R v Taylor
[2010] ACTSC 121
•6 October 2010
R v LIAM TAYLOR
[2010] ACTSC 121 (6 October 2010)
CRIMINAL LAW – trial by judge alone – five counts of act of indecency upon a person aged under ten years – one count of engaging in sexual intercourse with a person aged under ten years – three complainants – no inference to be drawn by way of tendency or coincidence reasoning – what constitutes an act of indecency
EVIDENCE – evidence of unhealthy sexual interest in complainants – reference to innocent purpose for accused acting as alleged in count two – evidence of accused not persuasive or truthful but made no admissions nor betrayed a consciousness of guilt
Supreme Court Act 1933 (ACT), s 68C
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2
Crimes Act 1900 (ACT), s 50
R v Morton [1998] SCACT 8 (24 February 1998)
R v Court [1989] 1 AC 28, 35
Phillips v Police (1994) 75 A Crim R 480
No. SCC 410 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 6 October 2010
IN THE SUPREME COURT OF THE )
) No. SCC 410 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
LIAM TAYLOR
ORDER
Judge: Higgins CJ
Date: 6 October 2010
Place: Canberra
THE COURT ORDERS THAT:
Verdict of not guilty be entered in respect of counts 1, 2 and 3.
Verdict of guilty be entered in respect of count 6
On 24 July 2009, an indictment was presented against the accused alleging various sexual offences were committed by the accused as follows (names of complainants omitted):
COUNT ONE
... THAT between the 1st day of August 2005 and the 25th day of December 2005 at Canberra in the Australian Capital Territory Liam Taylor committed an act of indecency upon a person aged under 10 years, namely [complainant 1].
SECOND COUNT
... THAT between the 1st day of August 2005 and the 25th day of December 2005 at Canberra aforesaid Liam Taylor committed an act of indecency upon a person aged under 10 years, namely [complainant 1].
THIRD COUNT
... THAT between the 19th day of March 2007 and the 5th day of April 2007 at Canberra aforesaid Liam Taylor committed an act of indecency upon a person aged under 10 years, namely [complainant 2].
FOURTH COUNT
... THAT between the 25th day of July 2007 and the 30th of September 2007 at Canberra foresaid Liam Taylor committed an act of indecency upon a person aged under 10 years, namely [X].
FIFTH COUNT
... THAT between the 23rd day of November 2007 and the 30th day of March 2008 at Canberra aforesaid Liam Taylor engaged in sexual intercourse with a person aged under 10 years, namely [complainant 3].
SIXTH COUNT
AND IN THE ALTERNATIVE THAT between the 23rd day of November 2007 and the 30th day of March 2008 at Canberra aforesaid Liam Taylor committed an act of indecency upon a person aged under 10 years, namely [complainant 3].
The accused has validly elected for trial by judge alone.
It follows that, pursuant to s 68C of the Supreme Court Act 1933 (ACT) the trial is to be conducted as if it was before a jury save that I am required to give a judgment setting out the principles of law and findings of fact relied upon including any warning which a jury would be given.
The accused entered a plea of not guilty to each count. The trial was conducted according to the regime required by Div 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That is, the evidence of the child complainants was taken pre-trial and recorded audio-visually.
The first date for the taking of such evidence was 4 December 2009. On that day Mr Doig, for the Crown, advised that the Crown did not wish to press count 4. A verdict of acquittal was recorded accordingly.
On that day also the evidence of [complainants [1] and [2]] was taken in respect of counts 1, 2 and 3. On 10 December 2010, the evidence of [complainant 3] was taken in respect of counts 5 and 6.
General Direction
In this case I must not only give directions of law but also make all findings of fact. In so doing I have to remind myself of the heavy burden on the prosecution to prove each element of any offence alleged to the criminal standard, that is, beyond a reasonable doubt. I have to bear in mind that that burden never shifts to the accused. He bears no onus of proof or disproof. He is entitled to a presumption that he is innocent of the accusations against him. It also must be borne in mind that, though there were four complainants, the evidence of and in respect of each must be separately considered. Nor, in the circumstances alleged, can there be any inference drawn by way of tendency or coincidence reasoning. Indeed, one of those complainants is no longer involved and has given no evidence.
The elements of the offences
All but count 5 alleges the commission of an act of indecency by the accused upon the named complainant. As each of the complainants was, at the relevant time, under the age of 10 years, lack of consent is not an element of those offences nor of that alleged by count 5.
For the purposes of the latter count, s 50 Crimes Act 1900 (ACT) defines “sexual intercourse” relevantly as
sexual intercourse means—
(a)the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
...
An act of indecency “upon” a person implies physical contact which is, in the circumstances, “indecent”.
What is “indecent” was addressed by Crispin J in R v Morton [1998] SCACT 8 (24 February 1998). I respectfully adopt his Honour’s formulation of that concept. His Honour adopted the opinion of Lord Griffiths in R v Court [1989] 1 AC 28, 35:
Whether or not right-thinking people will consider an action indecent will sometimes depend upon the purpose with which the act is carried out. An obvious example is the examination of an unconscious woman’s private parts. If carried out by a doctor for a proper medical purpose no-one would consider such an examination indecent if carried out by a stranger for a prurient interest everyone would consider it indecent.
... The fact is that right-thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent.
The question thereafter (for example, Phillips v Police (1994) 75 A Crim R 480) is not merely of offensiveness or even immorality, it is whether it is indecent according to the standards of ordinary, decent-minded, but not unduly sensitive, persons in this community.
His Honour continues at [26]:
In my view one must begin by asking whether the conduct in question is capable of amounting to an indecent act. If it is not so capable then an improper motive will be incapable of converting it into one. On the other hand, if it is capable of amounting to an indecent act then the motive and/or intention of the accused may be determinative of whether it was in fact indecent.
I respectfully adopt that approach to these allegations of committing an indecent act.
It must also be proved that the act was not only indecent but both intentional in the sense of being deliberately performed and in circumstances where the accused is aware that the act would be regarded as indecent by the standards of right thinking members of the community.
The Crown Case – [Complainant 1] – Counts one and two – acts of indecency (2) between 1 August 2005 and 25 December 2005.
[Complainant 1] was born on 30 September 1996. She was eight or nine years of age at the time of the alleged offences.
The evidence of [complainant 1] was taken on 4 December 2009. She knew the accused as a friend of her mother. “He was nice to me”, she said. She was interested in learning about music. It was understood that the accused had some interest and expertise in that area. He spoke to her about exercises to do and breathing “better for longer” in the context of preparing to play some wind instruments. Twice, at his house when she was in year three, he got her to perform “exercises”. She said:
He made me lie on the ground and then he lied on top of me.
Once this was in the lounge room of his house and once in the bedroom. In each case both were fully clothed. She recalled her mother was in the house on each occasion. After lying on her he “moved his body around in circles”. On this location she said, “I’m pretty sure that his penis probably rubbed against the area where my vagina is.” He stopped after about five minutes. There was no conversation. I note that “pretty sure” denotes an element of uncertainty.
On the second occasion, and I so infer because [complainant 1] said that the accused introduced the occasion by saying, “Let’s do those exercises again”, he took her to his bedroom and threw her “gently” onto the bed. The actions of the accused and her position in relation to him were thereafter the same as on the first occasion.
On each occasion, she said, she felt his penis but it was not clear that she was asserting that it was erect. It could not therefore, be concluded that the accused was sexually aroused whilst performing these acts.
She also gave evidence that that after swimming with him at Tuggeranong pool she had a shower at the accused’s home. He was in the shower room with her and, she said, “I’m pretty sure he helped me wash myself”. Again, that expression denotes some element of uncertainty.
It is, however, not alleged that the accused on this occasion acted indecently towards [complainant 1].
Shortly thereafter, she told her mother she did not want to go back to the accused’s house. She did not see him thereafter. In cross-examination, she agreed that on these three occasions the accused’s girlfriend [MM] was also in the house.
She said it was the accused’s full weight on her when he lay on her, but she did not protest.
Of course, it is not inconsistent with the accused laying on [complainant 1] that she, perhaps mistakenly, believed it was his ‘full’ weight. He is a heavily built man. As to her degree of certainty that these events occurred she was asked what she meant by “probably”. She answered:
Well, when I say probably I mean it – it could have happened, but I’m not totally sure, but I’m more kind of sure than not sure, if that makes any sense.
She did, however, refuse to resile from or concede any doubt that the accused had suggested to her that she take a shower and did enter the shower room and put his hand into it to help her in the shower.
When challenged as to whether the “breathing exercises” had taken place, she said:
I’m pretty sure they did take place, it did take place.
She did not resile from her assertion that the second incident, in the bedroom, “did happen”.
At the trial, on 27 July 2010 [complainant 1]’s mother gave evidence. She had met the accused when a student at Lake Tuggeranong College. She became aware in late 2004 that the accused had returned to Canberra from Queensland. They renewed their friendship. He, with her agreement, took [complainant 1] to the pool, shops and his home. She was aware that the accused had a partner [MM] with whom he had a child born March 2006. She had ceased to see the accused about then. She said that the accused was “very affectionate” towards [complainant 1]. “He was always hugging and kissing her and putting her on his lap”. She did not see anything in that interaction which caused her any alarm.
I do not regard that interaction as evidencing an unhealthy sexual interest in [complainant 1].
There was an occasion when she spoke to the accused about [complainant 1] learning to play a musical instrument. She knew that the accused had taught children to play musical instruments. He agreed he would assist [complainant 1].
It was late in 2005 that [complainant 1] said to her mother that she did not want to go to visit the accused and [MM]. When pressed as to why, [complainant 1] told her she did not want to do any more exercises with the accused.
She demonstrated to her mother the “exercises” that the accused had performed with her.
[Complainant 1]’s mother then went to see the accused and [MM]. She questioned him about the exercises. He did not deny that he had done what [complainant 1] had said he did but offered the explanation that “they were exercises his mother had performed upon him”. They were designed, he said, to strengthen stomach muscles to blow a longer note on a flute or trombone or whatever instrument.
[Complainant 1]’s mother was “upset and angry” and, in effect, asked him how he would feel if he had been discovered by her doing those “exercises”. He reiterated his explanation.
She had not, she conceded, complained to police of these incidents until told by [complainant 1] of the accused assisting [complainant 1] with her shower after they had been to Tuggeranong Pool.
In cross-examination [complainant 1]’s mother conceded that it had not been put to her by [complainant 1] that the accused had “touched” her. She did say that the instrument for which [complainant 1] had been evaluated at school was the violin, not a wind instrument. She had not referred to a wind instrument in conversation with the accused.
Whilst there is some reference to an innocent purpose in the accused acting as he is alleged to have done, he does not deny so acting. It is conduct which objectively at least could be indecent depending on the circumstances and the purpose of the physical contact.
The Crown Case - [Complainant 2] – Act of indecency between 19 March 2007 and 5 April 2007
[Complainant 2] was born on 6 February 1998. Thus, at the time of the alleged offence she was nine years of age.
She saw the accused last in 2007. He visited at her father’s home. He lived with her father for a time. He was also a friend of [complainant 2]’s father’s ex-girlfriend [MA].
She was reminded of a time when she and the accused were together at [MA]’s house. Her brother [JD] was also present. She was sitting on the bed. The accused was showing her pictures of his baby son, and was then putting them away. As to what then happened she said:
... he told me to kiss him.
She kissed him on the lips, then, she said, lying on top of him. They were both fully clothed. Then, she said:
... he rolled on top of me and then he started humping me.
She described that as lying on top of her and his private part area moving over hers, back and forwards and up and down. He ceased that after “three or four minutes”. She did not mention what had occurred to [JD]. The next afternoon she mentioned it to her father when they were going to her mother’s place. Her father discussed that allegation with her mother.
In cross-examination, she agreed that she did not like the accused. Mr Sabharwal put to her that she and [JD] were shown the pictures by the accused together in the lounge room but that they did not then go into the bedroom. Her reply was:
... He was putting his pictures – baby pictures away and then he – and he called me into his room and then he started humping me in there.
Mr Sabharwal then said to her:
What I’m suggesting to you is that he did not, as you call it, hump you. He did not lie on top of you and make his private parts touch your private parts. What I’m saying is that didn’t happen. Do you understand what I’m saying? ... Yes.
Do you agree with me or you disagree with me?... I do agree with you.
That contradiction was not qualified or explained.
The mother of [complainant 2] and [JD] gave evidence. [JD] is two and a half years older than [complainant 2]. She and the children’s father [MD] had been separated and divorced at the time this event happened. Both children she said had been diagnosed with attention deficit hyperactivity disorder. I note that this is not expert evidence nor does it enable any inference to be drawn adverse to [complainant 2].
She had become aware that [MD] was offering shelter to the accused at his home. This was because the accused, for reasons unrelated to the present matter, had been threatened by his ex-partner’s new boyfriend.
On the morning of 5 April 2007, [MD] asked [complainant 2]’s mother if [complainant 2] had said anything about the accused. Her reply was that nothing had been said, save that the day before she had said, “I hate Liam”. That comment had not been pursued and was not explained.
[MD] then relayed what [complainant 2] had told him. The account given as [complainant 2]’s mother relayed it differed from the account [complainant 2] gave in her evidence in chief. The former account was:
... she said that Liam wanted to kiss her, asked for a kiss, so she gave that. And then she was either lying on him or he was lying on her and she could feel his penis through his pants and she didn’t like it.
[JD] who was present when the event complained of is alleged to have occurred was next called. He stated that he saw the accused lying on a bed in a bedroom with [complainant 2]. They were on top of the bedclothes and each fully clothed. He saw the accused “hugging” the complainant. His arms were near the area of her vagina. She was facing away from him and next to the wall. He also, he said, saw the accused kiss [complainant 2] on the neck. He told his mother of this later. It seems that was after [complainant 2]’s account of the event complained of had been given to her parents. In cross-examination, he conceded that he had disliked the accused from when they first met. He did not resile from his description of what he saw.
I have to observe that his account of what he saw does not support the version [complainant 2] gave. It is not consistent with it. I have the feeling it could be a reconstruction based on an incomplete understanding of what [complainant 2]’s allegation was but attempting to support it. It is not suggested that, if what he saw concerned him, he told his father of it.
[Complainant 2]’s father also gave evidence. He had met the accused towards the end of 2006. It is apparent that the accused was affectionate towards both the children, though it appears, from their perspective that it was not reciprocated. [Complainant 2] did refer to the accused, perhaps ironically, as her “boyfriend”. He recalled the “complaint” that [complainant 2] had made. It was, he recalled, four to five days thereafter before he spoke to [complainant 2]’s mother about it.
I note that her description of what the accused did is markedly at variance with her evidence. She said “Liam did this to me” and patted her crotch area. That may, however, explain the form of [JD]’s evidence.
He was then asked about an incident in March 2007 when all four of them were at [ML]’s home. He went past [complainant 2]’s bedroom and observed the accused laying on her bed. She was under the bedclothes, he on top. He was beside her facing towards her. There was a similar event about 4 days or so later.
It is apparent that neither event involves any act of indecency, though it may have, if one of these was observed by [JD] explain some transposition of recollections when hearing that there had been a complaint by [complainant 2] of an act of indecency.
He agreed in cross-examination that he had not complained to the accused about the behaviour he observed. He clearly did not regard the events he saw as exhibiting an unhealthy sexual interest.
[Complainant 3] – Sexual Intercourse between 23 November 2007 and 30 March 2008. Alternatively, Act of Indecency between 23 November 2007 and 30 March 2008
[Complainant 3]’s date of birth was 12 January 2003. She was, therefore, four or five years of age when the event complained of occurred.
[Complainant 3] gave evidence on 10 December 2009.
She had last seen the accused, she said, about two years before. He had offered to look after her and her younger siblings at his house to give [complainant 3]’s mother some respite. She and her brothers had visited the accused at his home about 10 times. She liked him, she said, until “he did what he did”. When asked what that was she said, “He licked my front part”. She indicated the area of her body at the top of and between her legs. He pulled her jeans and underwear down and licked on her skin. He did this, she said, “once every day I went to his house, like every day”. This was in the context of a game of hide and seek.
It was apparent from [complainant 3]’s evidence that her allegation did not suggest penetration of her vagina by the tongue of the accused. Therefore a verdict of acquittal on count 5 was required. Mr Doig for the Crown agreed that whilst the allegations made by [complainant 3] would support count 6, they could not support count 5.
A verdict of acquittal on count 5 was recorded accordingly.
The mother of [complainant 3], [SG] was called to give evidence.
She had met the accused in 1997. She had been receiving flute lessons from the accused’s mother. They had become friends after the accused returned from Queensland. Indeed, she referred to him as her brother.
The accused had been asked to mind [SG]’s children by her brother [IG]. On 24 November 2007, he baby sat the children. After that the accused offered to baby sit the children at his home.
She recalled that occurring on a “few occasions”. At the end April or beginning of May 2008, the accused told her he had been approached by police. As a result [SG] spoke to [complainant 3]. [Complainant 3] was reluctant to talk but eventually disclosed the allegation that the accused “licked my bottom”.
In cross-examination, [SG] stated that the accused looked after the children on four or five occasions only and that on no occasion was [complainant 3] apparently distressed or upset thereafter.
The investigating officer, Detective Senior Constable Carly Purcell, was the final Crown witness. On 14 May 2008 she had put the allegations to the accused. He had denied them.
She further revealed that, in interviewing [JD] he had denied seeing any actions of the accused when the latter was in the bedroom with [complainant 2] such as those he deposed to in evidence.
That tended to confirm my impression that [JD] was really attempting to indicate support for the Crown case rather than recounting what he had really seen.
In the defence case, Mr Sabharwal called the accused. I have to remind myself, not only that the accused was not compelled to give evidence but also that, by giving evidence, he assumed no onus of proof or even of persuasion.
In other words, even if the accused’s evidence was entirely unpersuasive then, unless he supported the Crown case in some other way, for example, by admissions or betrayal of a consciousness of guilt that consideration would not strengthen an otherwise weak Crown case.
The accused first addressed the circumstances concerning [complainant 1]. He agreed that there had been a conversation about teaching music but suggested that flute or clarinet had been mentioned as an instrument [complainant 1] would like to learn. He had referred to stomach muscle strengthening exercises but he denied he had laid upon her stomach.
I take that to be an acknowledgment that to have pursued an “exercise” regime as [complainant 1] had described it, might be seen as indecent.
He further denied that he had assisted [complainant 1] in the shower.
After he and his then partner [MM] separated in February 2007, the accused had moved into [MA]’s house around 19 March 2007. That was to avoid a threat from his previous partner’s new boyfriend. He met [MD] as a result. He denied ever laying down with [complainant 2] on her bed. He further denied ever lying on top of [complainant 2] and “humping” her.
I take that evidence to imply that he recognised that the latter behaviour would be seen as indecent.
He further denied that he had acted indecently toward [complainant 3].
In cross-examination, he denied having had [complainant 1] astride his legs. He did agree that he would tell her he loved her.
In relation to teaching [complainant 1] music, he agreed that he had never used any diaphragm strengthening techniques on any students he had assisted. Those he had helped had already, if using wind instruments, used or been trained in such techniques. He agreed that the discussion with [JS] about teaching [complainant 1] was no more than an enquiry. He never discussed it with [complainant 1].
He was insistent that he was careful not to be alone with [complainant 1] or where others in the house could not see them.
I have to say that this insistence struck me as somewhat contrived. It does not go so far as to establish guilty knowledge. I have to remind myself that even an innocent man might exaggerate or dissemble so as to distance himself from such a dreadful accusation as was made against this accused.
I also found his insistence that if he found a child had wandered into his bedroom, he would get the parent to remove the child rather than do so himself, to be contrived and untruthful.
He did agree that he was, relevantly, alone in supervising [complainant 3] and her two brothers at his home. He did not, in that context, insist on another adult being present. That is at variance with his other evidence concerning, particularly, [complainant 1].
There was, he said, one game of hide and seek he played with those children at his house.
He denied any incident such as described by [complainant 3].
In relation to [complainant 2] he denied that he had been on a bed with her as deposed to by her, her brother and father, though it must be remembered these were separate occasions according to those witnesses. [Complainant 2] described only one such incident, though she could have been asleep, I suppose, on those other occasions. The accused also recounted an incident where [complainant 2] was running around the house naked. That had not been put to [MD] though I accept that it was not related to the occasion of the alleged act of indecency. It does, however, add to the unpersuasiveness of the accused’s evidence.
In summary, whilst I could not conclude that the accused either made admissions or betrayed a consciousness of guilt so as to support the Crown case in respect of any of the complaints against him, I did not consider him a persuasive or truthful witness.
Submissions of Counsel
Submissions were delivered in writing and then addressed orally on 23 August 2010. Mr Sabharwal, with respect to [complainant 1], pointed out that, even accepting her evidence, she had agreed that she was not sure that the lying upon her had taken place. It was that aspect rather than lying on the bed or on the floor that made the conduct of the accused indecent.
With respect to [complainant 2], the accusation was not merely of lying upon her but of “humping” her. He also pointed out that [JD]’s evidence concerning what had to be a different occasion was contradictory when compared with his police statement. He pointed to the dislike [JD] conceded he felt towards the accused.
The evidence of [JD] and [MD], even if accepted, with that qualification, fell short of showing inappropriate sexual interest in [complainant 2].
Even so, the events alleged to involve the indecent acts were, in cross-examination, conceded by [complainant 2] not to have occurred.
In relation to [complainant 3], it was simply the case that the accused denied that the event, pulling down her jeans and undies and licking her, had occurred.
Mr Doig, for the Crown, submitted that the evidence of the children displayed a naivety that lent credibility to it.
He pointed out that the accused, in his evidence, had made some assertions, such as that [JS] had wanted a relationship with him that had not been put to her in cross-examination.
I have noted other criticisms of the accused’s evidence and I agree, in general, that the evidence of others is to be preferred. However, I make the observation that that does not relieve me of the obligation to critically evaluate the evidence of those other witnesses.
Mr Doig relied also on the evidence of each witness in respect of each of the events to urge that an inference be drawn that the accused had displayed an inappropriate sexual interest in some or all of the complainants.
Of course, as I pointed out in argument, the fact, if it be so, that the accused has a sexual attraction to young girls, whilst it may lead to him exciting suspicion, does not establish that he acted upon such impulses on a particular occasion.
Mr Sabharwal made a similar point in his submissions.
Evaluation
I bear in mind that each count must be separately considered. I do accept, however, that even if a charge of committing an act of indecency is not made out, there may be conduct establishing an unhealthy sexual interest in young girls which may assist to resolve an issue as to whether an alleged act of indecency occurred and whether it was committed in circumstances which the accused must have known would be so regarded by right thinking members of the community.
Complainant 1 – Counts 1 and 2
There is no evidence sufficient to establish, and certainly not beyond reasonable doubt, that the accused, apart from the acts complained of, exhibited any unhealthy sexual interest in [complainant 1].
Nor is there evidence of any sexualised behaviour in the shower room incident, albeit that it was that incident that caused [complainant 1]’s mother and [complainant 1] to feel alarmed.
I bear in mind that the accused has categorically denied that any of those three events occurred between himself and [complainant 1]. However, I accept that the accused did concede to [complainant 1]’s mother that the description of the “exercises” was accurate. That corroborates [complainant 1]’s evidence, even though corroboration is not legally required. In addition, I have no hesitation in accepting [complainant 1]’s account of the three incidents.
I accept that the accused is not being truthful in denying these occurrences. They happened.
However, that still leaves further questions to be answered.
First, is whether the fact that the accused has untruthfully denied those occurrences can be used as evidence of guilt. I do not believe it can. It is a reasonable hypothesis that, if accused of indecent dealing with a young person, the accused would seek to distance himself from any such accusation. The shower room incident, for example, though not indecent, was a breach of [complainant 1]’s privacy and was, and clearly was viewed as, improper.
The question of the characterisation of the “exercises” is more difficult. On the one hand, the laying down upon a young person in the manner described, unless some countervailing consideration emerged, would be regarded as an act of indecency. It may be regarded as mimicing sexual intercourse, albeit both parties were fully clothed.
However, there was no evidence of any sexual arousal on the part of the accused. There was the pretext offered both to [complainant 1] and her mother that it was an exercise his mother taught him. That is a dubious explanation in the light of lack of prior indication to the accused that preparation for a wind instrument was contemplated. Indeed, the exercises the accused had given as examples of such had involved indirect physical contact such as with heavy books or medicine balls.
Nevertheless, I note that the accused did not seem to regard his conduct as indecent. He had no hesitation in telling [complainant 1]’s mother that he had acted as alleged. It is also clear that, although she forbade any repeat of them, [complainant 1]’s mother did not feel sure that they had been acts of indecency. She did not complain to police until she learned of the shower room incident.
I am of the view that, absent the explanation emanating from the accused, the “exercises” would be regarded as an act of indecency. Though unlikely, it is just possible, as [complainant 1]’s mother apparently thought, that it was a misguided attempt on the part of the accused to prepare [complainant 1] for use of a wind instrument. It is a small doubt, but I must give effect to it.
There will be a verdict of not guilty in respect of counts 1 and 2.
Complainant 2 – Count 3
In this case, whilst the kissing of [complainant 2] was not apparently an act of indecency, laying on the complainant, even if both are fully clothed, and “humping” her following a kiss would undoubtedly be so regarded. Nor is there any innocent explanation which would explain such behaviour in some other way.
There was evidence given that, on perhaps two occasions, the accused had lain next to [complainant 2] on her bed. Despite [JD]’s evidence that he saw the accused’s hand near her crotch area, I do not accept that evidence. These incidents are not alleged to be acts of indecency, they are proferred merely to indicate an inappropriate intimacy from the accused towards [complainant 2].
I note that [complainant 2]’s father who observed, as I accept, those two occasions, did not consider it demonstrated an unhealthy intimacy but did feel it was not letting [complainant 2] get to sleep early enough.
Clearly, he and [complainant 2]’s mother had no hesitation in regarding [complainant 2]’s report of “humping” as alleging an act of indecency. [Complainant 2]’s evidence of it in chief was persuasive. However, in cross-examination she agreed that the “humping” did not happen.
I have some doubt as to whether that denial was a real one or an artefact of her learning disability. Nevertheless, it is impossible to ignore the possibility that her evidence drew upon one of the acts of the accused in lying next to her when she clearly would have preferred him not to. She agreed she had never liked the accused and would have resented his attempts to befriend her.
I must, therefore, give effect to the reasonable doubt that the cross-examination of [complainant 2] engenders.
I record a verdict of not guilty in respect of count 3.
Complainant 3 – Counts 5 and 6
I have already dealt with count 5. In relation to count 6, the action described by [complainant 3] was unmistakably indecent.
It is true that [complainant 3]’s evidence is unsworn and not relevantly corroborated. It is also necessary to bear in mind that the unsworn evidence of a young child cannot be the subject of any sanction legal or moral, should the evidence be untruthful.
Nevertheless, if after considering those matters, the tribunal of fact finds such evidence to be truthful and accurate, it is obliged to give full effect to it.
The fact that such evidence may be contradicted by sworn evidence does not require that the sworn evidence be preferred. It may give rise to a reasonable doubt about the truthfulness or accuracy of the unsworn evidence. That is likely to be so in many cases.
In the present case, despite the accused’s sworn denials, I do not entertain any doubt about the truthfulness or accuracy of [complainant 3]’s evidence. She gave evidence in a manner that was chillingly persuasive. She displayed no sign of exaggeration or artifice. On the other hand, the accused was entirely unpersuasive. I have no hesitation in rejecting his denials as untruthful.
I record a verdict of guilty, therefore, in respect of count 6.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 6 October 2010
Counsel for the Crown: Mr A Doig
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the Defendant: Mr J Sabharwal
Solicitor for the Defendant: Rachel Bird & Co
Date of hearing: 27, 28 July 2010 and 23 August 2010
Date of judgment: 6 October 2010
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