R v Maher [2005] ACTSC 41 (8 June 2005)

Last Updated: 8 June 2005

R v ADAM GARRY MAHER

[2005] ACTSC 41 (8 June 2005)

CRIMINAL LAW - trial by judge alone - offence of engaging in sexual intercourse with a person under the age of 16 years, namely 13 years - capacity to give evidence no issue - complainant over the age of 16 years when giving evidence - consent not an issue - freshness of complaint evidence no indication of truth or falsity - accused gave evidence - significant variance between accounts of complainant and accused - previous good character of accused - complainant's character explored subject to ss 50 and 51 of Evidence (Miscellaneous Provisions) Act 1991 (ACT) - adverse impact of delay in reporting allegations - offence not proved.

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1971 (ACT), s 64

Crimes Act 1900 (ACT), ss 50(c), 55(2)

Criminal Code 2002 (ACT), ss 13, 14, 22(2)

Evidence Act 1995 (Cth), ss 5a, 66

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 69, 70

Papakosmas v R (1999) 196 CLR 297

Weissensteiner v R (1993) 178 CLR 217

Azzopardi v R (2001) 205 CLR 50

Bridge v R (1964) 118 CLR 600

Longman v R (1989) 168 CLR 79

No. SCC 163 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 8 June 2005

IN THE SUPREME COURT OF THE )

) No. SCC 163 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

ADAM GARRY MAHER

ORDER

Judge: Higgins CJ

Date: 8 June 2005

Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of "not guilty" be recorded.

1. On 31 August 2004 an indictment was presented by filing it with this Court. On 23 November 2004, the accused was arraigned on that indictment and entered a plea of not guilty. The accused elected for trial by judge alone by notice dated 19 October 2004.

2. That trial commenced before me on 14 February 2005. Evidence was taken that day and 15 February 2005. Submissions were made on 24 February 2005 and I reserved my decision on that day.

The Charge

3. The indictment charged that -

... between the 1^st day of November 2001 and the 6^th day of December 2001 at Canberra in the Australian Capital Territory ADAM MAHER engaged in sexual intercourse with C [name suppressed] who was then under the age of 16 years, namely 13 years.

Trial by Judge alone

4. The legislative provision prescribing this procedure is 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.

General Directions

5. The general directions I must follow 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 the 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])

Capacity

6. In this case, the complainant was under the age of 14 years at the time of the alleged offence. At that time, he would have attracted the provisions of s 64 Evidence Act 1971 (ACT)[1 ]. However, at the time he gave evidence the complainant was over the age of 16 years. Hence, s 64 had no application. The complainant gave sworn evidence accordingly.

The elements of the offence

7. Section 55(2) of the Crimes Act 1900 (ACT) (formerly s 92E(2)) provides -

A person who engages in sexual intercourse with another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

8. "Sexual intercourse" is defined by s 50(c) (relevantly) to mean -

the introduction of any part of the penis of a person into the mouth of another person ...

9. There is no "fault element" provided in relation to the circumstance of the age of the person under 16 years. If the Criminal Code 2002 (ACT) is applicable, s 22(2) provides that -

If the law creating an offence does not provide a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for the physical element.

10. Section 14 defines "physical element" so as to include -

(c) a circumstance in which conduct, or a result of conduct, happens.

11. "Conduct" is defined by s 13 to mean -

... an act, an omission to do an act or a state of affairs.

12. Section 20(2) (relevantly) provides -

A person is reckless in relation to circumstance if -

(a) the person is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

The Crown Case - opening statement

The accused ([born] 1981) is charged with having sexual intercourse with C ([born] 1988).

Between about September 2001 and January 2002 the accused and complainant C were members of the Alpha Theatre Company which at that time was involved in the production of "Oliver".

The accused first met the complainant during rehearsals for "Oliver" and they developed a friendship.

At some point between late November and early December of 2001, the accused obtained tickets to see the move "Zoolander". The accused asked the complainant to go with him to see the film. The complainant accepted the invitation and it was agreed that they would attend a 7.00 pm session and, the accused would collect the complainant from his home.

About two to three days later, possibly a Friday or Saturday, the accused between 5.00 pm and 5.30 pm collected the complainant from his home in Ainslie. The accused drove to Manuka where he bought some chips and soft drink at the supermarket. From there the accused drove the complainant to a flat in the Manuka area.

After the accused and complainant entered the flat, the accused offered the complainant a glass of champagne. The accused and the complainant entered the accused's bedroom and sat on the double bed. The accused and the complainant had a conversation and during the conversation the complainant drank two glasses of champagne.

The accused and the complainant began to kiss and during the next 45 minutes to an hour they engaged in consensual sexual intercourse, including performing oral sex upon each other and stroking each other's penises. At one point the accused produced a personal lubricant, which he placed on the tip of his circumcised penis and, on the anus of the complainant. The accused attempted to insert his penis into the complainant's anus, however this was too painful for the complainant.

During this time the accused told the complainant that they had missed the movie and gave the complainant another glass of champagne.

The accused and complainant continued to perform oral sex on each other and manually masturbate each other. The complainant manually masturbated the accused until the accused ejaculated.

Both the accused and complainant showered together, dressed and remained at the flat for a further 15 to 20 minutes before the accused drove the complainant home.

The evidence

13. At the outset the accused made four admissions -

1. The accused was in the senior chorus of the musical "Oliver" staged by the Alpha Theatre Company in January 2002.

2. The complainant was in the junior chorus of the same musical.

3. The accused met the complainant during rehearsals for the production of "Oliver".

4. The accused was circumcised shortly after his birth.

The prosecution case

14. The complainant gave evidence that in September 2001 he became involved in a stage show produced by the Alpha Theatre Company called "Oliver". Rehearsals took place up until January 2002 when the production was staged.

15. The cast members, naturally enough, socialised together. The complainant said that, at some stage, the accused suggested -

... That we went to see a movie called "Zoolander" and ... he suggested a time, the date of which I can't remember and I said that that was all right by me.

16. In accordance with that arrangement, the accused called at the complainant's house and picked him up. It was then between 4.00 and 5.30 pm, a Friday or a Saturday, during the final school term of 2001. The complainant said that after he was picked up, he and the accused drove to a Coles Supermarket at Manuka. Whilst at the supermarket, the accused purchased chips, confectionery and soft drinks for the movie. After this, the accused stated that he had left the movie tickets at his home, so the two proceeded to his apartment. The complainant asserted, quite confidently, that the apartment was in the Manuka area, within five minutes drive of the supermarket. When they arrived at the apartment, the accused offered the complainant a drink; the complainant chose champagne. They sat on the accused's bed in his bedroom and talked. The complainant described a T-shirt which he saw in the bedroom; it had horns on the shoulders and the word "Horny" was printed on the front. The complainant said that he tried the shirt on.

17. They continued talking and began referring to their respective sexual inclinations. The accused said he was unsure of his sexual orientation. The complainant said he had a girlfriend but believed that he was bisexual. The incident charged then occurred. It was described by the complainant as follows -

He told me that he was horny and I said words to the effect of being able to help him with that. ... I touched Adam around the crotch on the outside of his pants and we began kissing. And after that Adam took off my shirt and I took off his pants, the underpants and began giving him oral sex.

Alright now when you say you began to give him oral sex, you placed your mouth over his penis, is that what we're talking about?

... Yes.

18. According to the complainant, the accused was sitting on the bed while the complainant was lying next to him. Then the accused gave the complainant oral sex. The complainant noted that the accused was circumcised. They engaged in that sexual activity for between 40 minutes and an hour; they also masturbated each other. At that stage the accused ejaculated. The complainant retired to the bathroom and there ejaculated. On his return, he said -

... Adam was putting his clothes back on and he then went to have a shower. He asked me to join him in the shower and I did, but nothing more of a sexual nature occurred. That's can I amend that? ... during the hour in which I was previously - about which I was previously talking, Adam got a tube of lubricant from a drawer near his bed, he put it over his penis and around my anus and he attempted to put his penis into my anus. And I told him that it hurt and asked him to stop.

19. The accused desisted as requested. They had a shower together.

... And then we both exited the shower, dressed and left the apartment. No, sorry ... after exiting the shower, we did ... sit on the bed and continue talking and ... Adam said to me that he couldn't return me home until after the movie would've been finished.

20. Accordingly, the accused drove the complainant home via McDonalds, where the accused bought him a meal. After being dropped off, the complainant went inside and had another shower before going to bed.

21. The complainant did not discuss what had happened with his family. However, about two weeks later, he did raise it with a female school friend as he felt guilty about "cheating on my girlfriend".

22. There was a question as to the admissibility of the school friend's evidence and their conversation.

23. The hearsay rule would preclude the admission of such evidence. However, s 66 of the Evidence Act 1995 (Cth) (the Act) provides that the hearsay rule does not apply to a representation about an asserted fact where the occurrence of the asserted fact "was fresh in the memory of the person who made the representation". Even if admissible, the use of the evidence could be limited. Further, it could be excluded pursuant to ss 135, 136 and 137 of the Act.

24. In Papakosmas v R (1999) 196 CLR 297 the complainant, shortly after the act complained of, made a statement to a work mate stating what the accused had done to her. She was still shaking, distressed and sobbing when she made the statement. Fifteen minutes later she repeated her statement to a second work mate and, just a few minutes later, to a third work mate. The trial judge left that evidence to the jury as it was relevant to establishing that (a) the event complained of had happened; and (b) that the complainant had not consented to it.

25. Gleeson CJ and Hayne J noted that s 66 of the Act was intended to change the common law position on complaint evidence. The common law did not regard complaint evidence as evidence of truth of the assertion. Instead, it was merely evidence of consistency of conduct and of conduct inconsistent with consent. Even if consent was not in issue, the evidence was admissible for the first of those two purposes. It is not corroboration (even if required) because it is clearly not independent of the complainant. It was not admissible for the hearsay purpose of proving that the event complained of had occurred.

26. Section 59 of the Act excludes evidence tendered for a hearsay purpose. That provision is qualified by s 66, which requires that the occurrence of the asserted fact be fresh in the memory of the person making the representation. In Papakosmas, Gleeson CJ and Hayne J, at 311 (par 41) noted that -

The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant's appearance and demeanour, meant that it was not unfairly prejudicial.

27. Gaudron and Kirby JJ adverted to the importance of the statement bearing, in the circumstances, a rational connection with the likelihood of the truth of the assertion. At 315, they stated (at [56]) -

The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expended from the maker if the fact were true.

28. McHugh J agreed that evidence of complaint was relevant to prove the facts complained of. He did not consider the extent of the reach of s 66(2) because it was clearly satisfied in the instant case.

29. As it happened, I received the evidence of the complainant on this point subject to objection. All that the complainant asserted was -

I told her [the school friend] that I had had sexual experiences with a man, you know, recently before the conversation and that I felt guilty because I had a girlfriend at the time.

30. That statement, occurring approximately two weeks after the event, certainly fails the spontaneity test. Further, given the lack of specificity, it does not qualify as a statement ordinarily to be expected if the facts alleged to constitute the offence had occurred. I note that the lack of specificity is not necessarily inconsistent with the occurrence of such facts.

31. It follows that, on the analysis offered by Gaudron and Kirby JJ, the evidence of the complainant's utterance, albeit "fresh" in one sense, had no additional element to it that would render the statement probative. Its lack of recency, spontaneity and its vagueness means that it does not pass the test suggested by Gleeson CJ and Hayne J.

32. That evidence, therefore, is rejected as inadmissible.

33. In cross-examination, the complainant agreed that he spent a great deal of time in the adult dressing room during rehearsals; he was the eldest member of the children's chorus. He also agreed that he spent time talking to adult cast members, particularly to Rhys Holden an adult cast member closest to his age and, to a lesser extent, the accused. They were the youngest of the adult cast members. Rhys Holden was then about 17 years old; the accused was then 19 years old.

34. The complainant agreed that the arrangement to go to the movies was "probably" for a Friday. He conceded that it was possible that the accused had rung him and said -

Something's come up with Rhys and [he] cannot attend any movie but he's asked me to come and pick you up and take you to the movie.

35. The complainant agreed that the accused may have repeated that information to the complainant's mother when he attended the complainant's home. He further agreed that the accused may have added that they were going to Woden but that the accused would have to go home first to change.

36. It was then apparent that, despite being adamant that he had gone to Coles at Manuka, and then a flat in the Manuka area the complainant had, in fact, been driven to the accused's apartment at Holder. It seems to me, as Mr Whybrow suggested, that the complainant had seen the accused's cast contact address referring to Manuka and assumed it was his residence. In fact that address was a post box.

37. The complainant agreed that, on arrival at Holder, the accused had "possibly" said he would duck in and get changed. He further agreed, that it "may be correct" that the accused in fact went to his bedroom alone and changed clothes whilst the complainant watched TV in the lounge. This was contrary to his earlier testimony that they both went into the accused's bedroom together. The complainant agreed that their conversation began in the lounge and it was "likely" that it involved reference to Rhys Holden. He further agreed that he "may" have said Rhys Holden was "really hot". Then followed these questions and answers:

Q. ... you then said to him, "I'd love to give you a head job if you'd let me?

A. ... I didn't say that.

Q. Didn't say that?

A. ... No. Not - I didn't say that at that time.

Q. What time did you say it?

A. ... I don't recall saying those exact words. I do recall saying words to the effect of the first part of that sentence. Later after Adam had told me that he was aroused.

Q. Okay well in your statement you've said, "I said words to the effect of, "being able to help him out there"?

A. ... Yes

Q. And you also told his Honour that shortly after you said that, you touched Mr Maher on the crotch on the outside of his pants?

A. ... That's correct.

38. Following denials that he then simply lunged at Mr Maher, the complainant was asked  -

Q. Mr Maher was fully clothed and did not have an erection?

A. ... That's also incorrect.

39. The complainant was asked to clarify which of those two propositions was "incorrect". He then agreed that the accused was indeed fully clothed at that time and "didn't have an erection".

40. In other words the witness' statement "that's incorrect" to the earlier question was false.

41. The complainant also agreed that, after the incident, in whatever form it had been, he and the accused talked about his (the complainant's) family. The complainant also agreed that it was strange that the accused would get dressed in order to go and have a shower. However, he did not resile from his account that this had occurred.

42. It was not disputed that the complainant did not speak to police concerning the occurrence in November or December 2001 until September 2003. Of course, even on his own account, the complainant was not aggrieved by the activity that took place at the accused's apartment. Indeed, he quite unashamedly asserted that he had initiated the sexual encounter. Thus, it is not surprising that there was no earlier complaint to police of the activity he alleged. What is surprising is that any complaint was ever made.

43. Both the accused and the complainant continued their association with the Alpha Theatre Company. Indeed, six weeks after he made a statement to police, the complainant agreed that he approached the accused at a stage production. The complainant agreed that he might have hugged or embraced the accused and that they conversed about the show and each other's appearance.

44. It appeared that, about July/August 2003, the complainant wrote to his father stating that he was gay. The complainant agreed that he had visited certain gay websites. The relevance of that, it later appeared, was that a profile of the accused was recorded on similar websites. One such profile included details that the accused was "cut" (that is, circumcised). It was not admitted by the complainant that he had seen any reference to the accused on any such website. However, it was possible that the complainant could have obtained or confirmed information that the accused was circumcised, whether or not he had seen him exposed in December 2001. Of course, it was also possible, that he had briefly seen the accused unclad during production costume changes.

45. W, the father of the complainant, also gave evidence. However, save that he saw the accused attend, apparently to pick up the complainant, he added nothing of substance.

46. Constable Burgess gave evidence confirming that the only listed address for the accused in the Manuka area was a private post office box. Of course, by this time it was apparent to me that the reference by the complainant to the Manuka area had been erroneous, probably due to him assuming that the address he had seen on cast contact information forms was residential, rather than postal only.

47. That was the Crown case. It relied solely on the word of the complainant. Of course, that is no impediment to finding the Crown case proved. However, I have to remind myself that the standard of proof is beyond reasonable doubt. Even so, it was a case not so obviously flawed as to be incapable of such acceptance.

The Defence case

48. The accused gave evidence. He was not obliged to do so and, indeed, had he not done so, no adverse inference could have been drawn from his silence.

49. The use that can be made from silence is limited. The High Court in both Weissensteiner v R (1993) 178 CLR 217 and Azzopardi v R (2001) 205 CLR 50 approved the statement of Windeyer J in Bridge v R (1964) 118 CLR 600, 615 -

An accused person is never required to prove his [or her] innocence: his silence can never displace the onus that is on the prosecution to prove his [or her] guilt beyond reasonable doubt. A failure to offer an explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies.

50. In Azzopardi, attention was also directed to s 20 of the Act. That section prohibits a comment or suggestion that silence may give rise to an inference of consciousness of guilt.

51. Gaudron, Gummow, Kirby and Hayne JJ commented that [at 34] -

The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct, it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial.

52. What, then, might be said? [at 52] -

... [T]here may be cases where the failure of an accused to offer an explanation by reference to some matter, peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties.

53. In the present case, the accused both gave and called evidence. However, insofar as that evidence may have failed to explain or contradict evidence of the complainant, I have to remind myself of those cautionary words quoted above. I also remind myself that the accused bears no onus of persuasion or of answer whether in whole or in part.

54. Further, by giving evidence, the accused exposed himself to cross-examination by prosecuting counsel. It is, and remains, the duty of prosecuting counsel to request such explanations if it be in the province of the accused to give them. It is not for the accused to volunteer such explanations.

55. The accused agreed that he knew the complainant. He stated that it had not been his idea to ask the complainant to the movies. He said -

My friend Rhys Holden approached me and explained to me that C had been pestering him to spend some time with him. Rhys was a little apprehensive to spend time alone with C which he explained to me, and asked if I'd accompany him.

56. The accused denied that he had pre-purchased tickets. Indeed, it was a little strange that, although the complainant said he was told that the tickets had been pre-purchased and were at the accused's flat, he did not report any comment by the accused that they were wasted if they did not use them.

57. I think that this was another instance of the complainant jumping to a conclusion as to something of which he had an imperfect or inaccurate recollection: that is, why did they go back to accused's flat at all? Was it to allow the accused to change his work clothes or was it to collect the tickets? It seems to me that the complainant gave an account, as if factual, as to how that came about. It is much more likely that, as the accused says, he went home to change his work clothes for more casual attire. As I have noted, the tickets were not the subject of any conversation on the complainant's account of the event.

58. It was not until the Friday afternoon that Rhys Holden rang the accused and said that he could no longer attend to go to the movies. Up until then, the accused had expected to go home, change into casual clothes, and join Rhys and the complainant at the theatre at Woden.

59. At Rhys Holden's request, the accused rang the complainant and told him he, rather than Rhys, would pick him up. The accused left work about 5.30 pm and arrived at the complainant's residence about 6.00 pm.

60. The accused said that the complainant had told him that his father was not yet home. However, the complainant's father gave evidence that he did see the accused and his vehicle, apparently on this occasion. However, it is not reasonable to regard this as adversely affecting the credit of the accused. It may simply have been a misunderstanding by the complainant. The complainant's father did not claim to have greeted or met with the accused on that occasion.

61. The accused's account of the events at the apartment was that, as intended, he changed his clothes. On emerging from his bedroom, he observed that the complainant had obtained a fruit juice and was watching TV. The accused suggested that they leave. The complainant said he would rather they just stay and "watch something".

62. The accused initially felt uncomfortable with this option but considered it preferable to spending longer time with the complainant at a movie. Accordingly, he acceded to the complainant's suggestion.

63. During their subsequent conversation, the complainant asked the accused "Are you gay?" He replied, "I'm not sure. I've dated guys and girls, I'm currently seeing a guy".

64. The complainant then said to him, "I would really love to give you a blow job if you'd let me" and then lunged forward and placed his hands on the accused's crotch.

65. The accused said he stood up quickly and moved away and said, "Don't do things like that, you know, you shouldn't do things like that".

66. The accused said that the complainant appeared "hurt" by this rejection. Thus, the accused resumed conversation, changing the subject to the complainant's family life.

67. The significant variance between the two accounts is the rejection by the accused of the complainant's sexual advance towards him. The complainant asserts that his offer was accepted. That the advance occurred in the lounge rather than the bedroom is another difference, although the complainant was, at least tacitly, prepared to accept that the activity was initiated by him in the lounge room. The complainant's claim to have been supplied with a glass (or two) of champagne was another point of variance.

68. Other details are less significant, for example, flags on the accused's bedroom walls. After four years, that is a detail the complainant may have forgotten, even though, on the accused's account, the complainant saw and commented upon them when he passed the accused's bedroom.

69. However, it is significant that, after he dropped the complainant home, the accused claimed to have phoned two friends, Joseph Smith and Rhys Holden. To Joseph Smith, he said -

Joseph, I've had a terrible evening. Somebody from the Oliver cast ... was with me tonight. ... The boy named C who you met a week or so ago was with me tonight, and we didn't go to the movies as planned. We stayed at my house. And at my house he made a sexual advancement (sic) towards me. He tried to come onto me ... tonight and of course I moved away and nothing happened, and I don't know what to do about it and I'm afraid that this is a terrible situation and I don't know how to handle it ....

70. Mr Smith advised him, "I don't think you should spend any more time with this boy. Be very careful".

71. More was said over a 20 minute period. The accused referred to Rhys Holden's involvement. Strictly, s 66 Evidence Act would have allowed only that part of the conversation which recounted the prior event.

72. In the circumstances, it does seem to me that the terms of s 66 Evidence Act would be satisfied as to the accused's statement as to what happened. The event was certainly "fresh" and the only reason to inform Mr Smith of the event could have been that it had evoked an anxiety in the accused of the kind he referred to.

73. The accused then called Rhys Holden on his mobile phone. His account illustrates a degree of anger as well as outrage. On his account, the accused said to Mr Holden -

Accused: Why the fuck did you put me in this situation?

Rhys: What happened?

Accused: We didn't go to the movies, I've just dropped him home.

I told him [Rhys] I was very unhappy he made me go through with the ... I said, Rhys, I'm very unhappy with you. I don't know why you made me do this. I don't know what you got out of it.

74. Again, only that part of the conversation recounting the prior event was admissible even though the words used may have contained other comment.

75. Some days later, probably the Sunday, the accused says, he spoke to the complainant. It seemed to him that the complainant had been spreading some rumours about the accused. What those rumours were was not explained.

76. This conversation did not constitute any sort of adverse admission by either party. Nor did it relate to any account of a previous relevant event. I reject that evidence as inadmissible. However, I recognise that, having heard it, it was open to the prosecution to cross-examine upon it.

77. The complainant, the accused and the complainant's father continued to take part in theatre productions up until October 2003. This culminated in the "hug" at the Canberra Theatre. At that time, the accused was unaware that the complainant had, by then, made a complaint to police concerning the accused's conduct of two years earlier.

78. The accused was cross-examined quite thoroughly and properly by Ms Jones for the Crown. She elicited from the accused that Rhys Holden had felt unhappy about taking the complainant to the movies because he regarded the latter as "strange".

79. Ms Jones asked the accused why Rhys had insisted that he keep the arrangement. His recollection was that Rhys told him "It would be too much trouble to cancel it knowing C's family and C's reaction". The accused said he did endeavour to back out but Rhys insisted, saying it was "very important to me".

80. The accused understood that, as Rhys had a role with the children's chorus, he wanted to keep the cast happy. The accused was challenged as to why he did not simply get changed first and collect the complainant on the way to the movies at Woden. The accused denied that he went to a supermarket before arriving at Holder but agreed that he had intended to do so on the way to Woden.

81. I have to say that nothing in the demeanour of the accused or any of his answers in cross-examination led me to conclude that he was not telling the truth. Other evidence was called.

82. Mr Joseph Smith gave evidence. He attested to the accused's good character. I have to take that into account for two reasons. First, this evidence strengthens an inference favourable to the credit of the accused. Second, it strengthens the hypothesis that the accused would not have behaved in the manner alleged by the complainant.

83. Mr Smith gave evidence that in late 2001 he had received a phone call from the accused on a Friday or Saturday evening. In essence, the accused had complained that a young man named "C" had placed his hand on the accused's crotch and proposed oral sex. Mr Smith had previously met the complainant during Oliver rehearsals. The accused stated that he had then moved away and changed the subject to the complainant's family relationships. Mr Smith further confirmed that the accused had told him that the outing had been arranged at the last minute because Rhys Holden had "pulled out". According to Mr Smith, the accused sounded "quite shaken". He advised the accused to have nothing further to do with the complainant.

84. Mr Smith had been an adult Scout leader when the accused had been an adolescent. Mr Smith was then a medical student. Apart from pointing out that the conversation had occurred over two years before the incident became an issue, Ms Jones did not challenge Mr Smith's evidence.

85. Mr Rhys Holden also gave evidence. He was then a student and was, as I have noted, two years younger than the accused.

86. Mr Holden had been the "Artful Dodger" in Oliver. He regarded himself as the leader or mentor of the children's chorus of which the complainant was a member. After about four weeks into rehearsals the complainant became persistent in inviting Rhys to go out with him. He agreed to do so; however, he also asked the accused to go with them.

87. At the last minute, having arranged with the complainant's father to take the complainant out to the movies, Mr Holden found he could not do so. He pleaded with the accused to honour the arrangement which the latter "reluctantly" agreed to do.

88. Mr Holden was asked about his impression of the complainant. This was not objected to. Indeed, given that the accused had put his character in issue, the complainant's character could be explored, subject only to ss 50 and 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). In these proceedings, I did not need to consider any question of inconsistency of those provisions with the Evidence Act 1995 (Cth). His answer was -

I found him quite an odd young man to be around. He - he was very - very clingy and very - he spoke a lot older than his age. He spoke very sexually and it was - it was kind of uncomfortable to be around him when he was, you know, speaking of his sexual exploits.

89. No objection was taken to this testimony. I do not, therefore, need to decide if it offended s 50 (supra).

90. Mr Holden said that he had not wanted to cancel the arrangement entirely because the complainant's father might consider him unreliable.

91. Mr Holden received a phone call later that evening from the accused. At that time, the accused did not go into details. Instead, the accused complained that the complainant had spoken "very sexually" and that "problems" had arisen. At the next rehearsal, on the Sunday, the accused had said that the complainant "had made an advance on him [the accused] ... and he had taken him straight home". Mr Holden said that the accused was a red wine drinker and did not drink or keep champagne.

92. In cross-examination, Mr Holden conceded that he could not recall the details of the phone conversation he had had with the accused. He agreed it was over two years from November 2001 when he was first asked to recall the conversations. Again, however, it was not suggested to him by Ms Jones that his account of the events of the relevant Friday, was untruthful. It was not surprising that he did not recall all details of the conversation.

93. It is obvious to me that the accounts given by Mr Smith and Mr Holden are either powerfully supportive of the accused's account or deliberately contrived to exculpate him. The Crown not having suggested the latter, I have no hesitation in accepting the former alternative.

94. Mr William Lord, a naval officer, also gave evidence. He had taken part in Oliver and many other productions. He confirmed that in the dressing room it would not be unusual to see adults naked from time to time and that the complainant was frequently present in the adult dressing room. So much so that Mr Lord had thought he was old enough to be there. Mr Lord gave a positive appraisal of the accused's good character. He was not cross-examined.

95. Ms Jones submitted that the account given by the accused and Rhys Holden (that the original arrangement had been with Mr Holden) should be rejected. This is because Mr Holden's claim that he had arranged the outing with Mr W, the complainant's father, was not put to Mr Holden.

96. I would comment that Mr Holden claimed the arrangement was made with the complainant and that he informed the father of the plan for his approval. That was not a matter within the accused's knowledge. Nor did it seem to have been in issue that, though not clearly recollected by him, the complainant did concede that Mr Holden had agreed to take him to a movie.

97. Nonetheless, Ms Jones submitted that it was not credible that the accused would take the complainant to his flat. She also suggested that, when the complainant touched him sexually, it was strange that the accused did not immediately get the complainant out of the flat and back home. It was not logical for him then to sit and converse with the complainant about relatively personal matters.

98. Ms Jones did not dispute the conversations with Mr Smith and Mr Holden, after the event. Instead, Ms Jones submitted that I should disregard them, presumably as a contrivance on the part of the accused.

99. I have to say that I do not find that suggestion particularly persuasive. If the event occurred as the complainant suggested, he was a willing participant to sexual activity. Indeed, he engaged in the encounter at his own, and not the accused's instigation. It was not an event which the accused would reasonably fear that the complainant might reveal. Indeed, the complainant made no specific reference to the event until September 2003.

100. The other point made was, that the accused was, as the complainant alleged, circumcised. Of course, it could be said that the chances of the complainant making a correct guess, were 50:50. However, as was made clear, it was possible that the complainant, between October 2001 and September 2003, could have acquired that knowledge otherwise than by reason of the event he described as occurring in or about November 2001.

101. There are two warnings I take into account at this point. First, there is no suggestion that the complainant belongs to any category of unreliable witnesses (see ss 69 and 70 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)).

102. Section 71 (supra) requires that a warning be given that the lack of complaint promptly following the alleged sexual offence does not necessarily indicate that the allegation was false.

103. Indeed, that is certainly apt here. On any view, the event was not one where any complaint, whether prompt or not, would indicate anything as to the truth or falsity of it.

104. Mr Whybrow, of course, pointed to the discrepancies in the complainant's evidence. He drew particular attention to the complainant's claim that the accused got dressed apparently in order to go to the bathroom to have a shower.

105. Primarily, however, Mr Whybrow pointed out that whilst assertion and denial are often impossible to choose between with any degree of certainty, in the present case there was at least indirect corroboration of the accused's account of what took place.

106. In addition to the force inherent in that submission, I am required by Longman v R (1989) 168 CLR 79, to consider the adverse effect of the delay in reporting and then confronting the accused with the allegations in this case.

107. Certainly, it lessens the adverse effect of any discrepancies between the accused's evidence and that of, for example, Mr Smith and Mr Holden. It lessens any adverse inference from failure to recollect what otherwise would be significant details.

108. In these circumstances, I am not satisfied that the acts of sexual intercourse complained of took place. The evidence indeed suggests, on the balance of probability, that they did not.

109. There will be a verdict of "not guilty" recorded accordingly.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 8 June 2005

Counsel for the Crown: Ms M Jones

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

(ACT)

Counsel for the Accused: Mr S Whybrow

Solicitor for the Accused: Snedden Hall & Gallop

Dates of hearing: 14, 15 and 24 February 2005

Date of judgment: 8 June 2005

[1] 64 Unsworn evidence of young children

(1) If the evidence of a child who has not attained 14 years old 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 court 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.