The Queen v Ercumert Gencay
[2002] ACTSC 114
THE QUEEN v ERCUMERT GENCAY [2002] ACTSC 114 (12 NOVEMBER 2002)
CATCHWORDS
CRIMINAL LAW – acts of indecency – s 60 Crimes Act 1900 (ACT).
CRIMINAL LAW & PROCEDURE - trial by judge alone – warnings – separate consideration of offences.
CRIMINAL LAW & PROCEDURE – unrepresented accused – duty to inform accused of rights.
CRIMINAL LAW – evidence – identity evidence – warnings.
Supreme Court Act 1933 (ACT), s 68C
Crimes Act 1900 (ACT), ss 24, 58, 60
Evidence Act 1995 (Cth), ss 57, 115, 137, 189
MacPherson v The Queen (1981) 147 CLR 512
R v Anastasiou (1991) 21 NSWLR 394
Papakosmas v The Queen (1999) 196 CLR 297
Festa v The Queen (2001) 76 ALJR 291
Domican v The Queen (1992) 173 CLR 555
No. SCC 208 of 2001
Judge: Gray J
Supreme Court of the ACT
Date: 12 November 2002
IN THE SUPREME COURT OF THE )
) No. SCC 208 of 2001
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
ERCUMERT GENCAY
ORDER
Judge: Gray J
Date: 12 November 2002
Place: Canberra
THE COURT FINDS THAT the accused is guilty of count 1 in the indictment.
THE COURT FURTHER FINDS THAT the accused is not guilty of count 2 in the indictment.
THE COURT FURTHER FINDS THAT the accused is not guilty of count 3 in the indictment.
THE COURT FURTHER FINDS THAT the accused is not guilty of count 4 in the indictment.
THE COURT FURTHER FINDS THAT the accused is not guilty of count 5 in the indictment.
The Charges
The accused was arraigned before me on five counts. The indictment charged:
“1.… THAT on the 15th day of September 2001 at Canberra in the Australian Capital Territory Ercumert Gencay committed an act of indecency in the presence of [the first complainant], without her consent, knowing that she had not consented or being reckless as to whether she consented to the commission of the act of indecency.
2.AND FURTHER THAT on the 23rd day of October 2001 at Canberra aforesaid Ercumert Gencay committed an act of indecency in the presence of [the second complainant], without her consent, knowing that she had not consented or being reckless as to whether she consented to the commission of the act of indecency.
3.AND FURTHER THAT on the 24th day of October 2001 at Canberra aforesaid Ercumert Gencay inflicted actual bodily harm upon [the third complainant] with intent to commit an act of indecency upon her.
4.AND FURTHER THAT on the 24th day of October 2001 at Canberra aforesaid Ercumert Gencay committed an act of indecency upon [the third complainant], without her consent, knowing that she had not consented or being reckless as to whether she consented to the commission of the act of indecency.
5.AND FURTHER THAT on the 24th day of October 2001 at Canberra aforesaid Ercumert Gencay assaulted [the third complainant] occasioning to her actual bodily harm.”
The accused pleaded not guilty to each count. A copy of the indictment containing the name of the complainants is attached as an appendix.
The accused
The accused is unrepresented. That presents particular difficulties. The accused elected, after receiving advice from a solicitor, to be tried by judge alone, but otherwise has refused legal representation. His obstinacy in that regard seems to be part of the circumstances which caused him to be referred to the Mental Health Tribunal. However, the Tribunal on 27 June 2002 (by a majority) determined that he is fit to plead. Because the accused is unrepresented, it is my duty to give the accused such advice and explanation as is necessary for a fair trial (MacPherson v The Queen (1981) 147 CLR 512 at 524, 534, 547). I have the duty to tell the accused of his rights but not how to exercise them (R v Anastasiou (1991) 21 NSWLR 394). During the course of the trial, I advised the accused of his rights in relation to objections to evidence and cross-examination of witnesses. The accused did not, in fact, cross-examine any witness.
Trial by Judge alone
I proceed in this matter in accordance with the terms of s 68C of the Supreme Court Act 1933 (ACT),
“(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 law of the Territory 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.”
General directions
Sitting as judge alone, I must include in my judgment the principles of law that I apply. Accordingly, I have directed myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict only according to the evidence which I rule as admissible.
Burden of Proof
I have reminded myself that the burden of proving the charges lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the prosecution that has to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
Presumption of Innocence
The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes his guilt. I have regard to the burden of proof that lies upon the prosecution. I may only find the accused guilty if I am satisfied that the prosecution has proved each and every element of the charges beyond reasonable doubt. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of these charges, or I am unsure where the truth lies then, in those circumstances, I must find that the charges have not been proved to the level of satisfaction required by the law and must acquit.
Because of the nature of the charges and the evidence given in respect of them, I give consideration to, and take into account, the applicable law and certain principles and warnings relevant to the particular charges.
The accused did not give evidence, nor, as I have earlier mentioned, did he cross-examine any of the witnesses. He did seem concerned that the court be informed that he had voluntarily given a buccal swab and that the result of the forensic tests undertaken showed that no DNA sample traces were found on the one item that was forensically examined. The accused did not call or give evidence himself. He declined to address me on the evidence. His not giving evidence is not evidence against him, nor does it constitute any admission. It does nothing to establish the case against him, but it also does nothing to explain, rebut or contradict the evidence presented against him.
The offences charged
Section 60(1) of the Crimes Act 1900 (ACT) provides:
“A person who commits an act of indecency upon, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”
The accused is charged with this offence in respect of each of the complainants.
The elements of the offences
For these offences to be proven, the accused must have committed an act of indecency in the presence of the complainant. The word “indecent” is an ordinary word in the English language and I must find the facts and decide whether that which I have found amounts to an act of indecency. There is no requirement for an assault to accompany an act of indecency. In this case, the exposure of a penis and masturbation as alleged as the act which constituted the first two counts and would clearly constitute such an act. The issue is whether it was the accused who performed those acts.
Section 58 of the Crimes Act 1900 (ACT) provides:
“A person who inflicts actual bodily harm upon another person with intent to commit an act of indecency upon, or in the presence of, that other person, or a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 12 years.”
The accused is charged with this offence in respect of the third complainant.
I must be satisfied that there is an intentional infliction of actual bodily harm on the person of another, and that the intention to do so was accompanied by an act of indecency upon that person. Again, in the unchallenged circumstances of the incident deposed to by the third complainant, I can be satisfied that the offence has been made out but the issue is whether it was the accused who perpetrated it.
There is a further charge pursuant to s 24 of the Crimes Act 1900 (ACT). That section provides:
“A person who assaults another person and thereby occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”
If there was a reasonable doubt as to the intent to commit an act of indecency accompanying the infliction of the actual bodily harm charged, then the prosecution submitted that I could consider whether this charge had been made out. There is no such suggestion in the evidence and, accordingly, I do not need to consider this alternative.
Separate consideration
I must give separate consideration to each of the counts on the indictment. It would be quite wrong to say that because I find the accused guilty or not guilty on one of the counts, he must be guilty or not guilty, as the case may be, of the others. I consider each count separately in light of the evidence that applies to it.
Identification
A significant issue in respect of each of the counts is identity. Each complainant could give a general description of the alleged offender, each participated in a police conducted photo-board identification. The admissibility of such evidence is regulated by the Evidence Act 1995 (Cth) and is referred to in s 115 as “picture identification evidence”. In the cases involving the first and third complainants, there was other circumstantial material upon which the prosecution sought to rely but it was conceded that identification was the principal issue with respect to the second complainant.
The question of the admissibility of the identification evidence, therefore, was a real question to be determined in respect of cases concerning each of the complainants. I considered that these circumstances made it incumbent upon me to protect the accused’s right to a voir dire (see MacPherson v The Queen (supra)) per Brennan J at 546. The prosecution were reluctant to have the complainants potentially called twice to give their evidence and I understand that reluctance. However, for the accused to have a fair trial (and this being a trial by judge alone) I considered that I should treat the evidence given by each of the complainants as to identification as if it were given on the voir dire (a procedure which could be sanctioned by a combination of ss 57 and 189 Evidence Act). I would then determine its admissibility according to the rules laid down in the Evidence Act and having regard to the general discretion provided for in s 137 of that Act.
The identification evidence of the second complainant
However, in the case of the second complainant it was clear that if the identification evidence was not admitted, there was no other real evidence implicating the accused if that charge was considered, as I am obliged to, separately from the other charges.
Accordingly, by way of voir dire, I entertained evidence by way of video of the identification procedure that took place with this complainant. Having seen the identification procedure, the complainant’s first identification of a photo other than that of the accused and her conclusion that she was 50-70% certain that the photo of the accused that she identified was the offender, I entertained real doubts about its probative value as identification evidence. In Papakosmas v The Queen (1999) 196 CLR 297, McHugh J stated, at 323:
“Probative value is defined in the Dictionary of the Act as being ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. That assessment, of course, would necessarily involve considerations of reliability. ‘Probative value’ is an important consideration in the exercise of the powers conferred by ss 135 and 137.”
That would leave the evidence as probative only of resemblance. As to the danger of unfair prejudice, it may be said that as a judge I am alive to the risks and dangers of identification evidence but, equally, it is those very risks that may constitute the prejudice that I should not necessarily regard myself as immune from carrying out the function of a jury. In this case, the evidence that would be conclusive of the accused’s involvement is evidence that identifies him as the offender. Having regard to the warnings as to nature and reliability of such evidence, and an opinion of 50-70% certainty as is finally expressed, I would, in any event, be left with a reasonable doubt. In all the circumstances, I considered that if I had been sitting with a jury I would have ruled that I should refuse to admit the evidence in the exercise of my discretion under s 137 of the Evidence Act. I make the same ruling even though I am sitting as judge alone.
I add also that I did not think that there was any point in the prosecution supplementing the evidence by an in-court identification, bearing in mind that for most of this case no members of the public or persons unconnected with the investigation were present in Court. In my view, there could be no real value in such an identification in such circumstances.
The second count
Having made that ruling, the prosecution informed me that the second complainant would not be called. Accordingly, I acquitted the accused of the second count on the indictment.
The first count
Evidence was given by the first complainant, who was 16 years old at the time, of an incident at about 1.00 pm on 15 September 2001 as she was walking down La Perouse Street, Red Hill. As she approached the corner with Discovery Street, she saw a person come out of a gate near the corner. That gate provided entry to flats numbers 163-169 Discovery Street. The man started to masturbate in front of her. She described that person as medium height, aged late 20s, early 30s, with short dark hair, “not overly dark skin, nor an overly fair complexion”. She said the person was definitely wearing a horizontal striped shirt, the stripes were “not really thin, not really thick either, they were sort of in between… Strongish colours.” She said it was a polo shirt, short sleeved with a collar and maybe two buttons. She kept walking and returned to her home a block or so away. She rang the police. The police attended her home. At about 4.30 pm, the police door-knocked the units at 163-169 La Perouse Street. At No. 165 they spoke to the accused. Constable McKenzie described him as wearing “a polo T-shirt with horizontal stripe pattern”. Constable Kinton described “a light coloured polo shirt with a horizontal pattern across the shirt”. The accused declined an identification parade but the next day consented to the police taking a photograph of him at his unit for use in a photo-board.
On 3 October 2001, the first complainant was shown a video photo-board which, as far as admissibility was concerned, complied with the rules set out in s 115 of the Evidence Act. She first identified No. 4 as the person she thought it might be, then No. 7 (the photograph of the accused). She said those two “’cause I remember the guy looked really incredibly dodgy …”. She then thought that No. 7 looked a bit closer to her description because he looked older and had more hair. She was asked:
“Q – Okay, do you think you can identify the person involved in that incident on the fifteenth of the ninth that you described in your statement?
A – Yeah, I think it’s number seven, I’m not hundred percent sure but I think so.
Q – If you had to put a percentage figure on it?
A – Well, I’d choose number seven over any of the other ones, probably about eighty percent sure I think.”
Although there was no further elaboration elicited in her examination-in-chief, there was no cross-examination and I am prepared to accept that this witness was identifying the accused as the person involved in count one to the extent that she says. I recognise the dangers in such an identification having regard to the fact that the witness had the offender under observation for a very short time in circumstances where she was shocked at his actions and wished to get away as quickly as possible. It is also the case that although a witness is told that “the suspect may or may not be on the video”, the exercise is one to seek to identify the offender with the corresponding predisposition on the part of the witness to assist. There is, in this case, a time lapse of some three weeks after the incident which would also affect the quality of the identification and she, herself, said that she did not have a particularly clear image because of the time lapse. I was, however, impressed with the sincerity and honesty of the witness and the process by which the witness rationalised the resemblance so as to conclude that she identified the accused as the person who committed the offence. I have regard to “the propensity of incorrect evidence of identity, even given honestly and with assurance to involve mistakes leading to serious miscarriages of justice” and the tendency for such evidence to be given special weight especially in the minds of a jury (see Festa v The Queen (2001) 76ALJR 291 at 319 [166] per Kirby J). I take account of these matters in assessing this evidence. Nevertheless, I regard her evidence on this aspect as significantly probative.
As well, I have regard to another significant aspect, the location of the incident. The gate is the direct means of access to the accused’s unit and the first complainant saw the offender come out of it. Further, the accused was observed by the police officers as wearing a distinctive item of clothing described by the first complainant.
Conclusion as to Count 1
Having regard to the matters that I have set out, I am satisfied beyond reasonable doubt that it was the accused who acted in the manner deposed to by the complainant. I find him guilty in respect of count 1 in the indictment.
Counts 3, 4 and 5
The third complainant, a nurse, gave evidence that on 24 October 2001, she was walking to work at a nearby retirement home to commence her shift at 7.00 am. She saw a male running on the other side of the road near the Red Hill shops about 40 or 50 metres away. Those shops are near where the accused had a unit. She described the man as wearing a cream to white long-sleeved T-shirt and cream to white “cargo pants”. She described cargo pants as “like baggy pants, like jeans but without the pockets”. She turned off the road to cut through a park on her way to her workplace. She had a feeling, turned around and saw the man that she had observed running, standing a metre or so behind her. She described the man as having “dark brown, darkish coloured hair”. He had no shoes on. She described his height as about five foot eight and a half, five foot nine, between 21 and 30 years old of “solid type build” and the style of the hair was “curly, curly hair”.
The man asked her for the time and she said to him that it would not be seven o’clock. She said she started work at seven, so that it would be about a quarter to. He started to come toward her so she hit him with her umbrella across his head. She stepped back and noticed his penis “hanging out of his trousers”. She was grabbed, pushed to the ground and in falling, put her hand out. I am satisfied that as a consequence she fractured her scaphoid bone. Whilst lying on the ground, the man got on top of her, grabbed her left wrist with his right hand and put his hand up under her uniform and on her inner thigh. She managed to kick him off by getting her right leg free. He got up and ran away.
I am satisfied that the incident described by the third complainant constituted the infliction of actual bodily harm and that, from his actions, the offender committed an act of indecency on her without her consent. The issue is whether the man who committed these acts was the accused.
The matter was immediately reported to the police and that morning the third complainant completed a photo-fit of her assailant. The police also took her umbrella for forensic testing but no DNA samples were found to enable tests to be conducted.
The next day the third complainant attended the Weston Police Complex and was shown a video photo-board. That photo-board contained the photograph of the accused that had been obtained on 26 September 2001 following the incident with the first complainant.
A video of the identification was tendered in evidence before me and I am satisfied that procedure complied with the rules set out in s 115 of the Evidence Act. After viewing the photo-board, the following took place between the third complainant (TC) and the police officer in attendance:
“(After viewing photo-board)
TC: No. 3 and No. 7, the features were similar.
OFFICER: Do you want to look at those again?
TC: Yeah.
(After viewing No. 3 and No. 7)
TC: If anything, I’d say No. 7, with the features and the nose and the eyes. But the hair was lighter and the face just a bit fuller. That would be the nearer one. Could I go through them again just to have another look?
(After viewing all 8)
TC: I’d say the nearest to him would be No. 7, yeah, with the features and the eyes and the nose and the mouth, yeah.
OFFICER: OK, have you seen any of the photographs contained in this video before?
TC: No, I haven’t.
OFFICER: Can you identify the person you say on 24/10/01 at Red Hill that you described in your statement?
TC: Yeah, No. 7.
No elaboration was sought from the third complainant as to whether her “identification” was any more than a comparison of No.s 3 and 7 as being “the nearest” to the offender. I am not prepared to draw a conclusion that it was anything more without direct evidence from her to that effect. I do not take her evidence as being, “that is the man” but rather “that resembles the man”. Like the photo-fit that she compiled, her evidence amounts at best to the offender who attacked her bearing a strong facial resemblance to the accused as far as the eyes, nose and mouth are concerned. It may be recalled that her description of his build was stocky. The photo-fit and description of his hair was “curly”. The photo-fit does reflect this and in her words, “the hair was lighter and the face just a bit fuller.”
The evidence thus given, while having attributes of identification evidence which merits warnings as to acceptance along the lines of those proposed by the High Court in Domican v The Queen (1992) 173 CLR 555 at 561-562), is, in this case, primarily probative of the proposition that the accused resembled the offender (see McHugh J in Festa v The Queen (supra) pp 301-302 [56]-[64]). Regarding the evidence in this light, and as part of the circumstantial case, it is important to assess the other evidence that the prosecution says points to the attacker only being the accused.
The accused was seen on the morning of 24 October 2001 at 7.30 am by Constable Wilson who was on general mobile patrol. He was seen probably well over a kilometre or so down the road from his unit wearing “an off-white or a cream T-shirt and similar coloured beige pants”.
In the afternoon of 24 October 2001, the police obtained a search warrant and conducted a search of the accused’s unit. A number of items of clothing were seized but there were no items seized that would fit the description given by the third complainant in terms of “baggy” pants, if that term were meant to exclude reasonably fitted pants. Pairs of pants of a straight legged variety in a similar kind of colour were found, but given the uncertainty of what the witness meant by “cargo pants”, I cannot draw much from that. A creamy white upper garment with long sleeves was found but that does not necessarily fit the description of a T-shirt by either the third complainant or the police officer who had seen the accused earlier that day. In the absence of any further elaboration from the witnesses, the clothing seized does not take the matter much further than saying that the accused had clothing which could have matched the description given by the witnesses, but I must weigh that aspect with the other evidence.
When the police attended the accused’s unit with the search warrant, the accused was apparently wearing a blue shirt and a pair of cream/white pants which the accused said he had been wearing all day. Detective Senior Constable Ryan, who conducted the search, described these pants to the accused as “a pair of Chinos or cargo pants without the side pockets”. They are similar to other pants in the property that was seized and are not distinctively the ones that the witnesses described. It is apparent that the police assumed that any other incriminating clothing was to be found other than on the accused’s person, presumably because he was wearing a blue shirt. The accused was closely questioned as to his wearing of the various items seized. In the course of questioning (having been cautioned), the accused was asked what time he got up and he responded “about eight o’clock”. He was later questioned about the clothing that the accused asserted had been washed that morning. The conversation proceeded:
“Q 62 – What time did you do it [the washing] this morning?
A – Ah, just after seven.
Q 63 – You told me earlier you didn’t get up till eight o’clock.
A – Yeah, but I did my washing when I got up.
Q 64 – Okay, so what time did you get up this morning then?
A – Eight o’clock.
Q 65 – Eight o’clock – you said you did your washing at seven o’clock?
A – Yeah, that’s what I did, I just thrown it in ….(indistinct)….laundry about six - - -
Q 66 – Okay well - - -
A - ….(indistinct)…. General and ah ….(indistinct)…. - - -
Q67 – You understand my question don’t you – this morning, what time did you wake up and get out of bed?
A – About eight o’clock.
Q 68 – Eight o’clock? And you understand how I’d be confused as to how you could do your washing at seven o’clock, which is before eight o’clock?
A – No, what I do is I throw my washing on and then I go back to bed say for an hour, just ….(indistinct)…. And I sort of go out ….(indistinct)….
Q 69 – Okay, so what time did you get up to put your washing on this morning?
A – Oh, it would have been the same time.
Q 70 – What time was that?
A – Eight o’clock.
Q 71 – Eight o’clock – and then you went back to bed?
A – Ah, more or less, yeah.
Q 72 – Okay and what time did you get up again after that?
A – Oh well, I was up ….(indistinct)…. Eleven, after eleven sometime.”
The prosecution opened on this claim of not getting out of bed until 8.00 am as a lie affecting the accused’s credibility as it was said that Constable Wilson’s evidence of seeing the accused at 7.30 am contradicts this claim. I am not prepared to unequivocally say that this is so. Having regard to the way the conversation arose, I do not regard that the questioning called for precision in the morning times particularly as it was not clear as to what any estimation of time on the part of the accused might be based upon.
The prosecution could also point to the offence occurring in the vicinity of the accused’s unit (the man first observed by the third complainant was coming down the street on the same side and not that far from where the accused’s unit was situated).
Conclusion with respect to Counts 3, 4 and 5
Viewing the combination of all these factors, I am unable to be satisfied to the degree of satisfaction required by the law, that of beyond reasonable doubt, that the accused was the offender in the incident deposed to by the third complainant. I find the accused not guilty of counts 3, 4 and 5 on the indictment.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 12 November 2002
Counsel for the prosecution: Mr A Robertson
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
Counsel for the accused: Accused in person
Dates of hearing: 4 & 5 November 2002
Date of judgment: 12 November 2002
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