R v LLOYD - [2023] SADC 2

District Court of South Australia
(Criminal)
R v LLOYD
Criminal Trial by Judge Alone
[2023] SADC 2
Reasons for the Verdicts of his Honour Judge Cuthbertson
19 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The defendant is charged on the Information for arraignment on 8 July 2022 with two counts of Aggravated Indecent Assault against the victim.
It is alleged the defendant indecently assaulted the victim on two separate occasions whilst they were playing an electronic game at Marion Shopping Centre.
Held: The verdicts of the court, for the published reasons are as follows:
Count 1 - Not Guilty
Count 2 - Guilty
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) ss 13BA, 34M, 74EB; Summary Offences Act 1953 (SA) s 74EA, referred to.

R v LLOYD
[2023] SADC 2
R V LLOYD

The defendant is charged with two counts of Aggravated Indecent Assault.
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
On the 28^th August 2021 at Oaklands Park, the accused indecently assaulted SGK by touching her groin.
It is further alleged that SGK was under the age of 14 years at the time of the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault (Ibid).
Particulars of Offence
On the 28^th of August 2021 at Oaklands Park, the accused indecently assaulted SGK by causing her to touch his penis.
It is further alleged that SGK was under the age of 14 years at the time of the offence.
Summary of Offences
The offences relate to the one occasion. The defendant and the complainant did not know each other before the occasion when they met at Intensity Games in Marion Shopping Centre where both offences are alleged to have occurred.
The defendant is aged 21 years.
The defendant is charged with Aggravated Indecent Assault on the complainant by touching her near her vagina outside of her clothes (Count 1) and a further count of putting the complainant’s hand on his penis (Count 2).
The defendant unfortunately suffers from Autism Spectrum Disorder.[1] He was at the Marion Shopping Centre on 28 August 2021 attending the Intensity Games with a group of 10 young people similarly suffering from Autism Spectrum Disorder.[2]
[1] Ex D6 P15.4.
[2] T 19 L 7-9.
It was an outing organised so that these people could learn to socialise with each other and with the general public as therapy for their condition.
The father of the complainant and another adult were present as supervisors to assist the young people in their socialisation. The father took the complainant, aged about 10 years, and her younger sister along for the outing.
Admission of Audio-Visual Record of the Complainant’s Interview
An application was made for admission of an Audio-Visual Record of the complainant’s interview as evidence pursuant to s 13BA of the Evidence Act 1929.
As I was satisfied that the interview was made pursuant to s 74EB
of the Evidence Act 1929 on 20 September 2021 and as I was satisfied that the complainant was capable of giving unsworn evidence at the time the recording was made and as I was of the view that she was capable of telling the truth and as the defendant had been given an opportunity to view the recording and as I was of the understanding that the complainant would be available during the course of the trial for further examination, cross-examination and re-examination and as the complainant was born in 2011 and as the proposed evidence of the complainant was relevant to the trial of the two charges of Aggravated Indecent Assault against the defendant, both serious offences against the person within the definition of s 74EA of the Summary Offences Act 1953, I permitted the recording of interview to be given in evidence as part of the Prosecution case.[3]
[3] T 5 L 2-36; Ex MFI P1 and Ex P2.
Impression of the Complainant
I formed the impression that the complainant was a most impressive witness. She readily understood the nuances of the questions put to her and she provided answers that were equally nuanced.
I formed the impression that she did not make a complaint about the alleged offending with a view of getting the defendant in trouble. Indeed, to the contrary, she was careful not to make the allegations sound worse than she thought they were.
The complainant liked the defendant and she was prepared to give him the benefit of the doubt in considering what he did. She understood the questions. She provided answers that were informative and were not judgmental. I did not find her to have obviously lied in relation to any matter. She was careful to be accurate in her evidence.
I accept the evidence of the complainant generally beyond reasonable doubt.
Elements of Offences
The elements of the charge of Aggravated Indecent Assault are as follows:
1. The defendant applied force to the complainant. Any amount of force is sufficient;
2.The force was a voluntary and intentional act by the defendant;
3.The application of force was without lawful justification or excuse;
4.The application of force was accompanied by or occurred in circumstances of indecency;
5.At the time of the act the complainant was under the age of 14 years.
Onus of Proof
There is a presumption of innocence, and the defendant is regarded as innocent unless or until his guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies wholly upon the prosecution. The defendant does not have to prove anything. The prosecution must prove beyond reasonable doubt each element of the offence.
Separate Consideration of Counts
The defendant is charged with two separate counts. Each must be considered on its own merit. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty to the other count.
Defendant Did Not Give Evidence
The defendant did not give evidence in this trial. He was not obliged to give evidence. He had not assumed any burden of proof by not giving evidence. That burden always remains with the prosecution.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not influenced by public opinion in relation to this matter.
Good Character of the Defendant
The defendant has no record of criminal convictions whatsoever. As such he comes to this Court with a good record.
I must take into account the good record of the defendant both:
1. in that it makes it more likely that he has been telling the truth about his involvement with the complainant; and
2.in that it makes it less likely that he would have committed either offence.
Autism Spectrum Disorder
The defendant has Autism Spectrum Disorder and was granted leave to have a court companion.[4] I should not treat him and his evidence any differently on this account.
[4] T 68 L13-33, Ex D6 P15.4.
Count 1
Essentially, and there does not seem to be any dispute about this, the activity between the defendant and the complainant was that for a lengthy period of time the defendant and the complainant were playing various electronic games. The defendant and the complainant played a game called “Deal or No Deal” during which there was only one stool that the defendant was sitting on and the complainant, significantly younger and smaller, was sitting on his lap.[5]
[5] T 20 L 27-37, T 21 L 5-9.
From time to time, she would slip forward from his lap and he would hoist her back on his lap by either lifting her under the armpits or around the hips.[6]
[6] T 29 L 23-36.
On one of these occasions the prosecution case is that the defendant touched the complainant in the vicinity of her inner thigh. She was wearing jeans at the time.[7]
[7] T 28 L 11-13.
Count 1 is said to have occurred while the defendant was in the act of pulling her up on his lap.[8]
[8] T 29 L 30-36.
The complainant thought at the time that this was an accident.[9]
[9] T 31 L 1-6.
The complainant first became aware of this when the defendant told her, “… and when we were playing (indecipherable) he said ‘Do you know that I touched your private parts …?’…”[10]
[10] Ex MFI P1 Page 1 Paragraph 36, Page 2 Paragraph 37-38.
The complainant was quite frank, and she said that she did not care at the time as she was focused on the game.[11]
[11] Ex MFI P1 Page 2 Paragraph 37-38.
The complainant continued in her interview, “….like I knew that you shouldn’t touch people but I didn’t think it was a super big deal like.”[12]
[12] Ex MFI P1 Page 6 Paragraph 54-57.
She continued:
“And them um he didn’t really touch my private parts, he kinda just touched the outside um of my vagina and so um then I didn’t really know he was doing anything because I just kinda sucked into the game”.[13]
[13] Ex MFI P1 Page 6 Paragraph 250-252.
She continued:
“Um, so then we went to play Connect 4 again and he said to me ‘hey, do I know I touched your private parts back then?’ and I was like, ‘Oh no I didn’t notice but I don’t really care, … so then um I went back to the Deal or No Deal because it was a fun game ...”[14]
[14] Ex MFI P1 Page 6 Paragraph 262-270.
The manner in which the complainant dealt with this issue confirms my impression that she was doing her best to be honest and accurate. Certainly, she was not giving her evidence in an excessive or exaggerated manner, and I accept her evidence on this topic beyond a reasonable doubt.
Because the evidence suggests that the defendant was in the process of the act of lifting the complainant on to his lap, an entirely innocent act (unless it carried with it a sexually inappropriate intention which cannot be proved), then I am not satisfied either that the actus reus occurred or, if it did occur, that it was other than accidental and thus not accompanied by any mens rea. This is also because the complainant appears only to become aware of it through being told by the defendant.
For both reasons I cannot be satisfied beyond reasonable doubt that Count 1 is made out and I return a verdict of not guilty. The verdict of not guilty does not imply that I have any misgivings about the honesty and reliability of the complainant and thus it does not help me in determining the question of her credibility and/or reliability in relation to Count 2.
Count 2
Count 2 involves an allegation that on a subsequent occasion while the defendant and the complainant were playing the same game of “Deal or No Deal” and the complainant was sitting on the defendant’s lap, he picked up her hand and placed it on his pants on top of his penis such that she said it felt “…kind of squishy”.[15]
[15] Ex MFI P1 Page 19 Paragraph 866.
The complainant described it as follows:
Um so then he did the same pushing up thing um and so then he like grabbed my hand and he um, very, he didn’t really push it down on his um er penis but he very lightly like, he wanted, I guess he was testing to see if I noticed.[16]
[16] Ex MFI P1 Page 6 notes, Ex P2.
She continued:
“… I looked down at where my hand was and then I looked up and I don’t really remember if I took my hand away or not. I think, I think he let go which is when I kinda just like my put my hand back in my lap …….um but I thought I was kinda frozen and he kinda, I think he smiled at me a bit, he was, like, he was trying to make it look like nothing really happened. So we finished the game and so then I won, and well you can’t really win that game, um so then I kinda stuck with my dad for most of the rest of the night and I was quite tired as well because it was from 6.00 to 8.00”.[17]
[17] Ex MFI P1 Page 7 281-292, Ex P2.
In evidence in chief given in oral testimony the complainant said, “I remember that my hand was placed on top of his penis but I do not remember how he did it but I remember he did it”.[18]
[18] T 18 L 19-21.
The defence submitted that watching the CCTV footage of the complainant sitting on the defendant’s lap it is not possible to see the defendant moving the complainant’s hand on to his penis.[19] I agree that that cannot be seen on the CCTV footage material that was tendered.[20]
[19] Ex P3.
[20] Ex P3.
In my view, however, that motion could easily have occurred with the defendant’s left hand moving the complainant’s left hand such that a view of the activity was blocked by the bodies or torsos of the defendant and the complainant.
The fact that no movement can be seen on the CCTV footage does not cause me to doubt the evidence of the complainant on the topic.
There is nothing unlikely about the scenario described by the complainant and it does not cause me to have any doubt about the reliability and honesty of the complainant.
Unlike in Count 1, the movement that is alleged to have occurred could not have been unintentional or accidental. The complainant either remembers it happening or has made it up.
I accept that it occurred, because I accept beyond a reasonable doubt the evidence of the complainant. I am convinced that she is telling the truth. I am convinced that she has not lied and is accurate in her description.
The Viewing of the Film Moxie by the Complainant
The day, or a few days after the alleged incidents, it is common ground that the complainant viewed a film at home called “Moxie” with her mother.[21]
[21] T 26 L 19-20.
While the complainant could not remember exactly how the film played out,[22] it was submitted by counsel that the film is set in an American high school where female students wrote a blog on the internet about the male students at their high school.[23]
[22] T 25 L 30.
[23] T 25 L 27-29.
In the film, the female students drew stars and hearts on their hands to represent that they supported each other against the male students.[24] After the complainant viewed the film, she stated that she too drew hearts and stars on her hand.[25]
[24] T 25 L 38, T 26 L 1-3.
[25] T 26 L 4-7.
It was never suggested to the complainant that she gained the idea to make false allegations against the defendant from having watched the film. It was suggested to the complainant that she watched the film around the time of the alleged incidents and then after, thought that she should inform her parents about the incidents with the defendant.[26]
[26] T 25 L 13-20.
The implication is that the complainant was somehow influenced to make the complaint to her parents from viewing the film.
I reject that suggestion. The complainant was an extremely sensible young girl. She was aware of the consequence of the allegations she might make, and she was careful not to make them in a way which might cause an undue reaction. I do not think she was influenced to make the allegations after the viewing of the film Moxie.
I do not think that the defendant in putting his hand on her hand so as to move her hand on to his penis could have been done so accidentally. The act would have required the mind of the perpetrator to go with the act. I find that the act occurred and that it was an intentional sexual act by the defendant.
I am satisfied beyond reasonable doubt that in relation to Count 2, all the relevant elements are proved beyond reasonable doubt.
Verdict
Count 1 – Not Guilty
Count 2 – Guilty