R v M - [2011] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M
Criminal Trial by Judge Alone
[2011] SADC 14
Reasons for the Verdict of His Honour Judge Cuthbertson
24 February 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
Accused charged with one count of persistent sexual exploitation of a child – accused suffering from mental illness – accused's mental incompetence agreed – trial on objective elements of offence – voir dire – voluntariness and discretion to exclude confession for unreliability heard together with trial on objective elements.
Verdicts: Not Guilty pursuant to s 269G(A)(2) of the Criminal Law Consolidation Act (1935) SA
Criminal Law Consolidation Act (1935) 50, 269G, referred to.
Klemenko v Huffa (1978) 17 SASR 549; Sinclair v R (1946) 73 CLR 316, considered.

R v M
[2011] SADC 14
The Charge

The accused is charged with Persistent Sexual Exploitation of a Child contrary to s 50 of the Criminal Law Consolidation Act (1935).
Particulars of the offence are as follows:
DGM, between the first day of December 2008 and the 26^th day of March 2009 at Croydon Park, committed more than one act of sexual exploitation of LG, a person of the age of 4 or 5 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation was:
(a)     Rubbing his neck against the vagina of LG whilst carrying her on his shoulders.
(b)     Rubbing or touching the vagina of LG with his hand whilst playing aeroplanes.
(c)     Inciting LG to rub or touch her vagina while reading her bedtime stories.
(d)     Rubbing or touching the vagina of LG while playing in a tent in the back yard.
The accused has pleaded not guilty to the charge.
Application having been made by the accused pursuant to s 269B(4) of the Criminal Law Consolidation Act (1935), I made an order that the matter proceed to hearing without a jury.
I was informed that the prosecution agreed that a defence of mental incompetence was open to the accused and the trial proceeded in relation to the objective elements pursuant to s 269G of the Criminal Law Consolidation Act.
The Voir Dire
The prosecution case was based entirely on admissions allegedly made by the accused to his partner, AT, and in two interviews with the police on 26 March 2009 and 3 July 2009 and to Dr Dhillon, his psychiatrist. The prosecution did not call the complainant who was at the time a five year old child of AT. The statement of the complainant was however permitted to be used as evidence in the trial, by agreement of prosecution and defence.
Mr Mead SC who appeared for the accused made application for a voir dire hearing to exclude all confessional material. The basis for the application was that the confessions were not shown to be voluntary and that, in the alternative, in the exercise of my discretion I should exclude the confessions pursuant to the unfairness discretion. The accused has a mental condition namely Bipolar Affective Disorder. It was said that this seriously affected the reliability of his alleged confession. In particular I was informed that there was a propensity for manic episodes and psychosis including disinhibition, irritability, an elevated mood, bizarre and disorganised behaviour with grandiose and religious delusions. (See Ex P1)
As the trial was by judge alone, it was agreed that the hearing proper on the proof of the objective facts would take place at the same time as the voir dire enquiry, the evidence being virtually the same.
The prosecution called AT, the mother of the complainant, the latter being born on 20 January 2004. She gave evidence that she formed a relationship with the accused who stayed at her place for the first 6 weeks of the relationship and thereafter they developed a close friendship. She said that the complainant related well to him and that “he was and has always been very eccentric and extremely intelligent, but there was never any concern about my daughter’s welfare or anything like that.” (TP7)
She confirmed that there was an occasion when a tent was set up in the rear yard of the house and she placed this time as roughly about December 2008 / January 2009.
She confirmed that sometimes the accused would read bedside stories to the complainant and sometimes he would carry her on his shoulders with her legs draped around his neck.
She confirmed that in March 2009 the accused came and spoke to her and said that he had touched the complainant. He said he knew what he did was wrong and was concerned that it might happen again. The accused told her that he tickled the complainant around her vagina but she did not recall him having said how many times he did it. He also said that he would rub his head against her when carrying her on his shoulders and she thought he was saying that he would rub against the complainant’s lower stomach and genitals. (TP9) She had the impression that that had happened a few times. The accused wrote out a statement. (See Ex P5)
In the handwritten statement which was given to police by the accused he said:
I became too aware of a 5 year old girl’s genitalia.
I began to touch her through her clothes and once accidentally while she was completely naked.
This went on for seven months. I even told her to play with her vagina.
Voluntariness
When the accused attended the police station voluntarily for the interview of 26 March 2009 he took the statement (Ex P5) with him. He voluntarily attended the interviews and gave rational answers. No threats or improper conduct from the police occurred.
The accused was given the appropriate warning and was asked to explain it. He did succinctly and accurately. (TP6 L2) He indicated that, “I prefer to get this over with”. (TP6 L2)
He told the police that the complainant was naked in the house for a considerable amount of the time they were together and after a while he started to become aware of a potential interest. She liked him to carry her around on his shoulders and he became aware that she was enjoying it and that led to what he has described.
The accused spoke of a time “Maybe a year ago” (TP6 L6) when she would like to be flown around the house like an aeroplane and he started putting his hand on her vagina as he was carrying her around. He spoke of an occasion when they were playing in a tent and he tickled her on her vagina through her clothes. (TP6 L6)
The accused said that twice he told her to play with her vagina while he was reading to her and there was a time when he jiggled her legs a couple of times to stimulate her vagina. (TP6 L6)
He also spoke of an occasion when he asked if she wanted to see a boy’s penis and she said “yes” and he replied “All you have to do is ask and they might say no”. (TP6 L7)
The accused when asked “What was the first time that something happened?” said that it was in the tent and he was lying on his back and he tickled her on her vagina over her clothes. (TP6 L8) This occasion in the tent occurred, he said, two to three months ago so perhaps that would put it in about January 2009.
Not long after the first incident described in the tent the accused said he accidentally touched her vagina. (TP6 L13)
The next incident is described by the accused as having occurred after the accidental touching of her vagina “Not long after” when he was carrying her on his shoulders and she was bouncing up and down and he started to become aware of what she was doing. (TP6 L16)
The accused described a few incidents having occurred while she was on his shoulders and of having become aware of her enjoying it. On some of these occasions he has moved his neck to rub her vagina. (TP6 L16)
The accused was further interviewed and arrested on 3 July 2009. (TP7) On this occasion he was told that the complainant had spoken of an occasion when she was on the swing at the park and he had asked her to touch herself. The accused explicitly denied this. (TP7 L18)
The accused agreed that he had taken her to the park many times and admitted that there was one occasion when on the way to the park he had told her that it was okay to touch herself. (TP7 L21)
The admission to AT, the written statement making admissions (Ex P5) and the records of interview, P6 & P7 together with the admissions to Dr Dhillon are not to be admitted in evidence unless the prosecution establishes on the balance of probability that they were each voluntarily made.
I note that the accused was told that he did not have to answer questions on each interview and indicated that he understood that and that he wished to answer questions. There was no impropriety alleged against the police in the form of threats or cajoling.
The accused gave evidence and did not suggest anything by way of involuntariness save obliquely that there was some religious based moral imperative involved which I take to be akin to the Christian concept of recognition and confession of sins in order to reconcile with the victim and the deity.
I note also the reports of Dr Rohan Dhillon, Psychiatrist, being exhibits P1, P2 and P3 in which he expresses the opinion that there are no medical or psychiatric issues that might cast doubt as to the voluntariness of the accused’s utterances.
In particular, I accept that the accused has a Bipolar Affective Disorder which can, if untreated, lead to manic and psychotic features. He has, from time to time, been treated with the mood stabiliser Lithium Carbonate and the antipsychotic Risperidone. A Community Treatment Order was granted on 13 September 2008 and the accused was again placed on oral medications including Risperidone and Lithium Carbonate. His compliance with the prescribed treatment was poor and he was admitted as a detained patient to Cramond Clinic on 18 August 2008.
He was discharged on 12 September 2008 and a further Community Treatment Order was granted by the Guardianship Board commencing on 11 September 2008. On this occasion he was prescribed the oral mood stabiliser Lithium Carbonate together with the depot antipsychotic medication Zuclopenthixol Deconoate.
His mental health continued to be unstable in the community due to partial compliance with treatment.
In Ex P1 Dr Dhillon points out that even when mentally stable the accused demonstrates some oddness to his conduct and conversation which was attributed to his pre morbid personality.
In Ex P2 a report of 19 January 2011 Dr Dhillon makes the point that the accused made it clear that he understood the potential seriousness of the evidence he disclosed to the police including its legal ramifications and stated that he had made admissions as “it was the right thing to do”. (TP3) He points out that the accused has maintained this consistent position when interviewed about this legal matter on 19 October 2010 and when an in-patient at Cramond Clinic between 21 June 2010 and 20 July 2010.
The gist of the three reports of Dr Dhillon is that at the time of the accused making the admissions to the police he was being regularly seen by Dr Bisazza whose assessments indicated that his mental state was stable on the mood stabiliser Lithium Carbonate, with no evidence of any symptoms of his Bipolar Affective Disorder until the appointment on 14 October 2009 well after the admissions had been made.
In all the circumstances I am satisfied that all utterances of the accused to AT in the handwritten statement (Ex P5), in the statements to police and to Dr Dhillon were voluntarily made.
Discretion
The defence also ask me to exclude the alleged confessions of the accused on the basis that they are unreliable due to the accused’s mental condition and it would therefore be unfair to use the confessions against the accused.
There was nothing in any of the interviews to indicate that the accused was labouring under a disadvantage. He was able to exercise his rights and understand his rights. He was able to disagree with the allegation of the complainant that he had interfered with her vagina while she was on the swing.
There would seem to be no doubt that mental illness may found a discretion to exclude on the basis of unfairness. (See Sinclair v R (1946) 73 CLR 316 and Klemenko v Huffa (1978) 17 SASR 549) The onus to establish the factual basis for an exercise of the discretion to exclude the evidence is on the accused.
There is no evidence that what the accused has admitted to is inherently improbable or shown not to be the case.
In Sinclair’s case [(1946) 73 CLR 316] it was contended that the appellant was suffering from schizophrenia at the time that he made certain confessions which therefore should have been inadmissible in evidence against him. Without the confessions a verdict of guilty would not have been possible.
Dixon J, (as he then was) said:
It may be conceded that a confession may in fact be made by a person whose unsoundness of mind is such that no account ought to be taken of his self-incriminating statements for any evidentiary purpose as proof of the criminal acts alleged against him. In such a case it might properly be rejected. It is enough in the present case to say that I do not think that Boyd Sinclair’s derangement was such as to place his confessional statements in that category. His mental condition was not shown to be inconsistent with any standard or criterion we should adopt as the test of admissibility in evidence of confessional statements. A confession is not necessarily inadmissible as evidence upon a criminal trial because it appears that the prisoner making it was at the time of unsound mind and, by reason of his mental condition, exposed to the liability of confusing the products of his disordered imagination or fancy with fact.
I would decline to exercise my discretion to exclude the confessions (namely the confession to AT the handwritten statement (Ex P5), the confession of 26 March 2009, the confession of 3 July 2009 and what was said confirming them to Dr Dhillon). There is nothing to indicate they are the product of fantasy or so at odds with proved objective facts as to be unlikely to be true nor is there any proved basis for saying that it would be unfair to use the statements against the accused.
The Trial
The accused is charged with Persistent Sexual Exploitation of a Child.
The objective elements to be established of the offence pursuant to s 269G are as follows:
(1) That the accused is an adult person.
(2)The accused committed more than one act of sexual exploitation. An act of sexual exploitation is an act which if it were able to be properly particularised could be the subject of a charge of a sexual offence.
(3)That the acts must have occurred over a period of not less than three days.
(4)That the acts must have occurred in respect of a child under the prescribed age. The prescribed age is 17 years and the child, LG, is clearly under that age.
The only evidence available at the trial is the evidence of the mother of the child AT and the police officer, Detective Senior Constable Matthew Lyons, who produced the written transcripts and DVD of interviews of the accused together with Exhibit P5 and evidence of Dr Rohan Dhillon, a psychiatrist.
The only evidence implicating the accused is the admissions.
Onus of Proof and Burden of Proof
The accused is presumed innocent unless or until his guilt has been proved. The burden of proving the charge lies wholly on the prosecution and the onus of proof is beyond reasonable doubt. The accused is not obliged to prove anything. When he has put forward a defence he does not have to prove it. The Crown must disprove it beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion that the objective elements occurred or that the accused probably committed them. I am not to reach a conclusion that the objective elements are established by simply preferring the evidence of the prosecution. I must be satisfied before I can find the objective elements proven that the prosecution has proved beyond reasonable doubt each of them.
Accused’s Mental Condition
Here there is evidence that the accused has a mental disability. In order to reach that conclusion I rely on the reports of Dr Dhillon Exhibits P1, P2 and P3 and his oral evidence. The accused had a long history of mental illness. He is a single man of 35 years living with his mother with no dependants. In late 2006 he was admitted to the Cramond Clinic at the Queen Elizabeth Hospital where he was diagnosed with Bipolar Affective Disorder. When admitted in 2006 the treating medical team was of the opinion that he had Bipolar Affective Disorder untreated since 1996. He presented with many symptoms including disinhibition, irritability and elevated mood, bizarre and disorganised behaviour with grandiose and religious delusions. The accused continued to receive psychiatric treatment in the community with Risperidone and Lithium Carbonate.
He has had ongoing admissions to hospital with manic and psychotic relapse. The accused has proved to be a difficulty for management in the community because of lack of insight about suffering from a mental illness together with poor engagement with mental health services. The condition, does, however, respond to supervised treatment.
The offending is alleged to have occurred around late 2008 and early 2009.
Dr Dhillon is of his view that during the time the objective facts were said to have occurred:
His Bipolar Affective Disorder was largely untreated in the community. There was no doubt Mr [M] was suffering from a mental impairment in the form of his Bipolar Affective Disorder when the offences were committed. There was of [sic] high probability that Mr [M] was both manic and psychotic during the periods that he committed the various charged offences. (TP1 L7)
Discussion
While it is true that these observations were directed to the issue of the mental competence of the accused, it is relevant in my view to the question of proof of whether the accused was correctly perceiving the acts to have occurred and accurately reporting what had occurred.
The next matter which is of some concern to me is the vagueness of the descriptions of the conduct. The conduct is variously described as follows:
(1)Touching her through her clothes and once accidentally while she was completely naked. (TP6 L3)
(2)Starting to put the hand on her vagina as I was carrying her around like an aeroplane. (TP6 L6)
(3)Tickling her while playing in a tent once in her vagina through her clothes. (TP6 L6)
(4)Twice telling her to play with her vagina while reading to her. (TP6 L6)
(5)Carrying her around upside down and once jiggling her legs a couple of times to stimulate her vagina. (TP6 L6)
(6)Asking her if she wanted to see a boy’s penis and her saying “yes” and saying “…well all you have to do is ask and they might say no”.

(TP6 L7)
The difficulty with the prosecution case is that the only evidence emanates from the accused. The accused’s illness leads to a propensity for delusions. There is a real question as to whether the admissions were a product of his illness. They are vague admissions that lack a degree of specificity.
Further, the complainant, when questioned, made no references to the incidents described although she did say that there was an occasion when she was having a swing at the park when the accused asked her to touch her vagina. While this may be explicable by the complainant’s tender years I cannot be sure about that.
Although the accused’s admissions are the only source of evidence against him, I am entitled to return a verdict of guilty based solely on the confessions. Before I can do so I must be satisfied beyond reasonable doubt that the accused made the statements attributed to him and that I can place reliance on their accuracy beyond reasonable doubt.

I have no doubt that the accused made the statements attributed to him in his hand written statement, in his confession to AT, in the two Records of Interview and to Dr Dhillon.
I note that there were four separate sources of the confession on four separate occasions, namely AT, the interviewing police officers and the video, the statement (Ex P5) and Dr Dhillon. It is not, however, as if there were comprehensive confessions in each case.
Dr Dhillon had merely confirmed that the accused said that what he told the police was true. There was no information before me as to the extent to which he went into the question of what the accused was admitting to the police officers. There is nothing before me as to what the then allegations were that Dr Dhillon says the accused was affirming.
I am concerned, having observed the accused, about the content of what he says. Much of what he said to me during his evidence appeared to make little sense. I note that he claims in his evidence not to recall the events that he admitted to but he continues to assert that they are probably true albeit no coherent reason for doing so is given.
It is not asserted that the accused’s evidence before me was contrived or concocted.
In all the circumstances I am not prepared to accept the truth of the confessions beyond a reasonable doubt. I am not prepared to do so for the following reasons:
(1)The accused has a mental condition which may or may not have been florid either at the time of the events allegedly admitted to or at the time of the making of admissions. It seems to me that if it was florid at either of these occasions it may be an issue affecting the cogency of the admissions.
(2)The admissions are not clear cut; they are generic, they describe vague incidents without any background information so as to be able to relate them to specific occasions.
(3)The complainant, albeit she was only 5 years old at the time, does not confirm any of the allegations.
(4)There is no evidence corroborating the accuracy of the versions put forward by the accused.
I am left in a state of unease. I cannot conscientiously say that the objective facts are proved beyond reasonable doubt.
Verdict
I find the objective facts not proved. I therefore record a verdict of not guilty pursuant to s 269G(2) of the Criminal Law Consolidation Act (1935).