R v Wilson - [2008] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILSON
[2008] SADC 162
Reasons for Ruling of His Honour Judge Beazley
25 November 2008
CRIMINAL LAW
Defendant found guilty by verdict of the jury of two counts of unlawful sexual intercourse - the jury's verdicts of guilt may have been reached by different paths of reasoning - prosecution alleges that the victim was aged 13 years and 15 years respectively as at the dates of the offences - aggravating factors must be proved by the prosecution beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) ss 49(3) and 49(4), referred to.
R v W, GC (No 2) [2007] SASC 129; R v Olbrich (1999) 199 CLR 270; Cheung v R (2001) 209 CLR 1; R v W, GC [2007] HCA 58, considered.

R v WILSON
[2008] SADC 162
Introduction

On 16 September 2008 the jury found Gregory Colin Wilson (“the offender”) guilty of two counts of unlawful sexual intercourse with a child under the age of seventeen years, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (“the Act”).
There is a dispute as to the proper factual basis upon which the offender should be sentenced. As the trial Judge it is necessary for me to make findings of fact relevant to sentencing. Those findings must be consistent with the verdicts of the jury. It is appropriate that I set out in some detail my reasons for the findings of fact that I have made for the purpose of sentence.
Background
In the subject Information the Crown did not seek to specify the particular dates of the two offences. While the Crown case was that the two offences occurred on Christmas Day 1988 and 1990 respectively, it elected not to particularise those dates.
Instead the particulars in respect of the two counts on the Information each specified a broad period covering the victim’s age from 12 to 16 years inclusive. The victim was born on 30 May 1975, and turned 12 years on 30 May 1997 and 17 years on 30 May 1992.
Section 49(3) of the Act provides that it is a criminal offence for a person to have sexual intercourse with a person of or above the age of 12 years and under the age of 17 years.
In W, G C v R [2007] HCA 58 Hayne and Heydon J at [127], both referred to the principle expressed in Cheung v R[1] that counts on an information should be framed with all such specificity as to the time, place and circumstance as is possible and that “sexual offences against young persons may well provide examples of cases in which the criminality of an offender may be assessed differently according to the age of the victim”.
[1] (2001) 209 CR 1 at 10.
A previous trial on the subject charges[2], was the subject of an appeal to the Court of Criminal Appeal. At that time the Crown had submitted that “the offence involved two elements only; and that it was not necessary for it to prove that the respective counts of sexual intercourse took place at a particular location, nor on a particular date”.
[2] See R v W, GC (No 2) (2007) SASC 129.
The Court of Criminal Appeal concluded that while there may be circumstances in which there is a need to specify a particular date so as to avoid injustice, this was not such a case. The Court said that:
The Crown’s submissions on this topic should be accepted. The present case, did not give rise to circumstances that made the precise date a material particular and an element to be proved beyond reasonable doubt.[3]
[3] (2007) SASC 129 at [61].
The conduct of the trial
In the conduct of his defence, the offender did not dispute the two essential elements of each offence. That is he did not dispute that he had engaged in sexual intercourse with the victim on two occasions during the period charged, and secondly, that at the time of each event the victim was of or above the age of 12 years and below the age of 17 years.
The focus of the jury’s attention at the trial was upon the statutory defence in s 49(4) of the Act. That defence provides that an accused person who has sexual intercourse with a person under the age of 17 years is not guilty of the offence of unlawful sexual intercourse if the accused person proves three matters on the balance of probabilities. Those three matters were:
(i)that at the time of the fingering of the vagina in the count considered by the jury, the victim was of the age of 16 years but less than 17 years.
(ii)that the accused genuinely believed that the victim was aged 17 years or more.
(iii)that his genuine belief that she was then aged 17 years or more was based upon reasonable grounds.
The prosecution case was that the first count occurred when the victim was aged 13 years on Christmas Day 1988; while the second count occurred when the victim was aged 15 years on Christmas Day 1990. The prosecution called, as witnesses; the victim, her parents and the offender’s former partner.
The offender had given evidence at a previous trial, and by consent, that evidence was tendered in the subject trial. The offender again gave evidence on oath and was cross-examined. He called, as witnesses, his mother, and an independent witness Ben Cameron. His case was that the victim was at or above the age of 16 years. The offender said that two subject offences occurred about three months apart, and that the second offence had occurred in late 1991/early 1992. He maintained before the jury that he genuinely believed on reasonable grounds, albeit incorrectly as it turned out, that the victim was of or above the age of 17 years.
The jury’s verdicts
The jury’s verdicts decided the issues joined on the information. They clearly rejected the defence pursuant to s 49(4) of the Act. However, they did not decide, either expressly or by implication, all of the facts of possible relevance to sentencing. On the view most favourable to the accused the jury may have been satisfied on the balance of probabilities of all of the elements of the defence case save that it was not satisfied as to whether his genuine belief that the victim was then aged 17 years or more in respect of both counts was based on reasonable grounds. The jury’s verdict was however opaque. It may be that the jury was divided on factors otherwise relevant to sentencing.
There were alternative paths of reasoning which may have led the jury to reject the defence raised by the offender. It is possible that the jury saw no need at all to consider the dates of the offences nor the ages of the victim in light of the way the trial was conducted. It may have determined that the offender had failed to satisfy them of the statutory defence because the offenders belief could not have been made on reasonable grounds. I repeat the jury was considering the defendant’s claim to the statutory defence on the balance of probability. It was not strictly necessary for it to determine the age of the victim or the dates of the offences beyond reasonable doubt.
The jury’s verdict leaves open its findings as to the age or ages of the victim as at the date of the respective offences.
I have already referred to the view most favourable to the accused. If it did consider the ages of the victim, then other alternatives open to the jury were, inter alia:
(a)That the victim was aged 16 years at the date of each count, but that it did not accept that the offender genuinely believed that the victim was aged 17 years or over.
(b)That in respect of one or both counts, they were not satisfied as to precisely when the offence or offences took place, save that they were satisfied that one or both counts occurred prior to her 16^th birthday.
(c)That the victim’s version was accepted in its entirety – namely that she was aged 13 and 15 respectively as at the dates of the offences, to which she deposed, being Christmas Day in 1988 and 1990.
The legal principles
The High Court recently referred to the difficult task in deciding questions of aggravation or degree involved in assessing an offender’s culpability.[4]
[4] See R v Olbrich (1999) 199 CLR 270, Cheung v R (2001) 209 CLR at 1 and W, GC v R [2007] HCA 58.
In W, GC v R (2007) HCA 58, Crennan J said at [173]:
The appellant has not yet been sentenced. It is “commonplace” that the issues of guilt resolved by a jury may not include matters of “potential importance to an assessment of ... culpability”, which is the task of the sentencing judge. In assessing culpability, a sentencing judge resolves matters of fact and matters of aggravation or mitigation left unresolved by a verdict. In determining the basis for sentencing, a sentencing judge must make findings of fact beyond reasonable doubt. Where there are two routes to conviction, one of which involves more serious culpability than another and it is not possible for a sentencing judge to be satisfied that the jury must have reasoned to conviction by the route involving the greater degree of culpability, then an accused would be sentenced on the more favourable basis.
Hayne and Heydon JJ referred to the “opacity” of the jury’s verdict. At [138 - 140] their Honour’s said:
The guilty verdicts show no more than that the jurors who joined in the verdict agreed that the appellant had not established the defence upon which he sought to rely. The verdicts do not reveal which element or elements of that defence were found not to have been proved. It may well be that individual jurors reached different conclusions about the separate elements of the defence. In particular, individual jurors may have reached different conclusions about how old the complainant was at the time of the admitted intercourse. By the jury’s following different paths to the conclusion that a defence should be rejected will always be a possibility when a jury is required to consider a defence where the accused bears the burden of proving all of a number of separate elements. The jury’s verdict of guilt in such a case will always be opaque and may be sustained by different processes of reasoning. The unanimity that is required is in the jury’s verdict, not the reasoning that supports the verdict.
It may be accepted that the verdicts in the present case would leave the trial judge with a difficult fact-finding exercise in connection with sentencing. The principles to be applied in the fact-finding task were considered by this Court in R v Olbrich. The task in this case may well be as difficult as that presented in some cases of homicide where a verdict of manslaughter is returned.
In Cheung v R[5] Gleeson CJ, Gummow and Hayne JJ said at [7]:
It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict.
On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt.
[5] (2001) 209 CR 1 at 10.
With these principles in mind I now turn to the evidence presented to the jury.
The evidence
The Prosecution case
I do not propose to extensively detail the evidence before the jury. The victim was adamant that the offence, the subject of count 1, had occurred on Christmas Day 1988 in the spa at the offender’s home, at which time she was aged 13 years. She was equally adamant that the offence, in count 2, occurred on the offender’s boat on Christmas Day 1990, when she was aged 15 years.
I will return to her evidence shortly, however, she did not tell anyone about either event until she spoke in a general sense to her mother in 1994. Whatever was said to her mother at that time, it was clear that her father was unaware at that time of the second event on the boat. It was not until 2002 that she made a detailed statement to the police. At or about that time she sat down with her mother to reflect about the events which had occurred, on her account, in 1988 and 1990.
Only the victim and the accused could give direct evidence of the events of sexual intercourse. The other witnesses were unaware of the sexual intercourse allegations until many years later.
As to count 1 she said that she had gone “off the rails” in 1989, and she, with hindsight, ascribes her conduct in 1989 as having been caused by the events at the spa in count 1. She was quite specific about the clothes she wore, and described wearing a polka dot bikini. She described her body shape. No other witnesses referred to her clothing or body shape. She initially said that she could not recall other occasions of being in the spa, however when cross-examined she said she had been to the offender’s house on two Christmas Day occasions and tried to avoid the offender after the first offence. The victim’s mother and father gave evidence as to their recollections of the events in the spa. Although both were influenced by the victim’s memory of the year 1988, both recalled the events of that occasion – whatever year it was. They were clear that it occurred on a Christmas Day visit to the offender’s house. The fact it was Christmas Day, was the very reason for them being there. The victim’s father recalled in detail his observations of the accused and the victim in the spa. The victim did assert that after the first offence she had told her mother that thereafter she only wanted to see female doctors. Objectively, this was inconsistent with the medical clinic notes which indicated, to the contrary that she only saw male doctors in 1989. She was cross-examined about evidence that she had given at the previous trial. She had not been concerned about the offending conduct in the spa at the time, and that she had only raised it in 1994 in consequence of the family’s unrelated discussion about the offender at that later date. She denied reconstructing in her mind the dates of the offending to ex post facto explain her own conduct in 1989 and thereafter. She agreed that she had placed her hand down the bathers of the offender and touched his penis. The offender’s former partner said that she remembered quite a few occasions on Christmas Day when the victim and her family attended the offenders house around that time. She denied that the offender always went to Victor Harbor on Christmas Days. The victim’s mother gave evidence about the manner in which the victim had reflected upon the dates, when asked to provide a statement to the police in 2002. She conceded that the victim had been present at the offender’s home with her family on other occasions, including Christmas Days. She could not deny that there may have been an occasion in September/October 1991 that she may have been present with the victim at the offender’s home for a spa. She maintained that the event in count 1 had occurred on Christmas Day 1988.
The offender maintained that the conduct in count 1 had occurred in late 1991, a few months prior to the conduct in count 2. He referred to the conduct of the victim in touching his penis, which was inconsistent with her suggested age of 13 years. He said that he had been aware that she had been removed from Pembroke, which meant it had to be after the last term of 1990. He said that he had asked her age when they were in the spa, as her conduct was more like that of an adult. He said that she had said that she was aged 17 years. The victim denied that such a conversation ever took place. I find that the evidence of the offender as to that conversation was not credible. I am satisfied that the jury was not satisfied that the offender had any reasonable basis for believing that the victim was aged 17 years on either occasion in count 1 or count 2 on the information.
As to the occasion in count 2, the victim fixed upon Christmas Day 1990 because of the events then in her life including having been taken out of Pembroke School. She was also quite specific about the clothes she wore on this occasion. She described a black Indian skirt. She was cross-examined at length about the presence on the boat of the witness Ben Cameron and his family.
She could not recall him being on the boat. She agreed she had only been on the boat on one occasion. She denied that the event could not have occurred on Christmas Day 1990 because of the unfit state of the boat at that time; and the evidence of Mr Cameron, that the event had occurred in late 1991.
The objective and undisputed evidence was that the boat was purchased on 6 July 1990. Although the offender’s former partner could not remember the boat being unusable for any significant time, the overwhelming evidence was that it was purchased in a poor condition. She was unable to help as to the dates of either offence.
The victim’s mother said that she had been on the boat before the incident in count 2, and could not remember the boat being “unusable”. When cross-examined she said that “she would not put money on it being in 1990”. There was no doubt that her memory, of whether Ben Cameron had even been on board the boat, had been faulty. The victim’s father deposed to the fact that the boat, when purchased, needed a lot of restoration work. He was of the opinion that it took about eighteen months for the boat to be repaired, so that it was capable of use for sailing on the water or for entertainment.
The offender denied that the event in count 2 could have occurred in 1990. He referred to the purchase of the boat in July 1990, and that together with his now deceased stepfather, that he had worked on the boat for about 18 months before it was ready for any entertaining.
The offender admitted that the event the subject of count 1 had occurred in the spa at his house; and that the event the subject of count 2 had occurred on his boat. He denied that either event occurred on a Christmas Day, and said that the second event occurred in late 1991/early 1992; and the first count occurred a few months before.
Other witnesses called by the offender
The offender’s mother gave evidence tending to suggest that the offender always attended at her home in Victor Harbor on each Christmas Day. It was clear that she had difficulty in recalling events from that period approximately twenty years ago.
Ben Cameron, deposed to being on the boat on the only occasion the victim was on it. He was born on 30 April 1979. He would only have been aged 11 years in 1990. He said that his meeting with the victim occurred between October and December 1991 when he was aged 12. He was about to commence at Pembroke School in 1992. He was cross-examined about when it was that he had made the choice to go to Pembroke and it was suggested that he may have been wrong in his dates. It must be said that other witnesses had somewhat poor memories of Mr Cameron being on the boat. The prosecution witnesses had also given evidence at the previous trial, which highlighted those faulty memories. Mr Cameron was certain that it was not Christmas Day, and that the boat occasion occurred in late 1991.
Submissions

It is the submission of the prosecution that I ought find that the first count on the information occurred when the victim was aged 13½ years on 25 December 1988; and that the second count occurred when she was aged 15½ years on 25 December 1990. The consequence of the prosecution submissions is that the offender’s conduct in respect of each count involves an aggravating factor, namely, the young age of the victim in respect of each count. The prosecution therefore must establish such a factor of aggravation beyond reasonable doubt. In essence, the prosecution has submitted that because of the way in which the trial was conducted, the substantial issue was the honesty and reliability of the victim as to the dates of the offences.
The offender’s counsel Ms Fuller made detailed oral and written submissions.
Ultimately she submitted that I should find that the jury may have had a reasonable doubt as to the respective dates asserted by the Prosecution witnesses, and that accordingly I ought sentence the offender on the basis most favourable to him, namely that both offences occurred in late 1991 as asserted by the offender.
In making the findings hereafter I have considered the whole of the evidence. I have reminded myself that it is for the Prosecution to prove any aggravating factors beyond reasonable doubt. It is not for the offender to prove anything. Even if I were to conclude that the offender was generally an unsatisfactory witness, the onus remains on the Prosecution to prove these matters beyond reasonable doubt. It is not simply a case of preferring one case to the other.
Factual Findings
I have no doubt that the victim was a truthful witness in that she honestly believes that the offences occurred respectively on Christmas Day 1988 and Christmas Day 1990. Indeed, there was little dispute from the offender as to the accuracy of her evidence about the relevant acts of sexual intercourse, and the fact that they occurred respectively at the spa at the offender’s house in count 1, and on the boat in count 2.
In my opinion what is at issue is her reliability only as to the dates of the offences. It is hardly surprising that when she came to reflect upon the first offence, and with hindsight, she would have concluded that the first offence must have occurred when she was aged 13 years because it explains why she went off the rails in 1989. I directed the jury that it was necessary to consider the two offences separately. I approach my task by turning to the offending conduct in count 2. I do so because there was at least some independent evidence as to the date of that offence. In my opinion Mr Cameron was an impressive witness. There was no suggestion that he was anything but an independent witness. I did not find the offender to be a generally satisfactory witness. I give little weight to the evidence of the offender’s mother because of her age and very poor memory. The Prosecution evidence on its face was insufficient to satisfy me beyond reasonable doubt as to the date of the second offence because of the objective evidence of the purchase of the boat in July 1990 and its poor state. I have already referred to the evidence of the victim’s mother about her lack of certainty that the boat incident occurred in 1990; and that the victim’s father had not been made aware of the boat incident at the time he was told in 1994 about the spa incident.
In light of the evidence of Ben Cameron generally as to his presence on the boat in late 1991, and that of the offender and the victim’s father specifically about the unfit state of the boat, I cannot be satisfied beyond reasonable doubt that the second offence occurred as early as Christmas Day 1990. Indeed, although it might not strictly be necessary for me to so find, I am satisfied beyond reasonable doubt that the events giving rise to count 2 occurred in late 1991; at which time the victim was aged 16 years. I exclude as a reasonable possibility that count 2 occurred in early 1992. I do not need to reach a conclusion as to whether this event in count 2 occurred on Christmas Day 1991. In my opinion all of these findings are consistent with the verdict of the jury as to count 2.
At to the offence in count 1, there was no independent evidence as to the year in which it occurred. The victim’s parents identified an occasion on a Christmas Day when they recalled her being in the spa with the accused and that she had been drinking alcohol. They fixed the date as being in 1988. On any view there is the real possibility of an unwitting reconstruction as to the year fixed by them. They were not asked to reflect upon it until many years later, and they relied to a great extent upon the year ascribed by the victim. However, whatever year the event in count 1 occurred, the victim and her parents were all clear in their evidence that it occurred on a Christmas Day, involving celebratory drinking. I accept the evidence of the victim, her parents and in a limited sense that of the offender’s former partner as to their observations of what had occurred on that occasion. As I have said there was no real dispute as to what happened on this occasion save for the date. I accept that generally the very purpose for attending the offenders home was to catch up with the offender’s former partner on Christmas Day.
Ms Fuller, who appears for the offender, submitted that if I was not satisfied as to the honesty or reliability of the victim in respect of a count – in this case count 2 – then this should affect my assessment in respect of count 1. While I accept that submission in a general sense, it does not mean that I must reject all of her evidence. As I say the preponderance of the evidence is that the event in count 1 occurred on a Christmas Day.
The fact that the victim might be mistaken about the date and the year in count 2 does not mean that she is mistaken in all respects as to count 1. As I have already said I have no doubt as to her honesty, nor as to that of her parents. The difficulty again, however, that the victim was not asked to turn her mind to the date of the offending until at least 1994; and, in a detailed sense in 2002.
There are various factors that have caused me to doubt the reliability of the victim as to the year of the event in count 1. Firstly she did not cease seeing male doctors in 1989. Objectively the medical notes of the clinic make that clear. In light of my finding as to count 2, I cannot accept that there was a delay of almost 3 years between the incidents in the respective counts. The manner in which the second offence occurred is inconsistent with there being a great delay between them. It is also inconsistent with the victim deliberately avoiding the offender.
It had been submitted on behalf of the offender that the first incident occurred in September/October 1991, or alternatively as late as early 1992, and, that, at least, such a date could not be excluded by the prosecution as a reasonable possibility. I do exclude as a reasonable possibility that the second offence occurred in early 1992.
As I have said the preponderance of the evidence is that the first offence occurred on a Christmas Day. I am satisfied that the offending conduct occurred on the occasion identified by the victim and her father, but that they were mistaken as to the year in which the event occurred. If it occurred on a Christmas Day then the most favourable date for the offender, consistent with that latter finding would be Christmas Day 1990.
The question is whether I can be satisfied beyond reasonable doubt that the event in count 1 occurred on a Christmas Day.
Discussion and application of the principles
I repeat I have already said I have no doubt that the victim was a truthful witness who honestly believes the offending occurred on Christmas Day 1988, and 1990 respectively.
It is trite that truthful witnesses may, however, be unreliable in some respects. Much has happened in the life of the victim since 1989. In addition she was obliged to give evidence at two separate trials.
My task, however, in determining the findings of fact relevant to the sentencing is to arrive at any finding adverse to the offender only if it be established beyond reasonable doubt and is consistent with the verdict of the jury. For the above reasons, I cannot make those principal findings as sought by the prosecution, beyond reasonable doubt.
However this does not have the consequence that the Court must accept the version of the offender, simply because it is the version most favourable to him, when the acceptance of such a plea would be incongruous. See R v Olbrich, supra, at [24]. It would be incongruous if I sentenced the offender on the basis that count 1 occurred after 30 May 1991 if I were satisfied beyond reasonable doubt that it occurred on a Christmas Day prior to 1991.
It does not follow that because I have not been satisfied beyond reasonable doubt that the first offence occurred in 1988, that I must sentence the offender on the basis that it occurred in late 1991. I have considered this matter at length. I have taken into account, the clear evidence of the victim and her family as to count 1 having occurred on a Christmas Day. I have however considered my doubts as to the reliability of the victim and her parents as to the dates generally. There was of course no real dispute as to the evidence of the actual events given by the victim. All of the evidence with the exception of that of the offender and his mother points to the first offence having occurred in the spa on a Christmas Day. The evidence of the offender’s mother was of little assistance. I have of course taken into account the evidence of the offender, as well as weighing up the disadvantage to him of the delays which may have deprived him of the opportunity to obtain other evidence of his whereabouts on Christmas Day in any particular year. The evidence of the offender’s former partner and the victim’s mother do refer to occasions other than Christmas Day when the victim and her family attended at the offender’s house. It was of course not suggested to the offender that the first offence occurred on Christmas Day 1990, because it was the Crown case that the second offence occurred at that time. The offender gave evidence on oath that the first offence occurred only a few months before the second offence. If my finding was made beyond reasonable doubt that the first offence occurred on a Christmas Day, it would be incongruous if I had to sentence the offender on the basis that the first offence had occurred at a time later than Christmas Day 1990, namely in late 1991.
Ultimately and notwithstanding the clear evidence pointing to count 1 having occurred on a Christmas Day I cannot make that finding beyond reasonable doubt. The long delay which occurred before the offences were brought to the attention of the victim’s parents; my lack of satisfaction as to the date of the offence in count 2, which had also been said by the Prosecution witnesses to have occurred on a Christmas Day; and, the fact that there could not have been a significant delay between the offences, together mean that I have a reasonable doubt about the first offence having occurred on a Christmas Day. Accordingly I am left to sentence the offender on the basis that the first count occurred when the victim was aged 16 years in the second half of 1991. This finding in my opinion, is consistent with the verdict of the jury as to count 1.
I propose to sentence the offender on the basis most favourable to him in light of my findings, namely that the first offence occurred when the victim was aged 16 years and a few months in 1991, and that in respect of the second offence she was aged 16 years and 7 months in late 1991.
In my opinion these findings are consistent with the verdicts of the jury.