R v Markham
[2012] SADC 49
•17 April 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARKHAM
Criminal Trial by Judge Alone
[2012] SADC 49
Judgment of Her Honour Judge McIntyre
17 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Allegations of communicating with a child for prurient purposes and indecent assault - accused gave evidence - Prosecution has not proved its case beyond reasonable doubt. Verdict - "Not Guilty" of all four counts.
Criminal Law Consolidation Act 1935 s63(3)(b), s56, referred to.
R v MARKHAM
[2012] SADC 49Introduction
The accused was charged on Information dated 26 September 2011 with one count of communicating with a child for a prurient purpose and three counts of indecent assault. The particulars of those offences were set out as follows:
First Count - Communicating with a Child for a Prurient Purpose
Richard Anthony Markham between the 14th day of November 2008 and the 24th day of March 2011 at (address supplied), made communications for a prurient purpose and with the intention of making J amenable to sexual activity.
Second. Third and Fourth Counts - Indecent Assault
Richard Anthony Markham between the 24th day of March 2011 and the 30th day of March 2011 at (address supplied), indecently assaulted J.
The accused entered pleas of not guilty to all four counts and elected to be tried by a Judge without a jury.
Outline of the Prosecution Case
J , was born on 14 November 1995. Accordingly he was between 13 and 15 at the time of the events that form the subject of the charges. In about 2009 he struck up a friendship with the accused on Facebook. The accused was living in the UK. J was living in Adelaide. The accused became aware that J was 13 years old shortly after their Facebook communications commenced. After a period of time they began to communicate using a video camera and MSN and by telephone. Letters and gifts were also exchanged. The prosecution alleges that the accused was grooming J by way of telephone, correspondence and internet contact in order to make him amenable to sexual activity when he ultimately came to Australia.
In March 2011 the accused came to Australia and stayed with J’s family between 25 and 30 March 2011. The incidents that are alleged to constitute the three counts of indecent assault occurred during that period.
The first indecent assault is alleged to have occurred on the accused’s first day in Adelaide – Friday 25 March 2011. It is alleged that the accused went into J’s bedroom and rubbed him on the stomach, chest and leg. There was then a play fight in which the accused is said to have bitten J on his chest through his clothes following which it is alleged that the accused kissed J on the lips. J then went to his mother and complained in general terms about the accused’s behaviour.
The second indecent assault is said to have occurred the night after the accused and J went to the cinema in Gawler to see a movie. This is either the Saturday or Sunday night. It is alleged that J was in his bed watching a Rambo movie. The accused was also watching the movie with him. Both were fully clothed. J was under the blanket and the accused was on top. It is alleged that the accused put his hand beneath the blanket and under J’s t-shirt in order to rub his lower stomach. The last indecent assault is said to have occurred the following night, which may have been either the Sunday or Monday, again in J’s bedroom. It is said the accused pulled J on top of him whilst both were fully clothed.
Legal Considerations & General Directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
1. An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
2. The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it.
3. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
4. There are four separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
5. In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
6. I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
7. I specifically note that in this case the accused elected to give evidence in this court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross-examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the manner in which I assess the evidence of all of the other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
8. I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge then necessarily it means that the prosecution has failed.
Elements of the Offences
I now turn to the basic elements of the offences charged as they were at the time they were allegedly committed. The prosecution must prove each element beyond reasonable doubt.
Count 1
In order to prove that an accused person committed the offence of communicating with a child for prurient purposes under s63(3)(b) of the Criminal Law Consolidation Act 1935 (“the Act”) the prosecution must prove beyond reasonable doubt that:
(a) J was a child at the relevant times;
(b) the accused communicated with J; and that he did so
(c) for a prurient purpose; and
(d) with the intention of making him amenable to a sexual activity.
There is no dispute that J was a child and that the accused communicated with him. The contentious issue relates to the accused’s intention in making those communications.
Prurient purpose is defined in section 62 of the Act as follows:
A person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or providing sexual arousal or gratification for someone else.
In this case the prurient purpose is said to be grooming. That is, the prosecution asserts that the accused intended to make J amenable to sexual activity when the accused ultimately came to Australia. It is said that if I find the indecent assaults proven this will establish the prurient purpose of the communications. This argument appears somewhat circular and at odds with the requirement for me to consider each charge separately on its merits. The prosecution does not contend that the communications were prurient apart from some telephone discussion of sexual topics such as wet dreams which, as I will discuss shortly, are somewhat equivocal. Whilst it is unnecessary to decide this issue in the light of my findings I am not certain whether grooming, without more, is sufficient for a prurient purpose given the use of the conjunctive word “and” in s63(3)(b). The use of that word suggests there may need to be a prurient purpose such as satisfying a desire for sexual gratification during the course of the communication as well as an intention to make the child amenable to sexual activity.
Counts 2, 3 & 4
In order to prove that an accused person committed the offence of indecent assault contrary to s56 of the Act the prosecution must prove beyond reasonable doubt the following matters:
1.An application of force to J;
2.The application of force must be deliberate or intentional;
3.The application of force must be unlawful; that is, without lawful justification or excuse; and
4.That J did not consent to the application of force although since J is a child he is incapable of consenting to the application of force alleged in these counts.
5.That the force was accompanied by circumstances of indecency.
The defence case is that the circumstances giving rise to the three counts of indecent assault did not occur. The accused denied any touching of the type alleged to constitute the indecent assaults.
Undisputed facts
J was born on 14 November 1995. He is the eldest of three children of his parents. He has a younger sister and a younger brother. He does not attend school. He is home schooled by his mother owing to difficulties he experienced in school which were aggravated by his father’s imprisonment.
His mother K set up his Facebook page when he was 13. She set up his profile using her date of birth and a recent photograph of J. Shortly after setting up the Facebook page J received a friend request from the accused, which he accepted. They commenced communicating via Facebook. Shortly after this it became apparent to the accused that, contrary to the date of birth stated on his Facebook profile, J was a child of 13. Following some discussion about the continuation of the Facebook communications the accused also became a Facebook friend of J’s mother K. Communications between the accused J, his mother continued and increased in frequency and duration. Later, other family members became involved in the communications.
After a period of exclusively Facebook contact, communications also took place using a web cam and by telephone. The accused wrote to J, his mother and the family. He sent regular parcels of gifts and he also sent money. J’s family wrote to the accused, sent photographs and small gifts. The accused always telephoned J and his family as their telephone would only receive incoming calls they could not make calls.
The written communication that was tendered during the course of the trial is couched in mutually affectionate terms. There was a substantial use of nicknames. The accused called J his “little bro” or “lil man”. He called J’s mother K a variety of names including “lil sis”. They reciprocated; generally referring to the accused as “Richie” or “Big Bro”.
Ultimately the accused made arrangements to travel to Australia in June 2010 in order to stay with J and his family. He was however turned back in Singapore by the authorities following a report to police indicating that he may be a paedophile. Communication between the accused, J and his family ceased for a period of time following the abortive trip to Australia. It was however subsequently resumed and it continued much as it had previously resulting in the accused again making arrangements to travel to Australia to visit J and his family. J and his family acquiesced in, and indeed encouraged the accused’s travel plans, on both occasions.
The accused travelled from London to Melbourne on 23 March 2011 and arrived in Adelaide on 25 March 2011. He was met at the airport by J, his mother and father and went to stay with the family at their home. The home was a four-bedroom house in the northern suburbs of Adelaide. J’s parents shared a room and each of the children had their own bedroom. The accused was given a bed in what was described as the second lounge. The alleged indecent assaults are said to have occurred in J’s bedroom. They are said to have occurred between the accused’s arrival at the home and his arrest. The precise dates are a little unclear but each is referenced to a particular event.
A number of activities took place during the accused’s visit although the precise dates and sequence of these is unclear. The activities included family trips to Gumeracha and to the beach at Semaphore, the accused and J going to the cinema at Gawler and the accused, J’s parents and younger brother going to football practice.
The accused was arrested on 30 March 2011.
J’s evidence
J gave evidence that his mother set up his Facebook page. The account had her age written on it because she thought there was an age limit on Facebook. The photograph used was a recent photo of him at the age of 13 sitting in a chair.
J received a friend request from the accused that had a picture of a cartoon character and his name. J accepted the request and three or four days after this he commenced chatting with the accused. Generally they chatted about computer games of the shooting variety. J said that when he first started chatting with the accused it seemed like the accused thought he was older than 13. The accused said things like he would like to take J out for a drink. J then told him his real age. The accused responded by saying that he would stop talking to J and that he thought that J would think that he was a paedophile. J said he wanted to keep chatting to the accused. He told him that it was alright and that he did not think he was a paedophile. They continued chatting. J told his mother about the accused. She became a Facebook friend of the accused also. He understands that his sister also became a Facebook friend of the accused at some stage.
After about three months on Facebook they started using MSN, a live chatting website with a video camera. J said it was better than Facebook because it was faster and you could see each other. They could not however hear the accused as he did not have a microphone. J said that all of the family would be involved when the web cam was on although he spoke with the accused the most. He said that in addition to MSN they would exchange emails about twice a week via Facebook. The accused sent photographs to them and his mother K sent the accused photographs of Adelaide and the family.
After about four or five months, the accused commenced telephoning the family. Initially the accused called once a week for an hour. He would usually speak to J and his mother. J said that the phone calls then increased to nearly all day everyday and said the accused was mostly speaking to him. J said that during the course of the phone calls they would generally speak about games. Sometimes the accused joked with him. On other occasions the accused would upset J by threatening to kill himself or by speaking about J thinking he was a paedophile. The accused used to call him his little bro. The accused also used to send presents to the family and to him. He sent $500 in cash for his 14th birthday to buy an X-box 360. This stopped working after about four or five months and the accused then sent a new X-box. Subsequently, just before J’s 15th birthday the accused sent him a limited edition Halo Reach X-box. The original X-box was given to his younger brother at the accused’s request.
In addition the accused sent him games, charge kits, food and lollies for the family. All of the members of the family received gifts from the accused but most of the stuff went to him. He also gave evidence about receiving some T-shirts from the accused. He sent him some new Family Guy T-shirts and some worn T-shirts. He said that the accused and he wrote letters to each other. Some were tendered in evidence. All in all it is clear that there was regular and substantial contact between J and the accused.
There came a time when the accused was to visit Australia. J said he was excited and happy about the proposed visit. He was upset when the accused was turned back in Singapore. He said that they did not have any contact with the accused for a few weeks after this – perhaps 7. He said he was encouraged by his mother, and her friend H who was living with them at the time, to speak to the accused who explained what had happened and told him the allegations about him being a paedophile were not true. After a period of time contact continued in the same manner, with the same frequency and duration as before.
The accused planned a second visit to Australia. Again J was happy and excited about the proposed visit. The accused arrived on a Friday and he, his mother and father went to pick him up at the airport. His brother and sister were at school. He said that he gave the accused a hug when he met him at the airport and that they all drove home together.
On the first day J said he was sitting in his bedroom in the afternoon with the accused playing a game. The accused came into the room. He closed the door. J said that the accused sat by him and that his left hand was pushed through J’s hair. The accused’s right hand came under J’s t-shirt rubbing his stomach in a circular motion. He then put his arm up J’s jeans touching him around the knee area on the skin. J said he was lying on the bed. He said the accused then moved the hand on his stomach up to his upper chest around his nipples. They then started wrestling on the bed in a way that J said was meant to be fun. He said he felt confused and as they were wrestling the accused bit his left nipple through his clothes. J said he was shocked. The accused tried to apologise to him and then went to kiss him on the lips. J said his lips touched the accused and he pulled back feeling very sick. He said the accused told him not to judge him. This is the first alleged indecent assault.
J left the room and told his mum that the accused was a paedophile. He said he did not tell her exactly what happened because he was scared that his father was in the house and that he would kill the accused. This evidence was not entirely convincing. It was not clear to me why telling his mother that the accused was a paedophile was less likely to cause problems with his father than telling her what actually occurred. It is moreover inconsistent with his mother’s evidence.
The accused went to the second lounge room where he was sleeping and threatened to leave. He was packing. J went into the garage to speak to his dad but did not tell him what had happened. He said he was feeling sick and very sad and was crying. He then went to sit in the lounge. His mother and the accused came into the lounge and his mother asked him to talk to the accused to try and work things out. J said the accused apologised. He told J if he wanted him to go he would but said that he wanted J to give him a second chance. J agreed he did not want the accused to leave.
The next day J and the accused went to the Cinema in Gawler. His father drove them there and dropped them off. J and the accused went shopping and bought computer games and then went into the Cinema. After watching the movie and whilst waiting for J’s father to pick them up J said the accused said words to the effect of “do you want to come and sit down next to me or do you think I’m a paedophile or something”. When they got home they went into J’s bedroom to play the new computer game they had purchased. J was sitting on the carpet with his back up against his bed. The accused sat behind him with his legs on either side of him. Nothing happened at that stage. Later that night J went to bed and was watching a movie - Rambo III. He was fully clothed by lying under his quilt. The accused lay next to him on top of the blankets and they watched the movie together. The accused then put his hand under J’s t-shirt on his stomach. J said it got lower to around his crutch area. He told the accused he was getting tired and pretty much went to bed. This is the second allegation of indecent assault.
The following day the family went to see the giant rocking horse at Gumeracha, on the time frame J was using this would have been Sunday. Nothing untoward happened on that trip.
He was then asked
QYou’ve told us so far about two different times when Richard touched you in a way that made you uncomfortable, were there any other times.
A
Not that I can remember. That Sunday night I got a lock for my door, which was my mum’s lock from her door, so I could have just one night to myself.[1]
[1] Transcript p79
He said that the police came the day after he had the lock put on his door. He also described a day of going to the beach at Semaphore where sandcastles were built. It was not clear when he thought this was. Without being critical of J, I consider it likely he is not correct about the dates. From the other evidence it seems that the chronology is as follows:
Friday 25 March - Accused arrives in Adelaide.
Saturday 26 March or Sunday 27 - Accused and J go to the movies in Gawler.
Monday 28 March - Visit to Gumeracha.
Tuesday 29 March - Visit to Semaphore beach
- Accused, J’s parent and brother go to football training.
Wednesday 30 March - Accused arrested.
J was then asked:
QOn how many of the days during the time (the accused) was here did he touch you in some way.
AI think it was only 3 of the days, the first three days.
QThe first day you have already told us about what happened that evening where he touched you in some different ways and then kissed you is that right.
AYes.
QIs the second day something you have already told us about.
AYes that was through the night with the movie.
QThe Rambo movie.
AYes.
QWhat happened on the third day.
AThe third day it was through the afternoon again it was after we went to the giant rocking horse.
QYes.
AAnd, sorry I would like to rephrase that, him laying on top of me. It was me he pulled me over the top of him. That was when I was laying, no I was playing a game. He asked me to lay up on my bed. He wanted to talk to me about something, but I can’t remember what he wanted to talk to me about and about nearly three minutes after he was talking to me, he pulled me up over the top of him, so I was laying stomach to stomach on him.
QWhere abouts were the two of you laying.
AThat was on my bed.[2]
[2] Transcript p81-2
Later he described the accused grabbing his arms from just under the elbow, pulling him on top of him. Both were fully clothed.[3] This is the third allegation of indecent assault. To my mind, without more, this incident as described does not amount to indecent assault.
[3] Transcript p83
In cross-examination J said that he did not have a good relationship with his father and he did not see much of him. At the time he commenced communicating with the accused his father was in gaol.
He said that there was not much of an age difference between his father and the accused and that he wanted to keep talking to the accused because he was an older male figure who he found it easy to talk to. He agreed that he treated the accused like an older brother and that is how he described him on Facebook. He said the accused became like a big brother or uncle who lived overseas. He agreed that he didn’t find it easy to talk about his sexuality as he was growing up but he could talk to the accused about these issues. He said that it was nice to have an adult male that he could speak to about those items. His mother encouraged him to communicate with the accused.
J said that after the first unsuccessful visit he was stopped from talking with the accused for some 7 weeks. His mum’s friend H encouraged the family to get back in contact with the accused. H had been in contact with the accused without his mother knowing. The accused rang H who passed the phone to him and his mother. After this contact between them resumed. J said he was encouraged in his contact by his mum and H. Communication resumed and was much the same as before both in frequency, duration and content.
J was a believable witness who did not appear in general terms to exaggerate. There were however some aspects of his evidence that caused me concern. J appeared very defensive when he perceived any criticism of his mother. In particular he was defensive when cross-examined about the topic of the accused sending his mother money. He admitted having told lies in the past to protect his mother although he denied that he was doing so in court.
Further some aspects of his evidence were coloured by subsequent events as he saw them. For example, he described the accused sending him three used T-shirts. J said that he was at the time going through a rough patch where he could not sleep. He said that the accused sent him T-shirts with his cologne on them to hold to help him sleep. He said he really didn’t understand why he said that. In cross-examination he maintained that the shirts smelled of after shave and added that he raised the topic with the accused who said it was to show him what he smelt of. I do not accept that this latter discussion occurred. Another example relates to his recollection of access to his bedroom at relevant times. J says that apart from the first night when his bedroom door was ajar and his brother came in once or twice invariably the door was closed whenever he and the accused were in the room. On the other hand, his mother said that the door was generally ajar and that, at least on the first night, J’s brother was in and out. His father gave evidence that the door was always ajar or open. His sister said that his brother was in and out of J’s room like a ping pong ball.
Family members
Other members of J’s family gave evidence; his mother K, his sister G, his father and his aunt.
K was an unimpressive witness. She was particularly defensive about certain aspects of her evidence, in particular whether or not she encouraged J in his communications with the accused, the amounts of money she received from the accused and the length of time that she allowed J to spend communicating with the accused. It is clear from the other evidence that she received substantially more money from the accused than she was prepared to admit to in her evidence. She denied having any financial difficulties as a result of her husband being in jail. Her evidence on this topic was not consistent with that of other witnesses and I reject it. She denied seeking financial assistance from the accused. I consider that whilst she may not have sought his assistance directly she did discuss her finances with him and did not decline his offered assistance. She claims in effect that she always told the accused not to send money to her. This does not sit comfortably with the evidence that she and her sister made two trips to Adelaide to cash a money gram sent by the accused or the other evidence generally.
Likewise she substantially minimised the gifts that she personally received from the accused suggesting that she only received DVDs that were intended for the whole family. Taking the evidence of the tendered letters and that of other witnesses it is clear she received substantial personal gifts from the accused including DVDs that were plainly for her rather then the rest of the family, an IPod and music CDs.
She did however concede that she had a good relationship with the accused in the nature of a brother/sister relationship and that she could talk to him about many things. She was also grateful for his help with her son J who she was home schooling because he had difficulties at school. She would not however concede that J had any difficulties in his relationship with his father. This is not congruent with the evidence of J, his sister, his aunt or indeed his father.
The overall tenor of her evidence was that, at least at the time, she had no concerns about the communication between her son and the accused despite the duration and the frequency of it. Certainly she gave no evidence of discouraging the communication – quite the contrary. It is however plain that in retrospect she seeks to invest this contact with some sinister meaning. Similarly her evidence about used T-shirts; she mentioned two T-shirts – a red one that the accused mother had given him and another family guy T-shirt. She said she discussed them with the accused who said that they were to comfort J whilst his father was in jail. She said they smelt strongly of after shave. She did not discuss that with the accused. In cross examination she agreed that she told the police that the used T-shirts smelt of deodorant which she suggested that she viewed as the same thing. She denied it could have been unfamiliar soap powder. She was asked as follows:
QWas J going through a bad patch at about that time when the T-shirts arrived.
AJ was always going through a bad patch.
QSo he was a bit, you know what I mean, down, a bit flat.
AHe always was, he was depressed.
QSo did you understand that the T-shirts were sent over to just give him something to try and cheer him up.
AI was told that they were there for him to hold close for when he needed it, that’s what Richard had said to me.
QBecause from your conversation with Richard and with J, you’d agree that he was, if you like, the big brother that J could talk to about things, particularly when he was down.
AYes, I understand that.
QSo you knew from speaking to Richard that the T-shirts were a way of saying ‘Well, I’m not there but here’s something of mine’.
AYeah.
Q‘Might cheer you up a bit’.
AYeah.
Q‘If I can’t be there in person’.
AYes.[4]
[4] Transcript p240, line 24 – p241, line 8
I found K’s evidence about the aftermath of the accused’s first attempt to come to Australia to be somewhat odd. Her evidence about the resumption of contact was contradictory as to time. Her evidence in court was that she did not speak to him for some two to three months and yet she agreed that she told police on 2 July 2010, less than one month after the accused was turned back, that she had answered the phone and the accused was crying on the other end. She asked the police to stop the accused harassing them.
She agreed that contact was renewed and her evidence was as follows:
QBut you renewed the contact; even if it was two or three months later, you did renew contact.
AYes.
QYou didn’t want to or you did want to.
AI just found out that he almost committed suicide so I felt I had to.
QWhy did you let it build up again if you didn’t enjoy the last experience so much. Why did you let it build up the way it built up in this time from a weekly to hours and hours, several times a week.
ABecause he was an emotional wreck constantly. Every time I spoke to him, he was upset, angry or whatever and I always tried to calm him down. Believe it or not I have a heart and I cared about him.
QAnd you cared about J.
AYes, I did. My children are my life.
QSo you weren’t worried about the contact he was having with J.
AI wasn’t concerned to start off with, no.
QYou weren’t concerned when he said he was coming over in March 2011.
ANo, I wasn’t concerned. I thought he had bipolar. I thought he just changed in and out of personality all the time and I even told him to go to the doctor’s and get antidepressants and get seen to which he did so he started getting better on the phone so far as what I know.[5]
[5] Transcript p269 line 6 – p270 line 14
If the contact was as troubling to her as K suggested at other times of her evidence I consider it remarkable that she would allow it to recommence and to escalate after the Singapore incident notwithstanding her asserted concern for the accused. Further she not only encouraged the accused to visit but also to stay with the family rather than in a hotel as he offered.
I also note that she said that the accused was to have been accompanied by his cousin Darren on the second trip but that Darren ended up having to go to the US for family reasons. She said she was not concerned that the accused was coming over on his own.
She gave evidence about the accused’s activities when they came to Australia. She did not observe any of the incidents described by her son. She said that J told her that he had been having a play fight with the accused when he was bitten. She did not give evidence about a complaint that the accused was a paedophile rather she said that her son complained to her that the accused had bitten his nipple. She said that he showed her a red mark. In cross examination she gave evidence as follows:
QOn that first night – I know it might sound like I’m jumping round, but I’m just working through the evidence as it came out the other day – on the Friday night, did it appear to you that Richard and J had a bit of a play wrestle in J’s room at some stage.
QNo, I didn’t know.
QSo it wasn’t the first night that J said to you that he had been bitten.
QNo.
QIt was a later night.
QI thought it was the night after that. I’m not sure but I didn’t know they were wrestling, he only told me that when he was – I didn’t see him wrestle.
QWho told you they were wrestling.
QJ.
QHe told you that they were having a play wrestle or a play fight.
QYeah, they were wrestling, that’s what happened, yes, J did tell me.
QAnd he was saying to you that in the course of that play fight he had been bitten.
QYes.
AWhich Richard said he hadn’t done.
QI hadn’t gotten around to asking Richard straightaway.
AWhen did you ask Richard.
QI asked Richard after I had spoken to J.
AAnd Richard said he hadn’t bitten him.
QNo, he didn’t. He said he did it. Richard actually told me that he had done it by accident while they were play fighting.
AThat’s not true, is it.
QWhat’s not true?
AWhat you’ve just said.
QIt’s very true what I just said. Richard had told me that he did do it by accident by play fighting.[6]
[6] Transcript p245, line 37 – p246, line 33
She said that the accused went for a walk on his own and her husband got in the car to bring him back. When he came back he said that if he was going to upset people maybe he should move out and he asked her husband to take him to the train station. She said she did not talk him out of doing that but she talked to him about the incident and that it worked itself out.
I do not accept that K observed a mark on her son’s chest. Further I do not accept her evidence that the accused admitted biting him. I consider her evidence on this topic to be a reconstruction. It seems likely that, whatever J said about this incident, K did not think that the accused had acted improperly at the time given she thought that this was an issue that could be talked through and sorted out and that she encouraged him to continue with his visit. Further I consider it unlikely to say the least that if this had occurred as she said that she would have allowed J and the accused to go to the cinema together on their own.
J’s sister G gave evidence about the contact between the parties in similar terms to the others. She did not see any physical contact between the accused and J except for one occasion when she saw J sitting on the floor playing his X-box sitting between the accused’s legs and the accused playing with his hair. She described it as fiddling with it. It is clear she now ascribes some sinister import to this conduct although plainly at the time there was no concern expressed.
J’s father gave evidence again confirming the contact between the accused and his family. He said that he spoke to the accused himself on a number of occasions following his release from gaol. His evidence confirmed that his wife had from time to time received money from the accused including to help fix his car in the sum of about $800. He was aware that money had been sent on a number of occasions in varying amounts up to about 10 times. This is at odds with his wife’s evidence which, whilst not entirely clear, suggested unwanted gifts of cash on perhaps two to three occasions of substantially less than $800. He was aware that the accused had sent gifts to his son J, his wife K and that he called them “little sis and little bro”. He also knew of gifts to the other children although to a lesser extent. He observed his wife’s relationship with the accused to be a good one in which she could talk to him about things on a brother/sister basis.
He did not have the opportunity to observe the accused much whilst he was visiting although he said that the accused spent some time in J’s room playing games and sometimes with his younger son in his room playing games. He said that the bed room doors were usually open. He recalled an argument between the accused and J on the first night. He did not know what it was about but agreed he told J that the accused was probably jet-lagged and that J was probably a bit over excited.
He agreed that he saw nothing untoward between the accused and his son. He said they appeared to have a good relationship with the accused appearing like an uncle or big brother. He also agreed that his own relationship with J was lacking a bit due to his drug habit at that time.
K’s sister gave evidence. She said that she was close to her nephew J. She observed his relationship with his father to be somewhat distant.
She was aware of the contact between the family and the accused. She gave evidence about taking K into town on two occasions in relation to a transfer of money from the accused. She said that her sister had financial difficulties as a result of her husband’s imprisonment and that it was a regular topic of conversation between her and her sister. This is quite different to K’s evidence in which she denied any financial concerns. She knew that the accused sent her sister money from time to time but did not know what for.
She gave evidence about two discussions she had with her sister K about compensation as follows:
QDid she ever talk to you, after Richard was arrested, about getting compensation.
AYes.
QJust to be clear, was that before or after or both Richard’s arrest.
ABoth.
QWhat did she say before Richard’s arrest.
AThat everybody seems to claim what he is, as in a paedophile, as she called, that when he does things and if they do come to this, that she will make sure that J gets what he deserves and that she is also a victim because she is a mother.
QWas it just one or more than once this topic came up before Richard came to Australia.
AOnce.
QCan you give us some idea when and where.
AWhen my sister J – well, as I have – my sister J told me herself that she stopped Richard coming down the first time.
QYou therefore had a conversation with K.
AYes.
QAnd this is part of the conversation you had with K.
AYes, because K was furious.
QWith your sister.
AWith my sister.
QAnd then there was conversation along the same lines with K after Richard was arrested.
AYes.
QAbout compensation.
AYes.[7]
[7] Transcript p331, line 12 – p332, line 3
I saw no reason to doubt this evidence despite the fact that it is considerably at odds with K’s evidence which suggested K was not aware of the possibility of a criminal injuries compensation claim.
Police Witnesses
Detective Brevet Sergeant Rusul gave evidence about the accused’s arrest and tendered the video record of interview. The accused denied the allegations during the course of that interview.
Detective Brevet Sergeant Wilkinson gave evidence about the accused’s arrest and the fact the initial attendance of the police at J’s house was not in response to any complaint made by a member of the public.
Defence case
Accused’s evidence
The accused gave evidence on oath. He appeared to be an unsophisticated and intense man whose evidence was consistent and believable. His evidence remained the same under cross-examination.
He indicated that he developed a Facebook site in about April 2009 following a difficult period in his life. He had been his mother’s main carer whilst she suffered a terminal illness. She died on 14 November 2007. Incidentally this is the same date as J’s birthday. He became depressed and isolated. He described himself as a recluse. He did not interact with anyone other than work mates. Some of his work mates said that they were on Facebook and were using it to contact old friends from school. He decided to do the same.
One of his close friends at school had the same name as J. He tried searching for that person. He had three responses from people of the same name including J. None of them were his school friend but he communicated with them all. He was interested in Australia as a place he wished to travel to. He said he struck up a rapport with J.
He originally thought that J was of a similar age because his date of birth on Facebook was 1979. He was aware that the photograph was of a child but he said in his experience people used all sorts of pictures for their profiles; old photographs, cartoon characters and the like.
They had a conversation about drinking and marriage and he asked J if he was married and if he went out drinking. He said “no I am only 13”. The accused said at that stage he wished to cease their contact but J asked him not to. J said that he had very limited contact with other people. The accused said that he kept in contact with J because it meant he had someone to talk to. Shortly after K started communicating with him and he had regular contact with her as well. We said he got on very well with K and regarded her as his “lil sis”. His evidence on this topic was consistent with K and J’s evidence.
He described how the contact developed after that and how he would send presents to the family and that he would send money. K told him from time to time that she was in financial difficulties because her husband was in gaol. Despite the fact he was not a wealthy man he would send money to help because he considered himself one of the family.
He would send computer games, DVD’s and videos to J, K and the children because they were much cheaper in the UK than they were in Australia and because they became his family. He denied that he had any sexual interest in J. He said he enjoyed the contact with the family and that he felt very close to them. He denied that there was ever anything inappropriate in his conversations with J. He described having only one discussion about matters of a sexual nature as follows:
QFrom that time up until 2010 did J talk to you about personal problems at all.
AYes.
QAny particular sort or were there a variety of them.
ANo, he had one conversation with me where he couldn’t go to his mum and he basically talked to me about wet dreams.
QWho raised that topic of wet dreams.
AHe did.
QDid you talk to him about that.
AI was very hesitant. I said to him ‘You need to speak to your mum about this’ and he said ‘I can’t, I’m embarrassed’ and he just basically asked me if it was natural and I said ‘At your age, yes’.
QIn the topic we’ve heard, he said that the topic of masturbation come up as well.
ANo.
QWas it only the one conversation on that topic.
AYes, it was.[8]
[8] Transcript p345, lines 20-38
He felt that he had a very special relationship with J and his mother and he was excited about coming to Australia to see the whole family. He was very upset about the circumstances in which his original trip ended. His evidence about that, and the resumption of contact, was very similar to that of J and his family.
He said that it was a joint idea between him and K to make the second trip. He said he was excited about meeting the whole family.
The accused denied any inappropriate physical contact with J; specifically the allegations that have been made in relation to indecent assault. His denials and explanations are consistent with what he told police immediately after his arrest.
He agreed that there was an incident on the first night where he and J play wrestled as a result of which J became upset. He said that the play fight was over in seconds and that J accused him of biting him. He denied that he bit him. He said that he was angry because of this. He had an argument with K and told her that he wanted to be taken to the airport. He then went for a walk and J’s father fetched him back in his car. K suggested that he was tired and needed to rest. K also suggested that he go for a walk with J to clear the air. They went for a walk around the block. J said he didn’t know why he said what he said and he apologised. When this was put to J, he remembered going for a walk with the accused, but could not remember anything about the content of their discussion. The accused said that J told him that he did not want him to leave. J agreed that he did not wish the accused to leave.
The accused gave evidence about the various outings to the beach, Gumeracha and Gawler. He said that he enjoyed these outings and that, from his perspective, nothing untoward occurred on any of them.
He recalled the lock being placed on J’s bedroom door. This was the Tuesday night before he was arrested on the Wednesday. He was not worried about this because K said that it was because J wanted some space. He did not think it was related to his visit.
Ms H
Defence called only one witness, H who had been living with J’s family at the time of the first attempted visit to Australia. She observed the contact between J, his mother and the accused. She said that she saw all of the family talking to the accused on the telephone or via Facebook. She said the contact was mainly between the accused J and K. She saw gifts arrive for the family from England on a number of occasions. She also overheard K speaking to the accused about money saying things such as she was short of cash or needed money. Ms H was aware that the accused sent K money from time to time. K also said to her on a few occasions that if she needed money she always knew she could get it from the accused.
Ms H said that after the accused’s failed trip to Australia in mid-2010 K asked her to get in contact with the accused because she wasn’t allowed to talk to him but she still wanted to keep contact. Ms H said she spoke to him nearly everyday for a period of time before she moved out in about August or September. By this time the family had re-established contact with the accused and their contact was much the same as before the failed trip. Ms H left K’s house in what I understand to be acrimonious circumstances. I did not detect however any exaggeration or embellishment in Ms H evidence and I accept her evidence.
Correspondence
A number of items of correspondence have been tendered as evidence. These comprise letters from the accused to J and his family and from J, his mother and sister to the accused. As I have indicated, all of the letters are couched in terms of considerable affection. The parties describe each other as “little sis, little bro, big bro” and use other terms of affection. There is constant reference on both sides to them being like family. This is entirely congruent with the accused’s evidence. The bulk of the tendered letters appear to have been between J’s mother and the accused although it is clear that not all of the correspondence was available to be tendered. The letters from the accused to K are as affectionate as those he has written to J. Indeed the content and tone is strikingly similar.
Conclusion
There are many unusual circumstances in this case. The prosecution case is that if the sexual offending in March 2011 is accepted then it cements that the accused’s intention must have been grooming or predatory behaviour. It is said that the accused had an infatuation or an obsession with J. It is put that his explanations for the length of contact with J, how he befriended him on Facebook and his feelings for him should be rejected. It was said that J’s mother K was not on trial and that whatever view I take of her is not determinative of the issues. Even if she was attempting to extract the maximum from the accused the prosecution says that does not change the fact that the accused was sexually attracted to J and that he acted upon that.
On the other hand the defence say that the accused is a simple working class man who became a recluse following the death of his mother. He was lonely and discovered a new family in Australia. He was in effect a geek who enjoyed videos and computer games. It is said to be consistent that someone with common interests whatever their age might well find themselves talking about those common interests as the accused and J did. It is further said that it is clear that initially the accused thought J was a similar age to himself and plainly did not actively seek a child. The rapport was built before J’s true age became apparent and the decision to continue contact was mutual. It is said that his intention was to visit Australia to meet with the people he viewed as his Australian family. The fact that he offered to stay at a hotel and that he originally intended to visit with his cousin confirm that he did not have an intention to behave inappropriately towards J.
I have carefully considered all of the evidence about the contact between J and the accused. I am troubled by the frequency and duration of the contact between the accused and J. There is some dispute about the content of the oral communications. I am not able to resolve those but note that there is an explanation for all of the issues raised consistent with innocence. For example, whilst there was a discussion about wet dreams the accused has given an explanation that this was a discussion about the sexual changes J was experiencing as a result of puberty. J himself conceded that he discussed such matters with the accused in the absence of any other adult male in his life. Beyond this the contact, whilst undoubtedly frequent and lengthy and to that extent inappropriate, is not of itself problematic. The written correspondence that was tendered whilst floridly affectionate on occasions does not contain any inappropriate or sexual content in respect of J. The letters to his mother are written in equally florid and affectionate terms. They are consistent with the accused’s description of the family relationship he had with the whole family and of his special relationship with J and his mother. They are moreover consistent with content and tone of letters sent by J and K to the accused.
Whilst I am invited to draw the conclusion that the accused was, in this communication, attempting to groom J in order to make him amenable to sexual activity I am unconvinced. In saying this I note that J’s parents, being aware of the extent of the contact and moreover being aware of the allegations that led to the failure of the accused’s first attempt to visit Australia, did not form this conclusion at least at the time. If they had it would have been extraordinary that they would not only have encouraged the accused to visit Australia but also press him to stay with them rather than in a hotel as was his original intention.
In relation to the third count of indecent assault this incident as described by J is not to my mind attended by circumstances of indecency. I am not however satisfied that any of the three counts of indecent assault occurred as described. There are a number of issues about the evidence in general and J’s evidence in particular that cause me concern. I have identified some of these in the discussion above. The accused has denied from the outset any sexual impropriety. There was nothing in his police interview or his evidence in court that caused me to dismiss his evidence as a reasonably possible version of events. I have doubts as I have mentioned about the reliability of some aspects of J’s evidence and particularly that of his mother.
There were no independent witnesses to what occurred in J’s bedroom on the occasions of the three alleged indecent assaults. Given the state of the evidence I am unable to make any findings as to what specifically occurred and as a result I must have a reasonable doubt about the version of events put forward by J. In those circumstances the accused is entitled to the benefit of that doubt. Accordingly I find him not guilty of all four counts on the Information.
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