R v W, B D
[2011] SADC 1
•18 January 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, B D
Criminal Trial by Judge Alone
[2011] SADC 1
Reasons for the Verdicts of His Honour Judge Cuthbertson
18 January 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Accused charged with Gross Indecency and Unlawful Sexual Intercourse on student at school where he was working.
HELD: Elements of offences found to have been established beyond reasonable doubt. Accused guilty of both offences.
Criminal Law Consolidation Act (1935) SA s58(1)(a) 7 & s49(3); Evidence Act 1928 SA s34(M), referred to.
R v W, B D
[2011] SADC 1
W, B D stands charged with one Count of Gross Indecency and one Count of Unlawful Sexual Intercourse. Both offences are alleged to have occurred at the accused’s house at Stirling on 30th November 2009.
In relation to Count 1 it is alleged that the accused permitted the complainant to masturbate him by her placing her hand on his penis. The accused has said to police that the complainant grabbed the accused’s penis before he had a chance to stop her. If this is a reasonable possibility the accused should be acquitted of the charge. Likewise the accused should be acquitted of the charge if I simply cannot be satisfied beyond reasonable doubt that the elements have been proved.
In relation to Count 2 it is alleged that the complainant was permitted to suck the penis of the accused immediately afterwards. The accused has said to police that the event did not occur. If this is a reasonable possibility the accused should be acquitted. Likewise, unless I can be satisfied beyond reasonable doubt that all the elements of the offence have been proved I should acquit the accused of the charge.
Elements of Offence
The elements of the charge of Gross Indecency are as follows:
(1) The accused committed an act of Gross Indecency with the complainant.
An act of Gross Indecency means an act which right thinking members of the community would regards as indecent.
The indecency must be gross (See R v Whitehouse (1955) QWN 76)
Clearly the alleged act of the complainant placing her hand on the accused’s penis is an act of gross indecency.
(2) The act was a voluntary act.
(3) The act was an intentional act.
(4) The person with whom the act occurred namely R was under the age of 17 years at the time of the act.
The elements of the charge of Unlawful Sexual Intercourse are as follows:
(1) The accused committed a voluntary act.
(2) The accused committed an intentional act.
(3) The act was one of sexual intercourse.
An act of fellatio is an act of sexual intercourse.
(4) At the time the complainant was under the age of 17 years.
Onus of Proof
There is a presumption of innocence and the accused is regarded as innocent unless and until guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies upon the prosecution, the accused does not have to prove anything.
Nothing short of proof beyond reasonable doubt is sufficient.
Each of the elements of the Count must be proved beyond reasonable doubt before I can return a verdict of guilty of that particular count.
Separate Counts
The accused is charged with two separate counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean there must be a verdict of guilty or not guilty in relation to the other counts.
Uncharged Acts
Other acts which may or may not constitute criminal offences alleged to have occurred between the accused and the complainant, in particular kissing, are evidence as to the relationship between the parties that existed prior to the acts which are the subject of the charges and may be used to cast light on the nature of that relationship thus helping to resolve in that manner the question of whether the particular charges have been proved.
It is not proper to use evidence of prior uncharged incidents in any other way and in particular so as to reason that because the accused has committed other offences he is likely to be the sort of person to commit offences.
Recent Complaint Evidence
Complaints that are inconsistent with the complainant’s case or that demonstrate inaccuracies may be used to cast doubt on the case put forward by the complainant.
Further, I direct myself that the evidence is admitted to inform me as to how the allegation first came to light and as evidence of the consistency or otherwise of conduct of the alleged victim and is not admitted as evidence of the truth of what was alleged and I direct myself that there may be varied reasons why the alleged victim of a sexual assault offence has made a complaint of the offence at a particular time or to a particular person but that otherwise it is a matter for me to determine the significance, if any, of the evidence in the circumstances of this particular case.
Failure to Give Evidence
The accused did not give evidence in this matter. It was his right not to give evidence and I do not hold it against him or draw any adverse inference from his failure to give evidence.
The case must still be proved beyond reasonable doubt.
Interrogation of Accused
The accused was questioned by police about his involvement in the alleged offences. I will use the evidence of what the accused told police as evidence in the case whether it be for him or against him.
Lies told by the Accused
In his interrogation the accused told a number of lies. In particular he lied initially by asserting that nothing whatsoever happened between him and the complainant of a sexual nature and he lied in relation to the presence of a third party at his house on the morning when the offences are alleged to have occurred.
As there are a number of possible reasons for these lies other than a consciousness of guilt of the offences I will not use any evidence of any lies, if I find them to be lies, as any evidence of guilt of the accused.
I will use the evidence of his lies, if I find them to be lies, however, as evidence touching on the credibility of the accused’s assertions to police.
Discussion
The complainant met the accused when he was working in IT at Adelaide High School and they became friends. She found him to be “pretty cool”. (T 11)
The accused had a small office in one of the corridors at the school. He did not teach lessons, he merely provided computer equipment for other classes.
The accused would also smoke with some of the students who smoked in a particular location at the school even though smoking was prohibited.
Once or twice the complainant had climbed through the small window into the IT office in order to see the defendant. She couldn’t use the door because that went through the staff room. The complainant was quite adamant that she was sexually attracted to the defendant and wanted to have a sexual relationship with him and made no attempt to hide that fact.
She said that they communicated about sexual matters by text and on Facebook.
The complainant requested to go to the accused’s premises at Stirling and on the day of the offence, 30th November 2009, a Monday, he picked her up after she got off the bus in town and they travelled to the house at Stirling. The complainant had got a friend to sign her in as present at school and the accused had rung in sick.
When inside the house they sat on a couch and talked. Then the complainant says that she kissed the accused and he kissed back. It was a tongue kiss initiated by the complainant.
She then told the accused that she was hungry and he made her some Weet-Bix.
While he was in the kitchen making the Weet-Bix the complainant located some valium in a drawer. She took some. She said, “[it] makes me chill”.
(T 31)
After the defendant had cleaned up breakfast they both started kissing on the couch; where they sat at the invitation of the complainant. The accused responded and they kissed for some time using their tongues. The complainant had initiated the kissing.
During this time the complainant placed her hand down the front of the accused’s pants and rubbed his penis with her hand under his underpants. That alleged act is the subject of Count 1.
That all lasted for about 10 minutes and then she requested him to stand up and face her whereupon she claims she put his penis in her mouth. That alleged act is Count 2. She claims that while she did that he touched her left breast over her clothes. He ejaculated into his hand and then went to the bathroom.
Three photographs were taken that day of the accused in his bathroom.
Exhibit P2 photo 4 shows the complainant in a compromising position with the accused who has his shirt off. The photograph was taken by the mobile phone of the complainant while being held in her hand. The complainant claims that the accused was aware that the photograph was being taken and it was not one taken by her suddenly by getting into a position alongside of him before he could react. The photograph shows the accused looking at the camera and not in a surprised or shocked position as if someone was just taking a photograph and after a traumatic event.
The accused told police he had been grabbed suddenly on the penis forcing him to ejaculate and he had gone into the bathroom to clean up. He claimed he had gone into the bathroom when suddenly she got alongside of him and took a photograph.
I reject that explanation. I find the photograph to be taken at a time when he expected it. If he had suddenly been brought to ejaculation without his cooperation he would have been extremely wary of the complainant and unlikely to have been able to be tricked by the photograph being taken in that compromising position.
The other two photographs show a picture of his back and his front. This top is removed and his pants are lowered from what would be their normal position.
In my view the fact that he was in a compromising position to allow the photographs to be taken is not consistent with him having been compromised by the complainant suddenly grabbing his penis causing him to ejaculate.
This evidence, independent of the complainant, supports the complaint’s allegations.
After the complainant had returned to his school the authorities investigated and various statements were made by her to various individuals, including the police.
In particular she made denials to the police that anything untoward had occurred. I do not regard this as reflecting on her credibility. On the contrary, in my view, she was not trying to falsely implicate the accused but rather to protect him.
On the other hand, to her friends she spoke of incidents occurring which would amount to sexual intercourse as she understands it to be. Her specific allegations however describe acts occurring which fall short of her description of sexual intercourse.
Again, I do not regard this as being indicative of untruthfulness in her allegations but, on the contrary, I regard it as being exaggeration to her friends.
The prosecution called a Mr Allan Leask. He is a close friend of the accused and deposed to the fact that the accused had spoken to him about the complainant before the day that the incidents were alleged to have occurred and he strongly advised the accused to report her alleged conduct to the school. The accused did not do this.
He claims that on the Saturday morning when the offence was alleged to have occurred he went to the premises of the accused to pick up the accused’s computer which was having problems. He was going to try to fix it.
No-one was home. The accused was in Adelaide picking up the complainant to take her back to his place.
He spoke to the accused later that evening and the accused indicated that he was in some trouble with the school because of some alleged involvement with the complainant. The accused told him that nothing untoward had happened involving the complainant.
This could not have been correct if what the accused asserts in his record of interview is true. Having initially asserted that nothing untoward had happened, he told police the complainant had grabbed him on the penis. Accordingly a very significant act had taken place between him and the complainant, according to the accused.
Leask says that he volunteered to assist the accused by telling the school authorities that he was present when the complainant came to the accused premises and that nothing at all had happened. The accused did not protest at this. It was consistent with what he initially told the police at interview.
Leask also says that because the accused’s computer had “crashed” he wiped the hard drive and tried to reformat it. In fact when police did take possession of the computer they found that the hard drive in it was wiped of any information. The Crown would no doubt assert that the wiping of the hard drive was a action of the accused motivated by a consciousness of guilt in relation to the charges.
I am not prepared to use the fact that the hard drive was wiped as evidence against the accused as it may not have been the product of a guilty mind.
The witness EA confirms that the accused spend a lot of time with the complainant and that the complainant was keen on the accused. I accept her evidence.
I am not convinced however of her evidence that when the complainant would climb through the window into the IT office that the accused would close the partition. I am not prepared to find that as evidence of the maintenance of secrecy and a guilty mind by the accused in relation to his association with the complainant. The evidence is too confusing on this topic.
The evidence of her seeing the accused hand coffee to the complainant, which I accept, however suggests a desire by the accused to curry her favour and maintain her interest in him as it is unusual that a teacher would provide coffee for a student.
Similarly, I find her evidence that the accused said “I want to spank you, you’re a naughty girl, I want to spank you” (T 152) as some evidence of his interest in the complainant.
Whether or not the accused said “it’s not like paedophiles are a bad thing”, I do not regard this as evidence of guilt of the accused. He may have said it as a joke. I do not think it establishes him to be a paedophile nor that it casts light on his relationship with the complainant. (T 153)
A also says that there was one occasion where the complainant brought lubricant to school and the accused spoke about it in an inappropriate way. I accept the evidence as truthfully given. It is further circumstantial evidence of the accused’s demeanour with the complainant. He failed to discourage the complainant’s interest in him and maintained a prurient interest in her.
The witness HB, a fellow student whom I accept as being a truthful witness, also confirms the inordinate amount of time the accused seemed to spend talking to the complainant and her friends.
This witness too thinks that the accused moved partitions to block any view of the complainant from her friends when the complainant had jumped the counter into the IT room. She was vague about this and I am not prepared to accept this evidence as touching on issues of the guilt of the accused.
She too confirms that the accused brought coffee to the complainant. She confirms that occasion when the accused spoke inappropriately to the complainant about wanting to spank her (T 173) and indicates that on that occasion the accused made an inappropriate gesture with his fingers raised in a V sign and his tongue moving between the fingers. This is a code reference to cunnilingus.
I accept this evidence as going to the body of evidence which suggests an inappropriate association between the accused and the complainant during which the accused allowed himself to act in a manner inappropriate for a teacher so as to maintain the complainant’s obvious interest in him.
This witness also confirms the evidence of EA that the accused made a comment suggesting that he did not regard paedophiles badly. I have already indicated that I do not regard this evidence as being an indication of guilt of the accused or preoccupation with a sexual interest in a minor.
A teacher, RM, says that in the morning of 30th November 2009, presumably after the events at the house at Stirling, the complainant came into his classroom and said “Guess what, I just did him twice”. He asked her what she meant and she said “I fucked Barry twice.”
The complainant has already given evidence that she did not understand fellatio or masturbation with the hand of another person to constitute “a fuck.” The defence refer to this evidence as evidence of lack of credibility as the complainant is asserting that she had sexual intercourse when, on her own view of what constituted sexual intercourse, it had not taken place. Reliance is also placed on the complainant’s refusal to admit this conversation.
I have considered this issue. The complainant is, by her own admission, a seeker of attention. I do not think this evidence adversely affects her credibility nor does her denial of the conversation taking place. I think it probably did take place but I can think of no reason that she should deny it other than perhaps because she was affected by the drugs she had taken.
Is it evidence of complaint to confirm her consistency or to show lack of credibility? In my view it does neither. The fact that she said to Mr M that she had had intercourse with the accused at 8.30 am that morning in the computer office at a time when she knew he wasn’t in the computer office, and nor was she, is indicative, in my view, that the comment was not her making a false allegation in order to blame the accused. It was symptomatic of her bravado and seeking of attention. If she wanted to falsely accuse surely she would say it occurred at the accused’s home where she had just been.
Mr BB, a school services officer at Adelaide High in the IT section, confirms that the complainant and her friend spent a lot of time at the IT counter in the vicinity of the accused.
The accused could have discouraged them and told them to leave. In my view he did not do so because he enjoyed the company of the complainant and found her sexually appealing, although he may well have been reluctant to take the matter any further for reasons of morality and a fear of the consequences.
B confirms that the accused called in sick on the day of the offence. In my view this was so that he could entertain the complainant at his house. I reject the suggestion that the accused had her at his home so he could tell her not to try to be involved with him.
He also agreed that he saw cuts on the complainants forearm on Friday 27th November, 2009. On that occasion she was tearful. I have carefully considered the complainants childhood background in assessing her evidence.
The witness ST spent a lot of time with the complainant. They were inseparable. She confirms the complainant was keen always to see the accused.
On one occasion she went with the accused and the complainant out of the school to get a muffin. It is unusual that a teacher would go with two pupils from the school to the shop. It is further evidence of the accused’s interest in the complainant. On that occasion the complainant took the accused’s card out of his pocket and put it inside her bra to tease him by requiring him to put his hand in that location to retrieve it.
The witness confirms that the complainant would frequently jump the counter into the IT office but denies that she would disappear from view by the accused moving a screen to block the view.
She asserts that on one occasion when the complainant jumped the counter the accused spoke inappropriately saying “she’s got a great arse.” (T 202)
On the day of the alleged offending the complainant had asked Ms T to cover for her and she in fact signed the roll at the school for the complainant who was not there.
There is further evidence of the complainant covering herself because Ms T said when she rang the complainant on the Monday morning the complainant asserted that she was at J’s house. She could not have been at J’s house as she was at the accused’s house.
According to Ms T that day the complainant said that she had been to the accused’s house where she gave him “hand and head” and he licked her out and they had sex. (T 208) She also showed the witness photos she had taken of the accused that morning.
There is no suggestion from the evidence of the complainant that the accused had cunnilingus with her. Nevertheless I do not regard the inconsistency in the complaint as being evidence that detracts from the credibility of the complainant. She was, I think, prone to exaggerate her sexual contact and interests to her friends.
As to the bite marks on the stomach on the complainant which Ms T claims to have seen, I do not take them into account as the complainant has given no evidence herself which might explain them as having been caused at the hands of the accused. In my view they do not detract, either, from the complainant’s credibility.
As to her evidence that on days preceding the alleged offences the complainant had told the witness of other instances of sexual molestation by the accused, I find that to be mere exaggeration by the complainant.
The prosecution case finished with the evidence of a lengthy interrogation of the accused. During the interrogation the accused did most of the talking without direction from the questioner.
Without prompting, the accused sought to deal with and to explain all the implicating material including the photographs and the text messages. He also asserted that his friend Leask was present during the time the complainant was present at his house.
There is even an explanation given for the photographs taken in the bathroom. After initially denying that anything happened, when the police officer questioning asked the accused whether he was protecting the complainant the accused asserted that she had placed her hand on his penis. The accused claims he had an orgasm and ejaculated almost immediately as an involuntary reaction. He thinks that she wiped the ejaculate somewhere. The photo (P2 photo 4), according to him, was misleading in so far as it represented an affectionate relationship immediately following her grabbing his penis.
I reject this explanation of the accused beyond reasonable doubt. That he would go to the bathroom in those circumstances and take down his pants to a degree and his shirt off (as depicted in photographs P2 photos 2 & 3) and that he should be the subject of a photograph, P2 photo 4, in which he looks to be pleased to be in her presence after the incident that he has inscribed is improbable. It is also highly improbable that he would not know of the taking of the other two photos which indicate a surprising degree of familiarity for a teacher / student relationship especially after what he says has occurred in the house.
I do not overlook in this context the evidence given by the former girlfriend of the accused, HB.
If it is to be accepted then there were two occasions during their sexual relationship in which ejaculation took place almost instantaneously. On the first occasion the accused was driving the car when she unbuttoned the buttons of his fly and put her hand on his penis and he ejaculated straight away. The second occasion was when he was naked in the kitchen doing the dishes and she placed her hand on his penis from behind between his legs and he ejaculated immediately.
There is no evidence as to whether he was sexually aroused immediately before these instances.
In any event, I am satisfied beyond reasonable doubt of the evidence of the complainant as to their sexual “encounter” and thus the scenario does not arise.
Conclusions
In my view there is strong independent evidence that the accused had a guilty passion towards the complainant from his comments towards her, the time spent in her company and from his familiarity in relations with her.
There is no doubt on the evidence that she was flirty and endeavouring to create a sexual atmosphere between herself and the accused.
The many text messages between the two display an inappropriateness in behaviour by a teacher towards a student. (See P 4)
The inappropriateness in my view clearly demonstrates an attempt by him to maintain her interest and to encourage it.
His encouragement to her to send him another naked picture of herself after she had already sent him one taken whilst she was in the shower confirms he had a prurient interest in her. (See P2, photos 5 & 6, & P4 entry of 29/11/2009 @ 8.43 pm )
His visiting her at the location of her old primary school, his taking her and her friend away from the school to get lunch, his encouraging her constant visits to the IT room, his humouring her by not discouraging her from inappropriate conduct, his bringing of coffee to her from the staff room, his taking a sick day so as to be able to entertain her at his home, his text message exchanges with her, the photographs that were taken of him in a compromising position after what on his case would have been a startling and sobering experience, combine to make me satisfied beyond reasonable doubt that the complainant’s evidence is the truth.
I found the complainant herself to be a truthful witness. She did not minimise her activities in trying to encourage him sexually nor did she seek to minimise in any way that she was an attention seeker and in some ways a disturbed child.
I find her exaggerations to her friends to be nothing more than that – the exaggerations of a young girl seeking attention among her friends.
I have warned myself of the dangers of accepting her evidence given her somewhat chaotic background. In particular I have warned myself that she is somewhat cavalier in making up sexual stories about herself and has a disturbed background which appears to relate to early sexual experiences.
In conjunction with the evidence of the text messages and his behaviour at school where he, in my view, encouraged her presence, I am satisfied that the accused had a sexual passion towards her.
It may be that he was ambivalent about fulfilling that passion and torn between his desires and the propriety of his position as a school teacher. It may even be that he did not intend to satisfy his sexual desires with her with any actual physical contact at his house when he took a day off school and specifically went to Adelaide to pick her up and bring her back to his house.
The version put forward in the “Record of Interview” of the complainant suddenly grabbing the accused’s penis unexpectedly causing him to ejaculate immediately is rejected by me.
The accused called his former girlfriend HB to give evidence of two occasions when it is asserted that similar immediate ejaculation occurred.
The first occasion she described was an occasion when the accused was driving the car and she undid his fly buttons and had just put her mouth on his penis when he ejaculated.
It must have been clear to the accused on that occasion what she was doing and one must infer that he must have allowed her to undo his fly buttons and put her mouth near his penis.
There is thus opportunity for him to have become aroused.
The occasion she also described of him being at the sink in the kitchen with no clothes on when she placed her hand suddenly between his legs from behind causing him to ejaculate immediately is more difficult to explain.
The expert witness Dr McMahon regards it as an unlikely scenario.
Indeed the crux of his evidence was that although premature ejaculation is a well known phenomenon it would be unlikely for the ejaculation to occur in the circumstances described by Ms B and in the circumstance described by the accused as having occurred with the complainant.
The evidence on this topic does not however weigh heavily with me in the balance as I reject, beyond reasonable doubt, the scenario described by the accused as having occurred with the complainant not because it could not have happened but rather because I am satisfied beyond reasonable doubt the complainant is telling the truth.
I reject it not because it is inherently improbable but because I accept the complainant as a witness of truth corroborated as she is, in my opinion, by other evidence.
Findings
(1) The accused committed an act of gross indecency with the complainant by placing her hand on his penis at his home at Stirling on 30th November, 2009.
(2) That the act was a voluntary act by the accused in that he permitted her to do it.
(3) The act was an intentional act by the accused in that he knew she was doing it and permitted her to do it.
(4) That at the relevant time the complainant was under the age of 17 years.
Accordingly I find the charge proved of Gross Indecency.
I am satisfied beyond reasonable doubt that further to that act:
(1) The accused committed a voluntary act by permitting the complainant to suck his penis. The act was voluntary in the sense that the accused knew she was doing it and permitted her to do it.
(2) The act was intentional in that the accused deliberately permitted her to do it.
(3) The act of the complainant’s mouth being placed over the accused’s penis was an act of sexual intercourse or fellatio.
(4) I am satisfied at the relevant time that the complainant was under the age of 17 years.
Accordingly I find the charge proved of Unlawful Sexual Intercourse.
I will hear the parties as to the appropriate sentence.
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