R v Nitschke - [2010] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NITSCHKE
[2010] SADC 53
Reasons for Decision of His Honour Chief Judge Worthington
7 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Disputed fact hearing - pleas of guilty to 2 counts of unlawful sexual intercourse and 3 counts of attempted unlawful sexual intercourse - allegation that victim induced to engage in sexual activity by defendant's threats.
Held: Aggravating factor not proved beyond reasonable doubt.

R v NITSCHKE
[2010] SADC 53

The defendant, Harold Laurence Nitschke, has pleaded guilty to committing five offences between March 2007 and March 2008, two of unlawful sexual intercourse and three of attempted unlawful sexual intercourse, against the victim when she was 16 years of age (born 26 March 1991). The defendant was then aged 77 years.
There is a dispute about the basis on which the defendant should be sentenced. The Crown says that he made threats designed to compel her to engage in sexual activity with him and that this, as an aggravating feature, should be reflected in the sentence. In broad terms, the allegation is that he threatened to tell her parents about her misbehaving in various ways if she did not engage in sexual acts with him, and that this was against a background of his knowing that she was terrified of being in trouble with her parents because they would physically abuse her. The defendant denies making any such threats.
The thrust of the Crown case is that the victim agreed to engage in sexual conduct with the defendant because, as a result of his threats, she was afraid that if she did not comply with his requests, he would tell her parents about misbehaviour that they would regard as serious, including smoking cigarettes, drinking alcohol, borrowing money and going to parties which would lead to a beating, and that he was aware of both her fear and the likely consequences. As this would be an aggravating factor it is rightly accepted by both parties that to discharge its obligation, the Crown must prove it beyond reasonable doubt.
Much of what occurred is not in dispute and I can refer to it in narrative.
The defendant, who will turn 80 in July, has lived at his present address for about 46 years. He retired as a bank manager in 1986 and has lived there alone since his divorce in the 1980s. The victim came from Poland with her family and moved into the house next door to the defendant a couple of years before this offending occurred. The defendant got to know the family and spent a lot of time at their house, in particular helping the victim’s mother to learn English. Because of that he and the victim saw each other fairly often.
The relationship between the victim and her parents had its difficulties and there is evidence that they physically abused her. There is no need to discuss all the details but, for example, there was an occasion before the offending when she had black eyes from being hit by a parent and this resulted in the police attending. From things he observed and from what the victim told him, the defendant was aware that her parents were strict and that she was treated harshly if she stepped out of line.
From about the time of the victim’s 16^th birthday in March 2007, the defendant took greater interest in her, having frequent contact with her, particularly after school. Later in 2007 he began to engage in the criminal conduct charged.
The circumstances in which the five counts occurred were as follows.
Counts 1 and 2 happened on the same day in a bedroom at the defendant’s house. The defendant went into his bedroom with the victim and inserted his finger into her vagina (count 1: unlawful sexual intercourse). Shortly after that he attempted to have penile vaginal sexual intercourse with her (count 2: attempted unlawful sexual intercourse). He was unsuccessful because he was unable to get an erection.
Count 3 was attempted penile vaginal sexual intercourse at his home on a different day. Again, the attempt was unsuccessful because of erectile dysfunction.
Counts 4 and 5 occurred at the defendant’s Goolwa holiday home where he had gone with the victim and they were also on a single day. Count 4, unlawful sexual intercourse, occurred when he inserted a finger into her vagina. Shortly afterwards he attempted once again to have penile vaginal sexual intercourse with her but was unsuccessful for the same reason (count 5: attempted unlawful sexual intercourse).
For completeness I mention that there was a fourth occasion on which there was digital penetration of her vagina and another unsuccessful attempt at penile vaginal sexual intercourse. These were counts 6 and 7 on the information but a nolle was entered on both because the occasion was after her 17^th birthday.
Apart from her visiting his house to talk from time to time, there was nothing remarkable about the contact between the victim and the defendant prior to her 16^th birthday on 26 March 2007. Because of her parents’ religious views, birthdays were not celebrated in her family. The defendant was aware of this and offered to take her and her girlfriend M to dinner at a restaurant for her birthday. He supplied them with some alcohol; a drink at his house before going to the restaurant and wine with the meal.
Because the victim was unhappy at home, from about the time of her 16^th birthday the defendant’s home became something of a refuge for her. There is no dispute that during some of those visits, he gave her alcohol and cigarettes. He also gave her money; the details are not clear but some was as a gift and some as a loan. She was at secondary school and worked part time but her earnings were not enough to cover expenses. There is no dispute that he helped her out with money from time to time. He would often drive her to and from school.
As the months went by he provided her with a mobile telephone and paid the bills. He would drive her to and from parties that she would attend without her parents’ knowledge. He knew from a combination of what she had told him and what he had observed for himself that her parents would disapprove of this lifestyle and, for that matter, his part in maintaining it for her.
A few months after her 16^th birthday the other members of the victim’s family went to Poland; her father and younger brother on 11 June 2007 and her mother on 4 July 2007. They all returned on 4 August 2007. For part of the time they were away, the victim was in Melbourne. When she returned to Adelaide she lived at home although she sometimes stayed with M’s family. The defendant had a key to the house. While the parents were away he was feeding their dog. On one morning when he came into the house, he found a young man named Dwayne sleeping on the parents’ bed with the victim alongside. The precise details do not matter but he ordered Dwayne to leave. The victim was embarrassed and annoyed by what he did.
A few days after the victim’s parents returned home from their trip, the defendant started giving her driving lessons. They began on 7 August 2007 and continued until early 2008. The defendant took great care with her tuition and was conscientious in filling out the log book that was required for the victim to obtain her licence. Most of this driving was done before and after school in the metropolitan area but there were a few longer trips to Gawler, the Adelaide Hills and Goolwa.
So much is common ground.
Both the victim and the defendant gave evidence and at this point I should comment briefly on them as witnesses. In my opinion, each did their best to recall what occurred and to recount it honestly to the court. The victim was an intelligent and thoughtful witness. The defendant tried to be helpful but he tended to ramble and many of his answers were discursive. However, although I do not think either of them was being untruthful, I had some concerns about the accuracy and reliability of some of their evidence.
The issue in dispute, whether there were threats, is discrete but to be able to deal with it in context, it is necessary to address some other matters first.
In short, after the victim’s 16^th birthday the defendant spent a lot of time with her. She confided in him about some very personal matters which I need not set out. He too spoke about himself and his own personal matters. In particular, soon after her 16^th birthday he took the conversation to matters of sex and notably, a long-standing problem he had with erectile dysfunction. At that time he had been in a relationship with a woman for about six years and he was embarrassed by this problem. That woman had suggested to him that he consult a doctor about it. He followed her advice and in January 2007 his general practitioner prescribed Viagra tablets. There were further scripts for Viagra or Cialis, a similar tablet, in March 2007, October 2007 and June 2008. The victim said in evidence that these conversations about his problem soon turned to his asking her to help him by having sexual intercourse with him.
The defendant’s evidence about this was vague and hard to follow. He described his interest in having sex with her as having developed a few months later than that and seemed to regard what eventuated as resulting from a mutual decision after mature discussion between equals. In the circumstances, I regard that as quite unrealistic. I accept the victim’s account that in the course of conversations from shortly after her 16^th birthday, he began asking her to help him in the way she described. It is consistent with a number of pointers in his evidence:
·his pre-occupation with the problem at that time and his desire to remedy it;
·telling the police in the course of his interview on 24 July 2008 that he had “these Viagra tablets” and that he “was dying to try ‘em out” (ROI p28);
·his then belief (which is not challenged) that the age of consent for sexual intercourse was 16 years;
·telling her about his problem “sometime early, after her 16^th birthday” (Tx 220).
The first occasion (counts 1 and 2) was in late July/early August 2007. The victim said that it occurred while her parents were still away. The defendant said that it happened shortly after the first driving lesson. Nothing turns on exactly when it occurred but on either account, it was after the incident involving Dwayne. As happened on the other occasions, he used a tablet, either Viagra or Cialis, in an effort to get an erection.
The last occasion (counts 4 and 5) was at Goolwa in January 2008 when they both went down to his holiday house to clean it ready for sale. The defendant said that he and his two sons, who were to share with him the proceeds of sale, agreed to pay her $1,000 to clean up the house. On the face of it this is a large payment for such a task. Her bank records show that on 14 February 2008, $250 was deposited to one account and $750 to another. The defendant said that she did a good job and that all three of them were happy to pay that amount. That may be so but he was the one who arranged it and it is reasonable to infer that his approach to how much should be paid was coloured by his sexual involvement with her.
There is no evidence about exactly when the other offence, count 3, occurred but it was treated by both parties during the hearing as having been between the other two occasions and I have therefore approached it on that basis.
A good deal of evidence was introduced in relation to the period between late January 2008, after the last two offences, and 22 July 2008, when the victim complained about the offences, especially the latter part of that period. However, this evidence can be used only for a limited purpose and I will therefore confine myself to a brief outline.
It shows the relationship continuing for some time but it also shows that it was progressively collapsing. She clearly became fed up with his asking for sex. There had been an element of possessiveness and infatuation on the defendant’s part before January 2008, but this later evidence paints a picture of his becoming even more possessive and more intrusive in her life. There was bitterness. There were disagreements. Notably, in July 2008 there was a protracted argument about her not repaying an amount of $120 which the defendant said was a loan and, although it is not completely clear, it is likely that in the course of that argument he said that he would speak to her father about it. Ultimately, the defendant did complain about it to the victim’s father whose reaction was as adverse to her as she had expected. She retaliated by telling her parents what had been happening, the police were called and her complaint was pursued.
This evidence is of no assistance in making findings about the offences, all of which occurred before the end of January 2008. In view of the deterioration that was taking place between January and July 2008, it would be unsafe to use evidence of conduct during the latter part of that period to draw inferences about the conduct of either of them between March 2007 and January 2008. However, it is helpful in one way. The collapse of their relationship, which occurred before the victim first complained about the defendant, was acrimonious and that must be remembered when considering her evidence about what happened between six and fifteen months earlier.
It is clear from the evidence of both of them that on each of the three occasions when the offending occurred, the victim was tense and unresponsive. She described herself as not moving, keeping her eyes closed, wishing she was somewhere else and just wanting to have it over and done with (Tx36). The defendant’s description of her reaction is consistent with that. He told police it was “passive resistance, in as much as she would get tensed up” (ROI p25).
The defendant appears to have convinced himself that she had a sexual interest in him and that she was as keen as he was to engage in this sexual activity. Given the extreme difference in their ages, this is inherently unlikely and it is inconsistent even with his own account of her reaction which clearly indicates that she was reluctant.
While it obviously suited her to visit the defendant and be indulged, she had a feeling of obligation towards him. She said in evidence that in asking her to help him with his sexual problem, he also made her aware of that sense of obligation. For example, a summary of the effect of a conversation with the defendant shortly after her 16^th birthday, was put as follows (Tx49):
Q From your point of view what you get from the conversation is that you owe him something so you’ve got to sleep with him.
A Yes.
The defendant’s evidence about this topic was confusing, often drifting well away from the point in answering a question. As I have said, I do not think he was being untruthful. In my opinion, his evidence on this topic was confusing because he was confused. Let me refer to some examples.
In evidence-in-chief he was asked about this topic and it was as if it had not occurred to him (Tx164).
Q. . . . . . why was it that you thought [the victim] wanted to take part in the attempts to have sex with her.
AI think I probably just took it for granted, she didn’t resist, we just walked out of (sic) the bedroom on those three or four times.
QIf you think about those questions and answers that took place with the police at your home, there’s discussion there of money and of driving lessons; was there any connection in your mind between the gifts and the driving lessons and sex with [the victim].
ACertainly not, no, certainly not because . . . . .”
He then digressed.
That is to be compared with what he said in cross-examination (Tx278):
QWhy do you think [the victim] allowed you to have sexual contact with her.
AI suppose because she found comfort in my company, she used to always be very happy when she came over. She didn’t just come over just to have a cigarette. I mean, she liked getting away from the parents and also because I’m helping her. ………..”
(Emphasis mine)
He then digressed and after he was brought back to the point he continued:
AI can’t read her mind but she – I suppose because of my kindness, I suppose. Could that be an answer? I mean, I made it very clear that I was prepared to help her. That’s about the only way I can think. I mean, she never gave any clear indication that said it.
(Emphasis mine)
He then digressed again.
These answers show an awareness on his part that what he had done for her was playing a part in her agreeing to have sex with him.
In his interview with the police on 24 July 2008 the following occurred (ROI p48):
Q. . . . . There’s a been a suggestion that it was actually your idea to have sex. You wanted to have sex with her along the lines of because you’ve been so good to her and given her money and bought her stuff.
AWell yeah, I suppose I can’t deny that –
QThat she saw –
AI mean she is an attractive girl.
QMm
AAnd I can’t deny it but I, put it this way, she also implied that she was very grateful to me because I mean I gave her money.
QMm
AI mean I did, oh, she did over a hundred of hours of driving (sic) in my car.
The interviewing officer then asked some questions about other matters and the interrogation continued as follows (ROI p49):
Q.. . . . . So did you ever put it to her that she should have sex with you because of how good you’ve been to her.
AOh no, no.
QNo. So you don’t think that there was ever any guilt of pressure for her at all.
ANo, I don’t think so, I think she – I mean she was probably appreciative, I don’t deny that, but I mean it just led to it. I mean we used to talk about anything and everything.
Having regard to the evidence overall on this topic I am satisfied that the victim felt under an obligation to the defendant and that he knew it. He was sexually attracted to her and, as I have already found, he was keen to see whether he would be able to get an erection and to have sexual intercourse with her. She had no sexual interest in him and he had to persuade her to have sex with him. She was an immature and comparatively naïve schoolgirl and I am satisfied that, whether or not he spelt it out precisely to her, he relied on her sense of obligation in persuading her to have sex with him.
Turning then to the matter that needs to be decided: whether before January 2008 the defendant used threats to compel the victim to submit to the conduct charged in counts 1-5. The threats alleged by the prosecution are that unless she agreed to sexual intercourse he would tell her father or mother about the matters referred to earlier, knowing that she was afraid of being severely punished if he did. The victim says that he made such threats frequently; the defendant has at all times vehemently denied making any threats.
The victim was terrified of her parents, especially her father, and there is no doubt that the defendant knew that. I accept that she was afraid of a violent reaction if her parents found out about the things she had done and she was clearly conscious of the fact that the defendant knew enough to get her into trouble. It was reasonable for her to become afraid at some point that if she upset him by not going along with what he wanted, he might say something to her parents. There was no need for her to have that spelt out. However, the issue is whether the Crown has proved beyond reasonable doubt that she had this fear from late July/early August 2007 and that it was caused by threats. That obligation has not been discharged.

The thrust of her evidence is that when he first began to ask her to have sex with him shortly after her 16^th birthday it was put nicely but that, as time went by and she was showing reluctance, he started to make these threats, including a threat to tell her parents about the incident with Dwayne. In the course of cross-examination she said that he would make threats of that type on any occasion that he asked her to have sex and she did not agree to it. She described those threats as follows (Tx95):
It was that he will go and tell my father and he will let him know what sort of a terrible person I am and how I used him for money and all these other things, and for taking me to school.
I must evaluate her evidence about threats in light of the defendant’s denials. Although there were the inadequacies in his evidence that I have identified, after close cross-examination on this topic he remained firm in his denials.
It was submitted for the defendant that it is inherently unlikely that he would have made such threats because to tell her father would cause him trouble as well. I accept the defendant’s evidence that although he was friendly with the victim’s father, he knew about his temper and was wary of saying anything that might upset him. The defendant was an accomplice in many of the activities the victim wanted to hide from her father – e.g., giving her alcohol, money and cigarettes, and driving her to parties.
It was put on his behalf that in those circumstances it is most unlikely that he would put himself in peril by telling her father about them; it would be an empty threat. There is some force in that submission even though the defendant did eventually tell her father about the loan of $120. I need not go into the details of that. It is enough to say that the defendant saw the failure to repay that money as a matter of principle. However, the submission is of only limited help because it does not recognize the difference between the unlikelihood of a threat being carried out and the threat nonetheless being made.
The fundamental problem for the Crown is the reliability of the victim’s evidence on this topic. Her account comes after the deterioration and collapse of the relationship and as I have already said, while in the circumstances of this matter it would be wrong to use evidence of conduct in the six months leading up to the complaint in July 2008 as evidence of what happened before the end of January 2008, it can be relevant to the evaluation of her evidence.
By the time the victim first gave her account of events, there had been a progressively bitter deterioration of the relationship and it had reached the point where the defendant had told her father about the $120 loan and he had reacted as she had expected. Having regard to the evidence as a whole, it is not possible to exclude the risk that her recollection of what occurred during the relevant period up to January 2008 has been influenced by what occurred in the six months after January 2008. It was not uncommon in her description of events for the timing to be concertinaed and there were indications of reconstruction in her evidence.
I refer to two examples.
In cross-examination her attention was drawn to the time just after her 16^th birthday (Tx57):
QOnce you had that conversation with him about sex just after your 16^th birthday there was really no reason for you to go back to Harry Nitschke’s house, was there.
AThere was. He would not stop ringing me, he would not – he used to watch me every single time I put my foot in front of my house. He used to watch me every time I walked out of that house. He saw my parents leave the house, he knew exactly what time they come home. He knew exactly the time they leave. He knew every single car that pulled up down the front. I could not just get away (sic) from him.
The time being spoken about in the question was March/April 2007 i.e., before any offence had taken place. Her evidence about when he became controlling and watchful of her is not completely clear but it was later than that and seemed to coincide roughly with when he gave her the mobile phone, which, according to the Optus accounts, was early October 2007. By that time, counts 1 and 2, and possibly count 3, had occurred.
Mr Stewart, for the defendant, came back to the topic (Tx57-58):
QBack at this time when you had the first sex conversation with Harry Nitschke, what I am getting at is you didn’t really have to go back to his house at all even after that conversation, did you.
AIf I didn’t he would have told my father about me going in to the city when I was not supposed to; me drinking, which I was not supposed to; me smoking cigarettes, which I was not supposed to and if my dad found out about the money that I was given he would have been very, very angry with me. Like I said previously, after he found out when Harry told him I owed him $120 for a taxi fare my dad just lost the plot about that, so I knew how my dad would react to knowing he had given me any money.
The incident involving the loan of $120 and her father’s reaction to being told about it by the defendant did not occur until July 2008, more than 12 months after the time she was talking about.
I can well understand how difficult it would have been for the victim to retrospectively analyse this relationship but the problem is the risk of hindsight. Not only has that risk not been excluded, there are indications of its influence. In each example, although it is not absolutely clear how it is being used, there is an element of reconstruction. Her evidence on this topic does not withstand the level of scrutiny necessary for it to be accepted at face value as being completely reliable and such that it should be preferred to the defendant’s evidence about it.
The Crown submitted that the victim’s reluctance to have sexual intercourse with the defendant and her obvious dislike of what he did on each of the three occasions support a finding that she did it only because of the threats. While I accept that her attitude and reaction would be consistent with threats having been made, it does not follow that this is the only reasonable explanation. She was young and impressionable. The defendant was a father figure. She was spending a lot of time in his company. She found herself in a situation where she felt obliged to him and he was persistently asking her to help him with a problem by having sexual intercourse with him. It is a reasonable possibility that in these circumstances her sense of obligation was enough to persuade her to give in to his requests and engage in sexual activity despite her feelings. Therefore, the submission is not sound.
For these reasons, the prosecution has not proved the aggravating factor of threats beyond reasonable doubt and it will therefore not be taken into account in sentencing.