R v M, R
[2013] SADC 55
•8 May 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R
Criminal Trial by Judge Alone
[2013] SADC 55
Reasons for the Verdicts of His Honour Judge Beazley
8 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone – accused charged with three counts of indecent assault – offences allegedly occurred when the complainant was aged between 12 and 15 years – complainant aged 51 years as at the date of trial – prosecution case based entirely upon acceptance of the truth and reliability of the evidence of the complainant – uncharged acts and other discreditable conduct alleged – significant inconsistencies between evidence of the complainant at trial and previous statements to police – substantial forensic disadvantage to the accused by the delay – prosecution failed to prove the guilt of the accused beyond reasonable doubt.
Verdicts: Accused not guilty of each of the three charged offences.
Criminal Law Consolidation Act (1935) s 56; Evidence Act (1929) s 34, s 34CB, s 34L, s 34P, s 34M; Juries Act (1927) s 7, referred to.
Douglass v R [2012] HCA 34; R v M, BJ [2011] SASCFC 50; R v Liddy (2002) 81 SASR 22; R v Keyte (2000) 78 SASR 68; Thorne v R [2007] NSWCCA 10 at [24]; R v RTB [2002] NSWCCA 104; R v Dann [2000] NSWCCA 185; R v Livingstone [2011] SASCFC 28; R v R, R & R, LJ [2008] SASC 35 at [42]; Palmer v R (1998) 193 CLR 1 at [9]; R v Abrahamson (1994) 63 SASR 139; Hargraves v R [2011] HCA 44 at [43-46]; Murray v R (2002) 211 CLR 193 at 213; R v El Rifai [2012] SASCFC 98; R v ATM [2000] NSWCAA 475; WFS v R [2011] VSCA 347; R v BFB (2003) 87 SASR 278; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJJ 571, considered.
R v M, R
[2013] SADC 55Criminal Trial by Judge Alone
Introduction
The accused, R M, is charged on Information, dated 15 April 2013, with three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (the Act).
The alleged offences as detailed in the Information are as follows:
First Count
Statement of Offence
Indecent Assault
Particulars of Offence
R M between the 1st day of October 1974 and the 31st day of December 1977, at Hectorville, or another place, indecently assaulted SH, a person under the age of 17 years by inserting his finger into her vagina.
Second Count
Statement of Offence
Indecent Assault
Particulars of Offence
R M between the 1st day of October 1974 and the 31st day of December 1977, at Belair, or another place, indecently assaulted SH by rubbing her vagina with his hand over her clothing.
Third Count
Statement of Offence
Indecent Assault
Particulars of Offence
R M between the 1st day of October 1974 and the 31st day of December 1977, at Mitcham, or another place, indecently assaulted SH by causing her to masturbate his penis.
Procedural Matters
·Trial by Judge Alone
The accused pleaded not guilty to all three charges and elected to be tried by a judge without a jury pursuant to s 7 of the Juries Act 1927. The accused’s application was granted and the trial commenced before me on 16 April 2013.
Mr P Longson appeared as counsel for the Director of Public Prosecutions (“the DPP”), and Mrs M Shaw QC and Mr K Handshin appeared as counsel for the accused.
·Rule 15 Notice
The accused filed a notice pursuant to Rule 15 of the District Court Criminal Rules 2013 on 3 April 2013, seeking to exclude various allegations contained in declarations made by the complainant “SH”; and other potential witnesses “P”, “K” and “DC”. The complaints by the accused as to the admissibility of those respective allegations were based upon the assertion that the allegations constituted opinion evidence; or were otherwise inadmissible pursuant to s 34P of the Evidence Act 1929, or as hearsay evidence, or alternatively were simply irrelevant.
In accordance with the principles expressed in R v Abrahamson,[1] both counsel accepted that I ought to receive the evidence, on those matters, subject to submissions, if any, in final addresses. Other specific objections, including those as to s 34L of the Evidence Act, 1929, were dealt with as the occasion arose.
·Notice of intention to adduce evidence of discreditable conduct
[1] (1994) 63 SASR 139
By Amended Notice dated 12 April 2013, the DPP sought to adduce evidence of discreditable conduct,[2] namely that of specific and general evidence relating to other incidents of sexual conduct, which were alleged to have occurred between the accused and the complainant, and which were not the subject of charges.
[2] Evidence Act (1929) SA section 34P
Ultimately I permitted the DPP to call such evidence for most of the purposes detailed in paragraph 3 of the Notice. I did not however admit it as evidence of the propensity or disposition of the accused, for reasons which will become apparent hereafter.
In addition, it was unclear, with respect to some of the uncharged acts, as to whether they had allegedly occurred before or after the final count on the Information.[3] On the facts of the subject case, the evidence of uncharged acts subsequent to the last of the charged acts have not been admitted in the exercise of the discretion. This is because such conduct must necessarily have little weight in placing the charged conduct in context.[4]
Section 21 of the Evidence Act
[3] See evidence at T p 61
[4] R v ATM [2000] NSWCCA 475; WFS v R [2011] VSCA 347; R v Beserick (1993) 30 NSWLR 510 at 525; and R v BFB (2003) 87 SASR 278
Prior to a witness, “P”, giving evidence, I explained his right to make application for an order, pursuant to the Act, exempting him from giving evidence. After examining him, I was satisfied that he was aware of his rights to make such an application, and that he had declined to seek such an exemption.
·Necessity for Reasons
The Court of Criminal Appeal has recently confirmed that it is not necessary in a trial heard by judge alone, for the Court to detail, in its Reasons for Verdict, the obvious directions of law in respect of which any trial judge is bound to be aware.[5] It is, by contrast, essential that sufficient reasons be given to explain the verdict.[6]
[5] R v R, R & R, LJ [2008] SASC 35 at [42].
[6] Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68.
Legal Directions
I do not propose to detail all of the obvious directions of law.
I do however remind myself of some of the following fundamental directions which apply in every criminal trial:
·The accused comes before this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on each of the charged offences has been proved beyond reasonable doubt. In the context of this case the accused is innocent of any specified act of indecent assault unless the prosecution has satisfied me of his guilt of it beyond reasonable doubt.
·In assessing the evidence of the witnesses I am entitled to accept the evidence of the witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[7]
·The prosecution seeks to satisfy me beyond reasonable doubt entirely upon the evidence of the complainant, as to each of the alleged counts of indecent assault. While I am not obliged by statute to so direct myself,[8] I will approach the evidence of the complainant with caution and only rely upon it if I am satisfied beyond reasonable doubt that it is both credible and reliable, in respect of the count which I am then considering.
·The accused is charged with three separate charges on the one Information. Each must be considered separately on its merits. It does not follow that if I am satisfied beyond reasonable doubt of his guilt on one count that he is guilty of another count. Counts do not stand or fall together.
·I do however direct myself, that as the prosecution case depends entirely upon the complainant, where inroads have been made as to her credibility and reliability, any reservations, I may have as to her credibility or reliability, in my assessment of any one count of indecent assault, may be carried over to my assessment of the allegations in respect of the other counts.[9]
·The accused does not have to prove anything. The accused was not obliged to give evidence. When interviewed by the police the accused denied each of the allegations made against him by the complainant. At trial, the accused elected not to give evidence on oath but to leave it to the prosecution to prove its case beyond reasonable doubt if it were able to do so. I have drawn no inference adverse to the accused in consequence of him exercising his right to silence.
·Only proof beyond reasonable doubt by the Prosecution, can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charge I am then considering, I must give the accused the benefit of that doubt and find him not guilty of that charge.
·Evidence may be given, inter alia, as to an initial complaint; as to when it was made by the complainant; and as to why the complainant did not make it at an earlier time.[10] I direct myself that evidence of any such complaint is admissible only for the specific purposes in s 34M(4)(a) of the Act; and is not admissible as evidence of the truth of what was allegedly said. The complainant deposed that she had informed her husband, in or about the month of May 1985, that the accused “didn’t do anything, he just was in love with me”. In the event, I held that this evidence was not evidence of “a complaint”,[11] although it may constitute evidence of a previous inconsistent statement by the complainant.
·If I were satisfied that the accused was significantly forensically disadvantaged by the delay of some 38 years between the first date specified in the particulars in the Information, and the trial, then this disadvantage must be taken into account by me. The facts of this case established it as being the quintessential example of significant forensic disadvantage to the accused. This disadvantage included the loss of the chance of the accused making investigations which would have been available had there been a prompt complaint. Indeed the complainant’s own memory was adversely affected, such that she had difficulties identifying the scene of the alleged indecent assault, indeed the State in which it allegedly occurred; the year; and other persons allegedly present in respect of the charged event in count 1 on the Information. Those difficulties of the complainant were properly conceded by her, and were evident from enquiries made by her on, inter alia, social media.
·The complainant’s evidence was not corroborated in respect of any of the three counts. It may have been expected that the witness “P” would have been in a position to corroborate the complainant’s evidence in count 1, but did not do so. Although a court is no longer obliged to give a warning as to the absence of corroboration,[12] I warn myself in the circumstances of this case that the complainant’s evidence must be approached with caution and scrutinised with great care.
[7] Hargraves v R [2011] HCA 44 at [25].
[8] Evidence Act, (1929), section 34L(5)
[9] R v Liddy (2002) 81 SASR 22 at [181 – 193]
[10] Evidence Act (1929)
[11] R v El Rifai [2012] SASCFC 98; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJS 571.
[12] Evidence Act, (1929), section 34L(5)
Elements of the charged offences of Indecent Assault
A person commits an indecent assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency. The prosecution must prove in such a case each, and every one of the following elements, namely:
1. The accused applied force to the complainant.
A mere touch would constitute sufficient force.
The allegations are, in respect of:
1.1.1count 1, that the accused inserted his finger into the complainant’s vagina;
1.1.2count 2, that the accused rubbed his hand on her clothing over her vagina;
1.1.3count 3, that the accused caused the complainant to masturbate his penis.
2. The application of such force was deliberate.
3.The accused’s conduct in each count, as described, occurred in circumstances of indecency.
If the Prosecution proves elements one and two beyond reasonable doubt, the conduct clearly occurred in circumstances of indecency.
4. The accused’s conduct, in each count, as described, was unlawful.
As no person aged under 17 years is capable of consenting to an indecent assault, there is no doubt that if the prosecution proves elements one, two and three beyond reasonable doubt, the accused’s acts were unlawful.
Overview
The prosecution called oral evidence from the complainant, “SH”; a witness, “P”, - the son of the accused, who had been a member of her sporting club during the period specified in the counts on the Information; and the investigating police officer, Detective Brevet Sergeant Philip Dean Maynard. In addition, the newspaper articles, being Exhibits P2 and P3, were agreed as being dated respectively 3 November 1976, and 12 October 1977.
The witness “P” was a patently honest and reliable witness. He was able to place in proper context the complainant’s involvement in the sport from about 1973, and the accused’s work history.
Although he was a friend of the complainant and had supported her investigations, his evidence did not advance the Prosecution case. Similarly the evidence of the witness Detective Maynard did not advance the Prosecution case. Accordingly the Prosecution case depended entirely upon the acceptance of the credibility and reliability of the evidence of the complainant.
The Prosecution case was opened upon the basis that the alleged offence in:
·count 1, had occurred “at a drive-in at Hectorville, while watching a movie, “The Towering Inferno” in late January/February, possibly 1976”.
·count 2, had “occurred at some bushland, possibly Belair National Park, possibly somewhere else but bushland close to the City of Adelaide”.
·count 3, had occurred at a time when the complainant had been told by the accused that a championship in Spain had been cancelled, and “at a place known as Norman Walk. It involved the accused and the complainant kissing in the front seat of his car, and the complainant masturbating the accused to ejaculation”.[13]
[13] T pgs 6-7
In respect of the other alleged discreditable conduct, the Prosecution opened, inter alia, on the basis that on an occasion of returning from an interstate trip, the accused had told the complainant, inter alia, that he loved her; that on another occasion the accused had kissed the complainant while they were at his home, and that he had ejaculated; and on other occasions, at Norman Walk, “there would be kissing, masturbation, and/or fellatio, and/or she would massage his testicles, and he would masturbate himself”.[14]
[14] T p 7
The Evidence
The following is a synopsis of the evidence of the complainant, and the accused’s case, as put to her in cross-examination, in respect of each of those allegations.
The complainant was an outstanding junior athlete, who became a member of a club, coached by the accused in 1973. The accused’s three children, “K”, “P” and “S”, were also members of that club. The complainant gave evidence of various trips, interstate, to Queensland, New South Wales and Victoria with respect to either interstate club competitions or Australian Championships.[15]
[15] T pp 25-29 XN
Count 1
The complainant deposed, in examination-in-chief,[16] that in the January period of 1975, (my emphasis) she had been staying at the accused’s house with his wife and three children. She said: –
[16] T pp 35-37
AI remember staying there and all of a sudden I was told that we were going to the drive-in, it seemed to be quite a quick decision, and we just went in the car from Rostrevor to the drive-in.
QWho is ‘we’.
ASorry R M drove the car and I remember “P” and “S” being in the car as well.
QWhat about K was she there.
AK was not there...
QDo you remember what sort of car it was that you went in.
AI had thought I had a clear vision of the seats of the car but I can’t be one hundred percent sure on it. I decline to answer what car it was. It was either the Holden or the Premier. As time has gone on I’ve got more confused in my thoughts which car it was.
QDo you remember what it was that you went to see.
AI remember seeing a movie with fireman coming down the steps and a whole lot of dialogue which I didn’t understand and I believe it was Towering Inferno.
QUp to that point in time, had you ever been to the drive-in before.
AI had been to the drive-in with my sister, she did take me to the drive-in when I was about 8.
QWhere were you when you arrived at the drive-in. Do you remember where it was you were sitting in that car.
AYeah, I was sitting in the back seat, and R M was driving and I specifically remember being surprised when he came in the back seat with me.
QWhen you arrived were you sitting in the back seat with anybody.
AI was sitting in the back seat with one of the boys, I’m not sure which one but there was a rearrangement of the seats and the boys went into the front seats.
QThis arrangement did that take place when the movie started or was this prior to the movie starting, how did it start.
AI feel it might have been after intermission after we had been to the kiosk. It definitely wasn’t at the beginning of the movie. And I remember the boys eating something in the front seat.
QDid anything happen once R M got in the back seat with you.
AYes. He came in on my right side and came closer to me and put his fingers in my vagina.
QI know this is difficult. Can you tell us how that happened.
AWell, he just came over, put his arm around me and went down my track pants which I had on, and he obviously found the spot, and I was in shock. I was – felt frozen and couldn’t believe he was doing this in front of his sons.
QWas it finger or fingers.
AIt was fingers.
QInside.
AYes.
QDid he do anything with them, with his fingers.
AI just felt they were moving in there, but I was just trying to keep still myself.
QDid he say anything to you.
ANo.
Q– During this.
ANo.
QDid you say anything to him.
ANo I didn’t, no I just sat.
The complainant was cross-examined about enquiries she had made on social media; statements she had made previously to the police; and evidence she had given at the committal hearing. She agreed that she had “considered” that the alleged offence may have occurred at Morwell in Victoria, and not at the Hectorville drive-in in South Australia. She said that she had remembered the Morwell trip as she had some video footage of that trip, and that this video had helped her remember having travelled with the accused’s three children, “K”, “S” and “P”. She conceded that she had first considered, as a possibility, that the incident had occurred in Morwell in Victoria, and then subsequently that it had occurred at Glen Waverley in Victoria.
She explained that the event in count 1 had occurred early in the relationship.
In answer to a question as to her process of preparing a statement for the police in 2010, she deposed that:
Yes, in the very early stages of, you know, trying to remember after 35 years something I have not even thought, buried, and then trying to, you know, remember the events quite clearly, but I didn’t remember where I was as well. [17]
[17] T p 75 XXN.
She admitted having made contact with the accused’s children. They were sympathetic to her, but told her that they did not know of the incident nor could they remember an occasion of going to the drive-in with her. She admitted that she had thought it was possible that “K”, “S”, “P” had been to the drive-in at Morwell, with her,[18] when the event in count 1 had occurred.
[18] T p 79 XXN
She had made enquiries of a number of people to try to determine whether it was at Morwell or at Glen Waverley, but ultimately determined that it must have occurred in South Australia. “K” had made it clear to her that she had not been at a drive-in at Morwell. She conducted her own research at the State Library, from contemporaneous newsletters and sporting magazines.[19] She conceded that, as late as 2 July 2010, she still “felt” that it could have happened at Morwell in Victoria.[20]
[19] T p 83 XXN
[20] T pp 86-88 XXN
She deposed that, at some stage, she was informed by “K” that there had been a drive-in at Hectorville. She conceded that, at the committal hearing, she had deposed that: “I was more convinced it was in South Australia, and after K told me there was a Hectorville Drive-in nearby that was – the penny just dropped that that is where it was”.
The Hectorville Drive-in had long ceased to exist before the subject charges had been brought to the attention of the police.
Although Detective Brevet Sergeant Maynard may well have told the complainant that the police could not prosecute offences which may have occurred in another State, the complainant had thought that she may have been informed of that by a solicitor, at a later time. I readily accept however that this information, however obtained by her, did not influence her final choice of the Hectorville drive-in, as the alleged scene of the event in count 1.
She had provided a draft statement to the police – which she regarded only as “a working document”,[21] that the events in count 1 had occurred at the Hectorville drive-in the month of January 1975. She now maintained that only the accused’s two sons, “S” and “P”, had been in the front seat of the vehicle. She had previously asked “K” whether she could recall having gone to a drive in with the others to watch “Towering Inferno”, however “K” had told her that she had not been there.
[21] T p 100 XXN
She said that on 25 October 2010, she had sworn in her declaration that count 1 had occurred in February 1975 when she had been staying at the accused’s home. She had subsequently been informed by Detective Brevet Sergeant Maynard that the film, “The Towering Inferno”, had not been released at that time. Her declaration had been altered by substituting the year “1976” for the year “1975”, even though “1976” could not be considered as “early” in their relationship.
She did not know at that time that the film “The Towering Inferno” had not been screened at the Hectorville Drive-in in 1976. It was obvious that the Year “1976”, had been selected, not because of any sudden revived memory, but simply because the objective facts at that time had established that it could not have occurred in 1975.
In answer to a question put in cross-examination that the “Towering Inferno” had indeed, never been shown at the Hectorville Drive-in at all, she answered “I would like to see the evidence for that”.[22]
[22] T p 125
Subsequently, Detective Brevet Sergeant Maynard, deposed to his enquiries which had established that “Towering Inferno” had in fact, never been shown at the Hectorville drive‑in.[23]
[23] T p 202 XXN
She said that she was unsure as to which vehicle had been driven by the accused at that time.[24] She conceded that she had “meditated” about the events. She had commenced her investigations so that she could establish the sequence of events. This had caused her to give different dates, places, types of motor vehicles and the identity of at least one of the individuals who, allegedly, had attended the event in count 1. Indeed the complainant conceded that this was a process of reconstruction from her memory, her feelings, and her “visions”.
[24] T pp 117-118 XXN
Count 2 – at Belair
The complainant said that in the September school holidays of 1976, when she was aged 15 years, she had caught the train into town and was picked up by the accused in a “Mini Moke”. She said he drove her “through the city, up the Adelaide Hills, to what I believe was Belair National Park”.[25] She said she remembered walking, from the parked vehicle, into a bush setting, and was encouraged to sit on a log. She was asked:
[25] T p 50
QDid anything happen whilst you were on the log.
AYes. He immediately started kissing and – I call it throat kissing with his tongue, kissing, then he was rapidly rubbing his hand over the top of my jeans in my vaginal area.
QDid he do anything else apart from what you’ve just described.
ANo, he just continued with that, and then he stopped.
QDid he say anything to you while he was rubbing your jeans.
AI don’t recall any words.
QDo you remember if you said anything to him.
AI don’t think I said anything.
QOnce again, I’ll ask if you can give his Honour any indication about how long this went for, and if you can’t, say so, but can you describe to his Honour in any way about how long you think this went on for.
AI thought – it felt like 10, 15 minutes, but – it just felt like – in my mind, I was thinking ‘What is he trying to do? Get me excited or something?’. I felt it was strange, what he was doing, and he just seemed to go on and on. I know I can’t be accurate on time. It just seemed a reasonable amount of time.
QHow did it come to an end. Did RM stop it by himself.
AYes.
QOr did you say or do something.
ANo. He just stopped it and I remember getting up and being – wondering what was next.
QWhat happened after you got up.
AThe next memory I have is going back to the car.
When cross-examined, the complainant admitted that she had contacted “K” to establish the year in which the accused had obtained the “Mini Moke”, and that she had used “logic” to fix the date of the event in count 2.[26] At or about that time “P” had been permitted to drive a grey-charcoal car, and had driven the complainant on occasions.[27]
[26] T pgs 159-161 XXN
[27] T pgs 161-162 XXN
The complainant said that she could not say that it had occurred at the Belair National Park. All that she could say was that it was a bush setting, and that she had a “vision” of driving along a “windy road to a bush setting”.[28]
[28] T p 162 XXN
She could not however remember whether the accused had driven her to her home, which was quite close to the Belair National Park, or back to the city to catch a return train.
She said, that by reconstruction, “it seemed to be illogical to be up in the bush, and then drive back and catch a train home, but you never know …”[29]
[29] T p 163 XXN
Count 3 – Norman Walk
The complainant said that she had been training for the World Championships to be held, in late 1977, in Spain.
She said that the alleged event in count 3 was one of the occasions that the accused had driven her to her home after training, and had stopped in Norman Walk.
She said:[30]
[30] T p 57-58 XN
QOn this occasion, was there any kissing?
AYes.
QDid anything else happen on this occasion that you remember.
AOn this occasion it just seemed to be the usual routine of what we did in the car.
QCould you tell his Honour what it is that you remember on this occasion, the night you found out you weren’t going to Spain, that occurred subsequent to the kissing.
AThe feeling was it was a lot of tongue kissing, groping, I’m pulling away quite a lot, and then – I can feel an erect penis and fondling, I was fondling his regions to try and do what we usually did.
QI know it’s difficult but I do need you to assist his Honour as best as you can what you recall. When you say ‘groping’, what do you mean by that.
AI just feel there’s a lot of hands around my bum and around my back, and pulling me closer, that sort of thing.
QWas he in his seat and were you in your seat.
AYes.
QYou said you felt his erect penis.
AYes.
QWhere was it and how did you feel it.
AI can feel – I could feel it through the pants, the track pants, then it was exposed.
QDid you touch it.
AI would touch the testicles.
QDid he do anything.
AI can’t recall whether he ever – I can’t actually recall the activity from then on. I go blank and I actually know there was some sexual contact, but then he just stops.
…
QI’m just asking you about the night you found out about Spain.
AHe decided to stop.
I do not propose to detail the matters raised in cross-examination of the complainant as to count 3.
It is important to bear in mind the particulars of the charge in count 3. What set this count aside from the series of alleged uncharged discreditable conduct was its alleged particularity.
Counsel for the Prosecution very properly conceded that, whatever may be its relevance as evidence of other discreditable conduct, it could not “meet” the character of the charge in count 3, which was identified in the opening as an indecent assault by “causing the complainant to masturbate the accused’s penis to ejaculation”.
As a consequence of this, and the further matters to which I will later refer, I conclude that the Prosecution has not satisfied me beyond reasonable doubt as to the charge of Indecent Assault in count 3.
Discreditable conduct
The complainant gave evidence of numerous uncharged instances of alleged sexual contact between the accused and herself, principally at Norman Walk. She explained that the alleged event in count 3 was neither the first nor the last of such events of sexual contact at Norman Walk.[31]
[31] T p 58
I had admitted that evidence, in so far as it allegedly predated the alleged event in count 3, for quite limited purposes, as I have explained. It may, if proved to have occurred, place the charged sexual acts in context; it may explain the accused’s confidence that the complainant would submit to the charged sexual acts; it may explain the failure of the complainant to complain about the accused’s conduct, and as to why she may be uncertain as to precise dates, irrespective of the delay, if the charged acts were part of a pattern that continued for some time.
The complainant deposed that “whenever he took me home, the accused would stop at Norman Walk … In my memory it was frequent. I had a memory of it happening half a dozen to a dozen times … He would kiss me quite a lot, and I felt like I was being hugged and groped …I know it happened, you know, on other occasions, but I don’t have any other memory except of the car being almost like routinely parked there, the lights being turned off and then it’s expected I would be kissing”.[32]
[32] T pgs 54-55; 58-59
The complainant deposed that on an occasion at the accused’s home the accused kissed her, “standing up and he kissed for, quite some time, and then he said ‘That has never happened before’, that he had ejaculated in his pants”.[33]
[33] T p 60 XN
The complainant could not identify whether it was before or after the alleged event in count 3. She did not recall why she was at the house.[34]
[34] T p 61
The complainant had deposed to an occasion in 1976 when the accused had driven her back, alone, from a competition in New South Wales.[35] She said that the accused had stopped the “orange Statesman … saying how he can’t control himself any further and that if I left – if I went with him, he would leave his family”.
[35] T pgs 45 XN, 136 XXN
When cross-examined, she deposed that it could have been from Melbourne rather than Sydney or Newcastle, and added that “I am not saying he didn’t come back with his children … there is a possibility there was a couple of cars coming back”.
Addresses of Counsel
I do not propose to detail those submissions. I set out only a synopsis of some of the points they made. Mr Longson, counsel for the Prosecution, very properly conceded that the evidence of the complainant did not satisfy the particulars of count 3 on the Information. There was no or at least insufficient evidence to satisfy the alleged indecent assault based upon an allegation that the accused had caused the complainant to masturbate him. While he conceded that the background evidence of the complainant conducting her own investigations to fix a chronology of events, was somewhat unusual, it ought not reflect adversely upon her credit as a witness. She had recorded those investigations on social media, and had frankly acknowledged that there were differences in statements made to the police.
Implicitly had she not been so honest and open, she would not have recorded her investigations and her final statement would have been her only statement to the police.
Irrespective of any issues of reliability, he submitted that I ought conclude that her evidence as to the events in the three counts on the Information was honestly held by her, and that she was a patently honest witness.
Mrs Shaw, Senior Counsel for the accused, provided detailed written submissions. In part they dealt with some general evidence given by the complainant including that as to the number of telephone calls she alleged she had made to the accused at his home rather that at his place of employment; and the alleged “gift” of a pendant which she had allegedly subsequently lost.
She submitted that these objectively were “visions” or matters of fantasy from someone who was a 15 year old in 1976. In particular the evidence of telephone calls from a public telephone booth “every day for about two years”, simply was not believable.
Mrs Shaw submitted that the complainant’s evidence on count 1, was a reconstruction of events which was so unreliable and so inconsistent that it could not be accepted.
She asked, rhetorically, that even though a witness, after so many years, may be wrong about the date of an alleged offence or what film was being shown, how can it be regarded as reliable evidence when the witness had first considered that the event had occurred at a location, indeed one of two alternative locations in an entirely different State, with a different individual being present in the vehicle, and other inconsistencies on significant matters.
She submitted that in light of the numerous inconsistencies in the complainants statements to the police, I ought conclude that the complainant was a demonstrably unreliable witness, and one whose evidence was not corroborated in any respect, including by the witness “P” as to count 1.
Mrs Shaw submitted that this concern as to the reliability of the evidence on count 1 ought carry over to count 2 on the Information. She stressed as “inherently incredible” the lack of context or conversation to which the complainant had deposed in respect of the alleged event in the “bush setting”. She submitted that I could not be satisfied beyond reasonable doubt as to any of the counts on the Information.
Consideration
I turn first to count 1 on the Information. As I have made clear, it is for the Prosecution to prove beyond reasonable doubt that the complainant had given a truthful and reliable account of the alleged incident upon which that count is based.
In assessing the strength of the Prosecution case I must have regard to the obvious and significant forensic difficulties the accused has encountered by reason of the late complaint to the police made by the complainant. The complainant’s own difficulty in initially identifying a location, indeed a State, speaks for itself. Ultimately, on the objective evidence, the final choice of the Hectorville Drive-in when coupled with the film “The Towering Inferno”, cannot be correct whether it be 1975 or 1976.
The complainant had embarked upon a course of reconstruction to fix a date as to when the alleged offence occurred. By going down that path she had been forced to abandon her initial consideration that the drive-in was in an entirely different state, in a different year, in circumstances where three possible attendees, namely the accused’s three children, who were sympathetic to her, had denied ever being present. As it transpired the complainant had settled upon a drive-in which had never shown the Towering Inferno even at the later time identified by the complainant. The complainant had initially determined that this event had occurred very early in the relationship rather than much later and had occurred at a drive-in in an entirely different state. I do not however suggest that the failure to make an earlier complaint, of itself, ought reflect adversely upon her credit as a witness. It would have been understandable, by reason of her age; and the fact that the accused was her coach, that she would have been reluctant to inform upon the accused.
However I do find, in consequence of the vagueness of her allegations in respect of count 1; her comment to her husband that the accused had done nothing to her; the significant forensic disadvantage suffered by the accused, following the late complaint by the complainant, and the prior inconsistent statements to the police, that the complainant’s evidence on count 1 on the Information is unreliable.
I observed the complainant give her evidence and her reactions in cross-examination. She gave her evidence in a clear and pleasant manner. She faced the impossible task of trying to recall background circumstances of alleged events which, on her account, had occurred 38 years ago, and had been “buried” by her. I have no doubt that she genuinely believes that the alleged offences occurred in the manner to which she deposed. My concern is as to her reliability, not as to her honesty as a witness. Save for the concern I have expressed as to the alleged number of telephone calls, she asserts that she made to the accused, I am satisfied that the complainant did not seek to embellish her account of the event in count 1.
She accepted that her memory of certain surrounding circumstances may not be reliable, but she was certain that the offences occurred.
While I accept that she was genuinely attempting to give evidence of her memory of the alleged indecent assault in count 1, her evidence as to the alleged circumstances was simply too unreliable and inconsistent because of that long delay, to be accepted beyond reasonable doubt. The forensic disadvantages suffered by the accused after so long a delay, are overwhelming in the subject case.
In summary, the complainant’s evidence and previous inconsistent statements as to the circumstances of the alleged offending, namely the whereabouts of the drive-in, the people who attended in the car, the year in which it occurred and the other surrounding circumstances is so unreliable that I cannot be satisfied beyond reasonable doubt as to count 1 on the Information.
The complainant’s evidence as to count 2, in my opinion, suffers from some of same difficulties as to its reliability, that I have explained in respect of count 1.
It is frankly impossible to determine whether the complainant’s evidence, of what was alleged to be a brief event, was based upon a true memory, a reconstruction or a “vision”. In my opinion the reservations which I have expressed as to the reliability of the complainant’s evidence on count 1, carries over to my assessment of this charge.
I cannot be satisfied as to the guilt of the accused of the charge in count 2. In the event there is no need for me to discuss the evidence as to the alleged uncharged acts or discreditable conduct. It was relatively clear that the complainant had identified that alleged conduct as having occurred in 1977, namely after the alleged charged offences in counts 1 and 2.
I have already concluded that the Prosecution has not satisfied me as to the charge against the accused in count 3. At its highest it could only have constituted an uncharged act or other discreditable conduct. Again my reservations as to the reliability of the complainant’s evidence on the other counts carries over to the evidence as to the event in this count.
Conclusion
I am not satisfied beyond reasonable doubt as to any of the three counts on the Information brought against the accused.
Accordingly my verdicts are:
Count 1: Not Guilty
Count 2: Not Guilty
Count 3: Not Guilty
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