The Queen v KH
[2002] ACTSC 108
THE QUEEN v KH [2002] ACTSC 108 (31 OCTOBER 2002)
CATCHWORDS
CRIMINAL LAW – acts of indecency with young person – s 92K Crimes Act 1900 (ACT).
CRIMINAL LAW & PROCEDURE - trial by judge alone – warnings – separate consideration of offences.
CRIMINAL LAW – evidence – character evidence – evidence of character of accused – admissibility – use to which character evidence may be put – s 57 Evidence Act 1995 (Cth).
CRIMINAL LAW – evidence – possibility of concoction of evidence – admissibility not challenged - burden on Crown to negate reasonable possibility of concoction – burden discharged.
Evidence Act 1971 (ACT), s 76E
Crimes Act 1900 (ACT), s 61, s 76, s 92
Evidence Act 1995 (Cth), s 57, s 97, s 98
Supreme Court Act 1933 (ACT), s 68C
R v Markuleski (2001) 52 NSWLR 82
Copley v The Queen [2000] FCA 994
R v Wheeler (NSW Court of Criminal Appeal, unreported, 16 November 1989)
R v OGD [No. 2] (2000) 50 NSWLR 443
TKWJ v The Queen [2002] HCA 46 (10 October 2002)
BRS v The Queen (1990) 191 CLR 275
R v Lawrence (1984) 3 NSWLR 674
KRM v R [2001] HCA 11
No. SCC 62 of 2002
Judge: Gray J
Supreme Court of the ACT
Date: 31 October 2002
IN THE SUPREME COURT OF THE )
) No. SCC 62 of 2002
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
KH
ORDER
Judge: Gray J
Date: 31 October 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 guilty of count 2 in the indictment.
Non-publication order
On 23 May 2002 I made a non-publication order in this matter concerning the complainant’s name and any evidence which might identify her. In addition, s 76E of the Evidence Act 1971 (ACT) provides that a person, without the complainant’s consent, is not to publish the name of the complainant or any reference or allusion by which the identity of the complainant be disclosed or from which that identity might reasonably be inferred. In order to maintain the integrity of that provision and my order, I have not referred in these reasons to the name of the complainant or the witnesses who gave evidence whose identities might identify the complainant. Nor do I identify in these reasons the school concerned or the particular school activity in respect of which these charges are connected. I attach an appendix referred to in the reasons which I order not be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.
The Charges
The accused was arraigned before me on 2 counts. As finally amended, the indictment charged:
“1.… THAT [the accused] between 17 April 1999 and 17 August 1999 at Canberra in the Australian Capital Territory committed an act of indecency upon [the complainant] who was then under the age of 16 years, namely 14 years.
2.AND FURTHER THAT [the accused] between 17 April 1999 and 17 August 1999 at Canberra aforesaid committed an act of indecency upon [the complainant] who was under the age of 16 years, namely 14 years.”
The accused pleaded not guilty to each count. A copy of the indictment containing the name of the accused and the complainant is attached as an appendix.
Trial by Judge alone
The accused has elected to be tried 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 offence charged
Section 61(2) (formerly s 92K) of the Crimes Act 1900 (ACT) provides:
“A person who commits an act of indecency upon, or in the presence of, another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.”
The statutory defence to this charge provided by s 61(3) is not applicable in this case.
The elements of the offences
For the offence to be proven, the accused must have committed an act of indecency upon 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. “Upon” requires a complainant to be aware of the touching. There is no requirement for an assault to accompany an act of indecency. In the case of an act committed on a person under sixteen years of age, consent is not an issue unless reliance is to be placed on the statutory defence.
Separate consideration
I must give separate consideration to each of the two 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 other. I consider each count separately in light of the evidence that applies to it. I must balance that direction by reminding myself that if I have a reasonable doubt concerning the complainant’s evidence on one of the counts, I can take that into account when assessing her reliability on the other count. (See KRM v R [2001] HCA 11 per McHugh J at [36]; R v Markuleski (2001) 52 NSWLR 82 at [259] – [263].)
Evidence of character
At an early stage in these proceedings, the prosecution sought a direction as to whether it could be permitted to lead evidence in its case about the accused’s character, which evidence it would be entitled to lead in reply if the accused were to rely upon good character. The accused’s counsel, Mr Sabharwal, indicated that notwithstanding his knowledge of the effect of this evidence, he intended to lead evidence of character as part of his case. A similar circumstance arose in Copley v The Queen [2000] FCA 994 where Gallop J, on behalf of the Full Federal Court, described as “procedurally incorrect” a trial judge permitting such evidence to be led in chief by the prosecution, the accused having given a fair indication of his intention to raise his own good character (see at [32]). That was a trial by judge and jury. In the present case, being a trial by judge alone, I considered that I could utilise the provisions of s 57 of the Evidence Act 1995 (Cth) and admit the evidence provisionally and permit its use, in effect, in rebuttal, upon the accused adducing evidence of character. This course was acceded to by Mr Sabharwal. Accordingly, I received the evidence and, the accused having called evidence about his character, I admit the evidence in rebuttal.
I add that, although the foreshadowed evidence of character had characteristics of tendency or coincidence evidence (ss 97 and 98 of the Evidence Act 1995 (Cth)), it was not tendered for those purposes, nor have I regarded it as admissible on those bases. I warn myself that the evidence cannot be used for those purposes or as evidence of propensity towards conduct the subject of the charges.
The prosecution case
The incidents the subject matter of the charges are alleged to have taken place in the winter school term of 1999. During that time the complainant had her 15th birthday, having been born on 5 June 1984. The accused was a teacher at her school and since 1997 (when the complainant was then in year 7), gave the complainant individual tuition. The accused had an office that was about half the size of a normal classroom where individual and group tuition took place. As well, a group of his students resorted to this office at recess breaks and lunchtime. There were two tables in the room, one of which was used by these students during their breaks. The room also had a microwave, kettle, sink and refrigerator.
Inappropriate conversations
Particularly near the end of 1998 and into 1999, the complainant gave evidence of being told stories by the accused “to do with sex”. There was a commonality of these stories with those that he told certain other of his students including the complainant’s friend and an older student. Each were given the impression that they were special to him.
The first warning
The accused was in 1993, shortly after he had come to the school, the subject of a complaint by one of his female students for similar inappropriate stories. That former student gave evidence before me as to the conversations with the accused in 1993 about which she complained. They resulted in the former school principal cautioning the accused and warning against a recurrence. A letter to that effect was tendered in evidence.
Other warnings
The present principal came to the school at the commencement of 1998. Shortly after, he had occasion to speak to the accused about a report that the accused had been seen “adjusting the hair” of a female student. The accused explained his actions but was informed by the principal that he was expected not in any way to interfere with a student and to show general discretion. Reference was also made to the 1993 incident. Later that year, the principal also spoke to the accused again about a concern expressed by another staff member that he had observed the accused apparently talking to a female student “in a manner that … was too close in terms of psychological space”. The principal reaffirmed his expectation of professional conduct.
The complainant’s evidence
The complainant gave evidence of conversations that the accused had with her near the end of 1998 telling her “his stories from his past to do with sex”. She also referred to an incident where she spoke to the accused about a sexual incident at a Christmas party she had attended where reference was made to STD (sexually transmitted disease). At a Christmas party held by the accused at his home that year for his students, she also alleged that there was an incident where the accused kissed her on the lips twice. The accused emphatically denies this incident. The complainant’s memory of this incident was said to have been triggered by seeing a Christmas card from a school friend the Sunday before she gave evidence before me. It is clear that, in any event, before this Christmas party both she and her mother held the accused in high esteem as they presented him with an inscribed coffee mug as an appreciative gift.
Timing
It was this sequence of events that seems to enable the complainant to fix the occasion of the incident the subject of the first count as in the first half of 1999 and the fact of her wearing the school winter uniform as after April that year.
The first count
The incident, the complainant says, occurred in the accused’s office where she was sitting on one of the desks and the accused put his hand on her leg on the top of her right thigh and rubbed his hand up and down under her skirt. She remembers other people being in the room and says that it had happened on three or four other occasions either side of the incident she had described. If the accused did what the complainant described, I am satisfied that it would amount to an act of indecency.
The second count
At some time after the incident the subject of the first count, the complainant says that she was in the accused’s office cooking lasagne at the microwave. There were other students present. She says that the accused came up from behind her, put his arms around her just below her chest and then moved his hands up slowly stroking his thumbs to about “half where my nipple would be”. She says that there were “say about three or four” other similar incidents that she remembers happening. Again I am satisfied that this touching on the specific occasions to which the complainant deposes, if it occurred as the complainant described, would amount to an act of indecency as alleged in the second count.
The witnesses to the second count
The two students named by the complainant as being present at the incident the subject of the second count, both gave evidence of it having occurred. One, who I shall describe as the complainant’s friend, subsequently accompanied the complainant to the school counsellor and I must later consider whether her evidence arises out of her friendship with the complainant and what was said to be the opportunity or motive so as to give rise to the possibility that her evidence was concocted. The other, whom I shall refer to as her male student friend, specifically did not discuss the incident with the complainant and it could not reasonably be suggested that there was any collusion or collaboration between him and the other witnesses as to his evidence. It was only put that his evidence was mistaken, a suggestion that he denied. I was favourably impressed with this witness’ evidence and I accept that he did see an incident involving the accused coming up behind the complainant, placing his arms around from behind her with his arms moving up and down and his hands in the same general position deposed to by the complainant. I also accept his observation that the complainant seemed extremely uncomfortable, “her shoulders all bunched up and she was hunched over”.
About a month later, the complainant and the complainant’s friend discussed the accused and then went to see the school counsellor. After a general discussion, the complainant’s friend described concerns about “an older male at school” and physical contact by that person. They were not prepared to name the person and were sent away to think about things. It seems about a week later (no notes of the dates of the interviews were made by the counsellor), they returned for a further interview. At that interview the accused was eventually named and the complainant made an allegation “that [the accused] had also touched them”. The counsellor then noted:
“She spoke about a hugging, tightly to their chests and that felt uncomfortable, also [the complainant’s friend] spoke about once when she was upset, he grabbed her from behind and held her under her breasts, felt him rubbing his thumbs against her. [The complainant] confirmed that this had happened to her and that [the accused] folded his hands in such a way that others couldn’t see what he was doing. [The complainant] also said that he also put his hand under her skirt, maybe six inches up, and rubbed his thumb against her. [The complainant’s friend] talked about [the accused] putting his hand on her knee. She remembers he came back once and said he was sorry and he shouldn’t have done that.”
The complainant and the complainant’s friend were then requested to write out how they felt, which they did in each other’s presence. Although it was suggested that, contrary to her evidence, the counsellor did not remain continuously in her office whilst the statements were written, I do not think that that evidence provides a persuasive foundation for the written statements being regarded as the product of collusion. However, it was said that the statements themselves provide evidence of the possibility of concoction between the two girls as well as there being said to be a motive for such a circumstance.
The possibility of concoction
There are a number of points that can be made about the written statements:
· the expressed reason for going to counsellor differs;
· one statement records that the accused was identified indirectly to the counsellor before being named;
· the gravamen of the complaints expressed do not indicate collusion in making the written statements about the central allegations. Compare the complainant’s reason for going to the counsellor as “[the accused] was making me uncomfortable by talking to me and touching me in a way I didn’t like” with the complainant’s friend who said, “We went to the counsellor to find out what our options were. We didn’t really want it to get out. We wanted to see what we could do ourselves”. The discomfort felt by the complainant’s friend is also put quite differently to the way the complainant puts hers, although the concept is the same;
· both statements refer to the accused telling them of, in one case an “affair”, in the other “a relationship” with a 16 year old girl. But the context of each statement is different. There is nothing to suggest that the topics covered by the statement do not reflect what was said to the counsellor and, of course, the statements are founded on what is said to be a commonality of experience. I do not regard the similarities as necessarily leading to an inferential conclusion that there was a reasonable possibility of concoction, rather, the statements may equally indicate a shared experience and reflect that.
I consider that I should regard it as incumbent upon the prosecution to negate any reasonable possibility of concoction even if the evidence only goes to character (see R v Wheeler (NSW Court of Criminal Appeal, unreported, 16 November 1989; R v OGD [No. 2] (2000) 50 NSWLR 443 at 447). There was no challenge to the admissibility of the evidence but in TKWJ v The Queen [2002] HCA 46 (10 October 2002), McHugh J observed:
“When the evidence is tendered to relate evidence of good character, any question of collusion is a matter for the jury. It does not go to the admissibility of or the discretion to reject the evidence. Wheeler was wrongly decided on this point.”
In the present case, the evidence having been admitted, issue was taken that I should not rely upon it because of the reasonable possibility of concoction. I think that really means that I should carefully consider the weight to be given to the evidence in light of the possibility of concoction. Sitting as a judge alone and performing that function of the jury, I have the task of determining whether the prosecution have excluded as a proposition that there was a reasonable possibility that there was witting or unwitting concoction of the evidence of the two girls (cf BRS v The Queen (1990) 191 CLR 275 at 301 per Gaudron J).
Certainly, as far as the evidence of the complainant is concerned, the possibility of concoction which might exist because of the circumstances as to how the offences came to light, must give rise to a reasonable possibility that concoction occurred in fact. The prior discussions of the complainant and her friend and the joint approach to the counsellor gives rise to the possibility, but a careful scrutiny of all the circumstances does not cause me to find that there was such concoction in fact.
It was suggested in cross-examination to the complainant’s friend (and emphatically denied) that the complainant and her friend had got their heads together to make the allegations about “touching” but that proposition was not taken any further. Otherwise the submission relied upon the similarity in terms of the actual content of the two written statements which, as I have said, does not, by itself, reasonably support a case for concoction as far as the complainant’s evidence is concerned.
It was further suggested that the complainant and her friend had a motive for their complaints and in particular for the allegations of physical touching in regards to what the accused said that he might do about catching them smoking in the future. The accused had seen the complainant smoking and had spoken to her about it and told her that if he found her smoking again, he would tell her parents about it. He said a similar thing to the complainant’s friend. This was said to provide the reason for making up the allegations of touching. It is important to appreciate that on the first approach to the school counsellor, the girls did not want to disclose the name of the person who they were complaining about. They were sent away by the school counsellor to think about things and then come back and talk about it. If the smoking incident took place shortly before this first approach, it would not explain an approach of this nature. When they returned, they were still concerned that what they might say might mean that the person concerned lost his job. According to the complainant’s friend, it was after the person concerned had been indirectly identified that his name came out. Another matter of moment is that the accused had previously told the complainant that telling anyone of the sexual content of the conversations could cost him his job. As far as the complainant was concerned, any allegation of physical touching was not necessary to achieve that purpose if that was in fact the motive for the complaints being made.
I do not regard either the complainant or her friend as having the sophistication or guile to create such a scenario to screen a motive for having the teacher removed as was suggested should be assigned to them. I do not regard the suggested motive as lending any real support to the possibility of concoction in the circumstances.
The accused’s evidence generally
The accused gave evidence and I give him such credit as is due to his exposure to cross-examination on what he said was the situation. I also have regard to his previous good character. I appreciate that the prosecution says that he is not entitled to the usual credit because of the evidence that is called, in effect, in rebuttal, particularly the evidence of the complainant’s friend related to similar touchings.
There is a degree of circularity here. If I accept the evidence of the complainant’s friend then that directly affects the evidence given on the accused’s behalf in respect of his character. Particularly so in respect of the evidence given by a number of witnesses that he called as to supervision of young people in other situations where an opportunity for impropriety was readily available. On the other hand, the accused must meet this conduct alleged by the complainant’s friend for the first time in these criminal proceedings and should be entitled to the credit that his previous good character allows him in assessing the evidence of that conduct.
The complainant’s friend, as well as giving evidence of inappropriate conversations, gave evidence of seeing the incident the subject of the second count. She also gave evidence that the accused had touched her in the same way, evidence that the prosecution put before me and admitted in rebuttal of the anticipated character evidence. The complainant’s friend also gave evidence of the accused putting his hands on the top of her legs and moving them up and down underneath her skirt. Although the evidence about the touching in the same way as that alleged in the second count may have been otherwise admissible, the prosecution only sought to make it so as evidence in rebuttal of the anticipated character evidence and it was admitted on that basis. I made no determination as to its admissibility on any other basis as tendency or coincidence evidence. To do so would require a determination of the reasonable possibility of concoction before it could be admitted on that other basis. That course, as I have earlier said, was acceded to by counsel for the accused.
The prosecution accept that I may only use this evidence of the complainant’s friend if I am satisfied that the prosecution have excluded the reasonable possibility of concoction. I think that it goes further than that. I think that in considering the evidence of the complainant’s friend, I must give the accused the benefit of his previous good character just as I must do so in considering the evidence of the complainant about the incidents themselves. For this reason, even though I do not find the complainant’s evidence the product of concoction, I draw no conclusions in respect of the complainant’s friend’s evidence adverse to the evidence called by the accused as to his character. There is the possibility that the complainant’s friend has given this evidence to support the complainant and was influenced by the knowledge of the evidence that the complainant was to give. A finding like that would affect the admissibility of the evidence, but the submissions were not put on that basis. I do not consider that I need to resolve this aspect because, having proceeded in the way that I have, I do not rely upon the evidence of the complainant’s friend in this respect and, accordingly, I consider that I should give the accused the benefit of the favourable character evidence called on his behalf.
Aspects of the accused’s evidence
The accused was forthright in his denials of the improper conduct alleged. However, in some aspects, the evidence that he gave was a cause for concern and ultimately reflects upon the accused’s credibility. Firstly, there was his evidence of the smoking incident which was placed in the period when the complainant and the complainant’s friend had been to the counsellor with allegations about an unspecified person but before the allegations were put in writing. That circumstance seems clear from the counsellor’s evidence, which I accept, that there was about a week from the time she first saw the girls and the making of the written complaints on 17 August 1999. The accused’s evidence is quite specific that the date of the smoking incident was 16 August 1999. I accept that neither the complainant nor the complainant’s friend considered the timing of this incident as material to their visit to the counsellor but the timing emphatically deposed to by the accused does not provide that incident as the motive for the first visit by the two girls to the counsellor and detracts from the accused’s supposition that it was.
Another cause for concern was the accused’s assertion in his evidence in chief that the physical contact he had with the complainant was hugs by his arm around the complainant’s shoulder after the complainant had done something particularly well. In cross-examination, he referred to moving students away from the microwave, although not specifically the complainant. The description that he gave seemed to me to be inappropriate and opportunistic. He was asked:
“But in any event your memories about removing people from the microwave area were as you demonstrated, you coming up behind them?---Me coming from behind with my hands on the shoulders and saying “Oi, move over. I want to get to the sink”, or “I want to get to the microwave”, or whatever. Yes.”
No suggestion along those lines was put to any of the prosecution witnesses. I do not regard it as a reasonable possibility to explain his actions deposed to by the witnesses.
Character considerations
As I have earlier said, I consider that the accused is entitled to have this matter considered on the basis of the evidence of favourable character as a matter making it unlikely that he committed the offences charged or the acts described by the complainant’s friend.
There is a further complication. It certainly does not follow that a teacher who engaged in inappropriate conversations of a sexual nature with his pupils is likely to or has a propensity to engage in acts of indecency with them or to inappropriately touch them. Nevertheless, the admitted impropriety of the conversations, which continued after warnings, go to affect his character in the limited sense that he has not always been a person who has behaved in an appropriate fashion in his relationship with younger persons for whom he has undertaken responsibility. That circumstance detracts from the evidence given of his character in so far as it went to that particular respect and I take account of that aspect in somewhat weakening the force that I give to the character evidence in my overall consideration of its effect.
The complainant’s evidence
The complainant gave evidence in a forthright and convincing manner. That said, her evidence was criticised because of the amendment as to the dates between which the offences were said to have occurred. The indictment upon which the accused was first arraigned referred to, as far as the first count was concerned, a period between 1 July 1998 and 18 December 1998. The second count referred to the period 1 January 1999 to 31 July 1999. In cross-examination of the complainant, the complainant said that her recollection was assisted by the receipt of a Christmas card. The card was subsequently produced and I am satisfied that the events deposed to by the complainant occurred in the time frame covered by the indictment. I am also satisfied that the events occurred subsequent to a Christmas party held by the accused for his students and that this affects the impact that the gift given to him by the complainant at that party might otherwise have on my assessment of her evidence.
The incident the subject of the second count, was the subject of direct evidence by a male student friend of the complainant. His evidence, which I am satisfied was not influenced in any way by the complainant or her friend, described the incident as the complainant has described it and supports her account. For his part, the accused denies that anything like that incident occurred nor does his evidence suggest that the evidence given by the male student friend could be anything other than mistaken.
I have scrutinised the complainant’s evidence with particular care. I find that I can accept it, notwithstanding the allowance that I make for the accused’s denials and the accused’s character as a person who I take as not having behaved in such a respect in circumstances where he has had opportunity.
In addition, I must also consider the possibility that the complainant was so influenced by the account of physical touching given by her friend to the counsellor that she has adopted this to her own circumstances. I have carefully considered the evidence of the counsellor and I do not consider that the counsellor’s evidence gives credence to that possibility. It is to be noted that during the second interview with the counsellor, it was the complainant who initiated the allegations of touching which are the counts before me. As I have earlier mentioned, it was the complainant’s friend who gave evidence of an incident which occurred to her similar to the one which is the subject of the second count. Her evidence as to that was strongly challenged. She was cross-examined about not telling the police about an incident of that kind having taken place with her. It could be put that it was the complainant’s friend who was influenced by the complainant in the evidence that she gave. I have earlier concluded that I should not rely upon the complainant’s friend’s evidence to negate the evidence of good character adduced by the accused. Whatever conclusion may be open about the evidence of the complainant’s friend, I am satisfied that the complainant’s account was not influenced by the complainant’s friend.
In my consideration of the above matter, I have had regard to the character evidence adduced by the accused. In particular, I accept that not only is he a person of good repute generally, but also that in the particular aspect of exercising responsibility in respect of young persons, he has not been known to engage in any physical impropriety. These are factors which affect the likelihood of committing the offences charged. They are also matters to be weighed in assessing the accused’s credibility and the credibility of his denials.
Notwithstanding these factors, they do not cause me to doubt the convincing testimony of the complainant and the support that her evidence has from her male student friend as to the occurrence of the incident alleged in the second count.
Conclusions
Having regard to all these matters and the manner in which I must approach my task, I am satisfied beyond reasonable doubt that the incident, the subject of the second count in the indictment, occurred as deposed to by the complainant. I accept the complainant’s evidence supported as it was by her male student friend. I find the accused guilty in respect of count 2.
In respect of the first count on the indictment, I must consider that count separately. In particular, I must put to one side my findings on the second count and any evidence which does not apply to that count. This is not an easy task and I think that I can only approach it by reconsidering the evidence appertaining to the first count as though it were a separate trial on that count alone and absent any evidence of matters that concern the occurrence of the second count. Because of my finding on the second count, this is not a case where I have a reasonable doubt concerning the complainant’s credibility so as to take that into account in my consideration of this count. However, that does not enable me to take into account the conclusion that I have reached as to the complainant’s credibility in respect of the matters concerning the second count so as to necessarily impugn the accused’s evidence on the first count.
It is clear that I must consider the character evidence in my overall consideration of this charge and not at the stage of considering whether there is a reasonable doubt by putting into the balance the accused’s character (see R v Lawrence [1984] 3 NSWLR 674). Rather than putting the character evidence into the balance, I consider the character evidence on the question of the likelihood of the accused committing this offence and in my assessment of his credibility. Even though this count is reliant only on the testimony of the complainant, I just do not entertain a reasonable doubt as to its occurrence. I also find the accused guilty in respect of the first count in the indictment.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 31 October 2002
Counsel for the prosecution: Mr A Robertson
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
Counsel for the accused: Mr J Sabharwal
Solicitor for the accused: Legal Aid Office (ACT)
Dates of hearing: 18-23 September 2002
Date of judgment: 31 October 2002
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