R v De Martin

COUNSEL: Mr M Pincott of Counsel for the Crown Mr G Heathcote of Counsel for the Accused

SOLICITORS: NSW Director of Public Prosecutions Cater and Blumer Solicitors

1 The accused pleaded guilty to the offence that, between 1 November 2006 and 19 November 2007 at Griffith, he committed an act of indecency towards the complainant.

2 On 13 May 2009, the accused pleaded not guilty to the offence that, between 1 November 2006 and 19 November 2007, he assaulted the complainant and at the time of the assault committed an act of indecency on the complainant by rubbing his penis against the complainant, the complainant being under 16 years of age.

3 On 11 May 2009, the accused elected to be tried by a judge alone and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from a barrister.

4 The Crown tendered the record of a chat log on a computer belonging to the accused, and a record of interview between the police and the complainant. The Crown led short oral evidence from the complainant's mother and the officer in charge of the investigation. The accused called no evidence.

5 The complainant's mother was acquainted with the accused, a swimming teacher. In early 2007, the complainant's mother engaged the accused to coach the complainant in swimming.

6 The accused invited the complainant and the complainant's brother to his home for the purpose of playing computer games. The complainant's mother agreed. The complainant was very interested in computer games. Up to April/May 2007, the complainant attended the home of the accused on a number of occasions for the purpose of playing computer games.

7 On 23 July 2008, police interviewed the complainant. He told them that, on occasions when he played computer games, the accused exposed his penis and masturbated in the complainant's presence. The complainant denied that anyone had touched him on the legs, hips or butt in an inappropriate manner (questions 586 to 591). When asked whether the accused had done anything else to upset him, the complainant said "he didn't do anything that would make me think he was a paedophile" (question 520).

8 On 15 December 2007, police seized a computer from the home of the accused. It contained a conversation dated 11/18/2007 between Matt> Jet Boats were awesome! When do I get to go again? and syd@hush.al (Exhibit A) as follows: "Syd: hows (the complainant)? … Matt: hes getting so hot …he hasn't been around in a while - I see him at swimming … hes seen my cock a few times … 'by accident' Lol …he was lying on my bed playing xbox and I just walked into the room with cock hanging out of pants 'pretending' all was normal … looked a few times …Lol Syd: you where so trying to tune him hehe Matt: hell yeah I am … I brushed up against him with my cock as well Lol …very suttle … nothing at first, then he sat up n folded his legs …" (emphasis added)

9 The Crown has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be innocent. As long as I have a reasonable doubt about the accused's guilt I must return a verdict of not guilty.

10 The Crown does not have to prove the truth of each statement of each Crown witness. The Crown must prove each legal element of the offence beyond reasonable doubt.

11 In making findings of fact I must rely upon the evidence and apply my common sense.

12 An accused person is entitled to exercise the "right to silence" and decline to give evidence. I can draw no adverse inference from the fact that the accused exercised that entitlement. The fact that he did so cannot be used to bolster the Crown case.

13 The Crown must prove three legal elements beyond reasonable doubt.

14 First, the Crown must prove that the accused assaulted the complainant. At law, any intentional (deliberate, not accidental) and unlawful physical contact with another person is an assault. Physical contact is not unlawful if it is the type of physical contact that is generally acceptable as part of ordinary daily life, eg a tap on the shoulder to attract attention. Even a slight touching may constitute an assault at law.

15 The Crown alleged that the accused intentionally and unlawfully touched the complainant by deliberately brushing against the complainant with his penis. I am satisfied beyond reasonable doubt that, if such contact did occur, it constituted an assault, as it was both intentional and unlawful. The accused did not argue otherwise.

16 Second, the Crown must prove that an act of indecency occurred at the time of the assault. The same act may constitute both an assault and an act of indecency. The Crown relied upon the brushing of the penis as constituting both an assault and an act of indecency. An act is indecent if ordinary members of the community would regard it as indecent because the act has an unacceptable sexual connotation, taking into account all the circumstances, including the age and relationship of the people in question.

17 I have no doubt that, if an adult male deliberately brushes his penis against the body of a 10 year-old boy, then he performs an act that has an unacceptable sexual connotation according to the standards of ordinary members of the community. The accused did not argue otherwise.

18 The aggravating circumstance upon which the Crown relied was that the complainant was less than 16 years old at the time of the offence. As the complainant was born in 1997, he is not yet 16 years of age.

19 Because of the complainant's age at the date of the alleged offence, no issue of consent arises.

20 Despite the absence of notice, certain evidence was admitted without objection. The evidence comprised the plea of guilty to the charge of act of indecency, admissions made in the chat log, and the police interview with the complainant in which the complainant detailed occasions when the accused had acted indecently by exposing his penis and masturbating in the complainant's presence.

21 I cannot use the evidence as tendency evidence unless I am satisfied beyond reasonable doubt that the evidence is true. Having regard to the plea of guilty and the fact that the evidence was uncontested, I am so satisfied.

22 The evidence shows that the accused had a tendency to behave in a sexual manner towards the complainant and to harbour inappropriate sexual feelings towards the complainant.

23 Evidence of a tendency to behave in a particular way or to have a particular state of mind is not direct evidence that an accused in fact behaved or thought in that way on the occasion the subject of a charge. But it is a circumstance that can be taken into account when determining whether the accused in fact behaved or thought in that way on the occasion the subject of a charge.

24 I cannot reason that, because the accused behaved or thought in an inappropriate sexual way on other occasions, therefore he is a bad person and that, because he is a bad person, it is more likely that he committed the offence.

25 When determining whether the accused committed the offence in question, I take the tendency evidence into account as relevant circumstantial evidence.

26 As the chat log was located on a computer at the home of the accused and the chat log speaker was "Matt" (the accused's first name is Matthew), I have no doubt that "Matt" was the accused. The accused did not submit otherwise.

27 The only contentious issue is whether I am satisfied beyond reasonable doubt about the reliability of the chat log admission.

28 If I was satisfied beyond reasonable doubt that the chat log admission was reliable, I could return a verdict of guilty based on the admission alone: McKay v R (1935) 54 CLR 1; see also R v Hatfield [1999] NSWCCA 340 at [39] - [41].

29 The Crown submitted that, as all other relevant statements made by the accused in the course of the chat log were reliable (the statements were corroborated by other evidence), there was no reason to doubt the reliability of the relevant admission. Further, the Crown asked me to take into account the circumstances that the accused had a tendency to act in an inappropriate sexual way towards the complainant and harboured inappropriate sexual feelings towards him.

30 The Evidence Act 1995 recognizes that admission evidence may be unreliable: s 165(1)(a). The accused requested that I "warn" myself that the chat log admission may be unreliable and of the need for caution in determining whether to accept the evidence and the weight to be given to it: s 165 (2).

31 I accede to the accused's request. The admission may be unreliable because of the context in which it was made. The conversation between the accused and "Syd" concerned their mutual sexual interest in boys. The apparent desire of the conversationalists to give and receive sexual gratification by discussing their sexual involvement with boys gives rise to a risk that the accused may have been bragging, exaggerating or fantasising when he asserted that he had touched the complainant with his penis.

32 In the conversation, the accused asserted that the complainant had responded to the touch by sitting upright and folding his legs. In effect, the accused stated that the complainant had been aware of the touch and had responded defensively. When interviewed by police, the complainant was afforded ample opportunity to disclose inappropriate touching but did not do so. He may have failed to disclose inappropriate touching because of embarrassment. An alternative explanation is that he did not recall any such touching.

33 Having regard to the context of the chat log conversation and the complainant's failure to make a relevant complaint, I am not satisfied beyond reasonable doubt about the reliability of the chat log admission.

34 On the charge of aggravated indecent assault, there is a verdict of not guilty.

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