R v Im (No. 2)
[2013] ACTSC 69
•12 April 2013
R v IM (No. 2)
[2013] ACTSC 69 (12 April 2013)
CRIMINAL LAW – EVIDENCE – whether, at conclusion of Crown case, insufficient evidence to satisfy the burden of proof – where complainant’s evidence sole direct evidence – where allegation denied by accused – where complainant’s evidence vague – where evidence complainant had had disagreement with accused – inability to be satisfied of the accused’s guilt beyond a reasonable doubt – direction to acquit accused of each count on the indictment
EX TEMPORE JUDGMENT
No. SCC 328 of 2010
Judge: Burns J
Supreme Court of the ACT
Date: 12 April 2013
IN THE SUPREME COURT OF THE )
) No. SCC 328 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
IM
ORDER
Judge: Burns J
Date: 12 April 2013
Place: Canberra
THE COURT ORDERS THAT:
The accused is acquitted of each of the counts on the indictment dated 15 December 2010.
In this matter the accused is charged with five counts, each alleging an offence of committing an act of indecency upon JE. Each of the counts specifies dates between which it is alleged the offence occurred. The complainant, JE, is the natural son of the accused. The events which are alleged against the accused are alleged to have occurred at various times between when the complainant was about seven years‑of‑age, until he was approximately 10 years‑of‑age.
Each of the events alleged against the accused giving rise to a charge on the indictment is in significantly similar form. On each occasion it is alleged that the accused placed his hand inside the pants of the complainant and either directly touched and squeezed the penis of the complainant, or did so on top of underwear that was being worn by the complainant. There was apparently no complaint made by the complainant with respect to these matters until, as I understand it, 2009 at the earliest.
Of course, there are many reasons why a complainant with respect to a sexual offence may not make a complaint or may delay making a complaint. However, the delay in making a complaint is a matter which the Court is entitled to take into account in determining whether it is satisfied, beyond a reasonable doubt, that the accused is guilty of the charges against him.
I think that it is fair to say that the complainant’s demeanour when he was giving evidence was not particularly impressive. I hesitate to place weight upon his demeanour, simply because it is clear that he has had a number of mental health issues which may well explain why he did not present well in giving his evidence. As such his demeanour is something which I give little weight to in assessing him as a witness.
The complainant’s evidence, however, was particularly vague. He could not remember many matters relating to his childhood and particularly things that were occurring, with respect to counselling or treatment, at about the time when these events were alleged to have occurred. It is fair to say that there is nothing in the Crown case which provides support for the evidence which was given by the complainant.
Mr Glissan QC, on behalf of the accused, at the close of the Crown case made a submission that I should effectively determine at this point that I am not satisfied beyond a reasonable doubt of the guilt of the accused, on the evidence which has been led.
The accused’s version of events is set out in a record of interview, which was conducted on 8 December 2009. In that record of interview with the police the allegations were put to the accused and he denied each of them.
It is also not an insignificant matter in considering the present application to take into account that the complainant, in his evidence, accepted that a few weeks before he made his complaint to the police in relation to these allegations he had an argument with the accused and at that time made a threat to “get the accused” or something to that effect.
I take into account the evidence of the argument and threat, together with the particularly vague nature of the evidence given by the complainant, and the denial of the allegations by the accused in the record of interview. I further take into account the fact that there is no evidence which provides any support for the allegations which are made by the accused. Bearing in mind all of the above evidence, I am in a position to say that I would not be satisfied beyond a reasonable doubt if the case proceeded any further. As such, I give myself a direction that I may now acquit, and I proceed to do so with respect to each of the counts.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 18 April 2013
Counsel for the Applicant: Mr J Lundy
Solicitor for the Applicant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr J Glissan QC with Mr J Sabharwal
Solicitor for the Respondent: Rachel Bird & Co
Date of Hearing: 12 April 2013
Date of Judgment: 12 April 2013
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