The Queen v Leslie Alan Williamson
[2002] ACTSC 95
•19 September 2002
The Queen v Leslie Alan Williamson
[2002] ACTSC 95 (19 September 2002)
CATCHWORDS
CRIMINAL LAW – trial by judge alone – offences of sexual intercourse (digital) and acts of indecency with young girls years before trial – three complainants – no “cross-admissibility” of one complainant in case involving another complainant – allegations by one complainant not to be treated as supporting allegations by any other complainant – need for warning in relation to accepting evidence that may be unreliable – factors giving rise to unreliability – absence of need for corroboration – previous good character – presumption of concoction displaced – offences proved beyond reasonable doubt.
Supreme Court Act 1933, s 68B
Evidence Act 1995 (Cth)
Physiotherapists Act 1977
No. SCC 38 of 2002
Judge: Miles CJ
Supreme Court of the ACT
Date: 19 September 2002
IN THE SUPREME COURT OF THE )
) No. SCC 38 of 2002
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
LESLIE ALAN WILLIAMSON
ORDER
Judge: Miles CJ
Date: 19 September 2002
Place: Canberra
THE COURT FINDS THAT:
The accused is guilty on all counts.
On 28 May 2002 the Director of Public Prosecutions (DPP) filed an indictment charging Leslie Alan Williamson (the accused) with eight offences. The accused had been committed for trial for one or more of the offences charged.
On 4 June 2002 the accused elected in writing to undergo a trial by judge alone. The document contains a certification signed by Mr Cush, a legal practitioner, stating that he had advised the accused in relation to the election. It also contains a certification signed by the accused stating that the accused had made the election freely. On 20 June 2002 the Court allocated 10 September 2002 as the date on which the trial was to commence.
On 29 August 2002 the accused was arraigned on the indictment previously filed. He had not withdrawn his election before he was arraigned. Accordingly, the accused became liable to be tried by a judge alone under s 68B of the Supreme Court Act 1933.
The accused was further arraigned on 10 September 2002 on the indictment amended that day. He pleaded not guilty to all counts. They were:
FIRST COUNT
THAT between the 1st day of September 1998 and the 31st day of March 1999 at Canberra in the Australian Capital Territory Leslie Alan Williamson engaged in sexual intercourse with [first-named complainant], who was then under the age of 16 years, namely 10 or 11 years.
SECONDCOUNT
AND FURTHER THAT between the 1st day of September 1998 and the 31st day of March 1999 at Canberra aforesaid Leslie Alan Williamson engaged in sexual intercourse with [first-named complainant], who was then under the age of 16 years, namely 10 or 11 years.
THIRD COUNT
AND FURTHER THAT between the 22nd day of April 1999 and the 12th day of June 1999 at Canberra aforesaid Leslie Alan Williamson engaged in sexual intercourse with [second-named complainant] who was then under the age of 16 years, namely 15 years.
FOURTH COUNT
AND FURTHER THAT between the 22nd day of April 1999 and the 12th day of June 1999 at Canberra aforesaid Leslie Alan Williamson engaged in sexual intercourse with [second-named complainant] who was then under the age of 16 years, namely 15 years.
FIFTH COUNT
AND FURTHER THAT between the 22nd day of April 1999 and the 11th of June 1999 at Canberra aforesaid Leslie Alan Williamson engaged in sexual intercourse with [second-named complainant] who was then under the age of 16 years, namely 15 years.
SIXTH COUNT
AND FURTHER THAT between the 1st day of September 1998 and the 31st day of December 1999 at Canberra aforesaid Leslie Alan Williamson committed an act of indecency in the presence of [first-named complainant], who was then under the age of 16 years, namely 11 or 12 years.
SEVENTH COUNT
AND FURTHER THAT between the 1st day of February 2000 and the 8th day of February 2000 at Canberra aforesaid Leslie Alan Williamson committed an act of indecency upon [third-named complainant], without her consent, knowing that she had not consented or being reckless as to whether she had consented to the commission of the act of indecency.
EIGHTH COUNT
AND FURTHER THAT between the 1st day of January 2000 and the 28th day of July 2000 at Canberra aforesaid Leslie Alan Williamson committed an act of indecency upon [first-named complainant], who was then under the age of 16 years, namely 11 or 12 years.
ADMISSIBILITY AND WARNINGS
The prosecution sought to prove that the accused had committed sexual offences on all three complainants during the periods covered by the respective counts on the indictment. The complainants were sisters. The prosecution relied upon the evidence of each complainant as it related to the totality of the criminal conduct against that complainant. The evidence was not tendered as “tendency” evidence and I do not treat it as such (although I was told that a tendency notice had been served). Nor did the prosecution seek to rely on the evidence of a single complainant in respect of the several counts relating to her as negating coincidence. No coincidence notice was served. I have endeavoured not to approach the evidence of a single complainant as negating coincidence. I have treated it as “relationship” evidence, a subtle difference.
There were four counts (counts 1,2,6 and 8) in which the first-named complainant (Alice) was alleged to have been the victim of the accused’s conduct. The prosecution relied on the whole of the evidence of Alice to support each and every one of those four counts. No objection was taken to the “cross-admissibility” of her evidence in that sense.
Similarly, there were three counts (counts 3, 4 and 5) in which the second-named complainant (Beatrice) was alleged to have been the victim. Similarly, no objection was taken to the “cross-admissibility” of the whole of her evidence in relation to those counts.
The third-named complainant (Cecilia) was alleged to have been the victim in only one count (count 7) and no question arose of “cross-admissibility” of her evidence on any other count or the “cross-admissibility” of the evidence on any other count in the case on count 7.
The prosecution did not (and it seems could not lawfully) rely on the evidence of any one complainant to support the case brought in respect of any other complainant. The prosecution did not (and could not) rely on the evidence of any one complainant as “cross-admissible” in the case brought in respect of any other complainant. I have kept warning myself in this regard.
Evidence in the prosecution case, other than that of the individual complainants, was tendered in respect of the whole of the allegations against the accused in respect of all eight counts. No objection was taken in this regard. It is still not clear to me how the prosecution intended that this evidence be treated in so far as it might have been “cross-admissible”. I will deal with it as best I can, bearing in mind again and always the need for a trial fair to the accused.
There was evidence from the father and mother of the complainants and of an interview between police officers and the accused. Where that evidence deals directly with only one complainant, it is not admitted in the case involving other complainants.
There was evidence of a Ms Samantha Bond, an expert in the conduct and practice of remedial massage, which I will treat as evidence on all counts.
There was evidence in the prosecution case by a Ms Nicole Cochrane which I will treat as evidence on all counts.
Counsel for the defence did not seek to have any of the evidence of any one complainant admitted in support of the defence case in respect of any other complainant.
There was no application to “sever the indictment” or for an order for separate trials. I considered at the commencement of the trial whether I should raise this matter with counsel and decided not to do so. At the end of the trial I remained of the view that there was no need to raise it, and no need to abandon the joint trial for the purpose of ordering separate trials. The several warnings that I have kept giving myself and summarised in these reasons are sufficient to protect the accused against the risk of impermissible prejudice by the joinder of counts in respect of the several complainants.
The accused gave evidence. Although the matter was not the subject of submissions, I will treat his evidence (including any admitted out of court statement) relating to any one complainant as not to be used against him in the case relating to any other complainant. I understood his case to be conducted so that, to the extent that his evidence may support his case in relation to all counts, it is to be taken into account for that purpose but not so as to support the prosecution case on all counts. Further, on the unavoidable question of demeanour and presentation of the accused in the witness box, I do not consider it humanly possible to separate out those aspects that might relate only to the counts concerning a particular complainant and not another complainant from those aspects which relate to all counts.
As some of the evidence may be unreliable, it is not enough to bear in mind only the presumption of innocence and the onus and standard of proof. The offences alleged are of a sexual nature, the complainants were relatively young, they are sisters, and, naturally, the events occurred some time ago. By reason of statute and case law, those are all factors which appeal courts have said make such evidence unreliable according to the collective experience of the courts (including, presumably, and even predominantly, trial courts). They require the court as a fact finder to be more cautious then simply requiring proof beyond reasonable doubt. They require the court to approach the case with a degree of caution and to apply a degree of scrutiny of the potentially unreliable evidence which is not required in a criminal prosecution where such factors are absent or where the experience of the courts has not decreed that the evidence is in a category currently regarded as potentially unreliable.
It may be desirable to mention expressly what is in effect a recently emerged doctrine of presumption of concoction on the part of young persons who give evidence of sexual misconduct on the part of a single accused person in a single trial. Some cases say that there should, even must, be a separate trial in respect of each complainant. Others say that in a jury trial, their evidence should be excluded, unless the judge is convinced as a matter of fact, proved by the prosecution beyond reasonable doubt, that there is no possibility of concoction. That is not because the evidence is irrelevant, but because the collective experience of courts is that the risk of unfair prejudice to an accused substantially outweighs the probative value of the evidence of such witnesses.
For reasons which should emerge sufficiently in these reasons, I have found established beyond reasonable doubt that, although there was opportunity for concoction on the part of the complainants in the present case, no such concoction occurred in fact. The possibility of concoction can never be completely excluded, but, in my view, that does not mean, at least in a trial without jury, that the evidence must be excluded. It seems to me to be desirable to state that conclusion at the beginning of these reasons in order to explain why I did not, at the end of my deliberations, decide that the evidence of the complainants should have been excluded altogether. At the end of considering the whole of the material in the trial, I was satisfied that the probative value of the evidence of any one complainant substantially outweighed the risk of unfair prejudice to the accused which might arise from the fact of its admission into a joint trial and did not require a revisiting of the admission of the evidence in the first place. I repeat, if it be necessary, that I have at all times been fully aware that the evidence given by one complainant cannot be taken into consideration to support the evidence of any other complainant.
In relation to all counts there is a stark contrast between what each of the complainants says about the events involving her and what the accused said in evidence and to the police. There is also a considerable overlap of allegations which are not disputed, but in relation to the essential matters in dispute, the contrast is so strong, and the likelihood of mistake so low, that if the trial were by jury, the jury would be very likely to ask themselves what motivation any of the complainants would have for giving false evidence against the accused. Depending on whether and how the question of motivation arose in the trial, the judge would have to consider telling them that they should not speculate on such matters,
Generally, an accused person is not required to answer a question in cross-examination as to his or her state of knowledge about the motivation of an adverse witness. However, apart from cross-examination, the accused in the present case was asked such questions by the police. Evidence of those questions, and his answers, were admitted into evidence without objection. The accused was also asked in his evidence in chief in the trial about such matters without objection on the part of prosecuting counsel. The accused also put his own good character in issue. Since the accused himself and in his own case raised the matter of motivation of the prosecution witnesses, I do not consider that I am strictly bound not to ask myself why a prosecution witness would lie. However, in the light of the general although rather recent rule in jury trials, I will not regard the prosecution case as strengthened by any lack of evidence about why any prosecution witness would be motivated to give evidence which is not the complete truth which he or she has taken an oath or affirmation to give. On the other hand, I would regard the prosecution case as weakened by a conclusion that a witness was motivated to give false evidence.
It is not necessary to give myself any warnings or directions as to corroboration. The common law required corroboration in cases like the present. The law as to corroboration became highly artificial and was such that judicial minds were prone to differ on what might and might not constitute corroboration and consequently uncertainty inevitably attached to convictions following a trial in which corroboration was in issue.
The Evidence Act 1995 (Cth) (the Evidence Act) requires particular attention to evidence that “may be unreliable”. A sceptical mind might find it hard to think of evidence that may not be unreliable. The presumption of innocence indeed requires such scepticism to be applied generally to prosecutions for criminal offences.
The Evidence Act however does list some examples or categories of evidence that may be unreliable. They do not include the evidence of women and children and are not expressed to include evidence of events that occurred long ago. Common sense and judicial authority dictates that evidence of events that occurred long ago may be unreliable, if for no other reason than that, generally, memories fade over time.
Common experience also indicates that children can be very poor observers and very poor at relating what they observe. They can also be easily prone to invitation and suggestion. The view has been expressed in many cases that children are more susceptible than adults to suggestion and more likely to indulge their imaginations. If that view is the collective experience of the courts (it is not necessarily my own experience) then I have to take the same view myself as if it were founded on a principle of law. On the other hand, it is incontestable that all adults have been children and most are in constant communication with children. Common experience in that regard confirms that many children are acute observers of some of what they see and hear, sometimes they have surprisingly good memories and sometimes they can relate what they observe and remember with admirable succinctness and clarity. Moreover, shyness, lack of vocabulary or conventional sentence structure or style are not in themselves an indication of inadequate observation or memory, let alone fancy or mendacity.
Lastly, there is or was a view that evidence of one person tending to inculpate another person in the commission of a sexual offence on the first was or might be unreliable. At one stage it may have been thought that this represented the collective experience of the courts. It went back to the days of Sir Matthew Hale who famously wrote that an accusation of rape is “easily to be made and hard to be proved”. Sir Matthew’s adage came to be put to juries often as if he had written “hard to be disproved”. In any event, I do not think that it represents current judicial experience or that the latter puts the evidence of sexual complaint into a category of suspect evidence.
FACTS NOT IN DISPUTE
It may be convenient to deal first with the facts not in issue and the less controversial aspects of the case as it emerged on the evidence admissible in relation to all counts.
The three complainants lived with their parents and another sister and their only brother in a Canberra suburb. Alice was born on 22 April 1988, Beatrice on 17 March 1984 and Cecilia on 30 October 1981. They were all in the age brackets alleged in the indictment. The younger girls did not go to school but were undergoing education at home. The eldest complainant attended school at the time.
The family was very sports orientated. Alice in particular distinguished herself at gymnastics and she and her parents thought she had Olympic potential. She trained several hours a day. In mid 1998 she suffered a stress fracture of the lumbar spine. On a doctor’s reference she sought and received remedial massage for a period of some months from a massage therapist not the accused. She was declared fit by the doctor. However, the parents still thought she needed massage in order to improve her performance. They learned of the accused and of his offer to provide remedial massage to elite gymnasts in the club to which Alice belonged.
The accused is aged 51. He retired from the police force some years ago for reasons of stress. In 1993 he completed an Introduction to Sports Massage Course conducted by the Australian Sports Medicine Federation, ACT Branch. I have no idea about what level of competence or experience was necessary to gain that certificate. Later he enrolled at the Canberra Institute of Technology (CIT) in a course leading to an advanced diploma in applied science to remedial massage. He did not complete the course. However, he successfully completed a sufficient number of units to gain an advanced certificate in massage therapy from the CIT, issued on 1 May 1996. That certificate indicated competency in relaxation massage rather than in massage directed towards recovery from an injury or towards overcoming a disability.
Massage involves palpation of some of the soft tissues of the body. The practice of remedial massage, sometimes and less accurately known as massage therapy, is not regulated in this Territory. It is part of the practice of physiotherapy, but physiotherapists, who are required to be registered under the Physiotherapists Act 1977 are qualified in a wider range of expertise and skills than the massage of soft tissue. Professional indemnity insurance for a practitioner in remedial massage is available only if he or she is a member of an association recognised by the insurer. There is no association formed specifically for practitioners in the Australian Capital Territory. There are 52 associations in Australia. The accused was a member of the Association of Massage Therapists (NSW) Limited (the Association).
By 1998 the accused was practising as a remedial therapist at his home in the same general area as that of the complainants and their parents. By the end of 1998 he sought to build up records of hours spent in remedial massage for the purpose of maintaining his membership of the Association. During the year he approached the gymnastic club to which Alice belonged. He offered to massage the girls there as part of their training. The club accepted the offer. For a period of a few months the accused gave massage to girls at the gym who felt sore. For some part of that time he received payment from the girls or their families. The girls wore leotards during massage. When a girl was being massaged, she would have the top of her leotard pulled down. There was always a female adult coach present during the massage session. However, the club began to regard the massage sessions as intrusive on the girls’ training and the arrangement was abandoned at about the time Alice’s parents became interested in what the accused was offering.
After making contact with the accused, Alice’s mother took her to the accused’s house for the initial treatment session. She also took her there on subsequent occasions with or without the father. It is not necessary to make a determination. In any event, it was the father who took the girl later. The massage was administered essentially for the purpose of relaxation rather than therapy for injury. Sometimes, however, the girl would complain of soreness. Treatment ceased in early 2000 in circumstances which are the subject of dispute. In the meantime, or possibly thereafter, the accused gave massage to the elder sisters. They were both soccer players and had suffered injury or felt soreness for which remedial massage was sought from the accused.
The accused’s house was set up with a room at the back for the purposes of massage. There was a massage table, a lounge chair, shelves containing books and papers and items on the wall in the nature of certificates. A door opened into the accused’s bedroom. There was a computer in the living room or dining room at the front of the house. When the father came, he spent most of his time at the computer.
The only records produced at the trial relating to the treatment of the girls showed that Alice attended on 16 September 1998, 18 September 1998 and 26 January 2000. Entries on the record indicate that on the last of these visits she complained of the onset of pain following injury the previous day. As far as the records show, Cecilia’s visits were soon after Alice’s last visit.
The records relating to Beatrice show only one visit which was on 31 May 1999. In respect of Cecilia three visits are recorded, on 3, 4 and 7 February 2000.
The classes at the CIT included instruction in several forms of massage of which remedial massage was only one. Another subject, law ethics and professional practice, was taught by a man with qualifications as a lawyer. In the former, instruction was given about the need to respect the dignity and privacy of a person being massaged. This included screening by use of towels whilst the client was lying on the massage table. If it was necessary to massage in the area of the private parts the client was to be told of what was proposed and consent was to be sought. A female client whose back was to be massaged might be asked to undo her bra whilst facing down on the table. If the pectoral muscles were to be massaged, which appears to require removing the bra completely, particular care in draping was appropriate. It was not appropriate, or necessary, for a client to remove or to be asked to remove underpants. The danger of a personal association between the practitioner and the client was made known.
The CIT records show the accused scoring credit passes in remedial massage and in law ethics and professional practice.
The areas of a client’s body that require remedial massage are identified by reference to the client’s history and symptoms. If there is pain in a particular area, that will signify that massage may be appropriate to that area or in another area which is recognised as being associated with the pain symptoms.
A number of areas of the human anatomy became of significance in the present case. It is sufficient to mention two which were the subject of the expert evidence of Ms Bond. The pubic bone is at the front of what may be loosely called the pelvic bone (there was some confusion between the two in some of the evidence). The pubic bone is in two parts on the right and left, joined by a narrow strip of cartilage. If the two parts are out of alignment, symptoms may be experienced in the hip or lower spine. Pain in the pubic bone area itself, upon palpation of the area, may indicate such misalignment.
The psoas muscles, one on each side of the pelvis, connect the inner aspect of the top of the thighs with other parts of the groin and the hip joints. They are major muscles for the purpose of flexion of the hips. Injury to the psoas is common amongst sports people, especially soccer players. A tear of the psoas is very painful and unlikely to be overlooked by a person suffering such a tear.
COUNTS 1, 2, 6 AND 8 - FIRST COMPLAINANT: EVIDENCE
The evidence of Alice about the first two occasions she went to the accused’s premises was as follows. She received massage to her back and legs. She wore a shirt and her underwear. Her mother was present during the massage. On the next occasion, after training on a Wednesday, she was accompanied by her father who remained in the lounge room. The accused told her to get fully undressed and went out of the massage room. When he came back in, she was lying on the table naked. The accused massaged the top of her legs and then around the area of her buttocks. He moved a towel from that area for that purpose. He told her that he needed her to turn over and she did so. He told her that he needed to feel in her groin and to see if her bone was in place. She felt his fingers pushing down on her bone and touching her on the top of the vagina.
I interpolate here that the conduct of the accused so far described is not the subject of any count on the indictment. The evidence was not the subject of objection, nor could it have been, in my view, in relation to any of the four counts in which Alice is alleged to be the victim. It is clearly relevant to those counts and of high probative value with an almost minimal risk of unfair prejudice.
The evidence of Alice continued as follows. She continued going to the accused for massage for some two years. About a week after the incident just described she went to the accused’s premises with her father. She undressed and lay on the table. She described the initial part of the ensuing massage much as in the terms of how she described the massage on the previous occasion. This time however the accused put his “fingers” in her vagina. She immediately changed that evidence to “about half of his finger, just one”. She could feel it inside, moving. It was there “quite awhile”. Neither person said anything. The incident last described is the basis of the first count.
The girl’s evidence in relation to the second count was in more general terms. She said that the following week she went with her mother or father. She was naked on the table. The accused “did the same thing”, that is put his finger in her vagina to half its length.
She added that “this happened until I stopped seeing him”. However, there is no further count alleging digital penetration.
The evidence of Alice as to the sixth count was as follows. She lay on the massage table, naked, on her back whilst the accused proceeded to massage her. He was wearing shorts. The massage was partly completed. The accused pulled his shorts to one side, exposing his penis. It was erect. He said, “Are you embarrassed? You should not be. Haven’t you seen one before?”
Alice gave evidence of another incident which she said occurred somewhere in the middle of the period of the massage sessions with the accused. The accused gave her instructions on how to massage herself “around here”. He pointed to her vaginal area, gave her some oil and left the room. She did not do what he suggested.
Alice also said that there were occasions when the accused showed his massage books to her. On one such occasion, before he left the massage room, he gave her magazines to look at if she was bored. She is dyslectic and cannot read. The magazines had naked people on the front. One of them displayed a naked lady lying in grass. Alice did not want to look at them because she knew they were wrong.
Alice gave evidence of one further incident, which is the basis of the eighth count. She said that it occurred closer to the last visit. As she lay on her back naked, the accused was giving her a “jelly rub” for soreness in the legs. It involved rapid stroking of the calves. She said that she felt him put her foot against his penis for about 30 seconds as he kept stroking her leg with his hands. She felt something warm drip onto her leg and stomach. The accused left the room. She wiped “clear stuff” from her leg. Some time soon after this incident Alice told her mother that she did not want to go anymore and her massage sessions with the accused came to an end.
In general, cross-examination of Alice did not cause her to withdraw any significant part of her evidence, nor did it reduce her credibility in any significant respect. She agreed however that towards the end of the period Cecilia had spoken to her about a session she had had with the accused in which, so Cecilia claimed, her foot was on his penis. Alice agreed also that she had not told the police about the “jelly rub incident” on the first occasion she spoke to them. She also agreed that the accused would apply oil to her body from a small plastic bottle.
In an interview with Constable Suzanne Evans and Constable Emily Dickinson of the Australian Federal Police, the accused said that he attended the Gymnastic Centre in order to get voluntary work which could be used for obtaining points for continuing education units as required by the Association of Massage Therapy. (That evidence is admissible on all counts). He said that he was asked to “look after” Alice and thus began giving her a weekly massage. He said that it was “just relaxation massage … sort of different … right until the last visit and a waste of time …”.
The accused further told the police that Alice mostly came in with her father but when she came the first time with her mother, he asked the mother if it would be all right to pull the girl’s underwear down to carry out a postural check. He said that two or three visits later he suggested to Alice that she remove her underwear because “it’s easier to do the massage and it’s quicker.” He said that he usually gave most people the choice of getting fully undressed or keeping their underwear on if they wished.
The accused said that the practice developed where Alice’s father would go and leave her in the massage room and work on a computer in the kitchen. The accused would tell the girl to get ready and leave the massage room to wash his hands. When he returned, Alice would be there naked, although there were towels to use herself if she wanted them. In any event, the accused said, he would place a towel over her private parts during the massage until it was necessary to move the towel in order to massage the covered area. Occasionally, every couple of months, he would check her “pelvic” or pubic bone by pushing down on it in order to check whether any pain was elicited. He explained this to her by showing her pictures in a text book later admitted into evidence in the trial. He agreed with Constable Evans that the procedure involved touching “on the top or outside of the vagina” but denied that it involved touching the vagina “anywhere else”. In answer to a question about why Alice might say that he touched the inside of her vagina, the accused also told the police that, in addition to the examination of the pubic bone, he carried out massage “around the groin area where the leg adjoins the abdomen or the trunk.”
The accused denied to the police that he had exposed his penis to Alice. He said that there was an occasion on which he was dressed in shorts, without underpants, following medical advice in September 1999 concerning a heat rash he had developed. In the course of some stretching exercises on that occasion, he noticed Alice looking embarrassed and upset. He apologised, went to his adjoining bedroom, put on underpants and returned. He tried to “calm her down a bit”, told her not to be embarrassed and got on with the massage.
The accused also denied to the police that he had shown any pornographic material to Alice. He said that one time when he left the room for the girl to do some self massage, he returned to find Alice looking at some of the massage books which he kept in the room. He invited her to look at them when she stretched. This incident occurred during a 15 minute session.
In the evidence of the accused he explained how he had spent two years as a full time student at the CIT. He had learned of “pubic bone symphisis” there. He said that whilst at the CIT Ms Bond had brought a 21 year old female student with a misaligned pubic bone to the class. The class had watched Ms Bond stretching to get the bone back in place. The female was clad in her underwear. Later, he read about the pubic bone process in a sports medicine magazine and in publications by a particular author, both of whom he named.
The accused said that he used this technique when people had a problem around that area and after explaining the technique to them. If they did not want it, he did not do it. Some wore underwear, some did not. It was up to them as to what was comfortable.
I interpolate that I treated the above evidence as admissible on all counts.
In relation to Alice, the accused denied inserting his fingers into her vagina. He claimed that he checked the pubic bone on the first visit and did so periodically thereafter. He said that he always checked the pubic bone of “kids of that age” because their bones grow quicker than their muscles. He did not make a note of any examination of the pubic bone because he never found anything wrong there with Alice.
Only in cross-examination and without suggestion from the cross-examiner did the accused raise the matter of Alice becoming “skittish” about being massaged. This was when he was being asked about massaging the psoas muscle. He said that he only massaged that area if there was a problem with it.
The accused claimed that the incident that occurred when he was lacking underpants was during the last visit by Alice. He said that he had informed the complainant’s family that he would have to go to Sydney to prepare for the Olympic games and could not continue his practice in Canberra. Therefore he needed to remind Alice of all that he had taught her, including self massage and in particular massage of the psoas. During the course of cross-examination, counsel for the prosecution used the phrase “when your penis fell out” or something similar. There was no objection to questions framed in this manner and the accused did not seek to correct the cross-examiner until well into the cross-examination when the effect of his evidence was that it was only the look on the girl’s face which led him to believe that she had accidentally caught a glimpse of his penis and which caused him to go into the adjoining bedroom to put on underpants.
In relation to the eighth count, the accused’s evidence was that during a jelly rub of the calf muscles, Alice’s leg would be bent and oil would be applied from a bottle. He denied that there had been any contact between his penis and the girl’s foot.
GENERAL REMARKS ON WITNESSES
The accused raised the matter of his own good character and called witnesses, whose evidence I accepted, to support the matter of character. He is no doubt a helpful neighbour and generous friend. One of the witnesses who regarded him like a father had been the subject of massage on many occasions, during which he had done nothing improper.
I take the matter of good character into account in the accused’s favour. It makes the proposition that he committed offences of sexual assault on young persons more difficult to accept. It makes it all the less likely that the girls are telling the truth when the accused has denied the relevant allegations on oath as well as to the police. It strengthens, if that is possible, the presumption of innocence. It makes it harder for the prosecution to discharge the onus of proof.
Although, as I repeat, the evidence of one complainant is not to be taken into account in the case involving either of the other complainants, there is a common feature of the evidence of the complainants which I venture to mention only once. Each of them gave evidence from a room in the court building away from the court room by means of a closed circuit television connection. The screens in the courtroom are not large. The opportunity of the Court (or anyone else in the courtroom) to observe the demeanour of the witness was less than what is usually experienced when a witness gives evidence in the courtroom. Whether the procedure made it easier for any of the complainants to give her evidence, and thus lent the evidence an enhanced appearance of credibility, I do not know. It did not seem so, but I take that danger into account. Whether it made the job of cross-examination by defence counsel more difficult, and thereby reduced the capacity of the defence to show up genuine weaknesses or defects in the evidence of the complainants, I do not know either. Again it did not seem so, but again that is a danger that I take into account. I will return to this aspect when I deal with the evidence of the individual complainants.
The accused’s interview with the police was recorded on audio visual tape and the tape was played in the courtroom. I saw and heard it once only. I have not had it played since the conclusion of the hearing. My recollection is that there was nothing in the way in which the accused responded to the questions being asked which was of any assistance in judging whether he was being frank and truthful on the one hand or evasive and dissembling on the other.
I interpolate that in a trial by judge alone, where the evidence of a witness is recorded on audio visual tape, the trial judge would have no advantage over an appeal court in assessing the credibility of that witness, if such assessment might be made solely by viewing and hearing the tape.
Be that as it may, my assessment of the evidence of the interview is in contrast to my assessment of the presentation of the accused in the witness box.
The accused was not an impressive witness. There were several internal inconsistencies in what he said in evidence and inconsistencies between what he said in evidence and what he told the police. There were conflicts between his evidence and the evidence of the parents. There was also some conflict between the evidence of each of the parents. There are no doubt matters of conflict that can be picked up on the transcript. However, allowing for inevitable conflicts in the evidence of different witnesses on the same matter of observation of events or in recollection of conversations, the evidence of the parents I found generally acceptable.
Apart from what is recorded on the transcript, there were occasions during the evidence of the accused when his answers given and statements made in response to questions challenged belief at the time. Whether they challenge belief on a reading of the transcript alone, I cannot know. However, I am bound to say that a reading of the transcript since the trial has only strengthened what I tentatively considered to be an inherent unlikelihood in the content of some of his assertions, an unlikelihood which was reinforced by the way in which he made those assertions.
Contrast the evidence of Ms Bond, which was clear in content and given in an impartial and professional manner. I warn myself of the danger of accepting the evidence of a witness because it appears to have been given in a professional manner, and I take that danger into account. I observe however that there was nothing to indicate that Ms Bond is a professional or practised witness in the general sense. There was no suggestion that she knew any of the complainants or the parents. She did not remember or otherwise have any prior knowledge of the accused and she expressed no animosity towards him. But she was adamant, and convincingly so, that no person who has substantially completed the course in remedial therapy at the CIT could be mistaken about the impropriety of a middle aged male giving massage toa young female outside the sight of a relative or other appropriate person. The claim of the accused that he saw no impropriety in allowing a young girl to remove all her clothing for the purpose of his massaging the whole of her body is simply unacceptable. If, as he claimed, he gave the clients the option of removing underclothing or leaving it on, it is not a claim that can be accepted in the case of a client who is a child. His repeated claim that he moved the underclothing of these girls aside in order to avoid contact with the massage oil is, in the light of the rest of the evidence, patently unacceptable.
COUNTS 1, 2, 6 AND 8 – FIRST COMPLAINANT: FINDINGS
In general the evidence of Alice was inherently credible. There was no reason why she should not have remembered the essential aspects of the events of which she spoke. She was not precise as to dates or times in her evidence in chief. If she had been, that might have suggested concoction or coaching, but such was not the case. She firmed up on dates and times to some extent in cross-examination, which is not unusual in the course of the evidence of a witness. Alice was neither so shy nor so brazen in relation to events which might normally be expected to be embarrassing as to confirm the suspicion the law has traditionally attached to the evidence of a young person about acts of a sexual nature.
The accused admitted that he massaged the girl over the period in question when she was naked and without a parent in the room. The evidence of Alice is therefore approached with that admission in mind. In relation to each of the four counts the accused does not dispute that something like what the girl alleges happened, but he says that his conduct, for which he has an innocent explanation, fell short of what the evidence of the girl, if accepted to the requisite degree of proof, would establish as the criminal conduct on his part.
Generally, there is something inherently unlikely about a young girl submitting so easily to intimate acts by a man much older. The unlikelihood is dispelled in the present case by the conclusion, inevitable and easily reached on the whole of the evidence, that the accused had won the girl’s trust. He claimed or admitted as much in his own evidence and in his statement to the police. The girl’s father had himself told the girl that the accused was like a doctor and to be trusted for that reason.
With regard to particular counts I begin with the sixth count. It is highly unlikely that Alice would have invented or imagined the events described. They are largely confirmed by the accused himself. The explanation of the accused is not such as to cast doubt on the truth of her allegations. He may have received medical treatment for a skin complaint. Exhibit F confirms that he did. However, it does not confirm that he was advised to go without underpants or that he was still suffering or receiving treatment in mid 1999 which is the earliest time at which the incident might have occurred. I reject the explanation of the accused. It follows that it is proved beyond reasonable doubt that he deliberately exposed his penis and made sexually explicit remarks to Alice at the time of doing so. It was a serious breach of appropriate community standards in relation to conduct in a sexual context. The accused is found guilty on the sixth count.
I go to the first and second counts. Again the girl’s account is largely confirmed by the accused, except on the crucial issue of whether he inserted his fingers into her vagina. Having already satisfied myself beyond reasonable doubt on the sixth count, my provisional inclination to accept the complainant’s evidence and reject the evidence of the accused where it conflicts on the first and second counts is confirmed. The association between the accused and Alice was no longer an innocent one on his part by the time he exposed his penis to her. The conclusion is more readily reached therefore that it was not an innocent one at the time of the incidents described by the girl, which I am satisfied occurred after at least two previous visits on her part and when she had come to accept that she should trust the accused and that she should remove all her clothing for the purpose of massage by him. The allegation by her that he placed his fingers in her vagina is perhaps a simple one and therefore an easy one to make. There was no suggestion however that the girl was mistaken or ignorant about the whereabouts of that part of her body. She distinguished between where she was touched on those occasions from where she had been touched on the two previous visits.
There is an inherent unlikelihood in the hypothesis that the accused would have committed such acts when a parent was nearby in the house. That unlikelihood is strengthened by the further unlikelihood of a man of previous good character committing an offence at all, but particularly an offence of this nature and particularly when he had everything to lose in his practice in remedial therapy if he were found out and particularly again when he had hopes (which came to fruition) of playing a part in the Olympic Games in late 2000.
Nevertheless, the inherent unlikelihood of all those matters is, in my view, clearly displaced by the strength of the complainant’s evidence and of the surrounding circumstances. The accused is found guilty on the first and second counts.
COUNTS 3, 4 AND 5 - SECOND COMPLAINANT: EVIDENCE
The evidence of Beatrice was that she went to the accused’s house in mid 1999 after suffering a “muscle tear” which she identified as located on her back or toward the rear of her right hip. Her father drove her there. She undressed to her underwear and the accused massaged first her back and then, as she lay on her back, her right hip. He told her that he was going to check the pelvic bone to see if it had popped out of place. Without saying anything, he pulled her underpants down to her knees. He put his “fingers” inside her vagina and moved them along the bone. His finger, or fingers were in that position for five to ten seconds as far as between the first and second knuckle. She felt “embarrassed and scared a little”. She said nothing. Her father was sitting in the chair. The accused was between her and her father. The massage of the hip continued. No towels were used.
On the second occasion, Beatrice said she went straight through to the massage room with the accused. The father remained in the lounge room. Her description of what happened next was very similar to what she said about the previous incident. This time she said that his fingers were in her vagina for longer, 20 seconds. On the third occasion, according to her evidence, the same thing happened. The accused’s fingers were in her vagina longer than on the second occasion.
In her evidence in chief she said that the accused told her that if she did not take her clothes off, he would not be able to massage her properly, but it is not clear on what occasion this was said.
Beatrice was cross-examined on the statement she made to the police on 6 September 2000. In my view, there was no inconsistency of significance between what she said in evidence in court and what she told the police with the possible exception that she had previously said that on the second occasion her father had entered the massage room before leaving for the lounge room before the massage commenced.
Beatrice was present when her sister Cecilia was interviewed by police.
The father was not able to give any assistance on these matters.
In relation to Beatrice the accused told the police that the suggestion of the insertion of his fingers into her vagina “did not happen” and that the tests he carried out on Beatrice were the same as those he had carried out on Alice, also with the consent of the parents. In the case of Beatrice, she was complaining of pain in the right lower back and right hip. She had an indication of a slight tear in the right psoas major muscle. He described the muscle as “going diagonally through the abdomen”. He said that it was situated two centimetres inside the hip bone, going down through the groin area and onto the leg. He showed the police a picture in a book. He said that a full body massage was necessary to find out where the problem was. However, he said that there was no need to touch the vaginal area as the muscle “runs down the side of the groin”.
In relation to Beatrice the accused had only a vague recollection of her visits and had to consult his records, which indicated that she came with a complaint of pain in the right hip and an elevated right shoulder. This caused him to carry out the pubic alignment and psoas muscle procedures. He conceded that he had moved her underpants down, but not to her knees as she claimed. She remained appropriately covered with towels. During cross-examination in relation to Beatrice, the accused said that the pubic bone examination was necessary to check whether the person had a hernia.
The accused also told police that he thought that Beatrice had her underpants on during these occasions, but might have had her bra off, since that was common. For the purpose of an examination of the psoas muscle, it was his practice to tell the person what he was going to do and, on obtaining consent, move the underpants down and palpate along the muscle until he found the tear.
The accused further told the police that Beatrice had visited him only once. The parent had remained in the room during that visit.
COUNTS 3, 4 AND 5 - SECOND COMPLAINANT: FINDINGS
The evidence of Beatrice was given clearly and confidently and was consistent with that of a “normal” 14 year old girl trying to describe as best she could events which occurred some two years before the trial. They were unusual events. There is no reason why she should have forgotten them. There was nothing to distinguish the strength of her evidence on one count from the strength of her evidence on the other two counts.
In the case of Beatrice there is no evidence about when she made her first complaint. It seems unlikely that she complained before she became aware of the allegations made by one or both of her sisters against the accused. As I have said, I am satisfied that there was no concoction between her and either sister. I have scrutinised her evidence against the several dangers in the case including the danger that she may have imagined or been mistaken or invented the allegations that the accused’s fingers entered her vagina on the three occasions. I take into account that she does not allege, and the accused does not allege or concede, that he invited or told her to remove all her clothing for the purpose of massage. It is not clear whether a parent was present when she was receiving the massage. There was from the viewpoint of an experienced practitioner no need to massage in the pubic area or to examine the pubic bone or massage the psoas muscle. There may be some question about the need for the latter, but I do not accept the evidence of the accused as to the need to carry out those former procedures. I am persuaded that he carried them out for prurient reasons, thus rendering it more likely that he went further and, as she said, although he denies, he penetrated her vagina with his fingers when he massaged the psoas, if that is what he was doing. I find it established beyond reasonable doubt that penetration occurred. He is found guilty on the third, fourth and fifth counts.
COUNT 7 - THIRD COMPLAINANT: EVIDENCE
With regard to count seven, Cecilia said that she went with her father to the accused for treatment for pain in the left hamstring in early 2000. She agreed that she did not have a favourable impression of him as he was a “yucky old man”. On the first occasion, on 3 February 2000, the accused told her to remove her shorts and shirt. She lay on the table on her back in her underwear. The accused massaged both legs and the session came to an end without incident.
On a second occasion on 5 February 2000 Cecilia went to the accused’s house alone. He massaged her legs and then began to massage her back. He undid her bra and slid his hand under her breast. He brought her a book and showed her a picture of a breast muscle and told her that she had bad posture. He asked if she had a boyfriend and asked her whether she would go to a local club.
According to Cecilia the accused then said he had to check to see if her pubic bone was in line. He lifted the waist band of her underpants and looked down into and felt along the pubic bone, then pulled her underpants to one side and said that he was looking for tears and did not want to get oil on her clothing. He told her of another patient who was nervous about taking her clothes off but later presented herself to him naked.
Cecilia said that the accused then gave her a jelly rub of the calf muscles. During this process he had her foot resting against his shorts for about five minutes. During that time she could feel his semi-erect penis.
On a third visit on 8 September 2000 Cecilia said that she told the accused that she had recovered in order to avoid further contact. He asked her to come out with him again and said that his patients often gave him a cuddle and a kiss at the club.
On 12 September 2000, Cecilia was walking the dog with Alice. She told Alice that the accused had put her foot on his penis. Alice said that he had done the same to her, that he had shown her “nudie books” and put his fingers in her vagina. Cecilia went and told her mother what Alice had said.
In the interview with the police, the accused said that Cecilia visited him for pain in the hamstring muscle in the right leg. He carried out the same posture check as he had on the other girls. She remained in her underwear. For the purpose of massage he asked if she wanted to take it off. She seemed embarrassed, so he left it alone. He also checked the psoas muscle, that being a common area of injury to soccer players. She moved her underwear down for that purpose and moved it back after he had palpated around the pubic bone. He explained how the muscles are inter-connected with the hamstring actually attached to the pelvis and another muscle, the lecitimous dorsi, going from the rib to the shoulder blade. He said that he explained to Cecilia that the latter muscle was “under breast tissue” and that he had obtained her consent to push it in order to see if there was any pain. He recalled Cecilia visiting twice.
In his evidence the accused did not deny that he gave Cecilia the sort of massage she described. He conceded that he was standing at the side of the table facing down the complainant’s body. Although he did not expressly deny it, his description accords with that of the complainant as to their positions relative to each other. The girl’s right foot was clearly close to the front of his body in the region of his waist. Contact between the foot and the groin was more than a possibility unless the accused exercised care.
COUNT 7 – THIRD COMPLAINANT: FINDINGS
It strikes me as rather unusual that a 16 year old would first raise such a matter with her sister of 9 or 10 years, rather than tell her mother first. However, it is only necessary to remind myself that people, including young people, behave as they do for all sorts of reasons. Sisters may well say what they do say amongst themselves without telling their mothers and without necessarily manufacturing or exaggerating or suggesting to the others that they should manufacture or exaggerate. I have already ruled out concoction as a fact.
The accused denies contact between the girl’s foot and his clothing in the groin area. He does not concede that it could have happened but accidentally so. The prosecution has to exclude the reasonable possibility of the contact being accidental or innocent, although that is not the case presented by or on behalf of the accused. Again I have examined the evidence of the complainant and all the other evidence in the case with care. I take into account the circumstance of the accused denying that it was inappropriate to massage the young woman in her underwear. His explanation of the need to massage her psoas muscle for the purpose of hamstring injury is totally unacceptable. It was never suggested to Ms Bond that such was a sound practice for the purpose of remedial massage and again I am in no doubt that the accused’s purpose was a prurient one. I am compelled to a conclusion that the accused did what the girl said he did and that his conduct transgressed the proper boundaries of decency. He is found guilty on the seventh count.
OUTCOME
The accused is guilty on all counts.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.
Associate:
Date: 19 September 2002
Counsel for the prosecution: Mr K Archer
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defence: Mr Sabharwal
Solicitor for the: Ken Cush & Associates
Dates of hearing: 10, 11, 12 and 13 September 2002
Date of judgment: 19 September 2002
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