R v Wark [2003] ACTSC 30 (6 May 2003)

Last Updated: 13 May 2003

THE QUEEN v RODNEY HENRY WARK [2003] ACTSC 30 (6 MAY 2003)

CRIMINAL LAW - trial by judge alone - offence of act of indecency without consent knowing that victim did not consent or being reckless as to whether she consented to the commission of the act of indecency - credibility of the complainant and the accused - no immediate complaint made - character direction in circumstances where accused has no relevant convictions.

Crimes Act 1900 (ACT), s 92J

Evidence Act 1971 (ACT), s 76C

R v Calides (1983) 34 SASR 355

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

R v Falealili (1996) 3 NZLR 644

No. SCC 104 of 2002

Judge: Gray J

Supreme Court of the ACT

Date: 6 May 2003

IN THE SUPREME COURT OF THE )

) No. SCC 104 of 2002

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

RODNEY HENRY WARK

ORDER

Judge: Gray J

Date: 6 May 2003

Place: Canberra

THE COURT FINDS THAT the accused is guilty of the offence that on the 9^th day of March 2001 at Canberra in the Australian Capital Territory, he committed an act of indecency upon Karen Eggins without her consent, knowing that she did not consent or being reckless as to whether she consented to the commission of the act of indecency.

The charges

1. The accused elected to have this matter tried by Judge alone. The indictment charged that on the 9^th day of March 2001 at Canberra in the Australian Capital Territory, Rodney Henry Wark committed an act of indecency upon Karen Eggins without her consent, knowing that she did not consent or being reckless as to whether she consented to the commission of the act of indecency.

2. The accused pleaded not guilty. He was represented by Mr R Livingston of counsel.

Trial by Judge alone

3. Sitting as Judge alone, I must include in my judgment the principles of law that I apply. Accordingly, I have directed myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict.

Fair trial

4. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict only according to the evidence which I rule as admissible.

Burden of proof

5. I have reminded myself that the burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the prosecution that has to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.

Presumption of innocence

6. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes his guilt. I have regard to the burden of proof that lies upon the prosecution. I may only find the accused guilty if I am satisfied that the prosecution has proved each and every element of the charge beyond reasonable doubt. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of this charge, or I am unsure where the truth lies, then in those circumstances, I must find that the charge has not been proved to the level of satisfaction required by the law and must acquit.

The offence charged

7. Section 92J of the Crimes Act 1900 (ACT) provides -

(1) A person who commits an act of indecency upon, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

The elements of the offence

8. For the offence to be proven, the accused must have committed an act of indecency upon the complainant. The word "indecent" is an ordinary word in the English language and I must find the facts and decide whether that which I have found amounts to an act of indecency. In this case there were some physical acts of handling the clothing and person of the complainant including kissing the complainant which culminated in the accused grabbing at the complainant's left breast, squeezing it and pushing her backwards. That action, if proved, would constitute an indecent assault in terms of the section. The accused denies that any such incident occurred between himself and the complainant.

The uncontested facts

9. The complainant is a social worker who, at the time of the incident the subject of the charge, was working as a part-time youth worker employed by the Richmond Fellowship at Outreach House in Curtin.

10. The Outreach House program is a medium to long-term residential program for children aged between 12 and 17. One of the day activities for the child residents who do not have a school program is the Phoenix Program conducted from premises at Pialligo. At the time of this offence, the accused had been employed for some time as a youth worker with the Phoenix Program. One of the events was the daily transportation of the participants in the program from Outreach House to the premises at Pialligo. The program was conducted from premises that had been an old army barracks set in grounds upon which Richmond Fellowship also had offices and a house where the accused resided at the time.

11. In the afternoon of 9 March 2001 the accused drove a van owned by the Richmond Fellowship to Outreach House in Curtin to return those who had participated in the Phoenix Program that day. The practice was for one of the Outreach House workers to then return to Pialligo with the Phoenix Program worker for the purpose of returning the Phoenix Program worker to those premises. The complainant was the Outreach House worker who accompanied the accused on this trip back to Pialligo and who was to then drive the vehicle back to Outreach House. The accused worked 8.30 am to 4.00 pm each Monday to Friday. The complainant commenced her casual shift on that day at 3.00 pm and was due to finish at 11.00 pm. The 9^th March 2001 was a Friday.

12. It was generally agreed that the journey from Outreach House to Pialligo would take 15 - 20 minutes, depending on the state of the traffic. The accused drove the vehicle to Pialligo and the complainant drove it back to Outreach House.

13. The complainant and the accused both said that the van would have arrived at Outreach House at about 3.20 pm and left about 10 minutes later. The complainant put the time of leaving at sometime between 3.30 pm and 3.45 pm. The complainant's estimate of the time of the van arriving was expressed as "probably about" and the time of leaving as "blurry". The accused's estimate of time was based upon reconstruction rather than recollection. For reasons which I later give, I do not rely upon those times.

The disputed event

14. The complainant said that when the van reached the building at Pialligo from which the Phoenix Program was conducted, the accused asked her to come into the building so that she could pick up and return a report that the accused had prepared concerning an incident that had occurred at Outreach House with one of the residents earlier in the day. She said that they went through the activities room and into a staff room, that the accused unlocked the staff room door, that he motioned for her to sit down in a chair and that he then went back to the door and locked it. There was some cross-examination on the nature of the lock on the door, but I am satisfied that there is nothing contradictory in this. The lock consisted of a door handle and device that secured it internally. It is the complainant's evidence that the shutting of the door caused her some apprehension. She said that she became flushed and told the accused that she wanted to get back to Outreach House but that he asked her to stay for a few minutes and just chat. She said that she put her hand around her neck because of what she thought was her redness, that the accused got up from his chair, stood in front of her and pulled out the top of her shirt and appeared to peer down her front. He walked around her chair and pulled out the back of her skirt and commented upon her underwear. She said that the accused also commented about the fact that she appeared nervous and tense and started massaging her neck and shoulders. She said that she was trying to pull away and leaning forward as he was doing so. She did not tell him to stop but kept leaning away from him. When he did stop he returned to his seat and she asked for the incident report that they had spoken of as she needed to get back. She said that people would be wondering where she was. She said there was then a conversation about her motor car and that it lasted for some time because she hoped that it would distract the accused. She then said that she really needed to go and she stood up. She said that the accused stood up, moved so that he was in front of the door and came towards her. He then grabbed her around her arms. She said that he kissed her with a reasonable amount of pressure and asked her for oral sex. She said that she was not going to do that and that he started kissing her neck. She said that she kept objecting, referring to the accused having a fiancée and saying also that she, the complainant, could not be bullied "like the accused bullied the kids". She said that he grabbed her left breast, squeezed it and pushed her backwards. He then released her and she said that she needed to get out. He turned the "nib" on the door, opening it and she left the building. She got into the van and she says the accused followed her out and said for her to have a good weekend. She said that she was shocked and dazed and took a longer route to get back to Outreach House. Overall, on her evidence, she spent much more time than she would have ordinarily done had the trip been a normal drop off. She described her mood after the incident as anxious, nervous and shocked and that she kept to herself when she returned to Outreach House.

15. If the incident occurred as deposed to by the complainant, then it clearly amounts to an indecent assault as far as the overall incident was concerned, particularly in the touching of the complainant's breast. It is on that basis that I approach the matter.

The issue

16. The accused denied that the incident in the building took place at all. He gave evidence. He said that when the vehicle returned to the Pialligo area, he parked out in front of the building used for the Phoenix Program, got out of the vehicle and that the complainant moved from the passenger's side to the driver's side of the van. He went to the main door of the building, checked the lock and turned back to the complainant and said, "See you later. Have a good weekend.". He said that there was a conversation in the van concerning an incident with a resident at Outreach House and a conversation also about the complainant's car which took place in the van. He said that he understood that another youth worker would have completed the incident report for that incident and that there would have been no need for him to have made such a report and therefore no reason for any alleged request by him of the complainant to take the report back.

The other prosecution witnesses

17. Witnesses were called by the prosecution on some peripheral matters. Ms Giselle Morgan, a youth worker who started as a casual at Outreach House on 9 March 2001, gave evidence. She was acquainted with the complainant and the complainant had the task of showing her the procedures on her first day. Her evidence was criticised by Mr Livingston as being at times confused and unresponsive. I do not consider that criticism effects the major thrust of her evidence or, indeed, that it reflects anything in her case other than of a witness endeavouring to tell the truth. She gave evidence of a distinct change in mood that she observed of the complainant after her return from Pialligo. Because it was her first day on the job, I give credence to her observation of the change in attitude of the complainant. She was also conscious of the complainant having been away for what seemed a long time. More particularly, I accept her evidence that the complainant had not returned before Ms Morgan began preparing dinner for the residents at 5.00 pm.

18. Other evidence was given concerning the incident that might have required the accused to prepare an occurrence report. There was no suggestion that the accused was, in fact, required to, or did prepare such a report. The fact that there was such an incident on that day was accepted by the accused, and is significant only in its integration into the complainant's evidence as the reason she says the accused gave for her to go into the Pialligo premises.

19. Evidence was also given of a day book which recorded events and staff movements at Outreach House on that day. The day book was tendered and evidence was given about entries in the book as to the timing of certain events. It is apparent that the entries were not time sequential in all cases, but the book purports to record the timing of events and is a contemporaneous, or nearly contemporaneous, record. Some events were clearly not recorded. Overall, I am satisfied from the evidence of Mr East, the youth worker who made the entries, that they are accurate and support the fact that the complainant commenced her shift at Outreach House at 3.00 pm, that at 3.40 pm the accused arrived in the van at Outreach House and that he left with the complainant at 3.50 pm. In other words, contrary to the impression of both the complainant and the accused, the incident, if it occurred, occurred later than either thought that it could have. The day book does not record when the complainant returned with the van from Pialligo but she is recorded with others as being on the premises at 6.30 pm.

20. These matters, particularly the observed change in mood and the length of time that the complainant was absent from Outreach House, very generally support the account given by the complainant although they in no way can be said to be corroborative of it.

Evidence called by the defence

21. A real issue arose on the evidence of Mr Jokhan, the manager of the Phoenix Program at the time, who was called in the accused's case. He gave evidence that he was present in the building from which the Phoenix Program operated in the afternoon of 9 March 2001. He was not in the area where the complainant alleges the incident took place but in other rooms in the building where, if persons had entered the building, he would have been aware of them doing so. It, therefore, became of importance to establish generally the time of the alleged incident and the time when Mr Jokhan was present.

22. Mr Jokhan gave this statement to the police -

On Friday, 9 March 2001 I was working at the head office in Pialligo. At about 3.30 pm I went into the Phoenix building to check the computer service, the service room is located at the end of the building. Whilst I was in the room I was working on the proxy server, this is the Internet server which controls the Internet access for users. In the middle of the building is the administration office and at the far end is the learning centre [the activities room]. I was in the server room for about half an hour whilst I was looking at the computer service [sic]. I did not speak [to] or see any person in the immediate area, I left the building and went straight to my car which was parked around the side of the building. I drove home. I did not notice any cars or people in the area.

23. As I mentioned earlier, both the complainant and the accused thought that they left Outreach House earlier than is recorded in the day book. It was in this context that the statement given by Mr Jokhan should be understood. At that stage, the investigation was proceeding on the basis that the incident occurred at about 3.45 pm. If the incident took place later than 4.00 pm, then Mr Jokhan's statement is of no significance. However, when he gave evidence, Mr Jokhan maintained that that afternoon he had arrived at the Pialligo premises at 3.10 pm. He had earlier been to lunch at Fyshwick and as he was due to leave for overseas the next day, he spent some time working in the computer server area on a computer program that had been causing problems. He said that this took a few hours and that he did not leave until it was getting dark. Daylight saving was in force at the time so that would have put his time of leaving well past 4.00 pm and presumably as late, perhaps, as 7.30 pm.

24. Mr Jokhan never did satisfactorily explain why his statement records that he was in the computer room for half an hour, that he left the building and went straight to his car and drove home. He said that the statement was responsive to what the police put to him. He said -

They (the police) indicated to me the time that it occurred, they said were you there within - for that half an hour, I said yes I definitely was. And they said so then you left after that, I said yes I did.

Right. Left after half an hour? - - - Well, left after that incident if that occurred within - after half an hour, so...

...I never indicated to them the time that I left, because even up to now I don't know when I left. I can't give you a time.

And then somewhat confusingly, he also said in answer to a later question of leaving the building -

Yes, I didn't leave after half an hour. I was there for at least half an hour and then I left.

Even more confusingly he responded in this way to another line of questioning -

Well, you're now telling the court that you were there longer, into the evening? - - - Yes, I can guarantee that I was there for that half an hour, yes.

Yes. But - sorry, you were there for the half an hour? - - - Well, I was there for that half an hour. Yes.

Yes, between 3.30 and 4 o'clock? - - - Yes.

So then you left to go home? - - - No, no.

You stayed there longer? - - - Yes.

But you were still in the building? - - - Yes.

Still in the server room? - - - Yes.

Well, that's not what the statement says, does it? - - - Yes, the way that I read it was exactly the way that I've just given it to you ... (inaudible) ...

The statement records that he left the building and went straight to his car.

The rebuttal evidence

25. In light of Mr Jokhan's evidence, the prosecution sought, and I gave leave, to call evidence in rebuttal in relation to certain telephone calls made from Mr Jokhan's mobile. The effect of that evidence would lead to a conclusion that he was at least in another area of Canberra at 5.06 pm and that he was in areas not consistent with having driven from Pialligo to his home in Queanbeyan. I accept the effect of that evidence. In the result, I am not prepared to regard Mr Jokhan's evidence on this aspect as sufficiently reliable so as to say that he was on the premises when the incident is alleged to have occurred.

Evidence of earlier conflict with Outreach House staff

26. Mr Jokhan's evidence was also relied upon to indicate a degree of tension between the accused and the Outreach House staff. I can accept that the relationship between the accused and the Outreach House staff generally, because of the accused's forthright views and his expressions of them was uneasy. There were issues concerning the dress of the female members of Outreach staff and their support in giving effect to the educational aspects of the Phoenix Program. It was suggested by Mr Livingston that the evidence of Mr Jokhan showed that those tensions dated back over a very long period. It was suggested that those factors gave the lie to the complainant's assertion that she had a good working relationship with the accused before the incident that she alleged took place on 9 March 2001. Reviewing all of the evidence on this topic, I do not think that it does. There is no direct evidence of any antipathy or antagonism between the accused and the complainant prior to that date and it is notable that the accused, himself, does not give any evidence of awareness of such a situation between the complainant and himself.

The timing of the allegation

27. Another aspect relied upon by the accused related to the fact that it was not until late May, in the context of complaining to her immediate superior about trivial fault-finding and attacks on her credibility as a professional by the accused, that these allegations surfaced. Section 76C of the Evidence Act 1971 (ACT) abolishes any common law rule or practice permitting evidence to be admitted for making of a complaint in respect of sexual offence matters. Part of the effect of that is to not count against a person the fact that no immediate complaint was made. In this case, it was submitted that I should regard "the complaint of the complainant (being) made first to her employer in the context of a relationship between the two of them within their work situation of tension". I accept that as the factual circumstance, but I do not see how it really assists in resolving any issue in this matter. It was not suggested that an allegation of this kind was made to bolster up the concerns expressed by the complainant about her employment relationship with the accused.

The credibility issue

28. To a very great extent the resolution of this matter depends upon the view that I form of the credibility of the complainant and the accused. I remind myself that I must correctly apply the onus and standard of proof. If I am not able to say where the truth lies, or if I am unable to say who is telling the truth, I will return a verdict of not guilty (cf R v Calides (1983) 34 SASR 355 at 359).

Character direction

29. In addition, I am asked to give myself a "character direction". I have a discretion to do so after evaluating the probative significance of such a direction in relation to the propensity of the accused to commit the crime charged and the accused's credibility as to the evidence he has given in this trial (Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [30] per McHugh J).

30. Some evidence was adduced from a witness called by the defence that the accused, in the course of his time at Pialligo, provided a horse riding facility for adolescent girls who were being counselled. I do not consider that that evidence has any real bearing upon this matter. The complainant in this matter was not adolescent, but a fellow employee and I do not regard the evidence as bearing upon a particular respect of the accused's character relevant to the matters in issue.

31. The accused is 34 years of age. He was charged as a juvenile, aged about 14, for an offence of assault and, over 11 years ago, was fined and had his licence disqualified for driving with a prescribed concentration of alcohol. I do not regard those convictions of any real moment for the purposes of assessing the accused's character. However, as to any general direction that I might give myself, that is limited insofar as it relates to the fact that the accused has no convictions of any moment. Although absence of significant convictions may be equated as some evidence of good character, in Melbourne v The Queen (supra) at [108], Kirby J agreed with the remark of Henry J in R v Falealili (1996) 3 NZLR 644 at 667 that -

There are logical difficulties with the proposition that an absence of previous convictions is, in itself, evidence establishing a person's good character. It may be a factor in assessing good character, but standing on its own it is generally neutral.

32. For the purposes of this matter, I am prepared to give credit to the accused for his lack of convictions and to treat that as a factor in relation to the accused's propensity to commit the offence charged, although such evidence is not a defence in itself and cannot prevail against evidence of guilt if that be established beyond reasonable doubt. I am also prepared to assess the evidence given by the accused from the perspective that he has no relevant convictions, although the force that I might give to that is less than I might give to a person who establishes renowned probity and truthfulness.

Conclusion

33. All that said, the complainant's evidence was convincing. She was a credible and impressive witness. That much was conceded by counsel for the accused. Even allowing for the weight I give to the character evidence in assessing the accused's credibility, I was much less impressed with the evidence that he gave. Although I was urged to accept his evidence as just as credible as the evidence given by the complainant, in looking at the two versions of whether the incident occurred, the account given by the complainant has the support of certain of the extrinsic circumstances. In particular, I refer to the time that the complainant was absent, her mood when she returned and what I find to be the lack of motivation for the fabrication of an allegation of this nature. I have scrutinised the complainant's evidence with extreme care. I am satisfied that it can be accepted and I do not regard the contrary evidence given by the accused as causing me to have any doubt about accepting it.

34. Accordingly, I find the charged proved and I find the accused guilty.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 6 May 2003

Counsel for the prosecution: Mr C Todd

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Counsel for the accused: Mr R Livingston

Solicitor for the accused: Lander & Co

Date of hearing: 16, 17 December 2002, 14 January 2003 and 20 March 2003

Date of judgment: 6 May 2003