R v Stengewis - [2023] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STENGEWIS
Criminal Trial by Judge Alone
[2023] SADC 141
Reasons of her Honour Judge Davison
15 May 2023
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Trial pursuant to Part 8A of the Criminal Law Consolidation Act - objective elements of the charge of attempted rape contested - defendant elected for trial by judge alone – psychiatric evidence displaces presumption of fitness to stand trial.
Held:
The objective elements of charge of attempted rape proven beyond reasonable doubt.
Pursuant to s. 269 N (B)(5)(b) defendant is mentally unfit to stand trial and is declared liable to supervision.
Criminal Law Consolidation Act 1935 (SA) part 8A, s 269N, s 269(B)(5(b) and s 269I, referred to.

R v STENGEWIS
[2023] SADC 141
Criminal

The defendant Anthony James Stengewis is charged with one count of Assault and one count of Attempted Rape, and in the alternative Indecent Assault. It is alleged that the offences occurred on 9 February 2022. The defendant has raised the defence of mental unfitness to stand trial pursuant to s 269N of the Criminal Law Consolidation Act 1935[1] hereinafter after ‘the Act’.
[1] Criminal Law Consolidation Act 1935.
The defendant has elected for trial alone pursuant to s 269B(1) of the Act. The trial is therefore to proceed in the absence of the jury. As the trial judge I have a discretion to proceed first with the trial of the objective elements of the offence or with the trial for the fitness to stand trial of the defendant pursuant to s 269L.
The defendant submits that in the circumstances of this case there can be no particular disadvantage to the defendant if I decide to proceed with the trial of either of the two matters and consents to proceeding in whatever way appears most appropriate in my discretion.
I have determined to proceed firstly with the trial in respect of the objective elements of the offences pursuant to s 269N of the Act.
269N—What happens if trial judge decides to proceed first with trial of objective elements of offence
If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.
A     Trial of objective elements of offence
(1)     The court must first hear evidence and representations put to the court by the        prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.
(2)     If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect; but otherwise      the court must find the defendant not guilty of the offence and discharge the       defendant.
(3)     On the trial of the objective elements of an offence under this section, the court is to       exclude from consideration any question of whether the defendant's conduct is       defensible.
B     Trial of defendant's mental fitness to stand trial
(1)     If the court records a finding that the objective elements of the offence are    established, the court
(a)     must hear relevant evidence and representations put to the court by the               prosecution and the defence on the question of the defendant's mental fitness            to stand trial; and
(b)     may require the defendant to undergo an examination by a psychiatrist or other             appropriate expert and require the results of the examination to be reported to              the court.
(2)     The power to require an examination and report under subsection (1)(b) may be     exercised
(a)     on the application of the prosecution or the defence; or
(b)     if the judge considers the examination and report necessary to prevent a   possible miscarriage of justice—on the judge's own initiative.
(3)     If the court is satisfied on the balance of probabilities that the defendant is mentally               unfit to stand trial, the court must record a finding to that effect, and (subject to              Division 3A) declare the defendant to be liable to supervision under Division 4            Subdivision 2.
(4)     If the court is not satisfied on the balance of probabilities that the defendant is              mentally unfit to stand trial, the court must proceed with the trial of the remaining              issues (or may, at its discretion, re-start the trial).
(5)     The court may, if the prosecution and the defence agree
(a)     dispense with, or terminate, an investigation into a defendant's mental fitness   to stand trial; and
(b)     declare that the defendant is mentally unfit to stand trial and declare the   defendant to be liable to supervision under this Part.
It was not in dispute in this matter that the objective elements of the offence of assault and indecent assault have been established beyond reasonable doubt. Therefore, the question is whether the objective elements of the offence of Attempted Rape have been established beyond reasonable doubt.
The prosecution’s submission was that the objective elements of the offence of attempted rape are (1) the accused attempted to engage in an act of sexual intercourse with the complainant. In this case it was alleged to have been an act of digital penetration of the labia majora and (2) that the complainant did not consent to the accused engaging in sexual intercourse with her. The defendant did not make any submission to the contrary.
The prosecution tendered a series of statements. These statements were:
·Exhibit P1 – Statement of Lee Elliott dated 31 March 2022 with annexures.
·Exhibit P2 – Disc of prescribed interview of ‘A’ of 10 February 2022.
·Exhibit P3 – Affidavit of ‘A’ dated 22 April 2023.
·Exhibit P4 – Affidavit of Crime Scene Investigator Pickard with booklet of photographs dated 13 February 2022.
·Exhibit P5 – Statement of Detective Stock dated 19 August 2022.
·Exhibit P6 – Statement of ‘A2’ dated 11 February 2022.
·Exhibit P7 – Statement of ‘SG’ dated 11 February 2022.
·Exhibit P8 – Statement of ‘MK’ dated 15 February 2022.
There were agreed facts that the objective elements of counts 1 and 3 were admitted, as was the complainant’s, date of birth.
The prosecution case is that at about 4.30 pm on 9 February 2022 the defendant assaulted and attempted to rape the complainant, A. At that time, A, was 13 years old. The defendant and A did not know each other. The incident occurred at a bus stop on Walkerville Terrace, Gilberton. The complainant was waiting to catch a bus home from school after mistakenly getting on the wrong bus from the city.
The complainant participated in a prescribed interview on 10 February 2022 in which she provided an account. She has also provided an addendum affidavit with some further details of what took place. Both the interview and the affidavit were tendered as the evidence of the complainant. There was no cross-examination of the complainant.
A summary of the allegations is as follows.
On the afternoon of 9 February 2022, A left school and caught a bus into the city. In the city she got onto another bus to travel home. Whilst she was on the bus, she realised that she was on the wrong bus. She then got off the bus at stop No. 10 on Walkerville Terrace. She walked back along Walkerville Terrace towards the city for about 13 minutes until she reached stop No. 7 that was on Walkerville Terrace, Gilberton adjacent to the car park for the Buckingham Arms Hotel. She waited at the bus stop. She was wearing her school uniform that consisted of a school polo shirt, a school skirt with shorts underneath and underwear. Her skirt was a few centimetres above her knee and had zips on either side. Her shorts were loose fitting and shorter in length than her skirt. Her shirt was not tucked into her skirt or her shorts. She also had a backpack.
Whilst waiting at the bus stop, she saw a male staring at her. He was about 15 metres away in the car park at the Buckingham Arms Hotel. It is not disputed that this was the defendant. She called her sister on her mobile phone. As she was doing so the accused approached the bus stop, continuing to stare at her. He walked closer to her. She moved away. She was still on the phone to her sister at that time. The defendant asked her if she had a boyfriend to which she responded ‘no’. She asked the defendant to back off or step away from her. He came closer. He then tried to pick her up. She stepped back and while she was stepping back, he put his hands on her shoulder and pushed her. She fell into a garden bed that was between the footpath and the car park. The push is the subject of count 1, the assault. At the time she fell she was wearing her backpack. As a result, she remained slightly upright whilst on the ground. After she fell the defendant got on top of her. He tried to pull off her skirt and shorts. At the same time, he tried to touch her in her front private area, but she was kicking him off. The complainant thought the defendant used his right hand when he tried to pull down her skirt. He was tugging at it. She also thought he had the end of her shorts bunched up with the skirt as he tried to pull them down. The defendant then put his left hand underneath her skirt and used it to touch her groin area outside her shorts. He moved his left hand around and used it to try to pull down the shorts.
When the defendant was on top of her, his body was touching hers. During this encounter his legs were also touching her legs. During this time the complainant had her phone in one hand and her purse in the other. As her skirt was pulled down, she used her hand holding her purse to try and pull her skirt back up.
During the course of the interview, A was asked where the defendant was touching her to which she replied, ‘in that area’ and looked down towards her genital area. She drew on a diagram of a female with a circle around the female genitalia indicating where she was touched. She said in the interview that she calls that area her "front private parts". She described kicking and screaming the entire time she was on the ground. She said she was crying for help and for the defendant to stop. She was yelling to her sister who was also on the phone at that time. As the defendant was touching her, he whispered to her “Are you still a virgin?”.
She kicked the defendant in his private area and stomach. She describes the motion of the kicking as a bicycle-style kick, she managed to kick the defendant off. He then walked away. At that time traffic started to come along the road. When she got up her skirt was askew. She walked away from the scene while still talking to her sister on the phone. She was crying.
Her phone call to her sister lasted 3 minutes. During that time, she said “he is coming towards me”, “he is touching me” and “help”. Both the complainant’s mother and sister overheard the screaming and crying.
After the incident the complainant walked towards Thames Street, Gilberton. She came across a woman who assisted her until her mother and sister arrived by car and the police arrived at the scene.
The prosecution’s submission was that as to the first objective element of attempted rape the prosecution has to prove that the accused engaged in an act, or a series of acts immediately directed towards raping the complainant. These must be more than mere preparation to commit the offence of rape and sufficiently proximate to the completion of that offence such that it may be said that at that time the accused had actually embarked upon the commission of the offence.
The prosecution submission was that there were several aspects of the complainant’s evidence which can be relied upon to prove beyond reasonable doubt that the objective elements are established and that the acts were more than mere preparation and were sufficiently proximate to the completion of a digital rape.
The first is that the accused got on top of the complainant after pushing her to the ground. He then tried to pull her skirt and shorts off and persisted with this conduct for at least a minute but likely longer. The prosecution submitted that although the complainant initially said that it went on a for a minute, upon reflecting, she said in her addendum statement that it was closer to 5 minutes. She was also on the phone to her sister for three minutes. This call had commenced before the attack upon her, and an inference could be drawn that the attack was longer than a minute but likely closer to three minutes.
Secondly, the complainant fought the accused by screaming and kicking in what she described as bicycle style kicks. This was required because the defendant did not cease his contact with her immediately. The only intervening act that stopped the defendant from carrying out the act of digital rape were two matters, it was submitted. The first was the complainant herself managed after significant effort to physically fight him off with her kicking, the other matter is, as the complainant raised in her interview, that the cars started to drive past and before that nobody had been around. It was submitted that, had the complainant been unable to fight him off he would have completed the act of digital rape on her.
The prosecution also says that the utterance by the defendant “are you still a virgin” was immediately directed towards his intention to rape rather than something else. It was submitted that there was no other purpose for the utterance of those words in circumstances where the defendant was on top of the complainant, trying to pull down her skirt and shorts and running his hands over her genital areas. It is submitted that I should find that the undisputed and unchallenged evidence of the complainant as to each of these matters satisfies me beyond reasonable doubt that the objective elements of the offence of attempted rape have been proved.
The prosecution submitted that an act of digital penetration was more likely than an act of penile/vaginal intercourse given the behaviour of the accused. In particular, his conduct of being on top of the complainant for that period of time and trying to touch her genital area with his hands as opposed to being on top of her and spreading her legs or trying to take off some of his own clothing which might indicate that he intended to use his penis to penetrate her.
In this case I have had regard to all the material that has been provided to me and tendered including the interview of the complainant and the addendum statement. I have also had regard to the submissions made by the prosecution and the limited submissions made on behalf of the defendant in this case. I am satisfied that A was truthful and reliable in her interview and the affidavit.
I am satisfied beyond reasonable doubt of the following that the accused, who was unknown to the complainant, approached the complainant on Walkerville Terrace near the bus stop when she was on her own. As he approached her, he asked her whether she had a boyfriend. Despite her protestations, he then came closer to her. He physically pushed her so that she landed on her backpack in the dirt and thereafter used his hands to touch her genital area. He tried to pull down her skirt and her shorts that were underneath her skirt and persisted in doing so, despite her physical resistance in the form of kicking and saying ‘no’. I accept that she also tried to pull her skirt up whilst he was tugging it down. During the time, he was touching her on her genital area he asked her whether she was still a virgin. At the time this was occurring there was little or no traffic on Walkerville Terrace, and there were no other pedestrians in the vicinity. The defendant persisted until the complainant physically kicked him off her and at a time when the cars started to approach along Walkerville Terrace.
I am satisfied beyond reasonable doubt that the accused attempted to engage in an act of digital intercourse with the complainant. His acts in respect of this included pushing her to the ground, touching her in the genital area, trying to dislodge her clothing and in particular the clothing that would allow access to her genital area and placing his body on top of her body. I am satisfied that all of these actions occurred whilst the complainant was crying and screaming at him and physically trying to fight him off. I find that these acts were more than merely preparatory for an act of intercourse to have occurred.
I am satisfied that the complainant was not consenting to any sexual activity with the defendant at that time.
I am therefore satisfied that the objective elements of the offence of attempted rape are proved beyond reasonable doubt. I am also satisfied that the objective elements of the offence of assault have been established. I record a finding to that effect.
The defendant acknowledges that he bears the responsibility of displacing the presumption of fitness pursuant to s 269I of the Act. I have received expert evidence contained in the psychiatric reports of Dr Craig Raeside, dated 5 August 2022 and a report co-authored by Dr Cassie Smith and Dr Annan Lloyd dated 25 January 2023.
I am satisfied that these reports establish on the balance of probabilities that the defendant is unfit to stand trial as defined in s 269H of the Act. The evidence of Dr Craig Raeside and Dr Cassie Smith and Dr Annan Lloyd is sufficient to displace the presumption of fitness to stand trial. I therefore record a finding pursuant to s 269N(B)(5)(b) with the agreement of defence and prosecution that the defendant is mentally unfit to stand trial and declare that he be liable to supervision.