R v Ct [2001] ACTSC 65

(d) between 1 and 30 September 1999 he engaged in sexual intercourse with [the complainant] without her consent, knowing that she had not consented or being reckless as to whether she consented to the sexual intercourse.

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

3. During the course of the complainant's evidence-in-chief it became apparent that her account of the acts said to have constituted the second and third offences were inconsistent with the offences happening within the dates charged in the relevant counts and I granted leave for the Crown to amend the indictment so that the offence charged in the second count was alleged to have occurred between 1 and 31 May 1995 and the offence charged in the third count was alleged to have occurred between 10 May and 10 June 1995.

4. However, serious doubts about the complainant's credibility emerged during her subsequent cross-examination and the Crown ultimately intervened to indicate that it could no longer contend that the evidence was capable of proving the commission of the offences to the requisite standard. I thereupon acquitted the accused on all counts in the indictment.

5. The accused had elected to be tried by Judge alone and despite these findings I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as the verdict of the jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if the law of the Territory 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.

6. Whilst the trial has now been resolved it would appear that I am still required to provide reasons in accordance with these provisions.

7. As in trials conducted with a jury, the accused was entitled to a presumption of innocence, the Crown bore the burden of proving each element of each charge and the standard of proof was proof beyond reasonable doubt.

8. The first three counts essentially alleged acts of incest and, subject to the differences in dates, the elements of those offences were the same. Those elements were first, that the accused engaged in sexual intercourse with the complainant between the dates in question, second, when he did so she was between the ages of ten and sixteen, third, that she was at that time his step-child and, fourth, that he then knew she was his step-child.

9. In this context, the term "sexual intercourse" bore the expanded meaning provided by s 92 of the Crimes Act 1900 in its application to the Australian Capital Territory, namely:

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person except where that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or

(b) the penetration, to any extent, of the vagina or anus by an object, being penetration carried out by another person, except where that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or

(c) the introduction of any part of the penis of a person into the mouth of another person; or

(d) cunnilingus; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d).

10. Subsection 92L(7) of the Crimes Act provides that in this context the term "step-child" means a person in relation to whom the other person, in this case the accused, stands in loco parentis.

11. It has been said that this phrase refers to a person who is "in the place of a parent; instead of a parent; charged, factitiously with a parent's rights, duties and responsibilities". See Black's Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 5th Ed, 1979, West Publishing Co, St Paul at 708. Such a person must have acted in a manner which has revealed an intention to put himself or herself in such a position and it has been suggested, must have assumed a duty of providing for the child's financial needs.

12. In Bennet v Bennet [1879] 10 ChD 474 at 477, Jessel MR made the following comments:

what is the meaning of the expression "a person in loco parentis"?

I cannot do better than refer to the definition of it given by Lord Eldon. . . . Lord Eldon says it is a person "meaning to put himself in loco parentis, in the situation of the person described as the lawful father of the child." Upon that Lord Cottenham observes, "but this definition must, I conceive, be considered as applicable to those parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child. The offices and duties of a parent are infinitely various, some having no connection whatever with making provision for a child; and it would be most illogical, from the mere exercise of any such offices or duties by one not the father, to infer an intention of such person to assume also the duty of providing for the child".

So that a person in loco parentis means a person taking upon himself the duty of a father of a child to make a provision for that child.

13. Bennet v Bennet was decided more than one hundred and twenty years ago in the context of proceedings by a mother to recover monies from her son's estate and I do not accept that the assumption of a duty to make financial provision must be proven if a child is to be regarded as a step-child for the purposes of s 92L. Criminal liability of the kind referred to in that section should not depend upon financial support but upon the offender's relationship with the child. It is the betrayal of trust by a person to whom the child was entitled to look for nurture, protection and innocent affection that makes offences of this kind so grave. In this context I think that the phrase, "in loco parentis" means nothing more than that the accused was living with and fulfilling a parental role in relation to the child in question. A person may have been fulfilling such a role because he or she was married to or maintaining a de facto relationship with one of the child's parents, though in my view, that is not strictly necessary. The decisive question is not the nature of the accused's relationship with the parent but the nature of his or her relationship with the child.

14. The elements of the offence charged in the fourth count of the indictment were, first, that the accused had sexual intercourse with the complainant during the period alleged, second, that he did so without her consent and, third, at the time he did so he either knew that she was not consenting or was reckless as to whether she consented.

15. Whilst the law does not strictly require such a course for trials for sexual offences, it is my invariable practice to remind juries that, whilst they should to bring to their task the wisdom and experience they have accumulated throughout their lives, their verdicts should not be influenced either for or against the accused by prejudice or pre-supposition. These principles apply, of course, not only to a jury trial but to a trial by judge alone.

16. The essential allegations may be briefly stated. The complainant said that the first offence had occurred about two days after her thirteenth birthday, which was on 20 April 1995. She had been in the loungeroom of the family home when the accused had asked her to go into the bedroom which he shared with her mother. She initially refused but he kept "pestering" her and she eventually went into the room and got up onto the bed. She said that he then took her clothes off her and began stroking her breasts and thigh before obtaining a condom from a bedside drawer and proceeding to have vaginal intercourse with her with her legs on his shoulders. She said that she did not say anything because she had been afraid of being caught by her mother and afraid of what her mother might say about the incident.

17. The second offence occurred some three to four weeks later in substantially similar circumstances. The complainant had again been watching television in the loungeroom when the accused asked her to come "and have fun with him". She said that she again initially refused. Her account of how she got into the room was not entirely consistent. She initially said that she went into the room because he kept pestering her and wouldn't leave her alone but later said that he had picked her up and taken her into the room. In either event, she wound up on the bed again and said that he had again begun to stroke her breast and thigh before obtaining a condom from the bedside drawer and proceeding to have vaginal intercourse with her with her legs over his shoulders.

18. She said that the third incident occurred about a week and a half after the second. She had again been watching television in the loungeroom but on this occasion the accused put his hands on either side of her hips and turned her around so that she was facing towards the back of the lounge. He then removed her lower clothing and proceeded to have anal intercourse with her.

19. The final offence was allegedly committed in September 1999 when the complainant was seventeen. She said that she was again watching television in the loungeroom though in another house to which the family had moved in 1997. As in the first and second incidents, the accused had asked her to go into the bedroom which he shared with her mother and she had initially refused to do so. However he had kept "pestering" her and she had gone into the room and got up onto the double bed. She said the accused again began stroking her breast and thigh before obtaining a condom from a drawer and proceeding to have vaginal intercourse with her with her legs on his shoulders.

20. She said that she had not consented to any of these acts and that on each occasion she had said, "I don't want you to do this".

21. The complainant suffers from cerebral palsy and, whilst it was not suggested that she was wholly unable to walk, said that she used a wheelchair for covering long distances. She exhibited considerable distress in giving evidence and the account which she gave of the incidents initially seemed quite persuasive.

22. In cross-examination, however, Ms Tonkin, who appeared for the accused, quickly elicited a number of disturbing admissions. The complainant admitted that she had previously made false accusations that the accused had violently assaulted her. When subsequently interviewed by a social worker she had not only admitted the falsity of these accusations but had said that she felt safe living with her mother and the accused. That statement was made in March 1995 which was shortly before the offences charged in the first and second counts on the indictment were said to have occurred. Apart from the statement to the social worker that she had been asked "uncomfortable" questions, the complainant offered no explanation for having made these false allegations.

23. The complainant also conceded that she had given quite different accounts of the sexual abuse which she had allegedly experienced. She had told some people that the accused had abused her weekly, some that he had done so fortnightly and some that he had done so monthly. Furthermore, she had given some evidence of the relevant events at a trial which commenced in April this year but could not then be completed and conceded that there had been a number of substantial inconsistencies between the evidence she had then given about the alleged offences and the evidence she gave before me.

24. The complainant sought to explain these inconsistencies only by repeatedly stating that she had been confused at the time of the earlier trial. That possibility should not be readily dismissed in a case involving allegations of this nature. Having to give a detailed account of being violated by a trusted member of the family would obviously be a most harrowing experience and one could readily understand the odd "slip of the tongue" or mistake as to detail. In the present case however, the nature and extent of the inconsistencies was disturbing, particularly in the light of her admission that she had already made false accusations and that she had made them against this accused. Furthermore, whilst she claimed that the evidence before me was correct, even it was attended by some inconsistency and other disturbing features.

25. There were other aspects of the complainant's evidence that also seemed somewhat implausible. For example, it seemed unlikely that she and the accused would have been wearing shorts and T shirts at the onset of a Canberra winter or that she would have failed to mention being anally penetrated when initially examined by a medical specialist engaged by the Crown for the purpose of determining whether there was any sign of injury to corroborate her account.

26. After the luncheon adjournment the Crown prosecutor indicated that having regard to the obvious difficulties that had emerged in relation to the credibility of the complainant's evidence and the paucity of any supporting evidence, the Crown was obliged to concede that it would be unable to establish beyond a reasonable doubt that the offences had been committed and invited me to bring the trial to an end.

27. He informed me that some time had been spent in going through the complainant's evidence with her before both the original trial and the trial before me but that much of what emerged in cross-examination had not been disclosed during that process. It was apparent that the approach taken by the Crown had been adopted only after a careful consideration of all of the available evidence and that the decision had been conscientiously and responsibly made.

28. In my view it was entirely appropriate for the Crown to intervene in this manner. To have persisted would have involved a fruitless waste of time and money and imposed unwarranted emotional strain upon the accused. It would also have left the Crown in the indefensible position of maintaining allegations of grave criminal conduct against him when it recognised that the available evidence was inadequate to prove the truth of those allegations. Furthermore, having had the opportunity of observing the complainant in the witness box for about two and a half hours I was concerned that her allegations may have reflected some psychological problem which might have been aggravated by the distress of having to deal with obvious discrepancies in her evidence and that it might also be in her interests to avoid further cross-examination.

29. Since there was technically a prima facie case, it was not open to the Crown to simply withdraw the charges. I was, therefore, required to form my own judgment as to whether the evidence that had already been adduced was sufficiently credible to be capable of proving beyond reasonable doubt the commission of any of the offences charged. In doing so, I accepted that it was appropriate for me to take into account what the learned prosecutor had told me about the paucity of supporting evidence and to give due weight to the concession properly made on the Crown's behalf. In my opinion the evidence was plainly insufficient to prove the offences.

30. Accordingly, I acquitted the accused of each charge.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the accused: Darryl Perkins, Solicitor