R v Turvey
[2016] SADC 55
•3 June 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TURVEY
Criminal Trial by Judge Alone
[2016] SADC 55
Reasons for the Verdict of His Honour Judge Slattery
3 June 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused was charged with a number of offences and he elected to proceed to trial on the fifth count on the Information which alleged that he had committed the offence of engaging in unlawful sexual intercourse with a child contrary to s 49(1) of the Criminal Law Consolidation Act.
The facts in the case were agreed and the parties' contentions principally concerned the meaning of the noun "penetration" in s 5 of the Criminal Law Consolidation Act.
Held: the accused is guilty of the offence charged.
Juries Act 1927 s 7(1); Criminal Law Consolidation Act 1935 s 5, s 49(1), s 56(2), s 73(1), s 75; Criminal Code of Western Australia. s 324F(e); Crimes Act of New South Wales s 61H; Acts Interpretation Act s 22(1) and (2), referred to.
R v Abraham (1998) 70 SASR 575; The Queen v Remynse (1987)135 LSJS 180; R v Randall (1991) 55 SASR 447; R v Mobilio (1991) 1 VR 339; R v Dunn Court of Criminal Appeal (unreported) Full Court NSW number 60430 of 1991, 15 April 1992; R v Murphy (1988) 52 SASR 186; Saibu v The Queen (1993) 10 WAR 279; R v Kaitamaki [1980] 1 NZ LR 59; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Adams (1935) 53 CLR 563, discussed.
Ayles v R (2008) 232 CLR 410; The Queen v Pfitzner (1976) 15 SASR 171; The Queen v Martinovic (1985) 122 LSJS 129; R v Baxter (1999) SASC 403; Johnson v Miller (1937) 59 CLR 467; R v Bradley (1973) 54 Cr App R 394; Kaitamaki v The Queen [1985] AC 147, considered.
R v TURVEY
[2016] SADC 55JUDGE SLATTERY
The accused Cham Ross Turvey (Turvey) is charged on information for arraignment 9 June 2015 with the following offences:
First Count
Statement of Offence
Aggravated Possessing Child Pornography (s63A(1)(a) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
Cham Ross Turvey on 31st day of August 2014 at St Agnes was in possession of child pornography knowing of its pornographic nature.
It is further alleged that Cham Ross Turvey committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years.
Second Count
Statement of Offence
Aggravated Possessing child pornography (Ibid)
Particulars of Offence
Cham Ross Turvey on 31st day of August 2014 at St Agnes was in possession of child pornography knowing of its pornographic nature.
It is further alleged that Cham Ross Turvey committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years.
Third Count
Statement of Offence
Unlawful sexual intercourse (s49(1) of the Criminal Law Consolidation Act 1935)
Particulars of offence
Cham Ross Turvey on the 23rd day of June 2014 at Adelaide, or another place, had sexual intercourse with JMF, a person of 13 years of age by inserting a vibrator into her vagina.
Fourth Count
Statement of Offence
Aggravated Producing Child Pornography (s63(a) of the Criminal Law Consolidation Act 1935)
Particulars of offence
Cham Ross Turvey on the 23rd day of June 2014 at Adelaide, or another place, produced child exploitation material knowing of its pornographic nature.
It is further alleged that Cham Ross Turvey committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years.
Fifth Count
Statement of Offence
Unlawful sexual intercourse (s49(1) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
Cham Ross Turvey on the 23rd day of June 2014 at Adelaide, or another place, had sexual intercourse with JMF, a person of 13 years of age by inserting a vibrator into her vagina.
In relation to these counts, on 10 May 2016 the accused pleaded guilty to the first and fourth count. He pleaded not guilty to the fifth count but pleaded guilty to indecent assault. He elected to be tried by a Judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. The plea on the fifth count involves an acceptance by the accused that he had procured a 13 year old girl to allow herself to be photographed whilst naked and sitting on the rear seat of the accused’s motor vehicle. The first five of those photographs depicts a vibrator having been inserted into the vagina of the child and the photographs show that the hand of the accused is holding the vibrator. The fifth photograph shows the vibrator being withdrawn from the vagina of the child and the accused’s left hand remains on and holding the vibrator.
There are a number of directions, which would ordinarily be given to a jury in a jury trial, about which I remind myself here. I have kept these directions in mind in my deliberations in this matter.
Directions
1An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it and the failure by me to accept any such defence does not in any way detract from the requirement of the onus on the prosecution to prove its case beyond reasonable doubt.
4It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5Each of the counts on the Information concerns a separate offence; I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected not to give evidence. The accused was not obliged to give evidence. He has exercised the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the ingredients of the charge. I remind myself that no conclusion, adverse or otherwise, is to be drawn from the fact that the accused remained silent as was his right.
8Finally, I remind myself that the sole task before me is to determine whether or not the prosecution has proved the elements of the charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lay in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
The prosecution case
The prosecution allege that Turvey had sexual intercourse with JF on 23 June 2014. JF was born on 21 November 2000 and on 21 June 2014 she was 13 years of age; this fact is not in dispute. At trial, the prosecution tendered Exhibit P5 which was a birth certificate of JF. The date of JF’s birth and the fact that she was 13 years of age at the time of the alleged offences were not in contest in this action and I find those facts proven beyond reasonable doubt.
As I will outline below, I find proved beyond reasonable doubt that the events the subject of this charge took place inside the accused’s vehicle; the events were captured in a series of seven images taken by the accused on his mobile phone.[1]
[1] Exhibit P2.
In relation to all of these events, the parties have agreed a statement of facts.[2] The recitation of material set out below, in large part, is derived from that statement of agreed facts. I am satisfied that each of these statements of fact are proven beyond reasonable doubt.
[2] Exhibit P1.
A preliminary issue
Before embarking upon a discussion of the facts in this matter there is an issue that requires some discussion. The fifth count alleges Unlawful Sexual Intercourse against the accused in breach of s 49(1) Criminal Law Consolidation Act 1935 (CLCA). The particulars of the offence are that the accused on 23 June 2014 at Adelaide or another place had sexual intercourse with JMF, a person of 13 years of age by inserting a vibrator into her vagina.
In this matter both the prosecution and the defence accept that there is no evidence as to who placed the vibrator into the vagina of JF. The available evidence (photographs) discloses that the accused held the vibrator at the time that it had penetrated the vagina of JF. Strictly speaking there is no evidence to support the particulars that the accused inserted the vibrator into the vagina of JF.
I am mindful of all of the authorities on the question of particulars: Ayles v R;[3] The Queen v Pfitzner;[4] The Queen v Martinovic;[5] R v Baxter;[6] Johnson v Miller;[7] R v Bradley.[8] I am also mindful that the accused is entitled as a matter of fairness and in order to ensure a fair trial to be appraised of the particular acts, matters or things which are alleged as the foundation of the charge as well as the offence with which he is charged. This is a fundamental proposition of the criminal law. As the decision of the Court of Criminal Appeal in Pfitzner discloses, there are questions of fact and degree that arise here because the general rule does not specify by when, for example, the full particulars need to be given. And there is no doubt that in the fluid nature of many trials, corrections, additions and deletions are made that reflect what the parties were already thinking. The Court takes a flexible approach to these matters. Often as not, claims of prejudice are unsustainable.
[3] (2008) 232 CLR 410 at [50]-[51]; [56]-[64]; [72]-[86].
[4] (1976) 15 SASR 171 at 192.
[5] (1985) 122 LSJS 129 at pp 2-5.
[6] (1999) SASC 403 at [111]-[125].
[7] (1937) 59 CLR 467 at 489.
[8] (1973) 54 Cr App R 394.
That hallmark of flexibility has a part to play here because of the way that this matter proceeded. At no time did the accused raise the question of the particulars at the hearing before me. Ms Fong opened the case for the prosecution on two bases.[9] First that the holding of the vibrator was sufficient to constitute the act of sexual intercourse and second that the evidence discloses that there was a variance of the degree of penetration of the object into the vagina of JF sufficient to satisfy the Court that the accused penetrated the vagina of JF with the vibrator.
[9] T12.5-29.
For his part the accused consistently asserted that there was no evidence that the accused did anything to penetrate the vagina of JF with the vibrator. He contends that merely to put a hand on a vibrator does not prove that the accused penetrated JF.[10]
[10] T29.12-T32.17.
It was on this basis that the prosecution proceeded. I am satisfied that all participants plainly understood the case put by the prosecution and the accused was not in any sense distracted by the differences between the particulars of count 5 and the way the matter proceeded on that count. I am satisfied that the accused came to Court prepared to meet and did by his submissions meet that case. No prejudice was suffered by him and I may proceed to decide this case on the basis as argued before me.
The facts
On 31 August 2014 the police attended at an address in St Agnes, at that time the accused was present on the premises. He was arrested.
After his arrest, the accused identified his bedroom to the police and a search of that room was conducted. During that search, the police located a Samsung mobile phone and a pink/orange coloured vibrator (sex toy).
Police also located and seized a white Holden Commodore sedan vehicle at those premises. This vehicle is the subject of a booklet of 21 photos[11] only seven of which are relevant: photographs 1-5 inclusive and photographs 14 and 15. I have disregarded the content of the other photographs in the bundle of 21 photographs.
[11] Exhibit P3.
On examination of the phone, the police detected 7 images which depicted the offending which is the subject of Count 5. The phone record discloses that the seven images were captured at 2:37pm on 23 June 2014. The subject of the photographs was JF using the pink vibrator. The prosecution alleges that the accused was holding the vibrator at the time that it had been used to penetrate the vagina of JF. It is an admitted fact, as conceded by Mr Perrotta for the defendant, that the first four of those seven images discloses penetration of the vagina of JF by the vibrator. It will be necessary in due course to specify in a little more detail the content of those four photographs. The fifth photograph shows the vibrator being withdrawn from the vagina of JF and the accused’s left hand is holding the vibrator. The balance of the seven photographs show the same vibrator in the area of the vagina of JF. In all of the photographs, the accused’s hand is holding the vibrator.
The prosecution case is that based solely upon the images contained within the first four of the seven photographs, the prosecution has proved beyond reasonable doubt that sexual intercourse took place between the accused and JF.
Under Count 5, the accused is charged with unlawful sexual intercourse with JF contrary to s 49(1) of the CLCA. That section reads as follows:
49—Unlawful sexual intercourse
(1) A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.
As became clear in the preliminary submissions made before me, the principal contention of the accused is that the prosecution has not proved beyond reasonable doubt that there has been penetration of JF by the accused using an object; the accused contends for the position that there is no proof of penetration by him of JF using the vibrator. The accused contends that the fact that the hand of the accused is holding the vibrator at the time that it has penetrated the vagina of JF does not prove beyond reasonable doubt the fact of penetration by the accused. It is again to be recalled that in considering these contentions no burden of proof falls upon the accused in this matter. The burden falls entirely upon the prosecution to prove each element of the offence beyond reasonable doubt.
In order to prove the elements of unlawful sexual intercourse, the prosecution must prove first that sexual intercourse has taken place between the accused and JF.
The terms “sexual intercourse” is defined in s 5 of the CLCA as follows:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunnilingus,
and includes a continuation of such activity;
Relevantly for the purposes of this charge, the operative words of this definition are “any activity… consisting of or involving… the penetration of a person’s vagina… by another person or by any object… and including the continuation of any such activity…”
The accused contends that in the absence of any evidence to prove beyond reasonable doubt that his hand or any part of his body had any connection with the insertion of the vibrator into the vagina of JF there is no proof of his involvement with the act of penetration of JF’s vagina. This remains the position even though the accused was holding the handle of the vibrator after the time it may be assumed to have been inserted into the vagina of JF.
The prosecution case is that the accused held the vibrator whilst that vibrator was penetrating the vagina of JF. On the prosecution case, that is an activity consisting of or involving penetration of the vagina of JF. The prosecution contends that it is of no consequence that there was no direct evidence of who placed the vibrator into the vagina of JF before it was touched by the accused. This is because, on the prosecution case, the definition of sexual intercourse includes any continuation of any activity which constitutes sexual intercourse. The prosecution contends that from the time the accused put his hand upon the vibrator that was inserted into the vagina of JF, that was the act of sexual intercourse. The prosecution contends that this approach is consistent with s 73(1) of the CLCA which reads as follows:
73—Proof of certain matters
(1) For the purposes of this Act, sexual intercourse is sufficiently proved by proof of penetration.
…
The prosecution case is that according to the record of when the photos were taken, namely 2:37pm on the relevant day, the accused was touching the vibrator and manipulated it. That, as the prosecution contends, is apparent from a view of the relevant photographs. The prosecution case was that the accused had sexual intercourse with JF by virtue of him having his hand upon the vibrator and manipulating it.
The second element of unlawful sexual intercourse is that it must be established that at the time of the alleged act, JF was under the age of 14 years. It is an agreed fact that JF was born on 21 November 2000 and therefore on the relevant day she was 13 years of age. Proof of the age of JF is also contained within her birth certificate, Exhibit P5.
In the alternative, the prosecution contends that under s 75 of the CLCA the accused is guilty of indecent assault or common assault or an attempt to commit indecent assault. Section 75 of the CLCA reads as follows:
75—Alternative verdict on charge of rape etc
If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse, or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse, the jury—
(a) is not satisfied that the accused is guilty of the offence charged; but
(b) is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the lesser offence),
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
The aggravating feature on the prosecution case is the fact that JF was under 14 years of age at the time of the offence. That is the aggravating feature pursuant to s 56(2) of the CLCA which reads as follows:
56—Indecent assault
…
(2) If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.
No oral evidence was called. The evidence consisted of a statement of agreed facts, Exhibit P1, together with five exhibits as follows:
Exhibit P2 – Compact disc containing 7 still images;
Exhibit P3 – Bundle of photographs;
Exhibit P4 – Pink vibrator (sex toy);
Exhibit P5 – Birth certificate of JMF.
The statement of agreed facts marked Exhibit P1 reads as follows:-
AGREED FACTS
It has been agreed between the prosecution and defence in the trial on Count 5 only, that:
Police Search – [ADDRESS], Saint Agnes
On Sunday 31 August 2014 between about 8.33am and 8.40am, the police attended at [ADDRESS], Saint Agnes.
The Defendant was present at [ADDRESS], Saint Agnes when the police arrived.
The Defendant was arrested at [ADDRESS], Saint Agnes on 31 August 2014.
The Defendant identified his bedroom to the police.
Police conducted a search of the Defendant’s bedroom:
A Samsung mobile phone (exhibit 15/B14019-2) was located in the Defendant’s bedroom, and subsequently seized.
The Samsung mobile phone (exhibit 15/B14019-2) belonged to the Defendant.
A sex aid pink-orange coloured vibrator (exhibit 15/B14019- 3) was located in the top drawer on the right side of a wardrobe in the Defendant’s bedroom, and subsequently seized.
In the driveway of [ADDRESS], Saint Agnes police located a white Holden Commodore sedan, South Australian Registration number [DELETED] (exhibit 15/B14019-26) (hereafter ‘the vehicle’).
The vehicle (exhibit 15/B14019-26) and keys to the vehicle (exhibit 15/B14019-27) were seized. The vehicle was then towed to the Sturt Police Station on 31 August 2014, and subsequently secured by the police.
The vehicle (exhibit 15/B14019-26)
On Tuesday 9 September 2014 at about 9.10am, police conducted a search of the vehicle (exhibit 15/B14019-26):
A Samsung mobile phone (exhibit 15/B14019-65) was located in the console of the vehicle.
The Samsung mobile phone (exhibit 15/B14019-65) belonged to the Defendant.
Photographs of the vehicle (exhibit 15/B14019-26), and items located inside the vehicle were photographed by Brevet Sergeant Lawson of Sturt Crime Scene Investigation Unit on Tuesday 9 September 2014. A bundle of 21 photographs labelled ‘XNP’ were subsequently put together.
The vehicle (exhibit 15/B14019-26) and keys to the vehicle (exhibit 15/B14019-27) were returned to the Defendant on Sunday 14 September 2014.
Electronic Crime Section
On Friday 17 October 2014, electronic items including Samsung mobile phone (exhibit 15/B14019-2) and Samsung mobile phone (exhibit 15/B14019-65) were submitted to the SAPOL Electronic Crime Section, with the reference number ECS 2015/0377.
On Monday 24 November 2014, the contents of Samsung mobile phone (exhibit 15/B14019-2) and Samsung mobile phone (exhibit 15/B14019-65) were examined and extracted by Senior Constable Michael Wood of the SAPOL Electronic Crime Section.
Samsung mobile phone (exhibit 15/B14019-2)
Samsung mobile phone (exhibit 15/B14019-2) contained one “OPTUS” SIM card, and one “SANDISK” branded 32GB Micro SD memory card.
Senior Constable Wood extracted content from the SIM card, performed an extraction of the content from the mobile phone and memory card, and generated reports detailing the data extracted in PDF and Microsoft Excel files, which included the file name of 15-B14019-002 PHONE.
The reports generated from Samsung mobile phone (exhibit 15/B14019-2) were copied into the Reports All Items folder of an encrypted disc marked as 2015/0377-MW1.
On Monday 23 February 2015, Detective Bradley Molony conducted a review of the forensically copied data in 2015/0377-MW1. In file name 15-B14019-002 PHONE, Detective Molony located the following images:
Image 20140623_143734_19428.jpg
Image 20140623_143734_20095.jpg
Image 20140623_143734_21494.jpg
Image 20140623_143734_21828.jpg
Image 20140623_143734_40391.jpg
Image 20140623_143734_40591.jpg
Image 20140623_143734_44857.jpg
Image 20140623_143734_19428.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
The pink-orange coloured vibrator (exhibit 15/B14019-3) was penetrated into the vagina of JF in this image.
Image 20140623_143734_20095.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
The pink-orange coloured vibrator (exhibit 15/B14019-3) was penetrated into the vagina of JF in this image.
Image 20140623_143734_21494.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
The pink-orange coloured vibrator (exhibit 15/B14019-3) was penetrated into the vagina of JF in this image.
Image 20140623_143734_21828.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
The pink-orange coloured vibrator (exhibit 15/B14019-3) was penetrated into the vagina of JF in this image.
Image 20140623_143734_40391.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
Image 20140623_143734_40591.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
Image 20140623_143734_44857.jpg
This image was taken at 2.37pm on 23 June 2014 by the Defendant.
This image was taken inside the vehicle of the Defendant (exhibit 15/B14019-26).
The female depicted in this image is JF.
The male hand depicted in this image is that of the Defendant.
The pink-orange coloured vibrator depicted in this image is exhibit 15/B14019-3.
The complainant
The date of birth of JF is 21 November 2000.
The compact disc containing the series of the seven images is Exhibit P2. The seven relevant photographs of the motor vehicle are contained within Exhibit P3. The pink vibrator found at the premises of the accused is Exhibit P4 and the birth certificate is Exhibit P5.
The prosecution case relies upon the agreed statement of facts, the tendered documents and in particular the series of seven photographs. These seven photographs depict the genital area of JF. In the first four photographs which were commenced to be taken at 2:37pm on the relevant day, the photographs depict the vibrator inserted into the vagina of JF. Photograph five shows the accused’s hand on the vibrator as it is being withdrawn from the vagina of JF. The last two photos in the bundle depict the same vibrator but on the outside of the vagina of JF; those two photos are not demonstrative of any form of penetration. The focus therefore is upon the first four photographs and then the fifth photograph.
Each of the photographs is a still photograph in two dimensions. It is a photograph taken by the accused during the encounter with JF. It is an agreed fact that the accused procured JF to allow herself to be photographed. It is also conceded by the accused that in the first four photographs, the vibrator has penetrated the vagina of JF and the central matter in issue and which the accused contends has not been proved beyond reasonable doubt is whether the accused was the person who penetrated the vagina of JF.
The vibrator is 19cm long. The handle section of the vibrator is about 6cm long. Between 3.5cm to 6.5cm from the end of the handle are 4 rows of three silver balls, each of about 1cm in diameter inserted into the vibrator.
It is in that background that I now consider each of the four relevant photographs. The first photograph was the first image taken at 2:37pm on the 23rd of June 2014. At the time that the photograph was taken, JF was sitting in the rear seat of the vehicle of the accused. The photograph shows a pinkish coloured vibrator which had penetrated the vagina of JF and that vibrator is Exhibit P4 in the trial. The photograph shows the left hand of a male holding the vibrator. That hand is the left hand of the defendant. The photograph shows the left hand of the accused holding the handle section of the vibrator. The hands of JF are not on the vibrator and the only hand visible is that of the accused.
The second photograph in the series depicts the same scene with the accused’s left hand still holding the vibrator and JF’s hands are not on the vibrator. The photograph discloses that the vibrator had not been inserted any more or any less deeply into the vagina of JF. By comparison with photograph 1, and by comparison with Exhibit P4, the photograph discloses that the vibrator appears to be in the same position as in photograph 1 meaning that it cannot be discerned from this photograph that the vibrator had moved position from what could be seen in photograph 1.
The third photograph, taken subsequently to photographs numbered 1 and 2 again shows the same scene. This photograph is the same as photographs 1 and 2 in that it discloses the penetration of the vagina of JF with the vibrator, the left hand of the accused upon the vibrator and there are no hands of JF upon the vibrator. The image within photograph 3 is no different from the image in photographs 1 and 2. I am unable to discern that photograph 3 depicts anything different from photographs 1 and 2.
Photograph 4 depicts the same situation as is depicted in photographs numbered 1, 2 and 3; it shows the vibrator penetrating the vagina of JF, the left hand of the accused is upon the handle of the vibrator and the hands of JF are not upon the vibrator. Same as photographs 2 and 3, I am unable to discern that photograph 4 depicts anything different from photograph 1. Each of the photographs are consistent and show the same situation. The only differences in the first four photos are the facial expressions of JF and perhaps some otherwise unrelated activity going on around her in the back seat of the motor vehicle. The photos show a young child sitting in a child’s car seat positioned next to JF, on the rear passenger seat of the vehicle. Otherwise the photographs depict the same activity: the vibrator that has penetrated the vagina of JF and the hand of the accused holding the vibrator. I am unable to discern any evidence in these photographs of manipulation apart from photo 5 which shows the accused’s hand on the vibrator which is almost completely withdrawn from the vagina of JF. Otherwise there is no evidence of which would commonly be understood by the expression “manipulation” which ordinarily would involve evidence of some movement of the vibrator. The accused’s hand remains holding the vibrator in photograph five.
As I have already described, photographs 6 and 7 depict the vibrator being held by the accused but on the outside of the vagina of JF. The importance of photograph 5 is that it shows a decreased level of penetration of the vibrator and it displays the withdrawal of the vibrator from the vagina of JF. This is consistent with photos 6 and 7.
No evidence was called from the accused and I direct myself again that no significance is to be attached to that fact. And it was apparent from the commencement of this hearing that the issue for determination by the Court turned largely on a question of law: whether the prosecution has proved beyond reasonable doubt that it was the accused, using an object, who had penetrated the vagina of JF. The position of the accused was that merely holding a vibrator, without more, does not constitute an act of penetration and more must be shown by the prosecution in order to satisfy the Court beyond reasonable doubt that the accused is guilty of the offence of unlawful sexual intercourse. The only evidence before the Court which informs that issue are the seven photographs.
The parties’ submissions
The prosecution submitted that when Exhibit P4, the vibrator, is compared to the seven images in Exhibit P2, it is apparent that it is possible to make an objective measure of the degree of penetration of the vibrator into the vagina of JF. The fact of penetration of the vagina of JF by the vibrator is not in issue in this case. I consider that the photos do not disclose that the accused manipulated the vibrator whilst it had penetrated the vagina of JF. The prosecution submitted that on no account could it be said that this was merely a touching of the vibrator whilst it was in the vagina of JF. I agree with that submission and so much is apparent from an ordinary viewing of all of the photographs which show the left hand of the accused.
The prosecution contends that consistent with the wording of the definition of sexual intercourse in s 5 CLCA, the conduct of the accused in holding the vibrator that penetrated the vagina of JF, was an activity consisting of or involving sexual intercourse which may be sufficiently proven by proof of penetration of the vibrator into the vagina of JF.[12] The prosecution identifies four main issues: the four images were taken within the same minute, namely 2:37pm; each of the first four photographs show a degree of penetration of the vibrator into the vagina of JF; thirdly, in each photograph the accused’s hand is on the vibrator and is holding the vibrator; and, at no time within those four photographs is there any evidence that JF was holding the vibrator.
[12] Section 73(1) CLCA.
On the case of the prosecution, it was irrelevant who commenced the process of inserting the vibrator into the vagina of JF. This is because under the definition of sexual intercourse in s 5 CLCA, sexual intercourse will include a continuation of an activity (that constitutes sexual intercourse). Further, the case of the prosecution was that if a finding could be made that, at the very least, the accused touched the vibrator whilst it had penetrated the vagina of JF, then that was an activity consisting of or involving sexual intercourse for s 5 CLCA. The evidence discloses more than this: the accused was holding a vibrator that had penetrated the vagina of JF.
The prosecution relied upon a number of authorities most of which are summarised in the decision of the Court of Criminal Appeal in R v Abraham.[13] In that case, the appellant was an inmate of the Women’s Prison at Northfield and at the relevant time so also was the alleged victim. The appellant was convicted after trial before a Judge alone of two counts of rape. It was alleged that the appellant had been asked to secure the entry of drugs into the Northfield prison in utero. Those drugs were to be supplied by the appellant’s boyfriend who had visited the victim at prison on 17 June.
[13] (1998) 70 SASR 575.
It was alleged that on 18 June the victim was assaulted and twice digitally penetrated by the appellant in the course of a search of drugs. The appellant appealed on the ground that the digital penetration did not constitute rape. The Court of Criminal Appeal dismissed the appeal. In the course of their judgment, the members of the Court gave consideration to the meaning of sexual intercourse. That discussion commenced at p581 of the report. At p582 of the report, Matheson J said as follows:
The definition in s5 (Criminal Law Consolidation Act) was considered in The Queen v Remynse[14] Wells AJ … said at 181:
"I return, then, to the definition. This, as I have said, is an inclusive one; it is not exhaustive and exclusive. At the core of the expression 'sexual intercourse' there remains, therefore, its natural meaning.”
[14] (1987)135 LSJS 180.
In R v Randall[15] at 450 Cox J said:
[15] (1991) 55 SASR 447.
In 1976 the paragraph referring to sexual intercourse was inserted in s5 of the Criminal Law Consolidation Act for the first time. It did not attempt to define the expression… Then, in 1985, that paragraph was replaced by the definition that I have set out earlier in these reasons…
It is plain that the 1985 amendment to s 5 was intended to expand the notion of sexual intercourse well beyond its ordinary connotation. One of the ways in which this was done was by declaring that any activity consisting of or involving penetration of the vagina of a person, by any part of the body of another, or by any object, should constitute sexual intercourse for the purpose of rape and other sexual offences under the act.
… counsel for the DPP referred to R v Mobilio.[16] The facts were not comparable, but in the judgment of a Full Court the following passage appears at 343
“the Common Law as to rape is relatively simple and practical. It is designed to deter only one form of conduct. It is designed to deter a man from having any sexual intercourse with a woman… without her consent. For this act to amount to rape the man must intend to have intercourse without her consent. He has this intention if he intends to have intercourse and is aware that the woman is not consenting or realises that she might not be. If, with that state of mind, a man has any intercourse with a woman who is not consenting, the crime is committed. It makes no difference whether his ultimate or ulterior purpose, motive or reason for intercourse is his own sexual gratification, his self-aggrandisent, the hurting or humiliation of the woman, her psychological or bodily pediment or some combination of those.”
In R v Dunn[17] the appellant was convicted on one count of sexual intercourse with a child under 10 years of age. The appellant had been bathing the three month old victim when the baby evacuated her bowel, thereby irritating the appellant. She forced one or more fingers into the baby’s anus. Carruthers J, with whom Gleeson CJ and Lee AJ agreed, said (at p9):
“shortly stated, Mr Lord’s argument is that although there was, on the evidence, penetration of the anus of the child by the finger of the appellant, that could not be sexual intercourse within the meaning of the statutory definition, because the statutory definition requires some element of sexual gratification.
I would reject this submission. Historically the anus and the vagina have been looked upon as being biologically connected with sexual intercourse. The legislature has, by the statutory definition, acknowledged this concept and made special provision for the violation of these parts of the human body. In the legislature’s opinion they attract, or involve, a greater degree of criminality than would otherwise be the case, and in my view, the element of sexual gratification plays no part in the statutory definition.”
[16] (1991) 1 VR 339.
[17] Court of Criminal Appeal (unreported) Full Court NSW number 60430 of 1991, 15 April 1992.
In Abraham, Debelle J said after setting out the content of s 5 of the CLCA definition of sexual intercourse, as follows:-
“Sexual intercourse, therefore, includes any activity which involves any of the three acts identified in para(a), para(b) and para(c). For present purposes it is sufficient to consider only para(a). Thus, if attention is directed to the essential words, sexual intercourse includes "any activity ... consisting of or involving penetration of the labia majora… by any part of the body of another or by any object". The definition is very widely expressed. The use of the word "includes" indicates that it is not an exclusive definition. The definition refers to "any activity" which involves penetration of one person by any part of another or by any object. So expressed, it is wide enough to include penetration for a non-sexual as well as for a sexual purpose. The Act is concerned to define sexual intercourse so that it includes activities which go beyond the ordinary understanding of sexual intercourse, namely, sexual intercourse between a male and a female, … : see R v Mobilo (1991) 1 VR 339 at 343. It is intended to catch a wide variety of conduct involving violation of one person by another, conduct which may or may not be engaged in for sexual gratification: cf R v Dunn (unreported, Court of Criminal Appeal of NSW, 15 April 1992).”
The prosecution submitted that I should adopt the broad interpretation favoured by the Full Court in R v Abraham in my assessment about whether or not the accused’s conduct constituted sexual intercourse. The prosecution submitted that the assault constituted sexual intercourse for the CLCA. The decision of the Court of Criminal Appeal in Abraham, insofar as it is relevant, binds me in my considerations in this matter. However, merely to state that I would favour the broad approach outlined by Matheson and Debelle JJ in Abraham does not necessarily resolve the questions that arise in this matter. That is because the issue in this case is the question of penetration.
I have earlier in these reasons described the content of the photographs of Exhibit P2. As I have described, the first four photographs of the exhibit disclose the positioning of the vibrator within the vagina of JF and the hand of the accused holding the handle of the vibrator. The fifth photograph discloses the vibrator being withdrawn from the vagina of JF or at least, that the vibrator is not inserted into the vagina of JF to the same degree as is disclosed in photographs 1, 2, 3 and 4. I am unable to make any further assessment of the photographic evidence in photographs 1, 2, 3 and 4 in Exhibit P2, than to say that the position of the vibrator within the vagina of JF appears to be static. The only different position demonstrated by a photograph is in the fifth photograph, where the vibrator appears to be in the process of being withdrawn from the vagina of JF, and the sixth photograph shows the vibrator as having been completely withdrawn from the vagina of JF. The question for my consideration is whether those photographs disclose “any activity” which involves penetration, or, the continuing of such activity. I consider that the answer to that question is plainly in the affirmative.
In R v Murphy,[18] the appellant was convicted after a trial by jury of the crime of rape of a girl of aged 13 years, and he appealed against the conviction and against the sentence. The appellant pleaded ‘not guilty’ to the charge of rape but ‘guilty’ to a second count of ‘unlawful sexual intercourse’. He therefore admitted that he had penetrated the vagina of the victim, who was his niece. He was therefore guilty of indecent assault, even on his own story, because of his plea to the second count of ‘unlawful sexual intercourse’. Each of the Justices of Appeal allowed the appeal. In his judgment, Cox J considered the question of penetration and sexual intercourse. At page 200, Cox J said as follows:-
“Now, rape is about a person ‘who has sexual intercourse’ (s48), and sexual intercourse in its natural connotation has a time dimension in it. It starts with penetration … it is true that the latest definition of sexual intercourse in s5 (CLCA) provides that sexual intercourse ‘includes any activity … consisting of or involving’ penetration, but I do not think that this excludes the ordinary meaning of sexual intercourse, or implies that an act of sexual intercourse within the meaning of the definition, that is, for the purpose of rape sufficiently constituted by penetration, necessarily end when penetration is achieved. So much would seem to be implied, or confirmed by the words ‘consisting of or involving’ – the sexual intercourse may be constituted by the penetration alone, or by (involving) the penetration and something more. If one reads s48 (and therefore, also s49), in the light of the definition section then, there is no reason to restrict the crime of rape (or, unlawful sexual intercourse) to the instance of penetration. The act will ordinarily be a continuing one, in law as it is in fact, beginning with penetration and ending with withdrawal, whatever the span of time may be.”
[18] (1988) 52 SASR 186.
The matters which fell from Cox J in Murphy gives assistance on the issue for my determination here. The act of sexual intercourse must begin with penetration and the statutory definition in s 5 CLCA means that sexual intercourse also includes the continuation of penetration. Therefore, if (taking the example of an object) the accused is not involved in the act of penetration using the object, but is involved with the continuation of the act of penetration, then that activity will satisfy the definition of sexual intercourse for s 5 and will, in turn mean that if such matters are proved to my satisfaction beyond reasonable doubt, a finding of guilt would follow. Therefore, it is necessary to give consideration to whether or not there has been an involvement of the accused with the continuation of the penetration.
This question of continuing sexual penetration was considered by the Full Court of the Supreme Court of Western Australia in Saibu v The Queen,[19] the applicant was charged with two counts of sexual penetration of the victim. The accused and the victim had previously been in a relationship. After their relationship ended, they had a night together, and the accused testified that he had consensual intercourse with the complainant and fell asleep whilst his penis remained in the complainant’s vagina. It was when he woke up that he had intercourse with the complainant for the second time. His defence was that the complainant had consented to both acts of intercourse. The evidence disclosed that the appellant accused had committed acts of violence upon the victim. One issue for consideration by the appeal Court was the question of continuing penetration under s 324F(e) of the Criminal Code.[20] Section 324F for the purposes of this code, “to sexually penetrate” means:
(a) To penetrate the vagina of any person … -
(i) Any part of the body of another person; or
…
(e) to continue sexual penetration …
[19] (1993) 10 WAR 279.
[20] Criminal Code of Western Australia.
Pidgeon J, in his judgment (at page 287) said that the element of penetration as contained within the offence means that the offence is complete upon penetration. Franklyn J, in his judgment (at page 289) said that there were “an act of intercourse but no withdrawal with a further act of intercourse some hours later” these were clearly two separate events. They would have been two separate acts and they are two separate acts of penetration. The Court agreed that to sexually penetrate includes to continue to penetrate, and it was necessary for the Crown to prove that the accused had sexually penetrated the complainant without her consent.
Therefore, the considerations arising under s 324F of the Criminal Code of Western Australia are similar to those considerations to those which arise under s 5 of the definition of sexual intercourse in the CLCA in South Australia. Similarly, the Crimes Act of New South Wales, in s 61H, defines sexual intercourse as follows:-
“(1) for the purposes of this division, sexual intercourse means:-
(a) Sexual connection occasioned by the penetration to any extent of the genatalia of a female person … by: -
(i)Any part of the body of another person; or
(ii)Any object manipulated by another person
Except where penetration is carried out for proper medical purposes; or
(b) (c) (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
The statutory scheme established in New South Wales is reflected in the decision of the New Zealand Court of Appeal in R v Kaitamaki,[21] where Richmond P and Richardson J said that sexual intercourse was a continuing act. Any continuing act may become criminal during its progress (as a result of a change in the state of mind of the complainant). This is consistent with the continuation of an act (such as penetration with an object) with which the accused may not have been involved at the time of penetration, but which is a continuation of the act of penetration. The Privy Council confirmed the view of the Court of Criminal Appeal.[22] This view is consistent with the view taken by the Court of Criminal Appeal in Murphy and the comments of Cox J, which I have earlier set out in these reasons.
[21] [1980] 1 NZ LR 59 at 61.
[22] Kaitamaki v The Queen [1985] AC 147.
Mr Perrotta for the accused submitted that the primary issues for consideration is the question of penetration, which, in the end is a question of law. He submitted that properly considered, the prosecution case on the ‘unlawful sexual intercourse’ charge is that the accused touched or held the object (the vibrator) at the time that it had penetrated the victim. He admitted that the accused was touching and holding the vibrator in each of the seven photographs of Exhibit P2. He submitted that merely holding the vibrator and not using it to penetrate the vagina of JF is not sufficient for ‘unlawful sexual intercourse’. It does not constitute an act of penetration. He also submitted that there is no possibility to make a finding, beyond reasonable doubt, that the photograph show any manipulation by the hand of the accused of the vibrator in the vagina of JF. I agree with that latter submission.
Mr Perrotta conceded that if JF had penetrated her own vagina with the vibrator to a particular point and the accused had pushed the vibrator further into her vagina, that would constitute an act of penetration. However, he said that there was no evidence which could satisfy the Court beyond reasonable doubt of those facts. He submitted that the Court is not in a position to say more than that there has been a mere holding of the vibrator, nor whether there has been any penetration or any movement when considering what are only two dimensional photographs. Whatever evidence exists, it is equivocal and not sufficient to discharge the onus beyond reasonable doubt. As such, the prosecution has failed to prove that the accused penetrated the victim, because it is a reasonable possibility that he did no more than touch or hold the vibrator whilst it was inside the victim, and there is no evidence that the accused penetrated the victim. He also submitted that even if any movement could be detected in the photographic evidence then that of itself would not be sufficient because of the high onus upon the prosecution in the case.
Mr Perrotta referred to the definition of sexual intercourse in s 5 of the CLCA. He acknowledged that sexual intercourse can include any activity consisting of, or involving, penetration. He submitted that there must be an act of penetration as that term is commonly understood and in this case, the meaning of penetration would not include the mere touching or holding of an object which is already penetrating the vagina of JF. Thus, if there was to be penetration, it must be an act by the accused as a continuation of an activity of penetration conducted by somebody else, there being no evidence or any proof that it was the accused who placed the vibrator within the vagina of JF. He also submitted that if JF had penetrated herself with the vibrator and then stopped penetration, merely because the accused then put his hands upon the vibrator and held it, does not constitute penetration because the act of penetration has already stopped. In order to continue the act of penetration must continue so that, for example, the vibrator is pushed more deeply into the vagina of JF or that there is some manipulation of the vibrator.
I am not able to accept this submission. In Murphy the Court of Criminal Appeal decided that the definition of sexual intercourse in s 5 CLCA should not be read down when regard is had to the forms of expression that Parliament has used in that definition. The continuation of an activity of penetration will therefore constitute sexual intercourse. Where the act of penetration is with an object such as a vibrator, then merely to hold the vibrator as a continuation of that activity of penetration using the vibrator will be sufficient to constitute sexual intercourse. It is an activity involving penetration of the vagina of JF. The word “penetration” in this definition is a noun and the active words of the definition are adverbial: “(any activity) consisting of or involving...” The word penetration in that sense of a noun will mean the fact of penetration in the instance of penetrating. The activity involving that (fact of) penetration by an object will include the continuation of that activity of penetration. The weakness in the argument of Mr Perrotta is that he contends for a meaning of “penetration” as a verb. On that basis he seeks to read down the meaning of the active words surrounding that word so as to give that word some operation as a verb. I am unable to accept that submission.
In that background of the meaning of the words within the definition section 5 as well as the fact that sexual intercourse involving an object includes the continuation of that activity, there is no presumption requiring an identity of persons who are involved in the penetration using an object which subsequently, as here, leads to the continuation of such an activity. Parliament has seen fit to express the matter broadly.
The second reason is that the submission of Mr Perrotta relies upon very fine distinctions that are not supported by the wording of the legislation. Mr Perrotta contends that merely to hold a vibrator is not and cannot constitute penetration. The submission is made in the background that the accused accepts that photographs 1 to 4 show that a vibrator has penetrated the vagina of JF.
The submission overlooks the definition in s 5 which includes any activity involving penetration and the continuation of such activity. The first to fourth photographs show the vibrator is held by the accused whilst there is penetration of the vagina of JF. The significance of this fifth photograph is that the hand of the accused is involved in the withdrawal of the vibrator from the vagina of JF.
Mr Perrotta also relied upon the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority[23] the relevant passages from which read as follows:-
Conflicting statutory provisions should be reconciled so far as is possible
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[23] (1998) 194 CLR 355 at paragraphs [69] – [71].
He urged upon the Court that it is necessary to take into account the context, general purpose and policy of the provision, and submitted that it is illogical where a statute requires penetration to find that merely holding an object which has penetrated the vagina of JF is sufficient to constitute sexual intercourse. Although I obviously accept the operation of the rule in Project Blue Sky, I am unable to obtain any assistance from that rule in this situation and for the reasons already expressed, I am unable to accept this submission. In my view that submission appears to overlook the decision of the Court of Criminal Appeal in Murphy which in turn is consistent with the decisions of other Courts of Criminal Appeal based on legislation of a similar nature and wording. Parliament has used an inclusive definition of sexual intercourse and then within that definition has used broad forms of expression. Thus common law notions render little assistance in modern circumstances. Parliament has prescribed a broad approach and the Courts will apply the law accordingly.
Mr Perrotta also relied upon s 22(1) and (2) of the Acts Interpretation Act which reads as follows:-
22—Construction that would promote purpose or object of an Act to be preferred
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
He submitted that considered as a whole, s 5, s 48, s 49 and s 73 of the CLCA are open to different interpretations and should be interpreted consistent with the need to promote the purpose or object of the Act, namely that penetration by the accused is required to be proved in order to constitute the act of sexual intercourse. He also relied upon the decision of the High Court in R v Adams[24] where the plurality said as follows:-
“when language is capable of more than one meaning … or is vague or is cloudy so that its general interpretation is uncertain and there is no short conclusion that can be reached by consideration of the provisions and subject matter of the legislation, then it ought not be construed as contending any penal category”.
[24] (1935) 53 CLR 563 at 567 – 568.
He submitted that the CLCA is an Act covering serious offences in the Criminal Law. It does not do so indiscriminately because different penalties apply to different offences and there should be no overlap in the approach to different offences. In respect of sexual offences, there is clear delineation between different types of conduct and the penalties associated with proof beyond reasonable doubt of such conduct having been committed by an accused. That is why, in circumstances where there is any doubt on the evidence about a charged offence and an alternative is available, the statutory alternative should be preferred. In this case, that statutory alternative is ‘indecent assault’. Again for the same reasons I am unable to accept these submissions of Mr Perrotta. To the contrary I consider that the words of the statute are plain in their meaning and the breadth of the definition and the proper approach to its interpretation have been confirmed on a number of occasions by the Court of Criminal Appeal of this State as I have set out above. In my reasoning here I have adopted that approach.
In this matter, my decision turns upon the peculiar factual matters that are before me. As I have already indicated, I do not accept the submissions made to me by Mr Perrotta for the accused on the question of penetration. The evidence before me is limited principally to the photographs in Exhibit P2, and the materials within the other exhibits. However, the evidence at the core of the issues before me is the content of the photographs in Exhibit P2. The first four photographs disclose a vibrator inserted into the vagina of JF. The accused left hand is holding the vibrator. Although there is no evidence of any movement of the vibrator, any manipulation of the vibrator or any further insertion of the vibrator into the vagina of JF, it remains my view that at the relevant time the accused’s hand is holding the object which is penetrating the vagina of JF. The fifth photograph shows the vibrator being removed from the vagina whilst still held by the accused and the sixth and seventh photographs, likewise show the vibrator on the outside of the vagina of JF. At all times the accused left hand remains upon the vibrator. Even though there is no evidence of the action by the accused to use the vibrator to penetrate the vagina of JF, there is plainly evidence to disclose a continuation of the activity of penetration of the vagina of JF by the accused, irrespective of who may have inserted the vibrator into her vagina. The activity which is continued involves penetration and therefore constitutes sexual intercourse.
I am therefore, satisfied beyond reasonable doubt that the accused has committed an act of unlawful sexual intercourse as defined by the Criminal Law Consolidation Act.
I find the accused guilty on the fifth count on the Information.
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