend being assaulted with weapons. It was submitted this inconsistency evidenced her willingness to either lie or exaggerate.
Next it was submitted the absence of any reference to an assault in the statement on 12 July 2019, the absence of any reference to the use of a police baton in the statement on 23 January 2020 and the absence of any reference to her friend’s name until 23 April 2021 indicated that this story simply developed over time.
I consider the failure to refer to the police baton when she did refer in her statement to the use of baseball bats is a relevant matter as regards her reliability. I do not however consider any of the other criticisms have merit and nor do I consider that they undermine her credibility or reliability. The amount of detail a witness will give necessarily depends on the personality, age and circumstances of that witness and importantly, the questions they are asked and the main focus of the statement being taken. There was little evidence as to the questions and the focus of each statement however I consider it is frequently the case that details emerge over time as statements are taken with a different emphasis on particular topics. I also do not consider the use of the word ‘pressure’ to describe the events at Hove to be inconsistent with her evidence or an unreasonable descriptor to use.
The defence case was that the absence of any reference to the accused using penis rings in her statements dated 8 August 2018, 31 January 2019 and 13 May 2019 were also important omissions. JL agreed that she had been asked about the use of condoms and about various sexual positions in the course of those statements. JL stated that whilst she was asked about having sex she did not know that they wanted every little detail. Bearing in mind her age and the nature of what she was being asked I consider this response was entirely understandable. When asked direct questions about the use of condoms or positions she said she informed them about those topics but in the course of doing so she did not think to mention the penis rings. That she was asked to provide details of the acts of sexual intercourse in which she engaged would not necessarily give rise to that information being disclosed. Ultimately, she stated that when directly asked on 22 January 2020 about the use of such rings she informed police that the accused had used them. Again, for the reasons I have outlined above I do not consider these omissions to be of any significance notwithstanding she agreed he commonly used these rings. I accept her explanation for not having referred to his use of these penis rings. Her explanation is entirely plausible and in fact the frequency with which the accused used them may explain why JL did not think to mention them. His use of these rings was not out of the ordinary or such as to cause JL to think to refer to it until she was directly asked about them.
JL freely admitted that she lied to her parents as to who she was with and where she was going. She further admitted that she lied to police in her statement on 8 August 2018 as to the extent of her relationship with the accused and that she lied to police when she signed a form to discontinue the charges. In that form she had stated that she lied to police on 8 August 2018 as to the events described therein. Whilst I consider her explanation for these lies are plausible, I bear in mind that she has nonetheless shown a willingness to lie when it suits her to do so. As to the submission she lied in court when she said she told the truth in her 8 August statement, I note she had not read it prior to giving that evidence. I also note she asked to read the statements before answering when asked the same questions later. I consider she had not turned her mind to that aspect of the statement wherein she said she had only seen the accused for 10 days. The fact she wanted to be careful the next time she was asked that question supports my impression of that aspect of her evidence. I do not consider this evidence was indicative of a lack of truthfulness as to other aspects of her evidence. To the contrary I consider her subsequent action indicates she wanted to be truthful when giving evidence in court.
I note she described the effects of her drug taking and its impact upon her in a number of ways. She stated that she would sometimes become emotional and erratic and if she stayed up for a long time she would lose all ‘sense of reality’. This meant she would do things she would not normally do. I consider it is a matter of common sense that extensive drug use may impact a person’s recollections of an event and distort those recollections.
I have carefully considered the evidence of JL including the detail she was able to give and the plausibility or otherwise of her account. I have noted that she was not always able to be specific as to the number of days she spent with the accused and she was not able to be precise as to every aspect in the timeline of their relationship or for example whether the accused wore a condom or where he ejaculated. This is hardly surprising in light of her evidence as to the length of time over which they were together, the number of different incidents, the ongoing nature of their sexual relationship and that she was recounting events from two years before. Similarly her failure in evidence to refer to the acts the subject of counts 4 and 8 is readily understandable. She recalled the locations, the surrounding events and their respective positions during the acts of fellatio and penile intercourse at both Hallett Cove and Aldinga. In the context of a lengthy sexual relationship, I do not consider it unusual that after two years a witness may not recall every detail of an incident, particularly when the same type of incident has occurred many times. I do not consider the topics upon which she was unable to recall specifics were of particular significance or indicative of unreliability or a lack of truthfulness.
I do not consider any of the prior inconsistent statements to be of particular significance and I consider her explanations to be both plausible and compelling. However, in light of her admitted lies to police, the existence of some omissions from her statements and the other matters to which I have earlier referred, I consider it is nonetheless important when considering whether the prosecution has met its onus of proof that there be some support for the more crucial aspects of her evidence. I therefore turn to the other evidence led at the trial to consider whether there is support for her evidence that she was involved in a sexual relationship with the accused, that they shared an interest in drugs and that the accused behaved aggressively toward her.
Support for the evidence of JL as to matters of significance
As to the sexual relationship, I am satisfied beyond reasonable doubt that a sexual relationship commenced from the time of JL’s second visit to the accused’s apartment and that it continued until the accused was arrested in August 2018. I am mindful of the difficulties inherent in any person attempting to recall each individual act of sexual intercourse over a period of eight months, some two years after the events. I am satisfied far more than the minimum two acts of intercourse occurred over that period and I am satisfied the acts of sexual intercourse of which JL gave evidence occurred as she described in her evidence. I am also satisfied the accused requested nude photographs from her, sent photographs of his penis to her in connection with those requests and that JL took such photographs and sent them to the accused via an online platform
I am satisfied beyond reasonable doubt of JL’s evidence as to the accused pouring an ignitable liquid over her after he believed he found evidence she was sending nude photographs of herself to another person. I am satisfied that he said words to her to the effect he was going to set her alight and that he obtained a lighter and flicked it in her presence. I accept her evidence that the accused also made other threats toward her and that her evidence as to other events is entirely consistent with her account of what occurred during the petrol incident.
The incidents at Hallett Cove and Aldinga were sufficiently separated in time and location to be identified by JL. The differences in those events and the surrounding circumstances are, I find, precisely why her recollection of the events is reliable. I am satisfied beyond reasonable doubt of her evidence that an act of fellatio and an act of penile-vaginal intercourse occurred as described by her at each of those locations. Whilst she did not recount the incidents of cunnilingus and which she had taken drugs on those days, that does not cause me to doubt the accuracy of her evidence as to the other acts of sexual intercourse she described. I consider the number of sexual acts over eight months more than adequately explains her inability to recall every detail of every act and it further explains why, if I assume JL originally stated to police that there were acts of cunnilingus at Hallett Cove and Aldinga, she has forgotten that those acts occurred when giving her evidence.
I also do not consider there is anything implausible or unbelievable about her account that after three months in custody the accused would take the risk of continuing their relationship and engaging in further acts of sexual intercourse. Her account of his behaviour throughout the entirety of their relationship indicated the accused was prepared to take a risk as far as she was concerned. JL’s evidence to the effect she revealed her age to the accused in the presence of another person at the beginning of their relationship and that that person had told the accused that ‘it was wrong of him’[52] is entirely consistent with her account that he would take a risk to be with her after his release from custody in December 2018. I consider her account of his behaviour throughout this period is consistent. She describes the accused acting consistently with him having strong feelings for her. This is, I consider, one further aspect of her account which is internally consistent and supported by the messages.
[52] T75.
Lastly I am satisfied of the evidence of JL as to the circumstances in which she consumed a drug at her first meeting with the accused in Glenelg and when they attended at the house at Hallett Cove.
On the basis I am satisfied of the truthfulness and reliability of her evidence as to the incidents which comprise the charged acts I turn to consider whether the events as described by JL satisfy the elements of the offences.
Count 2: maintaining an unlawful sexual relationship with a child
The first element is that the accused knowingly maintained a relationship with JL during the same period in which the unlawful sexual acts are alleged to have occurred. ‘Maintained’ carries its ordinary meaning, that is, carried on, kept up or continued. There must therefore be a continuity to the relationship. It must also be proved the accused had knowledge of the acts and contextual circumstances which comprised the relationship. Here, the relationship is said to be a close personal and intimate relationship.
As to whether a relationship was maintained by the accused with JL I may have regard to all the circumstances of the association between them including any evidence of any unlawful sexual conduct. I consider the duration, frequency and continuity of their interactions and the intimate and personal nature of some of their interactions are significant.
In November their interactions involved ongoing contact, sexual acts, JL sleeping at his house, the giving of a birthday gift and online communications. Notwithstanding they did not physically meet between about December 2017 and late March/early April[53] that period was punctuated by social media interactions which involved nude images of each of them being sent to the other and references to ‘catching up’. Even if the accused was in a relationship with another person, that fact does not preclude the accused also maintaining a relationship with JL at the same time. Frequent interactions then resumed from the time of the meeting at the Port Noarlunga motel in or around early April 2018. After their sexual relationship resumed from the visit to the motel in Port Noarlunga, their contact and interactions continued unabated until the accused’s arrest on 9 August 2018.
[53] T137.
That they maintained contact for the whole of the period, that the complainant stayed overnight at the residence of the accused sometimes for a number of days, that they were engaging in acts of sexual intercourse, that they were sharing drugs of some type and that the accused was expressing affection[54] and a degree of commitment[55] to JL all provide strong evidence of a relationship. I am satisfied beyond reasonable doubt that there was a relationship in November 2017 which was characterised by frequent visits and an intimate and sexual relationship. That it developed over that month does not mean it did not exist from the first time they met. I am in any event satisfied there was a relationship at the time of the second visit when the first acts of sexual intercourse occurred. It may have been in its infancy as a personal relationship but a relationship for the purposes of the Act did exist at that time.
[54] These expressions were both in person and via electronic communications as evidenced in Exhibit P6.
[55] T63; the accused said he loved JL and would like to have children with her and ‘get a house on a farm’ with her.
Notwithstanding the frequency and the nature of their interactions then reduced for a period of some months I am further satisfied that the relationship subsisted throughout the period in which their interactions were limited to online communications. That the communications were ongoing and that they involved the exchange of intimate images is significant in that regard.
I am satisfied a relationship existed and that it was knowingly maintained by the accused between 1 October 2017 and 9 August 2018.
I have already indicated I am satisfied that the accused committed numerous acts of sexual intercourse over this period.
I also infer beyond reasonable doubt that the ‘nude photographs’ described by JL were intimate images of herself which required her to expose her body to take them. I note the reference to exposure is not confined to a child exposing his or her body within the direct sight of another person.[56]. I am satisfied the accused’s requests for the photos and his acts of sending photos of his penis, caused or induced JL to expose herself for the purpose of taking nude images of herself and that the accused acted for a prurient purpose in doing so.
[56] R v Symons (2018) 130 SASR 503; The court noted that if a child is induced to undress in order to have the child take an image in order to forward it to another person using an online platform then an offence of inducing a child to expose himself or herself will have been committed.
I am therefore also satisfied that the accused’s acts as requesting the nude photographs satisfy the definition of an unlawful sexual act.
If I am wrong and the relationship did not commence until April 2018, I indicate I am still satisfied that between April and August 2018 the accused committed more than two acts of sexual intercourse with JL as indicated in her evidence.
The elements of count 2 are proved beyond reasonable doubt.
Count 3: aggravated threatening to cause harm
The prosecution rely on a combination of the accused’s conduct and words. Having poured a flammable liquid onto JL the prosecution rely on his words to the effect that he was going to set her on fire while the accused also presented the blue lighter and appeared to attempt to light it in her presence. I note that in some circumstances a lack of specificity as to the precise words used may be problematic for the prosecution. In the circumstances of this case I do not however consider the precise words used to be a crucial consideration. In circumstances in which the conduct and the words were said to be a threat to ignite the liquid that had been poured onto JL, and that the words were accompanied by the presentation of a lighter and the flicking of the flint, I am satisfied beyond reasonable doubt that irrespective of the precise words used, the words and conduct of the accused amounted to a threat to cause harm to JL. The words used clearly left JL with the impression of a threat and that impression is entirely consistent with the conduct as regards the lighter and the earlier conduct as regards pouring an ignitable liquid onto her. Even if I only have regard to his conduct, I am satisfied his conduct alone was a threat and that it was a threat to cause harm to JL.
For the purposes of element three, the accused will be recklessly indifferent if he knew it was likely that JL would fear that the threat would be carried out, or was likely to be carried out, and he proceeded without having an adequate justification to do so. I am satisfied the accused intended to cause JL to fear the threat would be carried out. That he was upset and angry and that he obtained the lighter and flicked it after pouring the liquid on her satisfy me that this was his intention- irrespective of the words he used.
For the purposes of this trial offensive weapon means an article or substance that a person has:
i.for the purpose of causing personal injury or incapacity; or
ii.in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity.
A substance may become an offensive weapon depending on the manner in which it is used. Here the accused had it for the purpose of pouring it over JL when he was angry and exhibiting that anger. I am satisfied that the liquid poured onto JL by the accused was an ignitable liquid. Her account of it smelling like petrol and burning her skin is consistent with it being an ignitable liquid and I accept the evidence of Mr Cook that the bottle had previously contained petrol and methylated spirits. I am satisfied that the accused had the substance in circumstances in which another person would be likely to feel reasonable apprehension that he had it for the purpose of causing personal injury. I am further satisfied that the accused used this liquid when committing the offence by pouring it onto JL.
Lastly, the accused must not be convicted unless he acted without lawful excuse. The accused must however prove that he did have a lawful excuse on the balance of probabilities. Lawful excuse is not an issue in this trial. There was no suggestion, submission or evidence to the effect there was a lawful excuse for these acts if they occurred. I am satisfied there was no lawful excuse.
The elements of count 3 are proved beyond reasonable doubt.
Counts 5, 7, 9 and 10: unlawful sexual intercourse
As I have indicated I am satisfied the acts of fellatio and penile-vaginal intercourse alleged in these counts occurred as stated by JL in her evidence.
The elements of these counts have been proved beyond reasonable doubt.
Counts 1 and 6: supplying a controlled drug to a child
Notwithstanding I am satisfied that the accused supplied drugs to JL over the period of their relationship, I am not satisfied beyond reasonable doubt that the prosecution has proved the elements of either count 1 or count 6. I therefore find the accused not guilty of those counts. My reasons for this follow.
As regards both counts, the prosecution particularised the controlled drug as amphetamine or methylamphetamine. The prosecution expressly eschewed any reliance on the analogue provisions in s 4(2) of the Controlled Substances Act 1984. I will therefore not have regard to whether the drug consumed by JL may have been an analogue of those controlled drugs insofar as the drugs consumed by JL in counts 1 and 6 had substantially similar pharmacological effects to methylamphetamine.
The prosecution at all times presented its case on the basis the counts depended upon proof beyond reasonable doubt that either amphetamine or methamphetamine was present and that one of those drugs was physically supplied to JL. Some reliance was also placed on the broader definition of supply for count 1 insofar as it extends to ‘an offer to supply’. However, the prosecution case was still presented on the basis it depended on proof that one of the two particularised controlled drugs was present in the apartment at the time that the controlled drug was offered to JL ‘through the agency’ of her friend, IN.
I consider it is an offence to offer to supply a controlled drug to another person and that provided it is a genuine offer, such an act would not require proof that the offeror was physically in possession of or had access to, a controlled drug.[57] However, that is not the manner in which the prosecution prosecuted its case against the accused and I will therefore limit my reasons to the manner in which the prosecution ran its case.
Count 1
[57] I refer to my reasoning in relation to the definition of sell and offer to sell in R v Middlin-Hannah [2020] SADC 31.
The prosecution alleged that the accused supplied a controlled drug to both IN and JL even though the drug was only physically handed to IN. It was submitted that the accused knew and intended that JL would receive some of the drug from IN. In those circumstances it was submitted this either amounted to ‘supply’ or an ‘offer to supply’. As to the latter basis it was submitted this amounted to offering a controlled drug to JL through the agency of IN.
The prosecution submitted that the fact JL and IN arrived together and that they were friends was a sufficient factual basis to draw an inference that the accused both intended and knew that JL was to receive some of the drug he supplied to IN.
Firstly, even if I assume that the above factual circumstances would amount to supply, I am not satisfied beyond reasonable doubt that an act of supply to JL occurred. I am not satisfied that the accused knew or intended that any of the drug be supplied to JL. IN asked for the drug and JL said nothing. There was no evidence as to whether there was any preliminary conversation about drugs or any conversation between JL and the accused prior to this event. The accused had only just met JL for the first time. Whilst the accused knew IN and it may be inferred he knew that IN was a user of methylamphetamine, the same cannot be said for his knowledge of JL. The fact JL attended at the apartment with IN and that she was present when IN asked for some ‘gear’ is not sufficient in my view to draw an inference beyond reasonable doubt that the accused either knew that JL intended to use some of it or that the accused intended that JL receive some of it. For that reason alone, this element is not proved and the accused is entitled to an acquittal.
Even if the prosecution had relied on the offer to provide a controlled drug rather than the physical act of providing a controlled drug I consider the evidence cannot exclude the possibility that the offer was only to IN. IN was the person the accused knew, IN was the person the accused knew consumed methylamphetamine and IN was the person who requested the drug. The fact the request was made in the presence of JL is not in my view sufficient to prove beyond reasonable doubt that the acts of the accused would have amounted to an offer to provide it to JL also.
I am also not satisfied beyond reasonable doubt that the drug consumed by JL on the occasion charged as count 1 was either amphetamine, methylamphetamine or a controlled drug. Once there is a doubt as to the identity of the substance I consider the same doubt attaches to whether the substance was a controlled drug.
There was no evidence that a substance seized from the accused at some point over that 12 month period had been forensically tested. There was therefore no scientific evidence that the accused had access to methylamphetamine during that period. Whilst I consider it is now public knowledge that methylamphetamine is readily available in the community there was no evidence that other drugs similar to methylamphetamine were not also readily available.
JL gave evidence that she had tried MDMA and cannabis before this day. She gave evidence that she smoked the drug on that day and that over the following 12 months she consumed large amounts of a drug by smoking it, snorting it, eating it and injecting it. At all times she believed the drug she was using was methylamphetamine. The basis of this belief was not however the subject of evidence. There was evidence as to the effects she experienced on this occasion however there was no expert evidence as to whether those effects were limited to only amphetamine and methylamphetamine. Similarly, there was no expert evidence as to whether only amphetamine and methylamphetamine can be smoked, snorted or injected. There was also no expert evidence that no other controlled drugs have similar pharmacological effects or that other drugs similar to methylamphetamine are not sold as a substitute for that drug. There was also no evidence as to the appearance of the drug she consumed on that day and whether it had the same appearance as the drugs she consumed over the next 12 months and whether that appearance was only consistent with being methylamphetamine.
Whilst I am satisfied JL consumed a drug on that day, the absence of evidence as to the accused having access to methylamphetamine or amphetamine in that period and the absence of evidence that the drug she consumed on that day had exactly the same appearance, texture and effects as methylamphetamine and no other drug is significant. Whilst I cannot have regard to evidence that I have heard in the course of other trials I do consider I can take into account as a matter of common experience that drug dealers do not always sell a perfect product or a product guaranteed to be what it is said to be. Whilst I consider it is highly likely that the drug consumed was methylamphetamine, particularly given the prevalence of methylamphetamine in the community, I cannot discount the possibility that on one or more occasions a drug with the same pharmacological effects but with a different chemical composition was used by the accused and JL.
In the absence of evidence that there is no such product on the market and in the absence of any reliance on the part of the prosecution on the analogue provisions, I am not satisfied beyond reasonable doubt that the drug consumed was methylamphetamine or amphetamine.
That the accused believed it was methylamphetamine does not permit an inference to be drawn that it was methylamphetamine.
Count 6
The evidence as to this count was brief. JL and the accused attended at a house in Hallett Cove. JL stated that she and the accused used ‘meth’ by snorting it, that she could not recall when it occurred as regards the other events of the day and that the drug was brought to the house by the accused.[58]
[58] T96.
There was no evidence as to the appearance of the substance she consumed or that the substance was the same colour or texture as it was on every other occasion she consumed the drug. There was no evidence as to how she came to be in possession of it before she used it. There was no evidence as to whether she asked for it or whether she just took it. There was no evidence as to whether the accused was in the same room as she was when she obtained or used it and there was no evidence as to whether there was any prior discussion as to JL using the drugs.
JL earlier gave evidence that the accused would always prepare the drug for her and so it may be inferred he did so on this occasion also. However, I note that by this time JL had been using drugs for nearly a year and her experience with the drug may have altered over that time. I also note that by this time it may have been implied that JL could use the drugs when she wanted to do so but there was no evidence to this effect and no evidence the accused had made an ongoing offer to provide drugs to her without her asking for them. I also do not consider the accused can be said to have supplied or provided drugs if JL took them without asking simply because she knew that the accused would not object to it.
In all the circumstances I am not therefore satisfied the accused did an act which amounts to supply for the purposes of the Controlled Substances Act 1984.
I am satisfied beyond reasonable doubt that a drug was consumed by JL and that she believed it was methylamphetamine. However, for the reasons I have outlined as regards count 1, I am not satisfied the drug consumed was methylamphetamine or amphetamine.
The accused is therefore acquitted of count 6.
Verdicts
Count 1 – Not Guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Not Guilty
Count 5 – Guilty
Count 6 – Not guilty
Count 7 – Guilty
Count 8 – Not Guilty
Count 9 – Guilty
Count 10 – Guilty
0
8
1