R v SMITHSON - [2009] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMITHSON
Criminal Trial by Judge Alone
[2009] SADC 88
Reasons for the Verdict of Her Honour Judge Shaw
25 August 2009
CRIMINAL LAW
Trial by judge without jury - accused pleaded not guilty to one count of Aggravated Indecent Assault. The complainant was the 8 year old daughter of friends of the accused. The offence allegedly occurred whilst he stayed at their home following a social gathering. The accused denied the alleged sexual abuse.
Held: That the prosecution had not proved the offence beyond reasonable doubt.
Verdict - accused acquitted.
Criminal Law Consolidation Act 1935 s 56; Evidence Act 1929 s 34M, referred to.
R v Calides (1983) 34 SASR 355, considered.

R v SMITHSON
[2009] SADC 88

The accused is charged with one count of aggravated indecent assault. It is alleged that on 27 December 2006, at Crafers, he indecently assaulted A, a person of the age of eight years. The accused elected for trial by judge without a jury. He was arraigned before me on 10 August 2009 and pleaded not guilty.
The prosecution case is that on Boxing Day 2006, the accused attended at the home of his friends, Mr and Mrs R (the complainant’s parents), for a social gathering. It is alleged that in the early hours of the morning of 27 December 2006, the accused entered the complainant’s bedroom, went into her bed and indecently assaulted her.
The accused admitted that he entered the bedroom but he denied that he made such contact.
Legal Principles
There are a number of elements of the offence of aggravated indecent assault. I bear in mind that the prosecution has the onus of proving each element of the offence beyond reasonable doubt.
The first element is that the prosecution must prove that there was an assault. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force must be intentional. Therefore, a purely unintended accidental touching, for example, would not be sufficient.
The second element is that the assault must be accompanied by or occur in circumstances of indecency.
Next, the prosecution must prove that the application of force was unlawful, that is, without lawful justification or excuse.
In the present case, there is no dispute that at the time of the alleged offence, A was under the age of 17 years. Therefore, as a matter of law, A cannot consent to an indecent assault. Therefore, consent is not an issue in the present case.
Fourthly, the indecent assault of a person under the age of 14 years is an aggravated offence. It is unnecessary for the prosecution to prove that the accused knew of or was reckless as to the aggravating factor. In the present case, there is no dispute that at the time of the alleged offence, A was under 14 years of age. Therefore, if the prosecution proves beyond reasonable doubt that there was an indecent assault, there is no dispute in relation to this element; namely, that it was aggravated.
Prosecution Case
The prosecution called evidence from the complainant as to the alleged offence and as to the circumstances surrounding it.
A’s parents, L R and K R and the other persons who attended the gathering, also gave evidence.
The prosecution adduced evidence of an alleged first complaint. It was alleged that the complaint was made almost immediately upon the accused leaving the premises on the morning of 27 December 2006. I direct myself in relation to the use that I am entitled to make of the evidence of the first complaint, pursuant to the provisions of section 34M of the Evidence Act 1929. I am entitled to take that evidence into account in order to be informed as to how the allegation first came to light and as evidence of consistency of conduct of the alleged victim. The prosecution case is that the alleged complaint has probative value in relation to the complainant’s credibility, demonstrating consistency of conduct. It is not led to prove the truth of the allegation. However, if I find that the complaint was made, I may use it as evidence to show that A behaved in a manner consistent with her allegation of indecent assault. Therefore, it can be relied upon to buttress A’s credibility.
The evidence of the first complaint was given by A and by Mr and Mrs R.
The prosecution also relied upon evidence given by Mr and Mrs R and E R and Mr Broadbent in relation to alleged statements made by the accused during the morning after the alleged offence. It was alleged that the accused described an incident where he said that he defended himself from an intruder with a weapon. The accused denied that he made these statements. The prosecution alleged that if the court was satisfied that the statements were made, it was entitled to conclude that those statements demonstrated a consciousness of guilt in relation to the offence charged. In particular, it was alleged that the statements were made in the presence of the complainant for the purpose of dissuading her from reporting the alleged indecent assault.
The prosecution also relied upon evidence of Mr R about a telephone conversation with the accused after the accused had left the premises. The prosecution alleged that an alleged statement by the accused during that conversation, amounted to an implied admission of guilt. The prosecution alleged that Mr R said to the accused, “You’re not welcome here anymore. Do you know why?” It was alleged that the accused said, “I can guess”. The accused denied that he made that statement.
Evidence of A
A was born on the 24^th day of January 1998 She was aged 8 years at the time of the alleged offence and aged 11 years at the time of giving evidence. She gave her evidence on closed circuit television.
A said that on Boxing Day 2006, various people attended the home during the day. She said she did not remember Rachel and Graham attending. She knew the accused as Salvador.
A said that she went to bed at 12 midnight. She said that prior to going to bed, she saw Salvador, her sister E R and her sister’s boyfriend and a person that she knew only as Polly. After she went to bed, she fell asleep. She said that she awoke to find Salvador laying on her bedroom floor. She fell asleep again. The next thing she remembered was that Salvador shook her and asked her to move over. He told her that the floor was “really hard”.
A said that she responded with a groaning noise. The accused lifted her quilt and got into bed with her.
A said that the accused was wearing a type of pyjama pants and a tank type white Singlet. She said that he took off the trousers and threw them on the ground. She said that the accused wore red underpants.
A said that she faced the wall with her back to the accused and was curled up with her knees bent. She said that the accused grabbed her around the waistline and put one hand around her and held her firmly. She said that he grabbed his penis with his hand and placed it between her legs about two and a half inches above her knees. She said that his penis remained inside his underpants. She said that the accused was making breathing noises and rubbing his penis against her. She said that he seemed to go to sleep. She said that at 6.00am, she looked at the clock. She got up and went to the toilet. She went back to the bedroom and got into bed in the same position as previously. She said that she returned to the bedroom because she did not know what to do. She said that she stayed in that position in her bed for three to four minutes and then got up. After others in the house woke up, she spoke to the accused on the decking. She said that he told her, “Don’t tell your parents ‘cos they will get stressed about it”. A said she replied “Okay”. A said that she asked the accused why he was in her bedroom. She said that he replied that he went past and he thought that A had said, “Salvador, I’m lonely, can you come in?”. A said that she replied, “Yeah, okay”. He then said, “This will be our little promise, okay?” She said that she replied, “okay”.
From the decking, A went back inside. She said that after everybody left the premises, she spoke to her mother and father.
A said that she told her parents that the accused was in her room and he woke her up, “and stuff like that – like I don’t remember word for word, but yeah”.
During cross-examination, A said that there was a clock by her bed. She estimated that the accused was in her bed from about 1.00am or 2.00am until 6.00am and that he was rubbing and making breathing noises for three quarters of that time. She said that she did not go to her parents’ room after going to the toilet because Salvador may have been a bit suspicious and she didn’t really think of it. She said that she did not remember making labels for Salvador whilst he was in her bedroom that morning.
A denied jumping on Polly in the morning, and waking him up. She did not recall her involvement in organising cups of tea. She denied that she told Salvador that she was lonely.
Evidence of L R
A’s mother, L R gave evidence that on the day of the gathering, she first saw the accused at about 11.00pm. She said A was in bed by that time. Mrs L R went to bed with her husband at about 2.15am. She said at one stage during the night, she heard their bedroom door open and close and she heard the accused say their names.
L R got up at about 9.00am. A was already awake. She said that when the accused was in the kitchen area, he said that if he was threatened, he would not hesitate to defend himself and he talked about using a knife.
L R said that the accused asked A for a kiss goodbye. A leant forward quickly and A gave the accused a peck on the cheek.
L R said that about half an hour after the accused left, A said to her “Why did you let Salvador sleep in my room”. Mrs R responded that she didn’t. She said that A described what the accused did in her room. LR said that A said that the accused “grabbed his willie and put it between her legs”. L R said that she washed A’s bedclothes and pyjamas that day. She and her husband reported the matter to police on 31 December 2006.
During cross-examination, L R agreed that she first told anybody about the conversation concerning the knife on 6 August 2009.
Evidence of Graeme Durkin
Mr Graeme Durkin gave evidence that he had known Mr R for about 10 years. He went to the R’s home with Rachel Downs. The accused arrived at the party much later. Mr Durkin went to sleep at about 2.00am to 2.30am on some cushions at the back of the couch. When he got up in the morning, A was already up. He described A as “quite chirpy”.
Evidence of Paul Parsons
Paul Parsons, also known as Polly, gave evidence that he had known Mr R since 1985. Mr Parsons said that he went to sleep on the couch.
Mr Parsons said that A woke him up about 6.00am by jumping around on top of him. They made breakfast. He left with Rachel Downs and Graham Durkin at about 10.00am or 11.00am.
Evidence of KR
Mr K R, the father of the complainant, gave evidence about the circumstances of the Boxing Day gathering. He said that the accused arrived between 10pm and 12 midnight.
The next morning, K R arose at about 9.00am. He said that during the morning, the accused described an incident where an intruder came to his home. The accused also talked about a naval dress sword. A was about two feet away. He said that he told Police Constable Gurr, about this conversation on 31 December 2006.
He said that after the accused left on 27 December 2006, A said to him “I’m very angry with you”. When he asked A to explain, A said, “for letting Salvador sleep in my room”.
Mr K R said that he asked A about what the accused was wearing. A replied, ‘underpants’. He asked her what else happened. A said she could feel the accused moving his “willie” on her leg. He said that his wife was in close proximity at the time of this conversation.
Mr K R said that about half an hour after the accused left, he received a telephone call from the accused. The accused said to Mr R “I think I’ve left something at your house”. Mr R said, “You’re not welcome here any more. Do you know why”. He said that the accused said, “I can guess”.
E R and her boyfriend, Mr Broadbent, each gave evidence about the Boxing Day gathering and the events of the morning of 27 December 2006. E R said that the accused talked about a robbery at his house and the use of a knife to defend himself. Mr Broadbent described a similar conversation. Both E R and Mr Broadbent agreed that the alleged conversation was not reported to police until August 2009.
A police officer Constable Gurr gave evidence that Mr R had not told him of a conversation concerning an intruder and a knife on 31 December 2006. Mr Thomas, the police officer in charge of the investigation, said that he first became aware of an alleged statement by the accused about an intruder, on 5 August 2009.
I also have regard to the statement of Rachel Downs as if it was evidence given by her.
A number of facts were agreed. These included proof of statements made during A’s interview with police. The defence alleged that these prior statements by A were inconsistent with her evidence. The prosecution tendered photographs and a plan.
The Accused’s Evidence
I turn to the defence case.
The accused gave evidence on oath. I direct myself that he was not required to do so. He could have elected to say nothing. I will treat his evidence in the same way as that of any other witness.
The accused said that on Boxing Day 2006, he was visiting the home of Mr and Mrs R. At the time of his arrival, A, Mr Broadbent and E R were not present. Mr and Mrs R went to bed at about 2.00am.
The accused said that he had attempted to go to sleep on the floor alongside the patio door. It was a very cold night. He got up to go to the toilet. He said that the night-light in the hallway was working. He said that after going to the toilet, he washed his hands. He noticed A sitting up in her bed facing the doorway. A said, “Can you talk to me, Salvador. I’m lonely”. The accused said that he replied, “Well I am just going outside to have a cigarette. I’ll talk to you when I come back”.
The accused said that he went outside, had a cigarette, and returned to A’s bedroom to see whether A had settled. She was lying down. He entered the bedroom, sat down and spoke to her. He leant over and whispered “Are you asleep now?”. She rolled over and said, “You were a long time”.
The accused said that he told A that everyone else was asleep. A said, “I can’t go to sleep”.
The accused said that A asked him if he would lie down on the bed next to her in order to help her to get to sleep. He said that he replied, “No, I can’t do that. How about if I lie down on the floor next to you though.” A said, “that’s ok”. He said to her, “just a minute”.
He left the bedroom and walked to the bedroom of Mr and Mrs R. He knocked on the bedroom door. He said. “Are you awake?”. There was no answer. Then he walked past A’s room to the lounge room. He collected the pillows from the lounge area and put them next to A’s bed.
He lay down on the floor next to A’s bed and went to sleep. He denied ever getting into bed with A or laying next to her.
The accused said that he was awoken by A getting up to go to the toilet. He said that when A came back from the toilet, she asked him why he was sleeping in her room. He said that he replied, “Don’t you remember, you asked me to?”. The accused said that A then asked him to look at her labeller. A showed him the labeller. A asked him for suggestions as to what labels to make. The accused suggested ‘Bread Crumbs’ and ‘Tax Files’. A made the labels and gave them to him. He produced the labels to the court and they were tendered as evidence.
The accused described the events of the morning. He said that he had a discussion with A on the balcony about a cigarette. He denied that he spoke to others in the kitchen area about defending himself from an intruder, or mentioning a knife or a sword.
The accused said that before he left the home of Mr and Mrs R that morning, A pecked him on the cheek. He said that this had happened on one prior occasion. After he left, he realised that he had left his shaving gear behind. Therefore, about one hour after leaving, he telephoned Mr and Mrs R’s home and spoke to L R.
K R took the telephone. K R said to the accused, “You’re no friend of mine. Do you want to know why? Don’t ever contact me ever again”, and then K R hung up the telephone.
During cross-examination, the accused said that he had slept over at Mr and Mr R’s prior to the Boxing Day gathering.
The accused said that over time, K R had become increasingly irritated with him. He thought it related to their differing views about spirituality.
The accused said that he had tried to sleep on the floor near the patio door for about one and a half hours. At the time that he went to the toilet, he had not seen A. He said that as he came back from the toilet, A’s bedroom door was open. He agreed that he had not seen A since September 2006 and that she did not have a close relationship with him. He had known her since birth. He said that at the time he went into A’s bedroom, he did not think that it was inappropriate for him to sleep on the floor of A’s bedroom.
The accused agreed that A had not kissed him on the cheek for a number of years. In relation to the phone call from K R, he denied that he said, “I can guess”. He said he thought K R’s statements on the phone related to a prior allegation by K R that the accused had propositioned his wife.
The accused explained that he did not want to enter Mr and Mrs R’s bedroom unless they were awake. He said that he knocked loudly on the door. He spoke to the parents in a penetrating voice. He denied that he was checking whether the parents were asleep for the purpose of entering A’s bedroom with improper intent.
The accused denied that he wore red underpants. He denied that he had a white Singlet or a sleeveless T-shirt. He denied that he told A not to tell her parents because her parents would get stressed or that he said to A that it would be their “little promise”.
Analysis
I direct myself as to the elements of the offence. I remind myself that although there is a direct conflict between the evidence of the complainant and the accused and in some respects, between other witnesses and the accused, the issue for me is not to determine who is telling the truth or where the truth lies, but rather whether the prosecution has proved each element of the charge beyond reasonable doubt.
In my view, the conduct of the accused as described by A, namely the grabbing by the accused of his penis and placing it between A’s legs above her knees, if it occurred, constitutes an indecent assault. The real issue is whether the prosecution has proved beyond reasonable doubt that this conduct occurred.
The evidence of A that she told her mother what happened and the evidence of L R and K R that A gave an account of an indecent assault, amounts to evidence from each of them of the making of a first complaint by A. It shows consistency of conduct and buttresses A’s credibility.
I refer to the evidence of K R, L R, E R and Mr Broadbent that during the morning of 27 December 2006, the accused made statements about an intruder and a weapon. I have had regard to the fact that in his evidence, the accused denied making those statements. L R, E R and Mr Broadbent did not report the alleged conversation to police until August 2009.
K R gave evidence that he told police on 31 December 2006, about the accused’s alleged statement relating to the intruder. This evidence was in conflict with the evidence of Constable Gurr. I found Constable Gurr to be an impeccably honest and straightforward witness. He made contemporaneous notes that were signed by K R. I prefer the evidence of Constable Gurr to that of K R in relation to this matter. I am not satisfied that the accused did make the statements in question on 27 December 2006. I am not satisfied that, even if those statements were made, they were made from a consciousness of guilt.

I refer to K R’s evidence of his conversation with the accused when the accused telephoned the home after leaving the premises on 27 December 2007. The prosecution alleged that the accused’s response “I can guess”, amounted to an implied admission of guilt. The accused denied that this was his response.
Having regard to all of the evidence, I am not satisfied beyond reasonable doubt that K R’s recall of the conversation is completely accurate. I am not satisfied beyond reasonable doubt that the accused responded “I can guess”, during that telephone call. I am not satisfied that, even on K R’s version of that conversation, the accused’s alleged response constitutes an implied admission.
The complainant’s evidence was that she saw the accused before she went to bed. However, K R, L R and the accused gave evidence that the accused arrived after the complainant had gone to bed. I am satisfied that the complainant’s evidence in this respect is incorrect. I find that the accused arrived after the complainant went to bed.
Finding – Verdicts
I take into account the very helpful submissions of counsel for the prosecution and for the defence.
In my view, although the complainant was only 11 years of age at the time of giving evidence, she gave a clear and detailed account of the alleged offence. Much of what she alleged in relation to the accused entering her bedroom was admitted by the accused. The accused did not dispute that he lay on the floor of the complainant’s bedroom next to her bed and that he sat on her bed. I accept that the complainant’s credibility is bolstered by the evidence of the first complaint. On the other hand, there were specific aspects of the complainant’s account which concerned me. In particular, the complainant said that the accused was laying on her bed, rubbing his penis between her legs for some hours. On both the complainant’s account and the accused’s account, the bedroom door remained open at all times. There were a number of people sleeping in the living area of the house and in the bedrooms nearby, who might have awoken at any time and walked past the open bedroom door. Both the accused and the complainant awoke and went to the toilet.
I accept the evidence that a night-light provided sufficient light into the complainant’s bedroom to identify a person that might be in A’s bedroom at that time of the morning. Therefore, on the prosecution case, the accused determined to commit an indecent assault over a number of hours in circumstances where he might have been seen by another person in the house who happened to walk down the hallway during that time.
Secondly, the accused gave evidence that after the complainant had awoken in the morning and before Mr and Mrs R entered the living area, he and the complainant spoke about her labeller. A did not recall this conversation. However, A’s parents confirmed that A received a labeller as a Christmas gift. The accused had not spoken to A before she went to bed. The accused produced to the court two labels that he said A had made for him during their chat in the morning of 27 December 2006. I find that this event did occur. In my view, it provides evidence of A’s attitude to the accused at that time. There were a number of inconsistencies between A’s evidence and her statement to the police identified by counsel for the accused during his final submissions. I will not repeat them. I bear in mind A’s age and the passage of time. However, I have had regard to those inconsistencies and again, they cause me to have concerns about the reliability of A’s evidence.
I turn to the accused’s evidence. In my view, the accused was genuine in his descriptions of his close relationship with his young son. He acknowledged that he did not have a close relationship with the complainant. He admitted entering A’s bedroom and even sitting on her bed. He agreed that he knocked on the bedroom door of A’s parents. I acknowledge the careful criticisms of his evidence by counsel for the prosecution. However, in my view, the accused’s account was plausible. Indeed, I was of the view that he was an impressive witness.
The burden of proof is on the prosecution. Suspicion is not enough. Probability of guilt is not enough. Proof beyond reasonable doubt is required. This is a case where I am not able to be satisfied where the truth lies.[1] It is not for this court to determine why this particular allegation came to be made. That would be to place an onus on the accused and therefore to reverse the onus of proof. However, in my view, the prosecution has not excluded as a reasonable possibility, that the complainant’s allegation of an indecent assault is the product of confusion between a dream and reality related to finding the accused asleep on her bedroom floor. In any event, having regard to all of the evidence, I am not satisfied beyond reasonable doubt that the complainant’s account of the alleged offence is reliable. I am not satisfied that I ought to reject the accused’s evidence. I find that the accused’s account of what happened in A’s bedroom is a reasonable possibility.
[1] R v Calides (1983) 34 SASR 355
Accordingly, in my view, there is a reasonable doubt in relation to the proof of the charge. The charge has not been proven to the required degree. The accused is entitled to the benefit of the doubt.
Therefore, in relation to the charge of aggravated indecent assault, my verdict is not guilty.