R v Tania Tominac
[2009] ACTSC 75
•6 July 2009
R v TANIA TOMINAC
[2009] ACTSC 75 (6 July 2009)
CRIMINAL LAW – trial by judge alone – no matter of principle.
Crimes Act 1900 (ACT), s 56
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40, s 43, s 46
Supreme Court Act 1933 (ACT), s 68C
Fleming v The Queen (1998) 197 CLR 250
No. SCC 112 of 2008
Judge: Gray J
Supreme Court of the ACT
Date: 6 July 2009
IN THE SUPREME COURT OF THE )
) No. SCC 112 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
TANIA TOMINAC
ORDER
Judge: Gray J
Date: 6 July 2009
Place: Canberra
THE COURT ORDERS THAT:
The accused is not guilty of the six charges on the indictment.
On 18 May 2009, Tania Tominac (the accused) was arraigned before me and pleaded not guilty to charges that:
… between the 9th day of April 2005 and the 23rd day of September 2005 at Canberra in the Australian Capital Territory TANIA TOMINAC then being an adult, maintained a sexual relationship with a young person, namely [the complainant].
SECOND
COUNT
AND FURTHER THAT between the 9th day of April 2005 and the 25th day of April 2005 at Canberra aforesaid TANIA TOMINAC engaged in sexual intercourse with a person, namely [the complainant], the said person then being a person above the age of 10 years but under the age of 16 years, namely 14 years of age.
THIRD
COUNT
AND FURTHER THAT between the 9th day of April 2005 and the 25th day of April 2005 at Canberra aforesaid TANIA TOMINAC engaged in sexual intercourse with a person, namely [the complainant], the said person then being a person above the age of 10 years but under the age of 16 years, namely 14 years of age.
FOURTH
COUNT
AND FURTHER THAT between the 12th day of June 2005 and the 5th day of August 2005 at Canberra aforesaid TANIA TOMINAC engaged in sexual intercourse with a person, namely [the complainant], the said person then being a person above the age of 10 years under the age of 16 years, namely 14 years of age.
FIFTH
COUNT
AND FURTHER THAT between the 18th day of July 2005 and the 23rd day of September at Canberra aforesaid TANIA TOMINAC engaged in sexual intercourse with a person, namely [the complainant], the said person then being a person above the age of 10 years but under the age of 16 years, namely 14 years of age.
SIXTH
COUNT
AND FURTHER THAT between the 18th day of April 2005 and the 23rd day of September 2005 at Canberra aforesaid TANIA TOMINAC engaged in sexual intercourse with a person, namely [the complainant], the said person then being a person above the age of 10 years but under the age of 16 years, namely 14 years of age.
These are proceedings for a sexual offence under the Crimes Act 1900 (ACT). Subsections 40(1) and (4) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides:
40Sexual offence proceeding—prohibition of publication of complainant’s identity
(1)A person commits an offence if the person publishes, in relation to a sexual offence proceeding––
(a)the complainant’s name; or
(b)protected identity information about the complainant; or
(c)a reference or allusion that discloses the complainant’s identity; or
(d)a reference or allusion from which the complainant’s identity might reasonably be inferred.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
…
(4) In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
The charges relate to incidents that are alleged to have occurred between the accused, a teacher, and a student at the school where she was teaching. This matter has received extensive publicity. The school has been publicly identified as St Francis Xavier High School. However, the names of the various witnesses, by their association or former association with the complainant, in conjunction with the known name of the school, may provide a reference that discloses the complainant’s identity. In these circumstances, I will refer in the judgment to a description or an alphabetical character to designate those witnesses. I attach an appendix which I order not to be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.
Before the court first allocated a date for the trial of these charges the accused elected to be tried by judge alone.
Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen (1998) 197 CLR 250).
I must take account of the warnings that would be given to a jury, had this been a trial before that body. The prosecution and the defence put certain matters to me on this aspect and I refer to those matters in the course of these reasons.
There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
The charges
The charge of maintaining a sexual relationship with a young person under s 56 of the Crimes Act 1900 (ACT) is established by an adult person engaging in a sexual act in relation to the young person on three or more occasions. In the present case, the sexual acts alleged are the matters charged in counts 2 to 6 of the indictment. In the event that the prosecution establishes beyond reasonable doubt that the accused committed three or more of those acts as charged, the offence will be made out. The offences charged in counts 2 to 6 of the indictment are punishable by imprisonment for 14 years and the effect of s 56(6) of the Crimes Act is to make the offence of maintaining the sexual relationship with the young person, if established, punishable by imprisonment for life.
The offences charged in counts 2 to 6 require that the prosecution to establish beyond reasonable doubt an act of sexual intercourse by the accused with the complainant being a person under the age of 16 years. In the present case, it is not in issue that the accused knew the complainant’s age. It is also not in issue that the acts deposed to by the complainant constituted sexual intercourse. What is in issue is that the acts deposed to by the complainant took place at all.
The evidence of the complainant
The complainant is now 18 years of age. He was born in April 1991. The events about which he gives evidence occurred in 2005 when he was a student in Year 9 at a high school in the Australian Capital Territory (he said Year 8 in his evidence). The accused was a 39 year old teacher at the school who was carrying out the duties of the Year 9 Co-ordinator. The complainant, in his evidence-in-chief, described some of his personal difficulties and the fact that his step-brother had passed away and that he had family problems. He described how he had obtained the accused’s mobile phone number and that increasing communications took place with the accused by phone and text. He related the first sexual incident that occurred between them as taking place by reference to his birthday. He said that he received a text saying “Happy Birthday” and “I want to give you a present”. He also said that the night before his birthday, she had sent a text to him which said “we will have to wait until you are 16. Like it’s illegal I don’t want to get in trouble”. He then said that some three or four days after, an arrangement was made whereby he “snuck” out of his house where he was living with his mother at about 10:30 pm and he was picked up by the accused driving a green Audi which the accused told him was her husband’s. He said that they went to her place and into her bedroom, which he generally described. In the bedroom he said they had sex in the “missionary position”.
The second event that he described was an occasion about a week or less after the first occasion. He described being picked up and going to the accused’s house. He said that he thought that one of the accused’s daughters was upstairs, the other at a party but that the accused’s husband was definitely away at the coast where he had believed him to be on the first occasion. He said that they had sexual intercourse in the “same sort of style, like missionary position”. It was on this occasion that he said that he learnt that the accused had had breast implants. After this event, he described going back to school, the school holidays having ended. He said that it was sometime before the next incident.
He then described an event that occurred a few weeks after the holidays had ended when he said the accused’s husband was not at home but that the accused had told him she was having some drinks with her daughters consequential upon one of her daughters having broken up with her boyfriend. He described again being picked up and on that occasion taking with him a bottle of Pink champagne. He said that he and the accused drank some “Butterscotch Schnapps and Bailey’s” that the accused provided, but that they did not drink the bottle of champagne that he had brought to the house. He described sex taking place in the “missionary position”, oral sex taking place on one another and anal sex taking place whilst the accused used a vibrator on herself. He described the vibrator as “purpley/white, sort of”.
Although a diverse number of marital aids were seized subsequently by the Police from the accused’s home, no attempt was made by the prosecutor to put any of those items to the complainant as being the object that he described. In that circumstance, the tender of the items would seem to be irrelevant to any issue in the case. It seems to me that the only conclusion I can draw in respect of these items, having regard to the search and seizure record that was tendered, is that none of the “marital aids” coloured either blue or purple appear to have been found in the bottom drawer of the bedside table that the complainant described as being the place from which the vibrator was said to have been taken. The production of these items by the prosecution was irrelevant and unnecessary. Had there been a jury, the tender of these items would have required a strong direction cautioning against the misuse of such plainly prejudicial material of no forensic value.
After giving his evidence of these three sexual encounters between himself and the accused at her home, the complainant was asked:
All right. Well, let me ask you, in relation to having sex with
Mrs Tominac, were there other times that you can recall that you went there for that purpose?‑‑‑Yes. There was probably, all up, around, up to about 10 times that we had sex. Not all there, there were other places - yes, there was a large amount of times I went there.
These additional occasions are not relied upon by the prosecution to make out the first charge but it is evidence, presumably led to give context to the acts charged. The effect of this evidence is that there were seven or eight occasions when he was at the accused’s house when he said that sexual encounters took place.
The complainant also said that apart from these occasions there was another time when he went to a party at the accused’s house. He said that on this occasion, the accused gave him back the bottle of Pink champagne to which he had earlier referred. He said that he drank this champagne and shared it with a friend who had come to pick him up. He said on that occasion he did not go into the bedroom at all.
The complainant then gave evidence of two other occasions, one which he believed was in term 3. That would place the event as occurring after 18 July 2005. This was an occasion that he said that he had taken a day off school and the accused came over to his house and that they had sex again in the “missionary position”. This event apparently occurred at lunchtime.
There was one other occasion of which he gave evidence. He said:
Tania had an office by herself, like, because she was Year Co-ordinator and talked to students, like counselled a lot of students. She had her own office and one day I went into that office and we had sex in there. Like Tania was wearing a blue denim skirt and I was in my school clothes and what Tania did was just like took off her underwear and she sat on the desk and we had sex in that room, after like the curtains were closed so no one could see in and the door was closed. And we had sex there.
He also said that on that occasion the accused gave him her underwear which was a pink g-string style. He kept that item in the top drawer of his bedside table where he said his mother had found it, questioned him about it and the item was subsequently thrown out.
It is unclear which of these later incidents preceded the other. That is not a criticism of the complainant’s evidence on this aspect but it makes it difficult to ascertain the overall time-frame in which the complainant was saying that these incidents occurred.
Observations on the complainant’s evidence
The complainant gave his evidence by way of video link. These are proceedings for a sexual offence. Section 43 of the Evidence (Miscellaneous Provisions) Act 1991 provides in such a case for a complainant’s evidence to be given in this way. I take into account the warning provided in s 46 of that Act namely that no inference adverse to the accused should be drawn from the fact that the evidence is given from a place other than a courtroom.
The complainant is now 18 years of age and the incidents about which his evidence was primarily concerned occurred when he was 13 and 14 years of age. The passage of time would have made it more difficult to be precise as to the detail. His evidence contained as much of the detail as I would expect from a person of his age at the time.
The complainant generally gave his evidence in a straight-forward and relatively self-possessed manner. He looked uncomfortable at times when questioned on some of the detail. I bear in mind that he had given his account, at least in general terms about the various occasions, to several of his friends at about the time he said that they occurred but at a later stage he had also told them that what he had said to them was untrue.
At the time of these events, he had problems concerning marijuana use, self-harming behaviour and depression. These problems had led him to counselling and subsequent psychiatric assessment. Accordingly, it is important that his account be measured against those facts that can be objectively established and the evidence of the other witnesses where that evidence touches upon aspects of the complainant’s evidence. The primary issue for me in this case is the reliability of his testimony and the credence that I can place on his account of the events that form the subject matter of the charges in relation to the counts charged in the indictment.
The other evidence in the prosecution case
The prosecution case to support the complainant’s evidence takes into account telephone records evidencing telephone contact between the accused and the complainant. I later give detailed consideration to that evidence.
The complainant’s mother gave evidence of finding an item of underwear in the complainant’s bedside drawer as well as the complainant’s assertion that it belonged to a girl he was sleeping with who was older than him. A female friend was also shown an item of underwear said to belong to the accused. Whether the items were the same was not and could not be established.
The complainant spoke of his relationship with the accused to four of his female school friends whom I shall refer to as E, T, R and C. They each gave evidence. The complainant says he showed them text messages from the accused. Three of those girls, E, T and R, confronted the accused with the allegation that the complainant had had sex with her but were satisfied with the accused’s denial. The complainant also told E, T and R that he had made up the allegation and that he had lied to them.
The complainant was attending counselling at Menslink and as a consequence of information provided by Menslink, Mr Chambers from the Department [of Disability, Housing and Community Services ACT], Office [for] Children, Youth & Family [Support], Care and Protection, gave evidence of his interview with the complainant. The complainant said in his interview that his allegation that he had had a sexual relationship with a teacher at his school was false and that it had not happened. He said that the allegation was made to get some attention on himself.
Mr Tulley, the school principal, gave evidence that the accused should have been well aware that her contact with the complainant was contrary to the Catholic Education Office Code of Conduct and should have reported this conduct.
To support an aspect of one of the allegations that the complainant made, the prosecution called a friend of the complainant, M, who gave evidence that he picked up the complainant from a suburb in Canberra in late 2004 or 2005 and that he had with him a bottle of champagne that the witness thought was “Pink”.
Count 2 of the indictment
The complainant’s evidence as to his first sexual encounter with the accused is the initial reference point. His evidence of the other events are all related to this initiating event. A significant difficulty that I have with this reference point is that the objective evidence does not support this event occurring, if it occurred at all, at the time charged in the indictment.
In order to understand why this is so, it is necessary to record that term 1 at the school was from Monday, 31 January 2005 until Friday, 8 April 2005. The Easter long weekend commenced on Friday, 25 March 2005 and concluded on Monday, 28 March 2005. The school holidays following commenced on Monday, 11 April 2005 to Friday, 22 April 2005. The second school term commenced on Tuesday, 26 April following a public holiday for Anzac Day on Monday, 25 April, and ended on Friday, 1 July 2005. The school holidays then commenced on Monday, 4 July 2005 and ended on Friday, 15 July 2005. The third school term commenced on Monday, 18 July 2005.
The prosecution, by way of opening, handed up and relied upon a “case statement”. The events leading up to the matter charged in count 2 were said to be:
During the Easter school holidays of 2005 (9 April 2005 to 25 April 2005) the complainant turned 14. It was during this time that the complainant received a text message from the accused in which she indicated that she wanted to have sex with the complainant. In a subsequent telephone conversation during the Easter 2005 long weekend, the accused again confirmed that she wanted to have sex with the complainant but stated that they should wait until he was sixteen as it was illegal until he was over sixteen.
The acts constituting count 2 were then said in the case statement to have taken place approximately two days later. The time sequence stated in the opening does not reflect the fact that the Easter long weekend was, in fact, two weeks before the Easter school holidays. It also does not come to terms with what appears to be a contradiction as to the occasion of the first sexual act in the statement made to the police and the evidence given by the complainant at the committal.
As noted in the case statement, the indictment charges the first sexual act as occurring between 9 April 2005 and 25April 2005. In cross-examination before me, the complainant agreed that he had stated to the police that during the Easter long weekend, text messages had been sent and received by him and the accused and that this continued until they became of a sexual nature. He further confirmed in cross-examination before me that he had called the accused from his home number and that there was a telephone conversation with her that lasted about four hours. He said that it was the next weekend that he had sex with the accused. He then agreed that he had said at the committal that he had a conversation with the accused on his home phone to the accused’s mobile telephone and “we spoke nearly throughout the whole night”. His evidence, in cross-examination in this trial, was that sex on the first occasion took place “probably within a week, within two weeks” of a long telephone conversation although he agreed that he had told the police that it happened “two days later”.
The complainant’s assertion as to the timing of this event is just not supported by such of the telephone records as are in evidence.
The telephone records
The prosecution case emphasised the extent of the telephone contact between the complainant and the accused. Partly, it seems that was done to support an inference that there was something untoward in that contact particularly as the Catholic Education Office, to the accused’s knowledge, had counselled teachers against text message contact with students. The other emphasis was on the extraordinary number of times the complainant is recorded as having contacted phone numbers associated with the accused.
The primary records put in evidence to demonstrate contact were the call charge records in respect of a mobile number in the complainant’s name that ended in 624 (I limit the designation of the actual telephone number because it is protected identity information). The records that were put in evidence were for a period commencing on 1 April 2005 and ending on 30 June 2005. The records show contact by text to a number of telephone numbers associated with the accused. The accused’s husband ran an electrical contracting business and each of the accused’s daughters and her son had mobile telephones. The contact from the complainant’s number to each of these numbers was put in evidence. There was an extraordinary number of text messages sent by the complainant to one of these telephones. That mobile telephone number ended in 773 and I refer to it as the primary mobile number of the numbers associated with the accused. For a period of two weeks from 20 April 2000 to 4 May 2000 there was also significant contact to a mobile telephone number ending in 984 and I deal with this later.
Although these records from the complainant’s mobile phone number showed this extraordinary number of text messages to the accused’s primary mobile number, any record which might or might not have shown response to such messages from the primary mobile number was not put in evidence. No satisfactory explanation was given for this other than “it was an administrative oversight”. I am still at a loss to understand why this was not done or how it could be overlooked.
The number of text messages sent to the accused is so extraordinary as to demonstrate an obsession with the accused. However, without a record of the text messages sent from the accused’s primary mobile number being put into evidence, there is no corresponding evidence that the obsession was reciprocated by way of any response from the accused.
There is another significant matter. I was also not given any adequate explanation as to what I should make of the telephone records which showed as a common occurrence the sending of text messages within a very few seconds of each other. The only witness called to explain these records was Mr Saliba from Vodaphone who was the service provider for the complainant’s mobile service. He was unable to explain why so many texts were recorded within very short periods of time and whether or not they were associated in some way. As best I understand it, one explanation that he assented to could have been because the message was re-sent repetitively. Another explanation was that only a certain number of characters (said to be 160) can be sent in any one message. A message with more than the number of characters that can be sent at the one time would show up in the records as being sent in a multiple fashion separated only by seconds. No evidence was put to me to enable any distinction to be made between these possibilities.
As I have noted, of significant concern in assessing the prosecution case regarding the telephone contact between the accused and the complainant is the lack of any evidence as to any outgoing response from the primary mobile number. Responses from that telephone, as well as the pattern of such responses, should have been an important part of the prosecution case. Although eventually the accused, in giving evidence, agreed that there had been extensive communication between herself and the complainant by way of text messages, she said that was due to her counselling obligations as his year co-ordinator. That explanation could not be tested in any meaningful way. In the absence of telephone records that might have contradicted this explanation, I consider that I have no option but to accept it. There was just no record put in evidence of any response to the plethora of text messages that the complainant was apparently sending to the primary mobile number at all hours of the day and night.
The prosecution also sought to rely upon certain records related to a mobile telephone number ending in 984. That was also a Vodaphone service. It was activated on 20 April 2005 and disconnected on 30 May 2006. The call charge records, however, cease on 4 May 2005.
The subscriber check in relation to this telephone number is in the name “Tania Toniac”. The address given corresponds to the accused’s home address and the date of birth is correct except it is 10 days later than the accused’s actual date of birth. There are a number of possibilities. One might be a salesman’s mistake in taking down the details; another is that a person familiar generally with the accused gave these somewhat inaccurate details. For its part, the prosecution wishes to say that the misdescriptions were deliberate on the part of the accused to conceal the extent of the telephone contact with the complainant. The telephone records for this number show a significant number of contact with the complainant’s mobile telephone from Wednesday, 20 April 2005 to Wednesday, 4 May 2005. Over 250 text messages were sent, some 15 voice calls of some length and the balance very short voice calls. Telephone records put in evidence that related to the complainant’s mobile number show an even greater number of contacts from that number to the 984 number in that two week period. The total number of contacts was 895, the vast majority being text messages.
The prosecution did not allege or seek to show any real time correspondence between the texts sent and received even allowing for a delayed response. Any conclusion to be drawn from these records is further complicated by the records seeming to show that the complainant had sent, on the same day, a further significant number of text messages from his mobile number to the accused’s primary mobile number. In any event, without evidence of the responses (if any) from the primary mobile number, it is not possible to discern any pattern to the contact between the complainant’s number and these other two numbers.
As I have said, as far as the number ending in 984 was concerned, I was asked to draw the inference that the accused had given “slightly false details” to obtain the SIM card for this telephone service and it was said that this was done to draw attention away from herself. It was also said that she used that number because the primary mobile telephone was in the name of her husband’s business and he “would” have paid the telephone bill for that telephone. The submission was that the accused “had deliberately done that in order to hide all of that contact with [the complainant]”.
I am not prepared to draw such an inference on the evidence before me. It fails at the outset because of the competing inferences to which I have referred, as well as the fact that I have no evidence of any accounts for the primary mobile number or that the accounts would show any contact by way of response to the texts that were sent to the primary mobile number either before, during or after the two week period that the number ending in 984 was activated. I add that the records for the voice calls made from the primary mobile number were put in evidence and those records show seven short calls over the period 1 April 2005 to 30 June 2005 to the complainant’s telephone and only one call of greater length, that being one of 48 minutes on Saturday, 9 April 2005 at 3:37 am. Only one voice call of one minute duration was recorded from the primary mobile number in the period 20 April 2005 to 4 May 2005 yet this was a period where multiple texts were being sent from the complainant’s mobile to the primary mobile number.
The accused denied that she was associated with the number ending in 984. In fact, no evidence was adduced from the complainant in his examination-in-chief about this number or his making of any calls or text messages to it. It was only in cross-examination that the complainant said the following:
Could you explain the circumstances in relation to the process by which you started calling that number [the number ending in 984]?---I gave her an old phone I had and she then went and bought a pre-paid SIM card and activated it and kept the phone a secret so she didn’t have large phone bills on her other number which was also used as I was led to believe by - like the family business as well, so she used this second phone to talk to me to prevent like anybody noticing large phone bills.
The prosecution asked that I draw an inference to this effect as indicating the accused’s guilty wish to keep her association with the complainant secret. I do not see that this inference is supported by the telephone records and I have no evidence that the actual telephone accounts may have shown this. The misdescription of the name and date of birth of the subscriber, and the continuance of calls to the primary mobile number during the limited period that the number ending in 984 was used, militate against a finding beyond reasonable doubt that the accused was associated with the latter number. The telephone records of the texts sent from the complainant’s mobile number to the 984 number and to the accused’s primary mobile number do not clearly show alternate use. That is to say that one was being used when the other was not. Rather, the records show a puzzling number of times when both numbers received texts in the same time-frame.
The other telephone record in evidence as far as the complainant is concerned is that of the complainant’s home telephone. That service was in his mother’s name. Unlike the other telephone records, it commences from 15 February 2005 and shows two short calls from the complainant’s home telephone to the primary mobile number over the Easter long weekend. There is no long call recorded from this home telephone to a mobile phone associated with the accused that lasted “about four hours” as asserted by the complainant and referable to what the complainant said was the increasing number of text messages of a sexual nature that commenced over the Easter long weekend.
The telephone records of the complainant’s home telephone number record a call to the landline number at the accused’s residence. That call is recorded as at 23.23.08 on Saturday, 23 April 2005 of 3.52.24 hours duration. This is the first call in the records before me that can be described as a call of four hours duration and one where “we spoke nearly throughout the whole night”. If that is taken as the possible reference point as to when the first event took place, then it is clear that the first event could not have taken place until after the April school holidays. The second school term commenced on Tuesday, 26 April 2005.
There are two other telephone calls recorded from the complainant’s home telephone which could fit the description given by the complainant. A call occurred on Friday, 20 May 2005 that commenced at 23.30.48 and that was a call of 6.19.24 hours duration. On Saturday, 21 May at 22.08.08 a call commenced which was of 4.14.10 hours duration. Those calls are well outside the time-frame set by the indictment for the event the subject of the second count to have occurred.
Another of the complainant’s reference points was his breakup with his then girlfriend which, he said, resulted in the accused picking him up after school and taking him for a drive. That, he said, occurred just before the April school holidays. However, the April school holidays commenced on 11 April 2005 and not, as the complainant’s evidence seemed to imply, at a time before the Easter long weekend. A further reference point was his birthday that took place in the April school holidays. The complainant referred to a text that he received the night before his birthday. His birthday was in the latter part of April 2005. He said that it became clear to him from that text that the accused wanted to have sex with him. By reference to that event, the first event occurred, he said, three or four days later. As I have said, the other firm reference point that he gave was the four hour telephone call that I have referred to. He said that the first event occurred after that call, “sometime around there, probably within a week, within two weeks”.
Whichever way it is looked at, on the objective material before me, the first event, if it occurred, must have taken place outside the time frame specified in the indictment.
Count 3 on the indictment
On that basis, the evidence given by the complainant as to the second event (count 3 on the indictment) is also outside the time frame specified by the indictment. On the complainant’s account, that event occurred in the April school holidays when the accused’s family “was away again”. That event just could not have happened in the time frame that the complainant assigned to it, having regard to the reference points to which he had deposed in respect of the events constituting the first event.
I am left with the evidence that neither of these events could have taken place in the period between 9 April 2005 and 25 April 2005. I cannot be satisfied beyond reasonable doubt that either of the events, if they occurred at all, took place in the time period as charged in the indictment.
Count 4 on the indictment
The third event, the subject of count 4, is said to have occurred between 12 June 2005 and 5 August 2005. The complainant’s evidence was that this occurred, “A few weeks after – like, after the holidays when we went back to school”. That would make the occurrence of this event several weeks after the second event described by the complainant.
This third event is one of 10 such events that the complainant says took place. Even if that number were to be taken to include the events that are the subject of counts 5 and 6 on the indictment, on the complainant’s account, the second, third and fourth events, together with at least five other events of a sexual nature, took place in the house at which the accused resided with her family.
The complainant’s evidence was that at a time after he had been referred to counselling at Menslink, the sexual aspect of his relationship with the accused ceased. His evidence in cross-examination was:
But you’ve already agreed by the time you went to Menslink the sexual aspect of it had stopped, it being the supposed relationship between you and Mrs Tominac, is that right?---No, not completely, I don’t think. Not when I first started going to Menslink.
Well I asked you that before and you said your best - I don’t remember your exact words, but you said that your best recollection was that by the time you went to Menslink the sexual aspect of it was finished?---By the time I told Menslink I think.
No I asked you. I then reformulated the question and said “Did you have any sex after Menslink?” and you said “No”?---Not after the issues with Menslink that led to it having to be shared with other people.
The issues to which the complainant refers in this evidence involving the sharing with other people is a reference to the referral that Menslink made to the Office for Children, Youth & Family Support. Mr Chambers, who was from that organisation, gave evidence that the information was received on 1 July 2007 and he interviewed the complainant on 8 July 2007. From this evidence, which I accept, I cannot be satisfied beyond reasonable doubt that any acts of a sexual nature took place between the complainant and the accused after early July 2007.
That conclusion leads to another matter of concern about the reliability of the complainant’s account. The complainant’s evidence is that the occasions of which he was speaking and which are the subject of counts 2, 3 and 4 on the indictment, occurred at the accused’s house on weekends (although whether on the Friday or Saturday late evening was not made clear). In any event, the complainant said that over this time he was going to his father’s house “about” every second weekend. If early July is taken as the time when any sexual relationship ceased, that would leave no more than four weekends available for the eight events of a sexual nature that the complainant said had taken place in the second or third school term.
Another factor in assessing the reliability of the complainant’s account was that on the majority of the Friday and Saturday nights over this time period there were a substantial number of texts being sent by the complainant to the accused’s primary mobile number. A significant number were sent late in the evening not ceasing until sometime between 10.45 pm to 11.44 pm. The fact that the complainant was texting the accused up to these times seems to me to make it less likely that physical contact was made between the complainant and the accused late on those particular evenings particularly as there is a lack of evidence of any response from the accused to the texts being sent.
As far as count 4 on the indictment is concerned, I have sufficient reservations about the complainant’s evidence as to the occurrence of this event deposed to by the complainant as to not be prepared to find beyond reasonable doubt that it took place as alleged in the indictment.
Counts 5 and 6 on the indictment
There are also difficulties in my acceptance of the complainant’s evidence as to the two events the subject of counts 5 and 6 on the indictment. Count 5 deals with an event that is said to have taken place at the complainant’s own home but not necessarily after the events that are the subject of counts 2 and 3 in the indictment. Count 6 is concerned with an event at the school in the accused’s office.
The second school term ended on 1 July 2005. The complainant believed that these two events took place in term 3. That term did not commence until 18 July 2005. The reasonable implication that I take from the complainant’s evidence is that the sexual relationship with the accused ceased at a time prior to very early July 2005 when Youth and Family Services became involved. That means that these events just could not have taken place when the complainant said they did.
The event, the subject of count 5 on the indictment, was said to be initiated by telephone contact between the complainant and the accused. If the event is said to have taken place after early July 2005, then I am quite unable to understand why no records of telephone contact have been produced after that date to support the possibility of this event having occurred when the complainant said it did. I can only take it from the records that have been put in evidence and which show that the last of the telephone contact ceased with a text at 3.24.35 on 26 June 2005. The records seem to confirm that the telephone contact between the complainant and the accused did not continue past that date.
The event at the complainant’s home which involved the complainant taking a day off school could have only taken place in the school term. Yet I am satisfied that any sexual relationship could not, on the material before me and the complainant’s own evidence, have continued past early July 2005. The second school term ended on 1 July 2005 but the complainant was adamant that this event and the event in the accused’s office occurred in term 3.
The complainant’s reliability as to these events was further challenged by the different accounts that he gave of the event that he said had occurred at school in the accused’s office.
The complainant’s account in his evidence-in-chief of the event at the school was:
And what’s the next thing that happened that you remember?‑‑‑Tania had an office by herself, like, because she was Year Co-ordinator and talked to students, like counselled a lot of students. She had her own office and one day I went into that office and we had sex in there. Like Tania was wearing a blue denim skirt and I was in my school clothes and what Tania did was just like took off her underwear and she sat on the desk and we had sex in that room, after like the curtains were closed so no one could see in and the door was closed. And we had sex there.
When you say “sex” what sort of sex was that?---Penile/vaginal sex.
What happened after that?---Tania gave me her underwear as a gift as such and so said for me to keep those and they were like pink and G‑string style and really lacy sort so like see through lacy kind of.
What did you do with those?---I kept them, put them in the top drawer of my bedside table.
That account gives no indication that what took place was pre-meditated in any way.
The complainant, in cross-examination, was asked to draw and describe the office in detail. Having done so, he was asked about the partitioning and the fact that the metal joiners in the partition left a sufficient gap for persons outside of it to see into the office. It was only after this questioning that the complainant gave the following evidence:
Now, what was your reason for going to the office at that time?---I believe that time that I went to the office it was actually to have sex there. We had discussed it prior to this and in those discussions we also, like, in prior discussions had put masking tape up over these, I can’t remember what you called them, the separators between the panels that looked into the corridor so it had been pre-planned and I believe that time I went strictly for - to have, like strictly to have sex in her office.
So you had discussed the fact that you were going to have sex in her office?---Yes.
And you had talked about putting masking tape over - - -?---And had done so previously.
Sorry?---We had - we put masking tape over, like, a few days before the actual event.
You had put masking tape over those holes?---Yes, we had.
We had? Did you do that or did she do that?---I believe we both discussed it and I put them up - I put the masking tape up over the holes. It wasn’t the first time, there had been things covering the holes because lots of students looked in and there was confidentiality, like a lot of people weren’t comfortable with people being able to see in from outside so it had been done before but we decided to put it up again for the purpose of having sex in the office.
I take this as a convenient explanation by the complainant as to why such a risky event for both the complainant and the accused could have taken place when it became plain from the cross-examination as to the location and disposition of the office that it lacked privacy. What greatly affects its acceptability and goes to the reliability that I might place on this account is that this is the first time that the complainant alleges pre-planning in respect of this incident. The complainant’s explanation for not saying anything about the pre-planning is that he was not asked the appropriate question to elicit this further detail. The prosecution did not seek to give any explanation as to why this evidence was not led at the committal or in examination-in-chief. The description of the event in the complainant’s earlier statement and his evidence at committal certainly gives the impression that it was a spontaneous event without any pre-planning. In my view, the elaboration given by the complainant damages his credibility as to the occurrence of this event. That also damages the reliance that I might place on his evidence as to the occurrence of the other events to which he deposes.
Making every allowance for the complainant’s age at the time and for the time that has elapsed, I am not prepared to accept as reliable his account as to the occurrence of either of the events that comprise counts 5 and 6 on the indictment.
What was said to others about the events
The complainant spoke to his female friends about the relationship. He said that he told one of those friends, E, of his intentions to have a sexual relationship with the accused. E did not give evidence of this. Her evidence was that she was told of a sexual relationship but not until after it had occurred. The complainant also told two other female friends, T and R, that he was having such a relationship. All of them said that they did not believe him but at a later stage they together met with the accused and asked her if the allegation of a sexual relationship was true. They were satisfied with her denial and later, although exactly when is unclear, the complainant told them that he had made it all up and lied about it.
The complainant told another older female school friend that he had a relationship with the accused. C said that she was shown three text messages after she had expressed disbelief as to the relationship. Her evidence was directed to a period of time after the complainant’s 15th birthday but she is clearly wrong about that. It must have been after the complainant’s 14th birthday. She said that the text messages she was shown under the name “Tania” in the inbox on the complainant’s mobile phone were:
“You’re such a great lover.”
“You can’t tell anybody about this because I’ll lose my job.”
“I love it when you cum inside me.”
I have no reason to doubt C’s evidence of the text messages that she saw. It is just possible that these messages may have been a fabrication by the complainant to give support to a boast about his relationship with the accused. However, I accept C’s evidence that the messages were not shown to her in a boasting context but rather because she was a friend. E did not see any text messages but the complainant spoke about them. T says that she saw a text saying something along the lines of, “I’ll meet you at Melba”. (Melba is reference to Melba High School which is near where the complainant resided.) R was not shown any text messages. Nevertheless, for reasons that I address in a moment, there is some cause to doubt the provenance of the messages shown by the complainant. In any event, such messages only support the complainant’s evidence in a general sense but not as to the specific allegations that he makes. One feature of that evidence is the fact that C says that she was shown the texts at some time around the complainant’s birthday. On the complainant’s account, the events the subject of counts 2 and 3 on the indictment had to have taken place after his birthday, but before the end of the April school holidays. C’s evidence was that she was shown the texts at school during a free period. At that time, the complainant told her that he had had sex with the accused “nine or ten times”. Again I have reservations about whether these events could have taken place in the available time-frame.
Evidence that casts doubt upon the source of the text messages was the evidence that was given by A. She had been the complainant’s girlfriend in 2007. She said that at that time she saw a text message under the accused’s first and second names on the accused’s mobile phone. The message was in the terms that she described as “she smelt the same cologne that he was wearing when they were together and that she thought that he looked very sexy”. A said she saw this message a “couple of months” before her relationship with the complainant broke up in October 2007. That was about the time that the complainant went to the police concerning the allegations the subject of this trial. The complainant, in his evidence, did not suggest any contact with the accused after 2005 and certainly not at this time. This evidence causes me to have some doubt about the provenance of the text messages that C saw.
The confrontation of the accused by the complainant’s friends and the complainant’s denial
The complainant’s female friends, E, T and R, gave evidence that they confronted the accused in her office at the school about the complainant’s relationship with her. None could say when this occurred, other than sometime in 2005. The accused denied any improper relationship; that denial was accepted by his female friends. Then, or at a later stage, the complainant told each of these three that he had made up the allegations. There is considerable variation in the evidence as to the detail of this meeting.
E said she and the accused spoke of the incident that had occurred when the complainant broke up with a former girlfriend and the accused had picked up the complainant after school. The accused had said that she had told her husband of the incident and her family knew about it. The accused denied that she and the complainant had kissed on that occasion. No evidence of these aspects of the conversation was adduced from T or R. It is unclear on the evidence if the accused discussed whether the matter should have been reported to the principal but E thought that it was possible that they had such a discussion. T said that it was the accused who said that she did not want to take the matter any further.
There is also uncertainty as to whether the complainant was at the school when this confrontation occurred. He had said in his evidence that he was, and that he went into the room and said to the accused and his female friends that he had made it all up. That was not supported by either E or R who said that it was after their conversation with the accused that the complainant said to them that he had made it all up. In the case of E, she said that was a week or so later that she was told by the complainant “that he made it all up and that he lied about it all”.
The complainant’s further denial of the allegations
According to the school principal who gave evidence, the complainant was part of a “particularly challenging year group”. The accused, as part of her duties as year co-ordinator, arranged for counselling with the school counsellor. That counsellor said that he would have to refer the complainant to Family Services because of alcohol, drug and other issues. The accused referred the complainant to counselling with Menslink sometime “around” June 2005. As a consequence of one of these sessions, the Menslink counsellor referred an allegation to the Department responsible for Children, Youth and Family [Support], Care and Protection. The allegation was that the complainant had had a sexual relationship with a teacher at his school.
The accused was interviewed by Mr Chambers from the Department on 8 July 2005. After a discussion of a number of issues that the complainant said were present in his life at that time, he said that “the matter” had not happened. He said that he made the allegation to get attention on himself. He had apparently retracted the allegation right before the interview, but at the time the interviewer was not aware of the retraction.
The complainant’s explanation for his retraction of the allegations both to his female friends and to the interviewer is a professed desire to protect the accused. Given the number of people that he told of the relationship, that explanation does not seem to me to be a complete answer to the issue raised by the retraction of the allegations on two occasions when the complainant might have been expected to maintain it.
The school principal, Mr Tulley, in respect of an earlier occasion when the complainant was in trouble, noted that the complainant was being “creative with the truth”. On a later occasion, the principal found that the complainant had, by email, attempted to persuade another student who was also involved in a disciplinary incident, to “lead the principal’s inquiry down a particular path” which he said turned out to be unsuccessful.
None of this evidence in the prosecution case gives me any real confidence that I can accept as proved the specific allegations that the complainant now makes. Rather, it causes me to question the reliance that I can place on his account so as to be able to be satisfied beyond reasonable doubt that the particular allegations the subject of the indictment have been made out.
Matters raised in the defence case
The accused gave evidence denying the allegations charged on the indictment or that she was engaged in a relationship with the complainant of a sexual nature. The accused’s evidence was given in a straight forward but careful manner. Her denials were made confidently but I was left without any real explanation as to why she allowed or maintained the extent of the telephone contact shown by the telephone records to have taken place. Mr Tulley’s evidence that the accused was deeply compassionate and caring of the students for whom she was responsible goes some of the way but, as I have said earlier, the contact on the part of the complainant could only be described as obsessive. However, what the accused, in effect, says was her misjudgement does not give any greater credence to the complainant’s account unless I can be satisfied that there was more to it than that.
The accused said that the complainant was a needy student and that as the year co-ordinator, she was responsible for his pastoral care. She agreed that there was extensive telephone contact by the complainant to her. Her evidence was:
What can you say in relation to the pattern of that contact?‑‑‑From what I can remember at the time, [the complainant] was a very needy student. He felt that - that he could - he had obtained my telephone number and he felt that he could talk to me about things that were going on in his life and he was trying to contact me.
Now it’s going to be said to you that that was improper at the very least. What do you say about that, about this out-of-hours communication with [the complainant]?‑‑‑I say in hindsight, it didn’t look very good but I was very concerned for [the complainant’s] safety and wellbeing and so I did communicate with him at times.
However, she said that she did not generally respond to each of the hundreds of text messages sent which she said predominantly were requests to talk to her. She said that when she responded she did so “as I would be concerned that something would be happening to [the complainant]”.
There is just no evidence before me that the accused did in fact respond to the texts to her primary mobile number and I have no option but to accept her evidence in this respect. In fact, the records of voice calls from the accused’s primary mobile number show calls on only seven occasions to the complainant’s mobile number over the period from April to June and they do not appear to be responsive to any particular text message that she may have received.
The fact that I have no evidence of any text response to the abnormal number of texts to the accused’s primary mobile number is consistent, as I have said, with an obsession on the complainant’s part and I am unable to conclude that this obsession was reciprocated on the accused’s part.
There were, however, some lengthy voice calls recorded from the complainant’s mobile to the accused’s primary mobile number as well as from the complainant’s home landline number to the accused’s home landline number. These certainly raise a suspicion as to the nature of the relationship.
The accused was asked about three of these extraordinarily lengthy calls. The first occurred on Friday, 23 April 2005 at 23.23.08 of 3.52.24 hours duration:
Right. Now, what was that conversation about?‑‑‑It would be very general things about, I think, he was having some problems with his dad, fighting with his father and not feeling very happy having to stay the weekend at his dad’s house or something along those lines.
See that’s from his mum’s house number?‑‑‑I’m sorry. Well, he may have spent the previous weekend at his dad’s. The problems were generally at his dad’s house.
In respect of a call on Friday, 20 May 2005 at 23.30.48 of 6.19.24 hours duration, she said:
There’s a very long telephone call that went into the early hours of the morning. Do you see that one?‑‑‑Yes, I do.
Do you remember that one?‑‑‑I don’t remember it specifically, no.
A further call was received on Saturday, 21 May 2005 at 22.08.08 of 4.14.10 hours duration. The accused said “it would have been along similar lines”.
The length and timing of these calls seems to require more of an elaboration of their timing and purpose than the accused has given. This is particularly so as each call went for a lengthy time into the early hours of the following morning. Unsatisfactory as I find the accused’s justification, because of the extraordinary length and timing of these calls, I cannot say that there is a real basis upon which I can reject out of hand the explanation given by the accused for them. It is just reasonably possible that they are all connected with the accused’s counselling of the complainant having regard to his troubled situation.
There were also a number of other relatively lengthy voice calls from the complainant’s mobile phone to the accused’s primary mobile number. They were not put to either the complainant or the accused but, in light of the complainant’s troubled history and the accused’s professed role in counselling him, I still cannot reject as being reasonably possible the same explanation for them.
Another aspect upon which the prosecution relied is the inconsistencies between the evidence given by the accused and that of E and T as to what was said when they confronted the accused at the school. In substance, that relates to whether it was the accused who did not want to take the matter any further and also whether the girls who confronted her were invited by the accused to do so. In addition, as far as E was concerned, it related to whether the accused had picked up the complainant after his break-up with his girlfriend and had told her family about it.
I take as a starting point the proposition that on being confronted with what the complainant alleged, the accused no doubt wished that the matter go no further. I do not hold against the accused the fact that she did not take any further action to report the matter to the school principal as the prosecution suggests that she should have done. Nor do I think the fact that she may have said to or left the impression with E that the accused’s family knew of her association with the complainant necessarily amounts to a concession of untoward conduct between her and the complainant. R, in her evidence, did not refer at all to these matters. Although I have reservations about the account given by the accused of what might have been said at the meeting, it is not sufficient to cause me to find that, at the meeting, the accused attempted to prevent the matter being taken further because she had a motive to conceal her relationship with the complainant.
The evidence of the accused’s husband
Joe Tominac, the accused’s husband, gave evidence directed to the fact that it was not likely that he was away from the house in Canberra and at the family holiday house on the coast at the times when the complainant said that the events in the house had taken place. Mr Tominac’s evidence also challenged the complainant’s assertion that the accused picked him up on the first occasion that is the subject of the second count on the indictment in her husband’s car, “a green Audi”. The accused’s husband said it was him who drove the car and whenever he went to the holiday house at the coast he would have driven the Audi. He said that its colour was “Ming blue”. Photographs of a car of that colour were tendered to demonstrate that colour.
From the overall tenor of the evidence of the accused’s husband as to his and the family’s activities, it is difficult to see how a relationship of the nature and extent described by the complainant could have taken place in the manner described by the complainant. On the other hand, it is also surprising that the husband was unaware of the very lengthy telephone calls and the others of lesser length that took place on the occasions that the telephone records show.
Matters relied upon by the prosecution to support the complainant’s evidence of the allegations
In seeking to support the complainant’s credibility, the prosecution refers to aspects of the complainant’s evidence which it said were supported by other evidence.
Those aspects included the evidence given by the complainant as to the underwear, the bottle of Pink champagne and the fact that the complainant had told him that she had had a tubal ligation. The evidence called to support these matters is somewhat tenuous and certainly equivocal. I have previously referred to the evidence concerning the underwear. The complainant’s mother found it in the complainant’s bedroom drawer and he showed an item of underwear to his friend T. I have already noted that the description of the underwear is not sufficiently distinctive to say that it was the same and I am not prepared to draw any conclusive inference from this evidence that it was the same item that the complainant says was given to him by the accused. Similarly, the evidence given by his friend M, who picked him up at an undetermined address, is not specifically located so as to be taken as the accused’s address. M’s evidence does not directly confirm that the bottle of what the complainant described as Pink champagne was necessarily the same as that referred to by the complainant in his evidence.
As to the complainant’s assertion concerning the accused telling him that she had breast implants, this was directly contradicted by the accused’s unchallenged evidence that her breast augmentation occurred in December 2005.
Another matter which I assume that the prosecution relied upon was the complainant’s professed familiarity with the accused’s house and bedroom. In that regard, not only were some of the descriptions of the disposition of the house inaccurate, but it is reasonably possible that the descriptions given by the complainant were derived from knowledge obtained on a later occasion when the complainant attended a party at the house in October or November 2005.
Conclusion
Overall, the matters put by the prosecution as support for the complainant’s account of the matters that are the subject of the charges on the indictment before me do not overcome the reservations that I have earlier expressed about the complainant’s evidence. I am not satisfied beyond reasonable doubt that any one of the charges is made out.
I find the accused not guilty of the six charges on the indictment.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 6 July 2009
Counsel for the prosecution: Mr J Lundy
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
Counsel for the accused: Mr K Archer
Solicitor for the accused: Kamy Saeedi Lawyers
Dates of hearing: 18 – 22 May 2009
Date of judgment: 6 July 2009
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