R v Trethewey - [2012] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRETHEWEY
Criminal Trial by Judge Alone
[2012] SADC 137
Reasons for the Verdict of His Honour Judge Tilmouth
25 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is found not guilty of three counts of unlawful sexual intercouse on the basis that the prosecution have failed to prove the complainant was under the age of 18 at relevant times.
Criminal Law Consolidation Act 1935 s 49(5); S v R (1989) 168 CLR 266; Ayles v The Queen (2008) 232 CLR 410; R v Kneebone (1999) 47 NSWLR 450; Evidence Act 1929 (SA) s 34CB, s 34M(2) & 4(c); R v J, JA (2009) 105 SASR 563; R v H, T (2010) 108 SASR 86; Crofts v The Queen (1996) 186 CLR 427; R v PMT (2003) 8 VR 50; R v Murray (1987) 11 NSWLR 12; Question of Law Reserved on Actquittal (No 1 of 1993) (1993) 59 SASR 214, referred to.
HML v The Queen (2008) 235 CLR 334; R v Dolan (1997) 58 SASR 501; R v Nieterink (1999) 76 SASR 56 ; R v C SCCRM 382 of 1995; S5228; BC9503764; R v Schlaefer (1984) 37 SASR 207; R v Timbery (2007) 180 ACR 232; R v Markuleski (2001) 52 NSWLR 82; Liberato v The Queen (1985) 159 CLR 507; R v Calides (1983) 34 SASR 355; R v Cassebohm (2011) 109 SASR 465; Douglass v The Queen (2012) 290 ALR 699, [2012] HCA 34, applied.

R v TRETHEWEY
[2012] SADC 137
The charges

The accused is on trial by Judge alone, on three counts of unlawful sexual intercourse allegedly committed during 1978 against the one complainant. Each offence is charged under s 49(5) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), which as it stood during 1978 and 1979, read:
A person who, being the guardian, school master, school mistress, or teacher of a person under the age of 18 years who has sexual intercourse, or attempts to have sexual intercourse, with that person shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.
By s 49(7), consent affords no defence to the charge.
Background to the charges
The three offences on the indictment confronting the accused represent three distinct occasions during 1978 the complainant claims to distinctly remember. On the prosecution case they are representative of a wider course of conduct during that calendar year, when the accused was an art teacher and the complainant a pupil in Year 12 at Annesley College, a private girls’ school situated on Greenhill Road, Adelaide. She turned 17 years of age in mid April 1978. The following year, 1979, she enrolled as a student at the Sturt College of Advanced Education (Sturt CAE). At relevant times the accused was 28 or 29 years of age and lived at Blackwood.
The evidence admitted by way of uncharged acts, according to the complainant’s initial testimony, involved sexual intercourse with the defendant on ‘many occasions’.[1] She elaborated on this during her evidence-in-chief as involving sexual intercourse on ‘about 12’ occasions.[2] Evidence was also led that intercourse continued through the first half of 1979, before and after the complainant turned 18. The complainant added ‘I finished it in a conversation with him whilst on campus’, that is the Sturt CAE in mid 1979.[3]
[1]    T33.13
[2]    T54.7-.21
[3]    T49.1-.8
This evidence was led only for the limited purpose of furnishing the context in which the complainant’s evidence of the charged acts is to be evaluated and as demonstrating a sexual interest by the accused in her: HML v The Queen,[4] R v Nieterink.[5] Such evidence could not otherwise found any basis of guilt on any different charge, firstly because the complainant was not able to identify any particular occasion during the course of 1979 sufficiently precise enough to sustain another charge: S v R,[6] compare Ayles v The Queen,[7] and in any case, because by then she was no longer a student and therefore he was no longer a ‘school master’ or ‘teacher’ within the meaning of s 49(5) of the CLCA.
[4] (2008) 235 CLR 334
[5] (1999) 76 SASR 56 at [43]-[44]
[6] (1989) 168 CLR 266 at 284
[7] (2008) 232 CLR 410
The elements of an offence under s 49(5) of the CLCA are:
1.     the existence of the relevant school master/student relationship;
2.     that sexual intercourse took place; and
3.     the complainant was under the age of 18.
The specific counts
Count 1 on the information alleges an act of sexual intercourse at the accused’s Blackwood home between January and June 1978. On the prosecution case, this first occasion is said to have been preceded by a developing sexual interest in the complainant by the accused, described by her as ‘a flirtatious energy’,[8] which developed into ‘a vibrant interaction when we saw each other in the school grounds’.[9]
[8] T23.24
[9] T32.9-.10
On this first occasion she visited the Blackwood home of the accused to babysit his daughter, who was about five years old at the time. She pinpointed this as occurring when she was ‘either almost 17 or 17’,[10] which would have placed it at around April 1978. At another point in her evidence, she said it was ‘in the first half of 1978 … that was the first time. It stands out’.[11] The accused is said to have come home in the early hours of the morning with his wife, who then went to bed. According to the complainant, the accused returned to the lounge room in which she was waiting to be taken home, with ‘a big grin on his face’. He proceeded to unfold a dark corduroy sofa bed on which he had sexual intercourse with her.[12] She was then driven home.
[10] T35.5
[11] T74.16-.24
[12] T33.13-.29
The second count is said to have taken place in a photographic darkroom in the grounds of Annesley College. According to the complainant they had sexual intercourse during ‘the middle winter months’ of 1978,[13] against a bench, ‘my underpants were around my calves’.[14]
[13] T38.17
[14] T37.34-38.2
The third specific incident recalled by the complainant and the subject of the third count, took place in the Blackwood home when she stayed for several nights babysitting the accused’s daughter. She said his wife was ‘away on a conference’ at the time, for several days. [15] The accused had gone out for the night, returning home at about 4.00 am. They then had sexual intercourse in the matrimonial bed, according to her.[16]
[15] T44.12
[16] T44.9-45.11
Evidence of complainant
The complainant gave evidence that she confided in her cousin LP, with whom she shared a bedroom at their Gilberton home, about her liaison with the accused. That evidence was:[17]
QDid you confide in her about any of the things you've given evidence about today.
AI did confide in L… and I don't know how much I confided in L…. I do remember - like I said earlier, I have a memory of her being there at Carclew with the photographic images. I also have a memory of him coming into my bedroom - the bedroom that I shared with L… next to the - at the flat, and I remember saying to her 'It's okay. Roger' - saying to Roger 'It's okay, L… knows about us'.
[17] T51.36-52.7
LP’s evidence on this topic was:[18]
[18] T158.24-.34
QCan you tell us what your understanding was.
AMy understanding was that Kym was very uncomfortable with the fact that, in telling me, that she was having, it was a relationship between her and Roger.
QYou understood that that from what she told you.
AYes, I did.
QWere you told anything about the nature of the relationship.
AI knew that it was a sexual relationship.
QHow did you know that.
AShe told me it was a sexual relationship.
LP maintained she was told by the complainant that intercourse was taking place with the accused during 1978. As will be seen, there is a significant and appreciable doubt that that was the case. More tellingly, LP fixed the year 1978 because she was present in the shared bedroom at Gilberton when intercourse was actually underway. Her evidence about that was as follows:[19]
[19] T158.35-T159.24
QDid you ever see any evidence about that yourself.
AYes, I did when they were in the bedroom where we shared a room.
QWhen was that.
AThat precise time, I don’t know, but I remember several occasions when they were in the room having sex in the bed next to me.
QHow did you know they were having sex in the bed next to you.
ABecause there was a lot of grunting, there was a lot of groaning and there was sexual noises.
QWhat were the sexual noises.
ASexual noises that there was a lot of squelching.
QSquelching
ASquelching, yes.
QWas the room light or dark.
AThere was an outside light outside the kitchen that gave off some light and there was some form of communication between [KP] and Roger during the sexual acts.
Q What form of communication.
AIt would have been like – the exact wording I couldn’t give you. It was as my memory as a 15-year-old of that experience, it was a lot of lovey-dovey type of talk.
QHow did you know that it was Roger.
ABecause when they came into the room the outside light comes on and I knew that [KP] had been babysitting, I think Roger’s daughter at the time, and he would drive her home and he would come into the room.
However the complainant herself denied ever having sex with the accused in that room,[20] although she previously had intercourse there with another male in 1977.[21] This only serves to enhance the chances of an appreciable risk that there is a complete mistake about the year in question. In any case, the evidence of LP is hardly consistent with that of KP in this respect.
[20] T96.38-T97.10
[21] T146.23-.33
In addition, the complainant said she told a fellow student TM ‘what was going on’.[22] TM was not called to substantiate this assertion. As the reason for the failure to call this potential witness was not explained by the prosecutor or explored by the defence, it is not appropriate to draw any adverse inference to the prosecution case on that account. Defence counsel did not contend otherwise: compare R v Kneebone.[23]
[22] T52.8-.13
[23] (1999) 47 NSWLR 450 at [57] – [61]
She also claimed to have spoken to a brother (KP) of twin girls, the daughters of a teacher at Annesley, in these terms:[24]
'Are you sleeping with Roger Trethewey?' and I said 'Yes, I am, please don't' - swore him to secrecy basically, 'Don't tell anyone else'.
There is an agreed fact before the court (Exhibit P14) to this effect:
5. MW has no recollection of KP even discussing a sexual relationship between her and the accused’.
Given the effluxion of time since these events and the date of trial – some 34 years – this state of affairs is hardly surprising, so that it is a neutral consideration from the point of view of both sides.
[24] T52.25-.27
The complainant’s mother, Mrs S, was also called by Ms Abby, counsel for the prosecution. Mrs S deposed to the occasion when the accused came to the Gilberton home to take the complainant to an ‘art documentary’[25] and of having dinner with the accused, his wife and child at Normanville.[26] She also said that the complainant told her on one occasion when she was 17 and in Year 12 at school, that ‘she was going to help Roger babysit his daughter while his wife was away…’.[27] This evidence is consistent with that of the complainant and the accused as to the film seen at the Adelaide University, but for reasons that will emerge later, there is a substantial risk that she may be mistaken about the time the babysitting exchange occurred – or at least there is a reasonable possibility that she was.
[25] T181.33
[26] T182.3-.12
[27] T182.14-.16, T188.1-.9
This evidence of complaint is of course, admitted solely to inform how the allegations first came to light and to demonstrate consistency of conduct of the complainant: s 34M(4) Evidence Act 1929 (SA), R v J, JA[28], R v H, T.[29]It is not evidence of the truth of what is alleged: Evidence Act s 34M(4)(b). Neither the defence nor the prosecution sought to explore the reason for the delay in bringing proceedings, so it must be clearly borne in mind both that such delay is of no probative value in relation to the complainant’s credibility or consistency of conduct and that there may be many varied reasons why she did not make a complaint at a particular time or to a particular person: Evidence Act s 34M(2) & 4(c) and Crofts v The Queen.[30]
[28] (2009) 105 SASR 563 at [93]
[29] (2010) 108 SASR 86 at [45]-[47] and [104]
[30] (1996) 186 CLR 427
The defence case
For his part the accused denied sexual intercourse with the complainant at any time during the course of 1978. He did admit having intercourse with her ‘five or six times’ in 1979 at his Blackwood home on a bed in an extension, as opposed to the matrimonial bed.[31] He claimed this only occurred after she had turned 18,[32] after there ceased to be the schoolmaster/pupil relationship.
[31] T243.15-.25
[32] T234.24-.32
The accused called his wife in the defence case. She told the court – to briefly summarise her evidence – that their daughter R was born on 23 August 1973, so she would have been 4 and 5 years of age at the time the three charges are said to have arisen. Mrs Trethewey gave evidence, as did her husband, that he remained teaching at Annesley during 1979. Both said he attended the O’Halloran Hill TAFE on Wednesday evenings in 1979, but that he was not enrolled at the Sturt CAE until 1980. Mrs Trethewey recalled meeting the complainant but once in 1978, had no recollection of her babysitting in either 1978 or 1979, or of having visited her Gilberton home, except upon the occasion of her 18^th birthday. She said that the first time she was interstate attending a conference was between 23 and 26 August 1979, for which she produced the conference papers: Exhibit D20. Evidence of the accused’s good character was also adduced in the defence case.
Elements of the offence
There is no doubt that a relevant relationship of school master and student pertained during 1978, or that it concluded at the end of school term that year. That was simply because the complainant ceased to be a student. Defence counsel did not suggest there was no such relationship despite the fact that he was never a formal class or subject teacher of the complainant.
There can be no doubt the relationship came within the requisite definition of ‘school master’, as contemplated by s 49(5) of the CLCA. Like Lander J in R v C,[33] I allowed an amendment of the Information at the beginning of the trial, deleting the allegation of ‘teacher’ by inserting ‘school master’ in its stead. As his Honour pointed out, ‘school master’ means ‘the master of a school, or one of the masters in a school’ and ‘includes all those persons who are employed as masters or mistresses in the school in which the alleged victim is enrolled’.[34] Accordingly, the first element of the charge is proven in each instance.
[33] SCCRM 382 of 1995; S5228; BC9503764
[34] At BC3
Nor can there be any doubt about the second element of the charge, because on the complainant’s evidence, vaginal/penile sexual intercourse took place on each occasion.[35]
[35] T34.22-.25, 37.34-38.2, 45.3-.11
The consequence is that the critical issue remaining in the trial is whether the prosecution have proven beyond reasonable doubt that the complainant was under the age of 18 years when each one of the three charged events took place.
Context
The evidence of the complainant giving rise to the charges was placed in a particular context by her and related in point of time to a discrete sequence of events, all of which she was adamant happened in 1978. The three charges represent those occasions she could pinpoint. She was adamant that she was a student in Year 12 at Annesley when the accused was a schoolmaster there in 1978. There is no dispute about that much.
She was also adamant that in 1979 she saw the accused regularly at the Sturt CAE campus where he was enrolled as a student. Her evidence about the course of events over the 1979 calendar year was:[36]
Yeah, I did. I went on to Sturt Teachers College and Roger Trethewey went to Sturt Teachers College part-time I believe. He spent time at the college and I saw him there and in the first part of the following year
and under cross-examination:[37]
QAnd was that all part of your clear memory of being at the Annesley school campus receiving this information.
AYes, I was standing on the walkway and he told me
This state of affairs is very much in contention.
[36] T47.21-.24
[37] T62.20-62.22
Later in her evidence-in-chief she was taken to the occasion which pertains to Count 3:[38]
[38] T47.27-.35
QWhen you stayed more than one night at his house you were studying and at school.
AAbsolutely.
QBefore the end of school in that year of 1978 did you see Mr Trethewey again.
ABefore the end of that year?
QYes.
AI'm sorry, did I see him again after that instance?
QYes.
AI still went to school after that.
The sequence of events detailed by the complainant commenced with a passing acquaintance ‘towards the end of Year 11’ at Annesley.[39] She purports to retain ‘a very distinct memory of meeting him in the quadrangle’ at the school.[40] Afterwards he became ‘interested in me, he gave me attention … there was a flirtatious energy…’.[41] Next in point of time was a visit to his Blackwood home at some time with a fellow student when he is said to have served them a rum and coke and when the prospect of going to a workshop was discussed.[42]
[39] T22.4
[40] T22.23-.38
[41] T23.18-.25
[42] T24.4-25.11
Approximately two weeks later she went with him to a workshop in the Adelaide Hills, whilst she was in Year 12.[43] Her evidence continued that the ‘next step was to go and see these movies’ at the Adelaide University where, on her account, they watched a pornographic film when they were supposed to be seeing a film about Australian history. Afterwards there was a sexual advance in his car on a road behind the Adelaide Zoo during the course of the journey to her home at Gilberton, when he kissed her, touched her between the legs and fondled her breasts.[44] He is said to have described this as ‘our special place’. She placed this in ‘early autumn, and when I would have turned 17 quite shortly afterwards’ and when she was enrolled at Annesley College.[45]
[43] T26.24-.37
[44] T29.22-.33
[45] T30.18-.34
The next event on the complainant’s evidence was the first of ‘many times’ that she babysat the accused’s daughter at Blackwood, the event the subject of Count 1.[46] She thought his daughter was ‘maybe five years old’, so that it would then place it in the latter third of 1978.[47] She said in evidence it was when she was ‘either almost 17 or 17’, only weeks after the film incident, which places it around April 1978.[48]
[46] T32.22-.37
[47] T32.24
[48] T35.3-.16
Count 2 is said to have taken place, as mentioned, in the darkroom at Annesley College some time later during ‘the middle winter months of the year’.[49] This was the only occasion when intercourse occurred on the school grounds on her account.[50]
[49] T38.17
[50] T38.37-39.1
Following that the complainant spoke of a trip to Kangaroo Island during the winter holidays around June 1978. She and a friend initially stayed with the accused’s parents in Penneshaw before moving to camp in a paddock.[51] She was confident the house she stayed in at first was located within the township of Penneshaw.[52]
[51] T39.9-.35
[52] T39.14, T65.3-.28, T67.38-68.9

The next event of consequence was a film and photographic workshop at Carclew Youth Arts Centre in North Adelaide. On this occasion she described the accused taking a ‘photogram’, including a nude profile.[53] He is said to have come to her house later to collect it when her mother was home.[54]
[53] T42.5-.34
[54] T42.35-43.15
Count 3 arose on the only occasion, on all accounts, that she stayed overnight at the Blackwood home. On her evidence this was in the study period preceding the Year 12 matriculation exams in 1978, when she was 17,[55] at ‘the end of the term before the last school holidays, before the exams’.[56]
[55] T46.9-.14, T48.3-.5
[56] T50.10-.17
A final encounter of any sexual kind occurred at Maslin’s Beach during the summer school holidays soon after school had finished, when there was a failed attempt to have sex in thigh-deep water.[57]
[57] T48.6-.26
In all, the complainant’s evidence was that there was sexual intercourse on about 12 occasions, only one at Annesley, none of them in her home at Gilberton. Although it was not specified where these occurred, the inference is that they took place at the accused’s home in Blackwood. As mentioned at the beginning, the Crown case is grounded in the premise that these events all occurred during 1978 when the requisite teacher relationship pertained, and of course, when the complainant was under the age of 18 years.
Analysis
A number of considerations were urged by Ms Powell QC for the defence, which challenged the fundamental notion that these events happened in 1978. She posited that they were more likely to have been in 1979.
No doubt the complainant enrolled for tertiary study at the Sturt CAE in 1979 after successfully matriculating in 1978. However her evidence was to the effect that she believed the accused also enrolled there as a part-time student during 1979.[58] It was the accused’s evidence, as well as his wife’s, that he did not so enrol until 1980.[59] This evidence is supported by an agreed fact contained in Exhibit P14, which is:
1. The accused was employed as a part-time secondary school teacher at Annesley College, 89 Greenhill Road, Wayville, from Term 2 1977 to 31 December 1979.
No evidence was adduced by the prosecution refuting the assertion that Mr Trethewey had not enrolled in the Sturt CAE until 1980.
[58] T47.21-.25, T48.27-.32
[59] T249.10-.11, T250.36-.38, T251.11-.24, T300.5-.23, T323.20-.24
This evidence combines to raise serious questions as to the reliability of the complainant about her insistence that the accused left Annesley and enrolled at the Sturt College in 1979. The evidence renders that assertion an unlikely one.
A second consideration of importance is this. On both accounts the complainant stayed overnight at the Blackwood home on one occasion, and one occasion only. This was when his wife was absent interstate attending a conference. The complainant insisted this was in the latter part of 1978 when she was still a school student. The accused’s wife gave evidence that she went to no such conference during the course of 1978, for reasons she outlined as follows:[60]
I didn’t go to any conference in 1978 because I have kept the full set of proceedings and the first one I have is ’79 and apart from that in ’78 Roger and I were building an extension on the rear of our house.
[60] T328.16-.19
In support of that evidence, Mrs Trethewey produced the bundle of papers delivered at the 9^th Annual Conference of the Australian and New Zealand History of Education Society held in Melbourne between August 23 and 26, 1979. Her evidence was from that time onwards, being the first such conference, she kept each successive set of conference papers she attended thereafter. She was not shaken under cross-examination about this. Despite her obvious interest in the outcome of the trial, I am not prepared to find that she, or the accused for that matter, were lying or even mistaken about this. There is nothing inherently unlikely in what they said about it either.
Further doubt is injected into the suggestion that relevant events occurred in 1979, rather than 1978, through the evidence of LP. She produced her diaries for the calendar years 1978 and 1979. These contain no reference to the complainant babysitting for the accused at all in 1978. The 1979 diary contains an entry recording that the complainant stayed at the accused’s house on 23 August 1979, which – as it happens - corresponds precisely with the evidence of Mrs Trethewey and the accused on that subject. This material only serves to reinforce the conclusion already reached that LP might well have been mistaken as to the year in which the complainant spoke to her about her sexual relations with Mr Trethewey. Still further, LP’s diary contains a reference to the complainant and her friend leaving for Kangaroo Island on 22 May 1979 – rather than 1978. In fact, there is nothing at all about Kangaroo Island in the 1978 diary.
Added to these consideration is the evidence from Mr and Mrs Trethewey that the complainant could not have stayed at the Penneshaw house during 1978 because construction had not been completed until early 1979,[61] and that the camping visit to Kangaroo Island was taken during the September school holidays of 1979.[62]
[61] T215.9-20, 216.27-217.9, 315.25-.30, 328.23-329.17
[62] T217.15-.31, 330.25-.38
Considered as a whole, this evidence raises the distinct possibility, when it comes to Count 3, that the events in question occurred in 1979, rather than 1978. Accordingly, the accused would be entitled to an acquittal on Count 3 standing alone, simply because the prosecution case falls well short of proof beyond reasonable doubt that the complainant was below the age of 18 at the relevant time and that she was a student at the time.
Of course, the evidence in relation to each count must be considered separately: R v Schlaefer,[63] R v Dolan.[64] However, any doubt the tribunal of fact may form about one aspect of a complainant’s evidence, may be relevant in relation to its consideration of the other counts: R v Timbery.[65] In that situation, the assessment of the credibility of the complainant must be considered if it is of such a nature as to affect the truthfulness or reliability of the complainant’s evidence generally, or because it might make it difficult to believe her evidence in relation to one or more of the remaining counts: R v Markuleski.[66] On the other hand, a reasonable doubt in relation to one count, which is merely the product of faulty or inaccurate recollection or brought about by the existence of circumstances rendering the commission of the offence less likely, does not necessarily affect the complainant’s truthfulness in respect of the remaining counts: R v PMT.[67]
[63] (1984) 37 SASR 207 at 210
[64] (1997) 58 SASR 501 at 502
[65] (2007) 180 ACR 232 at [203]
[66] (2001) 52 NSWLR 82 at [188-191]
[67] (1987) 11 NSWLR 12
In this particular instance, the demonstrated flaw in the recollection as to the occasion related to Count 3 is telling. The complainant’s repeated insistence that all these events took place in 1978 has been shown to be quite unreliable. In those circumstances and given the fact that there is only one witness asserting the commission of the offences, her evidence must be examined with some care as it relates to each of the two remaining counts: R v Murray.[68]Moreover there is, as King CJ observed in Question of Law Reserved on Acquittal (No 1 of 1993),[69] a difficulty in arriving at a conclusion of guilt beyond reasonable doubt where the accused has given evidence in denial of a charge and there is no convincing support for the allegations against him. This is not a case in which the complainant’s evidence is so convincing and the accused’s denials so incredible that it is possible to reach a state of satisfaction beyond reasonable doubt.
[68] (1987) 11 NSWLR 12
[69] (1993) 59 SASR 214 at 219
With these principles in mind, attention may be given to evidence on Count 1. It is inherently unlikely that intercourse would have occurred in the lounge room whilst there was a risk of the accused’s wife emerging from the bedroom, thus catching them in the act. Furthermore, the complainant was insistent that the accused closed a lounge room sliding door,[70] and yet it was the evidence of the accused and Mrs Trethewey that there is and never was any such door to the lounge room.[71] Since they remain living at the Blackwood address,[72] this was something the prosecution could have checked had it wanted to. The photograph Exhibit D12 taken in about 1983 or 1984 under the archway, tends if anything, to support that contention.[73] Moreover, the dark corduroy couch described by the complainant,[74] was one they said was never in the lounge and remained in a study.[75] Since the accused admitted having intercourse with the complainant in the house during 1979, there is then a reasonable possibility she is mistaken about the events giving rise to Count 1 as well.[76]
[70] T33.29, T69.33-.34, T70.28-T71.1
[71] T210.2-.16, T333.1-.12
[72] T211.25-.26
[73] T212.35-T213.1
[74] T70.18-.19
[75] T210.21-.34, T333.22-T335.24
[76] T234.33-T235.11
Turning to Count 2, there is nothing one way or the other rendering the complainant’s version inherently probable or improbable. Ms Powell’s suggestion that it is unlikely intercourse occurred because of the presence of developing chemicals on the bench against which intercourse occurred, is not borne out by the evidence, as the complainant said there was nothing on the bench.[77] It is sufficient to observe that a darkroom might have been one of the few places at the girls’ school where the accused might have gotten away with this kind of misconduct, but then again there were school rules that he should remain in the presence of no fewer than three students. However, given the considerable doubts as to the accuracy of the complainant’s evidence in general, the court is simply in the position that it is unable to say where the truth lies in relation to Count 2. Accordingly, there is necessarily a reasonable doubt about that count: Liberato v The Queen,[78] R v Calides.[79]
[77] T37.8-.11
[78] (1985) 159 CLR 507 at 515
[79] (1983) 34 SASR 355 at 358
Given these conclusions, it is unnecessary to resolve a number of other issues raised by the defence as adversely impacting on the credibility or reliability of the complainant. These include the circumstances of a visit or visits to the Belair National Park, whether the Carclew incident was linked to a ‘Come Out’ Youth Arts Festival and therefore could only have been in 1979, inconsistencies attributable to the complainant between her evidence on several topics and a number of statements she gave to the police, or as to what precisely happened at Maslin’s Beach or when that might have been.
It might also be added that there is also an appreciable degree of forensic disadvantage faced by the defendant, which engages s 34CB of the Evidence Act. There was a good deal of evidence that the accused and his wife were hoarders, and yet they were unable to locate diaries kept by the accused. One diary was fortuitously found for 1979, which suggested that a workshop was scheduled for the school holidays in May 1979 at Carclew. This, so far as it goes, adds further weight to the view that the complainant is mistaken as to the year when her liaison with the accused occurred. Had the allegations emerged earlier, it seems clear enough that the accused might have been in a better position to recover his diaries, school schedules and CAE records for instance, to confirm his position. In those circumstances, it is open for the trier of fact to conclude the missing or unavailable material is likely to have assisted the defence case, even though it is impossible to say just how, and even though one cannot be certain about that: R v Cassebohm.[80]
[80] (2011) 109 SASR 465 at [30]
Conclusion and verdicts
In the result, an analysis of the evidence demonstrates a significant doubt about the reliability of the evidence of the complainant as to the year in which the alleged events took place, and in relation to Counts 1 and 3, the circumstances in which they occurred. With respect to Count 2 the court is simply unable to determine where the truth lies. The sworn denials of the accused were neither incredible nor inherently improbable and are supported by the evidence of his wife and in certain respects, the other evidentiary material referred to. In reaching this conclusion, I have ignored the evidence of good character given by the accused and two character witnesses called in the defence case. In the result, the court is far from convinced that the evidence of the accused was not reasonably true: Liberato v The Queen[81]and Douglass v The Queen[82].
[81] (1985) 159 CLR 507 at 515
[82] (2012) 290 ALR 699, [2012] HCA 34 at [13]
This being the position, the accused has demonstrated more than a reasonable doubt that the complainant was under the age of 18 years when each of the charged events is alleged to have happened and it has equally failed to prove the requisite school master/student relationship pertained at the time. He is therefore entitled to an acquittal on each of the three counts. It is for the above reasons that I gave a direction that verdicts of not guilty be entered on 25 October 2012.
These findings should not obscure the fact that the accused behaved reprehensively in having intercourse with the complainant in 1979, even if that was after her 18^th birthday. I make no finding one way or the other about that. Nor should it obscure the fact that his denial of a sexual interest in the complainant until after she turned 18, was barely credible in light of the fact that he unacceptably allowed her to remain watching a film that was inappropriate to her age on any view of the facts.[83] His evidence as to the content of the film was very unsatisfactory and inconsistent to say the least.[84]
[83] T275.29-277.18, T284.17-.36
[84] T224.24-225.8, compare T279.38-280.38, 282.38-284.16