The Queen v Ross Woods Morton [1998] ACTSC 155 (24 February 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   CRIMINAL LAW - trial
by Judge alone - sexual intercourse with person under
10 years - 5 years - Crimes Act section 92E - whether continuance of an act
not initially voluntary constitutes an offence.

  

   CRIMINAL LAW - act of indecency upon person under 10 years - 5 years -
Crimes
Act section 92K - meaning of indecency - relevance of motive.

  

   Supreme Court Act 1933

   Crimes Act 1900

   Evidence Act 1995 (NSW)

   Commonwealth Evidence Act 1995

  

   R v Bourne [1952] 36 Cr App R 125

   R v Lawrence [1980] 1 NSWLR 122

   R v Dossi [1918] 13 Cr App R 158

   R v Hall ,
unreported, NSW CCA, 28 February 1997)

   R v GJ (unreported, 3 October 1997)

   R v Court [1989] AC 28

   Drago [1992] 63 A Crim
A 59

   Phillips v Police [1994] SASC 4848;  [1994] 75 A Crim R 480

  

  

   CANBERRA, 24 February 1998 (hearing and decision)

   #DATE 24:02:1998

  

   Appearances here

  

  

   Order:

   THE COURT FINDS the accused, Ross Woods MORTON guilty of engaging in the
act of sexual intercourse with S,
who was at that time a person under the age
of 10 years, namely 5 years.

  

   THE COURT FINDS the accused, Ross Woods MORTON guilty
of committing an act
of indecency upon S, who was at that time a person under the age of 10 years,
namely six years.

  

  

  

   CRISPIN J

  

   1. The accused stands charged with one count of engaging in sexual
intercourse with a five year old child,
an alternative count of committing an
act of indecency upon that child and a further count relating to a subsequent
incident in which
he allegedly committed an act of indecency upon that child.
He elected to be tried by judge alone.

  

   2. Section 68C of the Supreme Court Act 1933 is in the following terms:
"(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 the
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 the jury in such proceedings, the Judge shall take the warning
into account in considering his or
her verdict."

   3. The facts giving rise to these charges are extraordinary. Throughout
1996 and 1997 the accused and his wife
participated in a housing co-operative
and from time to time had people board with them in their home. Such people
had generally
emerged from broken relationships or were otherwise in special
need of alternative accommodation. The complainant and her mother
fell into
this category. They had come to live with the accused during 1995 apparently
after the breakdown in the relationship between
the complainant's mother and
father. It is common ground that a close bond formed between the accused and
the complainant who took
her for walks, bought her sweets, let her ride on his
shoulders and at times pretended to be her "horsey". It is not suggested that
this relationship was due to anything but natural affection between a young
girl and someone who had come to act as a father figure
to her. Nor is it
suggested that it was attended by any impropriety on the part of the accused,
other than in the conduct giving
rise to the present charges.

  

   4. The incident which gave rise to the first and second charges occurred at
some time during
1996. It is common ground that the accused had just come home
from work and was in his bedroom. The complainant gave evidence that
he had
changed into a blue T shirt and slip-on pants which she later described as
track suit pants. She was in the house with two
other girls, one of whom was
about 8 or 9 years of age and the other of whom was then 6. The older of these
two girls pulled the
complainant's pants down and pushed him onto the bed. The
complainant subsequently went over and began to suck his penis. She said
that
she did so because the other two girls had threatened to do something bad to
her if she refused. At the time of giving evidence
the complainant was only 7
years old and was unable to say how long this behaviour had continued.
However, she stopped when she felt
something "gooey" in her mouth. She said
that she held this substance and got some on her hands. She then went to the
bathroom and
washed her hands and rinsed her mouth out. She described this
substance as "white stuff". She then left the bathroom and went out
to play.
Throughout the relevant period she said that the accused lay on his back with
his hands by his side breathing heavily.

  

   5. The principles of law governing the first count on the indictment are
governed by section 92E of the Crimes Act 1900 (Crimes
Act) as interpreted by
the definition of "sexual intercourse" contained in section 92. The relevant
portion of section 92E(1) provides
that a person who engages in sexual
intercourse with another person who is under the age of 10 years is guilty of
an offence. The
relevant portion of section 92 is in the following terms:

  

  

   "In this Part, 'sexual intercourse' means: (c) the introduction
of any part
of the penis of a person into the mouth of another person; (e) the
continuation of sexual intercourse is defined in paragraph
(a), (b), (c), or
(d)."

   6. In the circumstances described by the complainant it seems clear that
the initial introduction of
the accused's penis into her mouth did not occur
as the result of any voluntary act on his part. Nonetheless, the fact of its
introduction
was sufficient to give rise to "sexual intercourse" within the
meaning of section 92 and that if he voluntarily caused or permitted
that
sexual intercourse to subsequently continue then he was guilty of an offence
under section 92E.

  

   7. The version given
by the accused was in some respects even more
extraordinary. He maintained that he was in the process of undressing when he
was "ambushed"
by the three girls who tore off his shirt, pulled his singlet
over his head and pulled down his underpants. He fell over onto the
bed, the
girls then took off their clothes and took turns in jumping on him and acted
in a way suggestive of sexual intercourse.
They then moved away from the bed
and he heard giggling and whispering before the complainant came back and
placed her mouth around
his penis. He said that this continued for "a few
seconds" and that he had not sought to break off contact because he was afraid
that she might bite him. In fact, he apparently did not seek to withdraw his
penis until he felt the pressure from the complainant's
mouth disengage.

  

   8. The accused has a long standing and degenerative eye condition as a
result of which he has a severe visual
impairment. Indeed, he was described by
one witness as being "virtually blind". The evidence establishes that as a
result of this
condition he has become extremely cautious about bumping into
people or things and that he has displayed particular care about inadvertently
injuring a child. When confronted by unexpected situations he tends to
"freeze" and refrain from moving until he is able to fully
understand what is
occurring. This evidence was relied upon by Mr Wendler who appeared on his
behalf as a possible explanation for
his initial failure to respond to the
actions of the three young girls. It was submitted that any assessment of his
behaviour must
be made in the context of his disability and the behavioural
responses which he had been obliged to make as a result of it. He also
relied
upon evidence from the accused to the effect that he was tired, somewhat
breathless from the walk home from the bus stop and
not fully recovered from
the effects of surgery. Having regard to all these circumstances, Mr Wendler
submitted that his initial
failure to simply push off the girls, tell them to
stop or otherwise bring the incident to a halt was explicable in terms of
these
factors. When faced with an unexpected and somewhat shocking situation
he simply froze. He was still in that state when the girls
left the bed and
had no inkling of what was to occur until he felt the complainant's mouth on
his penis. Mr Wendler argued that the
heavy breathing was not due to sexual
arousal but was attributable to breathlessness from the walk home and perhaps
the incident
itself. The accused had not been in good physical condition. He
had failed to tell the complainant to stop and failed to pull away
not because
he wanted sexual gratification but because he was afraid that he might suffer
a serious injury if he were bitten.

 


   9. Mr Wendler conceded that the combined effect of section 92 (c) and (e)
of the Crimes Act meant that the continued presence of the penis in the
complainant's mouth constituted "sexual intercourse" as defined in that
section
and that the offence was prima facie complete once an accused was
aware of the nature of the act and failed to bring it to an end.
He contended,
however, that the accused was entitled to an acquittal on the ground of
duress.

  

   10. The general principle is
that a person compelled by physical force to
do an act, which would be a crime if done voluntarily is free from criminal
responsibility,
but the person who has compelled the performance of such an
act may be criminally liable: R v Bourne [1952] 36 Cr App R 125. However
it is
necessary that the accused be deprived of his free will by the threat of death
or serious physical violence. Furthermore, it
is necessary that there be no
reasonable opportunity to render the threat ineffective prior to the doing of
the act which would otherwise
be criminal. Even then, a defence of duress will
be available only if an average person of ordinary firmness of mind, of a like
age
and sex, in like circumstances would have done the act in question: R v
Lawrence [1980] 1 NSWLR 122. It is clear that where a defence
of duress is
relied upon, the accused must be able to point to such material as is
sufficient to make the issue a fit and proper
one to be left to a jury but
that once this is done the burden is on the Crown to prove that the defence is
not available to the
accused in the circumstances and that it must do so
beyond reasonable doubt.

  

   11. In the present case Mr Wendler submits that
the defence has been
properly raised by the evidence given by the accused. When he was asked what
was the next thing he remembered
happening after feeling that his penis was in
the complainant's mouth, he replied: "Well, I got up as soon as I possibly
could, but
because the child has had occasion to bite me sometimes out of
either frustration or affection, I was concerned she didn't damage
me this
time and so I made sure that I could get up without violence and I got up a
few seconds afterwards and resumed dressing."

   When, during the course of cross-examination, he was asked why he didn't
react almost instantaneously he replied "because on
occasions during her
relationship she has been known to bite me and I was concerned that she didn't
bite that part of me". He conceded
that he did not tell her to stop but said
that he was concerned that such an admonition might have caused her to react
and bite him.
He maintained that he withdrew as soon as he could "without
violence" but conceded that in fact he had not done anything before the
pressure was released from her mouth. When asked whether the complainant had
bitten him before he replied "yes, she has". "She's
bitten me quite severely
on the arm once."

  

   12. It was not put to the complainant that she had ever bitten the accused.
Indeed,
it was put to her that she had been fond of him and she agreed that
she had been. The accused did not suggest that during the incident
in question
she had said or done anything to suggest that she might bite him on this
occasion. However, Mr Wendler pointed to the
nature of the incident and
contended that the accused was entitled to think that if any bite were to be
inflicted it might cause
him serious physical injury. It was submitted that an
actual threat was unnecessary because the risk of biting emerged by
implication
from the complainant's earlier behaviour.

  

   13. In my view there are a number of answers to these contentions. First,
apart
from the reference to one occasion when he claimed to have received a
severe bite on the arm, there is simply no evidence as to the
nature and
extent of any biting said to have occurred prior to the incident in question.
There was no evidence as to when that single
episode of biting allegedly
occurred, nor as to the surrounding circumstances. It was not suggested that
it caused serious injury
and no attempt was made to allege any facts and
circumstances which might have provided grounds for any fear or recurrence.
Consequently
even if the evidence of the accused were to be accepted
notwithstanding the absence of any relevant cross-examination of the
complainant,
it would in my view be insufficient to provide adequate grounds
for any fear of death or serious physical violence. Secondly, the
essence of a
defence of duress is that the will of the accused must have been overborne by
threats of death or serious violence and
not merely by some belief that he may
suffer some injury should he not commit a criminal act. Of course, a threat
may be expressed
or implied but in the present case the accused has not
suggested that there was any actual threat or given evidence of any action
on
the part of the complainant from which the implication of such a threat may be
said to have arisen. Of course, there may be circumstances
in which a person
will be justified in committing what would otherwise be a criminal act in
order to avoid imminent peril even in
the absence of any such threat. In those
circumstances, however, the defence is one of necessity rather than of duress.
There has
been no suggestion that such a defence is available to the accused
in the present case. Thirdly, even if the circumstances did not
permit the
risk of injury to be completely obviated, it seems to me that an average
person of ordinary firmness of mind of a like
age and sex in like
circumstances would not have permitted his penis to have remained in the
complainant's mouth once he had realised
what was occurring. For these
reasons, I do not accept that the defence has been properly raised and is
available to the accused.
However, if in the sense that it has been
sufficiently raised to require refutation then I am satisfied beyond
reasonable doubt that
in causing or committing the sexual intercourse to
continue the accused did not act under duress. Accordingly, I find the
defendant
guilty on this count.

  

   14. In coming to this conclusion I have taken into account a number of
matters which Mr Wendler urged
on behalf of the accused. In particular, he
submitted that it was important that the evidence of the complainant be
scrutinised carefully
because she was a child. He did not suggest that there
was any requirement that her evidence be corroborated but did submit that
as a
matter of ordinary human experience children were often unreliable witnesses.
He maintained that this was because they had little
experience of the world
and little experience in the use of language. They had a tendency to
exaggerate or even fabricate incidents.
This submission generally accords with
the general view expounded by Atkin J in R v Dossi [1918] 13 Cr App R 158 at
161 where he
commented that " . . . small children are possibly more under the
influence of third persons - sometimes their parents - than are
adults, and
they are apt to allow their imaginations to run away with them and to invent
untrue stories". No doubt, there are children
whose evidence is unreliable for
these reasons. However, acknowledgment of the risk that the evidence given by
some children may
be unreliable for the reasons stated does not, of course,
involve the consequence that the evidence given by the complainant in this
case was unreliable. I accepted that I was obliged to scrutinise her evidence
with particular care having regard to the considerations
to which Mr Wendler
adverted but having had the opportunity of observing her credibility in the
witness box, I am satisfied that
her evidence was truthful and generally
reliable. I entertain some reservation only in relation to the evidence relied
upon by the
Crown to establish that the accused had ejaculated.

  

   15. In relation to this issue the complainant made statements during
cross-examination both at committal and during the trial which were
inconsistent and demonstrated some possible uncertainty about
this aspect of
her evidence. It is true, Mr Whybrow who appeared for the Crown submitted,
that this may have been simply a product
of the manner of questioning but an
acknowledgment of that possibility does not relieve the Crown from the burden
of adequately proving
the relevant fact.

  

   16. It was also submitted by Mr Whybrow, that evidence of complaint to the
complainant's grandmother which
had been admitted without objection, was
probative of the facts alleged in the complaint. The complaint included a
brief but graphic
reference to an apparent ejaculation by the accused. In R v
Hall , unreported, NSW CCA, 28 February 1997) the NSW Court of Criminal
Appeal
ruled that section 66 of the Evidence Act 1995 (NSW), which is identical with
the corresponding section of the Commonwealth Evidence Act 1995, makes
evidence of complaint admissible as to the truth of the matters stated so long
as the conditions of section 66 are met. This decision was followed by Miles
CJ in R v GJ (unreported, 3 October 1997) notwithstanding an argument that
section 76C
of the ACT Evidence Act permitted the reception of evidence of
complaint only where it was 'otherwise admissible under any rule of law'
existing at 28 November
1985, which was the date upon which section 76C became
effective. In this case, of course, no issue of admissibility arises and no
submission was made that I should limit the use to be made of the evidence in
question. Mr Whybrow's submission must be upheld.

  

   17. Nonetheless, the complaint was made some months after the incident in
question and it does not entirely assuage the doubt
engendered in my mind by
the inconsistency in the complainant's evidence concerning this aspect of the
case.

  

   18. It is also
true, that facts which do not constitute one of the
essential elements of the offence need not be proven beyond reasonable doubt
unless, of course, one such element is wholly dependent upon the finding of
that fact. It was not suggested that any element of the
offence charged in the
first count was so dependent upon any finding in relation to this allegation.
Nonetheless, in the context
of this case, it is an important matter and I
think it is appropriate that I record that I was not satisfied that the
allegation
had been established.

  

   19. Mr Wendler also relied upon the fact that the other two girls said to
have been present during
the course of this incident were not called as
witnesses. Evidence was given that their father had been contacted and that he
had
refused to permit the police to take a statement from them. As Mr Wendler
pointed out either or both of these girls could have been
brought to court
pursuant to a subpoena and compelled to give evidence. Consequently, he
contends that I should draw the inference
that any evidence which they could
have given would not have assisted the Crown case. The real question is
whether or not there is
an adequate explanation for the failure to call the
potential witnesses in question. In a case such as the present where both are
very young it has not been possible to obtain a statement from them. This
obviously involves an issue of judgment which must be considered
in the
context of other factors such as the gravity of the offence and the potential
importance of which those witnesses may have
on the outcome of the case. It is
true, of course, that the absence of any statement could have been overcome by
the expedient of
calling them on the voir dire prior to the commencement of
the trial. However, in my view, their evidence would ultimately have been
of
little assistance in the resolution of this trial since the areas of
disagreement between the evidence given by the complainant
and the evidence
given by the accused were relatively narrow and, save in relation to the issue
of ejaculation, relatively unimportant.
Furthermore, to the extent to which
there are any remaining discrepancies they seem to have arisen during the
course of cross-examination
rather than having been anticipated. It is true
that the offences are of their nature very serious ones and, despite some
misgivings,
I ultimately decided that I should draw the inference for which Mr
Wendler contended. However, given the view that I have formed
about the
evidence in this case it was of little significance.

  

   20. Mr Wendler also relied upon the evidence that the accused
is and was at
the relevant time a person of good character. The evidence to that effect was,
in my view, quite compelling. I have
taken it into account in his favour both
as strengthening the presumption of innocence and in relation to the
credibility of the
evidence which he has given.

  

   21. Finally, Mr Wendler also relied upon the extent to which the accused
had been co-operative.
He had participated in an interview with the police
despite legal advice that he had no obligation to do so. Indeed, his solicitor
had been present with him throughout the course of that interview. He said
that he had done so because he had been torn between wanting
to provide an
account of what had occurred so that the matter could be cleared up and
wanting to preserve his right to silence. In
addition he had given evidence at
his trial. I have taken into account both of these matters.

  

   22. Ultimately, none of these
matters assumed great importance in the
resolution of this matter because the decisive issue in relation to this count
fell for determination
in the context of facts which were largely undisputed.

  

   23. The second count on the indictment was merely an alternative to
the
first and does not arise for consideration.

  

   24. The third count on the indictment is dependent solely upon admissions
made by the accused during the course of his interview with the police and
upon his evidence in court which was substantially consistent
with those
admissions. Some months after the incident which gave rise to the first count
on the indictment the complainant apparently
asked the accused if he could
have a bath with her. He told her that she would have to ask her mother but it
is said that her mother
agreed. The accused and the complainant then proceeded
to have a bath together. The accused gave evidence that when they got out
the
complainant gestured towards him as if she intended to touch his penis. He
allowed her to do so. When asked why he had done so
he said that he did not
want her to have a negative view about sexuality or to feel that the body was
unnatural or unclean. He also
said he thought it might be educational. He had
told the police that the incident lasted for "just under the minute" but said
in
evidence that it was only a few seconds. Again he had told the police that
his penis "erected a bit" but in evidence said that when
he began to feel some
physical sensation he turned around, dried himself with the towel and left.
When asked in cross-examination
how it was he had got into a bath naked with a
girl whom he had previously been afraid might bite him he said that he had
thought
that she was not under pressure from other girls and was not in a kind
of mood that might induce her to bite him. He thought that
it would be safe
for him to proceed. He maintained, however, that his wife had been somewhat
anxious that the complainant might harm
him in some way. When he was
subsequently asked about the wisdom of having permitted the complainant to
touch his penis in the light
of the earlier incident, he conceded that he had
thought he was taking some kind of a risk but considered that it might not do
any
harm after such a length of time.

  

   25. This offence is based upon section 92K of the Crimes Act 1900 the
relevant portion of which provides that a "person who commits an act of
indecency upon, or in the presence of, another person
who is under the age of
10 years is guilty of an offence". The term "act of indecency" is not defined
in the Act and whilst there
are many authorities dealing with the meaning of
"indecent assault" counsel was unable to refer me to any authorities dealing
with
the concept of an "act of indecency". However, my attention was drawn to
the decision of the House of Lords in R v Court [1989] 1
AC 28 in which the
relevance of the alleged offender's motive was considered, albeit in the
context of an allegation of indecent
assault. After adverting to the facts in
that case, which involved a shop assistant smacking a 12 year old customer on
the bottom
on the outside of her shorts, Lord Griffiths said, at 35:

  

  

   "Whether or not right-thinking people will consider an action
indecent will
sometimes depend upon the purpose with which the action is carried out. An
obvious example is the examination of an
unconscious woman's private parts. If
carried out by a doctor for a proper medical purpose no-one would consider
such an examination
indecent. If carried out by a stranger for a prurient
interest everyone would consider it indecent . . . The fact is that
right-thinking
people do take into account the purpose or intent with which an
act is performed in judging whether or not it is indecent. If evidence
of
motive is available that throws light on the intent it should be before the
jury to assist them in their decision."

   The meaning
of "indecent" was also considered by the Western Australian
Court of Criminal Appeal in Drago [1992] 63 A Crim A 59. In Phillips
v Police [1994] SASC 4848; 
[1994] 75 A Crim R 480 the meaning of that word fell for determination within
the context of a prosecution for child pornography
said to be "indecent,
immoral or obscene".

  

   It was there said that whether the tapes were "indecent" depended upon
whether
the content offended recognised standards of propriety or good taste
according to the contemporary standards of the Australian community,
those
being judged by reference to standards accepted by ordinary, decent minded,
but not unduly sensitive, people.

  

   26. In
my view one must begin by asking whether the conduct in question is
capable of amounting to an indecent act. If it is not so capable
then an
improper motive will be incapable of converting it into one. On the other
hand, if it is capable of amounting to an indecent
act then the motive and/or
intention of the accused may be determinative of whether it was in fact
indecent. There may also be some
acts which are so intrinsically indecent that
no motive or intention, however benign, could have the effect of depriving
them of
their indecent character. In the present case two issues arise for
consideration. Should I be satisfied beyond reasonable doubt that
the evidence
given by the accused as to his motive in allowing the complainant to touch his
penis should not be accepted? If not,
should I be satisfied that his conduct
in allowing the child to touch his penis for the reasons described constituted
an indecent
act?

  

   27. So far as the first of these matters is concerned, I must say that I am
somewhat sceptical of the accused's evidence.
It is clear that he saw the
child's desire to touch him as having sexual connotations. It is also clear
that having regard to what
had occurred some months earlier he realised he was
taking a risk in permitting her to do so. In these circumstances, it is
difficult
to accept that concern about giving her a negative view of sexuality
provides an adequate explanation for his decision in the context,
it is
equally difficult to accept his explanation that he thought it might have
educational value. He conceded that he may have had
a flicker of an erection
and Mr Whybrow urged me to find that he had been motivated by at least an
initial desire for sexual gratification.

  

   28. On the other hand, I am again obliged to take into account the various
matters which Mr Wendler urged on his client's
behalf and in particular,
evidence of the accused's good character, the fact that he made an apparently
spontaneous series of admissions
to the police about this incident and the
fact that he had given evidence on oath at his trial. I have also taken into
account the
impression I formed of the accused and the evidence of his
interest in alternative lifestyles. This issue is not, of course, whether
the
ordinary member of the community would have formed the views he claims to have
held but whether he did. Having considered all
of these factors I am not
satisfied to the requisite standard that the reasons given by the accused
should be wholly rejected but,
on the other hand, I am so satisfied that these
reasons do not wholly explain his behaviour. I am satisfied to the requisite
standard
that the accused yielded, albeit momentarily, to the temptation to
permit the act as a result of a passing impulse based upon sexual
inclination
or desire though I am equally satisfied that he quickly realised the
wrongfulness of this impulse and turned away.


 

   29. The second question involves a consideration of whether it would offend
contemporary Australian standards of propriety
to permit a 5 year old girl to
hold a man's penis for the purpose of avoiding giving her a negative view of
sexuality or for the
educational value. In determining that question I am
conscious that the accused whom the evidence establishes to be a man of good
character claims to have taken the view that it was appropriate for him to act
in that manner. In my view, however, ordinary, decent
minded but not unduly
sensitive members of the community would regard it as offending those
standards. I am satisfied to the requisite
standard that even if committed
solely for the reasons claimed the act was an indecent one.

  

   30. Accordingly, I also find
the accused guilty of this offence.