R v John William Geaghan
[2008] ACTSC 102
•15 September 2008
R v JOHN WILLIAM GEAGHAN
[2008] ACTSC 102 (15 September 2008)
EX TEMPORE JUDGMENT
No. SCC 413 of 2007
Judge: Higgins CJ
Supreme Court of the ACT
Date: 15 September 2008
IN THE SUPREME COURT OF THE )
) No. SCC 413 of 2007
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
JOHN WILLIAM GEAGHAN
ORDER
Judge: Higgins CJ
Date: 15 September 2008
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty be entered.
This is a charge pursuant to s 76 of the Crimes Act 1900, as it was in 1979. The provisions in question were repealed in 1985, but at the time, and this is the time at which the behaviour becomes criminal, the charge was indecent assault and stated a person who assaults a female, and at the time of, or immediately before or after, the assault commits an act of indecency upon, or in the presence of, that female, is liable to imprisonment for 3 years or, if as here, the female is under the age of 16 years, to imprisonment for 5 years. There is a limitation defence which does not apply in the present case, because that applies only in the case of a female alleged to have been over the age of 14 years and under the age of 16 years. However, as I say, that is not relevant for the present purposes.
That is the accusation which the Crown makes and the accused, having opted for trial by judge alone, and that option having been duly accepted, I have to apply the directions given to a jury and approach the case in deciding it as if I were a jury, as far as the facts are concerned. I note that the burden of proof, of course, rests upon the Crown, it does not shift to the accused whether or not the accused chooses, as he did in this case, to give evidence. The Crown must prove the case to the criminal standard of proof which is beyond reasonable doubt.
The elements of the offence that the prosecution must prove are an assault and at the time of, or immediately before or after the assault, an act of indecency. In this case, on the Crown case, there was an assault by reason of pushing the complainant down the bed, that is, under the covers, and the act of indecency is an act of causing the complainant’s mouth to take the penis of the accused. If made out, that would be an act of indecent assault. I need not elaborate on assault, I suppose, but it is the application of force to the person of another without the consent of that person, and in this case, of course, as far as the act of indecency is concerned, consent is no defence anyway.
The facts of course are proved, if at all, by the evidence which has been adduced; that has been the evidence of the accused’s step-daughter, the complainant, supported insofar as it is, by the evidence of her cousin Catherine Therese Curran. I note that in any assessment of that evidence, I must bear in mind the fact that the accused is presumed to be innocent, as indeed he is at the outset, and remains so until the prosecution have, by evidence, displaced that presumption and displaced it to the criminal standard.
There can be no question in this case that if the accused did the act complained of, he would have done so with an appropriately criminal intent. There is no suggestion that could be made to the contrary. The question is what does the evidence then establish? Certainly, the evidence of the complainant, if taken alone, disclosed a situation where she says that after a time when she was living in the same household with the accused and his current wife, her mother, there was sexualised conduct, in the sense of language, for a start, and, second, behaviour to the extent that the accused was said to frequently be naked.
She describes an incident when she was about eight or nine years old where the accused had been in his bedroom naked. She said that, when she was about eight or nine, he seemed fascinated with her chest. The incidents complained of arose however, only when her mother, the accused’s present spouse, was pregnant with her sister, who was also, I will mention, later a witness. The complainant gave a description of an incident in which the accused was, as she would now describe it, masturbating. She then said she did not know at the time what he was doing or why. She walked to the other side of the room and there was a conversation, she said, where the accused said, “I’ll teach you how babies are made”, described fertilisation and then ejaculated.
Again, if that were to be proved or be accepted it would be an incident that, for present purposes, would indicate inappropriate sexual behaviour in the presence of a minor, and might tend to support the allegations that the witness made about the subject behaviour in question that occurred when she was, as the Crown alleged, pushed down the bed under the covers. She was clothed, he was naked. She said he did not use excessive force but pushed her down, and caused his penis to become level with her mouth, and then put his penis in her mouth. He moved it in and out, she said, but did not ejaculate and stopped. She does not recall why or how. She felt, she said, very ashamed.
She spoke to her mother. She cannot recall what she said, but it was within a month or so of that event. It is difficult to know whether what she said, because she cannot tell us, was anything specific or just a general complaint of some bad behaviour. I simply cannot deduce from what she says what she did say, or what she says she said to her mother. She does say that whatever she did reveal she was not believed. Her mother was disgusted with her and she says she felt uncomfortable but had nowhere to go.
Now, it may be noted after that, despite that, of course, as Mr Sabharwal points out, she still confided with and confided in her step‑father. She makes no complaint about his conduct. She continues, as far as I can see, or as far as the evidence goes, to carry on as before, which seems to include going into his bed when he was naked, but while the mother was either showering or doing something of a similar nature. It is not till a little later that she changes that pattern of behaviour.
She continued to use the name of Geaghan. She did not change her name at all until 1996, and I would relate that, and I imagine she would too, to the incident which occurred in 1995 that has been called ‘the champagne party’. Apart from the incident in 1995 when she referred to some kind of misconduct, at least inferentially if I take the content of it to be as her sister recalled it to be, and I say that because, although she says that she made mention of things, she was not specific about what it was, if anything, she particularly said.
She did inform the Court that she had, after that it would seem, counselling from the Incest Centre, the Rape Crisis Centre, and CentaCare in Brisbane. What that counselling involved was not revealed in evidence but it obviously would indicate that she spoke of what it was that was troubling her at the time. She did not speak to police about this matter until March of 2007. There was a reference to antidepressants and, as far as the rest of any treatment or counselling is concerned, it was left completely non-specific.
In cross‑examination, I think it would be fair to say, the lack of specificity was simply reinforced. Again, I have to say that is not, of itself, surprising because of the lapse of time, that it would be very difficult to imagine that one could be terribly specific about such conversations and activities, but nevertheless that is a difficulty under which the Court must labour, and with which it must grapple.
Now, it has to be said, I think, that in my assessment of the evidence as given by the complainant, I could detect nothing in what she said which would indicate that she was telling untruths. Certainly, I would not have come, and do not come, to the conclusion that she was deliberately making up a knowingly false story. I know that does not end the matter, and I go then to the evidence of Catherine Curran.
In essence, while her evidence does confirm, what I would call, some rough behaviour on the part of the accused, the only matter that seems to be inappropriately sexual on his part - certainly his nakedness from time to time, or semi nakedness, might have been a bit unwise, and his language was certainly not something she approved of - there was an occasion when she was walking behind the complainant, and the accused was walking towards the complainant when he appeared to pinch the complainant’s chest. She fairly conceded she could not actually see that, but that the complainant said something to the effect, she said, “You can’t touch my breasts. They belong to me”.
Now, that was not something that the complainant herself confirmed as having happened. Again, lapse of time may explain that, but I simply make the observation that it was certainly not confirmed as having occurred by the complainant, as well it was rejected as a suggestion by the accused. Certainly, Ms Curran agreed that there was, what I would call, some degree of crude banter about the complainant’s well developed chest. Although they shared secrets to some extent, she does not claim that that complainant confided in her of the inappropriate sexual conduct by the accused, but then again, as I say, I do not know that that would be something which I would necessarily expect.
The accused gave evidence and, in making that observation, I note that he did not have to do so. He did not have to expose himself to cross‑examination; he is entitled to rely upon the presumption of innocence should he wish to do so. So that is a voluntary decision on his part. I would add too that the accused in the course of his evidence asserted that he was a person of good character, certainly in the sense that he had no prior convictions of any relevant kind. He had some speeding matters he said, but that is hardly relevant for present purposes, and the prosecution certainly does not assert otherwise, and I have to take that into account in two ways.
Firstly, I have to accept that a person who is of previous good character would be less likely to have committed acts of the kind which are complained of here, whether deliberately masturbating in front of a juvenile or, the subject of the charge, forcing a juvenile to engaged in fellatio with him. The second aspect of it, which I take into account, is that a person who is of previous good character is the less likely deliberately to attempt to deceive a court by giving false evidence.
The accused conceded that his language was somewhat earthy. He conceded that he would frequently go about the house, if not naked then nearly so, and there might have been occasions when, although dressed in a towel, the towel may have slipped. He saw no harm in it at the time, and 28 to 30 years ago was when it happened. Of itself, it does not assist much one way or the other, but it would depend on the intent with which it was done and the impression one got from it. One can understand some people might, nevertheless, have been uncomfortable about it. He does concede that on one occasion the complainant walked into his bedroom when he was masturbating and caught him in the act. He says, however, that she was required to leave very shortly afterwards and did so. He certainly does not agree that he engaged in the conversation which the complainant says he engaged in.
He says that after the 1995 event he was not told of anything that his step‑daughter had said. Now, it seems to me a little unlikely, I must say, that there be no hint given by either Mrs Geaghan or anybody else that had been present as to what had been said. But, on the other hand, what was said, according to Ms Geaghan, was not terribly specific either, and, indeed, I will add that Ms Curran was not specific about anything she had been told. In any event, she was not at that particular function as far as I know.
There is that element of, if you like, doubt about the accused’s evidence but it is the prosecution who bears the onus of proving the case against him. He did reject quite firmly any sexual act that was alleged against him. He did say it was a terrible story. He did agree that he knew that in March 2007 his daughter, Moira, had been called to a car park and he had been told on subsequent occasions, when his step-daughter was visiting, to keep out of the way by Mrs Geaghan, but he did not know why. I must say I think that might be just a bit unsatisfactory, nevertheless.
Mrs Geaghan gave the history of their relationship which was not, I have to say, in any degree in dispute. She says that while she was pregnant, which is the time we are talking about in relation to the charge, she was told by him of an incident where her daughter, his step-daughter, had walked in on him while he had been masturbating. She cannot recall now what she did about that, but she thought she certainly would have done something. I am left to guess what that might be and, of course, what she was told is consistent, in a sense, with either event. It is not inconsistent with concern on the part of the accused that he might have had his misconduct reported to his wife and getting in first to make sure that his version was established first. On the other hand, it may be that what was stated was indeed that which had happened. Again, I have to bear in mind the fact that it is the prosecution that bears the onus of establishing the adverse inference, the more adverse inference, rather than the less.
Mrs Geaghan said that she became aware of the allegation in 1995. Four of them, including, obviously, her daughter, had been drinking. The account she had of it was she said that she, her daughter, exploded. She said that John (the accused) had done something and that “she had had hypnosis, it was wrong and it came out”. She would not talk any further then. The next year she gave Mrs Geaghan some details but she only got anything specific last year, that is when the charges were preferred and, of course, the prosecution brief was presented.
In cross‑examination she said that there seemed to be a good relationship between her daughter and Mr Geaghan at first, but she had said nevertheless that she could talk to him. Mr Geaghan’s language was, I think she agreed, less than desirable, she said the word “slut” was not unusual which did upset her, but she did not recall the term “whore” being used. She recalled some odd sayings which were not dissimilar perhaps to those which were alleged, but not the same as those which are alleged by the complainant, such as “getting up and down like a dick in a orgy” - that kind of remark.
She agreed that in hot weather he, the accused, would wear just undies and when just out of the shower might only wear a towel. There were comments, she agreed, about the complainant’s breasts. She agreed she had to ask the accused to stay out of the way after 1995, the incident I have just mentioned, because there was a complaint but she did not know precisely what it was. Further in cross‑examination she stated that she thought there were other persons who might have been, perhaps, responsible for some act of child molestation in respect of her daughter but she did not think it was the accused. That is fairly vague and it is not something which was explored with the complainant either.
Ms Geaghan herself, of course, was not even born when the actions alleged to have taken place took place, so she obviously cannot be expected to shed any light on those. She was present at the party in 1995 however, and her recollection of what was said was, “You can stick your child molesting family. I’m out of here”, Ms Geaghan said. The complainant then left. A rather sudden explosion. She said her mother drove after the complainant who confirmed that she did not want anything to do with the family. She did not tell her father of it.
It was not until 16 March 2007, it seems, that she spoke to the complainant again, and the explanation she was given, according to her recollection of it, was that the complainant did not want to be part of a family that condoned child abuse. She did name her step‑father in that context, but said she had also been made to feel like a sexual object by a number of men and she mentioned some names with which Ms Geaghan was familiar, but I do not know what their relationship, if any, was to either of them.
In that context, obviously, it is a difficult situation. There are only two persons present at the time when the act which is the subject of the charge took place. It is clear that it is a long time since these events took place and whatever may have been available as contextual evidence at the time is clearly no longer available. That is not anyone’s fault, it is just the fact of the lapse of time. The case of Longman v The Queen (1989) 168 CLR 79 makes it plain that in such a circumstance I have to, in fairness to the accused, and in fairness generally, consider the problem of the lack of specificity which that situation creates.
In some cases there may be evidence which clearly points to the guilt of the accused, even though it may not be sufficient by itself to prove it. It has sometimes been called contextual evidence, relationship evidence, however it might be so described. In the present case while there is some evidence of what in some circumstances would be regarded as sexually inappropriate behaviour in a general sense, there is nothing otherwise that is confirmed from any source, other than that of the complainant, of any such conduct.
As I have said at the outset, this is not to say that the complaint’s evidence is such that I would positively disbelieve it, but that is not the situation in which I must find myself at the end of the case. I must find myself in a situation where not only do I positively believe it, but I believe it to the necessary criminal standard of beyond reasonable doubt. There are some elements which give rise to some doubt, the delay itself is one of them, the conduct of the complainant up to the time of the 1995 party is another, and there is simply a lack of explanation about what happened that led to the 1995 outburst that might either confirm, or perhaps cast doubt upon, its veracity.
In those circumstances I have to say that I have a reasonable doubt about the guilt of the accused and must therefore enter a verdict of not guilty.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 15 September 2008
Counsel for the Crown: Mr a Doig
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the defendant: Mr J Sabharwal
Solicitor for the defendant: Rachel Bird & Co
Date of hearing: 15 September 2008
Date of judgment: 15 September 2008
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