R v P, Mg - [2009] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, MG
Criminal Trial by Judge Alone
[2009] SADC 148
Reasons for the Verdicts of His Honour Judge Griffin
21 December 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of procuring an act of gross indecency contrary to s 58 of the Criminal Law Consolidation Act 1935 (SA) and one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act - trial by Judge alone - verdicts - not guilty to both counts.
Criminal Law Consolidation Act 1935 (SA) s 58, s 56, referred to.

R v P, MG
[2009] SADC 148

The accused is charged on an Information with two counts. Count 1 is procuring an act of gross indecency contrary to section 58 of the Criminal Law Consolidation Act 1935. It is alleged that between 8 October 1991 and 31 December 1993 at Victor Harbor the accused procured the commission of an act of gross indecency by (“JPP”) a child under the age of 16 years. Count 2 alleges indecent assault contrary to section 56 of the Criminal Law Consolidation Act. The particulars of that offence are that between 8 October 1991 and 31 December 1993 at Victor Harbor the accused indecently assaulted JPP a person then under the age of 12 years.
The alleged offences each relate to the accused’s nephew JPP.
The prosecution case against the accused is that during the period spanning 1991 through to 1993 the accused visited his brother’s home at Victor Harbor. There was evidence about a number of different addresses at which the accused’s brother and his wife lived together with their children. During the course of the trial it became uncontroversial that they lived at Higgins Street, then Clive Avenue followed by Coleman Avenue and other subsequent addresses. The events the subject of these alleged offences were said to have taken place at the Coleman Avenue address.
The allegation in relation to count 1 is that during a time that the accused was sleeping overnight at the Coleman Avenue address he slept in the lounge room either on the lounge or on the floor with a pillow and blanket. The complainant JPP is alleged to have come to the lounge area in the early morning and cuddled up with the accused under the blanket. It is alleged that the accused undid the trousers he was wearing exposing his penis, took the boy’s hand and guided it onto his penis and masturbated for a time.
The prosecution allegation in respect of count 2 is that at the same house at Coleman Avenue on an occasion when the accused was babysitting he ran a bath for JPP and once he was naked in the bath tub the accused also disrobed and got into the bath. The allegation is that the accused took the boy JPP’s hand and used it to touch the accused’s penis.
The prosecution also alleged an uncharged act. Based on evidence of JPP’s brother (“BP”), it is alleged that BP witnessed an episode in the early hours of the morning at the former family address at Higgins Street of observing the accused groping the genitals of JPP. It was alleged that this happened in the lounge area of the Higgins Street home at a time when only the accused, JPP and BP were in the room. The parents of JPP and BP were in the house at the time but asleep in their bedroom.
By the accused’s plea of not guilty all relevant matters were in issue and the trial proceeded before me commencing on Monday 14 December 2009. The prosecution called JPP, his brother BP, the parents (“LP”) and (“DP”), and two police officers Senior Constable Worden and Detective Brevet Sergeant D. Johnson. Although the offences were alleged to have happened between 1991 and approximately 1993 no complaint was brought to the attention of police until 2007. When the accused was spoken to by police in June 2007 he agreed to a record of interview and denied the allegations. In the course of the trial he gave evidence and was cross examined. He was under no obligation to do that. I also remind myself that this trial is not a contest between the evidence of the complainant JPP and that of the accused. The burden of proof remains upon the prosecution to prove each element of each offence beyond reasonable doubt. The accused is under no obligation to prove anything. I turn to a consideration of the evidence.
JPP gave evidence about what he remembers of two separate incidents at Coleman Avenue. Essentially he describes each of the events which are particularised as count 1 and count 2. He also described having a vague recollection of similar things having happened to him when the family lived at Higgins Street. During the course of his evidence he openly acknowledged that such recollections are vague and may in part be based upon an assumption that such events must have happened because he does not recall being surprised by the conduct on the two occasions that he can remember more clearly. In effect, I understood his evidence to amount to a belief about it having happened to him before without having necessarily a definite recollection. Although criticisms were made of him about the number of times he told police such events may have happened, I have formed the view that his estimates were more in the nature of guesses and do not appear to be based upon any reliable memories.
JPP was an articulate and intelligent young man. He gave his evidence in relation to these events in a direct and appropriate fashion. There was nothing about his presentation or manner of describing the events that gave rise to any impression that he did not genuinely believe that such events had taken place.
At the same time, JPP made appropriate concessions during his evidence about areas in which he was vague or may have been mistaken. For example, it appears as though he may have the years wrong in relation to the family moving from one address to another and consequently may have been mistaken about the age that he believes he was when he was at the Coleman Street property.
In my view JPP was doing his best to give his evidence in an honest and forthright way. However, he did concede that these events happened 18 or 19 years ago at a time in his life when he was very young. I therefore keep in mind that despite his genuine efforts, the reliability of his account must be carefully scrutinised.
The prosecution also called the brother BP. He is one year older and gave evidence about his observations in the lounge room at the Higgins Street property. According to his evidence the event that he witnessed must have occurred when he was about 5 years old and JPP was about 4 years old. Although JPP claims that BP was also in the lounge room at Coleman Avenue when count 1 took place, BP did not claim to have seen any such events. Similarly, he was not aware of any episode of the accused running a bath for JPP during a time when he was babysitting for the children at the Coleman Avenue address.
BP was also an articulate young man who appeared to me to be doing his best to give evidence from his genuine recollection. He was quite properly challenged during cross examination as to his observations. He conceded that despite his observations he never said anything to his own brother JPP with whom he is extremely close. Nor did he ever say anything to either of his parents despite realising the inappropriateness of that behaviour by the time he was 12 or 13 years of age. He put this down to an atmosphere in the family of not talking about matters of sex or sexuality.
Both witnesses JPP and BP confirmed that they had had an acceptable relationship with their uncle during all of the years since then and that neither had ever confronted the uncle or spoken to their own parents about the alleged episodes. They do not claim to have actively avoided social contact with their uncle at any stage.
The prosecution called the parents who confirmed respectively that they lived at the various addresses; that the accused used to visit them and sometimes stay overnight at various Victor Harbor properties where they lived; that on rare occasions he babysat if they were going out for a special occasion; and that they had never observed any untoward behaviour by the accused towards any of the children including JPP. The mother of the family observed that the accused appeared to have a slight favouritism towards JPP when he was a young boy but she accepted that this was probably a feature of JPP’s outgoing and likeable personality.
The prosecution called police officer Worden who is the person who first took a complaint by telephone in 2007. At the time she was working for the paedophile task force and received a phone call from JPP. She wrote a brief police incident report and referred the matter to Victor Harbor detectives for investigation. The relevance of her evidence was that she noted in her summary document the suggestion from JPP that there had been a number of episodes at the Higgins Street property. During his evidence JPP did not claim to have any specific memory of any episodes happening at Higgins Street although he suggested that there must have been some because of his attitude and reaction to the episodes at Coleman Avenue.
The final police witness was Detective Brevet Sergeant Johnson who interviewed JPP, the brother BP and the accused. He confirmed that he interviewed the accused and that the accused answered his questions and denied the offences.
I do not intend to go through all of the issues that were raised by defence counsel during cross examination and final submissions. Some of the more significant matters are:-
1.The age of the allegations and the prejudice to the accused caused by this delay. It was pointed out that it becomes impossible after a substantial delay such as is present here, for an accused person to do anything more than simply deny the occurrence. The complaint itself has become vague after this many years and the lack of detail is itself an impediment to thorough cross examination and scrutiny about the veracity of the story being told. In addition, the accused loses the opportunity to recall the relevant occasions in any detail and challenge the complainant about discrepancies. I remind myself that the prejudice caused by a lengthy delay such as this is substantial.
2.There was no suggestion of the accused ever having threatened JPP or pressured him not to tell anyone. The delay is therefore unexplained.
3.JPP has given some inconsistent accounts about the number of occasions that he says occurred both at the Higgins Street property and at Coleman Avenue.
4.JPP has carried on an appropriate relationship with his uncle for all of the years since then without ever actively confronting him nor even avoiding social contact with him through the family. Although not determinative of any issue by itself, it is said to be inconsistent with behaviour that might be expected from someone in JPP’s position.
5.The allegations have come to light following difficulties that JPP had in his own life including the commission of dishonesty offences whilst working for an employer and arose out of counselling that he was having with the counsellor through the family’s church.
Similar observations were made by defence counsel in relation to the evidence of BP concerning the uncharged act at the Higgins Street property. That allegation is about 20 years old and only came to light after the allegations were raised by JPP.
The prosecutor fairly conceded that its case is dependent upon an acceptance of the evidence of JPP and to a lesser extent BP, and a rejection of the evidence of the accused.
The accused gave evidence and spoke of his recollections of his relationship with his brother and his brother’s family. He conceded that he stayed at his brother’s home at Victor Harbor at various addresses during the late 1980’s and early 1990’s. He denied any inappropriate behaviour and denied the specific allegations that were put to him during the record of interview and again during cross examination. He spoke about the family contact over the years and how it has changed not because of any troubles or issues between himself and JPP but because of everyone’s changing lives and family situations. I received into evidence photographs from the accused’s wedding in 2002 at which JPP was a guest along with all the other members of that family.
In a similar fashion to what I have already observed about JPP and BP, the accused gave evidence in a straightforward, frank and open manner. There was nothing that I detected about his presentation, nor about the detail of his evidence which suggested any dishonesty or unreliability on his part. He was not evasive and his answers were appropriate in relation to each subject he was questioned about. He did not claim to have a perfect memory of all of the occasions that he visited the family home but was strong in his denial of this alleged inappropriate behaviour.
It was appropriately conceded by the prosecutor at the end of the matter that she could not point to any particular feature of the accused’s evidence which could properly be viewed as damaging his credibility.
I have carefully reviewed all of the evidence and taken account of the arguments that have been put to me by both counsel. I accept that JPP genuinely believes that each of the episodes forming the subject of counts 1 and 2 took place as he described. I hold the same view in relation to the evidence of BP about the claimed uncharged act at the Higgins Street property.
However, I also accept that the accused has a similar genuine belief about his innocence and the fact that he never performed against his nephew JPP any inappropriate conduct either of the kind alleged, or at all. His account may well be true. It is at least a reasonable possibility. I do not reject the accused’s denials, and I do not accept JPP’s evidence beyond reasonable doubt.
In light of these conclusions, I am unable to say that the charges have been proved beyond reasonable doubt.
It is therefore my duty in respect of both count 1 and count 2 to find the accused not guilty.