R v Pech - [2009] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PECH
Criminal Trial by Judge Alone
[2009] SADC 146
Reasons for the Verdicts of Her Honour Judge Davey
17 December 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with two counts of indecent assault contrary to S56 of the Criminal Law Consolidation Act 1935 (SA) and seven counts of unlawful sexual intercourse contrary to S49(5) of the Criminal Law Consolidation Act 1935 (SA) - trial by Judge alone - verdicts - not guilty to all counts
Criminal Law Consolidation Act 1935 (SA) s49(5); Criminal Law Consolidation Act 1935 (SA) s56; Juries Act 1927 (SA) s7, referred to.

R v PECH
[2009] SADC 146

The accused in this matter, Leonie Beverley Pech, is charged with two counts of indecent assault and seven counts of unlawful sexual intercourse. She elected for a trial without jury.
The complainant in this case is BPC who was, at the time of the various alleged offences, a person under the age of 18 years. The accused was, at all relevant times, the teacher of the complainant. The offences are alleged to have occurred at various places and during the period between 1 March 1994 and 22 December 1996. The charges concern two separate offences of kissing the complainant (the charges of indecent assault) six counts of unlawful sexual intercourse by inserting a finger into the complainant’s vagina and one count alleging an act of cunnilingus.
During the relevant period the accused was a teacher at, and the complainant a pupil at, Modbury High School. Ms Pech taught music and the undisputed evidence is that she was a dedicated, highly regarded, excellent teacher. Ms Pech first met the complainant when she was a student in her Year 8 music class. It seems beyond doubt that the complainant was and is an intelligent and musically talented person. With the encouragement of Ms Pech, the complainant took up studies in the clarinet and continued an intensive involvement in music studies culminating in the undertaking of two music subjects in Year 12 and achieving such a high standard that she was accepted into the University of Adelaide Bachelor of Music course.
There are no eye witness accounts of any sexual contact between Ms Pech and the complainant other than the evidence of Ms Leisa Aitken (now De Silva) that on one occasion she observed (fleetingly) a person she believed to be the complainant sitting on Ms Pech’s knee at Ms Pech’s office at the Modbury High School in the music suite. The person who Ms Aitken believed to be the complainant was sitting with her back to Ms Aitken who says she saw the two of them as she walked past Ms Pech’s office when the door was ajar. The complainant did not give evidence in relation to this particular incident and the accused denied the incident. As I observed during submissions, the evidence of Ms Aitken in this regard is the high point of the evidence supporting the evidence of the complainant with respect to the alleged sexual contact between her and Ms Pech.
There were no admissions made by Ms Pech. When Ms Pech was spoken to by Police on 21 September 2006 she declined to answer Detective Mosheev’s questions. I note that this was a right accorded by law to Ms Pech and I draw no adverse inference from her decision not to answer questions at that time.
As the learned prosecutor correctly and fairly stated, the prosecution case relies on my acceptance that the complainant’s evidence is both honest and reliable in respect of each of the charges. In effect, I must be satisfied beyond reasonable doubt of the honesty and reliability of the complainant.
In this case there is no evidence of recent complaint although I observe that failure to or delay of a complaint may be explicable for a number of valid reasons.
I note that Ms Pech gave evidence and was cross examined. I note that she did not have to adopt that course. I also note that this trial is not a contest in any way between the evidence of the complainant and that of the accused. The accused need prove nothing. The onus of proof remains on the Crown to prove the case beyond reasonable doubt.
Because of the decision that I have reached as to the verdicts I do not propose to analyse all of the evidence in this judgment in great detail, but I make the following observations about the evidence and issues which arose at the trial:
1The events in question occurred between 10 to 15 years ago. It was apparent that almost every witness had difficulty either recollecting events at all or recollecting details; sometimes important details. In considering the evidence, I have constantly been aware of this difficulty and I expressly indicate that I have had regard to the forensic disadvantage suffered by the defence in respect of defending this case. Whilst there is no onus upon the defence, I note that every effort has been made to adduce evidence in support of the defence case and where possible, to negative things asserted by the prosecution. However, it has been impossible due to the lapse of time and imprecision as to the date of offending for much supporting evidence to be adduced;
2After the time of the alleged offending, on three separate occasions, the complainant denied to Police Officers that she had been sexually assaulted or involved in any sexual relationship with the accused. Moreover, she told a close friend, Elise Ottens, (who was so close that she was a bridesmaid at her first wedding) that the alleged conduct did not occur;
3There are a number of puzzling aspects to the complainant’s evidence. At times the complainant appeared to have a detailed memory of events and then, in respect of other events within a similar time frame, had either no memory or very little memory at all. A particular example of this are the letters P14 and P15 which were undoubtedly written by the complainant. She denied any knowledge of these letters although it was conceded that they were written by her. Each of these letters was written to Ms Vicki Butler who had worked as a teacher at Modbury High School. The complainant was not particularly close to Ms Butler as a student nor had she had much contact with her, yet the letters are deeply personal and emotional. The contents of the letters include extremely private matters. I can understand how one might forget that one had written letters of this nature some 10 or more years hence; what I find extremely puzzling is that even after reading through these letters and seeing them in more recent times, the complainant says that she has absolutely no recollection of writing the letters or anything about the matters contained therein. Another aspect arising from P14 and P15 is the complainant’s statement that she lied in both of those letters when she wrote that she had used or had an addiction to cocaine. Given the context and content of the letters, a false assertion in that regard is extremely odd. I found the complainant’s explanations for the reason why this may have been written to be unconvincing.
4It is apparent that during the relevant years, the complainant suffered distress and trauma arising from other events namely the termination of a pregnancy in 1993 when she was 14 years old (which she told Ms Pech about) and an alleged rape perpetrated upon her in May 1994. The matter of the alleged rape is significant in respect of the interactions between the accused and the complainant, but it also raises issues about the complainant’s credibility.
5The complainant asserted that she was raped after her work at McDonalds at Tea Tree Plaza in May 1994. The rape allegedly occurred in the evening after the premises had closed and when she was waiting to be collected at a rear loading bay area. The complainant alleges that a person in a car, a stranger, approached her offering her a lift and that once she had entered the car that she was raped and that later the offender dropped her off at or near her grandparents’ home where she was living at the time.
6The complainant told Ms Pech of this allegation of rape shortly after and Ms Pech contacted the Police who attended at Modbury High School and spoke to the complainant. The complainant told the Police she did not want to pursue the matter and signed a document to that effect. That of itself is a little unusual given the circumstances of the alleged rape, namely that it allegedly occurred by a stranger in particularly frightening circumstances. However there are a number of aspects of the matter which cause me to question the complainant’s reliability about that incident: her description of where the rape occurred (at the rear of the McDonalds as opposed to an earlier statement of moving away from that area to another area where the rape occurred); whether she was dragged into the back seat of the car or not (that was earlier asserted, but in her evidence before me she said that she was raped in the front seat) and that she steadfastly maintained that the offender was unknown to her yet her mother, Ms Rauch, gave evidence that her daughter told her that she was raped by the Manager of McDonalds. It may be explicable and even understandable that a young girl may not wish to reveal that the offender was known to her at the time however I am troubled by the possibility that the complainant has maintained that untruthful position even as she gave evidence before me;
7Part of the prosecution case was that the accused gave the complainant a pendant; being half of a circular disc inscribed “best friends” and the other half of the disc was alleged to be worn by Ms Pech. This evidence was led to support the assertion that the relationship was very close, even intimate. The complainant produced that disc pendant to the Police (although not at the time of first making the allegations) and it was tendered. (P12) Ms Aitken gave evidence that on a day at school when she was in Year 12 (some 12 or 13 years ago) she can recall an occasion where she noticed that the complainant was wearing a half moon pendant and also that the accused was wearing a half moon pendant, ie the inference being that it was the other half. There is no other evidence from any other source in this regard. I am particularly surprised as to the lack of evidence in respect of the existence of and wearing of the pendant by the complainant (which she said occurred over many months or longer) by her mother, father or her sister. I also note the evidence led by the defence, largely comprising of photographs, of a pendant worn by Ms Pech at the relevant times which, on close examination, is plainly a half “Yin Yang” symbol. Whatever the position with respect to the complainant and a pendant of this nature, there seems to be positive evidence that whilst the accused wore a pendant of a similar look, it was indeed different and not the matching half of the pendant allegedly worn by the complainant.
8The complainant gave evidence that at the height of the physical relationship between her and the accused, that she would go to the accused’s home 3 or 4 times a week and would often remain at Ms Pech’s home for dinner and often sexual encounters (on school nights) and she would generally stay until 11 pm or later. This was denied by the accused. The complainant’s evidence in this regard is inconsistent with the evidence of her mother and sister. Both the complainant’s mother and sister said that she would have stayed after school for practice on a number of occasions but the general tenor of their evidence was that the complainant would be regularly home for dinner and not generally out late on school nights.
9There seems no doubt that the accused encouraged or caused the complainant to have contact with Police officers and a psychotherapist during the time when the alleged sexual relationship was on foot or shortly thereafter. The contact with Police officers was when Ms Pech contacted Police after learning of the rape alleged by the complainant. As the complainant deposed, Ms Pech explained to her that she had an obligation to contact the Police about such a matter. According to the complainant, by this time Ms Pech had kissed her on at least 7 or 8 occasions and the complainant described a memory of thinking to herself, at the time that the Police were present, about that sexual contact. (This is an example of memory that seems at odds with other evidence of lack of memory.) Additionally, it is not disputed that the accused encouraged and paid for the complainant to have psychotherapy sessions with Ms Adie Jeffries who was a person recommended to Ms Pech for that purpose by Ms Butler. I think that there is force in the submission made by the defence that encouragement of the complainant to attend at a psychotherapist is not consistent with the secretive behaviour one would expect if there were an illicit sexual relationship with a minor.
At first blush, the complainant presented as a credible, reliable witness. As the cross examination of the complainant proceeded, the confidence that I had in her credibility and reliability subsided. Nothing that I have heard since sufficiently supports or bolsters her account. I do not find that she was untruthful about these allegations; my view is that I do not know what is the truth of the matter.
Whilst I have made a number of observations about the complainant’s account, I observe that the relationship between Ms Pech and the complainant was unusually close and, in my view, extended beyond the normal or usual student/teacher relationship. In forming that view, I have had regard to the particular nature of music tuition and rehearsal and the particular needs of the complainant, especially in Year 12. It seems that the complainant was an emotionally needy young woman and the evidence (including that of the accused) shows that she enjoyed spending more time with Ms Pech than other students did. The evidence reveals that the complainant was often given more attention than some other students (which may have been consistent with her prodigious talent and the demands placed upon Ms Pech for assistance). I think that one thing that P14 and P15 reveals is a seeking by the complainant of an adult confidante which some might think was unusual or uncommon for a girl of her age. Clearly the complainant did spend time at the accused’s Payneham unit and they maintained contact after the complainant finished Year 12. They had a close relationship but I do not know whether it was a sexual relationship.
I have considered each of the charges separately and I have had regard to the evidence of uncharged alleged sexual behaviour for the purpose of assessing the nature and extent of the alleged sexual relationship and to put the allegations into context.
The accused gave evidence and was thoroughly and competently cross examined. I do not find that she was untruthful or unreliable. I note her good character and that is relevant not only to her credibility but also to the likelihood of her committing these offences.
I am unable to reach a view as to where the truth lies. In the circumstances I must find that the prosecution has not proved the charges beyond reasonable doubt and I find Leonie Beverley Pech not guilty of the offences charged.