R v Joseph - [2010] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JOSEPH
Criminal Trial by Judge Alone
[2010] SADC 27
Reasons for the Verdict of His Honour Judge Chivell
11 March 2010
CRIMINAL LAW
Procedure – Fitness to Plead or be Tried – Other Matters
Accused found mentally unfit to stand trial – investigation into whether objective elements of offence charged have been established
Particular Offences – Offences against the Person – Sexual Offences
Accused charged with one count of unlawful sexual intercourse - Investigation into whether objective elements of offence have been established – objective elements found to have been established – accused declared liable to supervision
Criminal Law Consolidation Act 1935 (SA) s49(1), s 269B, s 269B(1), s 269H, s 269I, s 269J, s 269K(2), s 269L, s 269M A(1)(b), s 269M A(5), s 269M B(2), s 269O(2), s 269W(2); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 9, s 34CB, s 34M; Juries Rules 1996 (SA) r 8, r 16, referred to.
R v T (1999) 75 SASR 235; R v Hillier (2007) 228 CLR 618; Dalton v State of South Australia [2010] SASC 45 ; R v BFB (2003) 87 SASR 278; Longman v R (1989) 168 CLR 79; Doggett v R (2001) 208 CLR 343; R v Gallagher (1986) 41 SASR 73; R v Mustafa (2005) 91 SASR 62; R v Humble [2009] SASC 378; R v Wannan [2006] SASC 151, considered.

R v JOSEPH
[2010] SADC 27
Introduction

Christopher John Joseph is charged with one count of unlawful sexual intercourse with a person under 14 (to whom I will refer as “F”), contrary to section 49(1) of the Criminal Law Consolidation Act, 1935 (“CLCA”). The particulars of the offence are as follows:
Christopher John Joseph on the 27^th day of September 2007 at Valley View, had sexual intercourse with ‘F’, a person of the age of six years.
Mental Fitness to stand trial
Mr Lang, counsel for Mr Joseph, intimated by letter prior to the trial that he intended to raise the issue of whether his client was mentally fit to be tried. Sections 269H and 269I of the CLCA are as follows:
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)     unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)     unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)     unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
269I—Presumption of mental fitness to stand trial
A person's mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial.
When the trial was called on, and before arraignment, Mr Lang raised the issue again. He produced reports of Dr M O’Neill dated 14 November 2008, Ms K King dated 30 October 2008, Dr R Young dated 13 August 2008, Dr C Raeside dated 30 March 2009 and Dr J White dated 21 July 2009.
On the basis of those reports, and with the concurrence of Ms Davison, counsel for the Director of Public Prosecutions, I ordered an investigation of Mr Joseph’s mental fitness to stand trial pursuant to s 269J of the CLCA. Mr Lang, on behalf of his client, elected that the investigation take place by me sitting without a jury pursuant to s 269B(1) of the CLCA.
There appeared no prospect, on the basis of the reports, that Mr Joseph’s condition would improve so that there was a reasonable prospect that he might regain the necessary mental capacity to stand trial over the next 12 months, so an adjournment pursuant to s 269K(2) of the CLCA was not indicated.
It was agreed, and I determined pursuant to s 269L of the CLCA, that the question of Mr Joseph’s fitness to stand trail should be tried first.
With the concurrence of counsel, I ordered pursuant to s 269M A (1)(b) of the CLCA that Mr Joseph undergo further examinations by Drs Raeside and Young, and that further reports be provided.
These reports were provided within a day, and I record my gratitude to both Dr Raeside and Dr Young for their cooperation and promptness in providing these reports.
Upon receipt of those reports, both dated 2 March 2010, the result of the investigation became clear, and with the agreement of both counsel I terminated the investigation pursuant to s 269M A(5)(a) of the CLCA, and recorded a finding pursuant to s 269M A(5)(b) that Mr Joseph was mentally unfit to stand trial.
Trial by Judge sitting without a jury
Mr Lang, in the exercise of the discretion vested in him as counsel pursuant to s 269W(2) of the CLCA, exercised his client’s entitlement to elect to be tried by a judge sitting without a jury, pursuant to the Juries Act 1927, s 7. Having regard to the unusual circumstances, and in particular the recent declaration of unfitness to stand trial, I dispensed with compliance with the time limits imposed by Rule 8 of the Juries Rules 1996, pursuant to Rule 16 of those Rules.
In retrospect, having regard to the provisions of s 269B of the CLCA this latter election may not have been effective, and a further election under s 269B(1) to have the investigation into whether the objective elements of the offence have been established heard by a judge sitting without a jury might have been more appropriate. In any event, such an election was inherent in the way the second part of the hearing proceeded, and hence such an election can be inferred from that.[1]
[1] See R v T (1999) 75 SASR 235 per Doyle CJ at [30]
The objective elements
Before a finding can be made that the objective elements of the offence have been “established”, I must be satisfied beyond reasonable doubt of those elements on the basis of the evidence and representations put to the court by the prosecution and the defence.
Those elements are:
1. That there was an act of sexual intercourse.
Section 5 of the CLCA provides that the penetration of a person’s anus by any part of the body of another (which obviously includes the penis) is sexual intercourse for the purposes of the Act.
2.That at the time of the act the alleged victim was under the age of 14 years.
This element is not in dispute. F’s birth certificate[2] establishes that he was born on 24 January 2001, so on 27 September 2007 he was 6 years old.
[2] Exhibit P2
The evidence of F
F is now 9 years old. Having regard to his age, I asked him some questions in order to determine if he had a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. I determined that he did not have a sufficient understanding, but determined that he understood the difference between the truth and a lie, and he told me that he promised to tell the truth. I permitted him to give unsworn evidence on the basis of that.[3]
[3] See Evidence Act 1929 s 9(1) and (2)
Counsel were agreed that there was no need, in the circumstances, to give myself the warning required to be given to a jury in these circumstances,[4] however I keep in mind the need for caution in determining whether to accept the evidence, and in the weight to be given to it.
[4] Evidence Act 1929, s 9(4)
F said that on the day in 2007, he and Mr Joseph’s younger brother Dylan, who was about the same age as him, went down to the creek behind the house occupied by Mr Joseph’s mother, Kym Blackwell, at Valley View. F and his mother were visiting Mrs Blackwell and her family at the time. F said Mr Joseph went with them. He said that when they were near a tree behind the house,[5] Mr Joseph pulled down his shorts and “jocks” and put his “first private part” in F’s bottom. He said he ran inside to his mother because he was “scared”.
[5] depicted in photograph no 15 in Exhibit P1
I agree with the comments of Mr Lang that there were several inconsistencies in certain parts of F’s evidence, for example whether he actually saw Mr Joseph’s penis or not. He gave contradictory answers about that. However, I believe that these inconsistencies were not surprising in a witness of F’s age.
F’s mother said that the boys had been away from the house for 30 to 40 minutes when F came back to the house “puffed and panicky”. She described him as a “terrified little boy”. F said words to the effect that Dylan needed help. F’s mother said they all ran down to the creek. She knew that Dylan was a chronic asthmatic. However, the main problem seemed to be that Dylan had urinated in his pants.
The whole group then returned to the house. Dylan changed his clothes. F’s mother said it was time to go, but F wanted to play with Dylan a bit longer. They stayed for about an hour and then prepared to leave, at about 5.00pm. After they got in the car, F told her that Mr Joseph had put his “doodle up my bum”.
F’s mother said she rang Mr Joseph’s sister Bianca, and asked her to come out to the car. Bianca came out and F repeated the story. They all went inside and told Mrs Blackwell, and F’s mother called the police.
The medical examination
F was examined by Dr John Bethell, a consultant paediatrician, at the Child Protection Unit at the Women’s and Children’s Hospital between 9.15 pm and 10.45 pm that night. Dr Bethell said that F complained that his “bum” was sore. Dr Bethell applied a local anaesthetic to the area before examining F with a colposcope. The examination was recorded on video. Dr Bethell said he noted that the area around F’s anus was “very bruised and red” in what he called a “butterfly shape”, and that the anal orifice was swollen so that it presented a vertical line rather than a circle. Dr Bethell drew a diagram of these features[6], on which he also marked a number of lacerations (tears) of the skin.
[6] Exhibit P4
Dr Bethell said that, in his opinion, these lacerations were caused by a “hard firm object” causing shearing forces on the skin, and they were not incisions or abrasions caused by a sharp or a rough object. He said the marks were consistent with being caused by an erect penis.
Dr Bethell indicated on a diagram[7] the extent to which these lacerations were beyond the entrance to the anal canal. It is sufficient to say that his evidence was clear that the object causing these injuries had penetrated F’s anus for the purpose of the definition of sexual intercourse quoted above.
[7] Exhibit P5
Dr Bethell’s evidence, which I accept, was that these injuries were in such a position that they clearly indicated that the object which caused them was pushing against the anal sphincter from the outside–in. I reject, on the basis of this evidence, that there is a possibility that these injuries could have been caused by F having passed a hard stool, or by F falling on an object or otherwise suffering these injuries accidentally. I also note the evidence of F’s mother that he had not been constipated prior to this incident.
The DNA evidence
Dr Duncan Taylor gave evidence that certain forensic investigations were performed on items of evidence submitted by the police.
Firstly, a tapelift of brownish stains on the inner front/crotch region of Mr Joseph’s underpants was analysed. On DNA profiling using the “Profiler Plus” technique, the results were that Mr Joseph was not excluded as a donor to the mixed DNA sample analysed, and that it was inconclusive as to whether F was another donor to the sample.
The “Y-filer” technique was also used to analyse the sample, and the results were clearer. This technique involves analysis of the Y-chromosome which is confined to males, and is passed from father to son. Again, a mixed sample was indicated, and the conclusion was that the major component “matched” the reference sample provided by Mr Joseph – this was not surprising since these were his underpants.
However, the minor component “matched” the reference sample provided by F. The samples were compared with databases, developed by Forensic Science SA. From a database consisting of 1028 Caucasian males, the estimate is given that, apart from a direct male ancestor, this DNA would be found in 1:364 males, and as to the Aboriginal database (of 752 males), this DNA would appear in 1:251 males.
These are relatively small databases and relatively frequent repetitions, compared with the sorts of figures often seen with the “Profiler Plus” method. Frequencies are often as low as 1:1 million.
Having regard to these small databases. I consider that this evidence is of relatively minor probative value, although it is an item of circumstantial evidence which can be weighed along with all the other circumstantial evidence in deciding whether there is an inference consistent with innocence which is reasonably open.[8]
[8] See R v Hillier (2007) 228 CLR 618 at [46, [48], and Dalton v State of South Australia [2010] SASC 45 at [50]
Recent Complaint
Since these events took place in September 2007, s 34M of the Evidence Act, 1929 which applies to cases where the information was laid in this Court on or after 23 October 2007[9], is inapplicable and the common law rules relating to “recent complaint” apply.
[9] The information in this case was laid on 19 May 2008
As to F’s first statement to his mother in the car as they were about to leave Ms Blackwell’s premises, I find that the complaint that Mr Joseph had “put his doodle up my bum” was spontaneous, not the result of prompting, and was made at the first reasonable opportunity, namely the first occasion he was alone with mother.[10]
[10] See R v Gallagher (1986) 41 SASR 73 per King CJ at p 77-8, R v Mustafa (2005) 91 SASR 62 at [56], R v Humble [2009] SASC 378
In my view, evidence of this statement demonstrates the consistency of F’s conduct, and it thereby enhances the credibility of F’s evidence of these events.[11]
[11] R v Wannan [2006] SASC 151 per Doyle CJ at [68]
Defence Case
It is trite law that Mr Joseph bears no onus to prove or disprove anything in these proceedings. No inference which is adverse to him may be drawn from the fact that no such evidence was adduced.
That is especially so having regard to the information about Mr Joseph which is contained in the various reports tendered at the outset. I accept that it would have been very difficult for him, and probably harmful to him, if he gave evidence about these matters.
Forensic Disadvantage
It is clear that Mr Joseph faces a forensic disadvantage in light of his mental health issues. These disadvantages are not dissimilar to the difficulties faced by a person when a complaint of sexual offences has arisen after a substantial delay. Another circumstance which is also significant in this case is that F’s evidence was unsworn. I have already mentioned that this factor alone creates the need for extra caution when scrutinizing F’s evidence.
As I have already observed, the 2008 amendments to the Evidence Act do not apply to this case. Hence, s 34CB, which abolished the so-called “Longman warning”, has no application. I am therefore bound by High Court authority to consider the need for a warning having regard to the circumstances of this case.
In Longman v R (1989) 168 CLR 79, the High Court made it clear that a warning to a jury must be given “whenever a warning is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case”.[12]
[12] Per Brennan, Dawson and Toohey JJ at p 86
A substantial delay between the alleged offence and the complaint is only one example of such a circumstance.[13] In that case, Doyle CJ at [36] said that a warning of the danger of convicting on the evidence of the complainant, rather than simply a comment or a caution should be given in such circumstances. Mulligan J, agreeing, said:[14]
In my view, a Longman direction should be given when, in the circumstances of the particular case, the delay is such that the accused is likely to suffer forensic disadvantage.
[13] See R v BFB (2003) 87 SASR 278 per Doyle CJ at [37]
[14] at [55]
Such a warning is required whether or not the complainant’s evidence is corroborated.[15] I therefore bear in mind that it would be dangerous to convict Mr Joseph on the evidence of F unless, after scrutinising the evidence with great care, and keeping in mind the circumstances giving rise to the forensic disadvantage, I am satisfied beyond reasonable doubt about the truth and accuracy of F’s allegations.
[15] Doggett v R (2001) 208 CLR 343 at [45] [139]
Conclusion
The evidence of F was clear, and allowing for some inconsistencies to be expected of a 9 year-old recalling events of more than 2 years earlier and for the fact that his evidence was unsworn, I accept it as truthful and reliable. The credibility of his evidence was bolstered by the fact that F complained of Mr Joseph’s behaviour, in consistent terms, to his mother at the first reasonable opportunity.
I find that F’s evidence was corroborated in a material particular by the evidence of Dr Bethell, which established that F’s anus, and the area surrounding it, had been the subject to recent trauma by the insertion of a hard, smooth object into his anus.
I also take into account the DNA evidence, which I regard as a piece of circumstantial evidence of relatively slight probative value when considered alone, but which, when viewed as part of the totality of the evidence, is consistent with Mr Joseph having acted in the way F described.
Considering the totality of the evidence before me, and bearing in mind the warning described above, and having scrutinised the evidence of F with great care, I conclude that I am satisfied beyond reasonable doubt that the objective elements of the offence charged have been established.
Having made that finding, I am obliged by s 269M B(2) of the CLCA to declare Mr Joseph liable to supervision under Part 8A of that Act. I will hear counsel further as to the length of the limiting term.[16]
[16] See s 269O(2) of the CLA