R v M, M D A - [2007] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, M D A
Criminal Trial by Judge Alone
[2007] SADC 86
Reasons for the Verdict of His Honour Judge Herriman
23 August 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Unlawful sexual intercourse - indecent assault - procuring an act of gross indecency - allegedly committed by relative upon 12-year-old - oath against oath - discussion about delay and recent complaint - issues of corroboration and credibility - verdicts of not guilty
Criminal Law Consolidation Act 1935 s49(3), s56, s58(1)(b), referred to.

R v M, M D A
[2007] SADC 86

M D A M was tried before me on six counts of unlawful sexual intercourse, one count of indecent assault and one count of procuring an act of gross indecency. All incidents allegedly occurred at Edwardstown between 23 December 1999 and 7 September 2000 and in each case the alleged victim was TLS.
As the trial proceeded without a jury, I should remind myself of the relevant legal principles.
A person brought before a judge of this court charged with a criminal offence is presumed to be innocent unless and until the judge finds the charge against that person to be proved. The onus of proof rests with the prosecution and the accused bears no onus at all of proving anything. The prosecution must prove each count and each element of each count beyond reasonable doubt. It is not enough for the prosecution to show a suspicion of guilt or even to show that an accused person is probably guilty.
In the course of the trial, I heard evidence from a number of witnesses and the accused, too, gave sworn evidence. He was not obliged to do that, but he elected to and I will assess his evidence in the same manner as I assess the evidence of any of the other witnesses called. Even so, by entering the witness box, he did not assume any onus of proof. That remained with the prosecution.
I remind myself that the offence of indecent assault, the first count, is made out by proof of an assault accompanied by or committed in circumstances of indecency. The offence thus has two essential elements, each of which must be proved by the prosecution beyond reasonable doubt:
(1)First, it must be proved that there was an assault. An assault is an intentional and unlawful application of force or violence to another person. The application of force need not be great or cause any injury and any touching or handling is enough.
Even so, the application of force must be intentional and not accidental.
Of course, it is not always unlawful to apply force or touch, but I am satisfied that there is nothing in the circumstances of this case which obliges me to consider whether the alleged touching was lawful.
Here, as to count 1, the prosecution relied upon an allegation that the accused placed his hand inside the complainant’s trousers and touched him on the penis and the bottom. For his part, the accused denied that any such act occurred.
(2)The second element is that the assault must be accompanied by or occur in circumstances of indecency.
In that respect, the prosecution must show that the alleged conduct was, by reasonable contemporary standards, properly to be characterised as indecent.
I am satisfied that were the alleged assault proved, it would, by reasonable contemporary standards, be considered to be indecent.
The real issue with respect to this count is whether the assault occurred at all. I will return to that question later.
As to the six counts of unlawful sexual intercourse, I remind myself of the elements of that particular offence, each of which must be proved by the prosecution beyond reasonable doubt:
(1)The first element is that there was an act of sexual intercourse with the person alleged at the time alleged.
(2)The second element is that that person was, at that time, under the age of 17 years.
(3)The third element is that the alleged act was unlawful.
I remind myself that sexual intercourse has a wide definition for the purposes of the law and, relevantly, includes any activity consisting of or involving penetration of the anus of a person by any part of the body of another person or by any object and, as well, the act of fellatio.
In this case, with respect to the second count, the prosecution alleged that the accused placed his fingers in TLS’s anus. With respect to the third count, it alleged that he placed his penis in TLS’s anus. With respect to the fifth count, it alleged that he forced TLS to perform an act of fellatio upon him. With respect to the sixth and seventh counts, it alleged that he placed his penis in TLS’s anus and, with respect to the eighth count, it alleged that he performed an act of fellatio on the complainant.
For his part, the accused denied that any one of those alleged acts occurred.
The prosecution did not lead, at trial, any evidence relating to the commission of the eighth count and, accordingly, it will be dismissed.
As to the second element, both on the prosecution case and on the accused’s evidence, I am satisfied beyond reasonable doubt that, at the time the acts are alleged to have occurred, TLS was 12 years old. The matter in issue with respect to each of those counts remained whether the prosecution had proved beyond reasonable doubt that each alleged act of sexual intercourse had occurred.
As to the third element, I would be satisfied beyond reasonable doubt that, were the alleged acts otherwise proved, they would be properly characterised as unlawful. There was nothing advanced in the prosecution or defence cases which would have made them lawful.
I remind myself that, having regard to the age of TLS at the time, the question of whether or not he consented to any of the alleged acts is not a relevant consideration.
I then remind myself of the elements of the offence of procuring an act of gross indecency. The fourth count alleges that the accused procured such an act by forcing TLS to take hold of his penis as they were watching television.
Gross indecency is committed where a person in a public or a private place commits an act of gross indecency with a person under the age of 16 years.
(1)The first element of that offence is that the accused performed the alleged act – that is, the act I have just mentioned. As to that, TLS says he did and the accused denies it.
(2)Secondly, it must be shown that the act was performed in TLS’s presence. Plainly, the act itself is denied but if it occurred as alleged by the prosecution, then it would necessarily have been in TLS’s presence.
(3)Thirdly, it must be shown that TLS was then under the age of 16 years. As to that element, if the act occurred as alleged, then I am satisfied beyond reasonable doubt that it occurred at a time when TLS was 12 years old.
(4)Fourthly, it must be shown to have been a grossly indecent act. I have already discussed the meaning of that word “indecent” in discussing the first count, but in respect to this offence, it must be shown that that indecency was gross. I remind myself that gross indecency is something more than a minor or trivial indecency.
On this particular count, the alleged act is, of course, denied, but I should say that if it were otherwise proved to have occurred, I would be satisfied beyond reasonable doubt that it was, in all the circumstances, grossly indecent.
I should also say something about the question of delay. It is now over seven years since the alleged offending. There is no evidence before me as to when TLS first complained of the accused’s conduct, but I am satisfied from the prosecution evidence that the accused was arrested on 8 November 2005. The prosecution case was not attacked on the grounds of delay in complaining or reporting the alleged conduct to the authorities, so as to that issue, I make no finding adverse to the complainant’s credit with respect to that.
Even so, in considering the evidence of all witnesses and including that of the complainant and the accused, I am mindful of the time which has elapsed since the alleged events. I will take that into account in considering the reliability of the evidence that each witness gave.
I should also make another preliminary observation and it relates to the evidence of TLS’s mother, AS, in particular her evidence of finding, in about August 2000, TLS’s handwritten note addressed to the accused in these terms:
Buy me a Game Boy and ten games or else I will tell Mum what you’ve been doing.
There was no evidence led from AS to the effect that she questioned her son as to the meaning of that note and I should say, having regard to the absence of any specificity in its terms, that I am not disposed to treat it as a recent complaint by TLS, such as to possibly enhance his credit.
I turn then to the evidence. I do not propose to discuss it in detail, as the trial was relatively short. There was some common ground, there was directly conflicting evidence between TLS and the accused as to the alleged acts themselves, and there was a surprising level of conflict over peripheral matters.
I am satisfied that TLS was born on 23 December 1987 and that AS is his mother. His father is JI. He has two half‑brothers, JL aged 17 years and JD aged two. TLS did not meet his father until he was aged 11. At that time, his father came to live with his mother and his brother JL at Hackham.
As of Christmas 1999, the accused was residing in Edwardstown.
He first met TLS and AS in late 1999. The evidence as to his relationship with TLS was conflicting. On TLS’s account, the accused was introduced to him as his grandfather. AS did not, herself, speak of the accused’s relationship with TLS, but she did say her son had first thought the accused was his uncle and later that he was his father’s father. For his part, the accused said the complainant’s father was his own sister’s adopted son.
Somewhat perversely, these conflicting accounts were never resolved.
The circumstances in which TLS first met the accused were also contentious.
On TLS’s account, at about Christmas 1999 he was taken by his father to the accused’s house and the accused was introduced to him as his father’s father. He denied that that first meeting was in the house of another person.
He was challenged over this and his police statement that that first meeting had been in October 1999. He wavered on the time of that meeting, but said it was summertime and close to year’s end and he otherwise adhered to his position that it occurred at the accused’s house.
On the other hand, both his mother and the accused said that that first meeting had taken place at a friend’s house in the same district at about Christmas time in 1999. Nothing much turns on that dispute and I keep in mind TLS was then aged 12.
At all events, it was not in dispute that within a short time of that meeting, TLS and his brother stayed overnight at the accused’s house, albeit that the evidence as to how this came about was contentious.
On TLS’s account, that stay had not been planned. He had simply gone to the accused’s house with his mother and brother, and the accused had then asked if they would like to stay overnight. His mother had thought it a good idea so she had gone away and brought back their overnight things.
On his mother’s account, whilst they were still visiting, the boys had asked her if they could stay there.
According to the accused, they had stayed with him because their mother had asked if he would mind them while she and JI went out. They had been left on his doorstep and were there when he came home from work that day.
There was then a clear conflict as to where the boys slept. On TLS’s account, they slept together in the bedroom, containing the double bed, every time they stayed there, albeit that there were occasions when he stayed there by himself. On the accused’s account, they only ever stayed there together and they always slept in sleeping bags on a mattress laid out by him on the lounge room floor. The double bedroom, he said, belonged to his own father, who happened, on that first night, to be staying over with his brother after a trotting meeting. On the accused’s account, the boys never went into any of the bedrooms in the house and their doors were kept closed.
TLS spoke of a series of overnight stays, which were always on weekends. After their first weekend stay, they stayed on the next weekend and then on most weekends thereafter until October 2000. JL was not always with him.
AS gave quite a different account of that. She recalled only two occasions when the boys stayed there with her permission, but said there were other occasions when they stayed that she did not know about. On one such occasion she found a note from the accused on her coffee table saying that the boys were with him. Overall, though, she thought the boys stayed with the accused only a couple of times between Christmas 1999 and August or September of 2000.
For his part, the accused said that the boys only stayed with him a couple of times.
There was then conflicting evidence as to what was said by TLS about wanting to continue staying with the accused. On his own account, as a result of the accused’s alleged conduct, he told his mother he did not want to go back there. When he was pressed on that answer, however, he agreed he had in fact told his mother he wanted to continue staying with the accused and did not want to come home, but he said he had told her that because the accused had directed him to say it. He was pressed further on that point and said that after telling his mother that, he did not ever say to her that he would not go to the accused’s house again.
For his part, the accused said that TLS never told him he wanted to go home or that he did not want to stay there any more.
For her part, AS said she had had problems with TLS not wanting to come home and, indeed, wanting to stay with the accused. She then related in graphic terms how the accused would ring her almost every day and beg her to put the boys in a taxi and send them to him, saying he would pay the taxi fare. He would be crying, she said, when he was making that request. She never complied with his requests and, indeed, told him that if he continued to harass her, she would report it to the police.
The accused denied making any such requests of her.
There was some measure of consensus about the accused giving cash and other things to JI and AS. On the complainant’s account, the accused gave his parents money and a stereo. He also promised to pay for the complainant’s education.
AS, for her part, denied that the accused gave her money directly, but agreed that he had given money to JI. JI, she said, had been in the habit of asking him for money and, indeed, would also steal from her and from the complainant. She herself had never asked the accused for money. She did not know what reasons JI would advance to the accused for wanting that money. She had never threatened the accused and demanded money.
For his part, the accused said he gave money to both AS and JI because they told him they were battling and they asked for it. It was as much as $200 at a time, but after a time they threatened him and he realised they were spending the money on drugs, so he stopped giving it to them.
There were then several issues relating more directly to the accused’s alleged offending and upon which the evidence of the complainant and the accused directly conflicted.
Two of the counts were alleged to have occurred when the boys were sleeping in the double bed. I have already mentioned the conflicting allegations as to where the boys slept when they were there.
Another count was alleged to have occurred on the mattress on the dining room floor whilst all were watching a particular video. The accused admitted they watched that video (there was some conflict as to its title but I am satisfied both were talking about the same film), but denied they did so from that position.
Two of the counts were alleged to have taken place in the accused’s bedroom when he showed TLS photographs of his father which were located in a roll-top desk in there. For his part, the accused denied he ever had such a desk in his room. He said that there were photos of the father in the lounge room and he did, indeed, show those to the complainant, but in that room.
One of the alleged counts was said to have occurred when he was having a shower at the accused’s home. The accused said that neither of the boys had ever had a shower there.
Otherwise, there is no need to discuss in detail each of the incidents upon which the separate counts are based, other than to say that they allegedly occurred:
(1)as to the first count, when the two boys were playing a board game on the floor of the lounge room – the accused conceded they probably did play a board game on the floor that day but denied approaching the complainant in the alleged or any way;
(2)as to counts 2 and 3, whilst the complainant and his brother were sleeping in the double bed – the accused denied the events and denied they ever slept in that bed, anyway;
(3)as to count 4, whilst they were watching the film on a mattress on the floor – the accused acknowledged they were watching the film but denied they were watching it together on a mattress on the floor;
(4)as to counts 5 and 6, when the accused took the complainant into his bedroom to see the photographs located in his desk – the accused denied that TLS ever went into his room or that there was a desk or were photographs in there and otherwise denied the alleged incident;
(5)as to count 7, when the complainant was showering – again, the accused denied that the complainant ever showered there or that the incident occurred.
Count 8 cannot be relied upon by the prosecution, as there was no evidence adduced as to it.
In summary then, the complainant provided a specific account of each of the seven incidents relied upon by the prosecution on each count and, for his part, the accused squarely denied each of them and, in every case, disputed the surrounding circumstances described by TLS. In addition, as I have noted, there was also a considerable degree of conflict between the evidence of the three principal witnesses, being the complainant, his mother and the accused, over peripheral issues.
As to the complainant, he was, at the time of giving evidence, 19 years of age. He gave evidence by closed-circuit television and I drew no inference adverse to him or to the accused from that fact. He was generally firm in his recollections, although he wavered at times when challenged over matters he had related to the police. He was variously upset and angry at times, but generally his evidence was not internally contradictory.
His mother’s evidence was considerably less impressive. On her own account, she was using heroin at that time and was involved in a violent domestic relationship with the complainant’s father. She was vague about the number of times that the boys had stayed with the accused and I found extraordinary her evidence that there were only two occasions when she consented to it happening. She said that she had always managed to pay her bills, but on her own account she was well aware that JI was pressing the accused for money and obtaining it and, of course, they were both using heroin. It was plain to me that she knew what that money was obtained for. Her evidence as to the accused’s requests to see the boys was florid and unconvincing and what she said about the Game Boy set was inherently unlikely.

As to the accused, his evidence was firm and unshaken by cross-examination. He denied each of the allegations upon which the prosecution case was based and disputed with some conviction many of the alleged surrounding circumstances.
I thus found myself confronted with the evidence of the complainant and the accused, both given on oath and directly in conflict. Neither was seriously shaken in cross-examination. In some respects, the complainant’s evidence was less firm than that of the accused, but, against that, I should pay some heed to his age at the time of the alleged events and the time which has since elapsed.
Faced with that level of conflict, and keeping in mind the prosecution onus, I looked for material which might have tended to corroborate the complainant’s evidence. Apart from the common ground that they played board games, watched movies and slept there and that the accused showed TLS photographs of his father (JI), there was only one such matter potentially capable of corroboration and it related to the accused’s gift to him of a Game Boy set, with ten games. It was not in dispute that the accused had, indeed, given him what I will call “the Game Boy set”, but the reason why he did so was very much a matter of dispute.
On TLS’s account, after the alleged offending had taken place, he was angry with the accused and had written to him saying that if the accused did not buy him the Game Boy set, he would go to the police and tell them what the accused had done. TLS said that after he sent that letter, he received the Game Boy set from the accused. It was after he received it that he first discussed with his mother how he got it.
It was put to him by defence counsel that the accused had given him the Game Boy set in December 2000 as a present for his birthday (which was on 23 December) and for Christmas. He rejected that. It was put to him that he had never written or sent a letter in those terms to the accused, but he maintained he had.
His mother gave some evidence about that matter, but her account did not correspond with her son’s. She said that in about August 2000 she had found a letter in the complainant’s bedroom written by him in the terms I have previously quoted. On her account, the letter threatened, not that her son would go to the police, but that he would tell her.
She said that she had kept the letter for a while but did not know what had eventually happened to it. She had spoken to her son about it, as well.
Then, somewhat oddly, she said, and affirmed when pressed on it, that by the time she saw that letter, her son already had the Game Boy set. She had asked him about it when she first saw it and he had told her that it belonged to a friend of his. She had herself gone to that friend’s mother to check that story.
I have been unable to conclude that the mother’s evidence is, in any useful way, corroborative of the complainant’s account.
The letter that she saw was, she said, in an original form and it struck me as entirely implausible that a 12-year-old boy would have kept a handwritten copy of such a letter, yet by that time, on her account, he already had the set. She did support the complainant’s account to the extent of saying that she had seen that letter in August or September, but otherwise there was no plausible explanation for the sequence of events she related and, in the context of my generally unfavourable view of her credibility, I did not consider her evidence had any corroborative value.
For his part, the accused denied ever receiving any such letter and maintained that he made the gift of the Game Boy set for TLS’s birthday and Christmas.
In the end, therefore, I was faced with the position that the evidence of the complainant upon oath was directly contradicted by the evidence of the accused on oath, and there was nothing in the evidence of either of them which contributed in any significant way to a lack of confidence in the account each gave. The gift of the Game Boy set was potentially corroborative of TLS’s account, but the accused’s explanation for it, viewed in the whole context of the family relationships, was a plausible one. Overall, I was not persuaded there was any evidence which corroborated TLS’s account in any significant way.
I remind myself that there is no principle of evidence requiring a complainant’s account to be corroborated, but the absence of any useful corroboration here meant that I was confronted with a case where the complainant’s evidence was directly contradicted by the accused’s sworn evidence and where I was unable to make any specific findings adverse to the credit of either.
In circumstances where the prosecution case relied almost entirely, as I found it, on the evidence of TLS, I was unable to safely conclude that it had proved its case beyond reasonable doubt on any of the counts 1 to 7 inclusive. Otherwise, count 8 had necessarily to be dismissed because it was not supported by any evidence.
Accordingly, I find the accused not guilty on all counts.