R v WILSON - [2010] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILSON
Criminal Trial by Judge Alone
[2010] SADC 47
Reasons for the Verdict of His Honour Judge Lovell
31 March 2010
CRIMINAL LAW
Trial by judge alone - accused charged with indecent assault of a child under the age of 12 years - accused found mentally unfit to stand trial - investigation into whether objective elements of the offence have been established.
Held: Objective elements found to have been established - accused declared liable to supervision.
Criminal Law Consolidation Act 1935 (SA) s 269M(5), s 269MB, s 269 MB(2), s 269B(4); Evidence Act 1929 (SA) s 34CB, referred to.
R v Seigneur [2009] SASC 59; CSR Ltd v Della Maddalena (2006) 224 ALR 1, discussed.

R v WILSON
[2010] SADC 47
Background

On the evening of 29 October 2001 it is alleged that the accused indecently assaulted MN a young boy aged 8 years.
The accused suffers from Alcohol Related Brain Injury complicated by numerous falls, injuries, assaults and epilepsy. Psychological evidence demonstrated that he was mentally unfit to stand trial and it was likely that his condition will not improve over the next 12 months. Indeed it is likely that his condition is permanent. The DPP conceded that he was unfit to stand trial.
Prior to the trial commencing I made an order pursuant to s 269M(5) of the Criminal Law Consolidation Act 1935 that the defendant was unfit to stand trial. I therefore continued the matter under s 269MB to determine whether or not the objective elements of the offence were established beyond a reasonable doubt.
Mr White counsel for the accused applied to have the matter heard as a trial by Judge alone. Pursuant to s 269B(4) of the Criminal Law Consolidation Act he was entitled to have that application heard without “statutory qualification”. The DPP did not oppose the application and accordingly I granted the application and the matter proceeded before me sitting without a jury.
The main witness for the prosecution was the complainant. His mother was also called and in most respects her evidence was consistent with the complainant. The statement of Andrew Donnelly, a forensic scientist, was tendered in addition to the video tape[1] of the original interview of the complainant as well as a transcript of the taped interview.[2]
[1] Exhibit P6.
[2] Exhibit P5.
In this matter the police were notified of the allegations the day following the event in question. The accused had a buccal swab taken from him on 20 October 2001. It is not clear from the evidence when the accused was arrested or first notified of the allegations. However I infer that it is likely to have been the day the buccal swab was taken; I do not think I can be satisfied of that beyond a reasonable doubt. I will therefore approach the matter on the basis that it is at least possible the accused was not arrested and told of the allegations on that day.
I have carefully considered the evidence of the complainant. I have viewed the video tape. I have borne in mind the directions I must give myself, which are discussed later, in this matter.
I am satisfied that the complainant was honest, truthful and reliable. In short he was an excellent witness. There were some errors in his evidence. I have not overlooked those matters and I will deal with them later in these reasons. The matters that were put to me by Mr White in his final address do not shake my confidence in the reliability and truthfulness of his evidence.
I acknowledge that reliance on the demeanour of a witness has been subject to judicial criticism in recent times.[3] Less emphasis has been given to the “advantage” a trial judge has in assessing witnesses. I bear those criticisms in mind.
[3] See CSR Ltd v Della Maddalena (2006) 224 ALR 1.
I have had regard to the demeanour of the complainant in coming to my assessment; I have done so as one part of my overall assessment of his evidence. There was a cogency about his evidence that carried with it reliability and truthfulness.
I also accept the evidence of his mother Ms N.
Directions
I remind myself that the accused comes to this court with the presumption of innocence in his favour. The law regards him as innocent of the charge unless and until each objective element of the offence is proved beyond a reasonable doubt. Given that it is conceded that the accused is not mentally fit to stand trial it is not a question of a finding of guilt or innocence. My task is to determine whether or not the objective elements of the offence charged are established beyond a reasonable doubt. If I am so satisfied I am to record a finding to that effect. If I am not so satisfied the accused is entitled to a verdict of not guilty and is to be discharged.
The trial was almost nine years after the alleged offending. It is likely that at least some of the delay related to the fact that an investigation was undertaken as to whether the accused was mentally fit to stand trial. However that cannot explain all of the delay.
Section 34CB of the Evidence Act 1929 governs the directions I must apply.[4] I can take into account, and do so, the forensic disadvantage suffered by the accused due to the delay. I must scrutinise the complainant’s evidence with care.
[4] R v Seigneur [2009] SASC 59.
I must be satisfied beyond reasonable doubt of the truth and accuracy of the evidence of the complainant in order to be satisfied of the objective elements of the offence. I must be satisfied of each objective element of the offence beyond reasonable doubt.
The Evidence of the Complainant
The complainant gave evidence by CCTV. He is currently 16 years of age and lives with his mother in Perth. In October 2001 he lived at Whyalla Stuart with his mother and then stepfather D. D and his mother separated in 2009.
The house at Whyalla had three bedrooms, one of which he used. Photographs of the house at Whyalla were tendered.[5]
[5] Exhibit P1.
The 29^th October 2001 was D’s birthday. People had come to the house to help celebrate. At the time of the alleged offending the complainant was aged 8 years.
The complainant M went to school on that day; when he returned home there were already a number of people at the premises. They had been drinking alcohol. His mother had been drinking as had D. There was an Aboriginal woman called Annia and her husband also at the premises. In addition the accused arrived at the home shortly after M had returned from school. All the adults appeared to be drunk including the accused.
M went to a friend’s place just around the corner to play and then came back a few hours later. Everyone was still there. He thought people had become more drunk.
Around the time that M arrived home another person called Moong arrived.
The accused, Moong and M went to a drive-through bottle shop at the Westlands Hotel about 7 pm and bought a cask of wine. They all arrived home and M went to his room to get ready to go to bed. He thought this was about 7.30 pm.
He showered and got into his bedclothes which were black tracksuit pants and a yellow T-shirt.
He eventually went to bed having watched television. He went into his room, and lay on his bed. At this stage the light was on and the door was open. In 2001 he always slept with the door open.
His mother had told him that the accused might end up sleeping on the spare bed in his room.
After turning off the light and going to sleep he was woken up by the accused and his mother getting a blanket for the accused. He went back to sleep and remembered waking up when the accused came into the room. At that stage he didn’t say anything to the accused as he was too tired.
He was awoken again this time by the accused who was touching him “under the bum”.[6]
[6] T 34.
M told the accused to go on the other bed and that is when the accused licked him on the bottom. At this stage his tracksuit pants were down to his knees. M then got up and went to the toilet and the accused told him that “If you tell anyone, I’ll kill you”.[7] He did see his mother when he went to the toilet but he was too scared to say anything.
[7] T 35.
M went back into the room and lay down on his bed. The accused came over to his bed and put his “dick” on M’s bottom.[8] This lasted for about three minutes and M didn’t say anything as he was too scared. The accused repeated “If you tell anyone I’ll kill you”.[9] At around that time the accused placed his hand on M’s penis. That lasted for about a minute. It is the act of placing his penis on the bottom of the complainant and the holding of his penis that the DPP relies on to constitute the offence.
[8] T 36.
[9] T 36, T 37.
Shortly after that M’s mother came into the bedroom. She turned the light on and at that stage the accused was sitting on the side of the bed. She started hitting the accused and then shouted out for D who then came into the room, grabbed the accused and dragged him outside.
M eventually went to sleep in the lounge room that night but did not say anything to his mother about what had happened in the bedroom. He said he still felt threatened by what the accused had said. He agreed that it was his mother’s idea to go to the police the next day.
Other witnesses
The complainant’s mother, Ms N, also gave evidence. In general terms she confirmed the complainant’s evidence about non-contentious matters. She confirmed that there was a party at their house, the fact that the accused was present and that there was heavy drinking going on. The adults were affected by alcohol.
She remembered taking clothes off the spare bed in M’s room. She confirmed that when she left the room the accused was present in the bedroom and that he was talking to the complainant. She continued talking to the other adults in the house. They continued drinking and eventually some of them went to bed.
Eventually her attention was drawn to the fact that her son’s bedroom door was shut.[10] That was not “usual” for the complainant. She got up to investigate and she could hear a voice saying “Don’t tell anyone, I’ll kill you”. She heard the accused say that. She pushed the door open and she saw the accused sitting alongside her son leaning over him as if he was sitting down “leaning over his girlfriend”.[11] “She rushed in and grabbed the accused, slapped him around a few times” and called for D; he came and dragged him out of the house.
[10] T 69.
[11] T 69.
She spoke to the complainant but he didn’t say anything about what had occurred in the bedroom.
Under cross-examination she conceded that what she had told the police about hearing a voice through the bedroom door was that she had only heard a voice say “Don’t you tell anyone”. She told me that the complainant had told her of the threat to kill.[12] She agreed under questioning from Mr White that she assumed something sexual had happened and that is why she called out for D and also why she attacked the accused. She agreed that she continually asked M whether anything had happened in the bedroom and she confirmed that he didn’t say anything that night. She agreed that she was the one who contacted the police to come around and speak to M the following day.
[12] T 73.
I generally accept her evidence. I bear in mind that she was considerably intoxicated at the time of the alleged offending and that no doubt has affected her memory to some extent. Where her evidence conflicts with the complainant, I prefer the evidence of the complainant.
Further I accept the complainant’s evidence that the accused threatened him.
Criticisms of the Prosecution case
Mr White submitted that the evidence of the complainant's mother of finding the accused standing at or near the bed when she entered the bedroom was equivocal. He pointed to the fact that there was some evidence that the complainant and the accused had at some stage been talking of the death of the complainant’s sister. Mr White submitted that the evidence was consistent with that interpretation namely in some way the accused was consoling the complainant. I reject that submission.
The complainant gave very clear evidence that the bedroom door was normally kept open when he went to sleep. He did not shut the door. I infer it must have been the accused. If the accused was simply consoling the complainant there was no need for the door to be shut. I have indicated that I accept that the accused threatened “to kill” M. Clearly that is inconsistent with the accused “consoling” M.
It was further submitted by Mr White that the tape of the interview of the complainant showed that in some respects the complainant was led into making some of his allegations. I have viewed the tape and do not agree with that submission. There were also some criticisms of the complainant’s evidence where it was suggested that he was inconsistent. I agree that there were some inconsistencies but none of them gave me any concern about the truthfulness and reliability of his evidence.
Mr White’s cross-examination demonstrated that the complainant had initially told the police that the accused had placed his penis “in” his bottom rather than, as now asserted, “on” his bottom. At the time he gave his evidence before me M had not seen the video or a copy of the transcription.
The transcript and video are capable of being interpreted as demonstrating an inconsistency. Given the age of the complainant at the time of the interview I am not convinced his evidence was inconsistent.
It is certainly not clear that the complainant, on the video, is using the term “in” as meaning actual anal intercourse. Whether the placing of the penis, for example, between the cheeks of the anus means it is “on” or “in” the anus was a topic not covered by the investigator. In other words the terms being used have never been defined. I do not mean that as a criticism of the investigator; the complainant was only 8 years of age at the time the allegations were made. Further, having established that M meant “on the bum” (Q33), it is the interviewing officer who reintroduces the concept of “in” (Qs 69 and 70). Interestingly M does not answer Qs 69 and 70. The interviewing officer continues the mistake at Q75 and again at Q122. His answer to Q123 has to be seen in light of the questions asked.
The complainant was clear in his evidence before me; the accused place his penis on the bottom of the complainant.
Even if I take the submission of the accused at its highest and assume it is an inconsistency, such an inconsistency given the age of the complainant at the time does not now make me doubt the truthfulness and reliability of the complainant.
Mr White also submitted that the complainant may have unconsciously made up the allegations due to his mother's continual questioning of him as to what had happened in the bedroom. In the alternative he has made up the allegations because of the behaviour of his mother. In affect he was “pressured” into complaining to the police by his mother who had assumed something sexual had occurred and kept “asking him about it”.
I reject that submission. I remind myself that rejecting the suggestion of the “motive” to lie does not mean that the complainant is therefore a truthful witness. The absence of a motive to lie does not strengthen the prosecution case. It is neutral. It is not for the accused to provide a motive to lie. I remind myself that the onus is at all times on the prosecution to prove the objective elements beyond a reasonable doubt.
Mr White pointed out that there was no support for the complainant’s version of events in the “forensic evidence”. That is correct. However given the allegations made by the complainant it is hardly surprising that “nothing was found”. The forensic evidence was equivocal.
Mr White submitted that there was an inconsistency in the evidence between the complainant and his mother relating to the topic of the precise positioning of the defendant at the time Ms N opened the bedroom door. Their evidence is different but consistent with the fact that the accused was close to the bed of the complainant at the time the door was opened. The inconsistency given the age of the complainant, the intoxication of Ms N and the fact that the event was a fluid rather than a static one, is of little weight.
I have taken into account the submissions of Mr White. In my opinion none of the criticisms taken either individually or together make me doubt the reliability and truthfulness of the evidence of the complainant.
Law
Elements of Indecent Assault
The offence of indecent assault consists of three essential elements, each of which must be proved by the prosecution beyond reasonable doubt.
The first element is that the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient.
The application of force or violence must be unlawful, that is, without lawful justification or excuse.
The second element is that the assault must be accompanied by, or occur in, circumstances of indecency. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
The third element is that the prosecution must prove that the complainant was under the age of 12 at the time of the offence.
The Crown must prove each of these elements beyond reasonable doubt.
Conclusion
I have accepted the evidence of the complainant as truthful and reliable. I find that the accused placed his penis on the bottom of the complainant and put his hand on the complainant’s penis. I find there was a touching in circumstances of indecency. The complainant was under the age of 12 years at the time of the offending.
There can be no doubt that the objective elements of the offence of indecent assault have been proved beyond reasonable doubt. I record that finding pursuant to s 269MB(2). I therefore declare the defendant to be liable to supervision under Part 8A of the Criminal Law Consolidation Act.