R v Maddern - [2016] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MADDERN
Criminal Trial by Judge Alone
[2016] SADC 119
Reasons for the Verdicts of His Honour Judge Rice
29 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with two counts of Aggravated Indecent Assault and one count of Persistent Sexual Exploitation of a child. The accused was the class room teacher for the two complainants.
Verdicts: Not Guilty
Evidence Act 1929 (SA) s 34CA, s 9; Criminal Law Consolidation Act 1935 (SA) s 56, s 50; Statutes Amendment (Vulnerable Witnesses) Act 2015 s 13BA(6); Statutues Amendment (Attorney Generals Portfolio) Act No 28 of 2016, referred to.
R v Prasad (1979) 23 SASR 161, considered.

R v MADDERN
[2016] SADC 119
Introduction

This is a trial by judge alone.
The accused is charged with three alleged offences of a sexual nature against two young male complainants. At all relevant times the accused was the school class-room teacher of the complainants.
The first count charges an Aggravated Indecent Assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). I will refer to the complainant in this count as C1. The alleged offence is said to be aggravated because the accused abused his position of authority in committing the offence.
The particulars for the purposes of Count 1 were amended to allege that the offending took place between 18 September 2014 and 25 September 2014.
The second and third counts relate to a complainant I will refer to as C2.
Count 2 charges a Persistent Sexual Exploitation of a Child contrary to s 50 Criminal Law Consolidation Act 1935 (SA). Particulars of the offence are as follows:
‘Justin Michael Maddern over a period of not less than three days between the 27th day of January 2014 and 26th day of September 2014 at X, committed more than one act of sexual exploitation of C1, a person under the age of 18 years, by touching and manipulating his penis over his clothing.’
Count 3 also charges an Aggravated Indecent Assault, between 27 January 2014 and 12 April 2014. It is said to be aggravated for the same reason as Count 1.
Counts 2 and 3 are charged in the alternative such that if I am satisfied about Count 2, then there is no need to consider the occasion referred to in Count 3. The allegation in Count 3 is one of the alleged occasions for the purposes of Count 2.
The case alleged by the prosecution
The accused was a junior primary classroom teacher at a school near to Adelaide. Both complainants were in his Year 2 class. The occasions of the alleged offending were in the classroom itself and each boy separately alleges that during class time the accused touched his penis, that is the boys’ penis, over their clothing.
Each boy describes the touching as having happened when the accused was helping them with their work. Each describes the accused leaning across them, using one hand to help them with their work and the other to touch the boys’ penis.
As at the time of the alleged offending each complaint was aged 8 years. At the time of trial C1 was aged 9 years and C2 was aged 10 years.
As for C1, he said the touching occurred many times over a few days, but it is the first such occasion that is the subject of Count 1. As to Count 1, C1 said that he was working at his desk on a laptop computer when he asked the accused for help. The accused is said to have used one hand to operate the computer and other to touch C1’s penis.
C1, even on the prosecution case, gave inconsistent accounts relating to the day on which Count 1 occurred. This is a topic to which I will return.
In addition to the charged occasion concerning C1, there are a large number of uncharged acts that C1 describes only in a very general way by saying the same thing happened lots of times. The relevance of these uncharged acts is to rebut any suggestion that the charged act was accidental or unintended.
The allegations of C1 were the subject of a prompt complaint to his mother on the evening of Wednesday 24 September 2014. He demonstrated the accused actions to be a pinching of the penis.
The allegations of C2 came to light following a letter being sent to all parents advising of the arrest of the accused, although he was not named. The parents of C2 talked to C2 and the offending against him was disclosed. C2 described to an interviewing officer that the accused would touch in the area of C2’s penis through his clothing. He said the first time was within the first month of the school year when he sat on the accused’s lap when he asked for assistance with a writing exercise called Focus Writing. He said the accused touched him in the same way quite a few times, about once a month up until the time of his interview.
Count 2 comprises all the alleged sexual touchings. As mentioned, Count 3 is an alternative to Count 2, namely, that if I am only satisfied about the first occasion, then that is the occasion identified in Count 3.
The prosecution does not invite any propensity reasoning. It does, however, submit that the allegations of each complainant are cross-admissible, that is, ‘the improbability that each boy would independently concoct or imagine offending of this level of similarity’[1].
[1] T12.
In addition to that, C2 alleges that he saw the accused touch the ‘privates’ of seven other students in the class, one of whom was C1. However, as is referred to later, none of the other boys who were spoken to at a later time said such touching occurred to any of them.
Admission of evidence
Pursuant to s 34CA of the Evidence Act 1929 (SA) I admitted evidence of the nature and contents of statements made by C1 and C2 to Detective Senior Constable G Kittel[2]. The statement made by C1 was made on Thursday, 25 September 2014. The statement made by C2 was made on Saturday 4 October 2014.
[2] See Exhibits P1, P2, P4, P5.
Pursuant to s 9 of the Evidence Act 1929 (SA) I conducted an inquiry to determine whether C1 had sufficient understanding of the obligation to be truthful that would be entailed in him giving sworn evidence. I determined that he would be allowed to give sworn evidence[3].
[3] T52-T56.
I conducted a similar inquiry concerning C2 and determined that he also could give sworn evidence[4].
[4] T119-T123.
The legal position as to the admission of evidence was complicated by two recent pieces of legislation’ that Statutes Amendment (Vulnerable Witnesses) Act 2015 which commenced on 1 July 2016 and the Statutes Amendment (Attorney Generals Portfolio) Act No 28 of 2016, the relevant portion of which commenced also on 1 July 2016, but after portions of the Vulnerable Witness Amendments.
This commenced on Friday 12 February 2016 but was not completed until 1 July 2016. Certainly the proceeding had not been determined by 1 July 2016.
Bearing in mind those dates, I called the matter on for any submissions as to whether those pieces of legislation had any application at trial. The prosecution applied in writing for an order that the audio visual records of the interviews of C1 and C2, already admitted as Exhibits P1 and P2 pursuant to the former Evidence Act 1929 (SA) s 34 CA, be admitted in evidence in the trial.
I heard argument on this aspect of admissibility on 28 July 2016. The application was made pursuant to the new s 13BA and Schedule 1, Clause 1(2) of the Vulnerable Witnesses Amendments (the transitional provision). I am satisfied the prerequisites for admission of the evidence are fulfilled and the evidence is admitted. I give myself the direction and warnings required by s 13BA(6).
Course of the trial
As already dealt with, the statements of C1 and C2 were admitted. Each was cross-examined on identified topics. Each of the mothers of C1 and C2 also gave evidence.
At the end of the case for the prosecution I declined to direct myself in accord with R v Prasad.
The accused elected to give evidence on oath and was cross-examined. Even if I expressly rejected accused’s account beyond reasonable doubt, that would not be sufficient for any conviction. If the accused is disbelieved beyond reasonable doubt, the effect of that is that his evidence is to be ignored. It would then be necessary for me to assess whether the evidence of C1 and C2, with other evidence, was sufficient to prove a charge beyond reasonable doubt. I could not convict of any charge unless satisfied about the truthfulness, accuracy and reliability of C1 and C2 respectively.
A finding of ‘not guilty’ on any count does not mean that C1 and C2 is disbelieved.
A finding of ‘not guilty’ on any count simply means that I am not satisfied that that count is proved beyond reasonable doubt.
Complaint evidence – C1
It is convenient to refer to the complaint evidence of C1 at this stage. C1 gave evidence that he complained to his mother about the alleged indecent actions of the accused. His mother, M1, also gave evidence on that topic. She said that towards the end of Term 3 in 2014 that her son (C1) said that his teacher had been touching him inappropriately. That conversation took place on the evening of Wednesday 24 September[5].
[5] T33.
The complaint arose when C1’s sister had been video calling her cousin, and turned the camera on C1 who was as that stage in the shower. C1 became quite upset about that and went into the lounge room to do some homework. C1 then told his mother that ‘sometimes Mr Maddern touches me’ and indicated that he was touched on the penis[6].
[6] T34.
C1 said that it happens when the accused was marking his work. He demonstrated to her that the accused leant over, placed his hand under the desk and touched the area of his penis[7]. The mother also said that C1 became upset when he was told that the principal may need to be informed. He started crying and said he did not want the teacher to lose his job as he was a really nice teacher[8].
[7] T35.
[8] T36.
The mother told her husband and the police were called that night[9].
[9] T36-T37.
C1 did not return to school that term (that was the last week of school term) and the next time he would have seen C2 was at the beginning of Term 4.
I have not used the complaint to prove the truth of what was asserted; I have used it to show consistency on C1’s part. It was a prompt complaint but certainly not at the first reasonably available opportunity. At the same time it was spontaneous and not the result of leading or suggestive questions. His reaction to being told that the principal may need to be informed and that he did not want the accused to lose his job, does not support the submission that the complaint was contrived.
Complaint by C2
As has been mentioned, after the alleged incident involving the accused and C1, a letter went to all parents advising them of the arrest of a teacher upon a charge of Indecent Assault. The teacher was not named. C2’s mother asked C2 about any inappropriate touching. He instantly said ‘like Mr Maddern holds me down on his lap.’ At that stage C2 was sitting on the couch and showed his mother with his hands, how the accused pressed down on private area[10].
[10] T109.
In addition to that C2 said that he saw the accused’s hand on another boy’s private region, particularly another boy to whom I will refer as C3[11].
[11] T110.
The mother of C2 confirms that between the last week of Term 3 and receiving the letter from the principal, Ms McInnes, C2 and C1 did not see each other over that weekend[12].
[12] T112.
Evidence of C1
As mentioned C1 provided evidence in the form of his formal audio visual interview as part of the investigation into these alleged offences. In addition to that he gave evidence by CCTV in accordance with the legislation.
For reasons that will become obvious, there is no need for me to analyse his evidence in great detail.
C1 explained that the accused was his class teacher and told me about the lay-out of the classroom and some of his fellow class-mates. More particularly C1 explained that while he was sitting in his chair working on the computer, the accused would come over to him putting one hand on the computer and the other touching him on his ‘rude part’, pointing to the position of his penis. He said all of the touching’s occurred when he was working on the computer.
In his tape recorded interview he repeated that on the first occasion it happened he was working on the computer. The interview itself occurred on a Thursday and C1 said it first happened on the Monday or Tuesday of ‘this week’.
He also said it happened about another eight times on the same day. There was also a full classroom with other students, three of whom were at the same table as C1. At some stage a Student Support Officer (SSO) who was assigned to a particular student, was also present.
In addition to that C1 said it happened about 12 times yesterday (presumably Wednesday). C1 seemed uncertain about when it happened the first time. He also said it happened over three days and somewhere between 20-50 times in total. In cross-examination he said that was not accurate[13]. In evidence he said it happened on the Monday, Tuesday and Wednesday of that week[14]. However, he acknowledged in cross-examination that in the week before giving evidence, he told the police the first time it occurred may have been the Friday preceding the Monday of the last week of the term[15].
[13] T75.
[14] T62-T63.
[15] T65.
C1 also said he had a conversation with C2 on this topic of touching. He later retracted that. That was Sports Day with no classes[16]. C1 and C2 were best friends at that time, and remained best friends the following year and at the time of the trial. C1 said C2 asked ‘did he do it to you too’. To which C1 replied ‘What’? and C2 answered ‘Touched you on the penis’. C1 said ‘Yes, but don’t tell anyone’. C1 said this conversation took place on the day after the interview with the woman police officer[17].
[16] T76, T95.
[17] T63-T64, T71.
I see no reason not to accept the evidence of C1’s mother that he did not go to school the day after the interview and indeed, did not see C2 until the next term. On that basis C1 could not be correct about the timing of that conversation.
It was put to C1 that on the night he made the complaint to his mother that he was upset because he was told the principal needed to be informed and he knew he had not told the truth. Initially he seemed to agree with that, but later clarified his position[18].
[18] T102 –T103.
C1 readily agreed that there were a number of reasons that he would get in trouble with the accused – answering back, behaving dangerously, wearing a cap in class despite being told not to and behaving unacceptably to a trainee teacher. C1 and C2 initially sat together but the accused separated them because together they were disruptive[19].
[19] T77-T78, T85-T89.
C1 agreed that he asked the accused to allow C1 and C2 to be in the same class the following year because they were best friends. C1 agreed that the accused said that if it was only up to him (accused) he would not put them in the same class[20].
[20] T89-T91.
C1 also agreed that as at the Wednesday afternoon (the complaint being made that evening), he and C2 were angry with the accused because he was going to recommend that they be in separate classes the following year[21].
[21] T96.
C1 denied that he and C2 agreed to make up the story about the accused touching them[22].
[22] T98.
Evidence of C2
The formal interview between Detective Senior Constable Kittel and C2 took place on Saturday 4 October 2016. The first observation I make about that interview is that C2 does not appear to bear any ill-will or ill-feeling towards the accused. In fact, he generally spoke in very positive terms about the accused.
The other salient points about that interview are that he spoke of the accused putting his hand near his (C2’s) ‘private’ while he was sitting on the accused’s lap and that it first happened during the first month of the school year. He explained that by ‘private’ he was referring to the accused pushing on his penis on the outside of the clothing for about 5-6 seconds. He said the accused did it about once a month.
C2 also said that he saw the accused putting his hands on the ‘privates’ of other boys whose first names he gave. One of the boys he named was C1 and that they had spoken about it. In respect of another of the boys he named he gave more detail.
In evidence C2 re-iterated that the last time he was touched was the second to last week of school. He said he was at his desk and the accused was seated next to him in a chair. He said the accused slowly put his hand across onto his penis, while the other hand was showing him what to do with his work. There were other students sitting around him while this was occurring[23].
[23] T125-T126, T129.
C2 agreed that he and C1 were best friends in Years 2 and 3 and still now. They originally sat together in Year 2 but the accused separated them after about 2-3 weeks because they were naughty when sitting together[24].
[24] T133-T135.
C2 agreed that he told the police that the accused touched a lot of other boys inappropriately. He confirmed that another of the boys had said the accused was also touching him. C2 said there was ‘whispering’ amongst the boys about the actions of the accused, but he did not know whether to believe them or not[25].
[25] T140-T142, T146.
C2 accepted that towards the end of Term 3 he really wanted to be in the same class of C1 in Year 3. He also accepted that the two of them being together was really important to him.
C2 rejected the suggestion that he had made up the allegation against the accused so that the accused would get in trouble and thus enable C1 and C2 to be together in Year 3[26].
[26] T147-T148.
Remaining prosecution evidence
Evidence was given by a student teacher who completed her final placement at the school in August and September 2014. She was assigned to the accused’s Year 2 class.
She explained her movements during the week commencing 22 September 2014, being the final week of her placement. I have had regard to that evidence but do not need to review it. Importantly, although she was not present in the classroom at all times, she never saw any inappropriate touching from the accused and did not see any students sitting on his lap[27]. She recalled a conversation with the accused during the course of her placement when he said C2 was his favourite student and C1 used to be[28].
[27] T162-T164.
[28] T164.
She confirmed what seems to common ground that C1 and C2 were ‘best buddies’[29].
[29] T180.
Evidence was also given by four Student Support Officers at the school. Each was in the accused’s Year 2 classroom at different stages working with students who needed additional support. One of them on one occasion saw a male student sitting on the lap of the accused[30]. The other three never witnessed anything inappropriate by the accused and did not see a student sitting on the lap of the accused[31].
[30] T228-T229.
[31] T244-T245, T248, T252.
The Director of Primary Education for the area also gave evidence. She described various practises and procedures at the school. I have taken these matters into account but do not see a need to review all of it for present purposes.
Computer use by C1 on the first occasion
As has been mentioned, C1 said in his formal interview and repeated in evidence that on the first occasion of alleged touching by the accused, he was working on his computer. He said it first happened on the Monday or Tuesday of the final week of the term[32], but later said it was the Monday[33].
[32] T73.
[33] T74.

During the cross-examination C1 said that all occasions of alleged touching occurred when C1 was working on the laptop[34], although there was some qualification to that[35]. He said he was working on an assignment that was not finished on that day. He said it occurred in the morning before recess[36].
[34] T66.
[35] T72-T73.
[36] T74.
The assignment related to some chicks that were hatched by the use of an incubator in the corner of the classroom
The question arose originally and during the course of the trial, whether the computers themselves may assist in proof or disproof of the allegations of C1[37], but the four laptops concerned were not seized and analysed until 2016.
[37] T275-T276.
What were originally seized were the laptops booking sheets for Monday 22 September, Tuesday 23 September and Wednesday 24 September[38].
[38] Exhibit P13.
These laptops were shared around the school for different classes and were sourced from the library on a daily basis in accordance with the booking sheets. Those sheets showed that for the three days concerned, Room 27 (the accused’s classroom) had four laptops (numbered 1-4) booked between 9.00am – 10.45am (that is, up until recess time). Those records do not indicate whether the laptops were collected from the library and/or returned after use.
During an adjournment of the trial the laptops were seized and analysed. That analysis gave rise to Exhibit P39, ‘Agreed Facts: Laptop Analysis’. The partially completed assignment by C1 was printed and became Exhibit P23. P23 was created on Thursday 18 September on laptop 4.
The Agreed Facts in Exhibit P39 are perplexing. Agreed Fact 4 shows that none of the seized laptops were used on the three days concerned. However, Exhibit P23 was last modified and saved on Tuesday 23 September to some other computers on the school’s computer network that was not any of the seized laptops. ‘Modified’ means changed. Further, Exhibit P23 was modified and saved four times between its creation and final save on 23 September.
I also note from the analysis that the vast majority of the assignments of the other students in the class were created on laptop 4 on 18 September at the same moments in time or within a few minutes. On the Agreed Facts that does not make sense although it is not crucial to a determination of the case.
I find Exhibit P39 to be unhelpful and confusing. I accept and am satisfied from all the evidence that the students, including C1, were working on computers at various stages during those three days. I am satisfied that C1 worked on Exhibit P23 at some stage on Tuesday 23 September. Even the evidence from the accused there is an acceptance that some students used computers or laptops on the Tuesday (23 September) afternoon, but he could not say whether they were any of laptops 1-4[39].
[39] T326-T327.
Statements from other students
As part of the material I received in this case, the statements of other male students were tendered. These statements were tendered against the background of C2 asserting that the accused acted in appropriately towards other male students in much the same way as the accused had to C2. Those statements do not support C2 assertions in the sense that no student alleged the accused acted in the same way towards them. In some cases there were denials or in other instances what were referred to as non-disclosures. Whatever terminology is used, none of those students supports what C2 says and that is obviously relevant to the case alleged against the accused relating to C2.
Evidence from accused
As mentioned the accused gave evidence on oath denying any offending. He did not call any other evidence.
On the Monday of the week with which I have been concerned, the accused said there were no laptop computers or computers in his classroom. He said amongst the student activities was a film that they watched called ‘The Chicken Run’. That was followed by them working on a persuasive piece of writing about the film they had seen, but that was hand written in their books. He accounts for his time with the children that morning and said he did not have the children after lunch[40]. Any inappropriate touching was denied.
[40] T323 –T325.
As for the Tuesday, he explained the activities of the class in the morning, none of which involved using laptops. However, in the afternoon he said he collected about 6-10 laptops from the library to enable some of the children to finish their stories from the previous day. He said he did not know whether the laptops included the laptop 1 to 4, to which reference has been made. He said that occurred at about 2.30pm. He said some of the children then worked on the computers to complete their work. He encouraged them to save their work[41].
[41] T325-T329.
On the Wednesday he said there were activities around the student teacher’s last and final day at the school. Again the accused explained the activities of the class, none of which involved the use of computers or laptops. The accused denied any inappropriate touching[42].
[42] T329-T332.
The accused also related an exchange he had with C2 on that Wednesday afternoon concerning which class he would be in the next year. C2 wanted to know whether he and C1 would be in the same class the following year. The accused said his answer was the same as the previous week namely, he would not keep close friends together if he had his way. The accused said ‘they’, presumably C2 and C1 were not happy about it. He gauged that from their faces rather than anything that was said[43].
[43] T331.
The cross-examination revealed that any disciplinary concerns involving C1 were not a major problem. In fact, the mid-year report for C1 showed that the accused was very positive about C1 and his contribution to the class. The accused said he was ‘very lucky’ to have C1 in the class that year and looked forward to teaching him for the balance of the year[44].
[44] T336-T337, Exhibit P41.
The accused acknowledged that both C1 and C2 were his favourite students (but in different subjects) in the sense that they were the ‘go to’ students if he wanted the correct answer or wanted something done properly. He said it was in that context he referred to them when speaking with the trainee teacher[45].
[45] T338.
The accused confirmed that in his last conversation with C1 and C2 on the Wednesday concerning which class each would be in for the following year, he said he had not made a final decision but he would recommend to keep close friendships apart[46].
[46] T343.
The other clear impression I have of the evidence of the accused is that he was distancing himself from the students in a physical sense. He said he would not sit next to students, the students did not need help with the laptops and, if they did, he would not lean over then but rather re-position the laptop[47].
[47] T344-T346.
The accused denied that a student would sit on his lap, although he did say a female student did so on one occasion[48].
[48] T332.
Discussion
I have considered the evidence of C1 and C2 separately. I accept that the evidence is cross-admissible for the reasons expressed by the prosecution, but the case does not end there.
I regard C1 and C2 as doing their best to be honest and truthful witnesses. Each gave evidence in a straight forward and direct manner. Each was particularly impressive in cross-examination when denials and modes of expression were spontaneous.
I make it clear that I completely reject the suggestion that they have concocted their accounts by deliberately ‘getting together’ to give false evidence against the accused. The way in which these allegations emerged is contrary to such a suggestion and I accept their evidence that they had not concocted it together.
Having said these things, there are aspects of the evidence that suggest the evidence of each might be unreliable.
C1 gave varying accounts of when it occurred for the first time, the class that was then being undertaken (computer class or some other form of teaching) and the total number of times the conduct of the accused was alleged to have occurred.
C2 gave evidence that it happened multiple times to himself and others. As I have mentioned, there is no support for it having happened to others.
Relating to the evidence of both C1 and C2, there is the comment that these alleged actions could have been seen by any number of the Student Support Officer’s or the trainee teacher who were there from time-to-time.
Having considered these aspects of the case, I find that both C1 and C2 were truthful and reliable witnesses as to the core allegations being made by each.
As I have explained earlier, that does not mean the charges are proved beyond reasonable doubt. I also have to consider the evidence of the accused in determining whether, at the end of the all the evidence, the prosecution has proved its case beyond reasonable doubt. Only if I reject the evidence of the accused beyond reasonable doubt, would I be able to convict.
I did not find the evidence of the accused to be altogether convincing, although that is not the test. His evidence was unsatisfactory is so far as it related to distancing himself, literally, from an area close to the students. He seemed defensive about that, but that may have been simply an understandable reaction to the nature of the allegations.
I am not in a position to reject the evidence of the accused beyond reasonable doubt.
Conclusion
For the reasons I have given and having taken into account all of the evidence, I find the prosecution has not established guilt to the required standard. I find the accused ‘not guilty’ on all counts.