R v POLLITT - [2010] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POLLITT
[2010] SASC 110
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Vanstone)
23 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION
Petition for mercy referred by the Honourable the Attorney-General - petitioner stood trial and was convicted for attempted abduction with intent to have sexual intercourse and indecent behaviour - upon appeal the attempted abduction conviction was quashed but the appeal against the indecent behaviour conviction was dismissed - upon retrial for attempted abduction the petitioner was acquitted - additional material as to the credibility of the complainant was presented both at second trial and in the petition.
Held: upon the basis of all material now available a jury must have acquitted the petitioner of indecent behaviour - conviction quashed and acquittal substituted.
Criminal Law Consolidation Act 1935 s 369(a), referred to.

R v POLLITT
[2010] SASC 110
Court of Criminal Appeal: Doyle CJ, Sulan and Vanstone JJ

DOYLE CJ: I agree with the reasons given by Vanstone J for the orders that the Court made at the hearing of the reference by the Attorney-General.
SULAN J: I agree with the reasons of Vanstone J.
VANSTONE J: The Court has before it a petition for mercy addressed to the Governor and referred by the Honourable the Attorney-General to this Court pursuant to s 369(a) Criminal Law Consolidation Act 1935. It concerns the petitioner’s conviction in 2006 for indecent behaviour. It is suggested that new material has come to light since the time of the petitioner’s conviction in the District Court and subsequent appeal against that conviction, which material casts doubt on the credibility of the complainant. On 17 March 2010 the Full Court, sitting as the Court of Criminal Appeal, heard argument as in the case of an appeal. At the conclusion of the argument the Court quashed the petitioner’s conviction for indecent behaviour and substituted an acquittal. The Court indicated that reasons would be later provided.
The first trial and appeal
In 2006 the petitioner stood trial in the District Court before judge and jury for attempted abduction with intent to have sexual intercourse and indecent behaviour. He was convicted by unanimous verdicts of the jury for both counts. In essence the prosecution case was that, while driving through Greenock on his way to work one morning, the petitioner stopped at a bus stop to offer the complainant, a schoolgirl, a ride. Upon her refusal, he left his vehicle, approached her and became insistent. She threatened him. He then exposed himself to her. He then continued on his journey.
In 2007 his appeal to the Court of Criminal Appeal was heard. The principal ground argued was that the verdicts were unsafe by reason of their inconsistency with the evidence of one of the prosecution witnesses, Mr Williams. Mr Williams travelled the same road that morning and noticed both the petitioner and the complainant. It was argued that during the limited time that the petitioner was out of Mr Williams’ sight, the offences could not have taken place. I shall return to the evidence that Mr Williams gave. The appeal was upheld insofar as it related to count 1, attempted abduction. It was upheld not on any ground of unreasonableness, but on the basis that the directions given the jury as to the element of intention to have sexual intercourse were inadequate. Two members of the Court joined in quashing the conviction and ordering a retrial on that count. The other found that there was no sufficient evidence of intention to have sexual intercourse and would have substituted an acquittal. All members of the Bench dismissed the appeal insofar as it related to count 2, indecent behaviour. The Court rejected the appellant’s central contention that Mr Williams’ evidence rendered both convictions unsafe.
The second trial
In 2008 the charge of attempted abduction was retried. This time the petitioner elected for trial by judge alone. The trial proceeded before Judge Nicholson in the District Court. On this occasion, the petitioner was represented by Mr Hegarty, who also appeared for him in this Court. Again there was a sustained attack on the evidence of the complainant by counsel for the petitioner. By now, additional material of a nature discreditable to her was in counsel’s hands and was put to her in cross-examination. Again, Mr Williams gave evidence.
The judge acquitted the petitioner of the charge. He said that, having reflected on the complainant’s evidence and on the accused’s record of interview (in which he vehemently denied any offence, or even stopping at the bus stop) he could not be satisfied of the complainant’s truthfulness on the relevant standard. He referred to inaccuracies or inconsistencies in her evidence, particularly as to the clothes said to have been worn by her attacker. He referred to the fact that she had been untruthful on previous occasions. She had previously admitted perpetrating a bomb hoax at a high school attended by a former boyfriend, several years earlier. In this trial she also admitted lying to another former boyfriend, Mr R, to the effect she had been brutally raped as a child. She had also lied to him early in their relationship, asserting that she was 16 years of age, when she was in fact younger. She admitted having been cautioned by police in 2003 in relation to offences of unlawful possession and larceny by a servant. The complainant acknowledged having experienced repeated dreams over a number of years about being sexually abused and agreed that this was an issue which caused her anxiety.
By the time of the second trial the complainant had ceased seeing Mr R, who had been her boyfriend at the time of the alleged incident. He gave evidence at both trials. At the second trial he told the judge that one of the problems which brought the relationship to an end was the complainant’s “compulsive lying”. Against all that evidence, the judge observed that in his interview with the police the petitioner gave the appearance of being genuinely surprised when the allegations were explained to him.
I pause to say that the importance of what occurred at the second trial lies in the new material there presented, rather than in the views expressed by the trial judge. Strictly, the judge’s observations and conclusions are, in this Court, in the nature of hearsay. Of course, what occurred in the second trial is of significance as a matter of history.
Additional material
Before this Court a little more material going to the complainant’s psychological state was presented. No application was made to cross-examine on this material.
The new material to which I refer comprised a letter, written on 16 July 2008, from Dr D Gillatt, general practitioner, referring the complainant to a psychologist, Ms C Peters. It is apparent that Dr Gillatt saw the complainant in the aftermath of the engagement of Mr R to the complainant being broken off. It appears from the letter that Mr R had found out from the complainant’s mother that the assertion to him over the last six and a half years that she had been “brutally raped when she was a child” was a lie. Dr Gillatt recorded that the complainant admitted having gone on to lie about other things to Mr R in an effort to cover up the original lie. She recorded that the complainant implied that she had been struggling with this problem for a long time and had felt guilty and depressed. The complainant admitted to intermittent heavy use of ecstasy and methylamphetamine. The purpose of the referral was said to relate to “depression, relationship issues, substance abuse and possible compulsive lying”. Dr Gillatt sought Ms Peters’ assessment and advice regarding management.
Also provided to the Court was a document headed “Mental Health Assessment and Plan”, apparently filled out by Dr Gillatt in consultation with the complainant. It gave an assessment of “depression” at a score of 31, which was said to be “extremely severe”.
Ms Peters wrote back to Dr Gillatt on 23 July 2008. This letter too, is part of the new material. Her letter recorded that she had seen the complainant once. She noted a history from the complainant of “almost daily, intense and vivid dreams of being sexually assaulted by a man known to her”, precipitating the lie to Mr R in relation to having been raped. She went on to say that the complainant had told her that the relationship with Mr R was now irretrievable and that she believed he was responsible for “slashing her tyres last week”. She also believed him to be the source of untrue rumours which had been spread about her. Ms Peters observed that the complainant’s description of such dreams in terms of frequency, intensity and duration, without there being any actual basis, was outside her previous experience. She said: “I also felt there was something about [the complainant]’s stories that didn’t quite fit together for me”. There appeared to be some doubt in Ms Peters’ mind as to whether the complainant would attend for a follow up appointment.
In addition to these documents, evidence from the second trial was placed before the Court. I have also had regard to the evidence at the first trial.
Re-evaluation of the case
I summarise some of the evidence comprising the prosecution case.
At the time of the alleged incident the complainant was 16 years of age and lived at Tanunda. She attended school in that area. On school days her boyfriend, Mr R, generally dropped her at a bus stop on his way to work, at about a quarter past seven in the morning. The bus would usually arrive at about eight o’clock. The bus stop was on a main street of Greenock. Also at that position was an information bay. It was a prominent spot. The complainant’s evidence was that on this occasion she was by herself at the bus stop when she saw a man approaching in his vehicle. She had seen the same vehicle previously on quite a number of days. On most of those days the man had waved to her and to any other students who were at the bus stop. She said that the students were accustomed to turn away rather than wave back to him. The complainant said she found his habit to be “creepy”.
The complainant said that on this occasion the man stopped his car, wound down the passenger window, leaned over and offered to take the complainant wherever she wanted to go. She declined that invitation. She said he then repeated it, more aggressively. She said eventually he got out of the car and told her to get into it. The complainant remained seated at the bus stop. The man walked around the back of the car, stood about a metre or so away from her, undid the belt of his trousers and exposed himself. She said that he also went to grab her, but instead had grabbed her school bag, which he swung around and then put near his car. She claimed to have removed scissors from her bag a little earlier (fearing trouble) and to have placed them in her pocket. When he came towards her she said she pulled out the scissors and said to him: “Fuck off, or I’ll fucking stab you”. At the same time she took a step towards him, as if to demonstrate her conviction. At that, he put his penis away, did up his belt and got back into the car. As he was getting back into his car, the complainant said that the man told her “I’ll be back to get you, you little slut”.
As he drove off she sent an SMS text message to Mr R. Her evidence was that she was not able to make outgoing calls on her mobile telephone. The time of the text message was established as 7.32am. The words of it were proved to be:
This bloke tried 2 get md in his car. I am so scared bade [or babe] his numbaplate is SNZ684 ring me!! [errors in the original]
Mr R then telephoned her and told her to ring the police. She telephoned the police from an adjacent telephone booth. The police attended soon afterwards.
The complainant described the man as having been wearing the sort of clothes which winery workers wear, including a fluoro coloured top, perhaps yellow, and navy “down the bottom”. She was certain that he was wearing a belt.
The police were able to locate the driver of the motor vehicle by means of the registration number. It was the petitioner’s motor vehicle. He was located at his workplace within a short time and was interviewed at 10.53 on that same morning. At the time of his arrest he was wearing trousers with no belt and was not wearing anything resembling a fluoro safety vest. The evidence was that tests on the complainant’s school bag failed to isolate any DNA consistent with having come from the petitioner. In his interview the petitioner acknowledged being in his car at the relevant time, on his way to work. He denied having seen a girl at the bus stop. He denied stopping his car at or near the bus stop, or indeed at all, on his way to work. During his interview he repeatedly asked who was making the allegations. It reads as if he did not comprehend that it might have been the complainant herself.
I turn to the evidence of Mr Williams. The judge who heard the second trial described his evidence as being given “in a very careful and thoughtful manner”. The judge described Mr Williams as a man of regular habits and as a person who was “doing his best to assist the Court”. My reading of Mr Williams’ evidence supports those observations. I would describe the evidence as impressive. Mr Williams did not know the petitioner. He knew the petitioner’s car by sight, as apparently both men would proceed to work at much the same time each morning and they would often see each others’ cars along their respective routes.
On this morning, Mr Williams drove his VW Kombi van on his usual route. He drove it slowly from his home to Koncke Street and proceeded to the intersection of the Adelaide/Kapunda road with Koncke Street. For traffic travelling along Koncke Street a stop sign governed the intersection. To the driver’s left is a Morton Bay fig tree which impedes vision. Mr Williams said he stopped at the stop sign and “nosed out onto the roadway” to get a clear view. He saw a vehicle coming from his left – being the petitioner’s car – but, judging that he could clear the intersection in front of that car, he moved out to cross the Adelaide/Kapunda road. On the other side of Koncke Street, he said the road becomes Murray Street. Mr Williams said he travelled past an hotel and the post office and then past the bus stop at which the complainant was waiting. Mr Williams saw her, as he had on other days, and described her in terms sufficient to make the link with her. I might say that she, too, was familiar with his van and saw it on this morning. He proceeded along Murray Street towards the outskirts of the town. Mr Williams described how, at a position close to the beginning of the 100 kilometre per hour zone, he was passed by the petitioner’s vehicle, travelling quite quickly. He had not noticed that vehicle between times.
Mr Williams described in some detail his habit of warming up his van in his driveway prior to undertaking the journey to work and the careful progression of speeds to which he graduated along the route to the vicinity of the 100 kilometre per hour sign. He was anxious not to over-extend the engine. Mr Williams estimated that the distance from the Koncke Street stop sign to the 100 kilometre per hour sign was perhaps two kilometres. However, a police officer gave evidence that the distance from the bus stop to a “Welcome to Greenock” sign was 1180 metres. There was, formerly, a 100 kilometre per hour speed advisory sign, at a point 1370 metres from the intersection. Mr Williams’ evidence was that the petitioner’s overtaking manoeuvre occurred approximately 50 to 100 metres after the “Welcome to Greenock” sign and before the 100 kilometre per hour sign.
Because Mr Williams’ speed was slow initially, and steadily building to about 80 kilometres per hour, the time he would have taken to have covered the distance from the intersection to the point at which he was overtaken cannot be precisely established. However, assuming an average speed of approximately 50 kilometres per hour, it would have taken him about one and a half minutes to cover 1350 metres. If it were assumed that the petitioner had stopped at the bus stop, and then travelled at an average speed of 80 kilometres per hour from the time he left the bus stop to the time of overtaking Mr Williams (which he plainly could not have achieved) then it would have taken him one minute to have travelled the same distance. That would allow only 30 seconds for the petitioner to have turned left into Murray Street, slowed and stopped his vehicle, spoken with the complainant, alighted and approached her, undressed and exposed himself, moved her bag and resumed his journey. If Mr Williams’ average speed is taken to be a little lower (say 40 kilometres per hour) then the time available to the petitioner to commit the offence is still only about one minute; but again, on the evidence it is all but impossible that the petitioner could have averaged 80 kilometres per hour from the time he left the bus stop.
Of course these calculations assume the accuracy of Mr Williams’ account. For these reasons that is easy to do. I have mentioned that the complainant saw him on this morning, prior to the incident. The petitioner, too, saw him. He said in the first trial that he slowed his own car to allow Mr Williams to cross the Koncke Street intersection before himself turning left. The petitioner also said he passed Mr Williams on the outskirts of Greenock, having been held up by him up to then. Then, the time of the complainant’s SMS message fits very well with Mr Williams’ time estimates. Finally, Mr Williams was located and interviewed within 24 hours of the incident. The journey would have been fresh in his mind. I have already cited the judge’s description of his evidence and my own reading of it. The evidence has the advantage of relying for its accuracy, not on estimates of the time at which an event happened, but on a sequence of events and a well travelled route.
I would add to the matters already mentioned what I see as some interesting features inherent in the complainant’s account which resonate with the suggestion of psychological challenges facing her. To me, her account of secreting the scissors and then advancing on the assailant with them is questionable. It paints her in an heroic light, attributing to her aggression beyond what might be expected. The wording of the SMS message and the fact that the complainant chose to contact her boyfriend before seeking help elsewhere is noteworthy. The idea of a man exposing himself in the main street of Greenock, where he would likely be recognised, at 7.30am after a failed attempt to lure her into his car also raises a question. No doubt offences such as those alleged are often accompanied by curious features. It is the combined force of all the material before this Court which has weighed with me.
Mr Williams’ evidence calls for greater attention in light of the new material bearing on the complainant’s credibility available since the first trial.
Conclusion
In my mind the substantial new material presented raises real questions as to the complainant’s truthfulness. The lie about having been brutally raped by an older man, sustained over a number of years, is very destructive of her credibility. Knowing of that lie and the background of psychological disturbance experienced by the complainant, a tribunal of fact would look for support of her allegations. In this case there is no support. Indeed, as seen, a number of items of evidence tell against the genuineness of the allegations. Having regard to all the material to which I have made reference, I consider that a jury, acting reasonably, must have had a reasonable doubt that the petitioner stopped his car anywhere near the bus stop, or at all, on his way to work this day. For this reason the conviction had to be set aside. I would go so far as to express the view that it is likely the petitioner did not and that he was innocent. For these reasons a verdict of acquittal was appropriate.

I make one further observation about the facts of this matter and it might be relevant to the original jury verdicts. In his evidence at the first trial the petitioner denied having ever waved to the complainant, or to other school children waiting at the bus stop. In addition, he denied having seen the complainant on this day. I have already mentioned that the complainant described his habit of waving at the school children at the bus stop as “creepy”. She said that the children were accustomed to turning away at his approach. I read the petitioner’s evidence on this point as being rather defensive. Also, it is almost inconceivable that at this relatively early hour of the morning he would not have noticed a girl, alone, at the bus stop. For his part, Mr Williams was quite forthright in saying that he saw her. In my view, the complainant’s evidence of having seen the petitioner on a number of previous occasions and of his having waved to her and to others there, carried with it a certain conviction. If the petitioner had in fact behaved in that way on this and previous occasions and falsely denied it to the jury, then it is very likely that the jury would have recognised his untruthfulness. I do not imply that there is anything sinister in behaviour of that sort, particularly in a country town; but it may be that therein lay the seeds of a false accusation and the jury’s appreciation of a false denial.
These are my reasons for joining in the orders of the Court made on 17 March 2010 quashing the petitioner’s conviction for indecent behaviour and substituting a verdict of acquittal.