R v Jade Saunders
[2012] ACTSC 143
•31 August 2012
R v JADE SAUNDERS
[2012] ACTSC 143 (31 August 2012)
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the person – sexual intercourse with a person under the age of 16 years
CRIMINAL LAW – EVIDENCE – Crown application to adduce tendency evidence – the act alleged as the offence to be proved cannot be used to prove the accused had a tendency to act in the way alleged – application refused
Supreme Court Act 1933 (ACT), s 68C
R v H (1995) 83 A Crim R 402
No. SCC 259 of 2008
Judge: Burns J
Supreme Court of the ACT
Date: 31 August 2012
IN THE SUPREME COURT OF THE )
) No. SCC 259 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
JADE SAUNDERS
ORDER
Judge: Burns J
Date: 31 August 2012
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty is entered.
On 13 September 2010 the accused, Jade Saunders, was arraigned on an indictment dated 18 May 2010 alleging that on 13 April 2003 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with JR, a person under the age of 16 years, namely 15 years. To this single count he entered a plea of not guilty. On 26 July 2010 the accused elected to be tried by judge alone.
The matter came on for trial on 18 June 2012. At that time I allowed the Crown to amend the indictment to allege an offence occurring between 11 April 2003 and 15 April 2003. At that time the Crown also sought leave to adduce tendency evidence. It was accepted that the evidence the subject of the application would, in any event, be relevant as relationship evidence, and the parties were content for me to leave determination of whether the evidence would be used as tendency evidence until the end of the trial.
Section 68C of the Supreme Court Act 1933 (ACT) provides with respect to a judge alone trial:
Verdict of judge in criminal proceedings
(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3) In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
In R v Mulcahy [2010] ACTSC 98 (at [13]-[24]), Nield AJ set out the directions and considerations that should be given at a judge alone trial:
13. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14. The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16. The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
17. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
19. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
23. The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.
24. In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
The Crown case
The complainant, JR, was born on 6 October 1987. In 2002 and 2003 she was living at an address in Bonython in the Australian Capital Territory. She was living at that address with her mother and two siblings. She first became acquainted with the accused when she was 14 years old in 2002 through an online chat site. Very soon after, she gave the accused her phone number and thereafter they talked frequently by telephone. She discussed events at school with him, and also the difference in their ages. At that time the accused was 19 years of age, and the complainant was 14 years of age. In the beginning, the complainant stated that her relationship with the accused was a friendship. However after a time it became closer. They discussed whether she had ever had a boyfriend, or had been in a relationship. They talked about his relationships. The complainant testified that the accused asked her to be his girlfriend on the telephone, before he came to the ACT and she met him in person.
In the course of these conversations the accused asked the complainant if she had ever had sex with anybody. At that time she said that she had, because she “never expected to actually really meet [the accused] properly”. Once she did meet him, she told him that she had never had sex before, because she was “nervous of actually doing it”.
The accused and the complainant first met when the complainant attended Canberra for a Zone 3 competition. As I understand it, Zone 3 is a form of indoor laser tag competition. The complainant could not remember exactly when this meeting occurred, although she believed it was before she turned 15 in October 2002. When the accused attended Canberra for the Zone 3 competition, they met on one occasion and talked. Subsequently the accused returned to Queensland. The complainant did not know how long the accused was in Canberra at that time, although she felt that it was not very long.
Subsequently they maintained contact by telephone on a daily basis, and by sporadic mail. The complainant testified that the accused did not meet her again face to face until he moved to Canberra, which she thought was around February or March 2003. She was unaware at the time that he was contemplating this move, and only became aware that he had moved to Canberra when he attended at her house in Bonython. The accused told her that he had driven to Canberra, stopping to see his father in New South Wales on the way. The complainant could not remember how long the accused said he had stayed with his father, but thought that it was a couple of days. The complainant recalls that the accused at that time was driving a “browny/gold VL Commodore”. The complainant said that she was able to recollect that the accused arrived in Canberra around February or March 2003 because it was only about a month later that she had sex with him for the first time.
The complainant testified that she first had sex with the accused on 13 April 2003. This is the act of sexual intercourse which is the subject of the charge. The complainant could not recall what they did during the day on 13 April 2003, but she remembered that he wanted to do some sightseeing. She got him to drive out to Point Hut in the Australian Capital Territory and they parked in a little carpark there. They talked about having sex, and at that time she was “nervous and scared”. After a little while, she said she changed her mind and decided that she wanted to have sex with him. They then moved from the front seat into the back seat of the car and had sex for the first time. At that time the accused was using a condom. After they finished having sex they moved into the front seat of the car, where the accused took the complainant’s photograph with a Polaroid camera. After taking the photograph, the accused took a pen out of the glove box and had the complainant write on the photograph “With Jade, 13 April 2003. Kiss, hug.”
A photocopy of a Polaroid photograph was tendered by the Crown as exhibit 2. At the bottom of the photograph there is writing in the terms testified to by the complainant in her evidence. The original of the photograph was not available, it having apparently been lost by either the Crown or the police.
The complainant testified that she would have used her phone in order to record the date on the photograph. At that time she had a Nokia mobile telephone which she used for ascertaining times and dates, and setting reminders.
The complainant stated that she spoke to her best friend at that time, JO, the very next day and told her what had happened. She stated that after 13 April 2003 she and the accused had sex regularly. This happened at the house he stayed at in Theodore in the Australian Capital Territory, at another house that he subsequently moved to in Isabella Plains in the Australian Capital Territory, and occasionally in his car. The house in Theodore where the accused lived when he moved to Canberra was occupied by the accused’s friend MU and his mother. The complainant stated that on one or two occasions when she had sex with the accused in the house in Theodore, she believed that MU was present at the house.
When the accused moved from the house in Theodore, he moved into a house in Isabella Plains. The complainant was not sure when the accused moved into that house. She thought that he only lived in Theodore for a few months, but she was not sure. At the address in Isabella Plains, the accused had a “guestbook” written on his wall with a marker which, as I understand it, only showed up under ultraviolet light. The complainant wrote her name and the numbers “03” on the wall. The complainant testified that she wrote her name and those numbers on the wall sometime in 2003, but she could not recall when. However she was certain that it was after they had first had sex. A photograph of the complainant’s writing on the wall of the bedroom at Isabella Plains was tendered as exhibit 3.
The complainant turned 16 in October 2003. She believed that she and the accused were still going out at that stage. Between December 2003 and January 2004 they broke up.
In cross-examination the complainant agreed that she spoke to police about these matters in 2005, although she could not recollect the exact date. She subsequently spoke to police again in 2011. It became increasingly clear in the course of cross-examination that the complainant was uncertain about dates of events surrounding the accused’s attendance at Canberra for the Zone 3 competition, and his return to Canberra the following year. She was also unclear about dates that things occurred in their relationship, and the duration of their relationship before it became overtly sexual. The complainant agreed that she went out with the accused in his car when he was in Canberra for the Zone 3 competition, and that they parked in a carpark behind the Shell Service Station in Tuggeranong in the Australian Capital Territory. However she denied the suggestion put to her that a photograph was taken of her in the car that night.
With respect to the photograph the complainant stated that she had written on the photograph on 13 April 2003, based, she felt, on her looking at her mobile telephone. However, much of her evidence in that regard was clearly reconstruction. She testified that after the first act of sexual intercourse in the accused’s car, no further acts of intercourse took place for about one month. This appears to differ somewhat from her evidence in chief. In cross-examination she stated that after a period of one month from the date sexual intercourse first took place, sexual intercourse took place in the house in Theodore, and thereafter took place frequently.
With respect to the house in Theodore, it was suggested to the complainant that her recollection of having sex in the house came from a period later in the year. She disagreed with that proposition. It was suggested to her that she did not have sex with the accused until after he had moved out of the house at Isabella Plains. The complainant testified that it was before that. The complainant agreed that in her first statement to police she said that she started going out with the accused in July 2003. She was also cross-examined about the circumstances in which the accused’s car broke down when he came to Canberra on the second occasion. It was suggested to her that it broke down on the day that he arrived, but she was unable to give a clear answer to that suggestion.
The next witness on behalf of the Crown was MR, who is the mother of JR. MR testified that from August 2002 until August 2003 she lived with the complainant at an address in Bonython. She was able to recollect these dates as, at that time, she and her husband were separated and she resided at those premises for a period of 12 months under a lease for that duration. She first met the accused in 2003, sometime after the Canberra bushfires. She recalled the accused taking JR to have a look at the damage caused by the fires, but she could not remember what month that was. She remembered that there was a time when the accused’s car broke down at their home, and a family friend of theirs assisted in repairing it, but she could not remember when that occurred. The only place that she knew the accused lived was in Theodore, where he lived with a friend, and at some stage after that she believed that he lived in Isabella Plains.
In cross-examination she said that her first recollection of the accused arriving in Canberra was when he pulled up at their front doorstep and knocked on the door. She did not believe that her husband was in the house at that time. She said that she could specifically recall being at home when the accused arrived, although she could not say what time of the day that he arrived, or the date that that occurred.
The next witness called by the Crown was JO, a friend of the complainant JR. JO has known the complainant since 1992. JO was aware that the complainant met the accused over the internet. She was able to recall that the accused and JR were talking on the internet and by messaging and telephoning each other before he moved to Canberra. When he moved to Canberra she met him, but she was unable to remember precisely when that was. She thought that it possibly may have been 2003 but she was unsure what month. She thought that at the time that she met him the accused was either living at Theodore or Isabella Plains, but she could not remember which. She had conversations with the complainant about her relationship with the accused. She remembers the complainant saying that she and the accused were boyfriend and girlfriend, and also recalled the complainant telling her that she had lost her virginity to the accused. She was unable to recall when that conversation took place, but thought that it possibly took place in 2003.
The next Crown witness was SB. She was residing at an address in Theodore during 2002 and 2003. She resided there with her daughter, her son and her husband, until her husband left the premises. During part of that time the accused resided at her premises. He was a friend of her daughter, and needed somewhere to stay. She believed that he resided at her premises sometime after the bushfires of January 2003, leaving in or before May 2003. She said that she knew that he was not there at the time of the bushfires, and in May 2003 she was seeing somebody and she knew that he was not there then. She was unsure of how long he had stayed at her house, speculating it may have been one or two months. When he stayed there he lived in the dining room.
SB agreed in cross-examination that the relationship she began in May 2003 resulted in her being away from the house more frequently later in that year. However she did not cohabit with the man in that relationship, and rejected the suggestion that the accused may have stayed at her premises for a short time in April or May 2003, and then returned for a longer time around November 2003.
SB agreed that she sold her house in Theodore, but was not certain whether that occurred in 2004. It was possible that she had made preparations for moving out by having boxes in the house before June 2004, but she did not think that they would have been present in the living room in April and May 2003.
The next Crown witness was MU, the son of SB. He remembered living at an address in Theodore and thought that it could have been in 2002 or 2003. At the time he gave evidence, MU was 23 years of age. He was 14 in 2002, and 15 in 2003. He recalled the accused staying at their house, and initially testified that he believed that this occurred in 2002. Subsequently he said that he thought that he first met the accused in 2003. He met the accused through his sister, after the accused had moved from Queensland. MU also knew JR, the complainant. He met her at around the same time as he met the accused. He believed that the accused only stayed at their house for a couple of months. From time to time JR would attend his house with the accused, but he could not remember the dates. He said that sometimes they would just sit and listen to music and talk. MU recalls that there were a couple of times when he was in a different room on a computer when the accused and JR were in the bedroom. At those times he thought he heard noises like moaning. After a few months the accused moved out and into a town house in Isabella Plains.
MU agreed in cross-examination that the accused stayed at his house in Theodore when he came down from Queensland. He agreed that he may have stayed for a month or perhaps less. He was not able to remember when this was. He was asked in cross-examination whether after the accused moved to Isabella Plains, later that year he came back and stayed at the house at Theodore for a while. MU said that he did not remember that. He was not sure whether it was possible that that could have happened. He agreed that he told police that before the accused moved out of the house at Theodore, the accused and JR had broken up.
CR was called to give evidence by the Crown. In October 2002 she moved into premises in Isabella Plains. The accused moved into those premises in April or May 2003. She remembered the date because her brother moved out just after her birthday in April. She testified that the accused told her that he had moved from the Sunshine Coast not long before, and that he had been living with a friend in Canberra until he moved in with CR. He said that he had moved to Canberra for a girl that he had met on the internet. He told CR the first name of the girl, which is the same as the first name of JR, the complainant. CR said that the accused moved out in October 2003 when the lease of the premises was up for renewal.
During the course of the Crown case the accused tendered a copy of an Interim Personal Protection Order obtained in the ACT Magistrates Court on 16 January 2004. The accused was the applicant for the order, and JR was the respondent. The order prohibited JR from being on premises at Theodore, being the same premises occupied by SB and MU.
The defence case
The accused gave evidence. He testified that he is 29 years of age, having been born in 1983. He is an apprentice carpenter. He agreed that he knows JR, having first had contact with her halfway through 2002 on a site on the internet. At that time he was living on the Sunshine Coast in Queensland. He was living with friends at that time, and his father was living in Grenfell in New South Wales. He first met the complainant in person in August 2002 when he came to Canberra to participate in the Zone 3 competition. On that occasion she sat with him in his car near the Shell Service Station in Tuggeranong. During their conversation they took photographs of each other, so that each would have a photograph of the other. The accused testified that the photograph that JR said was taken on 13 April 2003 was actually this photograph. If that were the case, one would expect that the accused and not the complainant would have retained possession of this photograph. This apparent anomaly was not explored in cross-examination.
On this occasion the accused was in Canberra for one week. He then returned to Queensland. He returned to Canberra on 16 April 2003. Initially, he intended staying in Canberra for only two weeks, intending to return to Queensland, but he obtained employment with Simply Fresh Fruit Market in Woden in the Australian Capital Territory and decided to stay. He was also being paid a supplement by Centrelink, and from time to time updated his personal details at Centrelink. In that regard the accused produced and tendered as exhibit 8 a document setting out his residential address history as provided by Centrelink. This showed the accused residing at various addresses in Queensland until 13 May 2003, when he notified Centrelink of his move to the Isabella Plains address. Significantly, it shows that the accused notified Centrelink of residing at the Theodore address of SB and MU from 21 November 2003, until he notified Centrelink of a subsequent address in Florey in September 2004. It is not suggested by the accused that he, in fact, resided at Theodore until September 2004, suggesting some delay on the part of the accused in updating his details on Centrelink.
The accused testified he lived at the Theodore address for just over three weeks when he came to Canberra in April 2003. He then moved to Isabella Plains. The accused did not agree with CR’s evidence that he left the Isabella Plains address in October 2003, testifying that it was, in fact, midway through November 2003.
The accused testified that he left Queensland on 11 April 2003 and drove to his father’s house in Grenfell in New South Wales. The next day his car would not start, and there being no mechanics available in Grenfell on the weekend, he was unable to leave Grenfell until Wednesday 16 April 2003, when he drove straight to Canberra. He went straight to the complainant’s house. He and the complainant drove to Lanyon Marketplace where they had lunch. He then drove her home. His car broke down in front of the complainant’s home and later had to be towed away.
The accused produced and tendered as exhibit 9 bank records for his bank account showing transactions for the period November 2002 to May 2003. Of significance, the bank records show withdrawals from the accused’s account via ATMs in Queensland as late as 2 April 2003. The first withdrawal in the ACT is on 16 April 2003 at 2.22 pm. This accords with the accused’s evidence that he withdrew money from an ATM in Conder in the ACT on the day that he arrived in Canberra. These records are also inconsistent with the evidence of the complainant that the accused had arrived in Canberra in February or March 2003.
The accused testified that he had engaged in sexual intercourse with the complainant, but said that it occurred after the complainant turned 16 in October 2003. Initially this occurred at the house at Isabella Plains, but subsequently also occurred at the address of SB and MU in Theodore. The accused testified that after leaving the house at Isabella Plains, he returned to live for some time at the address in Theodore.
On behalf of the accused his mother, Carol Reynolds gave evidence. In 2002 and 2003 she was living in Queensland. The accused lived nearby. She and her husband, the father of the accused, had separated 18 years earlier. Her former husband was living in Grenfell in New South Wales. She was able to remember when the accused left Queensland to travel to Canberra via Grenfell because it was the weekend before the accused’s twentieth birthday, which she was going to miss. Ms Reynolds also remembered that Easter fell on that day as well. She remembered that she gave the accused some gifts, as did his sister, before he left. He rang her the night that he left to say that he arrived safely in Grenfell and that everything was fine. He then rang upset on the Sunday saying that his car would not start so he was going to have to stay with his father for a few days until he got it fixed. She testified that the accused rang her on Wednesday 16 April 2003 from Canberra, and was again upset because his car had broken down.
The accused’s father was unavailable to give evidence as he died in January 2009.
The tendency application
The Crown served a Notice of Intention to Adduce Tendency Evidence dated 6 June 2011, identifying the evidence to be led for this purpose as:
a) the accused engaging in sexual intercourse with the complainant on 13 April 2003;
b) subsequent to 13 April 2003 the accused and the complainant regularly engaged in sexual intercourse and other sexual activity;
c) up to and during May 2003 the accused and the complainant engaged in sexual intercourse at a nominated address in Theodore; and
d) the accused and the complainant engaged in sexual intercourse at a nominated address in Isabella Plains.
The Notice states that this evidence is to be led to establish the following tendencies on the part of the accused:
a) a tendency to engage in sexual intercourse with the complainant in the context of a relationship between the two that commenced in 2002/03; and
b) a tendency to intend to engage in sexual intercourse with the complainant in the context of a relationship between the two.
In the context of this case the Crown application is misconceived. Tendency evidence is led for the purpose of establishing that the accused committed the offence charged against him or her. The act of sexual intercourse alleged by the Crown to constitute the offence cannot be an act relevant to the proof of the charge by way of tendency reasoning. It is the very act to be proved. Additionally, the issue in this case is not whether sexual intercourse occurred between the complainant and the accused, but when it occurred. Proof of either of the tendencies sought to be proved by the Crown could not be relevant to proving that the accused and the complainant engaged in the act of sexual intercourse alleged to constitute the offence charged. Additionally, proof of a tendency on the part of the accused to engage in sexual intercourse with the accused can have no probative value where the illegality of any such act by virtue of the age of the complainant is seriously in issue.
It was conceded by the accused, and properly so, that the evidence was admissible as relationship or context evidence. If it was established that the accused and the complainant were engaging in sexual intercourse in the period May to October 2003, it would increase the likelihood that the first act of intercourse occurred before that period. But the use of the evidence in this way does not involve tendency reasoning.
Conclusion
The Crown case relies heavily on the evidence of the complainant. She appeared to me to be a witness who was endeavouring to tell the truth. However, she was unusually unclear on the dates when events occurred, except for the date of the act of intercourse alleged to constitute the offence. Her recollection of the date of this alleged act of intercourse was based on her belief that it occurred on the date she wrote on the bottom of the Polaroid photograph. This evidence, and much of the balance of her evidence, I felt to be the product of reconstruction rather than genuine recollection.
The original of the Polaroid photograph was not produced, so that an examination of the date written on it could not be undertaken with a view to seeing whether it has been overwritten. As such some doubt must attend its probative value.
The evidence of JO could not assist the Crown in establishing whether sexual intercourse occurred during the period alleged.
The evidence of SB would suggest that if acts of sexual intercourse involving the accused and the complainant took place at her address at Theodore (as the accused admits) it must have been in the first half of 2003. However, the accused’s evidence that he returned to reside at the Theodore residence after moving out of Isabella Plains is supported by the evidence that the accused nominated that as his address with respect to proceedings in the ACT Magistrates Court in late 2003 to early 2004, and for Centrelink purposes in November 2003. At that time the accused was not the subject of this charge, so there can be no reason associated with this charge for him nominating that address as his residence at that time. It is also supported by the evidence of MU that the accused and the complainant had broken up before the accused left the Theodore address.
The accused’s bank records appear to contradict the complainant’s evidence that the accused was residing in Canberra for a month before she says the first act of sexual intercourse occurred on 13 April 2003.
Ordinarily, the date of an offence specified in a charge is not an essential element of the offence, but in some cases it may be. An example of such a case is the present, where the age of the complainant is an essential part of the charge: see R v H (1995) 83 A Crim R 402.
The evidence of the accused that he was in Grenfell in New South Wales during the period specified in the charge is supported by the evidence of his mother. There was nothing about the evidence of the accused, or the manner in which it was given, that would allow me to reject his evidence. The Crown evidence was not so cogent, in my opinion, as to allow me to reject the evidence of the accused.
I find that I have a real doubt as to whether the accused committed the offence. He is entitled to the benefit of that doubt. I enter a verdict of not guilty.
I certify that the preceding forty seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 31 August 2012
Counsel for the prosecution: Ms M Moss
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Mr K Archer
Solicitor for the accused: Kamy Saeedi Lawyers
Date of hearing: 18-19 June 2012
Date of judgment: 31 August 2012