The Queen v Augusto Tamayo-del Solar [No 2]
[2013] ACTSC 4
THE QUEEN v AUGUSTO TAMAYO-DEL SOLAR [No 2]
[2013] ACTSC 4 (15 January 2013)
CRIMINAL LAW – jurisdiction, practice and procedure – trial by judge alone – offence of act of indecency with young person – no question of principle – accused is guilty.
Evidence Act 1995 (Cth)
Evidence Act 2011 (ACT), s 165
Evidence (Miscellaneous Provisions) Act 1991 (ACT), div 4.2B, ss 40, 41, 71
Supreme Court Act 1933 (ACT), s 68
Fleming v The Queen (1998) 197 CLR 250
Harkin (1989) 38 A Crim R 296
R v Court [1989] AC 28
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
R v Zuber (2010) 175 ACTR 1
Stringer (2000) 116 A Crim R 198
No. SCC 150 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 15 January 2013
IN THE SUPREME COURT OF THE )
) No. SCC 150 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
AUGUSTO TAMAYO-DEL SOLAR
ORDER
Judge: Refshauge J
Date: 15 January 2013
Place: Canberra
THE COURT ORDERS THAT:
Augusto Tamayo-del Solar is guilty of the offence that, on 22 February 2009 at Canberra, he committed an act of indecency upon a person under the age of 16 years.
IN THE SUPREME COURT OF THE )
) No. SCC 150 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
AUGUSTO TAMAYO-DEL SOLAR
Judge: Refshauge J
Date: 15 January 2013
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
On 22 February 2009, the accused, Augusto Tamayo-del Solar, drove a young girl then aged 11 years, who is the complainant in the proceedings before the Court and whom I will call “IF”, to a fast food restaurant in Gungahlin. On the way there,
IF says that Mr Tamayo-del Solar touched her on the leg, placing his fingers inside her shorts and underwear for a short period. She says that, although the fingers did not go into her vagina, they went very close to it.
As a result of a complaint by IF, to her sister and subsequently to police, Mr Tamayo-del Solar was arrested and charged with committing an act of indecency on IF, who was then under the age of 16 years. He pleaded not guilty.
On 18 April 2010, he was committed for trial to this Court. On 25 November 2010, he signed an election under s 68B of the Supreme Court Act 1933 (ACT), for trial by judge alone.
On 17 December 2010, Mr Tamayo-del Solar was arraigned and pleaded not guilty to a count on the indictment that charged him that “on the 22nd day of February 2009 at Canberra in the Australian Capital Territory [he] committed an act of indecency upon a person under the age of 16 years, namely [IF]”.
Because of IF’s age, a pre-trial hearing was listed for 8 February 2011. This was conducted by Teague AJ under div 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act). Included in that hearing, under div 4.2A of the same Act, was the audiovisual recording of the interview IF had with police officers. Given the terms of the relevant statutory provisions, especially
ss 40F and 40G, it appears to me that the evidence was admissible despite being taken before a different judge. No objection was taken to that fact.
Ms T Warwick, who appeared for Mr Tamayo-del Solar, did, however, object to the admissibility of the evidence on another ground, namely that the Miscellaneous Provisions Act is inconsistent with the Evidence Act 1995 (Cth) which was the applicable law at the time.
I had ruled in R v Zuber (2010) 175 ACTR 1 at 10–14; [62]–[91], that this objection was not sustainable. I rejected that challenge in this case for the same reasons.
The trial commenced on 20 June 2011.
Trial by judge alone
Under s 68C of the Supreme Court Act, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the Court in such a case must include the principles of law that I, as the judge of the law, apply and the findings of fact on which I, as the judge of the facts, rely. In Fleming v The Queen (1998) 197 CLR 250 at 262–3; [28] the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.
General Directions
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]; R v Mulcahy [2010] ACTSC 98 at [13]–[24].
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The Onus of Proof
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence, unless the evidence which I accept satisfies me beyond reasonable doubt of his or her guilt.
The Presumption of Innocence
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
Reliability, Facts and Inferences
I must determine whether each of the witnesses is a reliable witness, that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.
It is essential that where I am required to draw inferences, the evidence from which I am to draw them is examined with care and assessed as reliable before drawing conclusions from the facts established by it. In order to draw any such inferences, I must be satisfied that the facts are established from which I can draw the inferences and that I can draw the inferences from them and not merely speculate or engage in conjecture in arriving at them. They must, also, be the only conclusion in each case which, in my view, can be drawn beyond reasonable doubt. If there is more than one inference than that for which the prosecution contends, and that other inference or those other inferences are inconsistent with the accused’s guilt or consistent with his innocence, then the prosecution has obviously not proved its case beyond reasonable doubt.
The Audiovisual Recordings
In addition, I directed myself that the admission of the audiovisual recordings of both the interview between IF and the police and the evidence given by IF at the pre-trial hearing is a usual practice and that I, as the judge of the facts, must not draw any inference against Mr Tamayo-del Solar or given the evidence more or less weight because it was given in this way.
The trial
At the trial, the following witnesses were called and gave evidence:
(i) the complainant, IF;
(ii) the father of the complainant;
(iii) Detective Senior Constable Rachel Batterham; and
(iv) the accused, Augusto Ricardo Tamayo-del Solar.
The following items were admitted as exhibits:
(a) emails sent between the complainant and the accused;
(b) photographs of the complainant and the accused;
(c) DVDs containing the audiovisual recording of the pre-trial hearing; and
(d) one DVD containing the audiovisual recording of IF’s interview with police.
I also had reference to transcripts of exhibits (c) and (d).
The Evidence
In general terms, apart from the facts of the actual incident, there was not much dispute as to the course of events that surrounded the incident alleged to be the subject of the charge.
Facts Relating to the Surrounding Circumstances
As a result, I can make the following findings as to those facts.
IF was born in November 1997. She has one older sister.
Mr Tamayo-del Solar and the father of IF were members of the Freemasons Order and met at various functions. Mr Tamayo-del Solar was the Senior Warden of the Freemasons Lodge and was involved in some of its activities. In particular, he was involved in a project called “Sailability” in which the Masons would take handicapped people sailing as, it appears, recreation and capacity building.
Mr Tamayo-del Solar was also a musician, playing the guitar, and he was involved in a band that played regularly at functions put on by the Masons. At times they would practice in his garage and he issued an open invitation to fellow Masons and their families and friends to come and watch band practice.
On a date sometime before Christmas 2008, the IF’s father took her to see one such band practice. This appears to be the first occasion that IF met Mr Tamayo-del Solar. The complainant’s father did take his daughters to various functions and Mr Tamayo-del Solar had seen her at such functions.
There seems to have been some “social chat” when the complainant’s father and IF arrived and IF says she did talk to him and met his family. Mr Tamayo-del Solar, on this occasion, showed the complainant’s father some Japanese artefacts he owned.
The next occasion when IF said she met Mr Tamayo-del Solar was at a Christmas party on a boat sailing on Lake Burley Griffin which she attended with her family. Mr Tamayo-del Solar was playing in the band. The boat had an upper deck and a lower deck. The band was on the lower deck and IF and her family were on the upper deck. She and Mr Tamayo-del Solar did not speak on that occasion.
In 2009, the Masons held a Valentine’s Day Party at the Queanbeyan Masonic Centre, presumably in mid February. Again, Mr Tamayo-del Solar and his band provided entertainment. IF and her family, other than her mother, were there. Her father at one stage moved from their table to talk to other guests; IF and her sister remained. Later, IF’s sister also left the table to talk to some people her own age.
Sometime during the function, Mr Tamayo-del Solar came over to the table. There was some dispute as to whether IF’s father was then present. I do not need to resolve that. Mr Tamayo-del Solar spoke to IF. Certainly, at some stage, they were speaking alone together.
During the conversation, Mr Tamayo-del Solar talked to IF about sailing. This appears to have been in the context of IF possibly helping with the Sailability project but first doing some sailing. She expressed an interest, saying it sounded like fun, so long as her father would agree. Mr Tamayo-del Solar suggested she ask her father for permission to go. He asked her for her email address so that he could send her some information about sailing and she gave it to him and he gave her his email address as well.
IF did ask her father and he agreed that she could go sailing in about two weeks time, on 22 February 2009. There was some telephone conversations and some conversations in person between Mr Tamayo-del Solar and IF’s father about this arrangement and also some emails were exchanged between them.
In the morning of 22 February 2009, Mr Tamayo-del Solar arrived at the house of IF’s family in a Belconnen suburb to collect her. She farewelled her father and they got into Mr Tamayo-del Solar’s car and drove to Lake Tuggeranong. IF had with her a pink Supre bag containing some money her father had, at Mr Tamayo-del Solar’s request, given her for her lunch, her mobile phone and a jumper. She put the bag on her lap.
On the way to the lake, they spoke about school and that IF would be going to High School the next year. IF also talked about going on an overnight camp with the school and how she was afraid of heights and did not want to go on the flying fox. There was some discussion of music and perhaps IF learning Spanish; Mr Tamayo-del Solar taught Spanish at the University of Canberra.
They found no-one at the lake when they arrived and it turned out that the lake had been closed because of the presence of blue-green algae. They had a brief look around at where the sail boats were launched and Mr Tamayo-del Solar suggested that he take a photograph of the two of them. IF was not keen but acquiesced and Mr Tamayo-del Solar set the camera in a tree on delayed action and stood beside IF. The photograph was tendered.
Mr Tamayo-del Solar then asked IF if she was hungry and she said she was and thus agreed to go to a McDonald’s Restaurant for lunch. At no time did Mr Tamayo-del Solar contact IF’s parents to explain that the approved outing could no longer take place and seek permission to go elsewhere. That seems to me at least odd and corroborative of what might be seen as his wish to have her alone with him.
Mr Tamayo-del Solar says that they went first to an adventure playground in Gungahlin where there was a flying fox but that IF showed no interest in it so they did not get out. Mr Tamayo-del Solar was a little unclear about when this happened, suggesting at first that it was on the way back from Lake Tuggeranong and before or after going to Hungry Jacks, which he later corrected to McDonalds. IF did not remember this at all.
It was, however, on the way to McDonalds that IF says the incident, the subject of the charge, occurred. I shall deal with that later.
They arrived at the Gungahlin McDonald’s Restaurant and bought lunch. Mr Tamayo-del Solar paid as, he said, since the sailing had had to be cancelled he should treat IF. While there, IF gave him her phone number and he gave her his number which she put into her phone.
When they finished and got into the car, they discussed where to go. Mr Tamayo-del Solar suggested that they might go to the National Museum or to the Telstra Tower. Neither suggestion appealed to IF. She said she liked computers. He then suggested they might go to his office at the University and she agreed.
Mr Tamayo-del Solar drove to the University of Canberra and parked. They got out and went to his office. There was some disagreement between the evidence of IF and Mr Tamayo-del Solar as to how they got there; I will deal with that below. When she got into his office, IF said that she like to play computer games.
It was quite a small office and was described as messy. It was quite narrow, with two full-sized tables and a smaller table at the door. There were two computers, a Windows operated Dell computer and an Apple Mac with a digitalised converter next to it. There were three chairs, two at the entrance and one at the desk with the computers.
Mr Tamayo-del Solar sat at his desk to turn on the computer and showed IF some short videos and cartoons. IF then showed him some games on an internet site.
IF was sitting on one of the other chairs but Mr Tamayo-del Solar wanted her to sit on his lap, even though she could see the computer screen from where she was. She did, however, sit on his lap while watching some of the videos. She said she would rather not sit on his lap and he said “That’s alright” and she said she would stand, but he told her to move the chair closer which she did and they continued to play games.
IF said that Mr Tamayo-del Solar then told her to come back and sit with him and that he took her arm and put her on his lap so she just stayed there. Mr Tamayo-del Solar said that that did not happen.
At some stage, he showed her his guitar and took some photos, one of which was tendered showing her next to him, both of them smiling. He then gave her a small toy, a panda in a decorated paper bag.
At some point, Mr Tamayo-del Solar asked her whether she was hungry and whether she would like some icecream. She said that she would, so they left the University and went to Hungry Jacks where he ordered two “storms” which they ate. They then drove to IF’s home. Her father described her as “very, very quiet and sullen”, thinking “this is not like her”.
At her home, Mr Tamayo-del Solar was taken by her father to see his collection of Japanese items and he left shortly after that.
Mr Tamayo-del Solar sent some emails to IF after the Valentine’s Day party and continuing after the excursion on 22 February. Her email address was “[IF]ˍcoolˍstar@[ISP].com.”
The first email was in relatively formal terms: the salutation was simply “Hi” and he signed off “I look forward to your reply, Augusto”.
The email, however, had another oddity for it referred to the lake being closed “this Sunday”. It was sent at 12.42 am on Sunday 15 February, making it clear that he likely had advanced notice of lake closures. He also said that “[n]ext Sunday, even if it is closed, if you like, you can come and have a look” but there was no other intimation, even to IF’s father, of that possibility or option.
The emails he sent became, however, increasingly affectionate, perhaps intimate. The second one, the next day, for instance, addressed her by name and then said “You are a star and I am a star that is so cool!” and he signed off “XOXO Augusto”.
Three days later, after three further emails, he was writing “Thank you for inviting me to your MSN, I look forward to our chats. COOL” and signing off “Bye for now my shinning [sic] star xOxoXoXO Augusto”.
To that, IF replied, signing off “BYE for now!! ... Uncle GUs [sic] XOxoxOxOXOxoXO LOve [sic] from [IF]”.
On the night before they went sailing, he was writing, calling her “Dearest [IF] It was wonderful chatting with you last night, it felt so nice. YES! I could chat with you ALL & ” [presumably day and night]. He signed off “Love you xoXoxOXXXooOOX Augusto”.
After the outing, he messaged her, addressing her as “My dearest [IF]”. He messaged “Thank you for a wonderfull [sic] day. I enjoyed your company VERY MUCH you are adorable”. He signed off “all my love xOXoxoXoX. Augusto”.
The next day he sent her a file and signed off “Love and kisses Augusto”.
A few minutes later he sent another file, signing off “MORE hugs and MORE kisses heheheheehe Augusto”.
On Wednesday 25 February 2009, apparently not having heard from her, he sent a message “Dear [IF], I am surprised you have been so silent lately. I hope you are well and will write to me soon. Bye for now xOXoxoXO Love from Augusto”.
IF did respond, messaging “i have just been so tired latly [sic]”. She signed off “XoxOXx oX LOve [sic] from [IF]”.
Another message on 27 February 2009 commenced “Dear [IF] VVEERRYY [sic] happy to hear from you”. It continued later “I haven’t EVEN had time to go to the games website you showed me. We will have to do it together again soon, so you can teach me a few more games and tricks. If I am awake (?!?!?!?) at 10 pm tonight, I will try to go to MSN and maybe we can chat for a few minutes. I miss our chats and YOU. I will send you a couple of the photographs we took last Sunday through my University email. I didn’t know you were so shy taking photos. I can’t believe it, because you are soooooooooo cute (I think so)”. He signed off “Bye for now Love from Augusto”.
On 7 March 2009, he sent a short message, “???? xoXoxOxO”.
On 13 March 2009, he sent a further message, the salutation of which was “My dearest cool star” and signing off “As always, heaps of love and kisses just for YOU Augusto XOxoxOxoXoX”.
On 19 March 2009, he sent an email message as follows: “My dearest hot cool sexy star, How was the trip???? Tell me ALLLLLLLLL about it love, hugs and kisses Augusto”.
Mr Tamayo-del Solar accepted that in the emails an “x” stands for or signifies a kiss and an “o” stands for or signifies a hug.
The Incident
The incident out of which the charge arose is said to have occurred while Mr Tamayo-del Solar and IF were driving from the lake to the McDonald’s Restaurant.
IF described it to police. At first, she said it happened when they were driving to Hungry Jacks. She said:
A25... Um, yeah, after the university we went to Hungry Jacks, and that’s when he went and touched me on the leg.
Q26Yep.
A26Do I have to explain that?
Q27Yeah, do you mind, because I wasn’t there, so I didn’t see what happened. Could you explain that for me?
A27Well, um, I was just sitting in the car and he was driving. And then, like, he left and just went down like that. And then he touched me on the leg. And, like, and his fingers just, like, went in my shorts kind of. And then I just put the bag over again so he couldn’t do that again. And then we just ate, um a storm at Hungry Jacks. And then he asked me if I would like to go home. And I said yes cause I didn’t feel comfortable.
Q28Mm.
A28And then I went home, yep.
Q29You went home. What happened when you got home?
A29Well, the next day I told my sister how it was weird there was something wrong with it. And, yeah, and then so she said, “Yes, there’s obviously something wrong with it,” And she told my dad. And here I am, yeah have you got the emails?
She later, however, corrected herself and said it happened as they were driving to McDonald’s Restaurant. She said to police:
Q170Okay. Now, you said before that his left hand touched your leg. Where were you both when this happened?
A170Um, in the car when he was driving.
Q171Okay. Where were you going to at that time?
A171That was – I think I was going to McDonald’s.
Q172Okay
A172Because after that I didn’t talk a lot.
Q173I see. So you think that happened in the car on the way to McDonald’s
A173Yep.
Q174And so with his left hand he touched your leg. And you said before – I can’t remember if you said that his hand was in your shorts?
A174Yep
Q175Tell me more about that part?
A175I hate that part. Um, ah, like, his, like, hand was there, then it was, like, going, his fingers were like, in my shorts.
Q176Okay. What shorts were you wearing that day?
A176Um, I don’t have them now. Um, it was red shorts with white stripes.
Q177Okay. And were you wearing any underwear that day?
A177Yeah. I always do.
Q178You said his fingers were in your shorts. What was he doing?
A178Um, he touched my underwear. But then I just took my bag and just went like that.
Q179Okay. I understand. He touched your underwear. How did he touch your underwear?
A179Like, his fingers were in my shorts ... (indistinct) ... just went like that. And then I – his fingers, like ... (indistinct) ... I just took the bag and put it there.
Q180Okay. So you put your bag on your lap?
A180Yeah.
Q181And then what happened next?
A181And then – and then he just kept driving. And then, um, I think it was, um, after the university or the way there, um, he – no, yeah, after university, we got back in the car, then he asked – he said, “Oh, you can put your bag in the back.” And then I said, um, “No, I’ll just keep it here.” And he’s, like, “No. Put it in the back.” And then he got it – like, he picked it up and was about to put it in the back, and I grabbed it back. And I said, “No. I want to keep it with me.” And he’s like, “All right then.”
At the pre-trial hearing, IF gave further evidence about this incident as follows:
Now when you were speaking to the police, I think there was a little bit of confusion about which thing went first. Well you’re clear about going to the lake first and then you went to the university at some stage. Is that right?---Yes.
And you also went to McDonald’s and you went to Hungry Jacks?---Yes
Okay and do you have a clearer memory about the order that that happened in?---Yes
Okay. What’s your memory?---Okay. So first it was going to the lake.
Yes?---And then going to, I think it was McDonald’s.---
And when you say - - -?---and then going---
Sorry, go on?---And then going to his office and then going to Hungry Jack’s and then home.
Okay. Now when you say you think you went to McDonald’s, you’re not quite sure?---I’m not sure if it’s either the uni first – no, okay. It was McDonald’s and the uni then Hungry Jack’s.
Okay and at what stage of that did he touch you? Do you remember if it was on the way to McDonald’s or on the way to Hungry Jack’s or on the way to the university?---It was on the way to McDonald’s.
Okay. So after the lake?---Yes.
Okay and before you went to the university?---Yes.
Okay. Now is that something you’re sure of? Because if you’re not, I don’t want you to give a - - -?---Yes.
She was, of course, cross-examined about the incident and the original assertion that it happened while they were driving to Hungry Jacks. She said she did not remember telling the police that it happened when they were driving to Hungry Jacks and, if she did, that was wrong. She said it happened “[a]s soon as I got into the car from the lake”.
She was also cross-examined about having her bag on her lap. Her evidence was that she got into the car and had it on her lap. She said Mr Tamayo-del Solar then told her to put it in the back and he tried to put it there. She rejected the suggestion that this did not happen.
She was shown portions of her interview with police in January 2010 and agreed that the hand movements she demonstrated as to how his hand had touched her showed her hand quite flat with the fingers straight and the palm down on the first portion of the video. On the second portion, she said that her fingers were slightly bent. After seeing the three excerpts, she agreed that what she demonstrated was that her hand was quite flat with the palm down and the fingers stretched out. She also demonstrated moving her bag from her left onto the centre of her lap.
She rejected the suggestion that Mr Tamayo-del Solar did not put his fingers under her shorts. She also disagreed that he was unable to put his fingers there because her bag was on her lap, adding “[b]ut it wasn’t completely on my lap”. In re-examination, she explained “It was – no, it was like to my side”.
She agreed that her bag was on her left side when he touched her. It was, she said, not a heavy bag.
She said the shorts were red with a white stripe. They were shorter than knee length. They were made of “normal material” not “stretchy material”. They were not right around her legs. She was again asked about whether it happened and she again rejected the suggestion that it did not.
IF said that when she returned home, she told her elder sister that it had been a “weird day”. She said she told her sister that Mr Tamayo-del Solar had touched her leg. She agreed that her sister had made a statement to police and it was put to her that she did not tell her sister that he had touched her leg and she disagreed. Her sister was not called to give evidence. No explanation was offered for that absence.
Mr Tamayo-del Solar said that he did not indecently touch IF. Indeed, he said:
Did you touch her at all?---I don’t recall touching her, however, I – how could I put it, sort of, within the way I am, I am likely to sort of have touched her shoulder or touched something when talking, because I have a tendency to touch people when I talk to them, it’s part of my culture.
That is clearly and strictly true, since both photographs show Mr Tamayo-del Solar touching IF at other times. Nevertheless, it might be said that this was in part affected by the context where he was being asked about the indecent touching.
Nevertheless, in cross-examination, he maintained a blanket denial of touching IF. The relevant portion of the cross-examination is as follows:
And you were asked if you touched her and you said, “No”?---I don’t recall. I didn’t say, “No.”
You said – well, you hypothesised. You said as part of your culture, you may have touched her on the shoulder or something along those lines because- - -?
---That’s correct.- - - your culture is such that you’re touchy when you’re talking? --- Correct.
But that’s blatantly wrong, isn’t it? There was significant contact between you and [IF] on that day?---No.
Yes, there was. There’s a photo of you hugging her on the lake edge?---here is.
Yes, there’s a photo of you hugging her in your office?---Holding her to be close for the photograph.
Right, and why would you need to hold her close for that photograph? Did she need holding, did she need keeping next to you?---It’s the manner in which I take pictures, generally. Sort of – no, putting my arm around people.
He later said, “There was absolutely nothing – nothing improper in putting my hand around her” when referring to the photograph in his office.
It was put directly that he tried to touch her indecently and he denied that.
The Complainant’s Evidence
Because, in effect, the complaint is uncorroborated, it seems to me, though it is not strictly mandated under s 165 of the Evidence Act 2011 (ACT), that I should scrutinise the evidence of IF carefully. That is not because she is, as a result of her age or the fact of being a child, likely to be an unreliable witness: s 165A of the Evidence Act.
Reference was also made about the delay in IF complaining about the incident. As to that, I note s 71 of the Miscellaneous Provisions Act, and direct myself that the delay in making complaint does not necessarily indicate that the complaint is false and that there may be good reasons why a victim of a sexual offence may not make or may hesitate in making, a complaint about the offence.
In this case, it was clear that IF was reluctant to talk about the incident, as noted at A26 of her police interview (at [71] above). She did not like talking about it as noted at A175 of that interview (at [72] above). These show a reason why she would delay making a complaint in any event.
The main challenge to her evidence was that she initially suggested the incident happened when she and Mr Tamayo-del Solar were driving to Hungry Jacks and not to the McDonald’s Restaurant.
She did, in fact, note this error, but she corrected it soon after, in the same interview as I have already noted (at [72] above). It was not as if she made a change to that some time later. Given that she was remembering what had happened some 12 months earlier, some brief error was not inconsistent with her telling the truth as to the incident itself. Indeed, at one point, Mr Tamayo-del Solar, himself, confused the two fast food outlets, as I noted above (at [42]).
There were a number of points at which IF’s evidence was different from that of Mr Tamayo-del Solar. These were not expressly referred to in submissions and they do not seem to me to reflect adversely on IF’s credibility, at least so far as the incident itself is concerned or that they were not really inconsistent.
For example, Mr Tamayo-del Solar suggested that, when he arrived to collect IF, the family puppy was “very excitable, jumped up.” He suggested the puppy ran out of the house before being collected by IF’s father and that it was “running all over the place and weeing on the floor”. IF said that the puppy was not excited. Her father did say that the puppy was in an excitable state and that it “[r]an outside just briefly”. This was, on the evidence of both men, however, before IF was called to the front door. As to whether the puppy was still excited at the time she arrived and whether, to her, his behaviour showed an excited state is at least uncertain. It is too slim a point on which to base an assessment adverse to her credibility.
Mr Tamayo-del Solar suggested that IF’s father was at the table where IF was sitting at the Valentine’s Day party when he came up to speak to her. She said he was not. Her father’s evidence supported IF’s version of events.
There were differences in IF’s description of going to Mr Tamayo-del Solar’s office at the University of Canberra. She said that initially his swipe card would not work and that someone let them in. She also said that they walked up some stairs. Mr Tamayo-del Solar denied both of these assertions. I am unable to resolve these differences. There are possible ways of making them consistent but neither counsel explored them. Having carefully considered the matter, I do not consider they adversely affect IF’s credibility.
Finally, Ms Warwick suggested that the description of the ways in which Mr Tamayo-del Solar, as described by IF, put his hand in her shorts was physically impossible or, at least, improbable. Having carefully considered all the evidence, I am not at all satisfied that this is physically so. In any event, while some questions were asked which may tangentially have raised this possibility, it was not put directly to IF that her description was of an impossible act, so I could not hear what she had to say about it.
I listened carefully to IF’s evidence and watched her give it. She was an impressive witness. She did not embellish her answers to questions and was clearly reluctant to speak about the incident itself. She was not shaken in cross-examination and there was no ambiguity in her evidence. I consider that she was making every genuine attempt to be truthful.
Mr Tamayo-del Solar’s evidence was comprehensive and detailed. He did, however, give some evidence that was argumentative and difficult to accept. His explanation for calling IF “sexy” in the last email was quite unconvincing. It seemed to me that he was aware of how damaging that succession of emails was as to how he saw the relationship between himself and IF and was trying to explain it away.
Similarly, the speed with which he rejected the suggestion he had touched IF during the day was inconsistent with even his own evidence about, for example, his having her on his lap at his office.
Having carefully scrutinised the evidence of IF carefully and considered all the evidence, I am satisfied that, where there is a conflict of evidence between that of Mr Tamayo-del Solar and of IF, I should prefer the evidence of IF, which I accept beyond reasonable doubt.
The offence
I am, therefore, satisfied that Mr Tamayo-del Solar put his left hand up the right leg of IF’s shorts and under her underwear near to but not in her vagina.
The elements of the offence are that:
1. Mr Tamayo-del Solar must have committed an act on or in the presence of IF;
2. that act must have been indecent; and
3. IF must have been under the age of 16 years.
If I am satisfied that Mr Tamayo-del Solar placed his hand inside IF’s shorts and underwear, that is clearly an act on IF sufficient to satisfy the first element.
Whether an act is indecent is to be assessed, as stated by Lord Ackner, with whom Lords Keith, Fraser and Griffith agreed, in R v Court [1989] AC 28 at 42, by reference to whether “right-minded persons would consider the conduct indecent or not”. This approach has been adopted in Australia in Harkin (1989) 38 A Crim R 296 and Stringer (2000) 116 A Crim R 198.
In my view, a person in the position of Mr Tamayo-del Solar putting his fingers under the underwear of a young girl in whose care her family have entrusted him on such an occasion as here occurred is clearly indecent.
There was no challenge to the fact that, at the time, IF was under the age of 16 years. I am affirmatively satisfied that she was.
Conclusion
Having accepted IF’s evidence, I am satisfied beyond reasonable doubt that Augusto Tamayo-del Solar committed an act of indecency on IF and, accordingly, will enter a verdict of guilty to that charge.
I certify that the preceding one-hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 15 January 2013
Counsel for the Crown: Mr S Drumgold
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Ms T Warwick
Solicitor for the accused: S & T Lawyers
Date of hearing: 20, 21 June 2011
Date of judgment: 15 January 2013
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