R v Eg [2002] ACTSC 85 (28 August 2002)

Last Updated: 5 September 2002

THE QUEEN v EG [2002] ACTSC 85 (28 August 2002)

CATCHWORDS

CRIMINAL LAW - trial by judge alone - meaning of "act of indecency" - relevance of motive or purpose.

EVIDENCE - unsworn evidence by child in trial for sexual assault - whether corroboration required - considerations affecting weight of the evidence.

Supreme Court Act 1933, s 68C

Evidence Act 1995 (Cth), ss 8, 13, 68, 144, 164, 165

Evidence Act 1971, s 76F

Drago [1992] 63 A Crim R 59

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

R v Court [1989] AC 28

Dossi (1918) 13 Crim App R 158

Hargan v The King [1919] HCA 45; (1919) 27 CLR 13

R v Davies (1915) 11 Cr App R 272

R v Manser (1934) 25 Cr App R 18

DPP v Hester [1973] AC 296

R v Schlaefer (1984) 37 SASR 207

B v The Queen [1992] HCA 68; (1992) 175 CLR 599

No. SCC 48 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 28 August 2002

IN THE SUPREME COURT OF THE )

) No. SCC 48 of 2002

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

EG

FINDING

Judge: Crispin J

Date: 28 August 2002

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty of the offence that on 31 October 2001 he committed an act of indecency upon KM who was then under the age of 10 years, namely eight years.

1. The accused was arraigned before me on a single count charging that on 31 October 2001 he committed an act of indecency upon a young girl who was then under the age of 10 years. Since it was obviously undesirable to permit her identity to be revealed, I ordered that there be no publication of her name and, since she might have been identified by reference to the names of either her mother or the accused, I also ordered that there be no publication of their names. For present purposes she may be referred to as "the complainant" and her mother may be referred to simply as "the mother".

2. Upon his arraignment the accused pleaded not guilty to the count.

3. Since the accused elected to be tried by Judge alone, I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section 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 a verdict of the 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 Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

4. As in trials by jury, the accused is entitled to the presumption of innocence, the Crown bears the burden of proving each element of each charge and the standard of proof is proof beyond reasonable doubt. The verdict must be determined solely by reference to evidence properly admitted at the trial or matters of common knowledge which may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth), ("the Commonwealth Evidence Act").

5. The offence charged involves three elements, namely: that on the date specified the accused committed an act of indecency; that such act was committed upon the complainant; and that she was then a person under the age of 10 years.

6. The first of these elements requires some explanation. There seems to be a paucity of authority on the meaning of the phrase, "act of indecency", though the meaning of the word "indecent" has been considered in other contexts. See, for example, Drago [1992] 63 A Crim R 59; and Phillips v Police [1994] SASC 4848; [1994] 75 A Crim R 480. In the latter case, which related to a prosecution for child pornography, a Full Court of the Supreme Court of South Australia suggested that the videotapes in question should be regarded as indecent if the content offended recognised standards of propriety or good taste according to contemporary standards of the Australian community, those being judged by reference to standards accepted by ordinary, decent-minded but not unduly sensitive, people. This decision does not bind judges in this jurisdiction but the opinion of such a respected Court must obviously be given considerable weight. Nonetheless, whilst I agree that a value judgement must be applied, I am unable to accept the adequacy of this description. In the context of the criminal law, I am unable to accept that either acts or their visual depiction can properly be regarded as indecent merely because they offend standards of good taste. It is true that the Macquarie Dictionary defines the word as meaning "offending against recognised standards of propriety or good taste", and that even the Oxford Dictionary includes the phrase, "in extremely bad taste". However, in ordinary usage the word "taste" refers to matters of aesthetic appreciation rather than propriety. As the contemporary smorgasbord of literature, music, television, art and even architecture amply demonstrates, tastes may vary. George Bernard Shaw once even suggested abandoning the golden rule to do unto others as you would have them do unto you because the tastes of others may not be the same (Maxims for Revolutionists at 227). Furthermore, even if some uniform standard could be established which represented an aesthetic Plimsoll line below which ordinary, decent-minded Australians could be expected not to sink, it would be difficult to accept that any infringement should be regarded as an act of indecency. To take but one example, few would doubt that it would offend standards of good taste for a dinner guest to blow his nose on the hostess's tablecloth but such vulgarity could not be regarded as an act of indecency constituting an offence under the relevant provisions of the Crimes Act 1900 ("the Crimes Act"). Even the concept of impropriety is too broad to adequately delineate the type of misconduct to which the relevant sections of the Crimes Act are directed. Lying, stealing and a wide range of other misconduct offend against standards of propriety but they are not acts of indecency. The relevant sections are obviously directed to serious offences of a sexual nature. Hence, in my opinion, an act of indecency must be an act that offends against contemporary standards of sexual morality accepted by ordinary, decent-minded but not unduly sensitive people.

7. Even that formulation may require a court to consider not only the nature and quality of the act but the motive for doing it. In R v Court [1989] AC 28 Lord Griffiths explained, 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 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.

8. In the present case, the Crown alleges that the act of indecency was committed upon the complainant rather than in her presence. Hence, the nature of the act must also be one capable of being committed upon a person.

9. The Crown pointed out that the complainant was still only nine years of age and indicated that he intended to call her to give unsworn evidence. Accordingly, I was obliged to consider the provisions of s 13 of the Commonwealth Evidence Act. That section is in the following terms:

(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.

(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:

(a) the court is satisfied that the person understands the difference between the truth and a lie; and

(b) the court tells the person that it is important to tell the truth; and

(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.

(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.

(4) A person is not competent to give evidence about a fact if:

(a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and

(b) that incapacity cannot be overcome.

(5) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit.

10. I was informed that it was common ground that the complainant was not competent to give sworn evidence, but Mr Doig, who appeared for the accused, did not dispute that she was competent to give unsworn evidence. The Crown referred me to particular pages in the transcript of the committal proceedings in which the committing magistrate had asked a series of questions relevant to her competency to give evidence. Having regard to the provision contained in subs (7) I took the view that I was entitled to inform myself in this manner. In view of those questions and answers and the agreement of counsel, I concluded that it was unnecessary to further examine the complainant on these issues. I was satisfied that, whilst she was not competent to give sworn evidence, she was competent to give unsworn evidence. I duly told her that it was important to tell the truth and she indicated, by responding appropriately when asked, that she would not tell lies in the trial. She was then permitted to give unsworn evidence.

11. Much of what she said was not in dispute. The accused was married to the complainant's mother and was the complainant's stepfather. She said that she called him "Dad". By October 2001 he and the complainant's mother were employed in the same occupation but worked different shifts with the accused working from 9.00 am to 5.00 pm and the mother working from 7.00 am to 7.00 pm. The complainant, who was then eight years old, used to walk to school in the morning and go to an after school care facility in the afternoon. The accused would pick her up when he finished his shift and have her home by about 5.30 pm each day. She would then be in his care until her mother returned home shortly after 7.00 pm. During that period she would have a shower. She agreed that the accused had been a "good dad" and that until the alleged offence she had liked him.

12. The complainant said that when they returned to their home on Wednesday, 31 October 2001 the accused told her to go and have a shower. She used the upstairs shower rather than the bathroom adjacent to her mother's bedroom. When she had finished and was drying herself the accused came in and said, "I want a cuddle". She said, "no" and explained that she was still drying herself. He left the bathroom and she went into her bedroom to put on her pyjamas. She subsequently saw him in the kitchen and he called out, "go down to mum's room, I've got a surprise for you". As she went to the room he called out "put the blankets over your head". She duly got onto the bed and put the blankets over her head before hearing him walk into the room. He told her to take the blankets off and she saw that he was wearing only underpants. She said that he then got into the bed, got onto her "tummy" and started going up and down with his "bum" touching her. Then he got off, put her hand on his hand and put it onto his "doodle". He began squeezing her hand while it was in that position. After some time, he stopped, put his hand down her pants and started squeezing her "front bottom". Then he got back onto her as she lay on her back and resumed "going up and down". He stopped to kiss her "boobies", then pulled down her T shirt and got back onto her. At this stage she said, "he came up a little bit closer to my face and put his doodle in my face". She tried to stop it by holding her hands out as if to push him away. She said that, "then he got off and then he laid me on my side and he put his doodle up my bum and he started going up and down really really quickly. And all yucky stuff came out". She said that he was saying "keep it a secret, keep it a secret, don't tell mum, you'll get in trouble". When he got off the bed she asked "can I have a shower, cause I want to wash all that yucky stuff off". He said "no". She then went into her room to wait for her mother to come home.

13. It is clear from the balance of her evidence that in using the term "doodle" she was referring to the accused's penis, in using the term "front bottom" she was referring to her genital region, in using the term "back bottom" she was referring to her anal region and that in using the term "boobies" she was referring to her breast area.

14. It would obviously be an act of indecency for a man to touch a young girl's anus with his penis in the manner alleged and the real issue in the case was whether the evidence proved the commission of such an act to the requisite standard.

15. The complainant did not raise the matter with her mother that night but on the following Friday night when her mother was putting her to bed, she told her that the accused had been "having sex with her". She said that her mother confronted the accused with the allegation. The accused said, "that's not true" and the respondent replied, "that's true Dad, how could you lie?"

16. The Crown also tendered a poster which had been on the door of the complainant's bedroom for some months prior to the evening in question. It said, "keep in girls - knock first - don't knock or come in boys - not even dadd's [sic]". The poster was augmented by four yellow stickers bearing the words "secret", "confidential", "private" and "keep out" respectively. The reference to "dadd's" had been added at the bottom of the poster in a different pencil. The complainant said that she had made the poster to keep the accused away from her so that he couldn't have sex with her again. She agreed, however, that she had made it before the alleged offence.

17. In cross-examination she said that she had not changed her pants prior to her mother's return and that they were still "a little bit wet". However, she did not tell her mother.

18. In cross-examination she was asked about a number of apparently inconsistent statements that she had made to the police during the course of two interviews in early November last year. She said that she was unable to remember saying those things and Mr Doig was unable to pursue the issues any further. She was also cross-examined about the precise sequence of events and generally adhered to the account that she had given in her evidence in chief.

19. A police officer, Senior Constable Jacqueline McEwan, gave evidence confirming the accuracy of statements recording what the complainant had told the police.

20. The complainant's mother gave evidence of the complaint made to her on Friday, 2 November 2001 when she was putting her daughter to bed. She said that the complainant asked her, "Mummy can I tell you something?" She said, "yes, you can tell me anything." The complainant asked, "will you be mad at me?". The mother replied, "no", and the complainant asked "will be you be mad at Dad?" The mother said, "well that depends on what you tell me". The complainant said "no, I can't tell you, he said it has to be a secret". The mother responded, "that's OK, we don't have secrets." The complainant then said, "Dad's been having sex with me". The mother asked, "when?" and she replied "two nights ago". The mother asked "what did he do?". The complainant answered, "he was kissing my boobies and touching me down there, and he sat on my tummy and stuck his doodle in my face". The mother explained that when the complainant said the words, "touching me down there", she had pointed to her vaginal area. The mother asked the complainant, "what did you do?" She said, "I pushed him away" and put up her hands to show how she had done so. Her mother asked her whether she was telling the truth and she said, "yes, Mummy, I am". The mother then told her to get dressed and said that they were leaving. When the complainant asked where they were going she told her that they were going to the police.

21. The mother said that when the complainant was dressed they went out into the dining room. The accused asked, "what are you - what are you doing?". She told him that the complainant said that he had been "kissing her boobies and touching her down there and - in her words having sex with her". He responded, "that's crap". She said that the complainant was in tears and said "yes, you did Dad, you know you did". The mother said that the accused then said "if you mean the other night after her shower I only gave her a hug and if I touched her it was by accident". The mother retorted "well, you can explain that to the police". She and the complainant then left.

22. The mother subsequently decided that she was not in any fit state to see the police and instead drove to the home of a friend. She said that during the course of the drive, she asked the complainant whether this was the first time that this had happened and the complainant had replied, "no, it's the second time".

23. The mother said that on the following morning she went into the complainant's bedroom to wake her and the complainant asked her, "Mummy, where do boys put their doodles?" She asked her what she meant and said that they just hung down between their legs. She said that the complainant then asked, "what about when they are hard and poking out of their underpants?" Her mother asked why she had asked and whether she had ever seen one. She said that the complainant replied, "yes, Dad's, when he made me put my hand on it and when he put it in my face".

24. The mother contacted the police on Sunday morning and officers attended the home that afternoon. The complainant was first interviewed on Tuesday, 6 November 2001. On the following Thursday, 8 November 2001, the mother had a further conversation with the complainant after she had just got out of the shower. The complainant then gave her a further account of the incident and said that she had been "petrified". The mother again contacted the police and further statements were taken.

25. It was not suggested that the mother had noticed anything unusual about her daughter's demeanour when she returned home on the Wednesday evening. But in cross-examination she made the comment that she had noticed that the electric blanket on her side had been "on three". She said that on the following Friday evening nothing out of the ordinary had occurred prior to the complainant being put to bed.

26. During cross-examination about her conversation with the complainant on 8 November 2001 the complainant's mother was shown a statement that she had made to the police on 13 November 2001 and confirmed that the complainant had given her the account of the incident that had been recorded. That account was as follows:

"I was drying my back and he came up behind me. He picked me up in a bear hug, he lay me on the bed, he lay beside me and started touching me on the front bottom and kissing me and he took me into the main bedroom, I got on the bed and he lay beside me, he pushed me down so that - so that I was lying on his legs on my tummy, then he pushed my head into his doodle." She told me she was petrified. Then she slapped him on the tummy and he stopped, then she said he pulled her up and lay her on her back, opened her legs, and started moving up and down between her legs.

27. She also confirmed that she had asked, "where was his doodle?" and that the complainant had said "rubbing my front bottom". She had added, "it all became wet and yucky and it was running all down my bottom from the front to the back, then he got off".

28. The accused gave evidence on oath denying the complainant's allegations. He agreed that his wife had confronted him about the complainant's allegations substantially in the terms described in her evidence and that he had responded by saying, "that's crap". He also agreed that he had later said, "if you mean the other night after her shower I only gave her a hug and if I touched her it was by accident".

29. He said that he had bathed the complainant when she was younger but that when she got older she had normally had showers. Whilst he used to turn the water on for her to ensure that it was not too hot, she had showered without any other assistance from him. On the afternoon in question he went into the bathroom when he heard the water stop running to ensure that the taps had been properly turned off. The complainant was drying herself and he told her to go into the bedroom and get dressed. He also told her to pick up her clothes off the floor and told her that she could then watch television. He then went outside to water the plants before returning to prepare dinner. He maintained that none of the sexual acts alleged by the complainant had occurred. During the course of his evidence he mentioned an incident at his parents' house when a film on television included the scene of a naked couple getting into bed and "hopping on top of one another". He said that his father had made some comment about switching channels and that the complainant had then turned around to have a look. He also said that the complainant had a television in her bedroom. He was subjected to a searching cross-examination but maintained his denial of any sexual contact with the complainant.

30. The Crown conceded that it's case was substantially dependent upon the evidence of the complainant and that it was necessary for her evidence to be scrutinised with care. However, the prosecutor submitted that she was an unsophisticated young girl whose evidence was both plausible and credible and that she had had no reason to lie. He argued that her evidence had been substantially consistent with what she had told her mother of the incident and pointed out that since the enactment of the Commonwealth Evidence Act, evidence of such complaints was now received as probative of the truth of the facts asserted. He suggested that the poster could be regarded as objective evidence that the complainant had been concerned about the conduct of the accused. He also submitted that the mother's evidence of finding the electric blanket on when she returned home just after 7.00 pm on the evening in question could provide some corroboration for the complainant's account of the incident by supporting an inference that he had ejaculated onto the bedclothes and turned the electric blanket on in an attempt to dry them out. He argued that, to the extent that there was any conflict between the evidence of the mother and the accused, I should be satisfied that the mother's account was correct and pointed to concessions in the accused's own evidence, such as his agreement that he had asked the complainant to have a shower and re-entered the bathroom while she was getting dry, as further corroboration of her account.

31. On the other hand, Mr Doig stressed the fact that the Crown case was substantially dependent upon the evidence of the complainant. The accused bore no onus of proof and it was not incumbent upon him to demonstrate that she had had a motive to lie. The ultimate question was whether the unsworn and almost wholly uncorroborated evidence of the complainant was sufficient to prove the truth of the relevant allegations beyond reasonable doubt even in the face of the sworn evidence by the accused denying them. He submitted that the complaints made to the mother added little, if any, weight to the Crown case because, although the earlier complaint had been substantially in accordance with the complainant's evidence, the complaint made to the mother on 8 November 2001 had been quite inconsistent with it. He also argued that what the Crown had suggested were concessions capable of providing some corroboration for the complainant's evidence had merely been descriptions of events that were common ground and that they were no more supportive of the complainant's allegations than of the account given by the accused in answer to them. He submitted that no adverse inferences could be drawn from the poster because it had been on the door of the complainant's bedroom for many months and that the Crown's submissions concerning the electric blanket had been based on pure speculation.

32. Perceptions of the reliability of even sworn evidence by children have varied over the years. In what was described as the locus classicus of the common law, Atkin J said that "small children are possibly more under the influence of third persons - possibly their parents - than are adults, and they are apt to allow their imaginations to run away with them and to invent untrue stories": Dossi (1918) 13 Crim App R 158 at 161. Hence, juries might act upon the uncorroborated sworn evidence of a child but "judges must [warn] them not to convict a prisoner on the uncorroborated evidence of a child except after weighing it with extreme care". See Dossi at 160-1. The need for such a warning was accepted by the High Court of Australia in Hargan v The King [1919] HCA 45; (1919) 27 CLR 13.

33. In this Territory, following concern about the common law requirement for corroboration of the evidence given by complainants in trials relating to allegations of sexual assault, section 76F of the Evidence Act 1971 ("the ACT Evidence Act") was enacted in 1985 and successively amended in 1990 and 1993. It currently provides as follows:

(1) Any rule of law or practice requiring the corroboration of evidence or requiring the judge to give a warning to the jury in criminal proceedings to the effect that it is unsafe to convict a person on uncorroborated evidence is abolished in so far as the rule applies to or in relation to evidence given by the complainant in the trial of a person for a prescribed sexual offence.

(2) Nothing in this section shall affect the right of the judge in prescribed sexual offence proceedings to comment on any evidence that may be unreliable but the judge shall not, in such proceedings, give a warning to the jury to the effect that it is unsafe to convict the accused person on the uncorroborated evidence of the complainant.

(3) Nothing in this section affects the operation of any rule of law or practice which requires-

(a) a judge, on the trial of a person for a sexual offence alleged to have been committed before 28 November 1985, to give the jury a warning as referred to in subsection (1); or

(b) a judge, on the trial of any person, to give the jury a warning to the effect that it is unsafe to convict a person on the uncorroborated sworn evidence of a child.

34. The operation of this section is now subject to the Commonwealth Evidence Act. Whilst s 8 of that Act provides that the operation of certain provisions of the ACT Evidence Act specified in the regulations are not affected by the Commonwealth Evidence Act, subs 76F(1) and (3) are not so specified and, in my opinion, those sections have now been effectively displaced.

35. Section 164 of the Commonwealth Evidence Act provides that:

(1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the Judge:

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.

36. Section 165 provides that:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(e) evidence given in a criminal proceeding by a witness who is a prison informer;

(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

(g) in a proceeding against the estate of a deceased person--evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

37. It may be noted that the section applies to any evidence that may be unreliable and that the possibility of the reliability of evidence being affected by age, is specifically mentioned. Hence, I would be required to warn a jury that the complainant's evidence may be unreliable due to her age and of the need for caution in determining whether to accept the evidence and the weight to be given to it. Whilst this is not such a trial, in view of the provisions of subs 68(c)(3) I am required to take such warnings into account in considering my verdict.

38. I must also take into account the fact that the evidence of the complainant was not given on oath. Indeed, at common law, the unsworn evidence of a child required corroboration before there could be any conviction. See R v Davies (1915) 11 Cr App R 272; R v Manser (1934) 25 Cr App R 18.

39. For these reasons, I accept that I am required to scrutinise the complainant's evidence with particular care. The need for juries to be warned of the need for care even in relation to the sworn evidence of children has been affirmed in more recent years. See, for example, DPP v Hester [1973] AC 296; R v Schlaefer (1984) 37 SASR 207; and B v The Queen [1992] HCA 68; (1992) 175 CLR 599. When the evidence is unsworn there may be an even greater need for caution. However, the duty to scrutinise such evidence with particular care does not require any prejudgment that the evidence of children should be regarded as inherently unreliable. In considering what weight should be given to the evidence of any witness, all of the relevant facts and circumstances must be taken into account, including impressions of his or her character and temperament and the extent to which they may have affected the evidence. In some case, immaturity, whether due to youth or arrested emotional development, may be an important consideration, but much will depend upon the circumstances.

40. In the present case, the complainant gave evidence in an apparently straightforward and unemotional manner. The absence of any obvious emotion seemed somewhat incongruous in view of the nature of the acts she described, the appalling betrayal of trust they involved and the breakdown in family relationships that followed. However, reactions vary and even a person who has suffered deeply may sometimes reveal little emotion when giving evidence. There were some inconsistencies in her complaints of the incident but, in the circumstances, that was entirely understandable. There was nothing in her demeanour to cast any doubt on the veracity of her account. As the Crown pointed out, she had had no apparent reason to lie. I found her evidence both plausible and credible.

41. However, I accept Mr Doig's submission that her evidence was substantially uncorroborated. There is no longer any rule of law precluding a conviction based on uncorroborated and unsworn evidence but, as a matter of practical reality, when there is contradictory evidence by two apparently credible witnesses it may be difficult to be satisfied beyond any reasonable doubt as to the truth of one and falsity of the other unless there is some further evidence to corroborate one version.

42. The evidence of the poster that the complainant had left on the door of her bedroom was of little, if any, corroborative value. I am conscious of the mother's evidence that the complainant had told her that the incident on 31 October 2001 had been the second time that something of this kind had occurred. However, despite being asked probing questions about why she had made the poster, the complainant did not give any direct evidence alleging the commission of prior sexual misconduct on the part of the accused. There is nothing about the poster itself to suggest that it had any more significance than the obvious meaning: the bedroom was her domain and only girls were welcome.

43. The suggestion that the mother's evidence concerning the electric blanket may have supported an inference that the accused had been attempting to dry bed linen emerged for the first time during the Crown's closing address and no questions relevant to that issue had been put to the accused either during evidence in chief or in cross-examination. The mother gave evidence about this issue only in response to a general question about whether she had noticed anything about the bed and the issue was not pursued because, I suspect, the cross-examiner had been concerned about the state of the blankets and, perhaps, the presence of any wet patches, and did not anticipate that the Crown might seek to attach such significance to it. I am inclined to accept Mr Doig's submission that the proposition for which the Crown contends is too speculative to be given any substantial weight but, even if I had regarded the point as being of greater potential significance, I would not have been willing to draw an adverse inference against the accused in these circumstances.

44. I do not accept that the weight of the complainant's evidence was in any way weakened by the suggestion that she may have seen some sexual activity on television at the home of the accused's parents. Nor, on the other hand, do I accept the Crown submission that the accused had fabricated the account of this incident. It is true that no other evidence was adduced to support his account but, on the other hand, there was no evidence of falsity.

45. There was no evidence of any injury to the complainant's anus and no suitably qualified expert was called to give evidence as to whether such injury might have been expected had the events occurred as the complainant described them.

46. The accused gave evidence in a defensive and, at times, almost monosyllabic manner but, having regard to the gravity of the allegations and the potential consequences of any conviction, even an innocent person in his position may have been nervous. He did not present as an artful or devious man and nothing emerged in cross-examination to undermine the credibility of his evidence.

47. Accordingly, the case turns substantially on the word of one person against that of another. It is true that the complainant is only nine years old and that her evidence was unsworn but, as I have mentioned, I found her evidence both plausible and credible. She had no apparent reason to lie and, whilst children may sometimes prove to be more impressionable than adults, she did not impress me as a child who was inclined to flights of fancy. Furthermore, the evidence did not reveal any facts or circumstances of a kind that might have been conducive to the formation of false memories. However, an accused person is not amenable to conviction merely because he or she is unable to offer any convincing explanation for the making of the allegations. It is incumbent on the Crown to prove his or her guilt and the standard of proof is a very stringent one. In the present case, having heard the evidence of the accused, I have been left with a reasonable doubt as to whether he committed the act of indecency alleged. Consequently, he must be acquitted.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 28 August 2002

Counsel for the Crown: J Sabharwal

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: A Doig

Solicitor for the accused: Lander & Co

Date of hearing: 20-21 August 2002

Date of judgment: 28 August 2002