R v Pollitt - [2008] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v POLLITT
Criminal Trial by Judge Alone
[2008] SADC 171
Reasons for the Verdict of His Honour Judge Nicholson
15 December 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with one count of attempted abduction - trial by judge alone - verdict, not guilty.
Criminal Law Consolidation Act 1935 ss5, 59(a), 270A; Juries Act 1927 s7; Evidence Act 1929 s13, referred to.
R v Hussey (1980) 23 SASR 178; R v Pollitt (2007) SASC 103 at [36]-[43] and [107]-[108], considered.

R v POLLITT
[2008] SADC 171
Introduction

The accused was charged on an Information dated 24 October 2005 with the offence of attempted abduction contrary to ss59(a)[1] and 270A of the Criminal Law Consolidation Act 1935 (“CLCA”).
[1] The Information refers to s59A but there is no dispute that the charge was laid pursuant to s59(a).
The accused pleaded not guilty to the charge. He made a late election pursuant to s7 of the Juries Act 1927 to be tried by judge alone. The accused’s application to dispense with the rules of court requiring a timely election was not opposed by the Director of Public Prosecutions and was granted by me on the morning of the first day of the trial. Accordingly, I ordered that the trial proceed by judge alone.
The accused filed an application pursuant to rule 9 of the District Court (Criminal and Miscellaneous) Rules 1992. The accused sought orders excluding from the evidence proposed to be led by the Director, certain materials found by the police following a search of the accused’s residence on the day of arrest being the day the alleged offending conduct was said to have occurred. I made a ruling excluding some of this material but insofar as the book “Snatching Ginny” (exhibit P13) was concerned, I refused the accused’s application. In the circumstances, I do not propose to provide my reasons for this ruling in this judgment but will do so, in due course, if it becomes necessary.
The Crown case in essence is that, at about 7:30am on 29 June 2005, the complainant F, a 16-year-old schoolgirl, was alone at the bus stop in the township of Greenock, waiting for the school bus to take her to school. It is alleged that the accused, who was driving to work, stopped his car adjacent to the bus stop and by his words and conduct attempted to take the complainant away in his car. When she refused, the accused, who had got out of his car, is said to have exposed himself to the complainant after which he returned to his car and drove off.
As I have said, the accused was charged with the offence of attempted abduction. The particulars of that charge, as set out in the Information, are as follows:
[The accused], on the 29^th day of June 2005, at Greenock, attempted to take [F] away by force with intent to have sexual intercourse with her.
The accused has put in issue all of the elements of this alleged offence. However, in his defence at trial he focused almost entirely on his denial that the events, asserted by the Crown, occurred at all. Notwithstanding that the accused bears no onus of proof in this (or any other) respect, the accused presented a case at trial to the effect that it was close to, if not, impossible for the events to have occurred in the manner described by the complainant and that the complainant should not be accepted as a witness of truth. The accused in his record of interview (exhibit P15) said that, on the morning in question, he left home at about 10 minutes past 7, drove through Greenock on his way to work and arrived at work at about 25 minutes to 8. He denied stopping at all.
Legal Considerations and General Directions
On the prosecution’s application, pursuant to s13 of the Evidence Act 1929, and with no opposition from the accused, I permitted the complainant to give her evidence behind a one-way screen so that she could not see the accused. The accused, both counsel and I could see the complainant. She also had the benefit of a court companion and the court was closed during her evidence. I remind myself that I am not to draw from the fact of these arrangements any inference adverse to the accused nor am I to allow these arrangements to influence the weight, if any, that I give to the evidence of the complainant.
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following.
(i)An accused person is presumed to be innocent of a charge unless and until guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof, beyond reasonable doubt, of each and every element of the offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
(iv)I have reminded myself of the normal directions given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this respect I note that the accused elected not to give evidence in this court; he remained silent. I remind myself of the following matters. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. The recurrent theme I must always bear in mind is that it is for the prosecution to prove its case beyond reasonable doubt. The accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
(v)Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charge beyond reasonable doubt. If I am unable to say where the truth lies in respect of the charge, then it necessarily means that the prosecution has failed.
I turn now to set out the basic elements of the offence charged, each of which elements the prosecution must prove beyond reasonable doubt. It is convenient first to focus on the elements which go to make up the offence of abduction and then to consider what amounts to an attempt to commit that offence.
To sustain a charge of actual abduction, the following elements would have to be proved:-
(i)At the time and place alleged, the culprit took away the complainant. For present purposes, it is sufficient to observe that to “take away” includes to remove the person from where that person is or wants to be.
(ii)The “taking away” must have been by force. Force ordinarily refers to some physical act directed against the person in furtherance of the taking away.
(iii)At the relevant time, the culprit had the intention, in doing what he did, to have sexual intercourse with the person. For this purpose “sexual intercourse” is as defined in s5 of the CLCA.
(iv)The culprit had no lawful excuse for his acts. On any analysis of the evidence in this case, the defence of lawful excuse cannot arise and I do not consider it, further in these reasons.
To establish an attempted abduction against the accused, the Crown must establish two elements, namely:-
(i)the existence of an intention on the part of the accused to commit the crime of abduction; and
(ii)an attempt on the part of the accused to execute that intention, that is, the doing by the accused of some voluntary and deliberate act immediately directed towards (and not merely remotely connected with) fulfilling that intention.
Expressing the concept in another fashion, attempted abduction is the taking of one or more steps towards, and with the express intention of abducting the person in question, which steps, had they not been interrupted or circumvented, would have resulted in the intended abduction.
In this respect, a distinction must be drawn between preparing to do something and attempting to do it. Not everything that a person does towards the fulfilment of some ultimate plan is necessarily an attempt to do it. An act necessary in law to constitute an attempt is complete if the accused does something which is a step towards the actual commission of a specific crime. This must be something which is immediately and not merely remotely connected with the commission of the crime, the doing of which cannot reasonably be regarded as having any purpose other than the commission of the specific crime in question.
In order to constitute an attempt there must be some real step taken towards the commission of the particular crime. A distinction is to be drawn between mere ultimate intention and preliminary preparation on the one hand and actually embarking upon the attempt on the other.
However, once the relevant action, combined with the intention, has proceeded far enough to amount to attempted abduction, it does not matter, in law, how it happened that the attempt failed. Once the action and the intention, so combined have gone far enough to amount to an attempt, the crime has been committed. The accused does not, for example, erase what he has already done by voluntarily desisting from going further, or by reason of the fact that the action of someone else may have prevented him from achieving his aim.
Civilian Witnesses Called by the Prosecution
The evidence of the complainant was to the following effect. In accordance with their usual practice, she was dropped off at the bus stop at about 7:15am on the morning in question by her boyfriend, R, on his way driving to work. She had to wait there for some time because her bus usually arrived at about 8:15am or later. She had her winter school uniform on. Whilst she was waiting, a man stopped his car on the verge of the road immediately adjacent to the bus stop in about the location of the police car shown in photographs 7 and 8 of exhibit P3. This man and his vehicle which was somewhat distinctive (see photographs 9 to 12 in exhibit P3) were, in a limited sense, familiar to the complainant because he had driven past the bus stop at about the same time on a significant number of previous school days. According to the complainant, he often would wave to her and other students who might be at the bus stop as he drove past.
However, on this occasion, the man stopped. He wound down the passenger window, leaned over and said something along the lines of “Get in the car, I’ll take you where you want to go” (T104). The complainant politely refused this invitation whereupon he repeated the invitation a number of times, each time using a more aggressive or more powerful tone of voice and, in effect, demanding that she get into the car. He got out of the car and, as he did so, the complainant took a pair of scissors (photograph 1 in P3) out of her bag and put them into her pocket. She was very upset; to use her words, “I freaked out at the time, I didn’t know what was, you know, what was going to happen”. At some point in the exchange, he used the words “Get in the fucking car” (T106). Whilst the complainant was not certain, she thought that it was at a time as or after he’d got out of the car that he said to her “Get in the fucking car”. Throughout all of this, the complainant remained sitting at the bus stop. When the man got out, he walked around the back of the car and stood beside the rear passenger door about a metre or a metre and a half away from the complainant and exposed himself, that is, to use the complainant’s words “He pulled out his penis” (T102-107).
The man at one stage moved in a way that caused the complainant to think that he intended to grab her. However, he, in fact, grabbed her school bag, swung it around without letting it go, and placed it near the back door of his car. She jumped up and moved to the left hand side of the bus stop seat. She said this (T108):
AI had my hands in my pockets with the scissors there and then he sort of come towards me and that’s when I pulled out my scissors and I said “Fuck off or I’ll fucking stab you” and [sic] sort of looked at me and [sic] took a step towards to sort of make it look like I was gonna do it.
QYou took a step towards him?
AYes.
QTo make it look like you were going to do it.
ATo make it look like I was serious and that’s, from what I can remember, that’s when he sort of put himself away and done up his belt and sort of gone and got in his car.
QWhen you say “put himself away”, what did he do?
APut his penis away.
The man then drove off. However, as he was getting back into his car, he said to the complainant words to the effect “I’ll be back to get you, you little slut”.
The complainant immediately sent a mobile phone text message to her boyfriend in the following terms:
This bloke tried 2 get md in his car. I am so scared bade [or babe] his numbaplate is SNZ 684 ring me!! (errors in the original)
I interpolate here that, on the day of the alleged incident, Senior Constable Alderson examined the complainant’s phone and R’s phone. His unchallenged evidence was to the effect that the message was sent and received some seconds after 7:32am on 29 June 2005 and that R’s phone on that day was accurately recording the time of day. The evidence permits a finding, not challenged by the defence, that this message or complaint was sent by the complainant shortly after 7.32am that morning.
On receipt of the message, R rang the complainant and told her to ring the police. She thereupon rang the Nuriootpa Police Station and told a person there about what had happened to her. She provided the registration number of the vehicle concerned and a description of it.
Other aspects of the complainant’s evidence of potential significance include the following:
(i) She described the clothes the man was wearing as “I’m pretty sure it could have been maybe navy down the bottom and then like a fluoro colour sort of on the top, maybe yellow”. At first, she said that the top was “like a high visibility jumper” similar to that which most winery workers wear in the Barossa. In cross-examination, she said that she wasn’t sure whether it was a jacket or a jumper, but whatever it was, it was a fluorescent type of yellow, “Definitely a yellow colour” (T129).
(ii)The complainant described the man as perhaps 60 years of age or so, not very tall, but taller than her with “Darkish colour hair, sort of scruffy” and possibly wearing a baseball cap.[2]
[2]    The accused had a baseball cap in his possession when arrested.
(iii)Ultimately, she said she did not remember whether or not, at the time he exposed himself, the man’s penis was erect. She said “I wasn’t really looking”. However, at one point in her cross-examination she said “from what I remember, I don’t think it was” (T125).
(iv)It is common ground that a Mr John Williams drove his Volkswagen Kombi van down Konke Street and across the intersection with the Kapunda/Adelaide road into Murray Street (the extension of Konke Street) a matter of seconds before the accused’s car turned left out of the Kapunda to Adelaide Road into Murray Street (see exhibit P2). Mr Williams said that as he pulled up at the stop sign at the bottom of Konke Street, adjacent to the Institute building, he looked left and saw a car which he later identified as the accused’s car and being a car that he had seen travelling through Greenock on a number of previous occasions when Mr Williams was travelling to work. Mr Williams, having observed the accused’s car, decided he could cross the intersection in safety and proceeded to do so. He did not see the accused’s car again until something like a kilometre or more on the other side of Greenock when he was overtaken at speed by the accused’s car. I will come back to Mr Williams’ evidence later in these reasons. However, the complainant also gave evidence of seeing both cars and was asked to estimate the length of time between when the Kombi van passed the bus stop and when the accused’s car, on the Crown case, followed but stopped at the bus stop. She said (T118):
I can’t give you an exact time, I’m sorry. It wasn’t very long at all; maybe within sort of – maybe 30 seconds to – don’t hold me to it – maybe 30 seconds to 45 seconds, something; it wasn’t very long.
(v)The complainant agreed in cross-examination that while the man was talking to her, she saw him undo his belt and unzip his pants. She could not describe the belt, but she did remember seeing a belt. She said that she could remember “he was sort of, like, doing up his belt as he was going to get back in his car” (T131).
(vi)The complainant said that she could not “exactly remember” the time it took between when the man’s car stopped and when he got back in the car and drove away. However, when pressed, she agreed with the cross-examiner that it would have been “around the time frame” of a minute or a minute and a half.
(vii)The complainant conceded in cross-examination that she had been untruthful and dishonest in the past.
(a)     Her relationship with her former boyfriend, R, started when she was about 13 or 14, but she told him, at the time of the commencement of their relationship, that she was 16. She agreed that this was not the truth.
(b)    She conceded in cross-examination that she had told R that she had been raped as a child and that this was not the truth.
(c)    She conceded in cross-examination that, in 2003 when she was 14 or so, she made a hoax telephone call to the college that her then boyfriend was attending asserting that there were three bombs in the school.
(d)    She admitted receiving a formal caution from the police in 2003 with reference to an allegation that she had committed the offence of unlawful possession. She also received a formal caution with respect to allegations that she had engaged in larceny by a servant in 2003. In re-examination, she said that she was not certain, now, whether these were two separate occurrences or just the one occurrence. However, she did recall an incident where she was found to be in possession of phone cards whilst working at a supermarket.
In cross-examination, the complainant was pressed with the assertion that she was a compulsive liar. She denied this. However, she agreed that she had seen counsellors for various reasons and, in particular, to assist with problems in her and R’s relationship. The issues that were discussed with the counsellors included the lies she had told about being raped (T143).

The complainant denied in cross-examination that her account of the man stopping the car and confronting her in the manner she had described was a figment of her imagination; as had been the story about her being raped as a child.
The first question before me is whether or not I am satisfied beyond reasonable doubt that the complainant is telling the truth. Clearly, her evidence is essential to the Crown case. Before considering this issue further, I need to identify the essential aspects of the evidence of the other witnesses.
The Crown next called, R, who at the time of the alleged incident was the complainant’s boyfriend. He said that he had dropped her at the bus stop at about 7:15am on the day in question, that she had sent him a text message about the incident about 20 minutes to half an hour later and that he thereupon rang her on her mobile phone and told her to telephone the police. When speaking to her on the telephone, she sounded upset and distressed. As far as R could recall, the timing device on his mobile telephone was accurate in its operation.
R confirmed that when he commenced the relationship with the complainant, she told him that she was 16 notwithstanding that she was only 14. He viewed the problems that arose in their relationship as arising, in part, from her pattern of lying. He said, “well, when someone tells you that many lies and you believe them, well, yeah, and it just sort of becomes like she was living another life nearly, a false life as well. So I just sort of double questioned a lot of things that ever happened between us.” (T154). He said that the complainant had told him that she had been raped by a 40-year-old male when she was 8 years old and that her family were very distressed by it. She told him not to speak to her mother about it because it would upset her too much. When ultimately he did approach the complainant’s mother about the matter, she told him that it never happened.
R also said that the complainant had spoken to him about bad dreams she experienced involving being raped when she was young. He agreed that at medical attendances with Dr Geyer and Dr Gillatt in July 2008 where he was present, there was discussion about the fact that the complainant had told lies.
The next witness called by the Crown was Mr Williams. He lived on the corner of Bevan and Konke Streets (exhibit P2). Mr Williams gave his evidence in a very careful and thoughtful manner. He clearly is a man of regular habits. I accept that he was doing his best to assist the court. He described quite entrenched workday morning habits and practices and I accept his evidence as being generally reliable in this respect.
Mr Williams said that he started work at 7:45am and therefore, on any given day, including the day in question, he left his home at about 7:30am, give or take a few minutes. He drove a 1976 Volkswagen Kombi van.
Mr Williams described how he had great pride in and took great care with his car. He allowed it plenty of time to warm up and drove to work very slowly for the first 10-15 minutes of the journey, gradually increasing speed as the journey proceeded and the engine warmed up. In essence, his evidence was to the effect that after leaving home on the day in question, he travelled down Konke Street, stopped at the Adelaide Kapunda Road intersection adjacent to the institute building, looked left and observed the accused’s car approaching the intersection, travelled across the intersection in front of the accused’s car and then continued along Murray Street (the extension of Konke Street) out of Greenock and on the way to Nuriootpa. He did not, in the rear vision mirror or otherwise, see the accused’s car again until he was overtaken at speed by it at a point in the vicinity of the Welcome to Greenock sign on the Greenock to Nuriootpa Road. Mr Williams provided estimates of the speeds he would have reached at various points during this journey.
At first, Mr Williams estimated that he was overtaken at a point about 2 kilometres from the intersection where he had first seen the accused’s vehicle that morning, that is, the intersection just before the bus stop where the complainant was sitting. He described the accused’s vehicle as going “quite fast” and that the overtaking seemed to be a dangerous manoeuvre because it occurred when the vehicles were approaching a corner and proximate to the crest of the hill. At this point, Mr Williams estimated himself to have been travelling at approximately 70 or 80 kilometres per hour (T163-165).
Later in his evidence, Mr Williams said that the overtaking manoeuvre occurred 100 metres or so after the welcome to Greenock sign (T171). He was cross-examined as to the basis of his estimate of 2 kilometres. I am satisfied that it was only his estimate and that the more useful and reliable evidence given by Mr Williams on this topic was his recollection that the overtaking manoeuvre occurred about (give or take) 100 metres past the Welcome to Greenock sign. It is common ground that the distance between the Konke Street corner and the Welcome to Greenock sign is approximately 1180 metres, that the distance between the corner and the bus stop is approximately 31.5 metres and that therefore the distance between the bus stop and the Welcome to Greenock sign is approximately 1148.50 – say 1150 – metres (see exhibit P16).
In cross-examination, counsel for the accused managed to persuade Mr Williams to agree that, on the day in question, he would have arrived at the intersection just before the bus stop at which the complainant was sitting between 7:31am and 7:33am. It is to be recalled that the two mobile phones indicate that the text message sent by the complainant to her boyfriend was sent some seconds after 7:32am. Notwithstanding that Mr Williams was prepared to agree to the proposition, I am unable to accept that he necessarily arrived at some time between 7:31am and 7:33am.
What one can be confident of is that the events Mr Williams described, from the leaving of his house to go to work to the point where he was overtaken near the Welcome to Greenock sign, all occurred within a space of a few minutes. However, Mr Williams said that he knew when it was time to leave for work because he would glance at the clock in his kitchen and would leave at about 7:30am. He would then start the Kombi and let it idle, warming up, whilst he fed the chooks, after which he would get in the Kombi and leave for work. There is no evidence as to the accuracy or otherwise of the clock or any other timepiece that Mr Williams may have looked at. There is therefore no basis upon which Mr Williams’ estimate of his time of leaving can be compared (with the level of precision relied on by counsel for the accused) with the time, recorded on the two mobile phones, of the sending and receipt of the text message.
The next witness called by the Crown was David Marshall, the accused’s employer. He produced the accused’s daily worksheet for 29 June 2005 which indicated a handwritten start time of 7:45am. However, he told the court that he remembered seeing the accused on that day driving the work truck, about 2½ kilometres from the workplace where the truck ordinarily was garaged, at about 7:40am. Mr Marshall agreed that, on this basis, the accused would need to have started work before 7:35am. Mr Marshall identified the time as 7:40am when he saw the accused by reference to the clock in his mother’s car. The distance between the bus stop in Greenock where the complainant was sitting and the accused’s workplace is such that it was simply not possible for him to have been at the bus stop at or about 7:30am and at work at 7:35am. A difficulty confronting the acceptance of Mr Marshall’s evidence at face value is that there is no evidence as to the accuracy or reliability of the clock in his mother’s car and the existence of the timesheet (exhibit P6) completed by the accused. I will say something more about this later in these reasons.
The Crown also called another employee of Mr Marshall’s, a Mr Daniel Staehr. He told the court that on 29 June 2005, he arrived at work at 7:16am. He said that he knew that was the time because he checked the time in order to fill in his work timesheet for the day. When he arrived at work, he saw the accused’s car parked in its usual place, although he did not see the accused at this time. At about 7:35am he left the yard for his first job of the day and as he left he saw the accused looking under the bonnet of the truck that the accused usually drove, apparently checking the oil and water. He said he was wearing a straw hat and not a baseball cap.
Police Witnesses called by the Crown
I have already dealt with the evidence of Senior Constable Alderson concerning the accuracy of the timing device on R’s mobile phone. The police also called Patrol Sergeant King. He attended at the bus stop where the complainant was waiting shortly after 7:40am and interviewed the complainant. He described her as being “quite distressed”; that she had been crying and was visibly upset.
Expert Evidence
Dr Julianne Henry was called by the Crown. Since July 2003, she has been employed as a forensic scientist within the biology section at Forensic Science, South Australia. She has significant expertise, arising from both her qualifications and her experience, in the analysis and the interpretation of DNA profiles. She conducted an analysis of DNA obtained from the handle of the complainant’s school bag and compared her findings with an analysis of DNA taken from the accused by way of a buccal swab. She was unable to say how many people had handled the bag but the profile obtained from DNA found on the handle indicated that there were at least three contributors and that the DNA was of both female and male origin. The accused was excluded, that is, was not one of those contributors. Dr Henry said that she couldn’t comment on whether the bag handle was a “good” site for the collection of DNA. She said that many variables contributed to such an issue, including the nature of the surface itself, how many times a person may have touched the surface, the length of time any such touch or handling occurred for, and the fact that different people have different capacities to leave DNA behind. Nevertheless, it is plain that the bag handle was able to give up DNA sufficient to indicate at least three persons had touched it, but none of those persons was the accused.
The Defence Case
The accused did not give evidence, but his record of interview was played during the prosecution case and the defence relied upon the content of that record of interview and the denials by the accused given during the interview.
The defence called one witness, Mr William Potts. Mr Potts is qualified in a number of areas including, for present purposes, mechanical engineering. Mr Potts provided a series of detailed calculations designed to assist the court in assessing the likelihood or otherwise that the accused could have been seen by Mr Williams at the corner immediately before the bus stop, could have stopped his car at the bus stop and engaged in the activities alleged by the complainant and still have been able to catch up and overtake Mr Williams shortly past the Welcome to Greenock sign, that is, approximately 1150 metres past the bus stop on the way to Tununda. Mr Pott’s evidence is set out in some detail in his report tendered as exhibits D19 and D20. He explained and amplified the material contained in the report during examination in chief and cross-examination.
It is unnecessary to provide a detailed summary of Mr Potts’ evidence. However, I will give some examples of the type of calculations he provided. For all of the calculations given during his evidence in chief, he assumed that Mr Williams drove at an average speed of 45 kilometres per hour over the distance from the stop sign at the institute corner (exhibit P2) to the point at which he was overtaken by the accused’s car. In this respect, Mr Potts provided calculations based on assumed distances to the point of overtaking of 1000 metres, 1100 metres, 1150 metres and 1250 metres respectively. He also assumed various periods of “time lag” between the two cars. In other words, for each calculation, he assumed that the accused’s car left the bus stop a different number of seconds after Mr Williams’ car had left the bus stop. The “time lag” chosen for each calculation was intended to take account of an assumed distance between the two cars at the time the accused reached the bus stop together with an assumed period of time for stoppage at the bus stop. By way of illustration, Mr Potts calculated that if Mr Williams’ average speed was 45 kilometres per hour and the time lag between the two cars leaving the bus stop was 30 seconds, the accused would only have been able to catch up to Mr Williams, so as to be in a position to overtake him at the 1000 metre mark, if he had achieved an average speed of 72 kilometres an hour.
During his oral evidence, Mr Potts made other calculations. Mr Potts calculated that if Mr Williams had averaged 40 kilometres per hour over an overtaking distance of 1000 metres, but with a time lag of 40 seconds, the accused’s car would also need to have averaged 72 kilometres per hour. If there had been a 50 second time lag, an average speed of 90 kilometres per hour would be required. However, over a distance of 1250 metres with a time lag of 40 seconds, an average speed of 62 kilometres per hour would be required; with a time lag of 50 seconds, an average speed of 72 kilometres per hour would be required and with a time lag of 60 seconds, an average speed of 85 kilometres per hour would be required.
At this point in Mr Potts’ evidence, the trial was adjourned to enable Mr Potts and the prosecution’s instructing police officer to attend the scene to undertake calculations of the percentage gradient along various sections of the road concerned. When Mr Potts resumed his evidence, he agreed that the gradient of the road at relevant points was no greater than 1.03 degrees and would not have prevented a vehicle, such as that driven by the accused, from achieving an average speed in the order of 85 kilometres per hour over the relevant stretch of road.
The above represents only the flavour of Mr Pott’s evidence, not a comprehensive account of it. I do not mean any disservice to Mr Potts in this respect. I accept that he was doing his best to assist the court. However, a fundamental problem with Mr Potts’ evidence is that it is based on a number of assumptions that are simply not capable of proof on the evidence before the court. It is not possible, on the evidence before the court, to determine Mr Williams’ average speed as he travelled along the relevant part of the road on that morning. It is not possible, on the evidence before the court, to establish the time lag between the two vehicles in the event that the accused vehicle did in fact stop. It is not possible, on the evidence, to calculate the average speed that the accused’s car was capable of achieving on the relevant stretch of road. It is not possible to calculate the amount of time that the events, said to have occurred, occupied. As far as this last issue is concerned, at one point the complainant accepted a proposition put to her by counsel for the accused that it would have taken a minute to a minute and a half for the accused to do and say what he is alleged to have done and said. However, I am not at all persuaded that this represented anything like the complainant’s accurate recollection. It is quite conceivable that the words spoken and the actions performed, as described, took significantly less time than that. Similarly, I am not persuaded (and notwithstanding Mr Williams’ evidence) that he passed by the bus stop between 7:31am and 7:33am so as to render it nigh on impossible for the alleged offence to have occurred in time for the complainant to send a text message of complaint some seconds after 7:32am.
There is little doubt, on any analysis, that very strict time lines are likely to have been involved. However, in all of the circumstances, I am not able to find, on the evidence before me, that the allegations put by the complainant against the accused described an event which was not possible. If Mr Williams was only slightly mistaken as to the time he left that morning, the speeds he travelled or the point along the road at which he was overtaken, then, notwithstanding Mr Potts’ evidence, the complainant’s description of the events was a physical possibility.
Has the Crown Satisfied the Burden of Proof
As such, the first question before me remains, am I satisfied beyond reasonable doubt that the complainant has told the truth in describing the events she said occurred and in identifying the accused as the perpetrator. Having reflected on the complainant’s evidence and on the accused’s record of interview, I have come to the conclusion that I cannot be satisfied beyond reasonable doubt that the complainant has told the truth on this occasion. That does not necessarily mean that the complainant is not telling the truth. I reiterate that it would not be sufficient for me to find that the complainant was highly likely to be telling the truth. It would not be sufficient for me to prefer her account over that given by the accused in the record of interview.
I find there to be a doubt, reasonably arising on the evidence, that she is telling the truth, after having regard to the following considerations.
(i)There were inaccuracies or inconsistencies in the complainant’s evidence. Taken alone these would not ordinarily be a reason to doubt her evidence; they are matters of detail that an honest and reliable witness might make a mistake about. Nevertheless, they are to be considered in the context of the other matters that I raise below. The matters of inconsistency or inaccuracy include:
(a) The complainant said that the accused was wearing a belt, that he undid his belt and then did the belt up. It is common ground (see the record of interview, exhibit P15) that the accused was not wearing a belt when arrested. Whilst it is conceivable that, in anticipation of being arrested, the accused took his belt off before the police arrived, I find this to be highly unlikely in all of the circumstances. It is, of course, also conceivable that the complainant was simply mistaken and saw the accused unbutton his trousers prior to lowering the zip.
(b) The complainant’s description of the clothes worn by her attacker was, in at least one respect, significantly inconsistent with the clothes worn by the accused. The accused, when arrested, was not wearing a fluorescent type of yellow, high visibility jumper or jacket, as described by the complainant. The accused was wearing a dark coloured jacket with an orange lining (exhibit P11). It does not appear to be a jacket intended by its manufacturer to be worn in a reversible manner although it is quite possible for the jacket to have been worn with the lining inside out. At the time of his arrest, the accused was wearing the jacket in the way that one would expect the jacket to be worn with the lining on the inside. I do not overlook the possibility that the accused left home that morning wearing the jacket inside out with the intention of assaulting the complainant and covering his tracks. However, this suggests a level of premeditation and calculation that seems unlikely.
(ii)The complainant has been untruthful on previous, relatively recent, occasions and about very significant matters with potentially serious ramifications for other people - the bomb hoax, the rape assertion and lying about her age to her boyfriend.
(iii)The complainant had experienced repeated dreams about being sexually abused; this clearly was an issue which had caused her concern.
(iv)The complainant said that she found the accused’s practice of driving past and waving at her and other students to be confronting or “creepy”.
(v)I was not persuaded by the various criticisms made by the Crown prosecutor in this matter with respect to the accused’s record of interview. I acknowledge that this is information put before the court which was not under oath and upon which the accused was not cross-examined. Nevertheless, he consistently and repeatedly denied stopping his car on the way to work that morning and, to my mind, gave the appearance of being genuinely surprised when the allegations were explained to him.
(vi)The grabbing of the complainant’s bag was a significant feature of her account. The handle was capable of retaining DNA but the accused was excluded as one of three contributors. I accept that this factor, considered in isolation, is not particularly strong. However, it is a matter to which I have had regard in the sense that it is consistent with the accused’s denial.
(vii)Whilst, for reasons already given, I do not agree that the events described by the complainant were not possible, the time lines were tight. The physical or timing difficulty involved in the alleged events, is a factor to be considered. Nevertheless, this must bear limited weight once the possibility of the alleged events having occurred is accepted.
(viii)The evidence of Mr Marshall and Mr Staehr is inconsistent with the accused having passed through Greenock at about 7:30am that morning. Furthermore, exhibit P6 on its face is ambiguous. The reference to “7:45AM” adjacent to “START TIME” could be a reference to the time the accused started work, that is, arrived at his employer’s depot or the time he started the first job of the day. The latter construction is consistent with the other contents of the form itself and with what the accused said in his record of interview. He said that he arrived at work at about 25 minutes to 8 and started the first job – a trench job at Tanunda – at about a quarter to 8. If this is correct, then the evidence of both Mr Marshall and Mr Staehr, at least as to the timing of their observations, is also likely to be tolerably correct. It so, the accused would have passed through Greenock well before 7:30am. If so, Mr Williams must be mistaken and also must have passed through Greenock well before 7:30am on that day. This would not necessarily mean that the complainant is not telling the truth about the incident. However, it would mean that she had waited perhaps 10 minutes or so before sending the text message of complaint at 7:32am whereas her evidence was that she sent the text message “immediately” (T132).

These considerations taken together, with particular weight being accorded to (i), (ii), (iii) and (iv), have lead me to accept, as a reasonable possibility, that the complainant has not told the truth about what happened that morning. If this is so, then whether she has done so deliberately, to teach the “creepy” man a lesson or for some other reason, or as the result of some confabulation genuinely believing that this “creepy” man who passed by and waved on many occasions prior to that day did in fact stop and do the things she described, does not need to be considered. To make it plain, I find it to be a reasonable possibility on the evidence that the accused drove past the bus stop that morning but did not stop.
In reaching this conclusion, I have had regard to the matters relied upon by the Crown in support of its case, and in particular as outlined in its closing address. I comment briefly on just some of these matters.
The Crown relied on the finding at the accused’s house, on the day of arrest, of the book “Snatching Ginny”. This is a pornographic account of a young woman who is abducted from a street in New York and then subjected to various, luridly described, sexual activities until ultimately, over the course of a weekend, she becomes a desperately willing participant. The Crown has argued, inter alia, that it was an extraordinary coincidence to find such a book in the accused’s bedroom, he being the very person accused by the complainant of attempting an abduction from the street for sexual purposes. The Crown’s argument is more fully set out both in the transcript of the Rule 9 hearing and also in its counsel’s closing address. For present purposes, I accept that the presence of this book in the accused’s bedroom adds some weight to the likelihood that the accused, in fact, engaged in the behaviour described by the complainant.
The Crown also relied upon the fact that the complainant readily identified the accused’s photograph during a photographic identification procedure conducted shortly after his arrest. The difficulty for the Crown with this is that the complainant had many prior opportunities to see, recognise, and remember both the accused’s face and the accused’s motor vehicle. If the complainant deliberately made up a story at the time the accused drove past or if the story was the result of some form of confabulation or fantasising about this “creepy” man who regularly drove past the bus stop, it would not be surprising that she would identify his photograph and describe his car in the way that she did.
The Crown also relied on the evidence of the complainant’s apparently spontaneous and immediate complaint, of her distress and of the complainant’s tolerably accurate and detailed description of the accused and his motor vehicle. However, none of this is necessarily inconsistent with what I have found to be the reasonable possibility of fabrication. In addition, the complainant has demonstrated her capacity to lie face to face, in a sustained fashion, about a highly emotionally charged situation on at least one prior occasion (the rape allegation).
It cannot be denied that the Crown has presented a prima facie, perhaps a strong, case, insofar as proving the fact of the alleged behaviour is concerned. Nevertheless, as I have previously indicated, even a strong case is insufficient. Notwithstanding the evidence adduced and the matters relied upon by the Crown, I still hold a reasonable doubt.
My finding to this point is enough to dispose of the matter and requires a verdict of not guilty to be entered. However, I should say something briefly about two other matters.
The Requirements of an Intention to use Force and an Intention to have Sexual Intercourse
The elements of the offence of attempted abduction, as discussed above, can be restated as follows. The Crown must prove:
(i)     an intention by the accused to take the complainant away by force;
(ii) the doing of some act or series of acts to give an effect to that intention;
(iii)the contemporaneous intention to take the complainant away in order to have sexual intercourse with her;[3] and
(iv)    the absence of any lawful excuse for those acts.
[3]    It is not necessary to prove an intention either to rape or to engage in unlawful sexual intercourse; an intention to have sexual intercourse, simpliciter, is sufficient, see R v Hussey (1980) 23 SASR 178, R v Pollitt (2007) SASC 103 at [36] – [43] and [108].
I adopt, with respect, the following analysis of White J in R v Pollitt[4] dealing with the offence of abduction itself.
The elements of a completed offence … are the forcible taking away of a person with a contemporaneous intention … to have sexual intercourse with that person. It is not necessary to establish that an accused intended that sexual intercourse should occur contemporaneously with the taking away but the intention to have sexual intercourse at some stage must exist at the time of the taking away. The offence is complete when the taking away by force occurs, provided that the intention for which the abduction was being effected was to have sexual intercourse with the victim. (citations omitted)
[4] At [107].
Of course, the task of determining whether or not a specific intention can be inferred is made more difficult here than ordinarily would be the case by the fact that the offence under consideration is that of attempted abduction. It will be necessary to determine whether or not the specific intent relating to the use of force and the specific intent relating to a purpose to have sexual intercourse can be inferred from actions which do not constitute the completed offence. As such, it is necessary to focus on the evidence adduced in this matter from which such inferences might be capable of being drawn.
Was there an Intention to Take the Complainant Away by Force
I have already determined that I am not persuaded beyond reasonable doubt that the events, as described by the complainant, occurred. However, for present purposes, it is to be assumed that they did. On this basis, the evidence relevant to this question of an intention to use force at the time of the assumed incident includes the following:
(i)     the increasingly aggressive demeanour and tone of voice;
(ii)the repeated and insistent requests for the complainant to get into the car followed by the intimidating demand “Get in the fucking car”;
(iii)the actions in leaving the vehicle and moving to the back nearside passenger side of the vehicle and towards the complainant when she refused the demands;
(iv)the lunging action towards the complainant to grab hold of the school bag and swing it around so as to place it near the rear door of the car;
(v)     the taking of a step towards the complainant;[5]
(vi)    the parting remark “I’ll be back to get you, you little slut”;
(vii)the exposing of the penis to the complainant from about one to one and a half metres away;
(viii)the ceasing of the demands and the driving off only after being threatened by the complainant as she took a step forward with the scissors.
[5]    The complainant’s evidence is unclear whether this was a separate occurrence or part of the actions summarised in (iv). For present purposes, I have assumed a separate occurrence.
If the account of the complainant were to be accepted, there would be little doubt that the accused was endeavouring, in a particularly aggressive manner, to persuade her to go with him in his car. This is not the same as having an intention at some time during the course of these events to take the complainant away by force.
I remind myself that the evidence of any such intention is wholly circumstantial. A person’s intention can only be a matter to be inferred from their words and actions viewed in the context of the surrounding circumstances. An intention to take the complainant away by force is an essential element of the offence of attempted abduction. I, therefore, must be satisfied not just that the requisite intention is an available inference from the facts I find proved by the direct evidence but that it is the only rational inference available from those facts.
Even if I were to accept as established by the evidence the matters set out above, I would not be prepared to find, beyond reasonable doubt, that the accused, at any relevant time, intended to take the complainant away by force. In my opinion, it is not the only rational inference available on the evidence of the events said to have occurred, taken at its highest for the Crown.
Force, in this context, can refer to either some form of physical handling of the complainant or the use of some forceful threat perhaps by words alone, for example, “if you don’t get in the car I will…” or by conduct, for example, threatening gestures or threatening harm with a weapon. None of this is said to have in fact occurred, although the question before me is slightly different in that I would have to be satisfied on the Crown case that, at some stage during the events, the accused had an intention to use force in one of these senses.
However, there is no evidence of the presence of any weapon or the uttering of threats. When the accused was said to have got out of the car, he did not attempt to grab or make contact with the complainant. Whilst, at one stage, the complainant said she feared that he was approaching her, as it happened, he approached and grabbed her bag. He did not open any of the car doors in order to facilitate a forced entry. Furthermore, the process of having undone his trousers to expose himself would suggest that the accused was then in a quite difficult position from which to attempt physically to force the complainant into the car. In addition, the accused, as described by the complainant, took off as soon as he was challenged by a young female of relatively small stature holding a small pair of scissors.
The evidence of the conduct complained of, when viewed in its context, is equivocal as to whether or not there was an intention, at any material time, to use force.
Was there an Intention to have Sexual Intercourse
I accept that, on the account given by the complainant, the accused intended to take her away with a sexual purpose in mind. However, a sexual interest or a sexual purpose can take many forms. For the Crown to succeed in proving this element, it has to negative, beyond reasonable doubt, any sexual purpose other than sexual intercourse as defined, for the purposes of the Criminal Law Consolidation Act.[6]
[6] By section 5: “Sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving – (a) penetration of the labia majora or anus of a person by any part of a body of another person or by any object; (b) fellatio; (c) cunnilingus.”
Again, for this element of the offence to be established, I must be satisfied that an intention to have sexual intercourse is the only rational inference available from the facts I find established on the evidence of the events said to have occurred. The only overt form of sexual behaviour complained about was the action of exposing the penis. There is no evidence that it was erect at the time. When viewed in the context of the other events said to have occurred, in particular the aggressively expressed demands to get into the car and the sexually disparaging comment uttered at the end, this does strongly suggest a sexual interest or sexual purpose behind wanting the complainant to get into the car. However, the intended sexual purpose could have taken any number of forms, including the act of exposing, that is “flashing” itself, an intention to kiss or fondle, or an intention to engage in some form of indecent assault. I do not accept, on the assumption that the events as described by the complainant in fact occurred, that the only rational inference available from this conduct is that the accused intended to engage in one of the acts of sexual intercourse within the definition as set out in s5.
Conclusion
For these reasons, I make a finding and enter a verdict that the accused is not guilty of the offence of attempted abduction.