R v Landmeter - [2006] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v LANDMETER
Reasons for Decision of His Honour Judge Anderson
25 January 2006
CRIMINAL LAW
Indecent assault - dispute of facts

R v LANDMETER
[2006] SADC 2

Upon his arraignment, the Accused entered pleas of guilty to the following three counts on the Information of 11 July 2005:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Henricus Landmeter between the 1^st day of January 1984 and 26^th day of February 1984 at Para Hill West, indecently assaulted V, a person of the age of 12 years.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Henricus Landmeter between the 1^st day of January 1984 and 26^th day of February 1984 at Para Hill West, indecently assaulted V, a person of the age of 12 years.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Henricus Landmeter between the 1^st day of January 1984 and 26^th day of February 1984 at Para Hill West, indecently assaulted V, a person of the age of 12 years.
The particulars relied upon by the Crown, in relation to each separate count, were identified by Miss Wildman, who appeared on behalf of the Director of Public Prosecutions (“the Director”), from page 16 of the statement of the complainant, (“V”), as:
Count 1: that the prisoner kissed V passionately in a garden shed.
Count 2: that the prisoner inserted his fingers into V’s vagina as she stood level with him on a ladder.
Count 3: that, as part of the same incident referred to in Counts 1 and 2, the prisoner then lay on top of V on a mattress on the garden shed floor and his erect penis was against V’s vagina. The prisoner then ejaculated and V was wet in the area of her vagina and the wetness smelt.
It is not in issue that the onus to establish the matters upon which it relies as comprising the particulars of each count lies on the Crown and must be discharged beyond reasonable doubt.
Both V and the prisoner gave evidence.
Mr Stokes of counsel appeared for the prisoner.
The prisoner admitted kissing V passionately in the shed (Count 1), but denies any digital penetration of her vagina at any time in the admitted course of conduct (Count 2) and, further, denies laying with his erect penis against V’s vagina and at that time ejaculating (Count 3). He denied laying with his penis near her vagina. He admitted ejaculating after he had moved away from V on this occasion. He denied that he did so with an erection or that any semen went onto the body of V. He said that it went onto the shed floor.
V was the only witness called by the Crown. She gave evidence in a forthright and acceptable manner. Bearing in mind that these events occurred at the end of 1983 and into early 1984, when she was nearly 13 years of age, I make no criticism of her for some relatively minor inconsistencies and uncertainties in her evidence. In my opinion, they do not undermine her evidence in any significant way. My view of her evidence is not adversely affected by the fact that there was some intermittent contact between her and the prisoner over the subsequent years.
The prisoner is now 68 years of age. At the time he was a married man of about 46 years of age. These events occurred in a garden shed at his home address.
There is a dispute over the period during which the course of conduct between these persons continued. V said it was about three months. The prisoner said it was half that.
From the evidence I find that from when the prisoner began to kiss V, there passed about one and a half months until the conduct ceased. This is from the time when the prisoner began to kiss V “passionately”, as that word has been used in the papers and in evidence, as indicating that, when the prisoner kissed V, he did so by hugging and holding her and inserting his tongue into her mouth.
I find also that at this time, regularly, as V said in her evidence, and not only once as the prisoner said in his, whilst he was so kissing her, he would guide her hand to his penis and hold it there. I find that on these occasions the prisoner had an erect penis, as I am satisfied he had on the occasion of Count 3.
Generally, the prisoner was an unconvincing witness. I do not accept his evidence where it is not otherwise supported. This is so accepting that he is now elderly, hard of hearing and English is not his first language. After a very difficult and abusive childhood in war‑time Europe, he came to Australia in 1968. He had regular employment and was with one employer for about 27 years until retirement. He exhibited no real linguistic or comprehension difficulties whilst in the witness box. Any difficulties which arose were mostly to do with his accent. He searched for the correct word occasionally and I have had regard to that in my assessment of him.
In his evidence, despite admitting the wrongness of his behaviour, he continually implied that V was in some way to blame for what occurred between them. Of course, that cannot be so. He continually sought to downplay the seriousness and extent of his conduct with V over the relevant period.
The prisoner denied that he held V’s hand on his penis more than once. He denied ever having an erection throughout the whole course of conduct. When I asked him about this he referred to some erectile difficulties and to having pain because of childhood scaring when a child. No other evidence was given about this and, in particular, his wife was not asked about it. I prefer V’s evidence on this topic and find accordingly, as I have earlier indicated.
Similarly, there was a dispute about V being on the ladder to facilitate his fondling and kissing of her. He admitted only once, as referred to in Counts 2 and 3. V said it was a regular occurrence. I prefer her evidence and am so satisfied. Her obvious error about the type of ladder is of no consequence after this period of time.
Mrs Landmeter also gave evidence. She was plainly wrong about the frequency of V’s visits to their house in late 1983 and into 1984. I accept the evidence of V that she visited alone at least each second weekend and that in the years before she and her mother were regular visitors for coffee and church related discussions.
It is not disputed that as a consequence of the relationship which had developed over this time between the families, V referred to the prisoner as “Uncle Harry”. I accept her evidence that he was the only adult male in her life, as she and her mother lived alone; that she enjoyed his company and liked him.
All persons in this matter were then members of the same congregation in the Jehovah’s Witness Church and church life and involvement was of the utmost importance to them.
There is also no dispute that immediately after the incident of Count 3, the prisoner was overcome with remorse and confessed to his wife. I do not accept his evidence that before that occurred, he and V prayed together for forgiveness. I accept the evidence of V that that did not occur.
After confessing to his wife, he told the Elders of their church who then established an enquiry. He told his version and V and her mother told theirs. There then was a meeting of all persons at the church in the presence of the Elders. As a consequence, the prisoner was disciplined within the church.
Mr Prescott gave evidence of this process. He was then, and remains, an Elder of this congregation. He confirmed the evidence of the prisoner and his wife as to the making of his confession and the subsequent procedure.
Importantly, Mr Prescott said that, at the time, there was a consensus in the versions of events separately given to the Elders by V and by the prisoner and that no allegation of penetration was then made by V, even though the topic was raised in discussion. He supported the evidence of the prisoner in this regard. The prisoner had said in evidence that he only ever put the back of his hand against V’s vagina when her pants were down. V said that the prisoner had digitally penetrated her vagina on many occasions from about Christmas 1983.
Mr Prescott agreed that the disciplinary action imposed was as the prisoner described in his evidence - suspension from some congregational activities for about nine months.
He said that had there been a suggestion of penetration, then there would have been a further enquiry - which there was not - and if the allegation was established, the punishment would have been much more severe - likely to have been disfellowship from the congregation.
Mr Prescott was a clear, concise and independent witness. In my view, his evidence was unaffected by the fact that he has known the prisoner in the congregation for about 30 years. There is no basis upon which his evidence may be put aside.
He agreed that there was no specific enquiry about the events alleged to have occurred on the mattress and said to constitute Count 3. He knew nothing of the particulars there alleged as nothing concerning it was reported to the Elders by either V or the prisoner.
In view of Mr Prescott’s evidence, I am unable to be satisfied beyond reasonable doubt as to the allegation of penetration in Count 2. I will proceed on the basis that the prisoner put his hand against V’s vagina.
As I have indicated, I reject the evidence of the prisoner as to the circumstances surrounding the use of the mattress and the manner in which he lay on V. I am satisfied beyond reasonable doubt as to her evidence and find, as I have earlier indicated, that he lay with his erect penis against her vagina and ejaculated on her and that there was a smell noticed by V after he had done so.