District Court New South Wales Medium Neutral Citation: R v BEAUMONT [2012] NSWDC 24 Hearing dates: 19 March 2012 - 21 March 2012 Decision date: 23 March 2012 Before: Berman SC DCJ Decision: Not Guilty Catchwords: CRIMINAL LAW - Judge alone trial - Verdict - Indecent assault on a person under the age of 16 years. Category: Principal judgment Parties: The Crown Kevin Nigel Beaumont Representation: Mr P Wagstaff - The Crown Dr B Glennon - The Accused Director of Public Prosecutions File Number(s): 2011/175815 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant. Judgment 1On Monday 19 March 2012 I granted an application by the accused Kevin Nigel Beaumont that he be tried by judge alone. I then commenced to hear the trial. Mr Beaumont pleaded not guilty to a charge that on 23 December 2010 he assaulted LB and at the time of the assault committed an act of indecency upon her, she then being under the age of 16 namely 10 years of age. 2There was, as is usually the case, no issue that if the accused had done what he is alleged to have done then he would be guilty of the offence. So the question is ultimately whether the Crown has satisfied me beyond reasonable doubt that he did what LB said that he did. 3The complainant's evidence in chief was primarily given by a video taped interview she had with police being played to the Court. Her cross examination then took place with the complainant appearing on closed circuit television. Adducing evidence from a child through those means is standard procedure. I did not draw any adverse conclusion against the accused because the evidence was given in that way, nor did I give the evidence any greater or lesser weight because it was not given in the way evidence of an adult would usually be given. 4I have decided this case only on the evidence put before me. In particular I have put to one side such things as emotion. Acting as a judge requires that I approach this matter from a coldly analytical point of view. 5In this case the two most important people in resolving the matter have both given evidence. I was able to assess the complainant's demeanour as she gave evidence and also the accused's demeanour as well, he also giving evidence despite there being no obligation upon him to do so. 6Although I had the benefit of seeing the witnesses give their evidence I fully appreciate that in many cases it is extraordinarily difficult to assess whether a witness is telling the truth or not from the way the person behaves in the witness box. In this case the complainant impressed me as a child who responded to questions put to her, particularly in cross examination, confidently and accurately. At a very broad level, the accused did not impress me in the same way. At least part of that impression results from some confusion in the way I framed a particular question, but at a more fundamental level a poor impression in the witness box often says very little about whether the witness is doing his or her best to tell the truth or not. 7I have of course borne in mind at all times that the onus of proving the guilt of the accused is upon the Crown, and further that a high standard of proof is required in a criminal trial - namely proof beyond reasonable doubt. The accused does not have to prove that he is innocent. The accused does not have to prove that he is not guilty. The accused is presumed to be innocent until the Crown satisfies me beyond reasonable doubt that he is guilty, if the Crown is capable of doing that. 8One matter which flows from the high standard of proof which is placed upon the Crown concerns the circumstance that the Crown case relies almost exclusively on the evidence of a single witness namely the complainant. Accordingly I have scrutinised her evidence with great care. Before I could convict the accused I must exercise caution because the Crown case depends on me accepting the reliability of the evidence of a single witness namely the complainant. 9Of course that does not mean that I am not entitled to convict the accused based on the evidence of the complainant alone. What it does mean is that I should exercise caution and scrutinise the evidence of the complainant carefully in deciding whether it satisfies me of the truth and accuracy of what she said. 10It is notorious that offences such as this one are usually committed in private and so it is commonly the case that the Crown is forced to rely on the evidence of a single witness. But the standard of proof, proof beyond reasonable doubt, is not watered down because offences such as these usually occur in circumstances where no one is present to corroborate the complainant's version. 11The accused is now 63 years of age. He raised his character as an issue in the trial. He has no prior convictions for any criminal matter at all. This makes it less likely that he would have committed this offence and more likely that he was telling the truth when he denied committing the offence in the course of his evidence. 12The complainant's mother Ms AB met the accused through an internet dating site. They formed a relationship which involved them occasionally staying overnight at the other's home. The complainant lived in a town house with her mother. Her father did not live in Australia. She had regular telephone contact with him as well as video calls using skype. Her father, LE and his brother came to visit Australia in December 2010. They stayed in the town house. On the 23rd of December 2010 the accused also came to the town house to do some work for the complainant's mother. The accused is a builder and he was doing some plumbing work. 13There is a swimming pool attached to the complex in which the town house is situated and the complainant spent some part of that day swimming in the pool with a friend of hers. 14At one stage during the course of the afternoon the complainant's father and uncle went to the Macquarie Shopping Centre, about 15 minutes walk away. That left the complainant, her mother, and the accused behind in the town house. The complainant's mother had a job as a carer for elderly people and she needed to be at work at 6.00 pm. She was hoping that the complainant's father and his brother would return from the shopping centre in time to look after the complainant while she was at work. However, as the time approached where she had to leave to go to work, and after she was unable to arrange alternative care for her daughter at short notice, it was agreed between the accused and the complainant's mother that he would look after the complainant until her father and uncle returned from the shops. The complainant's mother then left. 15What I have described so far is common ground. However what happened next has been the subject of significant dispute in the trial. As I mentioned earlier the two most important people, namely the two who remained in the town house, both gave evidence. 16The complainant gave evidence that the accused began pestering her to allow him to give her a massage. She said that although she declined at first she eventually gave in. She therefore lay down on the lounge room floor, still wearing her swimming costume. The accused began massaging her until at one stage he put his hand under her swimming costume and rubbed her external genitalia for a few seconds. Her evidence was that he told her not to say anything to anyone about this and that he did not believe that what he was doing was wrong. She said that he stopped what he was doing because her father was coming home from the shops. 17The accused agreed that he did massage the complainant but insists that he only touched her on her shoulders and upper back. He agrees that when he first asked her if he she wanted a massage she said "no" but some time later when he repeated his offer, his evidence was that she agreed. He denied specifically ever placing his hand under her swimming costume. 18The complainant's father gave evidence that he returned from the shops at about 7.30 pm. He did not suggest that there was anything unusual about his daughter when he saw her. The accused and Mr LE agreed that the accused left soon after putting his tools in his car. The complainant did not say anything to her father about the accused touching her genitals. It was not until some time after the complainant's mother came home from work that evening that the complainant alleged to her that the accused had touched her under her swimming costume rubbing his hand over her external genitals. 19The accused suggests that the failure of the complainant to tell her father what she later told her mother is evidence which I should take into account in assessing the reliability of the complainant's evidence. The argument is that if in truth the complainant had just been molested by her mother's friend then she would not have failed to immediately tell her father about this when he arrived home. On the other hand there may be good reasons why a young girl in the position of the complainant, whose father lived overseas and who clearly had a closer relationship with her mother, might prefer to wait the short time until her mother returned home before making a complaint. The complainant was asked about this in evidence. She explained that she was "too nervous" to tell her father. 20This is not a case where the distance between Australia and Canada, where the complainant's father usually lived, meant that the two of them had little to do with each other. Both the complainant's parents seemed to have made highly commendable efforts to ensure that the complainant had a good relationship with her father. There was regular contact between them, including, video calls through skype, and they had been together physically on other occasions when Mr LE came to Australia and they went to Canada. Despite this closeness I can well understand why the complainant might pause before speaking to her father about what she said had happened to her in circumstances where she is clearly closer to her mother than her father, where she is speaking about highly personal sexual matters, and where she knows that her mother will soon be home giving her the opportunity to complain at that time. 21After being told by her daughter about what she said had occurred, the complainant's mother spoke to Mr LE and then made a number of phone calls. She contacted a help line, Eastwood police, and the accused himself. Part of the difficulty in knowing what conclusions to draw from things said by the accused during that conversation arise from the circumstance that the call was not recorded, no notes were taken, and, at least to some extent, Ms AB spoke euphemistically. According to her she said that her daughter had complained that the accused had touched her between her legs. In circumstances where the accused had undoubtedly touched the complainant during the course of the massage the use of this euphemism could have led to confusion. Ms AB no doubt knew what she meant by the expression but there is no guarantee that a person hearing the expression used would automatically assume that what Ms AB meant was that her daughter had been touched on her genitals. 22As it turns out the use of the euphemism did not appear to cause any significant confusion. The accused undoubtedly knew that what was being suggested was that he had done something highly improper. This is obvious from the way he said he reacted to the allegation. And in any case he gave evidence that he did not massage the complainant's legs at all saying that he merely stroked her shoulders and upper back. 23There is a conflict in the evidence as to whether the accused told Ms AB that he had massaged her daughter. Ms AB said he did but the accused said he didn't. Whether he did or not say that to Ms AB is probably not all that important. And any difference of recollection may be due to the circumstances that I referred to earlier. 24I turn now to something which was said to provide a possible motivation for the complainant to make a false allegation against Mr Beaumont. The complainant agreed in cross examination that she did not like Mr Beaumont. Nor did she like his 13 year old son. Not surprisingly, she would have preferred both her parents to live together with her in the town house. She had complained to her mother about Mr Beaumont and told her mother that she didn't like him. She was asked "but you would be very happy if you could get him out of your house, is that right?" and she answered "I would just prefer it". 25Counsel for the accused pointed out that this allegation arose at a time when the father was in fact in Australia and so the complainant may have seen this as an opportunity for her parents to recommence co-habitation. Of course this does provide a motivation for the complainant to make a false allegation. That of course is not to say that her allegation is false, or that she was in fact motivated in the way the accused suggests, but it is to recognise that this is not a case where the accused cannot suggest any reason that the complainant might make a false allegation against him. 26Of course there are two sides to every story. The Crown relies on the circumstance that the complainant freely admitted her dislike of the accused and a preference that her parents live together in cross examination. The Crown suggests this demonstrates the complainant's honesty. 27Even if I were to reject the motive raised by the accused that does not mean that there is no motive for the complainant to tell a lie. As I have explained repeatedly the onus of proving the guilt of the accused is placed firmly on the Crown. Absence of evidence of a motive to lie is not evidence that there is no motive to lie. After all the accused can't be expected to see into the mind of the complainant and discover whatever motive there may be for her to tell a false story. 28While, as I said earlier, I appreciate the difficulty in assessing truthfulness from demeanour, there was nothing in the way the complainant gave her evidence, either during the interview with the police, or cross examination, which suggested she was being other than truthful. In particular she did not appear to be embellishing matters. For example she is clearly a very intelligent young girl and had she wanted to she could have easily made more serious allegations than she did. She did not say for example that the accused removed her clothing or any of his clothing. She complained of only a very brief period of touching on her genitals and denied penetration. Had she wanted to, she could have made things much worse for the accused. 29She was appropriately embarrassed about naming her private parts and in describing intimate matters and did not appear to be a person who was enjoying the experience of being interviewed by police. In other words she did not appear to be deliberately trying to get the accused into trouble. 30There were certain aspects of what she said too which had the ring of truth about them. Her evidence that he had said to her that she should not tell anybody might perhaps be the product of a clever young girl's desire to make her account more believable, but her evidence that the accused said to her that he thought what he had done was not the wrong thing to do shows a level of sophistication of thought suggesting the truth of the complainant's version of events. 31There were some differences in the evidence given by the complainant and her mother but, interestingly, where there was a disagreement the complainant's evidence matched that of the accused rather than of her mother. For example whilst the complainant and the accused agreed that the accused had stayed overnight with the complainant present in the house, the complainant's mother said that when the accused stayed overnight the complainant invariably stayed at her grandmother's. The accused even said that on three occasions the complainant came in to the main bedroom whilst he was in bed with the complainant's mother. (It would have been perhaps helpful if that suggestion had been made to the complainant's mother in cross examination, but what she would have said in response to such a suggestion is simply unknown.) Not much really turns on the differences in evidence given by the complainant and her mother. The complainant's mother's credibility was not really in question and, whether or not the complainant was present when the accused stayed the night, she seems to have been well aware that the accused represented more to the complainant's mother than simply being the home handyman. 32It was part of the Crown case that it was possible to see out from the lounge room where the offence allegedly took place because the vertical blinds were open. This, said the Crown, meant that the accused was able to keep watch for the return of the complainant's father in order that he would not be caught red handed. The town house fronts onto XXX at Marsfield and it is possible to see parts of the street from inside the lounge room. However the fact that someone can see out also means of course that someone can see in. Whilst the presence of low shrubs would perhaps prevent a casual passer by from seeing activity on the lounge room floor, Dr Glennon points out that as far as the accused would be aware there might be someone other than a casual passer by coming to the home, perhaps a neighbour, and perhaps even the young child with whom the complainant had been swimming earlier that day. The competing arguments are balanced and I do not find the view into and out of the lounge room to be of much help in resolving this case. 33I do accept that the accused did not know when the complainant's father would be returning from the shops and so there was a risk, perhaps a small one, of being caught in the act. But there was a larger risk that the complainant's father and uncle would return home immediately after he had indecently assaulted the complainant and they would walk in on a distressed child making an allegation of improper conduct. On the Crown case the accused minimised the chance of that happening by telling the complainant not to tell anyone but there is no way the accused could have been confident that the complainant would obey that instruction. And in any case there is little he could do to prevent the child from appearing distressed. The complainant's father saw no signs of distress when he arrived a few minutes after the complainant said she had been indecently assaulted. 34Not only did the accused know that the complainant's father and uncle were due home at any time he also knew that the complainant had not been backwards about coming forward to complain to her mother about other things involving him and his son. The evidence was that the complainant had told her mother about things she did not like about the accused and his son and so the accused could not at all have been confident that simply saying to the complainant that she should not tell anyone would lead to her remaining silent. 35So if the accused did what he is alleged to have done, he did it in a way which created significant risks of detection. Dr Glennon uses this as part of a submission that the accused did not do what he is alleged to have done because to have done so would have been foolish. I recognise immediately that it is only the foolish or unlucky criminals that actually get caught, but it is significant that on the Crown case the accused would have chosen to molest the complainant when the risks of detection were increased but there is no suggestion that he acted improperly towards the complainant at any time when he was minding the complainant alone, something which although denied by the complainant's mother, the complainant and the accused both agree had previously occurred. 36I mentioned before that there are inconsistencies in the evidence of the complainant's mother and the complainant. There is another inconsistency of perhaps more significance. It is clear that the complainant told her mother, and police, and gave evidence in court, that the accused's hand went under her swimming costume such that his hand directly touched the complainant's external genitals. However the evidence of the complainant's father LE is that the complainant told him something different. His evidence was that on the evening of the 23rd of December the complainant told him that the accused touched her "private" and when he asked her to show what he did she put her hand on the top of her vagina. Mr LE then asked the complainant "did he put his hand in your pants" to which the complainant replied "no". If we discount the possibility that the complainant responded that way because she took the question literally and her evidence was that the accused put his hand under her swimming costume not her pants, then either the complainant's father has misremembered what he was told by his daughter about a serious matter or the complainant has given an inconsistent version of events. 37Of course I cannot say with certainty why it is that the complainant's father's evidence was that the complainant told him that the accused's hand did not go under her pants, but it is clearly a factor which tends against the acceptance of the Crown case. 38One of the matters put strongly by the Crown concerns the circumstance that the accused wanted to massage a ten year old girl when he was home alone with her and would ask again after having been initially rebuffed. Why would a grown man be so keen to massage a ten year old girl that he would ask again (his version) or again and again (the complainant's version) especially in circumstances where the evidence would suggest that he was not terribly close to her and did not think much of her behaviour? 39No doubt it was at least unwise for the accused to massage her, and that he would ask her again after having been rebuffed on the first occasion does tend to suggest a desire for physical contact between him and the complainant. On the other hand what to the eyes of a criminal lawyer is highly suspicious behaviour can be in truth simply someone being affectionate to another. And the evidence of the accused was that whilst there had been some difficult occasions with the complainant, there were other times when her behaviour was quite different. He described it this way "it was almost dichotomous in a way because some days she would absolutely love you to death and the next day she would just totally ignore you and be quite hateful". 40In circumstances where the accused appears not to have been aware of any cooling in the relationship between him and the complainant's mother, it is not at all surprising that he would try to be affectionate towards the complainant, and that such affection might on occasion take the form of innocent physical contact such at massaging her shoulders and upper back. 41I mentioned the accused's good character before, but it is worth expanding on that. The accused is not some 18 year old with no priors. In such a situation a fact finder could be forgiven for simply thinking the absence of criminal history says little about the underlying character of that person. The accused is 63 years of age and not once in that time has been convicted of any criminal offence let alone an offence involving an allegation of sexual assault of a child. That does say something about the chances that he would have done what the Crown alleges that he did in this case. Of course people without previous criminal convictions are not incapable of committing an offence for the first time, nor are people without criminal convictions incapable of lying in court, but in the circumstances of this case, particularly as regards the accused's age, his good character works very much in his favour. 42In this case there was nothing to suggest that the complainant was not telling the truth. As I have mentioned she, as far as I could determine, gave answers in what appeared to be a straightforward and honest manner. Indeed the evidence on which the accused sought to establish her motive for lying came from the complainant herself. She did not appear to exaggerate, embellish, or make things up. The one area where she said something inconsistent in evidence (using the word hands rather than hand) was likely a mere slip of the tongue. I do not find it at all surprising that she would not complain to her father but prefer to wait until her mother got home before making the allegation against the accused. 43On the other hand similar things could be said about the evidence of the accused. An inconsistency in his evidence relied on by the Crown was probably also a mere slip of the tongue and evidence on which the Crown relied, in particular concerning the circumstance that he asked the complainant whether she wanted a massage on more than one occasion, was confirmed by the accused despite it being capable of being used against him. 44I have, as I am required to do, examined the evidence of the complainant with great care and there is nothing in that evidence to lead me to think that she is lying. On the other hand that is not the right test for me to apply. I have to be satisfied beyond reasonable doubt that the accused is guilty, and to put that matter another way, if there is a reasonable possibility that the accused's evidence is true then it is my duty to find him not guilty. 45I repeat something I said earlier. The burden of proof in child sexual assault cases is not watered down simply because these offences occur in private and the Crown thus has difficulty proving them. The fact that the Crown in this case can rely only on the evidence of a single witness is a significant impediment to the Crown proving its case to the required standard. 46The complainant did have a motive to make this allegation. It was her desire to get the accused out of her mother's life and for her mother and father to live together. Again it is significant that this allegation arose when the complainant's father was actually staying in the town house. 47I cannot exclude the reasonable possibility that the accused's evidence is true, whether or not the complainant was motivated by a desire to see her parents back together. The accused is not guilty. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2012