R v Jcw [2001] ACTSC 25 (23 March 2001)

Last Updated: 4 May 2002

The Queen v JCW [2001] ACTSC 25 ( 23 March 2001)

CATCHWORDS

CRIMINAL LAW - trial - sexual assaults on young boy by young man 12 years before trial - whether evidence to support that of complainant - opportunity - relationship evidence - admission - need for caution in finding guilt in absence of strong supporting evidence - sexual nature of offence, evidence of events when a child, length of time since events - whether complainant reliable.

Evidence Act 1995

R v Palmer [1998] HCA 2; (1998) 193 CLR 1

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 107

Atchison v Director of Public Prosecutions [1996] ACTSC 107

Gipp v R [1998] HCA 21; (1998) 194 CLR 106

Harriman v R [1989] HCA 50; (1989) 167 CLR 590

Pfennig v R [1995] HCA 7; (1995) 182 CLR 461

Conway v R [2000] FCA 461, 98, FCR 204

No. SCC 3 of 1999

Judge: Miles CJ

Supreme Court of the ACT

Date: 23 March 2001

IN THE SUPREME COURT OF THE )

) No. SCC 3 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: JOHN CHARLES WICKS

Defendant

ORDER

Judge: Miles CJ

Date: 23 March 2001

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty on all counts.

1. The accused pleaded not guilty on indictment to one count of committing an act of indecency upon a child who was then under the age of 10 years, namely 9 years, to a second count of engaging in sexual intercourse with the same child and a third count, in the alternative to the second, that he committed an act of indecency on the same child. He had previously elected for trial by judge alone. All offences were alleged to have occurred between 1 January and 27 September 1988.

2. Some of the names of the witnesses and persons concerned have been omitted in order to protect their privacy.

Sexual assault on a young boy by a young man

3. The prosecution case was set against a background in which the accused, then aged 21 years, came to know the complainant and his family through Cub activities in a Canberra suburb. Some 12 months or so after first making the acquaintance of the complainant, the accused accompanied the complainant and other persons to celebrations for the Australian bicentenary on 26 January 1988. By then the complainant was a boy of 9 years. The celebrations were held outside (now the former) Parliament House. The accused allowed the boy to sit on his shoulders to watch the activities. On the way home in a friend's vehicle the accused complained of a sore neck and asked the boy if he had had "a stiffy".

4. The first offence is alleged to have occurred when the boy, his mother and the younger of his two elder brothers, R, were living in E Close. The boy was at home ill. His mother was at work. The accused came to the residence and they watched a video together with the brother. The boy went to bed and awoke to find the accused in his room. The accused got into bed, took the boy's hand and placed it on his penis and then began to fondle the boy's penis.

5. The second offence is alleged to have occurred when the two boys and their mother moved to S Street later in 1988, and before the boy's tenth birthday in September. The complainant was at home in his bedroom preparing to go to school. His mother had already left for work. The accused arrived, sat next to the boy and after some initial moves, placed his lips around the boy's penis.

6. The prosecution also relied on an alleged inquiry by the accused later in the same year when he asked the boy whether he had been masturbating.

7. There was also evidence which, if accepted, could be taken as an admission by the accused supportive generally of the prosecution case.

8. The case for the accused was that there was an association with the boy and his family, particularly with the brother R, but there was never anything of a sexual nature by way of word or deed between the accused and the complainant. The accused denied being present at the boy's home at any time when the mother was at work. He admitted being at the bicentennial celebrations with the boy and R, but denied any incident in the vehicle. He denied making the admission alleged.

Need for caution

9. Apart from the alleged admission the only direct evidence of the offences came from the complainant himself. There is need for caution in accepting it and, if accepted, acting on it. The caution is tantamount to the care formerly needed to be exercised by a jury in the light of the instruction that a conviction would be dangerous unless the evidence of the complainant was corroborated.

10. This caution to be applied in the present case arises from three aspects: the sexual nature of the offences, the time that has elapsed since the events in question and the fact that when they occurred the complainant was a young boy.

11. The development of the need for corroboration of allegations of sexual offences is long and complex. At the present time, or perhaps more precisely, from the commencement of the Evidence Act 1995 (the Evidence Act), the rule does not have a single or simple rationale. Sexual activity of its nature usually occurs in private and it was said centuries ago, and repeated often since, that allegations of sexual offences are easy to make and hard to disprove. But that is true of any allegation of an offence committed in the absence of anybody else but the victim and the offender. It has also been suggested that the connection between sexual activities and human emotion and other mental states are such that people have all sorts of motives to make false allegations of sexual misconduct. It could be said that absent such motives such scepticism is unwarranted. But the High Court has said that a jury should not be left to ask themselves why a witness would lie: R v Palmer [1998] HCA 2; (1998) 193 CLR 1, discussed further below.

12. The length of time that has elapsed since the events in question is, within common human experience, clearly relevant to the accuracy with which a witness is able to recall such events. However, it is also common experience that perception of some events which occurred long ago may remain firmly and accurately imprinted in the memory for a lifetime. On the other hand, the perception may be flawed, or other events and later experiences may become confused with the events or affect later perception of them. Older people remember, or think they remember, some events from long ago when they know that they do not remember recent events as accurately. Thus, about all one can say with confidence is that the nature of the events and surrounding circumstances at the time in question, and relevant events and experience in the meantime, need to be examined in order to asses how far a witness' recollection of events long past is accurate.

13. Children, like complainants in sexual cases, came to be regarded as suspect witnesses. In some cases, by statute, there could be no conviction unless the evidence of the child successfully passed the test of corroboration. In other cases the jury was warned that it would be dangerous to convict without corroboration. These days writing and some research into the subject seem to indicate polarised views. Some people seem to think that children are incapable of telling anything but the truth ("the child is father to the man"), others think that the capacity of children to imagine, conflate and misdescribe should keep them confined to a category of suspect witnesses. The Evidence Act has abolished the need for corroboration as mandatory (s 164). Nevertheless, a court must in every case scrutinise the evidence of prosecution witnesses in order to ensure that they do not fall into a category or categories which are recognised as being unreliable, or indeed that the evidence may not be reliable for any reason at all.

14. Thus although the Evidence Act does not exhaustively define the categories of unreliable witnesses, a trial judge must recognise that there are such categories. Whilst some categories have ceased to be labelled unreliable (e.g. complainants in sexual cases), others continue to be so (e.g. accomplices) and others have acquired the label (e.g. prison informers). The Evidence Act specifically recognises that the reliability of evidence may be affected by "age, ill health (whether physical or mental) injury or the like": s 165 (1)(C). If age is to be regarded like illness and injury as an affliction, this provision does not appear to apply to the evidence of children. Although the view has been taken by some (e.g. McHugh J in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 107, Higgins J in Atchison v Director of Public Prosecutions [1996] ACTSC 107 at [21], [86], [87]) that the unreliability of the evidence of a child extends to evidence given later as an adult of events which occurred when the witness was a child, I do not think that this is necessarily so. An adult in later years acquires a vocabulary which may enable the adult better to describe what the adult experienced as a child, although evaluation of the description needs to take into account that adult attitudes and experiences in the meantime may change the perception of the event. Thus whilst the adult may have a firm belief in the accuracy of the memory, that belief may be false. Furthermore, the belief may give an unwarranted confidence to the person when relaying what is believed to be the accurate memory.

Evidence for the prosecution

15. All that said, I found the complainant in the present case to be an impressive witness. The central events about which he spoke were events which one would expect to remain in memory even though they occurred some 12 years ago, when the witness was aged 9. The surrounding events, or some of them, were described by him with less certainty. They were not necessarily events which one would expect to remain in the memory.

16. In relation to the bicentennial events, the complainant said that he attended with the accused. He thought that his brothers and a few other adults, but not his mother, were present. He said that the activities on the lawn outside Parliament House included a choir singing and aboriginals protesting, but he could not recall other events. He said that the accused asked if he wanted to climb on his shoulders to see, that he did so and remained there for 20 minutes or half an hour.

17. The complainant's evidence continued as to what happened in the vehicle. He said he returned home with the accused and his brother in the same car in which they had arrived. He did not know whose car it was. He sat in the back seat next to the accused. He did not remember who was driving. The accused rubbed the back of his neck, said that his neck was sore and then in a whisper asked "did I [the complainant] have a stiffy". The complainant said that he took the accused to be asking if he had an erection and in response "just laughed and said no". He said that he thought at the time that it was a strange question.

18. The complainant's evidence as to the first count on the indictment was that it occurred when the family was living at E Close. He was at home working on an assignment on the Vietnam war. His mother had gone to work. R had not yet gone to school. The accused arrived just before lunch. There was a rental video in the house. He recalled that it was "Nightmare on Elm Street". At the accused's suggestion they pulled out a sofa bed and lay on it to watch the video. The complainant was in his flannelette pyjamas. He thought that the accused lay between him and his brother. After watching the video the complainant went back to his bedroom and went to sleep. He was awakened by the accused walking into his room. The accused got into bed with him. They talked for a while. The accused grabbed his hand, put it on the erect penis of the accused and held it there. The accused then put his hand on the boy's penis, started playing with it and asked if it felt "nice". The complainant felt uncomfortable and said something in reply. After 5 or 10 minutes the accused left, telling the complainant "not to tell anyone because this was something special between the two of us."

19. The evidence of the complainant as to the second and third counts concerned events which occurred when the family moved from E Close to S Drive in the same suburb, some time before his tenth birthday. Also living with them was his mother's friend, A. The accused used to visit the house. The complainant thought that the accused was having a relationship with A. One morning after his mother and A had gone to work, and R had left for school, the accused arrived. The complainant was in his room getting ready for school, already in his school uniform, a yellow T-shirt and brown track pants. The complainant said that the accused came and sat on his bed next to him, and touched him in the genital area outside his pants. The accused then pulled the complainant's pants and underpants down and asked if it was all right to lick around his genital area. The complainant could not remember the words used. The accused started then to lick him in that area. The telephone rang. The complainant got up, pulled up his pants and ran to the telephone. It was his mother asking him to do something before he went to school. Whilst the complainant was at the telephone the accused followed him there, whispered "shoosh" in his ear, again pulled the complainant's pants down and began licking him in the genital area. After the telephone call, the complainant tried to pull up his pants. The accused initially resisted. The complainant said that he would be late for school. The accused said not to worry, that he would drive him there. The accused took the complainant back to his room, told him to get into bed, pulled down his pants and again began licking around the complainant's penis and testicles and also sucking on the penis with his mouth over the tip. The complainant kept saying that he had to go to school and "on the third occasion" pulled his pants up and packed his bag. The accused drove him to school and told him to make some excuse why he was late. The car was a black Saab.

20. The complainant also gave evidence about an occasion in November or December 1988 when the family had moved to another suburb. The complainant was in the house, the accused was outside in his car. His brother R came into the house and told the complainant to go out and talk to the accused. The complainant went out and the accused asked "had I [the complainant] been masturbating". The complainant said "no" and went back inside.

21. In cross-examination the complainant said that the vehicle that took him from the bicentennial celebration could have been a light blue 4 wheel drive driven by a man called AH who was a Scout or Venturer leader. All events happened whilst he was a member of the Cubs that met in a hall in a suburb near his home. He never saw the accused at Cubs. From what he could remember the accused was a good friend of R. He was positive that it was the accused and not the man AH who had him on his shoulders, although he appeared to concede that AH might have done so as well as the accused. He did not recall watching the fireworks outside Parliament House. He said that he recalled that he did not have an erection whilst on the accused shoulders. I take it that he meant that when asked by the accused in the car he recalled that he had not. He told a girlfriend about these matters in 1996 but told no-one else until he told police. In particular, he had never discussed it with AH who remained friends with R.

22. The complainant also said that in 1994/1995 R told him that the accused had told R that he, the accused, had done something to the complainant. The complainant's evidence was that he did not say anything in response, he did not deny it nor admit it. In relation to the first offence charged the complainant said that he had a particular memory about his Vietnam assignment because he got help from his present stepfather who was a Vietnam veteran.

23. He said that he had never been molested by his older brother M and had never heard of any allegations that M had molested R.

24. The complainant said that he did not know whether at the time of the alleged offence he was aware that the incident was something he should tell an adult or other persons such as a school counsellor. The accused continued to visit the family after these incidents as he had before. The complainant said that he buried the thought of the incidents and he still feels uncomfortable talking about them. He was positive that he was never molested by AH and that it was not AH who was involved in the incidents. He remembers AH visiting the house only once.

25. In re-examination in answer to a somewhat open question about R "confronting" him in 1994/1995 he said that R had told him "that when he was living with J [the accused], J made him have sex with him." Counsel for the prosecution indicated that no reliance was placed on that evidence.

26. R gave evidence confirming that of the complainant as to the circumstances in which the family and the accused became acquainted. R remained a member of the Scouts in 1988. He remembered going camping and sailing with the Scouts but he did not remember specific instances of such occasions when the complainant and the accused were present. A question in chief about whether he recalled the bicentennial celebration was disallowed as leading and the matter was not pursued either in chief or in cross-examination.

27. R said that in January 1992 he went to the home of the accused at Mawson where the two of them smoked marijuana. There was a conversation in which the accused told him of an experiences in Malaysia "when he had been touched up by a servant", of girlfriends in high school and of "a guy he'd fallen in love with" in high school. His evidence continued:

"He also told me he'd touched my brother... He said he had sex with [the complainant] on two occasions...that he was really sorry he'd touched and stuff, you know."

R added that he thought the accused said that "sex with [the complainant]" happened when the family was living in S Drive, "the last place we moved to with A".

28. R also said in evidence that some weeks later in 1992, when the rest of the family moved back to Canberra from Adelaide, he told the complainant that he knew what had happened between him and the accused. He said that the complainant "just burst into tears" and said he didn't want their mother to know.

29. BT, the mother of the complainant gave evidence of the separation between her and her husband in 1987 and of the various addresses at which she, the complainant, and R lived until she, her later husband and the complainant moved to Adelaide. It seems that they remained there from 1989 to 1992. She also gave evidence of how she and the family made the acquaintance of the accused as an "assistant helper" at the Scout group and of a man called AH, a leader of the Venturer Group which met at the same hall as the Scout group. The mother said that she and the two boys moved to E Place in March 1988, that the accused visited there on occasions, often with A. She had no recollection of the bicentennial celebration. She did not remember ever being made aware that the accused had come to the house when she was not there.

30. The mother remembered an occasion when the accused took A and the two elder boys to Sydney and that he had taken the two boys sailing on Lake Burley Griffin. She also remembered her present husband helping the complainant with his assignment on Vietnam and she thought that she and A both took the complainant to the War Memorial to collect material for the assignment.

31. The mother recollected that they moved from E Close to S Drive in September 1988 and that it was there that the complainant had his tenth birthday.

Evidence of the accused.

32. The accused gave evidence that he was never a member of a Scout or Cub group in the ACT and that he had become involved unwillingly in 1985 upon being asked to assist in a scuba diving lesson. It was on that first occasion that he met M, the elder of the complainant's two brothers. Thereafter he was "emotionally blackmailed" to continue to assist in various ways. He met the complainant's mother in her role as a Cub leader. He also met AH, a Venturer leader. At the invitation of AH and a man called JP he went a couple of times to the house of the complainant's mother and father to take M or R or both on outings in order to relieve the parents. He was aware that the complainant was present at the house when he visited. The outings with the two elder boys continued into 1986. He recalled a visit to Sydney when he and A took the two elder boys there, with another person called AJ. He said that he ceased all involvement with Scouts in mid to late 1987.

33. The accused said that between January and September 1988 he lived in Sydney for the purpose of his work as a production manager with a Sydney radio station and his own business in a recording company. He sometimes visited his parents in Canberra, including visits on week days. The accused recalled that by the time of the bicentennial events, the complainant's mother and father had separated. There was an original suggestion that a group of adults attend the bicentennial celebrations on 26 January but eventually he and AH took the three boys specifically to watch the fireworks. AH obtained the permission of the complainant's mother. It was an opportunity for her and her present husband to have some time to themselves. They travelled to and from Parliament House in AH's blue Range Rover with AH driving and the accused in the front of the vehicle and the three boys in the back. He said that he was certain of this because he was not in the habit of giving up a front seat to a young child. He recalled an orchestra and an aboriginal protest. They arrived at Parliament House about half an hour before the fireworks began, not long after dusk. He believed that he and AH had one or more of the boys on their shoulders from time to time. It was possible that he had the complainant on his shoulders, but he had no recollection of being aware that the boy had an erection. He said "it's certainly not something that would occur to me". He did not recall rubbing his neck, but said that it would be obvious if "you have been taking it in turns carrying kids on your neck for half an hour".

34. The accused said that he took no interest in the complainant after the bicentennial celebration, but, he added, he did notice that the boy was constantly misbehaving. He denied ever asking the boy if he had masturbated.

35. As to the alleged offences themselves the accused denied them absolutely. He said that they were utterly false and that he was disgusted by them. He said that he was never in the house without the mother present and that he "would consider that improper". He was surprised to find a film like "Nightmare on Elm Street" "made available to a 9 year old child". Although he had never seen it, he knew it belonged to the "slasher genre", which was quite popular in the 1980s. He had never been alone with the complainant when visiting. His visits were mainly in response to invitations from the complainant's mother who wanted to do some matchmaking between him and A. He said that he would certainly deny any allegation about events that took place in front of a floor to ceiling window whilst cars were driving past. The accused went on to say that he came to consider the family dysfunctional. The mother used to shout at the children. More pertinently, R had told him that M had been having sex with him virtually continuously since R was 7, and that R had also expressed concern that AH had been molesting the complainant. He did not bring that to the attention of anyone else since he was not sure whether he could believe what R was telling him. The accused gave an involved explanation of the peripheral issue of the occasion in January 1992 when R came to his flat at Mawson. He suspected that R was taking amphetamines, possibly intravenously. R brought some marijuana with him and they smoked it until they were both "stoned". To the suggestion that he had told R that he had been interfering sexually with the complainant, the accused said the allegation was very offensive and that he refuted it completely.

36. There were other items in the accused's evidence-in-chief which should be mentioned. He told of an occasion when R came to his house one night towards the end of 1993 and turned off the power. R denied this.

37. The accused denied ever supplying R with LSD as R had alleged. The accused spoke of another occasion after R had run away to Sydney. The accused, with a chaperone, AJ, went there in order to rescue R and to bring him back to welfare authorities in Canberra. He said that he had tried to find A for the purpose of her giving evidence, but had been unable to do so.

38. On the subject of vehicles, the accused said that from January to September 1988 he had a white Saab Turbo 5 door hatch and that AH had a sky blue 2 door Range Rover. The accused said that he had never been confronted with the allegations until 1998 when he received a summons from the police. He no longer has records to confirm where he was at particular times.

Findings

39. The accused was not an impressive witness as far as his presentation in the witness box was concerned. His answers were often embellished with unnecessary detail, which, if accepted, might be expected to assist him. His evidence also tended to be argumentative in nature. He proffered moralistic views of the dysfunctional nature of the family, which views appeared to grow less and less favourable the longer he gave evidence. However, all or any of these deficiencies in his evidence, if they are deficiencies, are explicable by factors other than guilt. They are matters which do not positively strengthen the prosecution case.

40. A criminal trial is not an inquiry into history. The inquiry is directed to the ultimate issue of whether the prosecution has proved the charge in question beyond reasonable doubt. Rules have been developed as to how a jury should be directed in its task of finding the facts necessary to be decided before the ultimate issue can be addressed. It is sometimes said that the rules are for the guidance of the jury but commonly they are intended to ensure as far as possible that an accused person is not convicted when a reasonable doubt ought be entertained. Some of the rules are enshrined in the Evidence Act, others remain as part of the common law of Australia (e.g. Conway v R [2000] FCA 461, 98 FCR 204).

41. Although the requirement of corroboration has been abolished (Evidence Act s 164(1)) a judge (if requested) must still instruct a jury that the evidence may be unreliable and of the need for caution in determining whether to accept it and the weight to be given to it (Evidence Act, s 165(2)). With that caution in mind, it is necessary to examine whether the evidence of the complainant is supported by other evidence both as to the commission of the offence under consideration, and the identity of the accused as the person who committed that offence.

42. There is only one item of evidence which directly supports the complainant's evidence of sexual assaults committed upon him as he alleges by the accused. That is the evidence of R that in January 1992 the accused told him that he had had "sex" twice with the complainant. I will return to that evidence.

43. Such supporting evidence as there is may go to support the prosecution allegation that the accused had the opportunity to exploit the trust that he had built up in the family. But that evidence, in my view, is not strong. None of the witnesses gave evidence of the accused ever being found or left alone in the company of the complainant. There is no evidence from any of the witnesses that the accused took any particular interest in the boy (except, again, the alleged admission to R in 1992).

44. Whilst I have no reason to reject any of the evidence of the mother, which is confirmed in certain respects by that of the accused, it does not advance the prosecution case except to the extent that it confirms that the accused was a visitor to the family homes at E Close and S Drive and that he took an interest in the two older boys. The accused of course says that his interest was entirely innocent and it was intended to relieve the parents temporarily of the burden of the boys' company. Such an innocent interest would be consistent with the accused's assistance to the Scout group over a period of some time (assistance which, according to him, he lent with some reluctance).

45. The evidence of the accused lends some support to the account given by the complainant about what happened at the bicentennial celebrations. Again the evidence of the accused is not entirely satisfactory. It started with a concession that it was possible that he had had the complainant on his shoulders but by the time he was finished the accused seemed to be asserting positively that he and AH had had both boys on their shoulders for so long that the accused ended up with a sore neck.

46. However, where the complainant's evidence falls down in the light of that given by the accused is on the matter where people were seated in the vehicle. It does seem peculiar that the accused would travel in the back seat either with the boys, leaving the front passenger seat empty, or with the complainant alone and the other boy in the front passenger seat. Although the evidence of the complainant was admitted over objection as relationship evidence, without a finding whether it had been proved beyond reasonable doubt (see below), I am not satisfied beyond reasonable doubt, at this stage, after all the evidence in the trial, that the accused made the whispered remark about the boy having an erection. I think that it is so important that it requires proof to that standard. Thus this evidence about the bicentennial events does not support the allegations as to the offences charged in any material way.

47. Still less is there anything to support the complainant's allegation that after the alleged offences the accused asked him if he had been masturbating. I leave it out of account.

48. That leaves the alleged admission to R that the accused had twice had "sex" with the complainant. I do not think that that evidence is substantially weakened by the fact that the admission was said to have been made some four years after the event. The conduct admitted was not likely to have been forgotten then or since. The admission is alleged to have been made in the context of a general discussion about sexual matters. The relationship between R and the accused appears to have been such that the general subject was not unlikely to have been discussed. Neither counsel sought to develop the evidence on the nature of that relationship but they were not able successfully to prevent the accused and R making some reference to it.

49. Furthermore, neither counsel sought to develop any submissions about the conversation between R and the complainant about the alleged admission to R. I do not place any great importance on R saying that he thought the accused said that the "sex" had happened at S Drive, whereas the complainant said that only one of the assaults occurred at that address, the former being at E Close. But the probative value of the conversation is another matter and I shall return to it.

50. R was a very difficult witness to assess. Apart from a couple of apparent lapses into irony, he seemed to me to be telling the truth as best as he could recall it. The accused admits that there was a conversation on sexual topics at the time and place given by R but he denies making the admission. The difficulty in resolving this issue is that even on R's own account, he and the accused were both heavily affected by marijuana at the time of the conversation. The effect of marijuana on powers of observation and recollection are not matters of judicial knowledge as far as I am concerned. However I am prepared to assume that the effect of marijuana is that it enhances neither observation nor recollection.

51. R and the complainant each supported the other's evidence that R told the complainant about the admission soon after the event. The evidence of each was simple and vivid. It had the solid ring of truth and I accept it, but it is part of the circumstantial evidence in the case and I make no finding about whether I am satisfied beyond reasonable doubt. The difficulty is that it is hearsay as far as the complainant is concerned and self-serving as far as R is concerned. It has very questionable probative value. R's statement to his brother can be no stronger than his evidence to the Court.

52. I conclude therefore that in the whole of the surrounding evidence there is nothing sufficient to give any substantial support to the evidence of the complainant as to the alleged offences.

53. The question then becomes whether, recognising the danger of convicting without such support in the rest of the evidence, I can be convinced beyond reasonable doubt that the complainant is telling the truth about what happened between him and the accused at E Close and S Drive.

54. Mr Collaery for the accused, as I understand it, did not seek to establish by cross-examination that the complainant entirely imagined the events or was lying. Consistent with that approach, the emphasis in Mr Collaery's closing submission was that his client was not involved in those events and, not being involved in them, was not in a position to put positively what had happened or to explain why the complainant would give false or mistaken (but clear) evidence about the sexual assaults. Mr Collaery indeed raised the possibility that the complainant could have been mistaken as to who it was that assaulted him or, for some reason, sought to blame the accused when it was someone else. And that someone else, according to the submission, could have been the man AH.

55. Whilst anything is possible, I do not accept that on the whole of the evidence there is a reasonable hypothesis that the man AH committed the assaults against the complainant. It is in some ways regrettable that AH was not called as a witness as, according to R, he appears to have been available shortly before the hearing commenced, but I repeat, a trial is not an inquiry into truth. There are all sorts of reasons why either party might have chosen to call AH and I draw no inferences from his absence.

56. It is important also to bear in mind that the evidence of the bicentennial matter and the later question about masturbation was tendered and admitted only as "relationship" evidence, that is to put the evidence about the assaults into a relevant context. It would have been necessary to warn a jury that the evidence could not have been considered as "tendency" evidence under s 97 of the Evidence Act, that is, going to prove the commission of the offences by reliance on a prurient sexual interest on the part of the accused towards the complainant: Gipp v R [1998] HCA 21; (1998) 194 CLR 106. There are difficult questions whether, for the purpose of admissibility, the relevant facts sought to be proved by tendency evidence to establish beyond reasonable doubt to the satisfaction of the trial judge: Harriman v R [1989] HCA 50; (1989) 167 CLR 590 at 602, Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 482, Conway v R. However it seems that the trial judge does not have to warn the jury that as "relationship" evidence the facts have to be proved beyond reasonable doubt (see Gipp v R at [79], 133 per McHugh and Hayne JJ) and at [141], 156 per Kirby J). The problem does not need to be addressed in this case. I approach the evidence with the caution with which a jury would be instructed to approach it. I am aware that it is not to be used as tendency evidence. Nevertheless I think, as a tribunal of fact, that the relationship evidence is so important in the prosecution case that it should be proved beyond reasonable doubt.

57. There is a rule, perhaps recently established in R v Palmer, that an accused person may not be cross-examined as to why an adverse witness would lie. There is a view that it may follow that prosecuting counsel is not permitted to suggest to the jury that they should ask themselves why a witness would lie, nor may prosecuting counsel suggest to the jury that they should consider why any witness would tell anything but the truth. But it is far from clear that there is a rule that a jury must be instructed that they must not ask themselves those sorts of questions. Sitting as a jury, I find it impossible to approach the case without asking the question why the clear and cohesive evidence of the complainant on the central issues should be rejected because his evidence was essentially fabricated or essentially a creature of his imagination.

58. But it is said that whilst evidence of motive may weaken credibility, absence of motive is neutral, and that prosecution case is not strengthened by an absence of an answer to the question why a witness would fabricate or imagine. It is simply that a potential source of weakness of the evidence of that witness cannot be identified.

59. Speculating about the motive of an accused person to tell other than the truth is however in a different category. Once the issue is raised, the jury must be told not to consider the matter of the accused's motive in relation to telling the truth but simply to have regard to the onus and standard of proof, the right of silence and so on. It seems that the tribunal of fact, be it judge or jury, must not take into account the possibility that an accused person sworn to tell the truth may not do so for fear of being convicted. In those circumstances, despite the compelling nature of the complainant's evidence, it is not sufficiently supported for me to conclude, that in the light of the evidence of the accused, I am convinced beyond reasonable doubt of his guilt on any count. There will be a verdict of not guilty on both counts.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 23 March 2001

Counsel for the Prosecution: Mr C Todd

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Accused: Mr B Collaery

Solicitor for the Accused: Bernard Collaery & Associates

Dates of hearing: 8 and 9 March 2001

Date of judgment: 23 March 2001