R v Siddon [2009] ACTSC 169 (18 December 2009)

CRIMINAL LAW – trial by judge alone – 10 charges of sexual intercourse with a person under the age of 16 years – charges not proved beyond reasonable doubt – accused found not guilty.

1. A verdict of acquittal be entered in respect of all ten counts on the indictment.

1. On 28 August 2009, Derek Siddon (the accused) was arraigned before me and pleaded not guilty to charges that:

	... between the 26th day of April 2005 and the 1st day of July 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
SECOND COUNT	AND FURTHER THAT between the 26th day of April 2005 and the 1st day of July 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
THIRD COUNT	AND FURTHER THAT between the 26th day of April 2005 and the 1st day of July 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
FOURTH COUNT	AND FURTHER THAT between the 26th day of April 2005 and the 1st day of July 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
FIFTH COUNT	AND FURTHER THAT between the 26th day of April 2005 and the 1st day of July 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
SIXTH COUNT	AND FURTHER THAT between the 1st day of August 2005 and the 27th day of August 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.

SEVENTH COUNT	AND FURTHER THAT between the 1st day of August 2005 and the 27th day of August 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
EIGHTH COUNT	AND FURTHER THAT between the 1st day of August 2005 and the 27th day of August 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
NINTH COUNT	AND FURTHER THAT between the 1st day of August 2005 and the 27th day of August 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.
TENTH COUNT	AND FURTHER THAT between the 1st day of August 2005 and the 27th day of August 2005 at Canberra in the Australian Capital Territory DEREK SIDDON engaged in sexual intercourse with [the complainant], the said [complainant] being a person under the age of 16 years namely 15 years.

3. The charges relate to incidents that are alleged to have occurred between the accused, a teacher, and a student at the school where he was teaching. The school has been publicly identified. However, the names of some of the witnesses, by their association or former association with the complainant in conjunction with the known name of the school may provide a reference that discloses the complainant’s identity. In these circumstances, I will refer in the judgment to a description or an alphabetical character to designate those witnesses. I attach an appendix 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.

4. Before the court first allocated a date for the trial of these charges the accused elected to be tried by judge alone.

5. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250). I must take account of the warnings that would be given to a jury, had this been a trial before that body.

6. There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct 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. 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. 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.

7. The ten counts on the indictment allege the same charge. The offence is constituted by s 55(2) of the Crimes Act 1900 (ACT) which provides:

8. In 2005, at the time of the incidents charged, the complainant was a student in Year 10 at Daramalan College. The accused was her music teacher. In the latter part of that year, the complainant turned 16 years of age. It is not necessary, as far as these reasons are concerned, to be specific as to the date of her birthday.

9. The allegation is that a relationship of a sexual nature developed before the complainant’s birthday. The acts the subject of the counts on the indictment, are said to have taken place when she was 15 years of age.

10. There is no issue as far as the accused is concerned as to his knowledge of the complainant’s age. The accused denies that any acts of the nature alleged took place between him and the complainant before her 16th birthday. The accused admits a physical sexual relationship with the complainant which he says commenced on 10 November 2005, a time after the complainant had her 16th birthday. That sexual relationship continued in a clandestine manner for a further 18 months, during which time the student and the teacher remained at the school. The relationship ended very acrimoniously. Four months after the end of the relationship and about one month after the last exchange of emails between the complainant and the accused, the complainant went to the police.

11. The issue in this case is whether the events, which are the subject of the counts in the indictment, if they occurred at all, occurred at a time before the complainant’s 16th birthday.

12. The first five counts on the indictment relate to an occasion that the complainant says occurred in the second school term. The time-frame on the indictment is 26 April 2005 to 1 July 2005 although it was common ground the second school term was from 26 April 2005 to 24 June 2005. This first occasion related to an event where the complainant says that she and the accused had sexual intercourse at a house in Holt in the Australian Capital Territory (the Holt premises) during that school term.

13. Counts 6 to 9 on the indictment relate to an occasion alleged to be later in time than the first, and those counts are time-framed in the original indictment from 1 August 2005 to 27 August 2005. At the trial, the date 1 August 2005 was amended, without explanation, to 26 April 2005. These counts also relate to events alleged to have taken place at the Holt premises but on a different occasion to the occasion to which counts 1 to 5 relate.

14. Count 10, which is time-framed as between 1 August 2005 and 27 August 2005, is alleged to have occurred at the school and to have occurred after these two occasions to which reference has been made.

15. An indictment in the form presented in this case is not particularly satisfactory. The statement of charge should contain sufficient particulars so that an accused knows the nature of the charge brought and can properly plead to it (cf King v R [1986] HCA 59; (1986) 161 CLR 423 at 425 per Murphy J). In the present case, no attempt has been made to identify the occasions to which the counts on the indictment relate. That could have been done by more particular identification date and/or place. Nor has any distinction been made as to the different acts that constitute the acts of sexual intercourse between the complainant and the accused. Accordingly, the accused must take the assertions made in the prosecution’s written case statement as identifying the particular count charged and I take his plea on that basis. As it turns out, after carefully scrutinising the complainant’s evidence, I am unable to find any evidence which supports count 5 as particularised in the written case statement which was available at the time the plea was taken or in the prosecutor’s opening address at trial.

16. The various acts described by the complainant in her evidence-in-chief of what took place between her and the accused constitute an act of sexual intercourse as alleged in the separate counts in the indictment. Counts 1 and 8 relate to digital penetration of the complainant’s vagina. Counts 2, 3, 4, 5, 7, 9 and 10 relate to penile penetration of the complainant’s vagina. Count 6 relates to an act of cunnilingus.

17. In 2004, the complainant commenced at Daramalan College in Year 9. The accused was her music teacher and their relationship was described by the complainant as “purely a teacher student relationship”. The complainant gave evidence of a developing relationship in 2005 when the complainant was in Year 10.

18. The events which the complainant says evidenced this development were referenced to the school terms, a school music camp and the rehearsals for a school production of the musical “Fame”.

19. The dates established by the evidence are as to school term 1 – 31 January 2005 to 8 April 2005, term 2 – 26 April 2005 to 24 June 2005, term 3 – 18 July 2005 to 23 September 2005 and term 4 – 10 October 2005 to 9 December 2005.

20. There was a school music camp at Tathra from 20 to 22 May 2005. The full band rehearsals for the musical “Fame” commenced on Saturday, 20 August 2005 and continued for the next three Saturdays. The musical was performed on four successive evenings from Wednesday, 14 September 2005. The complainant’s 16th birthday was after the end of term 3.

21. The complainant gave evidence of the first instance of the development of a more intimate personal relationship where she and the accused were alone in the school music office during recess time when he said to her “I think I like you”. She said that the accused had called her on her mobile to ask her to come to the music office. She also said that she had told her friend S (who was called as a witness) of this incident. She said this took place towards the end of term 1.

22. The complainant said that early in term 2, on a weekend, there was a music rehearsal at the school for the upcoming Canberra Eisteddfod. She said that she saw the accused place something in her violin case which she later found to be two condoms. Later the accused made a remark to her about “practising safe sex”.

23. The next instances, also in term 2, were said to be where the accused attempted to kiss her; once in the music office during a school recess time and once on a Monday evening after a band rehearsal for the musical “Fame”. On the first such occasion, she said that when she left the music office she saw Mrs Dunn, the music co-ordinator, and a student teacher, who the complainant knew as Mr Matchem. As to the second event she described, in detail, being asked by the accused to follow him back to the school hall after the rehearsal and while closing one of the doors, the accused leaned in and attempted to kiss her. Her evidence was that she leaned back, turned around and walked away and the accused followed her and said words to the effect of “Now, that was a moment”.

24. At a later time, and again the complainant says in early term 2, the accused is said to have asked the complainant to attend at the school hall. When she attended and asked what was wanted, the accused is said to have said, “I just want to fuck you”. The complainant did not respond. The complainant says that the accused then said, “Isn’t that what you want to hear?” to which the complainant responded by leaving the hall. At the time, the complainant says that she was standing “on top of the stage, and the teacher was behind some building blocks”.

25. The complainant then says that soon after that last incident she agreed to have sexual intercourse with the accused. That was said to have occurred in a telephone conversation between her and the accused at a time when she was walking home from work.

26. The occasion, which is the subject of counts 1 to 5 on the indictment, relates to the first event which occurred at residential premises in Holt, which at the time were rented by Steve Carter, a close friend of the accused. The complainant said following the telephone conversation, an arrangement was made whereby she was to catch a bus from her home to Manuka where she would change out of her winter school uniform into ordinary clothes and meet the accused at Hobart Place in the city where he would drive them to Mr Carter’s residence. The complainant gave evidence that in accordance with the prior arrangement, she and the accused both took a day off school some time in term 2 of 2005 (she said May 2005 in cross-examination). She described catching a bus to Manuka where she changed out of her winter uniform and then caught another bus from Manuka to Civic, where she was picked up by the accused from Hobart Place in Civic. The accused then drove them to Mr Carter’s house. The complainant described the accused as driving a yellow four-door car.

27. The complainant then described arriving at Mr Carter’s house with the accused. She said that the accused had a set of keys to the premises which he used to open the door. She followed the accused into a bedroom where she said the accused began to kiss her and removed her shirt before they laid down on the bed. She described how she was embarrassed about him seeing her naked so she removed her pants whilst under the doona.

29. As I foreshadowed in referring to the particulars given in the prosecution’s case statement and the opening address, no evidence was led from the complainant as to the matters described in the prosecution’s case statement or opening address as being referable to count 5 on the indictment. Although in cross-examination, the complainant said that there were four acts of penile vaginal penetration on this occasion. The complainant does not give any specific evidence of the act particularised for the purpose of count 5. In that circumstance, the accused must be acquitted of the offence charged in relation to that count on the indictment. I direct myself accordingly.

30. The complainant said that they were at the premises from about 9:00 am to 2:30 in the afternoon. She gave evidence that she was given a “morning-after pill” by the accused after he dropped her off in Civic.

31. The second occasion, which gives rise to counts 6 to 9 on the indictment, the complainant says occurred in the second term of school holidays, either 30 June or 1 July 2005. Her evidence was that the circumstances of going to Mr Carter’s house on the second occasion were similar to that of the first occasion, except that the complainant did not change out of her school uniform. She described again being picked up from Hobart Place in Civic by the accused and driven to the Holt premises. She described the acts constituting counts 6 to 9 as follows:

32. The complainant said that they left the premises at “2.30, 3 o’clock” and she again described being given a morning-after pill by the accused after the event.

33. The final count on the indictment relates to an event that was said to have occurred in a “prac room” at Daramalan College during a band rehearsal in August 2005. In her evidence, the complainant became very definite that the relevant date for this event was 21 August 2005, which she corrected to 20 August 2005. She described following the accused to the Sharpe Building at the school, watching him “unlock the door and the security alarm” and then following him up the stairs to what was described as the prac room. She said:

34. Although unable to describe the extent of the sexual penetration on this occasion, the complainant described feeling an object inside her and pain.

35. Evidence was led from the complainant in evidence-in-chief that, on 10 November 2005, she had “successful sexual intercourse [with the accused] thereby my hymen was broken”. No place was specified. No further evidence was led from the complainant in examination-in-chief about this occasion but in cross-examination she said that the occasion was “what I perceived to have been the first successful sexual intercourse”. She said “It was full-blown, in terms of my hymen was broken and he ejaculated”. That occasion was after the complainant’s 16th birthday. In cross-examination she said that this occasion also took place at the Holt premises under similar circumstances as the first occasion that she described in her evidence-in-chief. She accepted as correct her statement to the police that:

36. The complainant gave her evidence in a clear and concise fashion whilst exhibiting an understandable degree of nervousness. It was given in a relatively straight forward manner but from the, perhaps understandable, standpoint of being an advocate for the position that the acts she described took place before her 16th birthday. She appeared confident about the sequence of events but acknowledged that her evidence as to this sequence had changed in some respects from what she had said in her statement to the police, in her evidence at committal and in her evidence in this trial. What became increasingly convoluted and discordant over the course of her evidence in this trial was the time-frame in which these events took place. In particular, there were some significant markers to which she referred. Those markers contradict, to an extent, the sequence of events by reference to the school terms that the complainant used as her time reference points. Other evidence called in the trial indicates that some of these markers occurred at quite a different time to the time supposed by the complainant. Also, some of these markers were not supported by evidence which could be expected to support them. As a result, there is a real issue as to whether the events took place before her 16th birthday, or at all.

37. The accused gave evidence. He was quietly spoken and measured in his evidence. I take into account that he was under medication for stress and depression. Although he was under strain, I did not regard him as prevaricating or doing anything other than giving his evidence in a straight forward manner. He was adamant that the physical sexual relationship with the complainant did not commence until the event of 10 November 2005. He admits that after that date he (and the complainant) engaged in deception and subterfuge to conceal their relationship from their respective families and the school. He has, of course, every reason to place his sexual relationship with the complainant at a time after her 16th birthday and I bear that in mind. There were aspects of his evidence criticised by the prosecutor. Notwithstanding those criticisms, I was left with a real issue as to whether I could reject as a reasonable possibility the underlying premise of his evidence namely that a physical sexual relationship commenced after the complainant’s 16th birthday. He also emphatically denied each of the events deposed to by the complainant as instancing a developing physical relationship between them and he continued to maintain that the prospect of such a relationship only emerged a few days before the occasion on 10 November 2005.

38. In light of his evidence and denials, it is necessary to consider with some care and in detail, those matters which support or otherwise the occurrence of those preceding events as well as the occasions that form the subject of the charges.

39. The prosecution tendered telephone records of a mobile phone with the number ending 6201 belonging to the accused. It showed that in the period May 2005 to September 2005, there were 16 telephone calls for a total time of 28 minutes and 240 SMS messages to a mobile phone which the complainant says that she had, ending in the number 3421. This indicates an unusual amount of contact in that period. The prosecution says that contact of this nature indicates more than a normal student/teacher relationship. That is probably so. However, in my view, it falls far short of enabling me to infer an actual sexual relationship at that time.

40. Records from the landline telephone ending in 6352, which was located in the music office, were also tendered for the period 1 February 2005 to 31 August 2005. there were 30 voice calls over that period to the number ending in 3421. There was no evidence that the accused was the caller and the prosecutor expressly conceded that those calls could have been made by a person other than the accused.

41. No records of the complainant’s mobile phone ending in 3421 were tendered in evidence and no explanation was given for not doing so. It appears from the records tendered of a mobile phone, the number of which ends in 4055 and which was in the complainant’s father’s name, that contact from that number was not made to the 6201 number associated with the accused until 7 October 2005. In the period October to December 2005 there were 62 calls to that number (6201) and an extraordinary 410 calls resulting, in all, over some 27 hours of call time, to a number ending in 2065 which is also said to be associated with the accused. No corresponding records for this period were tendered for the 6201 number. The telephone records for the 2065 number show that the 2065 number was not activated until 18 November 2005 but the records again show an extraordinary number of calls (181) to 31 December 2005 resulting in some 24 hours of call time.

42. As far as any general inference can be drawn from the telephone evidence tendered by the prosecution, it seems to support the commencement of the illicit affair between the accused and the complainant as commencing after September 2005.

43. The complainant says that the incident where the accused said to her “I think I like you” arose as a consequence of a telephone call that the accused made to her mobile asking to meet her at school recess time. The complainant said that call was from the telephone in the music office. The telephone records for that telephone do not show any morning call to any number associated with the complainant until 15 June 2005. This significantly contradicts the complainant’s assertion that this event took place in term 1 which ended on 8 April. The other aspect advanced to support the occurrence of this event was her friend S who gave evidence of being told by the complainant that the complainant had been told by the accused that he likes her. S put this as being “probably the end of second term”. Term 2 ended on 24 June 2005.

44. It is clear that the evidence does not support this event occurring in term 1, as the complainant said it did, if it occurred at all.

45. In order to time-frame the next incident that the complainant said took place at a weekend music rehearsal in term 2 (she says term 1 in cross-examination) when the accused was said to have placed condoms in her violin case, the complainant referred to something she said the accused had told her. The accused is said to have told her that in term 1, a fellow student, H, was baby-sitting for him and that he had arrived home drunk and pulled everything out from his pockets, those objects being his wallet and two condoms. He told the complainant that H had seen the condoms. H was called by the defence to give evidence and she did not recall any such incident and there is, accordingly, no support for the complainant placing this event in term 1. This incident was originally placed by the complainant in the context of a rehearsal for the musical “Fame”. Those rehearsals did not commence until August in term 3. It was later said to have been in a weekend rehearsal for the Canberra Eisteddfod which was to take place on 27/28 May 2005. That would place this rehearsal in term 2 but the accused was only in charge of rehearsals for the jazz band and concert band not the orchestra and chamber group of which the complainant was a member. The orchestra and chamber group rehearsals were taken by the music co-ordinator, Mrs Dunn. It appears that the complainant only rehearsed with the jazz band after the accused had written a violin part for her for the purposes of the “Fame” musical.

46. The complainant said that the first occasion that the accused attempted to kiss her was in the music office sometime early in term 2. When she left the music office she says she saw a student teacher, who she named as Mr Matchem. The defence called Mr Matchem whose evidence was that his first day of placement at the school was 15 August 2005 and then again from 10 October 2005 to 21 October 2005. Although the complainant said that “perhaps” she was mistaken as to the student teacher’s name, the complainant’s account of this incident is certainly not objectively supported as a consequence of the evidence called by the defence.

47. The asserted occurrence of this event casts considerable doubt upon the reliability of the complainant’s evidence concerning the timing of all of the occasions that are the subject of the charges. The complainant said that a second attempted kiss occurred on a Monday night after a jazz band rehearsal for the “Fame” musical. H, who was called by the defence in respect of an issue concerning the condom incident, also gave evidence that the first rehearsal for the “Fame” musical was on 20 August 2005. The prosecution seeks to rely on her evidence in this regard and, indeed, it is supported by the exhibit of the “Agenda Sheet” relating to the jazz band rehearsal schedule. H’s evidence makes it clear that the first Monday rehearsal for the jazz band was the Monday after the first general rehearsal for the musical. That Monday was 22 August 2005. If that is a reasonable possibility, and I accept that it is, then it follows that there is a reasonable doubt that the three occasions from which the charges arise could have occurred before that date.

48. The complainant said also that early in term 2, the accused declared to her that “I just want to fuck you”. That was said after the complainant had been sent, at the accused’s request, to attend at the school hall. It was also a few days after this incident that the complainant says that arrangements were made that gave rise to the first occasion at the Holt premises. Reference was made to the accused being “behind some building blocks”. This is apparently a reference to a sound barrier as part of the stage configuration for the “Fame” musical. The accused’s evidence, which was not challenged in this respect, was that he had written the score for the complainant’s violin part in the musical over the break between the second and third terms. The accused thought that some weeks later there was a rehearsal which the complainant attended. That would be consistent with the full rehearsal on 20 August 2005 or the jazz band rehearsal on 22 August 2005. His evidence was also that he had not organised the sound barrier referred to earlier until after the break between terms 2 and 3. These matters indicate that this incident, if it occurred at all, certainly could not have occurred when the complainant said it did.

49. The complainant says that within a few days after the incident in the school hall she and the accused agreed over the telephone to have sexual intercourse and that gave rise to the occasion comprising counts 1 to 5 on the indictment. Again, this was said to have occurred early in term 2, 2005. The telephone records, such as they are, do not show such telephone contact as having taken place. The telephone records do, however, indicate that a conversation of this nature could have taken place before the occurrence on 10 November 2005 of the assignation at the Holt premises which both the accused and the complainant accept took place.

50. The complainant says that the first time that she and the accused went to the Holt premises was in early term 2. Her response to when the occasion occurred was “Early term 2, 2005 when I was 15 years old”. Perhaps that answer was a demonstration of her advocacy of her position. On any view of the sequence of events prior to this occasion that I have detailed, her assessment of the time when she says this occasion took place must be wrong. Term 2 commenced on 26 April 2005.

51. Later in the complainant’s evidence, she considered that the occasion was in late May 2005. On 24 May 2005, both the complainant and the accused were absent from school. The complainant had said that there were occasions where she had lied to enable her to take days off school. There is only one other occasion before the complainant’s 16th birthday where the accused is recorded as being absent from school and that is 3 June 2005. The date of 3 June 2005 can be discounted as the principal, Mr Garratt, gave evidence of it being a discretionary half-day that he granted. The application for that leave stated, “Had problems at home, combined with rumours at school”.

52. The 24th May 2005 is also significant because, on the weekend of 20/21 May, a music camp was held at Tathra. Before and after that camp, rumours circulated around the school about the relationship between the complainant and the accused. This was vehemently denied by both the complainant and the accused to the school authorities who were investigating the rumours. Indeed, there was an incident where, as a consequence of the rumours, the complainant fled the school and Mrs Dunn, the music co-ordinator, was called upon to intervene. This, the complainant said, was on her arrival back at school after the Tathra camp. It is difficult to draw a conclusion that whilst all this activity was going on and the rumours were at their peak, that the accused and the complainant made their very first sexual assignation at the very time they were denying the rumours and over a period of time that they knew that their conduct would be closely scrutinised.

53. At the time of these events, the Holt premises were occupied by Steven Carter, a good friend of the accused, who was the best man at the accused’s wedding. He had asked the accused to look after his premises while he was away and had given him spare house keys to do so. His passport confirms that he was out of Australia from 20 April 2005 and returned to Australia on 13 May 2005. His work records show that he was out of the ACT from 18 September 2005 to 11 November 2005. The accused said that he did stay at the premises for a short time when the relationship with his wife deteriorated after the birth of their daughter which was in mid-August 2005. Mr Carter confirmed that the accused moved in with him for “maybe about a week or so”, but conceded that may have been in 2006. At the time Mr Carter was unaware of the accused’s relationship with the complainant until sometime in late 2006 (when the accused denied it) and he was certainly unaware that his premises had been used to facilitate that relationship.

54. The complainant had the impression at least that Mr Carter was away on what she said was the first occasion. Again, on this state of affairs it seems highly improbable that the first occasion could have taken place on 24 May 2005. It is also significant that the occasion of 10 November 2005 did in fact take place when Mr Carter was absent from the ACT.

55. The prosecution relied upon an important confirmatory aspect of the first occasion having taken place before the complainant’s 16th birthday by reference to the evidence given by L who, at the time, was the complainant’s best friend. On the bus home after the first occasion, the complainant said she sent L a text message.

56. L, in her evidence referring to events in 2005, said that the complainant sent her a text message, “a couple of months before” the complainant’s birthday. The text message was, “I did it”. At that stage, L knew of the close association between the complainant and the accused and she was concerned (she also said “shocked”) because, as she said, “I knew it was an offence for someone under 16 to have sex with anybody”. In my view, L was an impressive witness. However, the telling nature of her evidence is diminished by several considerations that affect my reliance on it.

58. The complainant also said that she had confirmed with L that she had sexual intercourse with the accused after the occasion of 10 November 2005.

59. L said that there were two occasions where she understood sexual activity had taken place. One was in 2005 “maybe a little bit before” the complainant’s birthday and that was the text message she said that she had received. The other was another time where she said that the complainant “mentioned she went to one of his friend’s houses and they had sex there”.

60. Given that the complainant, at the time of the first occasion, did not regard the activity as constituting sexual intercourse, there is considerable ambiguity in what “I did it” means, even if L took it in a particular way. There is also the contradiction from the complainant that the message she sent related to “it” not being done and the response the complainant says she received from L showing an understanding of that fact. A further fact that casts some doubt on the reliance I might place on these matters is that L was clearly wrong in thinking that the musical “Fame” was in “Early 2005, maybe April”.

61. No telephone records were produced of texts from or to the known telephones of the complainant or L. In contrast, there is a voice call recorded from the complainant’s number ending in 4055 to L’s mobile number timed at 16.58.19 on 10 November 2005 which gives support to the contact between the complainant and L on that particular occasion.

62. The complainant was very definite that the second occasion occurred on 30 June or 1 July 2005. School term 2 finished on 24 June 2005. The accused had a staff development week in the first week after the term finished. Although the circumstances of going to the Holt premises were the same as on the first occasion, the complainant says that on this occasion she did not change out of her school uniform and therefore, presumably it did not take place during school term.

63. The fact that it is at least a reasonable possibility that the first occasion could not have occurred in school term 2 as alleged by the complainant casts considerable doubt upon this later occasion occurring when the complainant says that it did. There is also no reason to think that the accused had the opportunity. Mr Garratt, the principal, gave evidence and through him was tendered the Staff Leave Records. There was no absence reported for the accused during the staff development week commencing on 27 July 2005. In light of Mr Garratt’s evidence, it is highly unlikely that the accused could have been absent in the staff development week without it being noted. I must have a reasonable doubt that he had the opportunity to commit the offences that the complainant says that he did on this second alleged occasion.

64. Taking all these matters into account, I am not able to say that either occasions of the nature described by the complainant as having taken place at the Holt premises took place between 26 April 2005 and 1 July 2005 as alleged in the indictment.

65. The final count on the indictment was put by the complainant as having occurred on 20 August 2005. The complainant’s reference points for this occasion are her resignation from her part-time work at Baker’s Delight and the fact that it was at a weekend rehearsal for the “Fame” musical.

66. Against these, what are certainly important markers as to the occurrence of this occasion is the fact that the complainant’s original detailed statement to the police contained no reference to this occurrence. That is significant because my understanding of the complainant’s evidence puts the events of what I have described as the second attempted kiss and the proposition, as occurring on or around the time of this particular rehearsal date. The complainant’s evidence commits the occurrence of the event comprising count 10 to a time after the second attempted kiss. However, the latter event could only have occurred, on the complainant’s evidence, after the weekend rehearsal on 20 August 2005.

67. It is true that there was a further Saturday rehearsal on 27 August 2005 but the complainant’s evidence is very specific that the event in count 10 took place on the weekend of 20 August 2005. There is just no evidence before me to enable a finding beyond reasonable doubt that this occasion occurred when the complainant said it did. I consider that there is a reasonable doubt as to this occasion having occurred at all.

68. There are issues concerning the complainant’s allegations that the accused supplied condoms and gave her morning-after pills on the occasions at the Holt premises. The accused denies these allegations. These aspects were not really explored by either counsel but I do take into account the fact that at the time these events occurred according to the complainant, the accused’s wife was pregnant and did not give birth to the complainant’s daughter until mid-August 2005. These facts would seem particularly relevant as to whether the accused could have reasonably been expected to have access to not one, but two, morning-after pills. The fact that, according to the complainant’s account, intercourse was not successful on either occasion is another consideration that reduces the likelihood of the need for such a preventative measure.

69. An associated issue is the diary kept by the complainant recording her menstrual cycle by way of circles and crosses. In 2005, there are two dates highlighted – 10 November and 23 December. The complainant said they were highlighted “in relation to when I first perceived the teacher and I to have engaged in successful full-blown sexual intercourse”. It points to a concern that the complainant may have had as to when she considered that she was at risk of pregnancy. Even if the complainant took the view that the activities that she described that form the charges were not successful intercourse, it is still surprising that two events which she says gave rise to her taking a morning-after pill are not recorded in her diary.

70. In the course of the complainant’s evidence, she referred to the accused giving her a pair of earrings for her 16th birthday. The complainant volunteered that the accused told her they were $88.00 from Dickson (a Canberra suburb). The earrings were tendered in evidence. The complainant was not cross-examined on this topic but the accused, in his evidence in cross-examination, denied that he had given her earrings at all. The answers and the cross-examination were confusing and I am not certain as to what I should draw by way of inference from this issue. The fact that reasonably valuable earrings were given to the complainant on her 16th birthday suggests something more than even a close student/teacher relationship. On the other hand, the accused, in cross-examination, seemed to be suggesting knowledge on his part that the complainant had looked at them “at some stage”. That may have been a reference to when she was shown them in this trial or a reference to some earlier event. Any issue related to the earrings does not affect my conclusion as to the timing of the occasions deposed to by the complainant not being supported by the objective evidence.

71. Other issues were raised by the defence concerning documents prepared by the complainant and taken from her computer. These documents were created near the end of her relationship with the accused and when she was giving her statement to the police. They apparently detail the course of the sexual relationship over 2006 and 2007. There is only one apparent reference to an event in 2005 and that does not relate to the occasions said to be the subject of the counts on the indictment. None of this material refers to, or provides any support to, the occurrence of the occasions the subject of the indictment.

72. The defence also put in evidence documents hand written by the complainant, one of which set out a chronology of events involving the accused’s wife and his children. The complainant denied that the document contains matters that she made up. The other hand written document was a budget showing the complainant’s animosity to the accused’s wife. These documents and the contents of certain emails were put to the complainant as background to a bitter breakup of the relationship. The defence makes the point that it was not until the complainant went to the police within a month of the last acrimonious email that any allegation of a sexual relationship with the complainant when she was under 16 years of age was made and that allegation was only made to the police, not to the accused.

73. For the reasons I have given, I am not satisfied beyond reasonable doubt that any of the matters charged has been proved to have taken place on the occasions to which the indictment refers. I find the accused not guilty in respect of each charge.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Supreme Court of the ACT

R v Siddon [2009] ACTSC 169 (18 December 2009)