R v Terrace - [2020] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TERRACE
Criminal Trial by Judge Alone
[2020] SADC 105
Reasons for the Verdicts of His Honour Judge Boylan
31 July 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused, a school teacher, charged with having committed two sexual offences against one of his students - prosecution failed to prove elements of both counts beyond reasonable doubt.
Held: Not guilty both counts.

R v TERRACE
[2020] SADC 105
R v TERRACE

The accused is a middle-aged school teacher who is charged with having committed two sexual offences against one of his students. He pleaded not guilty and I heard his trial without a jury. Having considered the evidence and the submissions of counsel, I find the accused not guilty of both charges. I set out below the details of the charges and the reasons for my verdicts.
Adrian Neil Terrace is charged with the following offences:
First Count
Statement of Offence
Aggravated Communicating with the Intention of Making a Child Amenable to Sexual Activity. (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Between the 24^th day of December 2017 and the 2^nd day of January 2018 at Adelaide or other places, made a communication for a prurient purpose with the intention of making The Complainant, a child of the age of 17 years, amenable to sexual activity.
It is further alleged that Adrian Neil Terrace abused a position of authority in committing the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1953).
Particulars of Offence
Between the 14^th day of March 2018 and the 17^th day of March 2018 at Netherby, indecently assaulted The Complainant, by kissing her on the lips.
It is further alleged that Adrian Neil Terrace abused a position of authority in committing the offence.
SOME UNDISPUTED MATTERS
For some years, the accused was the music teacher at a high school. In 2017 and 2018 one of his students was the complainant. She was 17. Between December 2017 and May 2018, the accused and the complainant sent many thousands of electronic messages to each other on the applications Facebook Messenger, WhatsApp, Snapchat, Instagram and also by email. There is no dispute that it was most inappropriate for the accused to have engage in such communications with one of his students and he has admitted, through his counsel, that he was wrong to behave as he did.
When her mother saw some of the messages in January 2018, the complainant deleted them. But she and the accused continued to communicate and when, in May 2018, the complainant knew that the police were about to investigate the accused’s behaviour, she deleted all but a few of the remaining messages, leaving some as evidence for the police. Her mother had been able to retrieve a few messages after she had confiscated the complainant’s phone and the police recovered a large number of messages - some 2,300 - from the accused’s phone. But there is no doubt that there were many thousands more. Accordingly, the record of communications between the accused and the complainant is very much an incomplete record. The prosecution relies upon the complainant’s memory of the messages. While she purports to remember some of them, she is, unsurprisingly, unable to remember the content of many of them or the times or occasions on which they were sent and received.
Overview of the prosecution case
It is the prosecution case that communications between the accused and the complainant began innocently on an intra-school website called Daymap. But, in about December 2017, the complainant included the accused on Facebook Messenger. Thereafter, they continued to message each other. The accused told the complainant that he would use Facebook Messenger for his PG messages, Whatsapp for M-rated content and Instagram for R-rated communications.
By the end of December 2017, the accused was developing a sexual attraction for the complainant. At about the end of that month, he sent the complainant a text message which read:
We can hang out on my couch, you know.
That message is the subject of count 1, aggravated communicating with the intention of making the complainant amenable to sexual activity.
No record remains of that message; the prosecution relies on the complainant’s evidence that she has remembered it verbatim. The prosecution alleges that the accused sent that message to the complainant for a prurient purpose with the intention of making her amenable either to engage in physical sexual activity with him in the near future before she turned 18; or, perhaps more likely, to make her amenable to engaging in sexual conversations with him in order to achieve more immediate sexual gratification from those communications.
The second offence is alleged to have occurred on 16 March 2018, the day of the school’s annual sports day. The complainant spent much of that day in the art room with her good friend. At one stage, the complainant left the art room and went to the music room. She was surprised to find the accused there. He pulled her towards him and kissed her on the lips. That kiss is the subject of the second charge, indecent assault. B, who had crept from the art room to a position near the open door of the music room to see what was going on, saw the kiss reflected in a glass panel in the art room door.
The accused’s position
The accused did not give evidence. His position is that the message the subject of count 1, even if it was sent in the precise terms that the prosecution alleges, cannot constitute a communication for a prurient purpose with the intention of making the complainant amenable to sexual activity. As to the count of indecent assault, his position is that the prosecution evidence is so unreliable that I cannot be satisfied beyond reasonable doubt that the accused kissed the complainant in the music room.
Assessment of the witnesses
A number of prosecution witnesses gave formal evidence, which is not disputed. The principal witnesses for the prosecution were the complainant and B. I cannot rely on their evidence. I do not trust the complainant’s memory on a number of essential matters. Further, there were many important inconsistencies between what she said in evidence and what she had said on other occasions and there is a very significant inconsistency between her and B’s account of the occasion of the alleged kiss. Their conversations about that event also cause me to doubt their reliability.
The complainant’s reliability
Before turning to the two charged counts, I refer by way of example to three topics of her evidence which have caused me to consider the complainant an unreliable witness.
1.In cross-examination The complainant was asked:
QSo it would be fair to say, wouldn’t it, that your recollection as to the detail of what was said in many of those messages isn’t particularly good.
AThere was a lot of messages I wouldn’t be able to tell you what I even said yesterday, so I wouldn’t be able to remember everything.
2.The complainant gave evidence that, some time after the alleged kiss in the music room, she was in the school music hall practising for a solo performance. By that stage, partly owing to the kiss in the music room, she was afraid of the accused and trying to avoid him. In the music hall, the accused told her to sing and she did so. After she had finished, the accused walked towards her and said:
Oh my God, you can fucking sing. If you are alone I will kiss you. If you are not I will give you a fist pump.
Given what had already passed between them by that stage - in particular, the alleged kiss in the music room - and the complainant’s fear of the accused, I would have expected her to remember clearly any mention of his kissing her again. But she agreed that in a statement made to police on 3 January 2020 she said that the accused had said:
If you’re alone in your solos I’ll give you a hug but if you’re with someone else I’ll give you a fist pump.
She explained the discrepancy between that statement and her evidence as a miscommunication; that the investigating officer, Detective Eaton, who was recording what she said, had made a mistake; she was confident that she had told him that there was a kiss, not a hug. A little later, speaking about the discrepancy, she said of Detective Eaton:
He keeps accidentally calling a kiss a hug and a hug a kiss.
The complainant was then referred to her first statement to police, made on 25 May 2018. Speaking of the incident in the music hall, she agreed that she had said that the accused’s words were:
If you’re alone in your solos I’ll give you a hug but if you’re with someone else I’ll give you a fist pump.
Of that discrepancy she said:
AThat was wrong. I must have skipped over it when I was reading it the first time.
QSo you skipped over it the first time and Detective Eaton’s stuffed it up the last two times.
AWe got confused.
Shortly after the police became involved, the complainant had prepared a statement in her own handwriting. She agreed that she had written:
If it’s just me and you I’ll hug you after but if there is others I’ll give you a fist pump.
She was pressed on the issue in cross-examination and it was suggested to her that she had substituted “kiss” for “hug” to make the accused’s words more sinister. To that suggestion she said:
AI don’t know but I know what was actually said. These were statements from two years ago, how am I supposed to remember?
Detective Eaton gave evidence. He is an experienced police officer who tries accurately to record what a witness says when he is taking a statement. At the conclusion of that procedure, he provides the witness with the opportunity to review the statement. He is well aware that the descriptions given of an actual incident need to be thoroughly and accurately recorded. I accept his evidence. I do not accept that he made the mistakes which the complainant attributed to him.
3. Finally, by way of example, I refer to her evidence about exhibit P8.
Exhibit P 8 is a ‘selfie’ which the complainant sent to the accused. She took the photograph while she was sitting in a bathtub full of blue water. The photograph clearly shows her legs, including her upper thighs.
In cross-examination she was asked:
QYou would have sent that photograph realising that your bare legs were clearly visible.
AI didn’t actually think about it like that. The only thing I noticed was the blue water because I thought it was really, really cool…
She then went on to agree that in a statement to police made on 19 December 2018 she said of the photograph:
Blue is my favourite colour and Terrace liked blue as well but without really thinking what I was doing I took a picture on WhatsApp of the water not realising that my bare leg was in the picture and I sent it to Terrace.
I cannot accept the complainant’s evidence that she did not realise her bare leg was showing in the picture.
B struck me as a very nervous witness. While he purported to give a clear account of what he saw reflected in the music room door, he was unable to remember a number of matters about which he was asked.
Count 1: the Instagram message
To prove the offence charged in count 1, the prosecution must first prove that the accused made a communication. As I have said, the alleged communication is an Instagram message which read:
We can hang out on my couch, you know.
The prosecution must also prove that the accused sent that message for a prurient purpose; that is, that he sent it with the intention of satisfying his own desire for sexual arousal or gratification or with the intention of providing sexual arousal or gratification for the complainant. Next, the prosecution must prove that, when he sent the message, he intended to make the complainant amenable to sexual activity; that is, he intended to make her receptive to or submissive to some sort of sexual activity with him while she was still under 18.
In considering this count, I have borne in mind that the phrase “sexual activity” is not limited to physical activity. Conversations by text messaging can amount to sexual activity if the conversations are capable of being sexually stimulating. To decide whether or not a text conversation is capable of being sexually stimulating, I must have regard to the surrounding circumstances, including other communications between the accused and the complainant.
The prosecution has failed to prove any of the elements of the offence beyond reasonable doubt. As I have said, the prosecution relies upon the accuracy of the complainant’s memory of the message. Because I do not trust her memory, I am not satisfied beyond reasonable doubt that she has remembered the message verbatim. And there are some textual difficulties for the prosecution. The complainant gave evidence of two messages, the subject one and an earlier one in which the accused talked about hanging out on his “couch”. But in other messages, of which there are verbatim records, the accused referred to that item of furniture as a “sofa”. The meaning of the two words may be the same but his use of the word “sofa” in the other messages has caused me to suspect that the complainant has not remembered the subject message verbatim.
Even if I am wrong about that and the complainant has remembered the message verbatim, I do not think that the message, viewed in isolation as it must be, is capable of being a conversation which could achieve immediate sexual gratification for the accused. I say “viewed in isolation as it must be” because there is no evidence of the messages immediately surrounding the subject message. It is out of context.
Nor do I think the conversation is capable of bearing only the meaning that the accused was grooming the complainant for some sort of physical sexual activity before she was 18. After all, it was highly unlikely that there would be an opportunity for such activity on his sofa: the complainant was living at home with her mother and family and the accused was then living with his wife and children. But there is a greater obstacle for the prosecution. There are other messages in which the accused and the complainant discussed each other’s ages and in which he asked when she would turn 18. There are also messages about how they would cope with their situation in 2019, well after the complainant would have turned 18 and left school. In my view, even if the subject communication was made for the necessary sexual purpose, there is a reasonable possibility that any intended sexual activity was to take place after the complainant had turned 18, in May 2018.
It is for those reasons that I find the accused not guilty of the first count.
Count 2: The kiss
The accused is alleged to have indecently assaulted the complainant by kissing her in the music room on the school sports day on 16 March 2018.
The grounds of the school are extensive and the oval, where all of the sports day events were held, is some distance from the arts building, which contains the arts room and the music room. The art room and the music room are connected by a short corridor, some eight to 10 paces long. A door to the music room opens off that corridor. The top half of the door consists of a large pane of wired glass. When the door is open, the glass pane faces the far end of the room.
Because B had had an asthma attack during one of the sports events early in the day and did not wish to compete further, he and the complainant obtained permission to work in the art room. They needed permission because the art room was off-bounds to all students on sports day.
The complainant’s evidence was that, after she and B had been working in the art room for some time, she needed sheet music, which was kept in the music room. She left the art room and walked along the corridor to the music room door. Immediately after she had gone through the doorway, she saw the accused at the far end of the music room. She had not been expecting to see him there. She walked the length of the room to where he was standing; she could not remember if either of them spoke as she did so. When she arrived next to him, he grabbed her. She tried to pull back but he was stronger. He pulled her face towards him and kissed her on the lips. She pulled away, saying “I’ve got to go; B is watching”. She then explained that she had seen a reflection in the glass pane in the door, did not know whose reflection it was but quickly “blamed B”. The accused said to her “No, he’s not. Come back”. The complainant left the music room and returned immediately to the art room, where B was standing just inside the doorway. After a short time, they sat down and she told B that the accused had kissed her.
B’s evidence was that, before the complainant left him in the art room to go to the music room, she told him that she was going to the music room to see the accused. B knew that the complainant did not want to be alone with the accused at any time. After she had been gone for five or ten minutes, he was worried and wanted to see what was happening. He crept down the corridor to a position just short of the doorway to the music room. The door was open. He could hear voices but could not make out what was being said. B said that he saw the accused and the complainant reflected in the glass: the accused pulled the complainant towards him and kissed her forcefully on the lips; she pushed the accused away by placing her hands flat on his chest. B then hurried back to the art room because he did not want to be seen. Back in the art room he immediately sat down at a work bench and was seated when the complainant returned. After a short time, she told him that the accused had kissed her. B made no mention of having seen the reflection of the kiss and the complainant did not tell him that she had seen someone reflected in the glass section of the door.
There is, then, a serious inconsistency between the complainant’s and B’s accounts of her reason for going to the music room. That inconsistency causes me to doubt the reliability of their evidence.
While it may well have been possible, if the music room door was in the position and state in which it appears in the photographs in evidence, for B to have seen a reflection, albeit somewhat distorted, of people at the far end of the room, I am not satisfied that the complainant would have been able to see his reflection. It was B’s evidence that he stood back from the doorway, although reasonably close to it. If the door were fully open and at right angles to the corridor as shown in the photographs, I doubt that his reflection would have appeared in the glass pane.
Other aspects of the evidence of B and the complainant about the alleged incident in the music room cause me to doubt their evidence. As I have mentioned, B did not mention to the complainant what he purported to have seen when she arrived back in the art room. It was his evidence that about two weeks after the incident he told her what he had seen. The complainant initially denied that he had told her, but, later in her evidence, she said that she had no memory of his having told her. In her first statement to the police, made in May 2018, the complainant made no mention of having seen the reflection.
The River Torrens conversation
In March of 2019, The complainant and B met on the banks of the River Torrens. They had not seen each other for some time. In evidence, they gave different accounts of what was said at that meeting. When it was put to the complainant that they discussed the case, she said:
No, we didn’t discuss any of it. We spoke about how we were going but nothing to do with the case.
B’s evidence was quite different:
We were just generally discussing everything that I have put in my statement and said today about the kiss and everything like that.
Asked in re-examination whether he and the complainant had discussed what she had said to the police, B said that he did not recall; nor did he recall whether they had discussed where he was standing when he had seen the reflection; nor where precisely in the music room the kiss had taken place. He went on to say when asked what his memory was of what was discussed at the Torrens:
I honestly don’t know.

Six days after the meeting at the Torrens, the complainant told police, for the first time, that she had seen someone reflected in the glass at the time of the kiss. Her explanation for not having mentioned the fact before was that, not having seen B for some time before their meeting at the Torrens, she had had a flashback to the events in the music room when she saw him by the river.
Conclusion
Owing to the complainant’s unreliable memory, inconsistencies in her evidence and statements to the police, inconsistencies between her evidence and B’s evidence, and the way in which their evidence about the purported reflections in the glass panel came to light, I am not satisfied beyond reasonable doubt that the prosecution has proved the offence of indecent assault.