R v MAYGER - [2012] SADC 185

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAYGER
Criminal Trial by Judge Alone
[2012] SADC 185
Reasons for the Verdict of His Honour Judge Rice
21 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Alleged aggravated indecent assault of a nine year old girl - permitted to give unsworn evidence - complainant's evidence accepted as truthful and accurate beyond reasonable doubt - charge proved beyond reasonable doubt - conviction recorded.
Evidence Act 1929 ss 9 and 34CA, referred to.
R v P, BR [2004] SASC 323, considered.

R v MAYGER
[2012] SADC 185
Introduction

The accused is charged with one count of aggravated indecent assault of a nine year old girl arising from a single occasion over the weekend of Friday, 14 October 2011 and Sunday, 16 October 2011. The complainant’s evidence came in two forms. Her statement to a police officer was admitted pursuant to s 34CA of the Evidence Act 1929 (“the Act”), and she gave unsworn evidence pursuant to s 9 of the same Act. She was cross-examined on topics following permission given pursuant to s 9(2) of the Act. Two complaint witnesses were called. The accused did not give or call evidence.
The question is whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. To convict the accused I would need to be satisfied that the complainant was both truthful and accurate or reliable, although counsel concentrated much of their submissions on whether she was accurate or reliable.
Overview of the alleged facts
The complainant, C, was aged about nine years eight months on the weekend of 14-16 October 2011. As at that time, her parents had been separated for some months and lived in separate homes. On this weekend, C was staying with her father at his place at Taperoo. C’s sister, B, was also staying on this weekend. They were dropped there by their mother on the Friday afternoon after school. They both stayed on the Friday night and Saturday night.
The accused was well-known to C’s family and had been a family friend of many years. He also would regularly stay at C’s father’s place at Taperoo, including on this weekend.
On the prosecution case, on one of the two nights, while sleeping in the lounge room on a mattress, C was touched by the accused on the bottom, arms and leg. One of the issues in the case was whether any such touching was real or perhaps imagined or the product of a dream.
As mentioned, the prosecution case is that there was an initial complaint (to a 12-13 years old female friend) the next day, and an elaboration to C’s grandmother after she returned home on the Sunday night. Another of the issues at trial related to the terms and extent of the elaboration and whether it could be used as evidence of complaint.
Inquiry prior to the complainant giving evidence
As mentioned, C was aged nine years eight months at the time of the alleged offence. Her date of birth is late January 2002. She was aged about 10 years eight months at the time of trial.
Section 9 of the Act contains a rebuttable presumption that a person is capable of giving sworn evidence in any proceedings. That presumption is rebutted if the Judge determines that the person “does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.”
C’s age at the time of the alleged offence or at trial is not sufficient, in itself, to rebut the presumption that a person is capable of giving sworn evidence. It remains a vexed question as to what are the relevant factors to be taken into account by the trial Judge in deciding whether the presumption is or may be rebutted. Although I was not convinced that there was sufficient reason to say the presumption may have been rebutted, I undertook an enquiry at the urgings of counsel.
Having undertaken that enquiry, I took the view that C “…did not have sufficient understanding of the obligation to be truthful in giving sworn evidence.” My questioning of her satisfied me that she understood the difference between the truth and a lie. I told her it was important to tell the truth and I am satisfied that she indicated that she would tell the truth. She explained in her own words that telling the truth meant “…you don’t make up anything” (TP25). I was also satisfied that she understood that a failure to tell the truth may have serious consequences for the accused. (R v P, BR[1].) However, I was not sufficiently convinced that she understood the importance of the oath or affirmation such as to impress upon her the importance of telling the truth in the witness box as compared with telling the truth on every day occasions. For those reasons, I permitted her to give unsworn evidence only. I was satisfied of the matters referred to in s 9(2).
[1] [2004] SASC 323, per Mullighan J at para 124, Nyland and Anderson JJ concurring.
For the purposes of s 9(4), I remain conscious of the reason why her evidence is unsworn. I warn myself of the need for caution in determining whether to accept her evidence and the weight to be given to it. This is what I would do in any event. Indeed, I would scrutinise her evidence with great care and not act upon it unless, having taken the warning into account, I am satisfied as to her truthfulness and accuracy.
Legal ingredients of aggravated indecent assault
As noted, the accused is charged with an aggravated indecent assault arising from a single occasion. Although the factor of “aggravation” is not an element of the offence, it is proved by proof that C was less than 14 years at the relevant time. I am satisfied that C was aged about nine years eight months at the relevant time. On that basis, it is unnecessary to consider the aspect of consent or recklessness.
As for indecent assault, that is an assault committed in circumstances of indecency.
The law makes it an offence to indecently assault another person.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency.
The offence of indecent assault consists of two essential ingredients, each of which must be proved by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first ingredient is that the accused assaulted C. An assault is the intentional and unlawful application of force to another person.
The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury.
The application of force must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient.
The application of force must be unlawful, that is, without lawful justification or excuse. If the assault is proved here, there can be no suggestion that the accused acted with lawful excuse.
The second ingredient is that the assault must be accompanied by, or occur in, circumstances of indecency.
The word "indecency" is a word that is well-known to all of us. Obviously, there are many kinds of conduct about which people may differ as to what is and what is not indecent. Some things might be a matter of taste, but, putting those matters aside, there are other kinds of conduct which, by any reasonable contemporary standards, can only be described as indecent. It is a matter for me to determine, by reference to those standards, whether I consider any conduct proved in this case, to have been indecent.
Complainant’s account
As mentioned, some of C’s evidence came through a statement she made outside the court to Detective Brevet Sergeant Nash on Monday, 17 October 2011. The alleged events occurred the preceding weekend, only two or three days earlier. Pursuant to s 34CA of the Act, I admitted the evidence and it may be used to prove the truth of the facts asserted in that statement (Exhibit P1). A diagram made during the course of that statement was also tendered (Exhibit P3). The diagram illustrates the places where the accused is alleged to have touched C.
Referring to the statement made to Detective Brevet Sergeant Nash, C gave the following evidence. C said that the relevant events occurred on the Friday evening. She and her sister were sleeping at their father’s place on two mattresses on the lounge room floor. Their father was in an upstairs bedroom. She said she and her sister went to sleep and at three o’clock in the morning the accused came into the bed and “…he started to touch me on my bum and my legs and my leg and my arms and then I woke up …” She went on to say she gave him a pillow and told him to go and sleep on the lounge. She said he did not move and he kept touching her. She said she then rolled over onto her sister’s bed, got under her blanket, but the accused still put his hand under it. She got up, went to the toilet and then lay on the other side of her sister. When she looked up after that, she saw that the accused was looking at her. The officer had her repeat some aspects of her account and she gave much the same story with minor variations.
In addition, the officer had her mark on a drawing of a naked young female child, the positions where she said the accused touched her. Those positions were her arms, knee, belly button and bottom (or “bum” as she said). The touching that took place when he put his hand under the blanket was on top of her clothes.
As seems to have become the practice despite the use of a statement pursuant to s 34CA, C was again taken through her account in examination‑in‑chief. The account that she then gave was much the same as she had given to the officer but in a little more detail in places. As for the touching on the bum, she said it was a “squeeze” (T75). That touching occurred after she had rolled onto her sister’s mattress and tucked the blanket down the middle of the mattresses. She was wearing pants and a nightie. The touching was from the outside of the pants (TP76-77).
She said she went to the toilet because she was scared. The toilet was downstairs. On returning to the lounge room she lay on the mattress on the other side of her sister. The accused was still on the bigger mattress, the one she had been on originally. Later she fell asleep (close to daytime) and woke up in daytime.
C said that the first person she told was a friend, SG, and later her Nanna (“N”). C said that she told SG the day after when the two of them were walking to nearby shops. C said she said to SG that the accused “touched me”. She was unsure whether she told SG anything else (TP82, 89).
C said she told N the same day as she did SG. C could not say what she said to N but agreed she told her that the accused touched her (T82).
During her cross-examination, C was asked about what she initially said to the police. C agreed that she said the accused started touching her on the bum, then the leg and arm, and then she woke up (T85-86). C agreed that the touching on the bum was when “I think I was still waking up” (T88).
Later in cross-examination, C gave very spirited answers to suggestions that were being put to her, saying “but I am not making it up” (T90-91). I was impressed by the way she dealt with those suggestions, as I was with the suggestion she was asleep when these touchings supposedly occurred or were the product of a dream or were imagined (T93).
Evidence of complaint
As mentioned, C spoke to her friend, SG and N about the accused’s alleged conduct. SG is now aged 13 years. She used to play with C when C visited her father. Concerning one such occasion, which I infer to be the visit under consideration, C said to her that Dave was trying to touch her up or something (T121). C told SG not to tell anyone.
In cross-examination, a more detailed account unfolded by asking her questions about what she (SG) told the police. The effect was that C was upstairs at her father’s house, that the accused came upstairs, moved his mattress towards her (C’s) mattress, then he jumped in the middle and she (C) tried to move towards her sister away from the accused (T123).
The complaint to N was more extensive. C lived with N. When C returned on the Sunday afternoon, she quickly wanted to speak with N. Once in the privacy of C’s bedroom, C told N that the accused had tried to touch her in her rude places. When asked to explain, the account given by C was generally in accord with the account given by C at trial, although there were some factual differences (T101-102). N said C went to school the next day and after school was taken to the police station where she (C) spoke with Detective Brevet Sergeant Nash.
The suggested complaint evidence that emerged from N’s evidence was the subject of strong criticism. N said she provided this evidence to Detective Brevet Sergeant Nash before C spoke with him. Detective Brevet Sergeant Nash said he was not provided with her detailed complaint at any stage. I found N to be an impressive witness, but this conflict leaves me in a state of uncertainty as to what, if any, complaint was made to N. In those circumstances, although I do not disbelieve N as a witness, I have no regard to her suggested complaint evidence.
I return to the suggested complaint evidence from SG. Complaint evidence, if accepted as such, cannot be used to prove the truth of what is asserted in the complaint. It is able to be used to show evidence of consistency of conduct and is therefore relevant to, and supportive of, the credibility of the complainant. Further, if there is a marked difference between the suggested complaint and the evidence in Court from the complainant, then suggested complaint evidence may be evidence of inconsistency and reflect adversely upon the complainant’s credibility.
Although there are some differences between what SG said by way of complaint in examination-in-chief and what she had previously told the police by way of a suggested complaint, those differences are not sufficient for me to doubt the general thrust of the complaint. I accept that, on that weekend, C had said to SG that the accused had tried to touch her up. This is relevant to consistency only.
Accused did not give evidence
The accused did not give or call evidence. This was his right and no inference adverse to him can be drawn from the exercise of this right.
The accused’s silence in this Court is not evidence against him, does not constitute an admission by him, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a makeweight in assessing whether the prosecution has proved its case against him beyond reasonable doubt. The recurrent theme I must always bear in mind is that it is for the prosecution to prove its case against him beyond reasonable doubt.
Discussion and findings
In making my findings, I am all too conscious of C’s evidence as being unsworn and not corroborated.
Notwithstanding criticisms that have been levelled at C, I found her to be an impressive and forthright young witness. She was confident, articulate and intelligent. Her evidence flowed and she gave a coherent account of what happened to her, in both examination and cross-examination. Taking into account the criticisms of her evidence, I find her to be an honest and reliable witness. I accept the substance of her evidence that the accused was, in the circumstances she described, touching her on the arm, leg and bottom. Those were touchings in circumstances of indecency. Although she may not have been fully awake, she was certainly sufficiently awake and alert to her surroundings to understand and appreciate what was being done to her.
I find the charge proved beyond reasonable doubt.