R v Wayan Suarwata
[2008] ACTSC 140
•16 December 2008
R v WAYAN SUARWATA [2008] ACTSC 140 (16 December 2008)
CRIMINAL LAW ─ trial by judge alone ─ offence of sexual intercourse with a person under the age of 10 years ─ no evidence in support of offence ─ accused found not guilty.
CRIMINAL LAW ─ trial by judge alone ─ two charges of committing an act of indecency upon a person under the age of 10 years ─ one charge of attempting to commit an act of indecency upon a person under the age of 10 years ─ charges not proved beyond reasonable doubt ─ accused found not guilty.
CRIMINAL LAW ─ trial by judge alone ─ evidence given by a child in a Supreme Court trial ─ evidence to be given by way of audiovisual link ─ Evidence (Miscellaneous Provisions) Act 1991 (ACT).
CRIMINAL LAW ─ trial by judge alone ─ offences of committing an act of indecency upon a person under the age of 10 years ─ unsworn evidence by child ─ warning as to reliability of evidence of complainant ─ s 165 Evidence Act 1995 (Cth) ─ s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT).
EVIDENCE ─ complainants aged 8 years and 10 years ─ whether complainants competent to give sworn evidence ─ no understanding of “obligation” ─ complainants not competent to give sworn evidence but competent to give unsworn evidence ─ s 13 Evidence Act 1995 (Cth).
Crimes Act 1900 (ACT), subs 61(1), subs 55(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2, ss 40, 8, 43, 10, 46, 70, 125
Supreme Court Act 1933, s 68C
Legislation Act 2001 (ACT), Dictionary, s 144
Evidence Act 1995 (Cth), ss 13, 165, 164,
Crimes Act 1900 (ACT), s 264
Fleming v R (1998) 197 CLR 250
No. SCC 424 of 2007
Judge: Penfold J
Supreme Court of the ACT
Date: 16 December 2008
IN THE SUPREME COURT OF THE )
) No. SCC 424 of 2007
AUSTRALIAN CAPITAL TERRITORY )
R
v
WAYAN SUARWATA
ORDER
Judge: Penfold J
Date: 16 December 2008
Place: Canberra
THE COURT FINDS THAT:
Wayan Suarwata is not guilty of the charge that between the 27th day of July 2007 and the 30th day of September 2007 at Canberra in the Australian Capital Territory he attempted to commit an act of indecency upon [the male complainant], the said complainant then being a person under the age of 10 years, namely 9 years of age.
Wayan Suarwata is not guilty of the charge that on the 22nd day of September 2007 at Canberra in the Australian Capital Territory he committed an act of indecency upon [the female complainant], the said complainant then being a person under 10 years of age, namely 7 years of age.
Wayan Suarwata is not guilty of the charge that on or about the 22nd day of September 2007 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with [the female complainant], the said complainant then being a person under 10 years of age, namely 7 years of age.
Wayan Suarwata is not guilty of the alternative charge that on or about the 22nd day of September 2007 at Canberra in the Australian Capital Territory he committed an act of indecency upon [the female complainant], the said complainant then being a person under the age of 10 years, namely 7 years of age.
Introduction
The accused was arraigned before me on four counts, the fourth being an alternative to the third, as follows:
Count 1: That … between the 27th day of July 2007 and the 30th day of September 2007 at Canberra in the Australian Capital Territory [the accused] committed an act of indecency upon [the male complainant], then being a person under the age of 10 years, namely 9 years of age.
Count 2: And further that on the 22nd day of September 2007 at Canberra aforesaid [the accused] committed an act of indecency upon [the female complainant], then being a person under 10 years of age, namely 7 years of age.
Count 3: And further that on or about the 22nd day of September 2007 at Canberra aforesaid [the accused] engaged in sexual intercourse with [the female complainant], then being a person under 10 years of age, namely 7 years of age.
Count 4: And in the alternative to count three that on or about the 22nd day of September 2007 at Canberra aforesaid [the accused] committed an act of indecency upon [the female complainant], then being a person under the age of 10 years, namely 7 years of age.
The charges arose under provisions of the Crimes Act 1900 (ACT) (the Crimes Act), namely subs 55(1) (sexual intercourse with a person under the age of 10 years) and subs 61(1) (act of indecency on a person under the age of 10 years). Both provisions are set out in Appendix A to this judgment.
The accused pleaded not guilty to all charges.
Information identifying the complainants
This proceeding is a sexual offence proceeding for the purposes of Division 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act), involving two children who were friendly with the children of the accused. Section 40 of that Act (set out in Appendix A to this judgment) makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant’s identity or from which the complainant’s identity might reasonably be inferred.
In these reasons, therefore, I do not refer to the names of the complainants, nor to the names of witnesses who gave evidence if the publication of those names might identify the complainants. I have added an appendix to these reasons (Appendix B) which I order not to be published but to be made available to the prosecution and the accused only, to be used by them if required for the purposes of these and any subsequent proceedings.
Trial by judge alone
Election
The accused elected to be tried by judge alone.
Procedures for trial
Section 68C of the Supreme Court Act 1933 of the ACT (set out in Appendix A to this judgment) specifies the procedures to be followed for a trial by judge alone. In summary:
· the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
· the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v R (1998) 197 CLR 250); and
· the judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case.
General directions
I set out first the general directions I have given myself.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?” If the answer to the question is yes, I will find the accused guilty of that offence; if the answer is no, I will find the accused not guilty of that offence.
Other directions etc
Evidence given by audiovisual link
The male complainant in this matter was 9 years old at the time of the alleged offence and 10 years old at the time of the hearing. The female complainant was 7 years old at the time of the alleged offence and 8 years old at the time of the hearing. Under the Legislation Act 2001 (ACT), each complainant is a child for the purposes of ACT legislation (see section 144 of that Act, and the definition of “child” in the Dictionary to that Act).
Subsection 8(1) of the Miscellaneous Provisions Act (see Appendix A) requires that, unless the court otherwise orders, evidence given by a child in a trial in the Supreme Court must be given by audiovisual link from a place other than the courtroom, if such an audiovisual link is available. There was no request that I order otherwise, and the evidence was accordingly given by each child by audiovisual link from a place other than the courtroom. At the request of counsel for the prosecution and without opposition from counsel for the accused, I made an order under par 9(2)(a) of the Miscellaneous Provisions Act (see Appendix A) specifying, in relation to each complainant, that while he or she gave evidence from a place other than the courtroom, the only people who could be present with the complainant in that other place were Ms Lucy Gregory, a witness assistant from the DPP, and one Sheriff’s Officer. The order was later varied to refer to a Court Official rather than a Sheriff’s Officer.
Division 4.3 of the Miscellaneous Provisions Act applies to evidence in sexual offence proceedings as defined, and s 43 of that Act also operated to require the evidence of the complainants in this case to be given by audiovisual link from a place outside the courtroom unless the court otherwise ordered. I mention for completeness that no order was sought or made under that section.
Sections 10 (see Appendix A) and 46 of the Miscellaneous Provisions Act require the jury to be warned that an inference adverse to an accused should not be drawn from the fact that the witness is giving evidence from another place, so I give myself an equivalent warning.
Unsworn evidence of the complainants
Subsections 13(1) and (2) of the Evidence Act 1995 (Cth) (the Evidence Act) are set out in Appendix A. A person is not competent to give sworn evidence if the person is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence (subs 13(1)). Under subs 13(2), a person who is not competent to give sworn evidence may give unsworn evidence if the judge is satisfied that the person understands the difference between the truth and a lie and tells the person that it is important to tell the truth, and the person indicates, when asked, that he or she will not tell lies in the court.
In view of the age of the two complainants, I undertook with each of them an inquiry about their understanding of the significance of giving truthful evidence.
The female complainant, who at the time of the hearing was a month short of her ninth birthday, told me, when asked, that she did not know what an obligation was. I considered that explaining the concept of an obligation to her and then inviting her to confirm her understanding of my explanation would not provide a proper basis for a finding that she was capable of understanding the obligation to give truthful evidence as described in subs 13(1). I therefore found that she was not competent to give sworn evidence, and moved on to an inquiry under subs 13(2).
During that inquiry the female complainant made it clear that she did understand the difference between the truth and a lie, and that it was bad to tell lies. I then told her that it was very important that in the court she only tell the truth, and in response to my questions, she said “Yes, I will tell the truth” and “I will not tell any lies”.
The female complainant’s unsworn evidence was then received.
The male complainant, who at the time of the hearing was 10 years and 9 months old, also told me, when asked, that he did not know what an obligation was. As already explained in relation to the female complainant, I did not consider that it was appropriate to seek to explain that concept to the male complainant. Accordingly I found that he also was incapable of understanding the obligation to give truthful evidence as described in subs 13(1), and therefore was not competent to give sworn evidence.
In an inquiry under subs 13(2), the male complainant indicated that he knew that a lie was “when you’re not saying the truth, it’s just made up”, that he knew what it means to tell the truth, and that it is bad to tell lies. He said that it was very important to tell the truth in court, “because people can go to jail from just a lie” and confirmed that when people in the court asked him questions, he would answer them “in the truth”. In response to a request from me, he said “I will not tell any lies in this court”.
The male complainant’s unsworn evidence was then received.
Warnings concerning the evidence of children
Section 70 of the Miscellaneous Provisions Act (set out in Appendix A) prohibits a judge, in a sexual offence proceeding in which a child has given evidence, giving the jury “any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses”.
Accordingly, I note that there is no basis on which I could consider that the evidence of a child is inherently unreliable.
Section 165 of the Evidence Act (subss (1) and (2) of which are set out in Appendix A) applies, among other things, to “evidence of a kind that may be unreliable, including … evidence the reliability of which may be affected by age” (subs 165(1)). The section then requires the judge, on request by a party, to warn a jury that such evidence may be unreliable, to inform the jury of matters that may cause it to be unreliable and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it (subs 165(2)).
I consider that the prohibition in s 70 of the Miscellaneous Provisions Act on warning or suggesting to a jury that children are an unreliable class of witnesses is not inconsistent with the requirements of s 165 of the Evidence Act.
Section 165 of the Evidence Act was mentioned in closing submissions by both counsel, but no formal request was made that I should direct myself in relation to the evidence of either child. However, I note the need to exercise caution in relation to the complainants’ evidence, having regard to the age of the complainants, the time that has passed since the alleged offences (at least 12 months) and the fact that the evidence was unsworn.
I note also that under s 164 of the Evidence Act (see Appendix A), there is no requirement for the evidence of a child to be corroborated, and no need for any warning to be given to a jury that it is dangerous to act on uncorroborated evidence or for any direction to be given as to the absence of corroboration.
Background to the charges
The male and female complainants (to whom I shall refer respectively as “the boy” and “the girl”) were brother and sister. At one stage they lived near the accused’s family, and were friendly with the accused’s son and daughter, who were slightly older than the complainants. The families maintained contact after the accused’s family moved to a house elsewhere in the same suburb. The complainants’ parents were invited to a birthday party in September 2007, and their mother arranged for the complainants to spend the night of the party with friends. The girl was to stay with the accused’s family—it would be her first “sleepover” with the accused’s daughter. Her brother was to stay elsewhere.
The girl was delivered to the accused’s home late on Saturday afternoon. She was collected from the accused’s home by her mother the next morning. In the car the girl told her mother that the accused had behaved inappropriately towards her during the evening and night. When the girl’s brother heard his sister’s allegations, he volunteered that some time earlier, while at the accused’s home for a sleepover with the accused’s son, he had also been subjected to inappropriate behaviour from the accused.
In due course the accused was charged, in respect of the September incident, with one count of committing an act of indecency on the girl, and one count of sexual intercourse with the girl (particularised as digital penetration) with an alternative charge of committing an act of indecency. He was also charged with committing an act of indecency on the boy on an unspecified date between 27 July and 30 September 2007, arising out of the earlier sleepover.
Changes to the indictment
After the evidence of the complainants had been heard, it was clear that the evidence given by the male complainant could not support Count 1 (committing an act of indecency), and counsel for the DPP sought and was granted leave to amend the charge (see s 264 of the Crimes Act) to allege an attempt to commit an act of indecency. The accused was arraigned on the amended charge and again pleaded not guilty.
It was also conceded by counsel for the DPP that there was no evidence for Count 3, namely engaging in sexual intercourse with the female complainant, and that a verdict of not guilty would in due course be entered on that count.
General comments about evidence
Both complainants gave evidence by audiovisual link from a place outside the courtroom. Both children gave their evidence confidently and without any signs of reluctance or discomfort. Both were clearly doing their best to remember the events in question and to tell the truth. Neither child gave any indication that the evidence had been rehearsed, or was being recited by rote.
The accused, who is of Balinese origin, came to Australia in 1995. He gave evidence through an interpreter. He too impressed me as a witness of truth.
Evidence was also given by the mother of the two complainants, the wife of the accused, and a long-standing friend of the accused who gave character evidence on his behalf. All those witnesses also presented as honest people genuinely doing their best to tell their stories as clearly as possible. There was no indication in the evidence or demeanour of any witness that the children’s allegations might have been made in the context of any falling-out between the two families.
As well, evidence was given by three police officers, Senior Constable Phillip Cantwell and Constable Melanie Slaven-Molloy who went to the complainants’ home to deal with the initial report of the complainants’ allegations, and Senior Constable Ashley Laidler, the investigating officer who handled most of the subsequent investigations.
The first count
The first count, as amended, alleges an attempt to commit an act of indecency upon the boy, then aged 9 years. It was common ground that at some time between July and September 2007 the boy had gone to the accused’s house for a sleepover with his friend, the accused’s son. The boy gave evidence that when he arrived at the house with his mother, only the accused and the son were there. The boy, the accused, and his son had initially stayed in the living room but then the son had gone to get something and the accused, sitting on the lounge, had asked the boy “to come over”. The boy’s evidence-in-chief was as follows:
Right, and you went over to him?---Yes.
And what happened then?---Then he tried pulling my pants down.
Yes, and what did he do then?---He tried touching me on the penis.
He tried touching you?---Yes.
And did he touch you?---No, because I grabbed his hand and pushed it away.
Where was his hand when you grabbed it and pushed it away?---He was trying to about to touch me.
Can you show us whereabouts he was trying to touch - - -?---It was around here.
So you’re indicating near your penis?---Yes.
And where were you when he was trying to pull your pants down?---I was sitting in the middle where his chest is.
Right, on the same lounge?---Yes.
And did he say something to you about that?---No, he said nothing.
Did you say something to him?---No.
And when you pushed his hand away what did you do then?---I ran to [the son’s] room because [the son] wanted to go and get something to play.
In cross-examination, the boy gave further details of the incident.
All right. So who opened the door?---[The accused].
And where was [the accused’s son]?---He was in the living room and then he said, “I’ll go and grab something”.
So he went in?---Yes.
And you expected him back straight away, did you?---Yes.
And you went and sat on the lounge?---Yes.
Where was [the accused]?---[He] was on the other lounge laying down.
Yes. And you say he called you over?---Yes.
And you went and sat next to him?---Yes.
Whilst he was still lying down?---Yes.
I see. And where did you sit? What – in relation to [the accused] lying across - - -?---When he was laying across I sat next to his chest.
You went and sat there yourself?---No, he told – called me over.
Yes, but he didn’t make you sit next to his chest, did he?---No, he just told me, “Sit here.”
All right. Now, you said he tried to touch you?---Yes.
And can you show us again how he tried to touch you?---He tried touching me right here where my penis is.
All right. Now, you’ve told us he tried to pull your pants down. How did he do that?---He tried pulling them down and then tried touching my penis, but that’s when I grabbed his hand and pushed it away.
So, he did pull your pants down?---He was trying to.
Well, how was he trying to pull your pants down?---He was trying to pull them down to get his hand in there.
So did you touch the – what sort of pants were you wearing?---I don’t remember.
Well, think hard because it’s the first time you say that [the accused’s] ever done that to you, isn’t it?---Yes.
Well, help us by telling us what sort of pants you were wearing?---I don’t remember.
And how was he trying to pull your pants down again?---He was trying to pull them down by the front where my penis is.
Right. And then had he got a grip on your pants?---Yes.
He had? He was holding your pants?---Well, he tried getting – touching it.
No, no, no, I’m just asking you about your pants. Had [the accused] got a grip on your pants?---Yes.
Where?---He got it at the front.
And he tried to wrench it off you, did he?---Yes.
And did you struggle?---No, not really.
Well, you either did or didn’t. Did you struggle?---No.
I see. And did he try to – you understand the word wrench - - -?---Yes. ---he tried to forcefully pull it down?---Yes.
And did you struggle?---No.
Okay. And what stopped him from touching you on the skin of your penis?---I grabbed his hand.
You grabbed his hand, yes?---Yes, and I pushed it away.
All right. Now, which hand did he use to pull your pants down?---He tried the – actually, I’m not quite sure what he used.
You’ve got to help us because we weren’t there?---I’m not quite - - -
Which hand did he use to pull your - - -?I’m not quite sure.
Which hand did you use to knock his hand off?---My right.
Your right hand? Are you sure about that?---Yes, because I’m right handed.
Now, you knocked his hand away. Did you remain seated on the lounge?---No, I ran off to get [the accused’s son].
In his evidence the accused simply denied any incident of the kind described by the boy. In cross-examination the accused agreed that the boy came to his house often, but denied that he was ever alone in the house with him, and could not remember an occasion when he was with the boy while his son was in his bedroom.
MR LUNDY: All right. During the period from July to September, you said that there was never a time when you were home alone with [the boy]?---Never. I never knew that.
I put it to you that during that period between July and September you were at home with [your son and the boy] and in the lounge room you tried to touch [the boy] on the penis, didn’t you?---No.
And [your son] was in his bedroom, wasn’t he?---No never, and I can’t remember at that time.
You can’t remember?---I can’t remember. Usually [my son] watched television and soccer and basketball.
But on that one occasion between July and September [your son] was in his bedroom one afternoon and you were with [the boy] and you tried to touch [the boy] on the penis, didn’t you?---No, never.
When you say never you can’t remember?---What do you mean? I don’t understand.
Before you gave an answer about [your son] being in his bedroom and you said you can’t remember?---At that time I was at home but I was – I was never together alone with [the boy].
But [your son] was in the house but in his bedroom?---Every time [the boy] comes to my place [my son’s] always at home and if he’s not there he goes home.
I note at this point that, having regard to the submission made by counsel for the DPP about the boy’s failure to make an early complaint, I have not drawn any adverse inference about his evidence from the fact that his complaint was not made until his sister alleged a similar incident some time later.
It is apparent from a careful reading of the boy’s evidence that the only indication of the accused’s intentions comes from the boy’s interpretation of actions which, if they happened, were susceptible to other more innocent explanations. For instance, the statement that “he tried touching me on my penis” turns out to be a conclusion drawn from the asserted attempt by the accused to pull the boy’s pants down—but in cross examination the boy indicates that he is not even sure that the accused actually made contact with his pants before the boy grabbed his hand and pushed it away. Thus, the boy’s belief that the accused tried to touch his penis might reflect no more than a casual but misunderstood gesture by the accused. Furthermore, a failure even to remember the occasion reported by the boy (a time when the boy and the accused were alone together while the accused’s son was in another room) would cast no doubts on the accused’s credibility if the occasion in fact involved only the accused lying on the couch, the boy sitting beside him at the accused’s casual invitation, and an innocent movement of the accused’s hand which was deflected by the boy as he got up and ran to find his friend.
The boy’s evidence of what actually happened rather than how he interpreted events is, taken at its highest, consistent with an attempt by the accused to commit an act of indecency on him, but it is also consistent with innocent behaviour by the accused. Furthermore, the fact that the accused’s son was nearby and expected back within minutes if not seconds (according to the boy, the son had said “I’ll go and grab something”) makes it even less likely that the incident, if it happened, really involved an attempt to commit an act of indecency.
In those circumstances, I cannot be satisfied beyond reasonable doubt that the accused attempted to commit an act of indecency on the boy as charged in Count 1.
The second count
Count 2 alleges that the accused committed an act of indecency on the girl, then aged 7 years.
It was agreed that on the afternoon of 22 September 2007, the girl had been taken to the accused’s house by her mother and left in the care of the accused who was the only person then at home.
It was common ground that, before the accused’s wife and children came home soon after the girl was dropped at the accused’s house, there was some interaction between the girl and the accused. The nature of that interaction was disputed.
The girl gave evidence as follows:
Who was at the house when mummy took you there?---There was [the accused] just there.
[The accused] just him?---Yes.
Just by himself?---Yes, with the cat.
With the cat. Okay, so mummy – mummy left you there?---Yes.
And what happened after mummy left you there?---I went and sat down on the couch.
Yes?---And he said, “come here, come here” and I didn’t know anything could happen and I – he didn’t say go there, he just wanted me to come and I came and then he picked me up.
Yes?---And then he let me stand on his knees and turn me around, sat me back down and stuff.
Yes?---And then he touched me.
Whereabouts did he touch you?---In my rude bit.
I beg your pardon?---In my rude bit.
In your rude bit?---Yes.
Now you have a name that you call that, don’t you?---Yes.
And is that the patata?---Yes.
And is that where you wee from?---Yes.
And did he touch you on the skin or on your – through your pants?---I’m not sure.
So did he touch your skin or did he just touch your clothes?---He just touched my skin.
Now how did that make you feel?---I felt very angry.
Did you say anything to him?---No.
And what happened after that?---Then the – all the kids came and the mum and stuff.
And they came home and you – did you tell anybody then what happened?---No.
In cross-examination, she gave more details:
After your mum left did you go and sit on the sofa?---Yes. I sat on the ground, then I went and sat on the lounge.
All right. Now, what I want to say to you is this: you were sitting there for five minutes by yourself?---Yes.
Still a bit sad?---Yes.
And [the accused] came to you and said “Are you okay”, something like that?---Yes.
And you stood up---?---Yes.
And did you cuddle him by holding him around the ---?---Yes, “come here” and he wanted me to hug, and yes.
Can you just say that again?---He wanted me to hug.
He wanted you to?---Like – he – because I was sad my mum left he said “Do you want to hug?” and I said, “No thanks,” and he just hugged me.
Okay. You say he hugged you, okay. And then what happened was you sat down?---Yes.
And you sat on his knee?---Yes.
And he was holding you around the waist. Do you know where a waist is?---Yes, here.
He had his arm around your waist?---Yes.
And he was tickling you?---Yes.
Is that right?---Yes.
He was tickling you and you were laughing?---Yes.
Then what happened is you got off him?---Yes.
And grabbed the cat, there was a cat there?---Yes.
Do you know the cat’s name?---No.
Is it Sunny?---Yes, I can’t, yes.
And he, [the accused], then left you holding the cat?---Yes.
Is that right?---Yes.
The next thing that happened was [the accused’s daughter], her mother and brother arrived?---Yes.
What I’m going to say next to you, before you answer listen carefully to the question and then say yes or no, all right?---Yes.
Do you understand that?---Yes.
Whilst you were there that afternoon when you first arrived - - - ?---When I first arrived there?
Yes?---Yes.
And when [the accused] had tickled you and you picked up the cat?---Yes.
I’m going to say that [the accused] did not touch you on your rude parts?---No, he – he picked me – he was tickling then picked me up and stuff …(indistinct) … and then sat me back down and touched my rude bit.
Now when you said touched your rude bit, could it have been part of putting you down that he may have accidentally touched you there?---I’m not sure.
Do you understand what I’ve asked you?---Yes.
Do you understand what I meant by he may have in putting you back on the sofa have accidentally brushed?---I’m not sure.
In cross-examination, the accused said:
MR LUNDY: So let me get this straight, you were standing up and you took hold of [the girl]?---At that time I was standing up and then she hugged me around here. [The girl] was sitting here and I said “Are you okay?” and she dropped the cat and then she stood up and I think it’s because it’s just the usual, every time she – she sees my wife or my in-laws she usually would hug them and it often happens when – and it often happens when we used to be neighbours, all the cuddles. And sometimes I would see that mum and dad watering the flowers and I saw her and she would come and then my wife’s there too and she would come over and approach us and hug us.
So [the girl] has hugged you before?---Yes.
How many times?---Sometimes like during the afternoon she’s out there with her mum and dad and I’m out, I also am out there with my wife and my children and then sometimes she would – she would come – come around and approach us and she would hug, hug my wife too.
Both of you?---She would hug my wife first and then hug me.
But on 22 September you were by yourself with [the girl], weren’t you?---Yes.
Now I’m sorry but I’m going to have to go back and ask you again about the hugging because I don’t quite understand what [the accused] was saying. So we’re talking about just before the hugging in the house?---Yes I was in the room, I was on my computer.
In the lounge room?---No, my bedroom.
And where was [the girl]?---She was sitting on that sofa and I could see the sofa from my bedroom.
And you came out of your bedroom?---Yes.
And you asked [the girl] “Are you okay?”---Yes.
And she said “Yes”?---And then she stood up and she hugged me around my waist.
And then you sat down?---I sat and it just happened, she just sat on my lap.
So when she’s hugging you she’s facing you?---Yes.
So then you sat down and turned her round, did you?---Yes when I sat down she turned her body around facing the television.
And that’s when you touched her on the vagina, isn’t it?---I did not do that.
Some time after that your wife came home with your children?---Yes.
The girl and the accused gave consistent evidence that after the girl arrived, she sat briefly on the couch, and that she was then picked up by the accused and found herself sitting on his knee. In cross-examination, the girl agreed that the accused had tickled her, that she was laughing, and that she then got off the accused and picked up the cat. She reiterated that he “touched [her] rude bit” but, when asked whether this could have happened accidentally as the accused put her down, twice said “I’m not sure”.
In relation to this charge, most of the details of the interaction between the accused and the girl are agreed. The only disputed element is the girl’s assertion that at or towards the end of the interaction the accused “touched [her] rude bit”.
Although the girl in evidence-in-chief asserted, after first saying she was unsure, that the accused touched her on her skin rather than through her clothes, the evidence of how the accused could have reached her skin was effectively non-existent; in cross-examination the girl gave the following evidence:
Okay. Now did your mother ask you if [the accused] had pulled your undies down?---No, he didn’t pull – I’m not sure.
So you’re not sure, what - - -?---No.
So you’re not sure whether he pulled your undies down?---No.
Is that right?---Yes. I’m not sure.
This matter was not pursued in re-examination after the girl had said that she was not sure whether the touching could have been accidental.
Of course, an act of indecency of the kind alleged need not involve direct contact by the accused with the victim’s skin. However, in this case the weakness of the evidence that the girl was touched on skin rather than, if at all, through clothes is relevant in two respects.
First, the initial allegations by the girl were of intimate contact. As well as the girl’s evidence as set out in [51] above, her mother gave evidence in chief as follows:
As you were driving out, did [the girl] tell you something?---Yes, I started reversing back and [the girl] started to say to me, Mummy he put his hand down in my, you know in her underwear and touched my patata, and patata means vagina.
The uncertainty of the girl’s evidence at the trial about the actual nature of the touching must give rise to some doubt about her memories of the details of the incidents, given that intimate touching of the kind initially alleged might be expected to be a particularly disturbing and therefore memorable aspect of the incidents.
Secondly, in the circumstances of the alleged touching, evidence that a fully-clothed child is touched on her skin in the genital area is much less susceptible to an innocent explanation than is touching of that area through clothing.
Counsel for the DPP drew my attention to the fact that the girl made her complaint as soon as she was able to talk to her mother about it, and that she repeated her complaint later that day to the investigating police officers. He conceded that this is not direct evidence of what happened to her, but submitted that it does go to the general credibility of her evidence. This is correct, and, as I have already indicated (see [39] above), I accept that the girl gave honest evidence of the events as she recalled them. However, evidence of a recent complaint does not, at least in this case, go to whether the complainant’s initial interpretation of events was correct.
Taken at its highest, the girl’s evidence is consistent with the accused having committed an act of indecency on her. However, that evidence, as well as the accused’s evidence about the incident, are also consistent with an innocent explanation for the accused’s behaviour. Given the lack of detail about the alleged touching, the girl’s uncertainty about whether any touching that occurred could have been accidental, and again, the evidence that other people (in this case the accused’s family) were expected to arrive at any moment, I cannot be satisfied beyond reasonable doubt that the accused committed the act of indecency on the girl as charged in Count 2.
The fourth count
Count 4 in the original indictment alleges a second act of indecency upon the girl, committed during the same visit to the accused’s house.
After dinner on the night in question, the girl and the accused’s daughter had settled down for the night on an unfolded sofa bed in the living room. The accused slept on the end of the sofa bed at right angles to the two girls at the other end of the bed; this was explained by the girl using a plan she had drawn showing the relevant rooms and furniture and the sleeping positions of the people in the house. The accused gave evidence that he often slept on the sofa: “ … very often, when I watch television, I lie down on the sofa and just then I fell asleep”, and this was confirmed by his wife.
The girl gave evidence that during the night, she had been touched around her genitals.
Now did something happen in the night?---Yes.
What happened in the night?---He – he got his hands up and he went on my pants and then he – I thought it was a snake but I – I couldn’t – and then – and then I felt something there, it felt like a hand and then he put a hand in the – my pants.
Yes?---On the skin and then I pulled it back out and I – I just – I just took him off me.
When you say “he” did, who was that?---[The accused].
And how do you know that it was [the accused]?---Because I remember he slept under the bed.
Yes?---And I remember he was sleeping on the bed because I – the other mum was asleep, the mum was in her own bed.
Right. Now when you say he put his hand, where did he put his hand?---In my rude bit.
Is that your patata?---Yes.
And did he touch the skin or did he touch the clothes?---Skin.
So you felt his hand on your patata is that right?---Yes.
Did you say anything to him?---No.
Did he say anything to you?---No.
And how did that make you feel?---I felt very angry.
I beg your pardon?---I felt very angry.
When he touched your patata, how did he touch it?---He – with him hand, like – I’m not sure. He done it with him hand but.
I beg your pardon?---He done with my hand but my hands but I don’t touch it, me with him hand but nothing else.
Right. Now did – did he touch you more than once?---No, twice.
Twice?---Yes.
Did you – I think you said you pushed his hand away, is that right?---Yes.
And what happened after that?---I went back to sleep and I was crying a little bit and the dad just stopped it.
In cross- examination the girl was less sure about the events:
Now you say that you woke up and you felt something round your private part?---Yes. No, it was on my pants and then it went in my privates place.
Can you repeat that again please slowly?---He was – I thought it was a snake on my body and – but then he put his hands on my rude bit.
And was this over your clothes?---On my clothes and then went in.
Under your clothes?---I’m not sure.
Well I just want you to think for a minute, did the hand go under your clothes?---I’m not sure.
Okay. But were you fast asleep when you felt that?---No –yes, yes.
You were fast asleep?---Yes.
Did you at that time think it was a snake?---Yes.
The accused denied this allegation in evidence in chief:
And during the night, as she slept, did you put your hand under the doona and inside her pyjamas?---No.
And touched her on the vagina four times?---I did not do that.
He repeated his denial in cross-examination: …
And during the night you touched [the girl] on the vagina, didn’t you?---I did not do that.
And you placed your hand inside her pyjamas, didn’t you?---No.
On the day the girl’s allegations were made, Senior Constable Laidler obtained from her parents clothing that had been worn by the girl during the period when the offences were allegedly committed. At some point later he obtained a DNA sample from the accused, and this was used in testing the girl’s clothes. Constable Laidler gave evidence that no DNA from the accused was found on those clothes.
Taken at its highest, the girl’s evidence about this incident establishes that during the night she was touched in some way around the genital area. Although in her evidence she attributes this touching to the accused, this seems to be an assumption based on his proximity. She does not claim to have seen the accused with his hand under the doona, or to have any other basis for believing, rather than assuming, that the perpetrator of the touching was the accused. Given that, apart from the girl and the accused, there were three other people in the house during the night, this in itself is a significant weakness in the evidence.
Apart from the three other people in the house overnight, there was also a cat. An alternative explanation offered on behalf of the accused was that what the girl experienced in the night was the cat, either on top of or under the doona, pressing down on the girl’s genital area while looking for a satisfactory place to sleep.
Evidence was given of the cat’s habits; the accused gave the following evidence:
Now during the night, or just before you fell asleep, where was the cat?---Before I slept the cat was still in that same position just where the - - -
Back of the sofa?---the back, yes. Just there, that’s all I know.
Is your cat an indoor cat or outdoor cat?---Inside, always. I will sometimes let the cat out only during the day time, but I supervise.
But where does the cat sleep at night?---You mean at that time?
Well, on that night, did you see where the cat slept?---I woke up at six - 7.30, the cat was right behind me.
On the sofa bed?---Yes, right behind me.
And where does the cat normally sleep?---Sometimes on top of me, sometimes on top of the kids or my wife, it depends wherever. Sometimes the children, sometimes my wife and usually before the cat sleeps the cat will, sort of, like scratch until the cat is comfortable, then the cat sleeps. And sometimes the cat goes under the doona.
His wife gave this evidence:
But when you were in the lounge watching the movie with the girls where was the cat?---Well she wanders in and out but she – she may have been on one of the couches or she – you know, she wanders in through the house.
During the night where does the cat sleep?---She usually sleeps on either my son or my daughter’s bed. Occasionally she will come and sleep on our bed.
When you left to go to your room did you see where the cat was?---No, I don’t recall.
Has the cat slept on your bed?---Yes.
On the occasions the cat has slept on your bed is there a peculiarity about the cat?---Yes, she – well she often snuggles in under the doona. Before she goes to sit down somewhere before – when she’s preparing to get comfortable she will push with her front paws in to the part where she is about to lie just to – I suppose to prepare where she is going to sit. And she – yes, she usually does that every time she is about to sleep.
The girl gave evidence of the cat being in her bed, but when asked what she had told the police about the cat, gave this evidence:
Do you recall telling the police that when you were sleeping the cat “went on me”, on you?---I can’t hear you.
Do you remember telling the police that when you were asleep the cat went on you?---I’m not sure about that.
In the absence of any evidence clearly linking the accused with the girl’s experience during the night, and noting that the cat’s behaviour as described by the accused’s wife has much in common with the girl’s description in court of what happened to her in the sofa bed, I am not satisfied beyond reasonable doubt that what the girl experienced was an act of indecency constituted by the accused touching her around her genitals with his hand.
Other evidence
Other evidence also supports the accused’s version of events, and while it is fundamental that the accused is not obliged to prove his innocence, it is nevertheless appropriate to identify relevant evidence where it exists.
First, Senior Constable Laidler gave evidence that he made an initial visit to the accused’s house but found only the accused’s wife present, and that he returned to the house later after being contacted by the accused. The accused subsequently agreed to take part in a taped record of interview, but Constable Laidler abandoned the interview after deciding that it would be unfair to conduct it given the accused’s poor understanding of English. The accused’s willingness to meet investigating police, and to take part in a taped record of interview despite his language difficulties, is consistent with his innocence.
Senior Constable Laidler also gave evidence that the accused has no criminal record.
Secondly, both complainants were asked whether the accused said anything to them about the incidents they described that in due course led to the charges being laid. Both denied that he had said anything. The absence of any comments from the accused, in particular any request or instructions from him not to mention the incidents, is not proof that the incidents did not have the character attributed to them by the complainants. However, it does add to the doubts already raised by other evidence about the nature of the incidents. In particular, the absence of any comment from the accused about any of the incidents is consistent with the accused’s evidence that in one case he did not see the incident as in any way inappropriate and, in the case of each other incident, that he could not remember, or was not involved in, any such incident.
Also relevant is the character evidence that was given on behalf of the accused by Ms Rina Sembel, a public servant who has lived in Australia since 1961. She is Indonesian by birth, and has long been associated with the Indonesian community in Canberra. She gave evidence that she has been friendly with the accused and his family for nearly 14 years, and that in that time she and the accused have visited each other’s houses and had many social exchanges. In particular, she has observed the accused interacting with the children of her family and with other families, and her children, when young, had stayed over at the accused’s home on a couple of occasions. She said “I’ve never known [the accused] to - to display any kind of behaviour that caused me to worry about, you know - - -”. Asked by counsel for the accused, “Do you have anything to say about the character of the person that you know in light of these allegations?” she said “Totally not the same person that I know”.
It is appropriate also to mention one aspect of the evidence that counsel for the DPP suggested could found an inference of the accused’s guilt.
The accused’s wife gave evidence as follows:
When your husband returned did you tell him what the police had said to you?---Yes, I - - -
And can you recall what you said to him?---Yes, I - when he came in the door I asked him what he had done to [the girl] and he said, “What do you mean? What are you talking about?” And I said that [the girl] had said that he had touched her and, “Did you do that?” And he said, “No, I don’t know what you mean.” And then I said that the police had been to our house and they wanted him to call them so he called them straight away.
Counsel for the DPP submitted that the form of her question to the accused, “what did you do to [the girl]?” was “a very odd statement for someone to make in relation to the sorts of allegation that were made by [the girl] at that stage”. He implied that a comment along the lines of “this girl is making these horrible allegations against you” would have been more consistent with a wife’s assumption of her husband’s innocence.
I do not accept the implication that the wife’s reaction suggests a suspicion of, let alone a belief in, her husband’s guilt. Her reaction seems to me to be quite consistent with, for instance, a belief that there has been some kind of misunderstanding between the husband whom she trusts and a young girl whom she has no reason to distrust. If anything, her willingness to seek out the origins of the girl’s claims, rather than rejecting them out of hand, may make her a more rather than a less reliable witness.
Conclusions
As already mentioned, counsel for the DPP conceded that there was no evidence in support of Count 3. In relation to Counts 1, 2 and 4, my conclusion, based largely on the evidence of the complainants and the accused but also taking account of the other evidence mentioned in [77] to [81] above, is that none of the offences alleged by those counts has been proved beyond reasonable doubt. Accordingly, I find the accused:
· not guilty on Count 1 as amended, attempting to commit an act of indecency on a person under the age of 10 years;
· not guilty on Count 2, committing an act of indecency on a person under the age of 10 years;
· not guilty on Count 3, sexual intercourse with a person under the age of 10 years; and
· not guilty on Count 4, committing an act of indecency on a person under the age of 10 years.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 16 December 2008
Counsel for the Crown: Mr J Lundy
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Sabharwal
Solicitor for the defendant: Rachel Bird & Co
Date of hearing: 24, 25 September, 2 October 2008
Date of judgment: 16 December 2008
Appendix A—Relevant legislation
Crimes Act 1900 (ACT)
55 Sexual intercourse with young person
(1)A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 17 years.
61 Acts of indecency with young people
(1)A person who commits an act of indecency on, or in the presence of, another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
Supreme Court Act 1933 (ACT)
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 shall 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 would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
8 Location of prescribed witness giving evidence
(1)If—
(a)a prescribed witness is to give evidence in a proceeding; and
(b)the courtroom and a place other than the courtroom are equipped with, and linked by, an audiovisual link that can allow—
(i)people in the courtroom to see and hear the people at the other place; and
(ii)people at the other place to hear, or to see and hear, people in the courtroom;
the evidence of the witness must be given from the other place using the audiovisual link unless the court otherwise orders.
9 Consequential orders
(1)If a prescribed witness is to give evidence from a place other than a courtroom in accordance with section 8 (1) (Location of prescribed witness giving evidence), the court may make the orders it considers appropriate in relation to the giving of evidence by the witness.
(2)An order under subsection (1) may specify—
(a)the people who may be present at the other place with the prescribed witness; and
(b)the people in the courtroom who are to be able to be heard, or to be seen and heard, by the witness and by the people with the witness; and
(c)the people in the courtroom who are not to be able to be heard, or to be seen and heard, by the witness and by the people with the witness; and
(d)the people in the courtroom who are to be able to see and hear the witness and the people with the witness; and
(e)the stages in the proceeding during which a specified part of the order is to have effect; and
(f)the method of operation of the audiovisual link.
10 Jury warning about adverse inference
If, in a proceeding mentioned in section 7 (a) (i) (Application—pt 2), a prescribed witness is to give evidence from a place other than the courtroom in accordance with section 8 (1) (Location of prescribed witness giving evidence), the judge must warn the jury to the effect that an inference adverse to the accused should not be drawn from the fact that the witness is giving evidence from the other place.
40 Prohibition of publication of complainant’s identity
(1) A person commits an offence if the person publishes, in relation to a sexual offence proceeding––
(a) the complainant’s name; or
(b) protected identity information about the complainant; or(c) a reference or allusion that discloses the complainant’s identity; or
(d) a reference or allusion from which the complainant’s identity might reasonably be inferred.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) It is a defence to a prosecution for an offence against this section if the person establishes that the complainant consented to the publication before the publication happened.
(3) An offence against this section is a strict liability offence.
(4) In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
70 Comments on children’s evidence
If evidence is given by a child in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses.
Evidence Act 1995 (Cwth)
13Competence: lack of capacity
(1)A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.
(2)A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:
(a)the court is satisfied that the person understands the difference between the truth and a lie; and
(b)the court tells the person that it is important to tell the truth; and
(c)the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.
164Corroboration requirements abolished
(1)It is not necessary that evidence on which a party relies be corroborated.
(2)Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.
(3)Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:
(a)warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
(b)give a direction relating to the absence of corroboration.
165Unreliable evidence
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;
(b)identification evidence;
(c)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d)evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e)evidence given in a criminal proceeding by a witness who is a prison informer;
(f)oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;
(g)in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2)If there is a jury and a party so requests, the judge is to:
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.