R v A, GP - [2012] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v A, GP
Criminal Trial by Judge Alone
[2012] SADC 10
Reasons for the Verdicts of His Honour Judge Clayton
20 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with Gross Indecency, Inciting a Child to Commit an Indecent Act and three counts of Indecent Assault.
Verdicts: Guilty of each count.
Evidence Act 1929 s 34M, s 34CB, referred to.
Marshall v The Police [2007] SASC 380; R v Cassebohm (2011) 109 SASR 465, considered.

R v A, GP
[2012] SADC 10

The accused is charged with one count of Gross Indecency, one count of Inciting a Child to Commit an Indecent Act and three counts of Indecent Assault.
The offences are alleged to have been committed between 3 January 1996 and 31 December 1996. In each case the alleged victim is a daughter of a woman with whom the accused was in a relationship who at the time of the alleged offences was aged seven or eight.
The accused elected for trial by judge alone.
The mother and father of the complainant separated In 1996. The family had lived at Broken Hill but after the separation the mother moved to South Australia and lived with the accused at various addresses on the Lefevre Peninsula. The family group included the accused, the mother of the complainant, the complainant, K, an elder sister of the complainant, another younger sister of the complainant and T a daughter of the accused.
K was present at the time of some of the alleged offending and she was the alleged victim of other uncharged acts herself. However because she resides interstate and is mentally unwell K was unable to give evidence.
The prosecution depends entirely upon the evidence of the complainant. There is no corroboration of her evidence. The alleged offending occurred about 16 years ago. The prosecutor has acknowledged that the accused is at a forensic disadvantage and that I must scrutinise the evidence of the complainant carefully.
The complainant is now a police officer. She gave clear evidence as to the essential facts upon which the prosecution relies. I refer to her evidence in more detail later. If I accepted her evidence beyond reasonable doubt there would be evidence of the alleged offences.
While the complainant gave clear evidence as to the essential elements of the alleged offences her evidence was not rich in detail and she had a poor recollection of the surrounding circumstances.
The accused did not give evidence. However he was interviewed by police officers and records of interviews of the accused in 1996 (Exhibit P1) and on 4 July 2010 (Exhibit P3) were tendered by the Crown.
My task is to consider all of the evidence and to scrutinise the evidence of the complainant as to each of the five alleged offences. Before I can convict the accused of any offence I must be satisfied that the evidence establishes the alleged offence beyond reasonable doubt. Each count must be considered separately.
Count 1 - Gross Indecency
The evidence of the complainant was that while the family including the accused, K, and the complainant was living in a house at North Haven the accused made board games for the children to play. At least one of those games was sexual in nature. In that game the players were required to roll dice and move the designated number of squares. She said that there were directions on the squares such as "Take off your pants" and "Touch (another person)" and "Stuff like that".[1]
[1] T24.
The complainant said that on one occasion when she was playing with the accused and her sister the accused landed on a square which directed him to take off his pants. He did that. He was not wearing underwear and he exposed his penis.[2]
[2] T25.
The complainant said that she felt uncomfortable, felt it was gross and she put a pillow over her head and ran off.[3]
[3] T25.
The elements of this offence are that the accused committed an act, which was an act of gross indecency, in the presence of the complainant at a time when she was under the age of 16.
I accept the submission of the prosecutor that given the age of the accused and his relationship to the children the act of the accused in exposing himself would amount to an act of gross indecency.
The question is whether I can accept the evidence of the complainant as to the occurrence of the alleged act beyond reasonable doubt.
Count 2 - Inciting a Child to Commit an Indecent Act
The complainant gave evidence of an occasion when she and the accused were lying in bed under the covers. The accused was tickling her and playing. He told the complainant that he had pulled down his pants and that the complainant needed to pull them back up. At the time he was laying down on the bed. The complainant said:
Well, I jumped up off the bed and he showed me, like pulled off the covers and I saw his underwear were around his ankles. I remember thinking ‘Well, how did I pull them down?’[4]
[4] T26.
She said that she had not pulled his pants down.
When he pulled back the covers she could see his penis.[5] He asked her to touch his penis. She said she touched it and it was wet. She could not remember how long she touched it for but said that she felt that "it was wet and it was just squishy". She then ran into the basthroom and washed her hands.[6]
[5] T26.
[6] T27/28.
At the relevant time s 58A of the Criminal Law Consolidation Act 1935 provided:
58A(1) A person who with a view to gratifying prurient interest (whether of that person or some other person) -
(a) incites or procures the commission by a child of an indecent act; or
(b) causes or induces a child to expose any part of his or her body,
shall be guilty of an indictable offence and liable for a first offence to be imprisoned for a term not exceeding two years and for any subsequent offence to be imprisoned for a term not exceeding three years.
(2) Subsection (1) applies whether events referred to in the subsection occur in public or in private or with or without the consent of the child.
(3) In this section -
"child" means a person under the age of sixteen years.
“Prurient” means having an unhealthy obsession with sexual matters. Marshall v The Police [2007] SASC 380 per Sulan J.
On the evidence of the complainant the accused incited or procured the complainant to touch his penis. I accept the submission of the prosecutor that if the accused did that it was with a view to gratifying a prurient interest. If the evidence of the complainant is accepted beyond reasonable doubt it would establish that the accused had an unhealthy obsession with sexual matters and that he acted with the intention of satisfying a prurient interest. Her evidence would establish the offence.
Count 3 - Indecent Assault
The complainant gave evidence of an occasion when she, her sister K, and another young girl were in the spa bath at the house at North Haven with the accused. They were not wearing clothes. She said:
We were all playing and he (the accused) was sitting in the bath with his legs together and up. He would pick me up and straddle me on his legs and then slide me down and then I would jump out and it was the next girl, and we did that.[7]
[7] T27/28.
She said her legs were spread on either side of his legs. She was naked and her vagina slid down his legs. She was facing him and her vagina came into contact with his leg. The other girls did the same. She said that the accused held her around the waist and she demonstrated a movement starting with her arms outstretched in front of her pulling a person from the knees down towards the waist. The complainant said "My vagina would be touching, sliding down his legs and then onto his penis".[8] She could not say whether the penis was erect. She did that a few times and then just left them.
[8] T29/30.
If I accepted that evidence beyond reasonable doubt, it would establish the elements of the offence of indecent assault. There was a touching in circumstances of indecency.
Count 4 - Indecent Assault
The complainant gave evidence that she was with her sister K and the accused in the garage at the house at North Haven and that she and her sister were completely naked. How they came to be naked was not explained. She said that the accused stood the girls on a freezer and painted a bikini on them using blue paint. She said he painted bikini tops on their chests and also painted "our vagina and on our bums". She said that the time he spent painting on the naked vagina felt like a long time.
She said that the accused said "Oh, if you go down to the beach the boys are all going to look and like your bikini" and things like that.[9] The Crown relies upon that statement to establish a sexual connotation.
[9] T31.
The complainant said that the girls ran round with the painted bikini all day. There was nobody else at the house other than the accused and her elder sister.[10]
[10] T31.
Again, if I accepted that evidence beyond reasonable doubt, there would be evidence of a touching of the vagina of the complainant in circumstances of indecency which would establish the elements of the offence of indecent assault.
Count 5 - Indecent Assault
The complainant gave evidence of a trip to the beach with the accused, her mother and her sister. She said:
...When we were about to leave he took me into the water because he wanted to get the sand out of my bathers, even though I didn't have any stand in my bathers, and he would put his hand and stroke my vagina trying to get the sand out.
And:
He put his hand in my bathers through the leg hole and just stroked up and down my vagina, he was trying to remove the sand.[11]
[11] T32.
After she told the court that there was no sand in her bathers the complainant was asked why she had said that he was trying to remove sand. She replied "Because that's what he said he was doing".
When asked how long he stroked her vagina for she could not remember exactly but said "it felt like a while" and she "just felt uncomfortable".[12]
[12] T32.
Again, if I accepted the evidence of the complainant as to that incident beyond reasonable doubt, there would be evidence of a touching in circumstances of indecency which would establish the elements of the offence of indecent assault.
The Defence Case
The accused was under no obligation to give evidence and I must not draw any inference adverse to him as a consequence of his exercise of that right. However the accused did answer questions when he was interviewed by a police officer on 4 July 2010 (Exhibit P3). The interviewing officer put to the accused in turn each of the allegations of the complainant.
As to count one the accused did admit making a board game which required players to pinch each other on the buttocks or to kick each other but said "There was nothing mentioned about taking off this, that or the other".[13] The accused denied that if a player landed on certain squares a sexual action, such as removing clothing or touching something, was required. He denied that on one occasion he removed his pants and exposed his penis while playing the game. He denied that he ever exposed himself to either of the girls.
[13] Record of Interview p 5.
Later he said that the pinching referred to pinching themselves.
The accused did not recall any incident like count 2 and said that he had never intentionally exposed himself.
When the allegation giving rise to count 3 was put to him the accused responded "That's a lie… in that way, no, no".
The accused did agree that he was in the spa with the girls' mother one day and the children jumped in and sat around their mother because it was a bubble bath. However he said there was "Nothing to do with slippery dips or shit like that, no".
The allegation giving rise to count 4 was put to the accused and he was asked whether he remembered any incident where he had painted bathing suits on the girls. He responded:
… there was one, one time there we had, had a laugh with their mother that, yeah, I did paint with household paint, like the kids were running around, come here I’ll paint some bathers on ya, so you don't run out the front gate, cos there was sort of courtyard area and anyway (K), I think (K) was there, I went in and their mother cracked up laughing with it and yeah, they went and washed off and.[14]
[14] Record of Interview p 7/8.
He said that the girls were topless but were not bottomless and that he did not paint the bottom half at all.
As to count 5 the accused agreed that he had taken the girls to the beach but denied that there was any incident where he had touched the complainant in a way that might be considered inappropriate.
The Evidence of the Complainant's Mother
The complainant's mother denied that she saw the bikinis painted on the two girls as alleged in relation to count 4.
There is therefore a conflict between the statement the accused made at the interview that the mother "cracked up laughing" when she saw the bikinis painted on the girls and the evidence of the mother. The prosecutor argued that there was no reason for the mother to hide or be embarrassed about the incident and he pointed to the conflicting testimony as a reason to doubt the credibility of the accused. I accept that submission.
Uncharged Behaviour
The complainant gave evidence that the accused would pick up his own daughter and move his face around on her bottom and around her body biting her bottom. She also gave evidence that the accused would pick up her sister K, spread her legs and move his face around her vagina. He also did the same thing with the complainant. Most commonly it was with her sister but he did pick up the complainant and move his face around and say "my little princess".[15]
[15] T19/20.
It is alleged that the uncharged behaviour colours the relationship between the accused and the complainant. The prosecution does not rely upon the uncharged acts to show propensity, but argued that the uncharged acts show a relationship between the accused and the complainant which is relevant to the context in which the charged acts took place. It was argued that the accused was developing within the house and in the presence of the complainant an environment of sexual interest where sexualised behaviour would be considered the norm. It was argued that environment allowed the accused to commit the charged acts.
The prosecutor argued that if I was satisfied that the accused had offended against K in the way that I have mentioned that finding would be relevant to the credibility of the complainant because that evidence confirmed an aspect of the complainant's account.
A Police Apprehension Report prepared in 1996 following a complaint on behalf of K (Exhibit P1) recorded that in May 1996 the accused acknowledged he had touched the vagina of K and that K had touched his penis. The accused attempted to place an innocent explanation upon that event but the prosecutor submitted that it is difficult to construe those acts as having an innocent interpretation. The prosecutor argued that if I was to find that in 1996 the accused did make admissions as to offending against K, but sought to downplay them with an innocent explanation, then that finding would establish that the accused was behaving in a sexual way towards K at the time of the alleged offending and support the complainant's evidence. It was argued that evidence indirectly supported the evidence of the complainant that the accused played the board game in the presence of both the girls and put his face in the vagina of K in the presence of the complainant.
I accept the submission of the prosecutor that the accused had the opportunity to commit the offences. He lived in the same house as the complainant and on occasions looked after the children while their mother was at work. For a time he was at home with a work injury.
The Credibility of the Complainant
So far as the important elements of the alleged offending are concerned the evidence of the complainant was given in a straightforward manner and her evidence itself provides no reason to doubt her credibility.
As I have mentioned the alleged offending occurred about 16 years ago when the complainant was seven or eight years of age. One observation which can be made about her evidence is that there is little detail of surrounding circumstances. Also in cross-examination the complainant repeatedly stated that she did not know the answer to many questions without making any apparent effort to address the question. After considering her evidence carefully I have decided that trait does not provide a reason to doubt that evidence which she did give.
I take into account some minor inconsistencies between the evidence of the complainant to the court and what she said to Dr O'Neill, a psychologist. I do not think that those inconsistencies give reason to doubt her evidence.
The First Complaint
In the middle of 1996 the complainant and the sister K went to Broken Hill to visit their father. When the girls made reference to the board game incident their father immediately dropped everything and took the two girls to the Broken Hill Police Station where the girls were interviewed.
The father's evidence was that the complainant "said that they played a board game with him (the accused) and if you lobbed on a star you had to take off a piece of clothing".[16] That is the evidence of the first complaint by the complainant.
[16] T150.
The father was cross-examined about an affidavit that he had sworn on 1 May 1996. In re-examination he agreed that in the affidavit he had said "(The complainant) then informed me that (the accused) has exposed his penis to the children on a number of occasions and has also played with his penis whilst they are present".[17]
[17] T162.
I am satisfied that the complaint to the father post dated count one. The evidence does not establish whether the complaint to the father was made before or after the other alleged offences.
I accept the father's evidence that the complainant told him that they played a board game and that if you lobbed on a star you had to take off a piece of clothing. That first complaint as to count one can be used to inform the court as to how the allegation first came to light and can be evidence of consistency of conduct of the complainant. However it is not admitted as evidence of the truth of what was alleged (s 34M of the Evidence Act 1929).
The evidence of the complaint to the father is admissible with respect to count one, but not the other counts.
I do not treat the additional information elicited in re-examination as to the accused exposing his penis as a part of the initial complaint. The prosecutor conceded that it was not possible for the Crown to assert that the reference to exposure of the penis was part of an expanded complaint. The Crown did not rely upon what the complainant said to her father about the accused exposing his penis in addition to taking off clothes as part of the board game.
The prosecutor conceded that the accused has suffered a significant forensic disadvantage. I have taken the ways in which the accused may be at a disadvantage and the submissions of counsel for the defence into account when scrutinising the evidence of the complainant. I have considered the requirements of s 34CB of the Evidence Act and R v Cassebohm (2011) 109 SASR 465, 474, para 29. The possibility of forensic disadvantage must be considered in the circumstances of this particular case.
One possible disadvantage is that relevant evidence may no longer be available. In the period since 1996 police records have been lost. They include the recording of an audio interview with the accused in May 1996 about allegations relating to K and the allegedly offending board game itself was not produced. However as the prosecutor pointed out that evidence may not necessarily have assisted the accused.

The evidence does not reveal the outcome of the complaint made to the police in 1996. There could be an inference that complaints were made by the complainant and K but no further action was taken. That is an inference could be drawn that the investigation by the police in 1996 failed to identify any wrongdoing. However the present matter must be determined on the basis of the evidence now before the court, not what may have happened in 1996.
The evidence suggests that the 1996 complaint related to the board game but did not extend to the subject matter of counts two to five.
The possibility that because of the lapse of time the accused may have been disadvantaged in the presentation of his defence is a matter which I take into account. Unfortunately, in cases such as this one may not know in what way an accused may have been disadvantaged.
So far as count one is concerned there is, as I have mentioned, the possibility that the accused has been prejudiced because the allegedly offending board game cannot now be produced. The evidence of the complainant was that there was more than one board game and that the game seized by the police was not the offending board game which was kept in the shed.[18] The complainant gave evidence that she told her mother that the police did not take the right board game and she could not understand why her mother did not give them the other board games. Accordingly production of the game seized by the police may not have advanced the matter one way or the other.
[18] T25, 37.
I acknowledge that I must not proceed on the basis that it could be dangerous or unsafe to convict (s 34CB(3)(b)).
I ignore the questioning in the police interview on the topic of "Why would the complainant make this up?" The accused does not have to establish any motive for the complainant to have made up the allegations.
As requested by the prosecutor I ignore any suggestion that there may have been other investigations.
The ultimate question is whether I am prepared to accept the evidence of the complainant beyond reasonable doubt. She presented as a credible witness. Has the defence identified anything which might give rise to a doubt about her evidence?
The denials made by the accused when he was interviewed by the police were basic denials. They do no more than indicate that the accused challenges the complainant's allegations.
As I have mentioned there is a conflict between the evidence of the mother and the statement that the accused made to the police. I accept the evidence of the mother and find that on this topic the statement of the accused to the police has been shown to be unreliable. It is not a peripheral matter but goes to the very heart of count four.
Mr Kane, who represented the accused, pointed out that the allegations arose in the context of an acrimonious family breakdown. That is correct, but that breakdown was in 1996. I am unable to see how the present complaint is related in any way to the breakdown in the marriage of the complainant's parents more than a decade ago. I do not regard the family breakdown as a reason to doubt the evidence of the complainant.
Mr Kane submitted that the evidence of the complainant was quite unsatisfactory in terms of the order and timing of the various allegations. There is some merit in that submission. It is likely that the facts giving rise to count one were the first event. Her evidence does not make the sequence of the following events clear. However given the age of the complainant and the time which has passed I do not regard her failure to identify a precise chronology as a reason to doubt her evidence as to the occurrence of the alleged events.
Mr Kane submitted that I should scrutinise the evidence of the complainant in terms of the order and timing of the various allegations with very great care. I accept that submission.
Mr Kane referred to the Apprehension Report (Exhibit P1) which was prepared on 12 May 1996. It can be inferred that the sequence of events was that the complainant spoke with the police in Broken Hill who then referred the matter to the South Australian police who prepared the Police Apprehension Report. The Apprehension Report is concerned with a complaint by the complainant's sister K and does not refer to any information provided to the Broken Hill police by the complainant. Accordingly the Apprehension Report does not corroborate the father's evidence that a complaint was made by the complainant to the police at Broken Hill.
I do not think that I can draw any adverse inference from the absence of a reference to the complainant in the Apprehension Report. The report just provides no assistance as to what the Broken Hill police were told.
On the question of the Broken Hill police I accept the evidence of the complainant's father that he took both K and the complainant to the Broken Hill Police Station after the complainant told him about the board game which required the players to take off a piece of clothing if they lobbed on particular squares.[19]
[19] T150.
The complainant said that the first person she told of anything of a sexual nature happening with respect to the accused was her father in the lounge room of his home at Broken Hill. She could not be sure as to what she told her father but said "All I know is he got angry and he took us to the police station". She said that she had complained about something sexual - "about the board games".[20] That is consistent with the evidence of her father.
[20] T34/35.
I do not regard the absence of any reference to the complainant in the Apprehension Report as a matter of significance.
I reject any submission by the defence that the accused did not have the opportunity to commit any of the offences. As I have mentioned I accept the submission by the prosecutor that the accused did have the opportunity to commit the offences.
I accept Mr Kane’s submission that because of the effluxion of time and the fact that the matters now before the court were not raised for a number of years the accused has lost the opportunity to test the evidence. For that reason I must scrutinise the evidence of the complainant carefully but it does not mean that I cannot accept her evidence.
Mr Kane submitted that the evidence adduced by the Crown falls short of establishing the case beyond reasonable doubt and that the allegations are so lacking in precision that I should have cause to reflect upon the reliability of the complainant.
Mr Kane submitted that at least the spa bath incident (count 3), the painting incident (count 4) and the beach incident (count 5) could at the time have been "just fun and games", but that on looking back now on what might have occurred in the mid-1990s the complainant has placed a sinister interpretation upon the events. I have considered that possibility. Ultimately the facts speak for themselves. The facts of which the complainant has given evidence do establish that the events which occurred went beyond “just fun and games". Each of the alleged offences has a sexual overtone.
Having regard to the support provided by the complaint which the complainant made to her father I find that the evidence of the complainant establishes beyond reasonable doubt the allegations in count one. The other counts do not receive the same support, but having scrutinised the evidence of the complainant I have reached the conclusion that there is no reason to doubt her evidence as to the essential elements of any of the offences.
In the circumstances there will be a verdict of guilty as to each count.