R v Vishnu Vijay - [2013] ACTSC 21

There be a verdict of not guilty in respect of each count of the indictment.

This was a trial by judge alone, the election having been duly made, which commenced 11 September 2012.

The accused, Vishnu Vijay, entered pleas of not guilty to five counts arising out of an alleged incident on 22 October 2010. They are that he

... committed an act of indecency upon [complainant] without her consent, and was reckless as to whether she was consenting.
... engaged in sexual intercourse with [complainant] without her consent and was reckless as to whether she was consenting.
... IN THE ALTERNATIVE ... committed an act of indecency upon [complainant] without her consent and was reckless as to whether she was consenting.
... committed an act of indecency upon [complainant] without her consent and was reckless as to whether she was consenting.
... committed an act of indecency upon [complainant] without her consent and was reckless as to whether she was consenting.

As the trial is by judge alone I must perform the function of the jury as well as that of trial judge.

Both common law and the Human Rights Act 2004 (ACT) guarantee the right of an accused person to be tried “by a competent, independent and impartial court or tribunal after a fair and public hearing” (see s 21(1)).

That includes the proposition that the onus of proof of each element of each charge rests upon the prosecution. The accused has no obligation to prove anything. If any element of any offence is to be regarded as proved, the standard of proof is that it be so established beyond a reasonable doubt. The accused is entitled, in that process, to a presumption of innocence. That means not only that the prosecution must establish guilt but that any question relevant to proof of guilt arising on the evidence must be resolved in the accused’s favour unless an adverse inference is established beyond a reasonable doubt.

The accused is not obliged to adduce any evidence and if the accused does so, it raises no burden of persuasion on the accused. That remains with the prosecution, irrespective of whether the accused chooses to make a positive answer to the accusation raised against him.

Section 68C if the Supreme Court Act 1933 (ACT) governs the conduct of a judge alone trial:

68C Verdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.

It is appropriate, therefore, to note the separate elements of each and every count on the indictment which the Crown is obliged to prove beyond a reasonable doubt. That means a rational, not fanciful, doubt. If the Crown fails to prove any element to that standard then, as to that count, the verdict must be “not guilty”. It matters not that there is no affirmative belief to support the innocence of the accused. A reasonable doubt as to his guilt is sufficient.

The elements of the alleged offences are similar. Save as to count two, they are identical and relate to an alleged act of indecency. Count two, to which count three is an alternative, alleges an act of sexual intercourse.

“Sexual intercourse” for the purposes of Pt 3 of the Crimes Act 1900 (ACT) (the Crimes Act) [“sexual offences”] is defined by s 50 to mean:

50 Meaning of sexual intercourse in pt 3
(1) In this part:
sexual intercourse means—
(a)the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(b)the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(c)the introduction of any part of the penis of a person into the mouth of another person; or
(d)cunnilingus; or
(e)the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d).

(2)In this section:
object includes an animal.

“Act of indecency” is not legislatively defined but is taken by the law to mean any act which, in the circumstances, would be regarded as “indecent” by right thinking members of the community.

In each case, the act is one which must have been performed upon the person of the complainant. An act of indecency in the presence of a person is another offence but no such offence is here alleged.

It must also, in each case, be an act performed without the consent of the person in respect of whom it takes place.

Section 67 deals with “consent”. Consent itself is not defined. The section refers to circumstances in which an apparent consent is negated. Consent may not be equated with a lack of resistance. Section 67 elaborates upon that concept. It provides:

67 Consent
(1)For sections 54, 55 (3) (b), 60 and 61 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—
(a)by the infliction of violence or force on the person, or on a third person who is present or nearby; or
(b)by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or
(c)by a threat to inflict violence or force on, or to use extortion against, the person or another person; or
(d)by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
(e)by the effect of intoxicating liquor, a drug or an anaesthetic; or
(f)by a mistaken belief as to the identity of that other person; or
(g)by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
(h)by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
(i)by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
(j)by the unlawful detention of the person.

(2)A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3)If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.

In the present case, though the complainant is intellectually challenged, it is not suggested that she lacked the capacity to consent if she so wished, rather it is contended that the accused engaged in acts of a sexually indecent nature on the pretext that they were remedial massage intended to relieve unpleasant symptoms which the complainant then suffered from.

The next element is that the accused whilst engaging in the offending conduct was at least reckless as to whether there was consent to the acts complained of. That includes recklessness as to whether any apparent consent was in fact negated by a circumstance referred to in s 67.

A person may be reckless as to a consequence or the existence of a state of affairs. That will suffice to satisfy the intent element of an offence. The definition of recklessness in the Criminal Code 2002 (ACT), s 20, is not directly applied to offences remaining in the Crimes Act but it seems to me consistent with the High Court’s formulation in R v Crabbe (1985) 156 CLR 464, that is, that if a person does an act knowing that it is probable that the relevant circumstance, that is, lack of consent, will be present then that person is reckless even though indifferent to whether or not consent is present. That encompasses the circumstance of the presence or absence of consent. A failure to even advert to whether consent is required will, as Kirby P noted in R v Kitchener (1993) 29 NSWLR 696, 697 be regarded as recklessness.

Ms McMurray, for the Crown, in opening, alleged that the complainant and the accused first met in October 2010. The complainant was aware that her friend, Maria Strano, had recently married. She observed the accused with Ms Strano and concluded, correctly, that he was Ms Strano’s husband. They exchanged phone numbers and addresses.

About 20 October 2010 the complainant and her mother were at the complainant’s home unit. The accused arrived unannounced. There was a conversation in which the accused said that he had trained as a physiotherapist in India, albeit he was not qualified in Australia as such. It was agreed that the accused would, when next visiting, bring a gift for the complainant in view of the new friendship and the imminent departure of the accused and Ms Strano to live in Queensland.

On 22 October 2010, around 7.30 pm, the accused contacted the complainant by mobile phone. There was some apparent difficulty with the connection and the accused texted the complainant “Hi [name of complainant], I will b der in 5 min. My pone is fault [sic]”.

He arrived at her unit and sat opposite her in the lounge room. He then offered to use his skills as a masseur and physiotherapist to alleviate bloating in her stomach. He proceeded to rub her leg and pressed her stomach. She asked him to stop but he lifted her dress and attempted to remove her underpants. This constituted, according to the Crown, the offence alleged in the first count.

He then, though the underpants remained in place, allegedly separated her buttocks and placed his finger inside her anus. That is the count of sexual intercourse (count two) without consent or, if penetration be not established beyond reasonable doubt, an indecent act (count three).

By then the complainant was on the floor on her back. The accused is alleged then to have removed her underpants and rubbed her groin area with his hand. He rubbed and kissed her breasts, over and underneath her dress, kissing her groin near her pubic hair (count four).

The complainant then replaced her underpants and sat up. The accused then placed a pillow on her stomach, pushed her on her back from behind and rubbed her arms and breasts (count five).

After the accused left, the complainant spoke of the incident to Mr Adam Allanson. She phoned police.

The first part of the evidence, pursuant to s 40F of the Evidence (Miscellaneous Provisions) Act (1991) (ACT), was the content, audio visually recorded, of an interview between police officers and the complainant. That clearly is evidence which, if admitted, is unsworn and not then subject to cross-examination. In some cases, of course, the witness may be called to give supplementary evidence and be then cross-examined concerning the matter generally. The process is not an entirely satisfactory one, from any view point, but it is mandated by legislation.

In the police interview, the complainant gave an account of that meeting and of the first visit by the accused on 20 October 2010. One matter that emerged was that the accused was, on that occasion, accompanied by his wife’s mentally disabled nephew, T. She recounted that the accused gave the impression that he wished to be friends. He asked, she said, “Can I come around Friday night?” She replied, “Providing you come around with Maria or we could just meet down at Woden because I don’t know you that well for you to be coming around by yourself”. They agreed on 8 pm.

On the Friday (22 October 2010) she received a phone call from the accused but it was inaudible, like a fax connection. Two further attempts yielded the same result. She texted him, she said, saying to “come on around”. He, a little later, knocked on the door. However, she said, he was alone. She was unsure as to whether he was to take her to Woden Plaza so she sat down. He commented on her “bloatiness” and opined that it was a result of excess fat and hormonal deficiency. He then pushed her stomach. She said to stop because it hurt. He said, “You’ve got to feel pain. I’m here to help you, I’m a physiotherapist ... I know how to get rid of your bloatiness”. He then massaged her legs and feet and lifted her dress up. He pushed her stomach and massaged down towards her underpants. The latter were then pushed down to some extent. She said, “Look, can you please stop that”. He did so and she pulled the underpants back up. He asked her to stand “because I need to put your hands (sic) under your stomach and pull it right up”. He massaged her stomach pushing it in. He asked her to turn backwards and rubbed first her legs at the back then her “bum cheeks” spreading them open “where I could feel his finger going in the hole, sort of just, well, I flinched before he got in further”. She asked him to stop but the accused went to her front, got her underpants down to her ankles and started to fondle her in the groin at the front “where my pubic...”. She asked again for him to stop. He responded, she said:

I’m not harming you [complainant], I’m here to help you as a friend. I’m here as your physiotherapist and a masseur.

She froze and lost concentration and found she was lying on the lounge room floor with no pants on. He was (again) rubbing up and down her legs up to the groin, in the area of her pubic hair. He lay on her with his weight pressing down on her. She asked him to get off because it was hurting. He did so but with her still between his legs. There was further massaging but she re-dressed herself. He placed a pillow around her stomach. She complained that it was hurting. He then moved her arms up and down. She got up and sat on the lounge. He then attempted to cuddle her. She said she didn’t want to. He said, “we’re friends aren’t we?” Then he seems to have got the hints that she was dropping and stopped. He said, “Alright but we’re still friends aren’t we?” She was concerned that she might be raped as that had happened to her before, so she did not respond.

He had, she said, offered to buy her a gift, as a cultural expression of friendship. Gold jewellery was mentioned.

It is significant that she did not mention to police any other person being present in the unit when these events occurred.

She did confirm that the finger in her “bum hole” was “... just an inch because I flinched”. I note that on her account of it, there is a reasonable doubt as to whether the accused’s finger entered her anus though the act, if it occurred as described, would clearly be indecent. The acts of fondling her breasts and groin area, similarly, would be indecent.

On 23 September 2011, that interview was tendered and played. The complainant then gave oral evidence via CCTV. That evidence was also recorded and tendered at trial on 11 September 2012.

The accused told her, she agreed, that he was the carer both for T and Maria. On 20 October she further agreed, after she expressed sadness that Maria and T and he were moving to Queensland, he offered to buy a gift for her as a momento. She indicated, she further agreed, that a ring, such as the gold ring she was wearing would be appropriate.

She denied that, when he visited on 22 October, the accused had T with him.

On the matter of the insertion of a finger into her anus she said to Mr Livingston it was “just the tip of the finger”.

That answer reinforces my view that her evidence could not be taken as asserting with any certainty that any part of the accused’s finger entered her anus. Further, she agreed that this contact was over her underpants not on her bare skin.

The complainant otherwise was, to my mind, consistent with her recorded statement to police.

The complainant’s mother gave evidence of the 20 October meeting at the complainant’s flat. She recalled the accused mentioning that he had been a physiotherapist in India, though not qualified in Australia. She recalled that T was Maria’s disabled nephew and that she had care of him. A gift for a new friend was also mentioned. On 22 October she heard from the complainant who sounded distressed. She complained that the accused had assaulted her. She further stated that she had let him in without Maria because “he said that he would have a gift for me”.

A friend from the complainant’s church also gave evidence of a complaint from her of being sexually assaulted. That was shortly after the accused had left the complainant’s flat on 22 October. The terms of her complaint were consistent with her evidence. She did report the complainant as saying “she was worried he was going to finger her or to rape her. She stated that the man had lifted her dress and removed her underwear.

The medical report of Dr Sansum, unsurprisingly, given the nature of the allegations, found nothing supportive or otherwise of the allegations. Similarly, the forensic biology report yielded nothing of interest. Mr Livingston did elicit that despite an allegation of oral contact with the complainant’s bare skin, there was no DNA trace from the accused. That, of course, does not contradict the complainant, it merely fails to support her allegations.

The informant, Constable Maguire, gave evidence of an interview with the accused. He declined to be interviewed. That was, of course, his right and no adverse inference can be drawn from his decision to exercise that right. Notwithstanding that, he did, however, deny the allegations of sexual assault. He asserted that the complainant had sought to persuade him to be her carer. That concluded the Crown case.

The accused gave evidence in his defence. He was under no obligation so to do. Nor, by doing so, did he assume any onus of proof or persuasion.

He gave an account of his first meeting with the complainant. He said that she had wanted to “tell you [that is, him] something about Maria”. He, therefore, attended, at the complainant’s flat, he said, on 20 October 2010 and found the complainant’s mother to be there. He said the complainant, when informed he and Maria were going to Queensland to live, asked for something to remember them by. The accused agreed to buy some gift for her. That was, he had explained, in accordance with his custom. He was, he said, surprised when she asked for a gold ring or bangle. He had forgotten, he said, to ask about what the complainant wanted to tell him about Maria. She did give him her home phone number which he entered in his phone.

On the Friday he rang the complainant to remind her of her statement about his wife. However, the phone malfunctioned, for whatever reason, giving a fax signal. There was no conversation, only a text message he sent to say he’d be there in five minutes. He had T with him and, as it was after dark, he explained that he could not leave him in the car on this occasion as he had done on 20 October 2010. In addition to his denials of sexual assault when speaking to police he had made reference to T being with him at the time. In his evidence, he confirmed that he had T with him when he entered the complainant’s flat. He pointed out where he placed T. The complainant raised the matter of a gift, he said, mentioning a gold ring. He responded that he had no money with him. He did tell her he had done a physiotherapy course in India over a period of six months. She complained about her carers.

The latter was something the complainant’s mother confirmed, so far as it was consistent with the complainant’s attitude to her carers. He said she raised a problem she had about “bloating in my [that is, her] tummy” and, at her invitation, he leaned forward and felt her stomach but over her dress, not underneath it. He pressed her stomach three times and she “burped”. He expressed the view that it was a gas problem. She mentioned her legs were “killing” her. He massaged her legs from the knees to the feet. She suddenly stood up and lifted her dress showing her stomach and asked if he would touch and feel it. He touched again as before and suggested she see her doctor. She then asked him to massage her head. He did so. He denied she ever protested or complained.

Whilst this was occurring, T was talking to and punched a toy teddy bear. The complainant seemed to be annoyed by this and took the teddy bear off him. She spoke loudly and angrily. This upset T and the accused said, “Come on [T], let’s go”. The complainant appeared to have changed her demeanour. He rejected her suggestion to put T in the car and return. During this conversation the complainant became upset and slapped T’s face telling him to “shut up, please”. The accused then told her he had to go. The complainant asked him not to tell Maria that she had struck T. He agreed.

In cross-examination, he agreed that he had not mentioned the slap to police or Maria. That was the accused’s case.

In address, Ms McMurray submitted that the evidence of the complainant was credible and that the evidence of the accused should be rejected. He had given no evidence of any request to come to the flat only with Maria but, she pointed out, the complainant’s mother did recall such a request. His assertion that the complainant said she had something to say about Maria had not been put to the complainant. Further his story of being with T, and the complainant slapping him was inherently unlikely. She asked, rhetorically, why would he not mention it to Maria? The complainant did seem to all who spoke with her later on 22 October to be genuinely distressed and frightened.

For the accused, Mr Livingston pointed to his express denials both to police in interview on 28 October 2010 and in his evidence. He pointed to the lack of any forensic evidence supporting contact of the kind alleged, particularly oral contact. The accused’s denials and willingness to submit to forensic testing was, he submitted, consistent with innocence.

This is, I have to acknowledge, not an easy case to decide. It is true that the complainant’s evidence and her conduct on 22 October 2010, following the alleged incident, is consistent with something in the nature of a sexual assault having happened. Clearly something happened to upset her. Perhaps the presence of T ending in a slap could explain her upset though she denied T was even there. His presence was not asserted by the accused before trial save that he did mention his presence in the car as a reason for wanting to go. Nevertheless, he was not obliged to say anything to police or to assert any matter he would rely on in evidence. His case was, in essence, put to the complainant but she was not shaken in her evidence at all.

On the case as it stood at the conclusion of the Crown case, only the denials the accused offered to police would give rise to any reason to doubt the complainant’s allegations, subject to the reservation I have expressed about count two and that reservation did not adversely reflect on the complainant’s veracity or accuracy.

The denials offered by the accused to police were supported by his sworn evidence. He did not need to give evidence. Indeed, he could have relied on his statement, such as it was, to police. True, given his general refusal to answer police questions, it was not tested in any way. His testimony, of course, was. Despite searching cross-examination quite properly engaged in by Ms McMurray, I could not find any significant indication of untruthfulness. It is true that his explanation of why he attended at the flat on 22 October 2010 is not positively persuasive. If it was a case of adjudging the more probable account of what occurred the result might well be different. However, the standard of proof requires no reasonable doubt that the events occurred as the complainant asserted. The inconsistency between the presence of T as asserted in evidence and as disclosed to police is troubling but Ms McMurray did not ask the accused about it. I cannot assume that the apparent inconsistency could not be satisfactorily explained.

Having seen and heard each of the complainant and the accused I do have a reasonable doubt. The accused’s evidence might be true, whether or not it is less probably so than the complainant’s evidence.

Accordingly there must be a verdict of not guilty in respect of each count in the indictment.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 22 February 2013

Counsel for the Crown:  Ms S McMurray
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Defendant:  Mr R Livingston
Solicitor for the Defendant:  Craig Lynch & Associates
Date of hearing:  11, 12 and 17 September 2012
Date of judgment:  22 February 2013

Citations

R v Vishnu Vijay [2013] ACTSC 21

Most Recent Citation

Cases Citing This Decision

1

The Director of Public Prosecutions for the Australian Capital Territory v AW [2013] ACTCA 35

Cases Cited

2

Statutory Material Cited

0

R v Crabbe [1985] HCA 22

La Fontaine v The Queen [1976] HCA 52

R v Crabbe [1985] HCA 22

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