R v Kj [2001] ACTSC 71 (10 July 2001)

Last Updated: 11 June 2002

R v KJ

[2001] ACTSC 71 (10 July 2001)

CATCHWORDS

CRIMINAL LAW - s 92K1 Crimes Act 1900 (ACT) - act of indecency upon young person alleged - where offence not made out - lack of evidence from material witnesses

No. SCC 37 of 2001

Judge: Gyles J

Supreme Court of the ACT

Date: 10 July 2001

IN THE SUPREME COURT OF THE )

) No. SCC 37 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: The Queen

AND: KJ

ORDER

Judge: GYLES J

Date: 10 July 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The accused befound not guilty.

2. The accused be discharged.

1. The accused has been arraigned on a charge that on the 5^th day of November 1998 at Canberra in the Australian Capital Territory he committed an act of indecency upon the complainant who was then under the age of 10 years, namely 3 years.

2. The substantive evidence against the accused has been given by Diana Catanzariti. Ms Catanzariti says that she, in company with her then fiance, Lee Thompson, visited the flat in which the accused resided on 5 November 1998 for two purposes: the first was to pick up a friend called John who had gone to the flat earlier in the day and the second concerned the sale of a dog which had previously been discussed by Ms Catanzariti with the accused. She knew the accused and had visited his flat several times previously. She lived in a nearby block of flats. She says that when she visited his flat the accused was mumbling and difficult to understand. He was able to communicate to her that John had left and that he would take the dog. She observed the accused's three-year-old son sitting naked on a chair watching television. The accused was "sort of lying side-on in front of the chair" with his hand between his son's legs and on his penis, which the accused was masturbating. The accused got up and got the boy a drink of milk from the refrigerator. The boy drank some milk. The accused resumed his former position and continued to masturbate his son. The son had a towel over his lap. It was also Ms Catanzariti's observation that the accused was "out of it" because of the intake of alcohol and/or drugs. The witness and her fiance left. In cross-examination, certain discrepancies in the evidence of Ms Catanzariti emerged. Those discrepancies are of no consequence save for the issue of the towel: the witness conceded that she could not actually see the hand of the accused on the penis of the boy. Ms Catanzariti's evidence was that she could see the towel moving.

3. The other witness of fact had lived with the accused for some time, was the mother of five children by him, including the son in question, but had separated from him some time prior to the incident in question. She gave evidence that the accused was given to serious abuse of alcohol and other drugs, although he was responsible with the children when sober. She had occasion to contact the accused by telephone around lunchtime on 5 November 1998. She quickly gleaned that the accused was "off his face" and not in his right mind. She also spoke to a person called Brent, a man in his twenties, who she had previously met at the accused's flat, who told her that her son had no clothes on and that he, Brent, was not willing to go into the room to get clothes for the boy. The mother told him to cover the boy up with a towel. She then called a taxi and went immediately to the accused's flat. The door was wide open. She saw her son sitting on a chair, naked, with a towel over his lap. The accused was slumped near the table, incoherent and "out of his right mind", as she put it. She immediately dressed the boy and took him home. In cross-examination she agreed that although her son was quiet and initially a bit frightened and confused, there were no apparent physical manifestations which caused her concern.

4. The prosecution tendered a taped interview with the accused which took place on 9 November 1998, in which the accused denied the allegation but refused, on legal advice, to answer questions. Reference was made in this interview to the accused having been arrested for being drunk and disorderly on the evening of 5 November 1998. A police officer who had taken part in, but was not in charge of, the investigation corroborated that fact. He was unable to give any indication as to whether there had been any inquiries from or about John or Brent. His recollection (unaided by notes) was that, when interviewed, Ms Catanzariti had said that Lee Thompson was unwilling to assist police and that her relationship with him was breaking down. Ms Catanzariti gave evidence that Lee Thompson had left her flat on the morning of 6 November 1998, not to return, and that she had lost touch with him. The police officer could not assist as to contemporaneous inquiries concerning Lee Thompson, although apparently later inquiries had been made. No evidence was given as to those inquiries.

5. At the request of the defence, the prosecution tendered a report of the Child at Risk Assessment Unit concerning the boy as a result of a consultation on 16 November 1998. This report is curious, as the allegation recorded there is that the accused had masturbated in his son's presence, notwithstanding that the accused had been charged with the present offence some days earlier.

6. No evidence has been called by the defence.

7. The prosecution says that the evidence of the mother corroborates that of the eyewitness in important respects and that there is no reason at all to disbelieve Ms Catanzariti.

8. The defence says that the discrepancies in the evidence of Ms Catanzariti, firstly, are such that she should not be accepted and, secondly, make the evidence of the eyewitness, Lee Thompson, vital. There is no explanation for his absence. It is put that this is of particular significance as the denials by the accused were known at the time Ms Catanzariti was interviewed. It was argued that I should assume that his evidence would not assist the Crown case. It is also put that both John and Brent may have been able to give relevant evidence and, again, there is no explanation for their absence. The accused relies upon his denials in the police interview.

9. I regard Ms Catanzariti as a witness who endeavoured to tell the truth when giving her evidence and do not doubt her good faith in relation to the matter. Such discrepancies as there were in her evidence are the result of the usual problems of precise recollection compounded by the passage of time, particularly for a person who presented as somewhat simple and not used to formalities. In general, I accept her evidence.

10. However, the towel was covering the actions of the accused and the evidence given of masturbation is an inference or a conclusion rather than actual observation. The corroboration of the mother does not assist in relation to that factor. I take into account the unlikely occurrence of the bizarre nature of the alleged behaviour of the accused, if it occurred, being in front of others, interrupted by obtaining a glass of milk. On the other hand, the accused was undoubtedly heavily under the influence of drugs and barely cognisant of his surroundings. I note the lack of complaint by or obvious effect upon the boy, but give this little weight because of his age.

11. Whilst these circumstances do not preclude a finding of guilt, there is substance in the submission of counsel for the accused that they make the absence of evidence from Lee Thompson and, to a lesser extent, John and Brent, significant.

12. Taking all factors into account, I cannot be satisfied beyond reasonable doubt of the guilt of the accused. I therefore find the accused not guilty as charged. The accused is discharged.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles

Associate:

Date: 12 July 2001

Counsel for the prosecution: C Todd

Solicitor for the prosecution: Director of Public Prosecutions, ACT

Counsel for the accused: J Sabharwal

Solicitor for the accused: Legal Aid Office, ACT

Date of hearing: 10 July 2001

Date of judgment: 10 July 2001