R v Mcconnon No. DCCRM-02-1215

R v Robert Albert McCONNON
[2003] SADC 144
CRIMINAL RULING
JUDGE DAVID SMITH
Introduction

On the 24^th March 2003 the defendant pleaded guilty to:
·    Unlawful Sexual Intercourse with C between 1^st February 2002 and 7^th May 2002.
(s49(3) of the Criminal Law Consolidation Act, 1935);
·    Unlawful Sexual Intercourse with C between 7^th May 2002 and 15^th June 2002.
(Ibid); and
·    Unlawful Sexual Intercourse with C between 8^th May 2002 and 15^th June 2002.
(Ibid).
The complainant, C, was born on the 24^th June 1986 and so at the time of this offending was 15 years old. The defendant was born on the 18^th September 1941 and so at the time of this offending was 61 years old. It is common ground that the defendant began a sexual relationship with the complainant on about the 17^th February 2002 and it ceased on about the 19^th June 2002 just before the complainant’s sixteenth birthday.
Arguments
The elements of the offence of unlawful sexual intercourse in the circumstances of this case are:
· that sexual intercourse took place; and
· that the complainant at the time was under the age of 17 years.
The defendant contends that he believed at all material times that C was 18 years old and that when he discovered the truth a few days before her birthday he terminated the relationship. Such a belief cannot be a defence but it can amount to a mitigating circumstance. The Crown accepts, or at least does not contest, that the defendant believed at the time of the commission of the first and second offences that C was 18 years of age. However the Crown contend that before the offending subject of count 3, the defendant was confronted by Mr F, who was the complainant’s guardian and grandfather, and was told that the complainant was 15 years old. The Crown contend that, well knowing that the complainant was only 15 years old, the defendant continued the sexual relationship and in particular committed the unlawful sexual intercourse the subject of count 3. A failure to heed such a warning must constitute an aggravating circumstance. Whilst the defendant agrees that he was confronted by Mr F he does not agree that he then learned that the complainant was 15 years old.
Disputed Fact Hearing – Onus – Parameters
Accordingly, a disputed facts hearing took place before me on the 24^th April 2003. The defendant bears the burden of establishing circumstances of mitigation on the balance of probabilities and the Crown bears the burden of establishing beyond reasonable doubt circumstances of aggravation; (see R v Anderson (1992-93) 177 CLR 520; R v Olbrich (1999-2000) 199 CLR 270; R v Lobban (2001) 80 SASR 550.)
There are two aspects to this dispute of facts; namely,
· firstly, it is clearly a mitigating circumstance that the defendant believed at all material times that the complainant was 18 years old and that when he discovered otherwise he terminated the relationship; and
· secondly, it is an aggravating circumstance if having been warned that the complainant was only 15 years old the defendant again had sexual intercourse with her.
In this case there is an overlapping of onuses. The defendant must satisfy me on the balance of probabilities that in respect of each of the three counts he had the belief that the complainant was 18 years old. In respect of the third count, which is where the dispute is focussed, the Crown must establish beyond reasonable doubt that having been warned about her true age the defendant proceeded to commit the offence. I will approach the exercise by firstly deciding whether or not I am satisfied on the balance of probabilities that at the times of commission of the offences the subject of Counts 1 and 2 the defendant believed C was 18 years old. Then in respect of the time of commission of the third offence I must decide whether the Crown have proved the warning, and if not, I will then proceed to decide whether the defendant’s belief that she was 18 years old was still extant.
The defendant himself gave evidence. The Crown called Mr F as to his meeting with the defendant and otherwise relied upon the declarations as it is entitled to do at the sentencing stage; (see s6 of Criminal Law (Sentencing) Act, 1988.) Notably the complainant C did not give evidence. In her two statements as verified by Constable Tabetha Jo Howie dated respectively the 19^th June 2002 and the 4^th September 2002, C acknowledged that she was present and heard her grandfather tell the defendant that she was “only 15 years old”. In a declaration made by her on the 23^rd April 2003 she asserted that she “told Bob that I was 15 years old when I first met him at the Gracelands Swimming Centre … from the very beginning …”. This is in conflict with her statements to Constable Howie in which she agreed that until the confrontation with her grandfather she knew that the defendant thought she was 18 years old. Further, the complainant’s statements assert that the relationship terminated because the defendant had met “another woman”.
On sentencing as a general rule, I can have regard to the assertions of fact in the papers and the declarations. However, when there is a disputed facts hearing and a material Crown witness is not called as to the issue, in my view, it would be impermissible to use or act upon that witness’ untested assertions in declarations or verified statements; (see R v Vecsey (1962) SASR 127; R v Wong (1996) 16 WAR 219.)
Evidence
The defendant said that at the beginning of the relationship C told him that she was 18 years old and was in Year 12 at Enfield High School (13). He said that he terminated the relationship on the 19^th June 2002 when she told him that she was about to have her sixteenth birthday on the 24^th June (14). The defendant in evidence recounted this conversation about the birthday in the following terms:
“she said to me ‘I’m going to be 16 on 24 June’ and I said ‘I’m in a shit load of trouble now, aren’t I? Why didn’t you tell me this from the start’? She said ‘I thought you wouldn’t have anything to do with me’. I said ‘At least you’ve got that right’ and that was the end of the conversation.”
(18)
The defendant denied that Mr F told him of C’s age. As to the meeting with Mr F his evidence was follows:
“Q.That was where you picked her up on the occasion where you saw the grandfather.
A. That’s correct.
Q.Tell us what happened on this occasion you went there when the grandfather was present.
A.I was sitting waiting for C on the 1605 bus. She got off the bus, I reached across to unlock the passenger door, the same time a blue car pulled up in front of me, a chap got out with a pen and paper in hand, and he was saying something, presumably to C, I don’t know, because he was too far away, and he come straight up to me.
Q.Did he say anything to you.
A.He said ‘What are you doing here?’.
Q.How was his demeanour, how did he appear to you. Was he happy.
A.I would say he was agitated.
Q.Did you respond when he asked you what you were doing.
A.I said ‘I’m waiting for my friend to get off the bus’ and I pointed to C.
Q.Did he say anything to that.
A.No
Q. What did he do.
A.The next questions he asked me were ‘Where do you live’ and ‘What’s your name’?
Q.Did you tell him your name.
A.No.
Q.Did you know who he was.
A.No, I didn’t.
Q.Did you learn later who he was.
A.After the altercation and C came and told me who it was, yes, that’s correct.
Q.You didn’t tell him who you were or where you lived.
A.No.
Q.did he say anything else.
A.Yes, he said –
Q.did he make any reference to C.
A.Yes, he did. He said, as he pointed towards her ‘You’ve ruined this girl’s life. I’m going to report you’.
Q.Did you say anything to that.
A.Yes, I did.
Q.What did you say.
A.‘What for’ and he again said as he pointed to C ‘You’ve ruined her life’.
Q.Any discussion about where you’d come to meet her.
A.That was the next question.
Q.Tell us about that.
A.He said ‘How do you know C’ and I said ‘We are both members of the Gracelands Swimming Club’ and with that, he threw his arms in the air and said ‘Fucking swimming club’ and he walked away and got in the car, took my registration number and that was it.
Q.You saw him take your registration number down.
A.Yes.
Q.Did you speak to C after that.
A.She went from the passenger side of my car to this blue car, spoke to the gentleman concerned through the window. She then came back to me. Do you want me to go on?
Q.Go on.
A.I said ‘Who was that’? She said ‘That’s my grandfather’ and I said ‘What’s he on about’? She said ‘Don’t worry. Everything will be all right. He is upset. He overheard me on the telephone’.
Q.Right.
A.The next breath she said ‘Don’t forget, pick me up on Saturday at Festival Theatre at 1.30’.
(16, 17, 18)
Indeed the defendant admitted that after the confrontation with Mr F near the bus stop there were three more occasions when he met C and sexual activity took place (18). As I have previously indicated he said that on the 19^th June 2002 having been told by C that she was about to turn 16 on the 24^th June, he realised the seriousness of his involvement with her and terminated the relationship (14, 18).
Mr F’s evidence about the meeting on Churchill Road was materially different. Firstly, he said that he found out about the relationship when he overheard a telephone conversation between his granddaughter and her girlfriend. He said that he immediately raised the matter with C who freely admitted “going out with Bob” whom she said was 50 years old. Mr F said he protested to her but did nothing more at that time (34, 35). Then he said that at about the beginning of May 2002 he had left his doctor’s surgery on Churchill Road and was driving towards the nearby bus stop when he saw C, alight from the bus. At the same time he saw the defendant parked in his blue Volkswagen station sedan registered number BOB-170 just behind the bus stop. He had not met “Bob” before but assumed that this was the man having a relationship with his granddaughter. He said that he drove alongside the defendant’s vehicle, got out and spoke to the defendant. At the time of speaking with the defendant Mr F said that his granddaughter “was nearby, standing on the other side of the (defendant’s) car” (39). He recounted in evidence the conversation in the following terms:
I said:        “What are you doing?”
He said:     “I beg your pardon.”
I said:        “What are you doing with my granddaughter”
He said:     “I’ve never seen that person in my life.”
I said:        “Do you know she’s 16 years old, 15 years old”
He said:     “I haven’t seen that person in my life before.”
I said:        “Can you give me your name.”
He said:     “I won’t give you my name.”
I said:        “I can report you to the police.”
He said:     “You can report to anybody I can deny everything you say.”
I said:        “Can you give me your name or not.”
He said:     “No.”
I said:        “Alright I take your number plate.”
(37, 38)
The Crown placed significant store on the fact that C must have been wearing her school uniform on some of the occasions she met the defendant. The defendant did not at any time disagree that the complainant was attending school. He denied being conscious of whether or not she was wearing a uniform. In my view whether or not he saw her in uniform is not probative of the fact that he must have known she was younger than 18 years.
Findings
I accept and find that at the time of committing the offences the subject of Counts 1 and 2 the defendant held the belief that C was 18 years old. There was no evidence which effectively contested that and it was not wholly implausible.
The focus of this “dispute of facts” hearing was upon what was said at the meeting between the defendant and Mr F which occurred just before the commission of the offence the subject of Count 3. Counsel for the defendant, Mr Boucaut, suggested that even if I found that Mr F said what he claimed to have said, I should consider that the defendant may not have heard or appreciated it. In this respect Mr Boucaut drew my attention to the report of Dr Ramesh Jahau, dated the 24^th February 2003, which amongst other things diagnosed the defendant as “suffering from alcohol dependency syndrome and major depression … also has alcohol related brain damage …”. The suggestion that the defendant may not have heard or fully appreciated the warning, supported fleetingly as it is by the medical report, does not appeal to me. The defendant neither claimed nor appeared to be “hard of hearing”. In particular he did not himself make any such claim. Further, the respective accounts of what was said are materially different.
I accept the evidence of Mr F. Necessarily I do not accept as a reasonable possibility that the defendant either did not hear the warning or appreciate it, or that it was not said. Mr F’s evidence had a ring of truth about it and is intrinsically more acceptable. It seems to me that declaring C’s age would be the first matter with which he would confront the defendant. He was cross-examined about it and was not deflected. I accept that when he mentioned that his granddaughter was 16 years of age, that was a slip of his tongue. In weighing up this evidence I did give anxious consideration to the implausibility of a person in the defendant’s position persisting after being so warned. However, in the end I was satisfied that he did so.
Accordingly, I find that the mitigating circumstance, namely the belief held by the defendant that the complainant was 18 years old has been established on the balance of probabilities in respect of Counts 1 and 2. But in respect of Count 3 the Crown has established beyond reasonable doubt that the Accused was warned of the complainants age by her grandfather and yet persisted at the relationship and so committed the third offence.

[2003] SADC 144

8 October 2003