R v Lewis No. DCCRM-01-1437

R v DARREN JAMES LEWIS
[2003] SADC 17
Judge Rice
Criminal

The accused in this matter, Darren James Lewis, is charged with four counts of Unlawful Sexual Intercourse with a Person under 12 years. He elected for a trial without jury.
The complainant in this case is Jamie Luke Hyrnko, who is the son of Veronica Hyrnko with whom the accused was in a de facto relationship. At that time Mrs Hyrnko was living at an address in Temby Court, Greenwith. The accused was a former neighbour when she lived elsewhere. The accused stayed sometimes at the Temby Court address and sometimes at his own place in Salisbury. At that time, Mrs Hyrnko had two children, the complainant in this case, Jamie, who was born on the 11th September, 1988 and a daughter, Alannah, who was born on the 15th November, 1991.
Counts 1 and 2 are alleged to have occurred on the one occasion when the accused was staying over at the house occupied by Mrs Hyrnko, Jamie and Alannah. With respect to that occasion, it is alleged that, after some sexual touching in the kitchen of the house, the accused and Jamie went into the main bedroom. The evidence led on behalf of the prosecution is that these two counts occurred at a time when Mrs Hyrnko had taken her daughter, Alannah, to ballet lessons.
Concerning these two counts, it is alleged that, in the bedroom, an act of sexual intercourse took place whereby it is alleged that the accused placed his penis into the anus of Jamie. The accused is then alleged to have invited Jamie to penetrate his (the accused’s) anus with Jamie’s penis. This, Jamie said, he in fact did. As to the first of those acts of intercourse, it is alleged by the prosecution, and Jamie said this in effect in evidence, that the accused ejaculated. When the events alleged with respect to counts 1 and 2 were completed, it is further alleged that the accused went into the bathroom of the house and wiped his penis on a green towel.
Count 3 is also alleged to have occurred at Temby Court. The events alleged can be stated quite briefly. Jamie alleges that he was awakened from sleep one night to find the accused with his penis in Jamie’s mouth. It is alleged that the events surrounding count 3 occurred a few days, or a short while, after the events allegedly surrounding counts 1 and 2.
Count 4 is alleged to have occurred at some time after Mrs Hyrnko had moved with her family to an address in Port Ellen Court also at Greenwith. She moved there in early November, 1997. The offence itself is alleged to have occurred at the accused’s flat at Salisbury. It was alleged that Jamie would stay over at the accused’s flat on a few occasions over that time. It is alleged concerning this count that the accused had driven Jamie to his (the accused’s) flat at Salisbury late one evening. There were just the two of them in the flat. It is alleged that, after listening to music for a while, the two of them went to bed in the accused’s double bed in the bedroom. Both were wearing T-shirts and jocks or boxers. It is alleged that, on this occasion, the accused told Jamie to put his penis into the accused’s bottom and this Jamie did while the accused was lying face down on the bed. After those events the two slept in that same bed that night.
As mentioned, counts 1, 2 and 3 are alleged to have occurred whilst the Hyrnko family were living at Temby Court, Greenwith, that is, at some time between the 1st January, 1996 and the 7th November, 1997. Count 4 is alleged to have occurred at Salisbury at the accused’s flat at some time between the 7th November, 1997 when the Hyrnko family moved to Port Ellen Court and January, 1999 at which time the accused ceased his de facto relationship with Mrs Hyrnko. On that basis, Jamie was somewhere between about the ages of 7 and 10 when these offences were alleged to have been committed.
Legal directions
The accused comes before me with the presumption of innocence. That presumption remains with him unless and until the prosecution prove his guilt beyond reasonable doubt. The standard of proof, namely, beyond reasonable doubt, needs no explanation or elaboration. The onus or burden of proof rests entirely on the prosecution. Although the accused may put forward a defence or answer to the charge, he does not have to prove anything. There is no burden upon the accused. This is not a case of whether I believe Jamie or the accused. Before I could convict the accused, I would have to accept the prosecution case and the allegations referred to above, beyond reasonable doubt. For me to be in a position to do that in this case, I would have to reject the accused’s denials beyond reasonable doubt. If I am not able to reject what the accused says, then I could not be in a position to accept the prosecution case beyond reasonable doubt. Even if I was in a position to reject what the accused said beyond reasonable doubt, I would still, nonetheless, have to be satisfied beyond reasonable doubt as to the truthfulness and accuracy of the prosecution case.
The accused declined to speak to the police officers when they approached him. He was not obliged to answer their questions and I do not draw any inference adverse to him because he adopted that course. Further, the accused was not obliged to give evidence on oath before me. However, the accused did in fact give evidence before me and was subject to cross-examination. This was, as Mr Ey put it, a robust course for him to adopt. I give him credit for adopting a course that he was not obliged to adopt. If he had elected not to give evidence, I would not have drawn any inference adverse to him by the adoption of that course.
There was no report to the police concerning this matter until the 16th April, 2001. The accused was not arrested until the 20th June, 2001. There is no complaint in this matter in the sense in which the word “complaint” is used in the Evidence Act. The circumstances whereby Jamie made certain disclosures as to what allegedly happened to him at the hands of the accused was the subject of dispute during the course of the trial. During the course of the evidence and discussion with counsel in the absence of any witness, I was told certain things that could be seen as prejudicial to the accused because they involved Mrs Hyrnko’s daughter, Alannah. Although it was necessary for me to hear that evidence and discussion, I make it plain that I draw no adverse inference against the accused arising from it.
As mentioned, there was a considerable delay between the alleged events comprising the charges here and the matters coming to the attention of the police. I direct myself in terms of s.34I, sub-para.(6a), of the Evidence Act. More particularly, I warn myself that Jamie’s failure to make a complaint or his delay in the making of a complaint does not necessarily mean that the allegation is false. Further, I inform myself that Jamie, being the alleged victim of a sexual offence, could have valid reasons for failing to make a complaint or for delaying the making of the complaint. Indeed, Jamie said he had such reasons.
There is an additional direction and warning that I note for myself. Because of the delay in the bringing of these matters to the attention of the police, the ability of the accused to defend himself has been significantly handicapped. Not only is it extremely difficult for him to now remember where he was and what he was doing at about the time of these alleged events, his ability to gather alibi evidence or supportive evidence has been jeopardised. Further, the delay has meant that forensic evidence that, on Jamie’s evidence, would have been available, has been lost.
Prosecution case
The substance of Jamie’s evidence was as I have referred to above. The prosecution submit that he gave his evidence in a straightforward manner and that he presented well. There seems little doubt to me that Jamie had a troubled upbringing long before these alleged events. The difficulties that he caused both at home and at school were such that he was verging upon becoming an uncontrollable child. He was diagnosed by Dr Thesinger as suffering from an attention deficit disorder (ADD). He was prescribed and given Ritalin to keep that disorder and his conduct under control. His background was the subject of vigorous and robust attack by Mr Ey on behalf of the accused. The prosecution say that he dealt with his past being thrown in his face by being open and honest about the shortcomings in his background behaviour. From my observation, he seems to have come to terms with his previous behaviour and is showing signs of an emerging maturity. I agree that he should be given some credit for the way in which he dealt with that fairly direct cross-examination. I agree that, simply because he has behaved badly in the past, does not mean that he is not telling the truth now. Clearly at the times alleged he was a young and vulnerable person. Having said that, I direct myself that I need to scrutinise his evidence with care, bearing in mind that the events that he related were four to six years ago and at a time that he lacked maturity and was clearly behaviourally disturbed. Although there were some inconsistencies between what he said in evidence as compared with his statement to the police, I do not regard those inconsistencies in themselves as being particularly significant. I would expect some degree of inconsistency or faulty memory bearing in mind the lapse of time.
I do not find it necessary to recount the detail of his evidence. There are, however, three aspects of his evidence that cause me significant disquiet.
The first relates to the alleged events surrounding the commission of counts 1 and 2. The way in which counts 1 and 2 emerged did not have that complete ring of reliability. As a lead-up to count 1, Jamie says that he was in the kitchen of the house and that he touched the penis of the accused on the outside of his clothing but that was completely unsolicited on the part of the accused or against a background of similar conduct. At one stage Jamie said he did not know how he came to do that; at another stage he said he was being young and stupid. Jamie then said that counts 1 and 2 occurred virtually without anything being said. The way in which Jamie gave evidence about that and the manner in which these events allegedly unfolded, to me did not seem entirely plausible.
Secondly, Jamie and Mrs Hyrnko both say the accused is circumcised. The defence proved by medical evidence that he is uncircumcised. Jamie knows the difference between the two. Bearing in mind the allegations, I would have expected Jamie to be correct about that matter. More surprising is Mrs Hyrnko’s evidence on this topic. That causes me some reserve about her evidence, although there does not seem to be much dispute about most of what she said.
Thirdly, and most importantly, Jamie admitted lying under oath on the topic of whether or not he was involved in the preparation of one or a number of birthday cards for the accused. When he first gave evidence, Jamie said that he was not involved in the preparation of a particular birthday card. However, after he had concluded his evidence, he said he thought more about his answers on that topic. At the conclusion of the evidence for the day, he spoke with counsel for the prosecution, Ms Chapman, and told her that he had lied about two things. The topic or topics were not mentioned. Ms Chapman quite properly told Mr Ey and Jamie was made available for further cross-examination.
Jamie was recalled the next day and told me that he had deliberately misled me in relation to his involvement in the preparation of one of those cards. It is obviously to his credit that he came forward and admitted a lie that puts him in a lesser light in my eyes. I cannot ignore the fact that he lied under oath on that topic to me. Although Jamie was still young at the time he was involved in the preparation of that birthday card for the accused, he lied about it initially because the card displayed an affection towards the accused that is inconsistent with the allegations now being made.
Defence case
The defence case is itself quite straightforward. The accused denied on oath any improper or illegal sexual involvement with Jamie. Bearing in mind the delay in this case, there is little more that the accused could do than give evidence on oath, deny the allegations that are made against him and subject himself to cross-examination. I find that he also gave evidence in a straightforward and clear manner, presenting well in the face of serious allegations.
As previously mentioned, it is no part of the defence case that it must prove a motive to lie on Jamie’s part. It is, however, the defence case that Jamie has lied under oath. I direct myself generally that what might motivate a person to lie may be obvious or it may be hidden. The fact that the defence, if it be the case, are unable to show a motive to lie is far from the end of the matter. I am conscious of the pitfall of searching for a motive to lie when the central question is whether or not the prosecution has proved its case beyond reasonable doubt.
Discussion
In the end, I am left with two competing stories on oath. As I have said, Jamie gave his evidence in a forthright manner and in a way that displayed an emerging maturity. Subject to the matters that I have previously mentioned, his evidence seemed quite acceptable. There was no corroboration.
On the other hand, the accused also gave his evidence in a forthright manner. There was nothing in his presentation, demeanour or answers that would cause me to have such a doubt that I should reject his account beyond reasonable doubt. It is not a matter for me to choose one account, or prefer one account, ahead of the other. As mentioned a number of times, the central and primary question is whether or not I am satisfied beyond reasonable doubt about the case for the prosecution, namely, whether or not I accept Jamie’s evidence or the substance of it, beyond reasonable doubt.
Having listened to the evidence and the arguments of counsel, I am left with a reasonable doubt. I find that the prosecution has not proved its case beyond reasonable doubt on any count and I enter verdicts of Not Guilty. Even if I ignored the three topics referred to above, my conclusions would be the same. It should be understood that I did not disbelieve Jamie. At the end of the day, I was simply not convinced of the guilt of the accused to the high standard required by the criminal law.

[2003] SADC 17

7 February 2003