R v Ludwig No. DCCRM-03-523

R v GLENN HEATH LUDWIG
[2004] SADC 44
Judge Rice
Criminal

The accused is charged with ten counts involving allegations of a sexual nature against his children, Aleisha and Dylan. At the time of giving evidence Aleisha was aged 12 years and Dylan 9 years.
At the time of the first alleged offence, Aleisha was aged 7-8 years and Dylan was aged 5-6 years. It is difficult to be much more precise than that because the evidence of the children does not allow it. Indeed, one of the complaints made on behalf of the accused is that the inability of the children to provide particulars of the allegations makes it difficult to defend the charges. I will say more about that later.
One of the particulars that is able to be given is that the alleged offences are said to have occurred when the accused had access to his children at his home at Burton. The accused separated from his wife in about September, 1993 when Aleisha was not quite 2 years of age. Dylan was born in 1994, after the separation.
The other particular that is able to be given is that the last of the alleged offences (count 7) is said to have occurred over the period Sunday, 29th September, 2002 and Tuesday, 1st October, 2002.
I previously ruled that it was not an appropriate case to order a permanent stay of the prosecution. I also ruled, in the exercise of my discretion, that there should be a joint trial on all counts. Part of my rationale was that many of the reasons for separate trials in these sorts of cases do not apply when an election has been made that the trial be by judge without a jury. Not only is the judge able to direct himself or herself in accord with the law, the judge is able to bring judicial knowledge and experience to bear.
The counts involved here differ in their nature and particulars. Although some of the counts can be grouped together because they arise from the same events or incidents, it is nonetheless necessary to provide details of the actual counts.
Incident one (count 1)
Count 1 is a charge of unlawful sexual intercourse involving Aleisha when she was less than 12 years. It is alleged that the accused, between 1st January, 1998 and 12th October, 2002, at Burton, performed an act of cunnilingus upon her.
This count stands in isolation and it is not suggested that anyone else witnessed the alleged events. It is said to have happened on the bed in the main bedroom and was referred to as the first incident. Aleisha might have been attending Salisbury Primary School or Dernancourt Primary School.
Incident two (counts 2 and 8)
Count 2 is also a charge of unlawful sexual intercourse involving Aleisha when she was less than 12 years. It is alleged against the accused that he caused her to perform an act of fellatio upon him.
In this incident it is alleged that the accused made Aleisha, Dylan and Ethan suck the accused’s penis one after the other. Ethan Schoepf is the son of the partner of the accused and lived with the accused and his mother on a full-time basis.
In opening its case on this incident, Mr Crowe, for the prosecution, said that the alleged acts for count 2 (involving Aleisha) and count 8 (involving Dylan) occurred in the presence of both children and were therefore cross-admissible (TP165, 191).
In evidence, Aleisha said that this incident occurred in the lounge room or his bedroom (TP199). However, she also said that Dylan and Ethan were either outside or in the lounge room playing (TP200). As I understood her evidence, she was not asserting that Dylan or Ethan were present when she did what was alleged.
Count 8 is the charge relating to Dylan arising from this incident. In evidence, Dylan said this incident occurred in the lounge room with all three children being present and that he saw all of the acts performed. He said he had to suck his father’s penis two or three times, that his father ejaculated and that he and Ethan obtained a tissue from the kitchen, spat out the ejaculate and placed the tissue in the bin.
Incident three (counts 3, 4, 5, 9 and 10)
This incident was referred to as the gun game. It picks up counts 3, 4 and 5 for Aleisha and counts 9 and 10 for Dylan. Initially, the accused is alleged to have told Aleisha, Dylan and Ethan, all being present, to take their clothes off and touch herself or himself (counts 3, 9 and 10).
Immediately after that occurred, it is alleged that Dylan was told to leave the room and the accused made Aleisha perform an act of fellatio upon Ethan and then made Ethan have vaginal sexual intercourse with Aleisha (counts 4 and 5).
Count 3 alleges that the accused incited or procured an act of gross indecency by Aleisha in his presence.
Count 9 alleges the accused, with a view to gratifying his own prurient interest, caused or induced Dylan to expose part of his body.
Count 10 alleges that the accused incited or procured an act of gross indecency by Dylan in his presence, namely that Dylan rub his own penis.
Count 4 (as amended) alleges that the accused aided, abetted, counselled or procured Ethan to engage in sexual intercourse with Aleisha by her performing an act of fellatio upon Ethan.
Count 5 (as amended) alleges that the accused aided, abetted, counselled or procured Ethan to engage in sexual intercourse with Aleisha by Ethan having vaginal sexual intercourse with Aleisha.
Incident four (count 6)
Count 6 also stands in isolation in the sense that it is not suggested that anyone other than Aleisha was involved or witnessed the alleged event. This count alleges an indecent assault against the accused by touching Aleisha in the area of the vagina as she sat on his lap. As part of this incident it is alleged that the accused was looking at a sexually explicit pornographic magazine.
Incident five (count 7)
This incident also is alleged to have occurred in isolation. It is said to have happened in the room of the accused’s house known as the computer room at a time when the main bedroom was being renovated. Count 7 alleges an act of gross indecency in Aleisha’s presence by the accused masturbating while she was watching. What is alleged as a lead-up to that count is that the accused and Aleisha were in the computer room, the accused asked Aleisha to put on a pair of Jenny’s (the accused’s partner) underwear but Aleisha refused and then the accused sat her on a desk with her pants down.
This is the only count that can be identified with any precision as to when it is said to have happened, namely, some time between 29th September, 2002 to 1st October, 2002. The police first became involved on Sunday, 13th October, 2002.
General directions
For the prosecution to succeed on any count it must prove each ingredient of that count beyond reasonable doubt. The onus of proof rests upon the prosecution from beginning to end. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. If, in a consideration of a particular count, I am unable to say where the truth lies, then the accused must be given the benefit of the doubt on that count and found not guilty. Each count needs to be considered separately.
The accused gave evidence on oath. He will be given credit for adopting a course he was not bound to adopt. He also called his partner, Jenny. He called positive evidence of good character. I accept that evidence. Such evidence is relevant both to his credibility and the unlikelihood of being involved in committing these alleged offences.
Although there was the suggestion, during the course of resolving Rule 9 issues, that the prosecution proposed to lead what are referred to as “uncharged acts”, no such acts were led and hence there is no need to direct myself on that topic. Subject to two qualifications, that does mean, however, that the evidence on each count is to be considered and confined to the actual evidence on that count.
The two qualifications relate to the topic of cross-admissibility. I permitted a joint trial of all counts on the basis that there was a proper basis for cross-admissibility. There was a factual overlap between some of the counts (for example, Aleisha witnessing events concerning Dylan and then certain events happening immediately after Dylan leaves) and, secondly, Dylan’s evidence on some counts supports the argument of a sexual attraction by the accused for Aleisha. I have limited myself to that approach. I have guarded against using, as between counts, any form of propensity reasoning: Pfennig v R (1995) 182 CLR 461; R v Nieterink (1999) 76 SASR 56.
Specific directions
Delay in the context of s.34i (6a) Evidence Act 1929
As mentioned above, there was a delay of about two weeks between the last alleged offence and the involvement of the police. As for the events surrounding the other alleged offences, the delay is very considerable indeed, in some instances delays of some years. In that event, I warn myself in accord with s.34i(6a)(a) and inform myself for the purposes of sub-para.(b).
Ethan not being called as a witness
Ethan was not called to give evidence for the prosecution or for the accused. Mr Crowe explained why he was not called by the prosecution (TP294-7). I accept those reasons. This case is not one of those quite exceptional cases where the trial judge could call the witness. Without discussing the matter in detail, it may well be that quite different considerations apply when a criminal trial is conducted where the judge is both judge and jury. The judge in that situation should be even more reluctant to enter the arena.
Obviously the accused does not have to prove anything in a case such as this. There is no obligation upon the accused to prove anything or call any witness (see Dyers v R (2002) 210 CLR 285). My approach to the absence of Ethan as a witness for the prosecution for counts 3, 4, 5, 8, 9 and 10 is not to speculate about what he may have said. However, in assessing whether the prosecution has proved its case beyond reasonable doubt on those counts, I propose to take into account the absence of Ethan as a witness (see R v Buckland [1977] 2 NSWLR 452).
In addition to Ethan not being called, a cousin, Emma, was also not called. Emma, according to Aleisha, also stayed at the accused’s home when Aleisha and Dylan went on access visits. Emma was a little older than Aleisha. Emma is not said by anyone to have witnessed any of the alleged offences. Her absence as a witness was not sought to be explained. I do not speculate about her evidence and draw no inference adverse to the prosecution for not calling her.
Is a Longman warning called for and, if so, what is the extent of the direction I should give myself?
In Longman v R (1999) 168 CLR 79, the High Court said that a warning must be given by the trial judge to the jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case” (per Brennan, Dawson and Toohey JJ at 86).
Delay simpliciter does not give rise to the need for a Longman warning. Although the delay from the last alleged offence until police involvement was of the order of a couple of weeks, there was considerable delay in reporting the earlier alleged offences.
In BFB (2003) SASC 411 at [39], Doyle CJ put it in this way:-
“It remains necessary to consider the time that has elapsed between the incident in question and notice to the accused person that a complaint has been made, or between that time and the commencement of the trial, the impact of that delay on the ability of the accused to present a defence, the nature of the prosecution case, and whether it rests substantially on the unsupported evidence of the complainant.”
I have scrutinised the evidence of Aleisha and Dylan carefully. Although there is some basis for cross-admissibility, essentially the evidence of each is unsupported. The evidence of Dr Woodard-Knight supported the probability of Aleisha’s hymen being damaged by some form of blunt trauma, but it could not be aged and does not implicate the accused and, in any event, would only possibly support count 5 (with Ethan). There was no medical evidence for Dylan.
I must scrutinise their evidence with great care and, unless I am completely satisfied of their truth and reliability, there could be no question of finding guilt.
Whether a warning is justified will depend upon whether the circumstances, including delay, are such that there is a risk that the accused is likely to suffer forensic disadvantage. If a warning is justified, I am required to approach the evidence of each of them on the basis that, unless I am satisfied of each’s truthfulness and reliability, it would be dangerous to convict. In my view, there are, in the circumstances of this case, areas for potential forensic disadvantage to the accused.
In the first place, leaving count 7 to one side, the inability of either complainant to provide dates of when alleged criminal conduct occurred or relate that conduct to events (for example, a birthday or a particular holiday or the presence of a particular person) has placed the accused at a real forensic disadvantage. The accused may have been able to ascertain whether he was working on a particular occasion (because he sometimes worked even though his children were visiting - his partner Jenny would then look after the children). Jenny may also have been able to ascertain whether she was working (away from the home) and thereby assist the accused. His whereabouts at the relevant times is important and he may have been able to account for his movements if the times of the alleged offending were identified with precision. The opportunity has been lost because the precision was absent.
Secondly, there is literally a forensic disadvantage concerning count 8 where it is alleged the accused ejaculated and ejaculate was spat out into tissues by Dylan and Ethan and thrown in a bin. If those events had been reported without delay, forensic evidence, in the form of DNA, may have been available to support some form of sexual activity by the accused.
Thirdly, the lack of medical evidence about Aleisha, at least supporting her account close to the time-frame of her allegations, puts the accused at a forensic disadvantage.
In my view, these matters have caused a forensic disadvantage to the accused. I specifically warn myself in accord with Longman so as to avoid the risk of a miscarriage of justice.
I have scrutinised the evidence of each of them with great care.
I say a little about their presentation. I thought both of them were very good witnesses. They answered questions in a direct, uncomplicated and unsophisticated fashion. They did not appear to bear any animosity towards the accused. They were intelligent, bright, articulate and confident, with an ability to give spontaneous answers when needed. They did not appear to be rehearsed. They were convincing witnesses.
There were, however, problems with the substance of some of the evidence. There were significant inconsistencies between the case as opened relating to Aleisha and her actual evidence, as well as substantial inconsistencies between the evidence of Aleisha as compared with the evidence of Dylan. If inconsistencies are minor and/or not many in number, they will be insufficient to shake confidence in the truthfulness and credibility of the witness. These inconsistencies were not minor.
Further, inconsistencies also arose from a comparison of the original interviews with the actual evidence and displayed an expanding and diminishing range of allegations as time went by. Again, it depends upon the nature and quantum of those inconsistencies as to what bearing they may have on a case. The ability to give a substantially consistent account of relevant events should not be lightly overlooked as a hallmark of truthfulness and reliability.
Next, the delay in bringing these matters to the attention of their mother and then the police of itself casts doubt upon the reliability of Aleisha and Dylan. They gave their explanations for the delay. I have not overlooked the fact that, on their accounts, the accused also involved Ethan in these sexual events. In that situation the accused was expecting the three of them to keep the secret. Whilst that may well be possible, the accused was at greater risk of disclosure and discovery when he involved all three children. This made the allegations less likely.
A separate and significant matter relates to the circumstances of the initial disclosure. In making this comment I am not meaning to be critical of the children’s mother, Ms Tanya Cross and Ms Janine Ludwig, who is married to the cousin of the accused. They were confronted by a serious and distressing situation. Both children were present at the kitchen table when the initial disclosures were made to the two women. It is clear that the memory of Aleisha on at least one topic differed from that of Dylan and she spoke over him. There was a real risk of the memories of each being distorted by the discussion and, I am sure, later discussions of a similar type. In that situation it would be inappropriate to find that they corroborate each other.
Defence case
I have already observed that the accused gave evidence and called his partner, Jenny Schoepf. His case was that the events alleged by Aleisha and Dylan did not occur. It was only with respect to the last count that any meaningful defence was able to be raised in the sense that there was a greatly reduced opportunity for him to have committed the offence.
I did not find the accused to be an impressive witness. At times his evidence seemed contrived, rehearsed and overly expansive. Ms Schoepf was a better witness. She was blunt and direct although, again, somewhat rehearsed. There were no substantial inroads into their evidence.
Conclusion
I am deeply suspicious that the allegations by Aleisha and Dylan are true. In fact, I find that there is a high probability that they are true. However, in the end, I find myself unable to be satisfied beyond reasonable doubt as to his guilt for the reasons I have identified.
I find the accused not guilty and direct that verdicts of acquittal be entered.

[2004] SADC 44

23 March 2004