R v Taylor - [2015] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v TAYLOR
[2015] SADC 167
Reasons for Rulings of His Honour Judge Tilmouth
2 December 2015
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Proof of alleged mitigating features of the offence of causing harm with intent not established, whereas some aggravating circumstances are so proven.
Anderson v The Queen (1993) 177 CLR 520; Olbrich v The Queen (1999) 199 CLR 270; Whitehorn v R (1983) 152 CLR 657; R v Jensen (2009) 23 VR 591; Children's Protection Act 1993 (SA) s 11(1)(e), referred to.

R v TAYLOR
[2015] SADC 167
The issues

The defendant was first arraigned before Judge McIntyre on 9 September 2013, when she pleaded not guilty to an aggravated charge of causing harm with intent to cause harm, false imprisonment and attempting to obstruct the course of justice.
These charges were set for trial to commence before me on Tuesday 29 September 2015. Following protracted negotiations the defendant eventually entered pleas of guilty to the aggravated causing harm and the attempt to obstruct the course of justice offences. Counsel for the DPP accepted these pleas ‘in full satisfaction of the Information dated 9 September 2013’.[1]
[1] T13.7-.8, 29/9/2015.
An issue of mitigation arose leading to a disputed facts hearing. The defendant contends that part of the motivation for the assault was that her victim had been ‘sexually abusing the children of the household including her children and the child of a person who was staying in the house’.[2] The offence of attempting to obstruct the course of justice arises from her endeavouring to persuade her victim to confess to police of committing a trespass offence, which her then partner GV had in fact committed. It is an agreed fact that he pleaded guilty to criminal trespass before another Judge of the Court on 10 June 2014.
[2] T9.15-.26, 29/9/2015.
The defendant bears the onus of proving mitigating circumstances on the balance of probabilities: Anderson v The Queen,[3] Olbrich v The Queen.[4]
[3] (1993) 177 CLR 520.
[4] (1999) 199 CLR 270, [24]-[25].
Factual background
The broad background is that the victim Mr Patterson, was a boarder at the home of the defendant, which she rented. Following a verbal exchange in a room occupied by him on the property on Thursday 10 January 2013, she struck him in the head with a metal pole. This founds count 1 of an aggravated offence of causing harm with intent to cause harm. She then tied him up and blindfolded him, before driving him to the Sturt Police Station, arriving at 5.35pm claiming that she had made a ‘citizen’s arrest’ in doing so. She claimed he was the perpetrator of the breaking offence for which her partner was then charged and remanded in custody for. These latter events form the basis of the second count of attempting to obstruct the course of justice, an offence at common law.
Later that day Mr Patterson presented at the Flinders Medical Centre where superficial lacerations, abrasions and bruising were noted to his upper lip, left and right knees, left middle finger, back of the neck and head. X-rays revealed there were no fractures or dislocations. The injuries were photographed the following day at the Sturt Police Station, marked as Exhibit GP1. They also appear in the photographs Exhibit P5, photographs 1-9.
Ms Taylor’s partner GV was arrested on 6 October 2012 for the offence of criminal trespass in a place of residence and theft, and remanded in custody that day. It was alleged that he broke into a residence and stole a handbag, purse and money, an offence to which he pleaded guilty to on 10 June 2014, that is to say well after the subject events. A number of telephone calls took place between Ms Taylor and GV whilst he was in Yatala Labour Prison in the days following the offences to which she has now pleaded guilty.
The incident in dispute – defence version
During the evening of 9 January 2013, Ms Taylor and another boarder in her home had gone out for several hours, leaving their respective children in the care of Mr Patterson and his girlfriend.[5] A child of the boarder came into Ms Taylor’s bedroom on the morning of 10 January, complaining that she felt sick and had a ‘pain in her tummy’ which she was holding, partly crouched over.[6] A discussion ensued as to whether she was menstruating for the first time, even though she was only eight years of age. Ms Taylor summoned the girl’s mother who ‘said that she had blood in her knickers … oh my god, my baby girl’s got her period’.[7] Ms Taylor responded ‘well, maybe, are you sure, she’s very young’ and suggested that she be spoken to about it by her mother.[8]
[5]    T156.3-.32.
[6]    T160.34-.36.
[7]    T161.3-.7.
[8]    T161.15-.19.
Ms Taylor claims to have then gone into the room of Mr Patterson to put his clothes away, which she had laundered for him. There she found a grey jacket, a screwdriver and a knife. She considered the jacket was the one spoken about by police as worn by the offender earlier when investigating the robbery involving GV.[9] As a consequence, she asked the boarder to ring Mr Patterson to ‘get his butt back home because I wanted to talk to him’, about ‘stealing from shops and businesses around the area’.[10]
[9] T163.30-.37.
[10] T164.5-.12.
Upon his return around lunch time she confronted him in the bedroom with the jacket asking ‘where did you get this?’ After putting further allegations of doing break-ins in the area to him he told her to ‘fuck off, mind your own business’.[11] She confronted him with the further allegation: [12]
What about what the kids are talking about all the time … going in their room waking them up in the middle of the night supposedly to go to the shop.
[11] T165.1-.25.
[12] T165.30-.31.
He then told her to leave the room and ‘got nasty’ so she became angry with him.[13] Soon after they fell into an argument during which she threatened to call the police.
[13] T161.15-.23.
Eventually, according to Ms Taylor, Mr Patterson told her in the presence of the boarder Ms Johns and Mr Betterman an overnight visitor, that [his girlfriend] had ‘raped [Ms John’s child] with a pole’.[14] Her evidence continued that as a result she became ‘sickened’ and ‘shocked’ and that she ‘did not believe him at first, but that Ms Johns ‘got really mad with him’. She suggested Ms Johns should call the police.[15] However Ms Johns went to the kitchen, coming back with a knife which she held at Mr Patterson’s throat.[16]
[14] T168.30-.37.
[15] T169.8-.14.
[16] T169.8-.21.
Ms Taylor claimed that Ms Johns declined to report the disclosure to the police because she ‘didn’t want her kids taken away again’. During further exchanges she asserts Mr Patterson became unresponsive and ‘looked pretty ashamed’.[17] Ms Taylor went so far as to claim that Mr Patterson admitted putting his fingers ‘inside’ her daughter and to having played previously with her son’s penis.[18] Ms Taylor wanted to call the police, ran down the hallway with him chasing her, and confronted her in the bedroom where she ‘whacked him’ for a second time.[19]
[17] T170.32-.33.
[18] T171.5-172.23.
[19] T173.1-.10.
She deposed that soon after Mr Patterson ‘tried to take off’ and that she tried ‘to grab hold of him’.[20] Then she ‘grabbed hold of a cord’ and ‘wrapped it around his ankles’ because:[21]
I wanted him to go to the police … tell the police the things that he done … about the break-ins and stuff he had been doing around the area and what he’d been doing to the children.
[20] T174.30-.32.
[21] T179.17-.29.
Soon after Ms Taylor used a section of clothes line and tied him up with the assistance of Mr Betterman (the overnight visitor) ‘because he kept trying to escape’, eventually taking him in her van to the Sturt Police Station.[22] There she sought assistance, but was taken by detectives into an interview room.[23]
[22] T180.29-.22.
[23] T182.13-183.19
Mitigating facts - analysis
Obviously the critical issue is whether Mr Patterson told Ms Taylor of the alleged sexual abuse. As seen, Ms Taylor claimed two other people were present at critical times, Ms Johns and Mr Betterman.
Ms Johns in fact denied being there, even though she and her children had been a border for some time in the house. She did not recall being asked by Ms Taylor to telephone Mr Patterson to ‘get his arse back to the house’, although she did admit to being about the house, and being woken up at about 10.30am that morning.[24] At 2.35pm that afternoon Ms Taylor is heard to say in a recorded telephone conversation with GV, that she was ‘just talking’ to Ms Johns and Mr Betterman, and that Ms Johns was in a ‘fucktard mood today’.[25] Ms Johns did accept detecting a strange odour coming from her daughter’s knickers, which led her to think she may have had her first period, and that she spoke of this with Ms Taylor.[26] She denied however, that this was discussed any further than that.[27]
[24] T54.12, T55.5-.6.
[25] Call ending 372, p.4
[26] T63.27-.26.
[27] T62.21 – 63.20.
There can be no doubting there was some discussion about this topic because in the telephone call occurring at 10.16am,[28] she clearly states to GV, ‘[D] has her period’, and to telling him Ms Johns ‘is down in the bathroom talking about it’, which must mean that they had discussed the issue to some degree at least and to a greater extent than suggested by Ms Johns.[29]
[28] Call 3007829, Exhibit P1.
[29] See submissions of Ms Spence T259.15-260.11.
Ms Johns further claimed that Mr Betterman was not around the house either, and that he had only arrived late in the evening of 9 January. However in her telephone call on 10 January at 2.35pm,[30] Ms Taylor specifically refers to the fact (when voices can be heard in the background) that she is talking to him and Ms Johns. It is more than likely that the female voice in the background does in fact belong to Ms Johns, because of the subject matter discussed during the call at that time.
[30] Call 3008372.
Mr Betterman himself said during his evidence that he was there.[31] Both he and Ms Taylor gave evidence to the effect that he was asked to go to the local shops to buy food for the childrens’ lunch, a fact also denied by Ms Johns.[32] As her evidence is discredited in the material respects mentioned, to the extent that she denied being at the house at relevant times, her evidence cannot be accepted. Moreover, when an application was made to re-call her, she refused to respond several times to prosecution requests to attend, so for practical purposes her evidence, insofar as it is adverse to the defence case, is to be discarded.
[31] T119.27.
[32] T53.29.
Mr Patterson
The evidence of Mr Patterson was highly unsatisfactory. He repeated too many times to count that he ‘could not remember’, in answer to even simple or straightforward questions. He claimed this to be the product of the blows he received on the day in question,[33] a position that is unsupported by the medical records. He could not even remember prior convictions for criminal offences, even though some were proximate to the events occurring on 10 January 2013.[34] For example, he was convicted of offences in the Adelaide and Port Adelaide Magistrates Courts in October and December 2012 respectively, and again in the Port Adelaide Magistrates Court at the end of January 2013, the Elizabeth Magistrates Court in February 2013, and in the Adelaide Magistrates Court in June 2014. In this last appearance he was placed on a suspended sentence of one month for two counts of dishonesty and a breach of bond, and for giving false information in a document to a second hand dealer. It is scarcely believable he could not remember this appearance, given the nature of the penalty involved.
[33] T30.20-.25.
[34] T79.17-84.7.
The fact that there must have been some discussion of a personal nature with Ms Taylor is exposed by Ms Taylor’s evidence of esoteric knowledge of Mr Patterson’s personal history, including knowledge of his previous abodes at St Marys, Marion and Devon Park.[35] She deposed that he told her of a past indecency offence, and it is proven that he was convicted in October 2012 of procuring an act of gross indecency, for which he was put on a bond to be of good behaviour for 18 months to come up for conviction if called upon. There is an agreed fact that he was arrested for that offence as well as for a breach of bail on 17 July 2012 at the Marion address, which he occupied at that time.[36]
[35] Agreed fact no. 11.
[36] Agreed fact no. 12.
Mr Betterman
The assertions made by Ms Taylor are supported by the evidence of Mr Betterman, who as noted, was undoubtedly at the house that afternoon. He was brought there by his mother the night before from the country. She was required to attend hospital early on the morning of 10 January for a day procedure, thereby rendering it objectively unlikely she would have arrived in the very early hours of the following morning as a last minute trip to Adelaide from the country, a drive of several hours. His mother and Ms Taylor had been good friends,[37] and were regular visitors for stopovers when coming to Adelaide. Mr Betterman was also a good friend and of about the same age as Ms Taylor’s son. He was familiar with Ms Johns as she had become a friend of his mother’s as well.[38]
[37] T133.14-133.16.
[38] T116.34-116.35.
Mr Betterman acknowledged under cross-examination that he heard Ms Taylor questioning Mr Patterson about break-ins in the area, about a flat-end screwdriver and a knife she found in his bag, and of the alleged sexual abuse.[39] He purported to remember it because he had actually expressed concern that something untoward might have happened to his brother who had also come down to Adelaide on this particular trip.[40]
[39] T121.17-122.24
[40] T122.17-122.19.
None of this was mentioned at all in his declaration filed with the court for the purpose of the trial in this matter.[41] This is somewhat surprising given the stark and serious nature of the allegations, especially given his own suspicions about the wellbeing of his brother. Because of the very late nature of his revelations there is a need for caution before his evidence can be relied upon. It is highly likely that had these astonishing revelations in fact been made, something would have been done about them from his or his mother’s point of view. For that reason alone, his evidence is to be doubted.
[41] Statement of Devin James Betterman dated 10 January 2013.
In reaching this conclusion, no regard is paid in the first place of the fact that the prosecutor declined to elicit evidence-in-chief from Mr Betterman on the basis he was not accepted as a witness of truth. That view no doubt emerged, as Mr Trevarrow for the DPP suggested in his closing address, because of the last minute disclosure, compounded by the fact that he did not tell the prosecutor about them either when being proofed. This is a legitimate position for the prosecution to take: Whitehorn v R,[42] R v Jensen.[43] Nor is any account taken of the re-examination by Mr Trevarrow of Mr Betterman, which was allowed de bene esse, first because having led him in-chief, no occasion for re-examination arose, secondly because it amounted to an impermissible cross-examination, and thirdly because it was for the impermissible purpose of discrediting his own witness: Wigmore on Evidence, 3^rd Edition 896 (3).
[42] (1983) 152 CLR 657, 664.
[43] (2009) 23 VR 591, [61].
Ms Taylor
The evidence of Ms Taylor herself was prone to discursive, irrelevant, distractive and at times pedantic trivialities during the course of much of her evidence under cross-examination. There are three particularly telling considerations which lead one to doubt her credibility.
The first is in the telephone call at 2.35pm of 10 January 2013, which was before the exchange with Mr Patterson. She specifically tells GV that ‘someone owes me a big favour’ and that what could only be a reference to Mr Patterson, ‘fuck face here’ that ‘he’s gonna wear it, he’ll like it because he’s not gonna lump it, I’m telling ya’, a statement she makes with noticeable zeal. Accordingly, there is every reason to suppose that her attack upon Mr Patterson had a measure of pre-planning attached to it.
Secondly, in a telephone call the following day with GV, she is heard to say ‘I tied him up, beat the fuck out of him’ and later ‘fuck it felt good too’. These statements were made with audible compunction, evincing a real air of bravado and without the slightest hint of regret. In a subsequent telephone call with GV later that day at 1.01pm,[44] she openly brags ‘I’ll go and tie the c… up again and I’ll bring him to you this time’.
[44] Call number 3009605
The third consideration is that there is every reason to suppose the suggestion of the abuse of the children has its origins in suggestions from GV himself. In a telephone call at 3.12pm on 11 January,[45] GV can be heard telling her ‘he attacked you first, so how do you get charged?’ and a little later ‘you listenin boss, try to wring his fucking neck, touch our fucking kids’. Still further in a telephone call of 12 January at 1.02pm, he again suggests to her ‘yeah … you tell the judge he attacked you and you put it on him for fucking touching the kids’.[46]
[45] Call number 3010270
[46] Call number 3011123
When Ms Taylor was interviewed by police, a Detective Godwin was called in, as he had been of some assistance to her in the past.[47] She claimed to have told him a ‘little bit briefly’, but as he was called away she was unable to go any further.[48] Had a disclosure been made in sufficient terms, there was a legal requirement to report such disclosures: Children’s Protection Act 1993 (SA), s 11(1), s 11(1)(e). Police records indicate there were no such reports by way of a statement of Detective Pipinias, 1 October 2015.[49]
[47] T183.13-.26.
[48] T183.31-184.5.
[49] T23.1-25.21.
The disputed evidence - findings
The failure of Ms Taylor to make any report of the alleged abuse is fatal to her case. The particulars of such abuse were so serious that it is completely inexplicable that she did not do anything about it shortly afterwards. That conclusion is reinforced by the failure of Mr Betterman to come forward any earlier. It is moreover inherently unlikely as well that Mr Patterson would have volunteered such serious abuse as he was dependent on her for accommodation. And finally there was no mention by Ms Taylor in her telephone conversations about the subject, other than those initiated by GV.
In the result, it is impossible to make a finding on the balance of probabilities that Mr Patterson told her in the detail alleged of the abuse of the children.
There is, however, a basis to suppose that whatever the exchange was between them, that Ms Taylor may well have entertained a suspicion that something of a sexual nature might have been happening, even though it was unspecified. There is some support for that conclusion in the contents of the telephone call of 11 January at 11.01pm when Ms Taylor refers to Detective Godwin by Christian name, in the context of a question for GV ‘Did the D’s end up speaking with you’, so it can be inferred that she did speak with Detective Godwin as she suggests, even though she did not report the allegation of abuse to him in so many words.[50]
[50] Call 3009608, p 6.
Conclusion
In those circumstances I conclude on balance that something was said by Mr Patterson to trigger a belief in her mind that something untoward might have happened in the house the previous evening, a view supported by some odd things the children had said to her and given the occurrence concerning the child’s knickers as detailed above. This factor may then have played a small part in her decision to beat Mr Patterson. Nevertheless the predominant motivation remained the desire to have him confess to the trespass which she genuinely wanted to believe that GV had not committed. So much is patent from what she said about it in the telephone calls referred to earlier.

All the same, this consideration is arguably more than offset by the aggravating consideration that in the two telephone calls identified earlier, Ms Taylor expressed such a deep seated and callous sense of conceit for Mr Patterson over what she had done to him, which is only too self-evident when listening to them, that it serves only to reaffirm her desire to give him a beating, but also her willingness to do it again if necessary.
As to the proper weight to be accorded to these competing considerations, counsel are entitled to be heard in the course of general submissions as to penalty.