R v At [2004] ACTSC 118 (5 November 2004)

Last Updated: 25 November 2004

R v AT [2004] ACTSC 118 (5 NOVEMBER 2004)

CRIMINAL LAW - trial by judge alone - offence of act of indecency upon a person under the age of 10 years - unsworn evidence by child - warning as to reliability of evidence of complainant - s 165 Evidence Act 1995 (Cth) - s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT) - absence of need of corroboration for either unsworn evidence or evidence of children - consideration of response by accused to allegation - previous good character - offence not proved beyond reasonable doubt.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 8, s 40, s 70

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1995 (Cth), s 13, s 165

Evidence Act 1971 (ACT), s 64

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

R v Tran [2003] ACTSC 53

R v EG, unreported [2002] ACTSC 85, 28 August 2002, Crispin J

DPP v Hester [1973] AC 296

R v Schlaefer (1984) 37 SASR 207

R v Murphy (1985) 4 NSWLR 42

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

No. SCC 145 of 2004

Judge: Gray J

Supreme Court of the ACT

Date: 5 November 2004

IN THE SUPREME COURT OF THE )

) No. SCC 145 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

AT

ORDER

Judge: Gray J

Date: 5 November 2004

Place: Canberra

THE COURT FINDS in respect of the offence that on 2 October 2003 at Canberra in the Australian Capital Territory, [the accused] committed an act of indecency upon the complainant named in the indictment who was then a person under the age of 10 years namely 7 years that the accused is not guilty.

Non publication

1. This proceeding is a sexual offence proceeding. Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) makes it a strict liability offence to publish the name of the complainant, protected information about the complainant, a reference or allusion that discloses the complainant's identity or from which a complainant's identity may reasonably be inferred. In these reasons, I have not referred to the name of the complainant or those names of the witnesses who gave evidence that might identify the complainant. As the accused is a neighbour, the publication of his name or his address might identify the complainant. Accordingly, these matters are the subject of an appendix to these reasons which I order not to be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.

The charges

2. The accused was arraigned before me on two counts. He pleaded not guilty to the charges that,

... on 2 October 2003 at Canberra in the Australian Capital Territory [the accused] committed an act of indecency upon [the complainant] who was then a person under the age of 10 years namely 7 years.

...on 2 October 2003 at Canberra in the Australian Capital Territory [the accused] committed an act of indecency upon [the complainant] who was then a person under the age of 10 years namely 7 years.

Trial by judge alone

3. Before the allocation of a trial date, the accused elected to be tried by judge alone.

4. The procedures to be followed where there is a trial by judge alone are set out in s 68C of the Supreme Court Act 1933 (ACT),

(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 a 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.

5. I take those provisions to not only require the setting out of the principles of law and the findings of fact, but also the reasoning process linking them and justification provided for the verdict ultimately reached (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).

General directions

6. The general directions which I give to myself are as follows,

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 according to the evidence. 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 innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

(See R v Tran [2003] ACTSC 53 at [4] and [5].)

Warning as to evidence given by audio-visual link

7. The complainant in this matter was seven years of age at the time of the incident and eight years old at the time of the hearing. The Evidence (Miscellaneous Provisions) Act 1991, s 8 requires that unless I order otherwise, the evidence given by a child in proceedings of this kind be by audio visual link. No grounds were put to me as to why I should order otherwise and, accordingly, her evidence was given in that way from a place other than the courtroom. In such circumstances, I am to give myself the warning provided for in s 10 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) that an inference adverse to the accused should not be drawn from the fact that the witness is giving evidence from such a place (s 10).

Unsworn evidence of the complainant

8. Because of the child's age, an issue arose as to whether she was capable of understanding that, in giving evidence, she was under an obligation to give truthful evidence. Having regard to her age, the information provided by the prosecutor and in the absence of any submission to the contrary by Mr Sabharwal, counsel for the accused, I formed the view that it was highly unlikely that she was capable of fully understanding the duty involved as well as the concept and nature of the obligation required from her in court proceedings. Section 13(1) of the Evidence Act 1995 (Cth) provides,

13 Competence: lack of capacity

(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.

Section 13(2) of the Act goes on to provide,

(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.

In those circumstances, I proceeded to satisfy myself that the complainant understood the difference between the truth and a lie. I informed the complainant of the importance of telling the truth and I was satisfied that she responded appropriately that she would not tell lies in the proceedings. Accordingly, she gave her evidence unsworn.

9. I note that s 64 of the Evidence Act 1971 (ACT) provides,

64 Unsworn evidence of young children

(1) Where the evidence of a child who has not attained the age of 14 years is required in a proceeding, the court may receive that evidence without administering an oath or requiring an affirmation or declaration and, subject to subsection (2), without any formality.

(2) The could shall, before receiving evidence under subsection (1), explain, or cause it to be explained, to the child that he or she is required to tell truthfully what he or she knows about the matter to which the evidence relates.

10. This section was not expressly preserved as not being affected by the enactment of the Evidence Act 1995. The question of whether the enactment of the Evidence Act 1995 displaced s 64 of the Evidence Act 1971 (ACT) I think must be resolved by accepting that the Evidence Act 1995 covers all previous (and future) enactments of the ACT legislature in respect of competence and compellability of witnesses (cf R v EG, unreported [2002] ACTSC 85, 28 August 2002, Crispin J at [34]). Further, s 21 of the Evidence Act 1995 (Cth) requires a witness in a proceeding to either take an oath or make an affirmation. Accordingly, I do not consider that s 64 of the Evidence Act 1971 (ACT) provides an alternative mode of taking the evidence of young children to that provided by s 13 of the Evidence Act 1995 (Cth).

Warnings concerning the evidence of children

11. Section 70 of the Evidence (Miscellaneous Provisions) Act 1991 provides,

70 Comments on children's evidence

If evidence is given by a child in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses.

Neither party suggested that I should give a warning in the terms proscribed by this section, nor do I consider any such warning to be justified.

12. The relevant part of s 165 (1) of the Evidence Act 1995 (Cth) applicable to this case is in these terms,

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

...

(c) evidence the reliability of which may be affected by age, ...

(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.

I was asked by Mr Sabharwal to give such a warning having regard to the complainant's age and the fact that her evidence was not given on oath. It may be noted that any requirement for corroboration of either unsworn evidence or the evidence of children had been abolished by the enactment of s 164 of the Evidence Act 1995.

13. I consider that the restriction on any direction as to the evidence of children as a class imposed by s 70 of the Evidence (Miscellaneous Provisions) Act 1991 set out above, is not affected by the s 165 provisions and is compatible with those provisions. Nonetheless, the complainant's age still remains a potential factor as to the reliability of the evidence given and that calls for a need for caution in determining whether the evidence of such a young child should be accepted as well as requiring that I give careful scrutiny to it in assessing the weight which I should accord the evidence (cf DPP v Hester [1973] AC 296 at 319; R v Schlaefer (1984) 37 SASR 207 at 212).

The elements of the offence

14. The offence charged in each count requires that there be the commission of an act of indecency upon the complainant. The word "indecent" is an ordinary word of the English language and I must find the facts and decide whether that which I have found amounts to an act of indecency. "Upon" requires the complainant to be aware of the touching. There is no requirement for an assault to accompany the act of indecency. In the case of a person under the age of ten years, consent is not an issue. It was not in contest that if I accepted the evidence of the complainant as to what took place between her and the accused that I would be satisfied that the elements of an offence had been made out.

The circumstances surrounding the alleged offences

15. In the afternoon of 2 October 2003, the complainant and her four year old brother were playing in the front yard of her home. The accused, their next door neighbour, was playing with them, kicking a football which they chased. The complainant's father was hanging out washing on the clothesline at the back of their house. The complainant's mother, who felt unwell, was sleeping in the house.

16. At some stage there was an opportunity for the accused and the complainant to be in the front hallway of the accused's house. At the time, the accused's wife was out shopping. What happened in the hallway is the core issue in this case.

17. The complainant says that the accused "brought her into his house and he told [her] to touch his penis" and that she did. Her evidence was that the accused unzipped his pants and took his penis out. Her description was that it was "Big" and "Slimy stuff. I can't remember". She does not remember the accused saying anything after that, but he put his penis back in his pants. She did not see him pull his zipper up. She says that the accused said "Keep it a secret, don't tell anyone".

18. The complainant went home and, according to her, she told her mother what had happened.

The complainant's evidence

19. The complainant was self possessed and gave her evidence in a straight forward manner. She gave me little cause for concern that she was making up what she said happened. Her evidence was generally responsive to the questions put to her in cross-examination although she had some difficulty with some of the questions and some of the more complicated questions put to her. To such questions she generally responded with a non-committal response, "Can't remember" or "Can't understand". I do not regard these answers as detracting from the essentials of the incident she described. It is a matter of comment that the incident about which she gave her evidence did not appear to adversely affect her. She exhibited no signs of distress about it, either at the time or in giving her evidence. Although evident distress might assist in confirming the occurrence of the incident, in the circumstances of this case I do not regard its absence as making it less likely that it occurred.

20. The complainant's mother gave evidence that upon awakening from her sleep, she noticed her son kicking a football in the direction of the neighbour's house. She commenced to pack her daughter's things for her swimming lesson and shortly after, her daughter came "skipping" in saying, "[the accused] and I have got a secret and I'm not going to tell anyone". In cross-examination, the complainant's mother said that the complainant appeared happy and excited. The complainant's mother told her that she did not keep secrets, that secrets were not kept "in the house" and that if she (the mother) had a secret she would tell the complainant. This drew from the complainant the response "[the accused] let me touch his peeny". The mother understood the word "peeny" to mean penis. The complainant's step-father also gave evidence that he heard the complainant say this.

21. Section 66 of the Evidence Act 1995 provides that the hearsay rule does not apply to a representation about an asserted fact made where the occurrence of the asserted fact was fresh in the memory of the person who made the representation. The fact was clearly fresh in the complainant's memory at the time and I am satisfied that the hearsay rule does not exclude this evidence, nor was any reason given why I should limit the effect of this evidence (Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297). This evidence may be regarded as probative of the fact to which the assertion relates and supportive of the complainant's account of the incident.

22. The complainant gave evidence of the one incident only and no other evidence was given which could support a second charge on the indictment. Accordingly, at the close of the case for the prosecution, I recorded a verdict of not guilty on the second charge.

The accused's case

23. The accused denied that the incident in respect of which the complainant gave her evidence occurred in the way the complainant said. He said that he did not bring the complainant into his house but that after kicking the football with the children, he went into his house to go to the toilet. When he came out the complainant was outside looking through the security screen door at a hall table upon which there was a number of his wife's ornaments, including small ornamental ducks. He asked the complainant whether she wanted a closer look at them and she came into the house. She picked up one of the ducks and he said that he told her to be careful with it because if she dropped one, his wife would be very angry and upset. He said that the complainant put the duck back and ran out the front door. He denied that he had unzipped his pants or that he had made the complainant touch his penis. He did not remember saying anything about a secret, and, in cross-examination, denied that he said or used any term indicating a secret between himself and the complainant.

24. The accused was direct in his evidence and maintained his innocence in respect of the complainant's allegation. The fact that he proffers a reason for inviting the complainant into the premises is of some significance in that no reason why the complainant went into the accused's house was elicited from her.

The accused's response to the complainant's step-father

25. When the complainant's step-father heard the allegation, he immediately sought out the accused. He saw the accused driving out of his property, waved and yelled at him to stop. He said to the accused, "I've just heard some very distressing news, [the accused's first name]. Did you let [the complainant] touch you on the penis?". The accused responded by denying the allegation and saying that the complainant "was just playing close to me", referring, he said in his evidence, to the bringing of the football to him. I do not think that I can make too much of this. Whilst the response to the allegation was not the same explanation as to what the accused later said, it was probably understandable that the accused should respond in this way as he was apparently also asked, "Did she sit on your lap?" before he made the response that he did.

The response to the police

26. The next day, the police executed a search warrant on the accused's premises. Initially the accused was not present, but arrived during the course of the search. He was provided with a copy of the warrant and cautioned. All of this was recorded on audio and video tapes.

27. The written statement of Constable Moore, the officer conducting the search, was tendered by consent and that statement records the following,

... At 6.00pm that date, the taped record of conversation was suspended for the purposes of searching the residence.

Whilst the taped record of conversation was suspended, [the accused] requested that he be advised of what he had been accused of doing. I informed [the accused] that the alleged offence was contained within the warrant. However he indicated that he wanted to be advised of the specific allegation. [The accused] told me that he was happy to discuss this in the presence of his family.

I provided him with the following allegation "Between 3.00pm and 5.00pm yesterday, Thursday 02 October 2003, you did commit an act of indecency upon [the complainant] at your residence, in the front door of your residence."

[The accused] replied: "She was there yesterday, I was playing with them, kicking the football with her brother [named], and she said that's nice ..." I said "Do you want to come in and play with it?"

[The accused] also said that later that afternoon, [the complainant's step-father] said "Did you touch my daughter?" "I said, no, I didn't, I didn't do anything like that."

28. In her evidence before me, Constable Moore conceded that her failure to switch on the tape during this interchange between herself and the accused "was an oversight on my part". It seems to me to be much more than that. It fails to accurately record the accused's response to the specific allegation made against him at a time where he had been specifically cautioned as to anything that he might say on the understanding that if he did say or do anything, it would be recorded on the tape recorder. What was in fact recorded in notes taken by, it appears, another "corroborating" officer, fails to properly record or even get the sense and gist of what the accused was saying. Constable Moore concedes that more was said than was recorded but she is not able to say what it was.

29. It was put to Constable Moore in cross-examination,

Yes. But you didn't say to him that we did not record verbatim what he had said to you, that's a fair proposition to you? - - - Yes.

All right. So if I suggested to you that what the defendant was trying to tell you was that the little girl had come into the house, had picked up a little duck that was on the table in the hallway, that obviously doesn't accord with your recollection, does it? - - - That conversation I had later with [the accused's wife] on the telephone.

For her part, [the accused's wife] gave evidence referring to the search in these terms,

And were you present when he gave an explanation to the allegation that was being made against him? - - - Yes. When he came home Constable Moore spoke to [the accused] and he denied the allegation. He said that the young child had been standing out on our porch. She has asked to come into the foyer of the house to see my special things, or "[the accused's wife's] special things" on the hall stand. He let her in, she picked up one of the little ducks, had a look at it. [The accused] said, "I think you'd better put that down, [the accused's wife] will be angry if you broke it". She put it back on the stand and went out.

[The accused's wife] was not cross-examined as to this event. I think that I must accept it as describing the circumstance of the accused's explanation to the police even though, having regard to what Constable Moore said, I have considerable reservations about whether that particular explanation was, in fact, given in that detail to the police at the time of the search warrant.

30. The accused in his evidence said that he had told the police at the time of the execution of the search warrant, "I didn't touch her and I've never touched her and she's never touched me". He also said that he told the police about the complainant playing with the miniature ducks. I accept that some explanation of this nature was given to the police even if it was not in the detail deposed to by [the accused's wife]. Having regard to the explanation given by the accused to the police and notwithstanding the positive evidence given by the complainant, I cannot, and do not, discount the reasonable possibility that the event took place as the accused said.

Evidence of good character

31. The accused put his character in issue and sought to rely upon the fact that he was a person of good character and, in particular, was so regarded with respect to those who had seen him with young children. Two witnesses were called on his behalf to emphatically give evidence as to the regard in which they held him notwithstanding the fact of the allegation which is before the court. That evidence was not challenged.

32. There are two ways in which this evidence affects my consideration of this matter. One is the likelihood of guilt, the other is the credibility of the accused in his denial of the charge (R v Murphy (1985) 4 NSWLR 42 at 54). The accused gave evidence. He is entitled to have his character taken into account in deciding whether to accept his evidence. In this case, that circumstance, at least, operates to raise a doubt as to whether I can accept and act upon the complainant's evidence.

33. To that doubt must be added the fact that the prosecution did not contest the explanation given by the accused as to the circumstances surrounding the alleged offence. It was put on the accused's behalf that I should accept the explanation given to the police by the accused on the very first occasion when he was confronted with the allegation of what had occurred. In considering this aspect, I bear in mind that it was made by a person of good character and the accused is entitled to have that aspect taken into account in deciding whether I accept that explanation.

34. These matters bear upon my overall assessment of the whole of the evidence. I am not satisfied that the prosecution has discharged the onus that it bears. I am not satisfied beyond reasonable doubt that the accused committed the offence charged. I find the accused not 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: 5 November 2004

Counsel for the prosecution: Mr C Todd

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

Counsel for the accused: Mr J Sabharwal

Solicitor for the accused: Gary Robb & Associates

Date of hearing: 25 and 26 October 2004

Date of judgment: 5 November 2004