R v W, AJ
[2012] SADC 130
•17 October 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, AJ
Criminal Trial by Judge Alone
[2012] SADC 130
Reasons for the Verdict of His Honour Judge Soulio
17 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of rape and one count of aggravated production of child pornography.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 5AA, 5, 46, 47, 48, 62, 63; Juries Act 1927 (SA) s 7, referred to.
R v Dossi (1918) 13 Cr App R 158, considered.
R v W, AJ
[2012] SADC 130Background
The accused is charged with rape, and with producing child pornography. Photographs said to portray an adult finger penetrating the labia majora of an infant were found on the accused’s computer. The infant is the accused’s granddaughter. The accused conceded that the adult finger depicted in the photographs is his, and that he took the photographs, but asserts that the incident did not involve penetration, and that the touching of the infant’s vagina, and the production of the photographs, related to an inspection of a suspected vaginal infection. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The Information
The accused is charged with one count of rape pursuant to s 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and one count of aggravated production of child pornography pursuant to s 63 of the CLCA.
The particulars alleged are that:
First Count
The accused, between the 30th day of April 2009 and the 1st day of September 2009 at Athol Park, had sexual intercourse with S, without her consent, by inserting a finger into her vagina, knowing that she was not consenting or being recklessly indifferent to the fact that she was not consenting.
Second Count
The accused, between the 30th day of April 2009 and the 1st day of September 2009 at Athol Park, produced child pornography knowing of its pornographic nature.
It is further alleged that the accused committed the offence knowing that the victim was, at the time of the offence, under the age of 14 years.
An exact date is not alleged in relation to either offence. That is not an essential ingredient of either of the particularised acts or charged offences. The act or occasion alleged must be identified, and I must be satisfied that the specific acts charged are proven beyond reasonable doubt.[1]
The Allegations
[1] R v Dossi (1918) 13 Cr App R 158 at 159-60.
The evidence upon which the prosecution relies consists of three photographs showing an adult hand holding apart the labia of an infant. The prosecution says that in doing so the finger, or fingers, of the adult are shown to have penetrated the labia and, and as the infant is incapable of consenting, the act of rape is complete. The taking of the photographs is said to constitute the act of producing child pornography. It is common ground that the infant complainant is under the age of 14 years.
Directions
I bear in mind that the accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The prosecution must disprove it beyond reasonable doubt.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to either charge, I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the charge before I could convict the accused of any count on the Information.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of that charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence, and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
I bear in mind that both the accused and the prosecution are entitled to a separate consideration of each count, and that the verdict must be based on a consideration of the evidence relating to each count.
Elements of the Offences
Count 1 - Rape – s 48(1) CLCA
Rape, as defined by s 48(1) of the CLCA, is comprised of the following elements.
The first element which must be proven is that the accused engaged in sexual intercourse with the complainant. The definition of sexual intercourse relevantly includes penetration of the complainant’s vagina, or labia majora by any part of the body of the accused, or by any object.[2] Here, the act alleged to constitute the rape is that the accused penetrated the infant’s labia majora with his finger.
[2] Section 5(1) CLCA.
The second element requires that the intercourse occurred without the complainant’s consent. Section 46(2) CLCA defines consent as meaning a “free and voluntary agreement to engage in the sexual activity with that person at that time.” Section 46(3)(f) of the CLCA provides that a person is taken not to freely and voluntarily agree to sexual activity if the person is unable to understand the nature of the activity. S was, at the time of the alleged incident, aged between 10 and 15 months. She was not capable of understanding the act, and not capable of consenting.
The third element requires that the accused either knew that the complainant was not consenting or was recklessly indifferent as to the lack of consent.
A person is recklessly indifferent to the fact that another person does not consent to intercourse if he:
(a)is aware of the possibility that the other person might not be consenting to the act [or has withdrawn consent to the act] but decides to proceed regardless of that possibility; or
(b)is aware of the possibility that the other person might not be consenting to the act [or has withdrawn consent to the act] but fails to take reasonable steps to ascertain whether the other person does in fact consent [or has in fact withdrawn consent] to the act before deciding to proceed; or
(c)does not give any thought as to whether or not the other person is consenting to the act [or has withdrawn consent to the act] before deciding to proceed.[3]
[3] Section 47 CLCA.
Given the age of the child involved, the accused must be regarded as knowing that she was not consenting. The real issue in relation to the third element is the purpose for which the activity was undertaken. Section 46(3)(h) CLCA contemplates as much in referring to activities necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene, albeit such reference is made in a slightly different context.
Count 2 – Aggravated Production of Child Pornography – s 63 CLCA
Section 63 provides that:
A person who—
(a)produces, or takes any step in the production of, child pornography knowing of its pornographic nature; or
(b)disseminates, or takes any step in the dissemination of, child pornography knowing of its pornographic nature, is guilty of an offence.
Section 5AA(1)(e)(i) provides that the offence is aggravated where the victim of the offence is under the age of 14 years.
Child pornography is defined in s 62 CLCA as material:
(a) that—
(i) describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii) consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and
(b) that is intended or apparently intended —
(i) to excite or gratify sexual interest; or
(ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty;
The photographs contain the images of a child, or bodily parts of such a child, under the age of 14 years, thereby potentially constituting an element of the aggravated form of the offence. The real issue, having regard to the concessions made by the accused, and the nature of the photographs, is whether the material falls within s 62(b)(ii) CLCA.
Witnesses
The prosecution case comprised the evidence of the infant’s mother, D, a police officer, Ms Phillips, Dr Yin, an information technology expert, and Dr Edwards, a paediatrician. Additional statements were read into evidence, and facts to which I will refer where necessary, were agreed. The accused gave evidence in his own defence and was the only defence witness.
Prosecution Evidence
The Complainant’s Mother - D
D is the accused’s daughter. D gave evidence that her daughter, S, the alleged victim, was born on 11 June 2008. D had another child, a son, born in 2005. After the break up of her marriage she returned to live in Adelaide, and lived at various addresses before taking her two young children to live with the accused.
She described the health of S as fairly good, although S suffered common colds and coughs and the occasional nappy rash. D took S to a local general practitioner for immunisations, check ups and the like. When S had a nappy rash D would treat that by applying a nappy rash cream, or baby powder. D said that she had never noticed a severe nappy rash nor any discharge from the infant’s vagina.
D said that on many occasions the accused changed S’s nappy and that both children were left in the care of the accused when D went out. She agreed that she was aware that in changing S’s nappy and attending to hygiene needs the accused would have to wipe S’s vagina.
Ms Phillips
Ms Phillips, the investigating police officer, gave uncontroversial evidence as to the search of the accused’s premises, and as to the obtaining of the photographs.
Dr Lin
Dr Lin has a PhD in computer science. He gave evidence as to the forensic analysis of the accused’s computer hard drive, and the extraction of the photographs. He said that the relevant images were found in a folder named “Windows Photo Gallery – original images” The images had not been deleted. Data on the computer showed when the images had last been accessed, but Dr Lin was unable to say whether such access was by a user of the computer, or by anti-virus software.
Dr Lin said that the data setting out the date when the file was created related to when it was downloaded onto the computer hard drive, and then only according to the internal clock of the computer. The date the photographs were taken, at least according to the internal clock of the camera, was also available by forensically accessing the date the image was “last written”. However, Dr Lin conceded that, based on the information he was able to extract, he was not able to say on what date or at what time any of the images were taken.
As I have said, the existence of the images, the identity of the subject, and the identity of the author of the images, are not issues in dispute.
Dr Edwards
Dr Edwards is a paediatric physician. She described the photographs as showing some infusion of the labia minora, which she described as the sticking together of the labia, a common condition in children, caused through inflammation due to nappy rash. She agreed that there was some yellow substance shown in the region of the labia, but could not ascertain the nature of that substance. She agreed that Amoxil, a penicillin-based drug which had been prescribed for S, could cause an inflamed form of nappy rash which could be treated by the application of a cream.
Dr Edwards expressed the opinion, and I bear in mind the way in which expert evidence may be used, that the photographs depicted penetration of the labia majora by the adult’s finger.
Defence Evidence
The accused said that when D and her children first arrived to live with him S was suffering a very bad nappy rash. He said that he looked after the children, including feeding them and changing them, particularly when D was absent, as she often was.
He said that on one occasion he was changing S’s nappy and noticed a yellow discharge in the area of her vagina. He checked a medical reference book he often used, and came to the view that S was suffering a urinary tract infection.
He said that he had difficulty with his eyesight and so photographed the genital area and uploaded the photograph to his computer so that he could expand the image. He then applied a nappy rash cream and determined to change S’s diet.
He said he may have taken photographs on two separate occasions, once to inspect the infection, and once to see if it had cleared. He said that once he had seen the photographs he had deleted them. He was asked about the contents of each of the tendered photographs and sought to explain the reason for each. He said that the photographs, other than one family photograph, were automatically stored to the folder in which they were found, rather than being hidden there.
He said that he did not discuss the issue with D, as she was trying to “sort her life out”, and was not really looking after the children at that stage. He said that he essentially had the care of the two children during that period.
He denied deriving any sexual excitement, denied looking at them again, denied using them as pornography, and denied being sexually attracted to S.
Findings
The issues in this trial can be stated in a relatively straightforward manner.
The prosecution case depended upon the existence of photographs of the genital region of the accused’s granddaughter, the alleged victim. It is common ground that the photographs are of the alleged victim. It is common ground that the hand shown in the three photographs nominated by the prosecution as constituting the pornography, is that of the accused. It is common ground that the photographs were taken by the accused.
The first issue is whether there had been penetration of the labia majora of S. The index finger and thumb of the accused are shown to be holding the labia majora apart. The opinion of Dr Edwards was that the fingers were shown to be on the inner surface of the labia majora, and on that basis penetration would be made out. I accept her interpretation of the photographs and make the same interpretation.
The issue of consent does not arise. The infant child is incapable of consenting, and incapable of understanding the nature of the activity engaged in by the accused.
If the touching of the labia was motivated by some prurient interest on the part of the accused, the accused could not have thought that the alleged victim was consenting to the activity.
It is common ground that if the prosecution fails to establish, beyond reasonable doubt, that the accused’s motive in separating the infant’s labia majora was not for the purpose of assisting him in assessing a potential vaginal infection area, but rather for a prurient purpose, then the prosecution on Count 1 must fail. The same reasoning applies to Count 2, given the statutory definition of child pornography.
Whilst there were some aspects of illogicality in the accused’s account, the accused denied on oath that his motivation in both touching the infant’s vagina, and taking the photographs, was to satisfy any prurient interests, or for any sexual purpose. He was not significantly shaken in cross examination.
I bear in mind that where there is uncertainty as to where the truth lies, I must necessarily find that there is a doubt as to the guilt of the accused.
Verdict
Whilst the evidence raises a suspicion, and perhaps even a strong suspicion, that the accused is guilty; having regard to the presumption of innocence and the standard of proof required before I could convict, I cannot be satisfied beyond reasonable doubt that the acts were committed for a prurient or sexual purpose. I find the accused not guilty on each count.
Count 1 – Not guilty.
Count 2 – Not guilty.
0