R v Howden - [2009] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOWDEN
Criminal Trial by Judge Alone
[2009] SADC 10
Reasons for the Verdict of His Honour Judge Millsteed
9 February 2009
CRIMINAL LAW
Trial by judge alone - accused charged with aggravated indecent assault - whether second complaint was admissible as evidence of a recent complaint of a sexual offence - evidence held to be inadmissible - complainant aged six years at the time of the alleged offence and eight years at the time of trial - complainant gave unsworn evidence - no independent support for complainant's account - accused found not guilty.
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 s 7; Evidence Act 1929 s 9(1), s 9(2), s 9(4), referred to.
R v Climas (Question of Law Reserved) (1999) 74 SASR 411; R v Gallagher (1986) 41 SASR 73; R v Corkin (1989) 50 SASR 580; R v Slater (1989) 152 LSJS 268; R v Tanda (1986) 43 SASR 161; R v Starrett (2002) 82 SASR 115, considered.

R v HOWDEN
[2009] SADC 10
Introduction

The accused, Chris Howden, is charged with aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935. Upon his arraignment the accused pleaded not guilty and elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. The trial proceeded before me. Following the completion of the closing addresses of counsel I adjourned the trial to consider my verdict. I now deliver my verdict and publish my reasons.
Overview
The complainant CR was born on 21 February 2000. At the time of the alleged offence she was six years and six months old. Her mother MC and father DR were close friends of the accused and his wife Holly Bateman. The accused and his wife lived at Craigmore with their daughter Alannah, aged nine years, and Ms Bateman’s daughter from an earlier relationship, Michaela Bateman, aged 14 years.
On the evening of 15 September 2006, MC visited the accused and his wife at their Craigmore home. CR and her brother SR, aged three years, accompanied their mother. During the evening the children were put to bed. CR went to sleep on a mattress in Alannah’s bedroom. CR alleges that on three occasions the accused entered the bedroom in which she was sleeping and placed one of his hands under her skirt and interfered with her underwear. On the third occasion (the incident upon which the charge is based) the accused pulled the crotch of her underwear to one side and shone a torch on her exposed vagina. Later that night, while MC was driving her children home, CR told her that the accused had touched her knickers. Following their arrival home, CR expanded upon her complaint and demonstrated to her parents the manner in which the accused allegedly interfered with her underwear to expose her vagina. Her parents reported the allegations to police.
On 24 December 2006 Detectives Trimboli and Cowburn from the Elizabeth Criminal Investigation Branch interviewed the accused at his home. He denied the allegations.
On the trial the prosecution called CR, her parents and Detective Trimboli to give evidence. Because CR was only eight years and seven months old at the time, I conducted an inquiry to determine whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence pursuant to s 9(1) of the Evidence Act 1929. I was not satisfied that CR did have the requisite understanding as explained by the Court of Criminal Appeal in R v Climas (Question of Law Reserved) (1999) 74 SASR 411. However, I was satisfied that she was able to give unsworn evidence pursuant to s 9(2).
The accused gave evidence in his defence. He denied CR’s allegations. The defence also called Holly Bateman, Michaela Bateman and the accused’s mother, Patricia Howden.
The evidence in more detail
The early events
In the early evening of Friday 15 September 2006, MC attended the accused’s home with her children RC and SC. When they arrived the accused, Holly Bateman and their daughter Alannah were at home. MC testified that the accused’s sister Briony and her partner were also present at the accused’s home when she arrived and left a short while later. This was disputed by the accused, Holly Bateman and the accused’s mother, Patricia Howden. They testified that Patricia Howden was present but not the accused’s sister and partner. Mrs Howden stayed only a short time after MC arrived and then left. I find that it is reasonably possible that MC was mistaken on this topic.
MC and RC testified that RC was wearing a short denim skirt and underwear that night. The accused could not remember how she was dressed. However, Holly Bateman and Patricia Howden claimed that they could specifically recall that RC was wearing tights or leggings and not a skirt. If the evidence given by the defence witnesses is correct then the accused could not have interfered with the child’s underwear in the manner alleged by the prosecution.
I reject the evidence by Holly Bateman and Mrs Howden on this topic. I am satisfied beyond reasonable doubt that the complainant was wearing a denim skirt as the prosecution contends. I do not accept that Patricia Howden and Holly Bateman were able to accurately remember how the child was dressed. Unlike the complainant and her mother neither of those witnesses had any cogent reason for remembering how the child was dressed. On their account it was quite an unremarkable evening. Furthermore, they were not called upon to remember the events of that night until after the accused was interviewed by police on 24 December 2006, some three months later.
There is no dispute that a short time after MC arrived she went to the home of one of the accused’s neighbours to discuss employment she was seeking. MC said that when she returned the accused was not at home and had left to collect Michaela from St John’s Ambulance cadets. This was disputed by the accused, his wife and Michaela. They testified that Michaela was collected from cadets by her mother and MC while the accused remained at home with the other children. Nothing turns on this conflict in the evidence. Nevertheless, I believe that MC was mistaken about these events. I find that she and Holly Bateman collected Michaela and brought her home.
It is common ground that Michaela arrived home at about 9 00 pm. A short while later she retired to her bedroom. The other three children were put to bed. The little boy, SC, went to sleep in the main bedroom. Alannah and RC went into Alannah’s bedroom and watched a “Smurfs” DVD before going off to sleep. Alannah slept in her single bed while RC slept on a single mattress on the floor.
The defence tendered photographs of Alannah’s bedroom (Exhibit D2). The photographs were taken about four weeks before the commencement of the trial. The accused and Holly Bateman testified that the photographs showed the positions in which the bed and mattress, and other items of furniture, were in on the night of the alleged offence. The photographs indicate that the foot of the mattress upon which RC slept was just inside the bedroom door and would have prevented the bedroom door from being closed. RC and her mother each testified that the mattress was in a different position, although they gave different descriptions of the mattress’ location. I consider that it is reasonably possible that RC and her mother were mistaken on this topic. I find that the mattress prevented the bedroom door from being closed.
After the children went to bed the accused, Ms Bateman and MC socialised in the lounge room. There is no dispute that in the course of the evening Holly Bateman and MC consumed a small amount of amphetamines. MC testified that after Michaela came home the accused left the house to acquire the drug. She also testified that the accused consumed a small amount of amphetamines and beer. The accused and Holly Bateman denied that he left the house that night to acquire amphetamines. They said that the accused had acquired the drug on the preceding day. They further denied that he used the drug on the night of the alleged offence.
For reasons that I need not canvass, I reject the evidence given by the accused and Ms Bateman on this issue. Regardless of whether the accused acquired amphetamines the day before or on the night of the alleged offence, I am satisfied that he shared the drug with MC and Ms Bateman. Having said that, it is clear from MC’s evidence that the accused was not significantly affected by the drug or alcohol for that matter. Nor were the two women.
The incident
I turn to the critical events.
Prosecution witnesses
I begin with RC’s account. RC said that at one point she woke up to find the accused pulling the crotch of her underpants to one side. She was lying on her back on top of the mattress with her knees raised and her legs apart. The accused was kneeling nearby. He was wearing only a pair of shorts. When RC woke up the accused quickly left the bedroom. RC said that the accused came back into the bedroom a second time. On this occasion she pretended to be asleep. She was in the same position as before. The accused again knelt down and pulled the crotch of her underpants to one side. He then left the room.
According to RC, the accused later returned to the bedroom carrying a torch. RC again pretended to be asleep. On this occasion the accused knelt down, pulled the crotch of her knickers to one side and shone the torch on her exposed vagina. He left when she opened her eyes. RC said that on each of the occasions when the accused came into the bedroom there were no lights on in the bedroom. However, the room was sufficiently illuminated for her to be able to recognise him because the television was still on.
MC testified that she left the lounge room on several occasions to check on her children. On each occasion she went into Alannah’s bedroom RC and Alannah appeared to be asleep. On the first of those occasions the bedroom door was open. MC could not remember whether or not the door was open on the other occasions. She also could not remember whether the television was switched on at any stage.
MC said that at one point during the evening the accused said: “I’ll be back in a minute” and left the lounge room. About 10 minutes later MC left the lounge room to go to the toilet and passed the accused in the hallway. He was walking from the general direction of Alannah’s bedroom. According to MC the accused remarked, “I just shut the door so the kids wouldn’t get disturbed.” MC said that he was not carrying a torch. Indeed, she never saw a torch at any stage that night.
The defence witnesses
The accused denied indecently assaulting RC. Consistent with what he said to the police, he testified that there was an occasion when he went into Alannah’s bedroom to switch off the television. He could not remember crossing paths with MC in the hallway after leaving the bedroom but conceded that that may have happened. He said that he would not have told MC that he shut the bedroom door to ensure that the children were not disturbed but accepted that it was possible he told MC that he had gone into Alannah’s bedroom to switch off the television. The accused further said that he kept a spotlight in his garage but did not own a torch. He testified that Michaela was the only occupant of the house who had a torch.
Holly Bateman said that after the children were put to bed she went into Alannah’s bedroom on at least one occasion to see if the children were alright. At the time Alannah was watching the DVD and CR was asleep. Holly Bateman said that she could remember the accused leaving the lounge room on at least one occasion.
Michaela Bateman said that after she arrived home, she got changed into her pyjamas and collected some DVDs from the lounge room. She then went into her bedroom and watched the DVDs. She said that she went to sleep at about 1.00 am - 2.00 am the following day. She remembered hearing Ms Bateman and the children leaving the house before she went to sleep. Michaela corroborated the accused’s evidence that she had a torch. She said the torch was on a shelf in her room on the night of the alleged incident. She said that no person removed the torch from the room while she was awake. Both Michaela and Holly Bateman said that no other torch was kept in the house.
Subsequent events
There is no dispute that MC left the accused’s home with her children during the early hours of the following morning. MC then drove the children home. RC testified that during the trip she told her mother that the accused “pulled her knickers to the side.” MC gave a similar account. She testified that RC said: “Mummy, Chris pulled my knickers down.” She then asked RC: “Are you sure you did not dream it?” RC did not reply.
Upon their arrival home the children went into their bedrooms and got changed into their pyjamas. MC told her husband DR about what RC had said during the trip home. DR and MC then went into RC’s bedroom and discussed the matter with her. RC said that she could not remember what she told her parents but recalled feeling nervous, sad and embarrassed. Both of CR’s parents said that she was reluctant to discuss what had allegedly happened. DR encouraged her to tell him about the incident and at one point said that he would not leave the bedroom until she did. CR then demonstrated to her parents that the accused pulled her knickers to one side.
It is well established that evidence of a complaint made at the earliest reasonable opportunity by the alleged victim of a sexual offence is admissible not as evidence of what occurred but as evidence of consistency of the account of the incident given by the alleged victim: R v Gallagher (1986) 41 SASR 73, per King CJ at 76-77. It is clear that the complaint made by RC on the trip home qualifies as a recent complaint of a sexual offence. The evidence was made at the first reasonable opportunity and is consistent with the complainant’s account except in respect of her failure to mention that the accused allegedly shone a torch on her vagina.
Mr Wyatt counsel for the accused, however, challenged the admissibility of the complaint made by RC following her return home. He argued that the complaint was not of a spontaneous nature and was the result of questioning and pressure applied by her father. It is fair to say that but for DR’s questioning there would probably have been no complaint made by RC on that occasion. However, the authorities are clear that this is but one factor to be taken into account in deciding whether the complaint is capable of buttressing the alleged victim’s evidence of what occurred: R v Gallagher (above) at 78. In the present case it is necessary to consider all the circumstances including RC’s tender age and her relationship with her parents. It is true that her father applied a degree of pressure. But it is understandable that RC may have been reluctant to discuss the matter with him. I do not believe that the nature of her father’s questioning was likely to elicit a false story: compare R v Gallagher (above) at 78. Accordingly, I would not have ruled the second complaint to be inadmissible on this ground.
The difficulty with the admissibility of the complaint made by RC after she returned home lies in the fact that it was made well after the first. Evidence of a second complaint can be admitted, as one made at the first reasonable opportunity, where there may have been some ambiguity in the initial complaint or where the initial complaint has been amplified in its content: see R v Corkin (1989) 50 SASR 580, per King CJ at 581; R v Slater (1989) 152 LSJS 268; R v Tanda (1986) 43 SASR 161. In the present case there is no ambiguity about the complaint RC made to her mother during the trip home. Nor did the second complaint amplify the first complaint in any material way. For these reasons, I am of the view that the evidence of the second complaint is inadmissible.
Consideration
The resolution of this case hinges on whether the prosecution has proved beyond a reasonable doubt that RC gave a truthful and reliable account of the incident.
I was impressed by the accused except in respect of the issue of drug consumption to which I have already referred. In relation to the critical events he gave a simple consistent account and performed well under cross-examination. There was no element of exaggeration or evasiveness. He also admitted an inability to recall matters when he could easily have made up a story that advanced his case. For example, he said that he could not recall how RC was dressed that night when he could have said, as did his wife and mother, that RC was wearing tights. Put simply, he gave a straightforward account that rang true.
But RC also impressed me. She was a pleasant child who was not the slightest bit precocious. At no time did I detect any deliberate attempt on her part to mislead the court. Indeed, I believe that she did her best to give a truthful account of what she genuinely believes happened to her. However, I consider that there is a real possibility that her allegations against the accused are the product of imagination or a dream perhaps inspired by having briefly seen the accused in the bedroom during a period of disturbed or broken sleep.
Whatever the explanation might be, I am not satisfied beyond reasonable doubt that the accused indecently assaulted RC in the manner alleged or at all. While there is no such thing as standard deviant behaviour, there is, to my mind, no obvious reason why the accused would have gone into Alannah’s bedroom on no less than three separate occasions to look at her vagina. If he needed a torch to better view her genitals why didn’t he get the torch after he left the room on the first occasion? It also would have been extremely brazen of the accused to have interfered with the child as many as three times in circumstances where the bedroom door could not be closed and her mother could have walked into the area at any time either to check on her children or to go to the toilet.
Another difficulty with RC’s evidence is her assertion that the accused used a torch. Michaela corroborated the accused’s account that the only torch in the house was the one kept in Michaela’s room. In her closing address the learned prosecutor, Ms Matteo, frankly conceded that Michaela was an impressive witness. Ms Matteo did not suggest that Michaela was lying or mistaken on this issue. Rather, Ms Matteo suggested that the accused may have had an object in his possession that RC mistakenly believed was a torch.
There are two problems with that hypothesis. First, RC was quite specific that she saw a torch. She drew a diagram of it (Exhibit P3). Secondly, there is no evidence that there was any object in the house similar to a torch. There was no dispute that the accused had a mobile telephone in his possession that night. However it was later examined by police and found not to be the type of mobile phone that can emit a beam or ray of light. It should also be observed that RC failed to mention that the accused had a torch when she complained to her parents.
Another relevant consideration is that RC gave unsworn evidence. Section 9(4) of the Evidence Act abrogates the common law requirement for corroboration of the unsworn evidence of a child. However, it does not displace the common law requirement that a trial judge warn or caution a jury whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: R v Starrett (2002) 82 SASR 115, per Doyle CJ at 124. In my view, it is appropriate to warn myself that it would be dangerous to convict the accused on the basis of RC’s evidence having regard to her age, the fact that her evidence was unsworn and uncorroborated, her failure to mention the use of the torch when she complained about the accused’s alleged conduct, the absence of any evidence to show that the accused had access to an article that she might have mistaken for a torch and the fact that she had been asleep immediately before the incidents about which she has complained.

In the circumstances, I am not satisfied that the prosecution has proved its case beyond reasonable doubt. Accordingly, I find the accused not guilty.