R v Ar [2002] ACTSC 77 (6 August 2002)

Last Updated: 7 August 2002

THE QUEEN v AR

[2002] ACTSC 77 (6 August 2002)

CATCHWORDS

CRIMINAL LAW - sexual intercourse with young person.

CRIMINAL LAW & PROCEDURE - trial by judge alone - judge to make necessary findings of fact and direct self as to the law.

EVIDENCE - assessing contradictory evidence.

EVIDENCE - evidence by accused - accused not required to give evidence - assessing evidence of the accused - direct denial of complainant's evidence by accused.

Crimes Act 1900

No. SCC 160 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 6 August 2002

IN THE SUPREME COURT OF THE )

) No. SCC 160 of 2001

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

AR

REASONS FOR DECISION

Judge: Higgins J

Date: 6 August 2002

Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of not guilty be entered.

2. The accused be discharged from custody.

1. On 11 June 2002 the accused, AR, was arraigned and entered a plea of not guilty to a charge that he:

"...on the 3 February 2001 ... engaged in sexual intercourse with [KM], who was then under the age of 16 years, namely 13 years."

2. The date of the alleged offence was, on 20 June 2002, amended to "between the 26 January and 4 February 2001".

3. Prior to the fixing of a date for trial, the accused elected for trial by judge alone. Accordingly, the matter proceeded as a trial by judge alone. Thus I must make any necessary findings of fact as well as directing myself as to the law.

4. I must bear in mind that the prosecution bears the onus of proof. It does not shift to the accused even if, as occurred here, the accused chooses to give and adduce evidence. The standard of proof is high. I must be satisfied beyond reasonable doubt of any facts necessary to find guilt.

5. In approaching that task, I must also bear in mind the presumption of innocence.

6. In assessing the evidence, I must also bear in mind that witnesses may give contradictory evidence and may both honestly and confidently be quite wrong. Some witnesses may have a motive for giving false evidence.

7. In the present case, the Crown has to prove only that, at Canberra, between 26 January and 4 February 2001, the accused engaged in sexual intercourse with KM. The Crown does not have to prove lack of consent. As KM was 13 years of age at that time, consent is irrelevant. Nor does the Crown have to prove anything more for the purpose of this case than that the accused inserted his penis to some extent into KM's vagina, that being the form of sexual intercourse alleged in this case.

8. It was not suggested that the accused was unaware of KM's age and he is certainly more than two years older than she is. The matters of defence referred to in s 55(3) Crimes Act 1900 (the Crimes Act) thus have no application.

9. The offence provided for by s 55(2) of the Crimes Act, is, on conviction, punishable by imprisonment for 14 years.

10. I turn to the evidence in the case.

11. The complainant (KM) gave evidence, as she was entitled and, indeed, required, in the absence of a contrary order, to do, by closed circuit television.

12. I remind myself, as I would a jury, that no inference, adverse to the accused or the witness, follows from the adoption of this mode of giving evidence.

13. KM gave evidence that, at the date of the alleged offence, she, her parents and her two sisters lived next door to the accused, his wife and three children. The youngest of those children was a baby. KM was then 13. The accused's children were quite young and KM, from time to time, babysat the accused's children (as did one of her sisters). Sometimes she would stay overnight, sleeping in the baby's bedroom.

14. On the night in question, which was, it was agreed, Saturday, 3 February 2001, the accused's wife decided to go out with a friend, Ms Nanette Rogers. She asked KM to babysit as she was not sure what time she would be home. The accused had arranged an early morning golf game with KM's father. Hence, KM would need to stay over to give the children breakfast.

15. On that Saturday, the accused had been at a football match with his two elder children and the friend referred to above (Ms Nanette Rogers). He arrived home as Mrs AR was getting ready to go out. He put the two older children to bed. KM was there. She said she had been at the R house (accused's house) since 6.00 pm. She apparently was, at that time, asked by Mrs AR to babysit.

16. When Mrs AR left, KM said, she went home to get her pyjamas and clothes for the next day. She changed into her pyjamas on her return and settled down to watch a TV film "Major Payne".

17. The accused, she said, made himself some dinner. "He was sitting on the lounge watching `Major Payne' as well," she said. She was asked, "What happened after that please?" --- "He went and got changed into his pyjamas as well". She described those pyjamas as "blue boxer shorts" and nothing else. The accused then "came back out to watch the rest of the movie". He lay on the lounge. She sat in an armchair.

18. Then she said, after the movie finished the accused asked her if she was going to bed. She said, "No". He then told the dog, which was barking, to "shut up" and without further ado, lifted her under the arms and, she said:

"I started walking down to the spare room in [the baby's] room where I was staying."

He then turned the TV off and:

"...then as I was walking past his bedroom, he grabbed me around the waist ...Then he started kissing me on the neck and then he took me into his room ... he put me on the bed ... He pulled my arm ... then he (witness crying) then he took my pants and my undies off ... he started to have sex with me ... He stuck his penis inside me ...In my vagina ...Then he stopped and said, `This is our little secret' and then told me to go have a shower."

19. She did so. She also went to the toilet and noticed "I was bleeding and there was this white stuff ... from my vagina".

20. The complainant then went to bed. She felt, she said, "Scared and I was hurting ... in my vagina".

21. She remained in the house till the accused returned home from golf. Mrs AR was not home yet. She did not tell her mother (or father) what had occurred because, she said, "I was scared".

22. The next Friday afternoon (9 February 2001) she spoke to a friend [BA]. She was at the shops with BA, she said and "I told her that AR [the accused] had sex with me". She did not, she said, know if BA knew the accused.

23. However, it emerged in cross-examination that the complainant had, more than 10 times taken BA to the accused's house. She was asked:

"Did you ever say to [BA] that you thought that AR [the accused] was good looking?"---"No."

"Did BA ever say to you that AR [the accused] was good looking?" ---"Yes."

"...Did BA say to you that she found AR [the accused] to be a spunk...?"---"No."

24. She further denied she had said any such thing or that she had been "bragging" to BA about having had sex with the accused.

25. The relative timing and sequence of the visits, the conversations referred to and the event claimed to have occurred on 3 February 2001 was not made clear.

26. The complainant did agree that on the previous night, (19 June 2002), that is, the day before the trial, she had spoken to BA on the telephone. She denied, however, that she had asked BA not to reveal that she (KM) had told BA that she (KM) had "wanted to have sex with AR [the accused]".

27. She further admitted that after she had been asked by Mrs AR to babysit she had gone home and asked her father for permission to do so and the accused was then at her house playing some computer game with her father. It was not until later that he returned to the house. Contrary to the impression given in her evidence in chief, she conceded that the accused did not sit down and watch the movie with her throughout.

28. She further conceded that following 3 February she, as well as BA, continued to visit the accused's house, indeed there was a party at his house and one at hers that both families, including herself, attended.

29. BA gave evidence. She agreed she knew the accused, but said that it was not until "about the middle of the year" that the complainant "told me what had happened between her and AR [the accused]". She agreed it was a Friday afternoon at the shops. That much agreed with the complainant's evidence. When asked what had been said by the complainant, BA said:

"... she asked me first if I could keep a secret and I said yes, and then she said that she had sex with AR [the accused]."

30. She had said that this was "a few weeks after it had happened".

31. In cross-examination she was asked:

"Did you and KM speak about that [meeting the accused] and say, `Good looking bloke'?"---"Yes."

"And did you further say, `He's a bit of a spunk'?"--- "Yes."

"And how long after talk of that type did KM say, `I've had sex with AR'?"---"Well, about a few months after I had met him she told me about it."

"And did she tell you that she enjoyed having sex with him?"---"Yes."

"You spoke to KM last night by telephone?"---"Yes."

"Did you tell her that if asked you would tell that KM had told you she had rather wanted to have sex with him?"---"Yes."

"What did KM say to you?"---"Well, KM said that she wanted it to happen, but then she told me that it was just something that happened."

"Last night when you spoke to KM did you tell her that if asked you would tell that KM wanted it to happen?"---"Yes."

"What did KM say to that?"---"She said, `Can you please not say that I wanted it to happen?', and I said, `Well I'm just going to tell the truth.'"

32. This evidence was, of course, totally destructive of KM's credibility, though it did not necessarily deny the commission of the offence. It also cast doubt on when, if at all, the event reported to BA had allegedly occurred.

33. The offence charged would be committed whether or not KM consented to sexual intercourse. Her statements to BA were consistent with, though not corroborative of intercourse having occurred, albeit consensually rather than as KM described it.

34. But the evidence did not stop there.

35. KM's mother, HM, gave evidence that KM had stayed at the accused's house overnight on 3 February 2001 to babysit as sometimes she had done before. HM was then herself going out at about 6.30 pm. HM's recollection was that the accused was then at her home whilst KM was at the accused's house talking with Mrs AR. If that evidence is correct, it could not, given the time the accused in fact arrived home, have been before 9.00 pm. HM returned home, she said, about 10.30 pm and spoke with her husband, JR. From speaking with her husband, she understood that KM had gone to babysit next door as JR and the accused intended to play golf early in the morning. Her observation of KM after the alleged event (on Sunday 4 February) was -

"She sort of breezed in through the house and waltzed back out again, I was in the kitchen I think."

36. The only possible support for the complainant's evidence, given by HM, was an observation that, after 3 February 2001, KM had visited the R's house only on occasions when the accused was not there and she had someone with her (no doubt including BA).

37. That is, of course, a retrospective observation. It carries little or no adverse weight. Indeed, it was qualified further by the lack of any apparent change in KM's demeanour towards the accused on subsequent social occasions even within the next week.

38. Ms Nanette Rogers was a friend of the Rs. It was she who, on 3 February, had gone to the football at Goulburn with the accused and his two stepchildren. The accused drove his car to and from the game. He dropped Ms Rogers off at her home at about 8.30 pm. She then arranged to go out with Mrs AR who arrived at her house at Phillip about 9.50 pm. The latter stayed the night.

39. It appears, from the evidence of Constable Guiliana Serenellini, that no complaint was made to police until (or shortly before) 9 April 2001. That is not entirely consistent with BA's evidence as to the time she was told of the event. However, I bear in mind that BA was giving evidence of something that had occurred over 12 months before. It does not raise any doubt in my mind as to the truthfulness of BA's testimony. I think the conversation with KM occurred later than the latter deposed but earlier than BA now recalls.

40. In cross-examination Constable Serenellini agreed that KM had told her that the accused, at the time of the alleged offence, had been wearing blue boxer shorts "with Mickey Mouse on them". She did not believe she was told about the accused kissing the complainant on the neck. Further KM had told her that the accused, contrary to her evidence in chief before me, had taken off her top as well as her pants.

41. KM had given the date of the event as being "between 27 January, which is still during the school holidays, and 7 February". 3 February 2001 is within that time frame.

42. There are some omissions of significance in the Crown case. Dr Packer, a paediatrician, had examined the complainant. However, the Crown conceded nothing she had to say would have advanced or supported the prosecution case. However, JR was not called either. He would have been able, at least if he recalled anything, to say when it was that the accused left to return to his home on the evening of 3 February 2001. That might have been consistent with the complainant's evidence concerning the watching of the TV movie or it might not. Either way it would have assisted to find the truth.

43. In this case, though he was not obliged to, the accused gave evidence. I take account of that, as I must, in assessing his testimony.

44. He said that he had returned from the football, after dropping Ms Nanette Rogers off, between 8.45 and 9.00 pm. That was consistent with Ms Rogers' evidence. It is also consistent with the attendance of the accused and his stepchildren at the football match in Goulburn.

45. He further said that he and Mrs AR put the two older children to bed (the baby was already in bed). KM was already present. He was asked what next he did -

"I went and made myself some dinner and went down - and then I went next door and played golf on the PlayStation."

46. He was not alone. He was playing that game with JR until roughly 11.30 pm. When he returned home KM was, he presumed, already in bed. This was a direct denial of KM's evidence. It was evidence that, if it was possible to do so, might have been contradicted by KM's father. He was not called. The accused did not see her at all until after he returned home from his golf match with JR. He had not, it followed, sat down with KM to watch the movie on television.

47. He further denied that he then (or ever) had a pair of blue Mickey Mouse boxer shorts. He further made the point that he had not known when Mrs AR was likely to return. He specifically denied the allegations KM made concerning the occurrence of sexual intercourse between them.

48. There was nothing in the accused's evidence on in the manner in which he gave it which raised the slightest doubt about his veracity.

49. Mrs AR gave evidence confirming the babysitting arrangement with KM and when and how it was made. She gave evidence that there had not, when she next inspected them, been any "marks" on any of the bed sheets. She was asked to confirm, and did so, that the accused had no Mickey Mouse boxer shorts at the time. She was not asked if he had any blue boxer shorts at all. However, he had denied it and the prosecution did not ask Mrs AR whether he had any kind of blue boxer shorts, other than Mickey Mouse ones.

50. Mr Robertson, for the Crown, conceded that the case was one where it was KM's word against that of the accused. He further conceded that there was no evidence of any other occasion where the accused had demonstrated any inappropriate interest in KM, nor any inappropriate comments or gestures which might have supported an inference of some kind of "guilty passion" on his part. Nor did KM allege any such conduct on the part of the accused on any other occasion.

51. Nevertheless, as Mr Robertson submitted, the evidence, even accepting the 11.30 pm return of the accused to his home, did not rule out the possibility of the offence occurring even if it did not occur as KM had said that it did. It was also conceded that BA's evidence, relied on as supporting KM's account of an offence having occurred, could not be ignored insofar as it was not consistent with her evidence.

52. I accept Mr Robertson's point that, on her account of it, KM's delay in reporting the matter is not significant. That must, of course, be qualified by the consideration that, if the event occurred as BA was told by her that it had, there was nothing of which KM might have wished to complain. Indeed, she was, on that account, gratified by the event not aggrieved by it. That would not, of course, have relieved the accused of culpability. Even if KM had wished to have sexual intercourse with the accused, it would be a serious abuse of her to have permitted that to happen.

53. Mr Sabharwal, for the accused, made the point that there was no context which would explain why the accused, a married man of about 25, with three children (albeit the youngest only was his child) should decide to have sex, on her account of it against her will, with a 13 year old girl. He pointed to the uncorroborated detail about the boxer shorts, the lack of any sign that intercourse had occurred, the lack of any apparent aversion towards the accused on the part of KM in the months following.

54. BA's evidence was, of course, pointed to for its inconsistency with KM's evidence as were the inconsistencies between KM's evidence and her police statement.

55. The other evidence, including that of the accused added, it was submitted, to the lack of any likelihood that the offence occurred.

56. On the evidence given, it seems to me impossible to find guilt. To do so, I would have to be satisfied beyond reasonable doubt that sexual intercourse had taken place between KM and the accused. Of course, even if it had taken place only as reported to BA, it would still be a serious offence, as I have noted. It would, nevertheless, have explained the lack of complaint until April 2001.

57. But the fact that BA was told that KM "had sex with" the accused may have been the result of a desire to seem sophisticated and attractive to an older man, perceived by both BA and KM to be "a bit of a spunk" rather than as representing the truth. Particularly this is so when that conversation referring to having sex followed visits by both BA and KM to the accused's home and their conversations regarding his attractiveness.

58. It was important, if KM's account was to be accepted, that the opportunity for intercourse occurred as she said it had. On the accused's account, the opportunity was, relatively, minimal. His account could have been contradicted by KM's parents. Her mother said she returned home at 10.30 pm and spoke to her husband but was not asked if the accused was still there. He was, KM admitted, present when she went to tell her father that Mrs AR had asked her to babysit and was playing computer games. Even so, the exact time of HM's return and when the accused left the complainant's household was not addressed.

59. It is only necessary that I have a reasonable doubt as to whether the event alleged by the Crown occurred. In the present case, I am not satisfied that it did. Indeed, given the unsatisfactory and unsupported nature of KM's evidence and the extent to which it was contradicted by other evidence, the truthfulness of which latter evidence cannot be doubted, particularly that of BA, I am positively satisfied that it did not. To that is to be added the evidence of the accused. I have no doubt that his evidence represents the truth. Often such evidence merely raises a reasonable doubt.

60. In this case, indeed, it appears that KM not only gave false evidence concerning the matter but attempted to procure false evidence from BA. That conduct has caused considerable damage to the accused and his family not to mention the cost to the public of the waste of police, prosecution and court time. It was both criminal and irresponsible.

61. I record a verdict of "not guilty". The accused is discharged from custody.

62.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Decision herein of his Honour, Justice Higgins.

Associate:

Date: 6 August 2002

Counsel for the Crown: Mr A Robertson

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the Accused: Mr J Sabharwal

Solicitor for the Accused: Legal Aid Office

Date of Hearing: 21 June 2002

Date of Decision: 6 August 2002