R v A, GP
[2011] SADC 181
•23 November 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v A, GP
[2011] SADC 181
Reasons for the Verdicts of His Honour Judge Chivell
23 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge without a jury - indecent assault, 3 counts - Complainant aged 8 or 9 at time of alleged offences - delay of 5 - 6 years until reported to police - forensic disadvantage - Verdicts - Guilty - 3 counts
Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 28, 34CB(2), 34M(4)(a), 34M(4)(b), 34M(4)(c), referred to.
R v R, R & R, LJ [2008] SASC 35; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22, considered.
R v A, GP
[2011] SADC 181Introduction
Mr A is charged with 3 counts of indecent assault. He has elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act, 1927. The complainant is his daughter. The amended information reads as follows:
First Count
Indecent Assault
GPA between the 1st day of September 2000 and the 31st day of December 2002 at Hallett Cove, indecently assaulted J, a person under the age of 10 years.
Second Count
Indecent Assault
GPA between the 1st day of September 2000 and the 31st day of December 2002 at Beverley, indecently assaulted J, a person under the age of 10 years.
Third Count
Indecent Assault
GPA between the 1st day of September 2000 and the 31st day of December 2002 at Beverley, indecently assaulted J, a person under the age of 10 years.
The complainant, to whom I will refer as “J”, was born on 4 January 1992. Mr A was in a defacto relationship with J’s mother, Ms R. They separated when she was about 2 years old. Mr A continued to have access to J after the separation, every second weekend.
J and her mother lived in a country town. J would travel to Adelaide for access; initially Mr A would pick her up, later she would travel by bus. By the time of the alleged offences, when she was 8 or 9 years old, she was travelling by bus.
During the period covered by the information, Mr A lived at a number of different addresses. Much of the evidence was directed at where he was living at particular times when J alleged the offences took place.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[1]
[1] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is “not guilty”; and
·each count must be considered separately. In the event that I were to find the accused guilty of a count, the evidence and that finding may not be used in proof of the other counts.[2] Conversely, if I am not satisfied about the credibility and reliability of J in relation to one count, and the other counts rely on the uncorroborated evidence of J, then that doubt should be taken into account in determining whether I am prepared to accept her evidence on other counts.[3]
Prosecution Case
[2] R v HS [2004] SASC 300
[3] R v Liddy (2002) 81 SASR 22 at [181-193]
Complainant’s Version – Count 1
J’s initial evidence was that she believed that this offence occurred at Marino.[4] She described where she thought it was in relation to Scholefield Road and the Railway line. She believed she only went there about three times.[5] She said she recalled a “deli around the corner” where she got an ice-cream on one occasion. She had driven around the area with Detective Shillabeer before the trial, but had been unable to locate it.[6]
[4] T 32
[5] T 35
[6] T 33
J said she always slept in her father’s bed. She did so on the occasion in question.[7] She said the offence happened on the Father’s Day weekend. This occurs, by tradition, on the first Sunday in September. It was an agreed fact that, in 2000, Father’s Day was on 3 September. She also said the day after the offence occurred, the Sunday, they went to the Royal Show.[8] It was also an agreed fact that the Royal Adelaide Show was held between Friday 1 September and Saturday 9 September 2000.
[7] T 38
[8] T 48
Finally, J fixed the date on which the offence occurred by reference to when she had an operation to have her ears “pinned back”. It was also an agreed fact that J underwent a bilateral otoplasty, which I infer involved having her ears “pinned back” on 1 May 2001.[9] She said the offence occurred before the operation. [10]
[9] T 124
[10] T 41
J said during Saturday night before going to the Show she woke to find Mr A pulling down her pyjama pants, and her underpants with them. He pulled them down to her knees, and then touched her from behind by rubbing the “area between my bum and my vagina”.[11] She said it lasted for five or ten minutes. She described him making a noise like licking his fingers at one point, when he was not touching her vagina.[12]
[11] T 44
[12] T 45
J said she did not say or do anything. She explained:
Because I was scared and I didn’t know what was happening.[13]
[13] T 46
J said Mr A then took her hand and put it over his “pubic area”, over his “jocks”, and moved it up and down on his penis.[14]
[14] T 46
J said she started crying. Her father asked her what was wrong, but she continued to cry. Then he said he was sorry, and he “thought I was Mum”.[15] She said he got up and opened the curtains. He told her:
Not to tell Mum or anyone because he’d get into trouble and go to gaol.[16]
[15] T 48
[16] T 48
J said Mr A asked her if there was anything he could do to make up for what he did, and when she remained silent he said he would take her to the Show.
After the Show, J returned home on the bus. She said she didn’t tell her mother about what happened because she didn’t want him to get into trouble.[17]
[17] T 49
Her mother, Ms R recalled a particular occasion, when J was 8 or 9 years old, when she returned from an access visit carrying an “excess” of toys and show bags from the Royal Adelaide Show.[18] She said J did not seem upset that day.[19]
[18] T 102
[19] T 106
Complainant’s Version – Count 2
J said this offence occurred in a different house. She said it was also before her operation in May 2001, but:
I think it was closer to when I did have it.[20]
[20] T 50
J said the house was in the Findon area. She went there a “fair few times”. She took Detective Brevet Sergeant Shillabeer to a house at 34 William Street Beverley earlier in the year.[21] Beverley and Findon are adjourning suburbs.[22]
[21] T 50
[22] Exhibit P1
J gave a detailed description of a woman who shared the house with Mr A.[23]
[23] T 52
J said on this occasion she also slept in her father’s bed. She said she was “pretty sure” it was the Friday night of the weekend this time.[24] She said she particularly recalled this fact “because it wasn’t time to go and I had to stay another night”.[25]
[24] T 57
[25] T 60
She said she again awoke to her father pulling down her pyjama pants. This time he touched her “from the front way”, and was rubbing her vagina while she was laying on her back. She estimated that he did that for 10 or 15 minutes.
J said she was crying, and moved further away from Mr A until he stopped.[26] She said nothing to him afterwards. She said:
I think at some point he did say he thought I was Mum again, but I can’t remember when that was.[27]
[26] T 58
[27] T 59
J said she got out of bed and went out in the lounge room for about half an hour. Her father came out and asked her why she was there. She said:
I think I told him I was bored and I couldn’t get back to sleep and he just told me to come back to bed so I did.[28]
[28] T 59
She said nothing further happened that night, and things were “as normal” the next day.[29]
[29] T 59
J’s evidence suggested that, whereas in count 1 Mr A was contrite and generous afterwards, on this occasion there was a mutual pretence that nothing had happened.
Again, J explained that she did not tell her mother on her return home:
Because I didn’t know why it was happening and I just didn’t want to tell anyone.[30]
[30] T 60
Complainant’s Version – Count 3
J said this offence occurred not “that long afterwards”.[31] It was also in the “Findon house”, and occurred on an access weekend. She said she slept in her father’s bed. She couldn’t remember if it was the Friday or Saturday night. Again she said she was woken by her father. She said he was:
… touching me near my hip area trying to get either my pants down or just in the front of them.[32]
[31] T 60
[32] T 61
She said Mr A did not succeed in getting them down, and did not touch her anywhere else, because she rolled away towards the edge of the bed.[33]
[33] T 62
J said she stayed in the bed, but remained awake until her father woke and got up. She said neither of them said anything about what had happened. She said her father behaved:
Just like nothing had ever happened.[34]
[34] T 62
As with the other occasions, J said she did not say anything to her mother when she got home
… because I was too scared and I didn’t know what really was happening or who, so …[35]
[35] T 63
J said access visits continued after these events, but her father did not do anything else to her of a similar nature.[36] She said she continued to sleep in her father’s bed until he bought her a bed of her own; it was a “king single”. He was still living at the “Findon house” then.[37]
[36] T 63
[37] T 64
After Mr A moved to Broken Hill with his new wife, he continued to pay for J to fly up there for weekend access visits as often as he could.[38]
[38] T 81
In cross examination, J agreed that she and her mother argued a lot when she was a teenager. Her mother had asked her to leave the house several times.[39] Ms R agreed, describing J as “very difficult”.[40] J moved in to live with her father in 2008. She moved out on 20 February 2009. They argued over her getting a job. She denied they argued over her not keeping up her half of the repayments on a motorcycle. Mr A had guaranteed a loan and agreed to pay half the repayments, when she purchased the motorcycle.[41] She also denied that they argued about a number of other issues, including her tattoos, wanting to be a tattooist, about going to Japan to pursue a modelling career, about the “direction your life was going”.[42]
[39] T 73
[40] T 104
[41] T 73 - 74
[42] T 77
Ms Henson, counsel for Mr A, tendered a collage of photographs of J[43] which she agreed she prepared and gave to him for Father’s Day in 2008.
[43] Exhibit D4
Mr A said that, when she gave him the collage, she said:
Happy Father’s Day, dad, and these are the years between 13 and 16. [44]
[44] T 153
Mr A explained that these were the years that she “hadn’t been around”.
Initial Complaint
J said the first person she told about these events was her mother, at the age of about 14.[45] She said:
We were driving home from high school when she was asking me why I kept wagging school and beforehand I’d just been telling her a lot of excuses as to why I didn’t want to be there but she asked me this one day and said ‘You know, you need to go to school. Why do you keep wagging?’, and I told her ‘I don’t want to go to school and be there and dad did something to me when I was younger’.[46]
[45] T 65
[46] T 65
She said she did not go into any detail at that time. Her mother arranged for her to see a counsellor. She said she is still seeing the counsellor.[47]
[47] T 80
J’s mother, Ms R, said the conversation was as follows:
I told her that she had to stop wagging school and stop being naughty, and she started crying, and I asked her what was wrong and she couldn’t tell me. She said I wouldn’t understand, and I said ‘I can’t help you if you don’t tell me’. Then I offered to get counselling for her, so I said ‘You might want to talk to somebody else about it if you won’t tell me’. So I rung up and got counselling for her the next day.[48]
[48] T 102
Ms R asked J if it had something to do with her father. She said that J was crying and said “yes, it did”. A couple of days later, during counselling at Child and Adolescent Mental Health Service (CAMHS) she said J described what happened as follows:
She said when she was at her dad’s she woke up crying, and her dad was – she said her dad was touching her inappropriately, and she started to cry, and he said ‘Sorry, I thought you were mum. Is there something I can do to make it up to you?’ Then he took her to the show.[49]
[49] T 103
It is an agreed fact that following her initial complaint to her mother in 2006, J received counselling through CAMHS commencing in September 2006. It is also agreed that there is no record of her receiving counselling or being seen by officers of any government department prior to that. Further, it was agreed that during the counselling in September 2006 she disclosed the allegations about the accused, and that she had made no allegations to anyone prior to her initial complaint to her mother in 2006.[50]
[50] T 285
The agreed facts are consistent with the evidence of J and of Ms R.
I am entitled to hear this evidence so that I might understand how these allegations came to light; and as evidence of consistency of conduct.[51]
[51] Evidence Act 1929 s 34M(4)(a)
I remind myself that evidence of an initial complaint is not independent of J, and is not evidence of the truth of her allegations.[52] There may be varied reasons why she made the complaint at that particular time, and to that particular person.[53]
[52] Evidence Act 1929 s 34M(4)(b)
[53] Evidence Act 1929 s 34M(4)(c)
Having regard to J’s age, and her unsettled lifestyle during her teenage years, I find that the initial complaint to her mother, and the circumstances in which it was made, her later elaboration of it during counselling, and the eventual report to the police, are consistent with her allegations, and bolster her credibility in that regard.
Mr A’s response to the allegations
J said she confronted her father about these offences when she was “about 16”.[54] She was living with him at Tennyson. She had dropped out of school. She said that the confrontation was as follows:
Me and dad were having a big argument and I ended up staying at my boyfriend at the time’s house and dad was ringing me and going off and saying if I didn’t come home and speak to him that I needed to come and drop the key off and take all my stuff. I just got so angry I sent him a message saying ‘Do you really want to know why I haven’t spoken to you for the last two or so years?’ And then ‘This is why’, and I explained what – you know, what he did to me when I was younger.
…..
I believe I wrote something like ‘Do you really want to know the true reason why I haven’t spoken to you for the last couple of years? Do you remember’ – I think it was something like ‘You remember what you did to me when I was little and you supposedly thought I was mum’, I can’t remember exactly what I said but it was along those lines of ‘I know you did it and I haven’t forgotten’ and that sort of thing but I didn’t go into what had actually happened or anything.[55]
[54] T 66
[55] T 67 - 68
After sending the SMS message, J met with Mr A at the Tennyson house. She said:
We – well, I went back to dad’s house by myself and he wasn’t home from work yet so I just sat in the kitchen and waited for him to come home. Then he eventually obviously finished work and came home and came into the kitchen and he just looked at me and started crying and he just said that when he got that message he fell to his knees and bawled his eyes out you know, he just said that he thought that might have been the reason why I didn’t talk to him and he was sorry for what he did and he said that if I wanted to I could go and talk to someone about it but I didn’t have to take legal action over it. And then all of a sudden he just snapped out of what I thought was that he was, you know, actually sorry and he stoped crying and he just said to me – he said that if I ever tried to blackmail him with this he wouldn’t even bother because he would get me back twice as bad and then he just walked off and I think he sat down on the lounge and had a cigarette and went to bed.[56]
[56] T 69
I found Mr A’s version of this conversation unbelievable. When asked by Ms Henson what he recollected of this conversation, he said:
Something she said to me ‘You know what you did to me when I was eight or nine’. I said ‘I don’t know what you are talking about’ and she said ‘You do’. I said ‘I’m sorry, sweetheart, but the only embarrassing thing that I can recollect was myself wetting the bed’.[57]
[57] T 151
I cannot accept that a father would react in such an offhanded way when confronted with accusations of sexual abuse by his daughter. In cross examination, Mr A was extremely evasive, especially about the SMS message, and also about the subsequent conversation. At one point he completely denied that she sent him a SMS message at all. Later, he admitted she did, but he said he only had a vague memory of its contents.[58]
[58] T 187 - 193
Mr A’s evidence about that was also inconsistent with what he told the police in the interview on 4 July 2010. I will discuss the interview shortly.
I am satisfied beyond reasonable doubt that Mr A was not telling the truth about both the SMS and the subsequent conversation. I reject his evidence whenever it conflicts with that of J. I am satisfied that her account was honest and reliable on these issues.
Interview with Police
J reported this matter to the Murray Bridge Police Station in April 2010. Mr A was interviewed by Detective Brevet Sergeant Shillabeer at the Port Adelaide Police Station on 4 July 2010. The interview was recorded on DVD.[59] The transcript of the interview is Exhibit P7A. Exhibit P7A was admitted as an aide-memoire to the contents of the DVD. For ease of reference, I will refer to the written transcript in the following quotations.
[59] Exhibit P7
When the police officer put to Mr A that J accused him of committing these offences, he said:
QAlright. Has J ever bought up with you or ever accused you of doing anything inappropriate to her when she was younger?
AYeah she told me about it at Tennyson and I said sorry sweetheart but it’s not what you think it was, I was actually embarrassed at the time with wetting the bed, you know.
QSo, so what did she say to you?
AWell she was in tears and apologised to me for, cause I asked her what, and she said she thought I was mum one night, I said I’m sorry love but no. Don’t even go there.
QAnd did she expand on that at all when?
ANah no cos she was in tears and then sorta standing up accusing me, I gave her a hug, said kid, no sorry.
"QSee I can’t work out, what’s the bed wetting gotta do with the accusation that she’s made? You’re saying that the incident that she’s describing, she’s mistaken with a bed wetting incident and I don’t and has somehow, turned the bed wetting incident into the sexual assault, is that, is that what you’re saying’
AShe asked me at Tennyson, why did you do it? I said what are you on about, she said you done something to me that made me cry and you thought I was mum. And the only thing I can put to it is the night I wet the bed. Nothing more. Nothing more at all.
QShe doesn’t mention anything about the bed wetting.
AOh well that’s what it was.[60]
(my underlining)
[60] Exhibit P7A p 10, l 481 - p 11, l 514
These answers must be seen in the light of evidence Mr A gave at the trial. He repeatedly denied that J had accused him of saying:
I thought you were Mum.[61]
[61] T 197
Even when he was confronted with this glaring inconsistency in cross-examination, Mr A continued to deny that he had said that, and that his daughter had reminded him of it at Tennyson.[62]
[62] T 197 - 205
I found Mr A’s presentation during the interview very unimpressive. He was evasive, self-righteous, and almost incoherent at times, and his answers to questions were often self-contradictory and illogical.
I am entitled to take into account what Mr A said in the interview, both in his favour, insofar as he denied the allegations, and against him to the extent that his behaviour was unimpressive and lacking credibility. I take into account that Mr A chose to speak to the police even though he had been advised that he was under no obligation to do so. I give him some credit for that. But I give little weight to his answers for the reasons I have expressed above.
Defence Case
Mr A gave evidence on oath. I remind myself that he was under no obligation to do so. I give him due credit for choosing to do so. I will treat his evidence, in terms of analysing its credibility and reliability, as I would any other witness. Of course, it should not be discounted merely because it comes from the accused. To do so would be to deny him the presumption of innocence. Further, his choice to give evidence does not alter the burden of proof, which always remains on the prosecution. Even if his evidence was entirely lacking in credibility, that would not strengthen, or plug gaps in, or resolve any uncertainties in the prosecution case.
Mr A described his financial contribution to J’s upbringing. He kept receipts for almost all his outlays, covering clothing, school fees and the like.[63]
[63] Exhibits D8, D9
Relying on his payslips,[64] Mr A said he lived at the following addresses:
4 July 2000 to 5 April 2001: 15 Pacific Parade
West Beach[65]18 April 2001 to 7 August 2001: 1/21 Lewis Street
Brooklyn Park[66]14 August 2001 to late 2001 24 Rogana Street
Hallett Cove[67][64] Exhibits D10 - D12
[65] Exhibit D10
[66] Exhibit D12
[67] Exhibit D12
On that basis, on 2 September 2000 he would have been living at West Beach. This contradicts J’s evidence that count 1 was committed at Marino, assuming that the offence was committed on the day before Father’s Day before the ear operation in May 2001.
Another bundle of documents[68] was tendered by Ms Henson to show where Mr A was living at later times.
[68] Exhibit D18
In fact, a letter in Exhibit D18 dated 5 October 2011 contradicts Exhibit D12 tendered earlier for the same purpose. The letter in Exhibit D18 dated 5 October 2001 suggests that on that date Mr A was still living at 1/21 Lewis Street Brooklyn Park. A payment advice dated 14 August 2001 in Exhibit D12 suggests he had moved to 24 Rogana Street Hallett Cove by then.
In any event, Mr A agreed that initially during access visits,
because of financial hardship, she (J) was sharing a bed with myself.[69]
[69] T 141
He said this changed in 2000. He said that one night when J was about 8 years old and they were sharing the bed, he wet the bed. He said he was not “man enough” to admit it, so he let her think she was responsible.[70] He said the next night he made her a bed on the floor. He said he went out soon after that and bought a bed and bedclothes on lay-by, and he took delivery when he was at West Beach as “part of a Christmas present”.[71]
[70] T 142
[71] T 142
The conclusion is clear from this evidence that Mr A was saying he took delivery of the bed at Christmas 2000. He confirmed this in cross examination.[72]
[72] T 171
In further cross-examination, however, Mr A contradicted this. He said:
QBecause there was a night, wasn’t there, when she was staying with you at Marino, when she was in bed with you crying.
ANo.
QAre you sure about that.
AYes.
QJust think about that. Wasn’t there a particular night when you became concerned about her because she was in your bed and crying.
ANot in Marino, no.
QDid it happen at some other house.
AI can’t recall the address, but there was an incident where I wet the bed and she was crying, but that was it.
QWhere was that house.
ACould have been anywhere before then.
QAnywhere before when, when are you talking about.
AI’m trying to think of when I bought her bed. It was the reason I bought her bed. It was because I wet the bed, and I believe that it may have been Hallett Cove.
QWhen were you living at Hallett Cove.
AIf I can remember, ’98.
Q’98.
ASorry – hang on, no, ’99.
QFor how long did you live at Hallett Cove.
AProbably, three, maybe four months.
QWhich months of the year were those.
AI can’t recall, I’m sorry.
QDid Father’s Day fall during any of the months at the time that you were living in Hallett Cove.
ANo, not that I can recall no.
QHow many occasions did you say there were that you became aware of J in your bed crying.
AObviously the once.
QOn one of those occasions when she was visiting.
AOnly one that I can –
QJust the one.
AYes.
QAre you sure about that.
AYes, positive.
QYou’re saying that that had nothing to do with you touching her in ay way.
ANo.
QIt was about bedwetting, is that right.
AThat’s right.[73]
[73] T 174 - 175
Not only is this evidence inconsistent with getting the bed in Christmas 2000, it is also inconsistent with earlier evidence that he lived at Hallett Cove from 14 August 2001 to late 2001.[74]
[74] Exhibit D12
If, as seems likely from the documentary evidence, Mr A was living at Hallett Cove in September 2001, and on Father’s Day 2001 in particular, and that he moved to Beverley in late 2001, and it was while living there that the bed was purchased, then the evidence that the bed was purchased for Christmas 2001 is entirely consistent with J’s evidence about where they were living when that occurred.
Mr A insisted he had the receipt for the bed. He described himself as a “hoarder” of such documents.[75] The document was not tendered. Of course, the accused is under no obligation to prove or explain anything. I draw no adverse inference from the fact that the receipt was not tendered.
[75] T 167
Mr A was cross examined at length about the bed-wetting incident.[76] His answers were extremely unconvincing, in fact I am satisfied beyond reasonable doubt that his evidence about the bed-wetting incident is untrue.
[76] T 175 - 181
Amendment of Information
After Mr A’s evidence, based on the documents he produced about where he was living at relevant times, Mr Powell applied to amend the information. He applied to amend the date range in relation to count 1 from “September 2000” to “between 1 September 2000 and 31 December 2002”, and in relation to counts 2 and 3 from “between 1 September 2000 and 2 May 2001” to “between 1 September 2000 and 31 December 2002”. The application was granted, and an adjournment granted so that Ms Henson could take further instructions. An application by Ms Henson to recall J for further cross examination was granted.
Recall of complainant
It was put to J, after her recall, that, in September 2001, Mr A was living at Rogana Street Hallett Cove. She was unable to say whether that was so.[77]
[77] T 230
Further, it was put that in November and December 2001 he was living at 34 William Street, Beverley,[78] and that in March 2002 and May 2002 he was living at Barula Road Marino.[79] A number of photographs were tendered which purported to support these assertions. Again, she was unable to give definite answers to these questions.
[78] T 231
[79] T 230
After this further cross-examination Mr Powell applied to adjourn his re-examination to make further inquiries in relation to the matters raised in cross examination. This was granted.
Re-Examination of complainant – visit to Hallett Cove address
During the adjournment, J went with Detective Brevet Sergeant Shillabeer to 24 Rogana Street Hallett Cove.[80] A number of photographs of the house were tendered.[81] J recognized this house as the one she had previously referred to as “the Marino House”.[82] She recognized the tree in the front yard, and the deli around the corner where she said she went with Mr A to get ice-cream. She also pointed out certain alterations, such as the removal of a wall in the kitchen (which was evident in the photograph), and differences in the garden.[83]
[80] T 241
[81] Exhibit D27
[82] T 243
[83] T 243 - 244
Her description of the layout of the house, and the plan she had drawn in evidence in chief[84] was entirely consistent with her evidence given after having visited the house, and with the photographs taken at the visit. Her evidence that she only visited the house about three times is also consistent with the documentary evidence that Mr A only lived there from August 2001 to late 2001. J did not have the benefit of those documents when she gave that evidence, recalling events when she was 8 or 9 years old.
[84] Exhibit P2
However, J remained cautious:
QAre you able to say, based on what you saw this morning, whether or not the house that you saw this morning, the one at 24 Rogana Street was the very house where your father first did something to you.
AI’m pretty sure that is the house, but I can’t be 100% sure.[85]
[85] T 245
Further Amendment of Information
Following this evidence, Mr Powell applied to further amend the information so that in count 1, the word “Marino” was deleted and “Hallett Cove” substituted. The application was granted over Ms Henson’s objection.
Mr A agreed that the photographs[86] were of the house at Rogana Street Hallett Cove.[87]
[86] Exhibit P27
[87] T 271 - 272
Recall of Accused
On Ms Henson’s application, Mr A was recalled to give further evidence. He said that the photographs put to J during cross examination[88] were taken at 34 William Street Beverley. On that basis, the photographs demonstrate that J had her own bed by then, because it appears in some of the photographs. Inferring, as I do, that she was referring to the Beverley house when she referred to the Findon house, this is consistent with J’s evidence. She said Mr A bought the bed for her while he was living at the Beverley house.[89]
[88] Exhibits D19, D20, D21, D23, D24
[89] T 64
Mr A was clear about one thing: he was living at Rogana Street Hallett Cove in September 2001.[90] That is consistent with Exhibit D12, as already discussed. He said he vaguely recollected living there on Father’s Day, 2001.[91]
[90] T 262
[91] T 264
Findings of Fact
It is clear that there are several aspects of J’s evidence which can be criticised.
Firstly, she said that the indecent assault in count 1 occurred at the “Marino house”. The documents produced by Mr A establish that he did not live in Marino until 2002.
To put that error in perspective, however:
·J was only 8 or 9 years old at the time;
·assuming, as I do, that she was mistakenly referring to the house at Rogana Street Hallett Cove, Mr A only lived there for a month or two, and she would only have stayed there once or twice. That is consistent with her recollection as well;
·Hallett Cove and Marino are neighbouring suburbs, and Rogana Street and Barula Road are quite close to each other;
·the diagram of the house drawn by J,[92] and the general description of the house and the area given before she visited the house were remarkably accurate, and consistent with what she observed when she visited the house at Hallett Cove later.
[92] Exhibit P2
Secondly, J’s evidence that these offences occurred before her ear operation in May 2001, cannot be correct if count 1 occurred at the Hallett Cove house, on the Father’s Day weekend. On Father’s Day 2000 Mr A was living at West Beach. If the offence in count 1 occurred at all, it occurred in September 2001, when Mr A lived at Hallett Cove.
The factors I take into account here are:
·J’s age at the time of these events;
·the frequency with which Mr A changed addresses at around this time;
·September 2001 is still reasonably proximate to May 2001;
·J’s evidence about the dates was clearly reconstruction, understandably so in the circumstances, and she did not categorically state that the offences occurred in 2000 or 2001.
For all these reasons, I do not find that the credibility or reliability of J’s initial allegations has been damaged at all as a result of these discrepancies.
There was also a discrepancy between J’s evidence and Mr Powell’s opening address in relation to count 3. In his opening, Mr Powell said that count 3 was a touching of J’s vagina, similar to counts 1 and 2. J’s evidence was that the third incident was an attempt only, and that she was only touched in the region of her hip.
Ms Henson did not cross examine J about this topic, nor did she mention it in her address. Since the procedure set out in s 28 of the Evidence Act 1929 has not been adopted, I do not discount J’s evidence on the basis that she may have made a previous inconsistent statement in that regard.
Ms Henson submitted that J’s evidence was unreliable because she had confused Findon and Beverley. Again, the two suburbs adjourn each other, and William Street is right at the Western side of Beverley, proximate to Findon.[93] Further, J took Detective Shillabeer directly to the house at 34 William Street, so she was in no doubt which house she was referring to, even if she was wrong about the suburb. I do not regard J’s evidence as having been damaged for that reason either.
[93] see Exhibit P1
Ms Henson criticised J on the basis that she had suggested Mr A had bought her expensive gifts only after he had abused her. I do not understand J as having suggested that. She agreed in cross examination that Mr A had always bought her gifts.[94] It was Ms R who suggested that the gifts he had given J during the visit to the Royal Adelaide Show were excessive.
[94] T 81
Ms Henson referred to the evidence about Mr A’s generosity to J in relation to her modelling career, his fostering of her interest in a veterinary career, his assistance in the purchase of the motorcycle and such matters. I do not accept that this has any relevance to J’s credibility or reliability. The suggestion seems to be that J is a selfish and ungrateful person. That is not established on the evidence, but even if it be so, I do not see that it affects the credibility or the reliability of her evidence.
I reject Ms Henson’s submission that there is any evidence that J made inquiries through her step-brother about Mr A’s assets, and that in some way suggests she has a financial motive to make these allegations. The suggestion that she made these inquiries was denied by J.[95] The step-brother did not give evidence. Mr A’s belief about the issue can only be based on hearsay.
[95] T 72
I bear in mind that a suggested motive to lie is relevant to my consideration of the facts. Even if the suggested motive has not been proven, it does not follow that J is telling the truth. People lie for many reasons, and sometimes the reason is not discernable.
Further, it is not for Mr A to prove a motive to lie. He is under no onus to prove anything. The burden of proof always remains on the prosecution.
Conclusion
I have carefully examined Js’ evidence in this matter. She impressed me as a mature and thoughtful person. Her evidence was given in a straightforward and clear manner. She showed what I thought was genuine distress when referring to the alleged incidents. She made appropriate concessions, for example saying she was still not “100% sure” after visiting the Hallett Cove house, even though the visit confirmed much of her previous description of the house and locality where she alleged count 1 occurred.
Despite the confusion generated by the fact that she initially confused Hallett Cove and Marino, and the production of a large amount of documentary material by the defence which set out to cast doubt on her evidence about where Mr A was living when the alleged offences were committed, her evidence remained consistent. She was not intimidated by the rather convoluted way in which the trial proceeded. It must have been distressing to be recalled after giving evidence initially, yet her evidence remained consistent.
I have carefully considered the significance of J’s behaviour towards Mr A during her teenage years. In particular, the fact that she continued to stay with him for access visits after the alleged events, and the fact that she agreed to live with him and his wife at Tennyson in 2008, and moved with them to North Haven in 2009. Similarly, her gift to him of the collage of photographs of herself[96] for Fathers Day 2008, seems a conciliatory, if not affectionate gesture.
[96] Exhibit P4
However, experience shows that the reactions of children who have been abused by a parent or person in authority are often complex and sometimes paradoxical. J’s early teenage years were obviously troubled - she had fallen out with her mother, and was essentially homeless for some time. It is understandable that she would seek the security of living with a parent who had married by then, especially a parent who was prepared to continue to support her career aspirations, and to purchase expensive presents, and to help her buy a motorcycle. I agree with the submission that there is no rule book as to how a victim of sexual abuse, especially where the abuse is committed by a parent, should behave.
For those reasons, my confidence in the credibility and reliability of J’s evidence is unshaken by these considerations.
I have already stated that I formed a very poor impression of the credibility and reliability of Mr A’s evidence about these events. In particular, I reject beyond reasonable doubt his evidence about the so-called bed-wetting episode for the reasons I have already expressed. I reject beyond reasonable doubt all of Mr A’s evidence wherever it conflicts with that of J. I am satisfied beyond reasonable doubt that his denials of J’s allegations are false.
That rejection, of course, does not make the prosecution case any stronger. It must be evaluated on its own merits.
The credibility of J’s evidence is bolstered to some extent by the initial complaint, but not by any independent evidence.
There was a delay of about 6 years between these events and the initial complaint. Mr A did not complain of having suffered any forensic disadvantage as a result.[97] Indeed, much evidence which came from the period under consideration was tendered through him. It has not been suggested that witnesses might have been located, but who cannot now be located, or that other evidence might have been discovered but which is no longer available.
[97] Evidence Act, s 34CB(2)
Nonetheless, I take into account the delay, the fact that memories fade over time, and that in some unidentified way Mr A may have been forensically disadvantaged by the delay.
For those reasons, I have scrutinised the evidence of J with great care. After having conducted that scrutiny, I am satisfied beyond reasonable doubt that her evidence is honest and reliable, and that her allegations in relation to counts 1, 2 and 3 are true.
Accordingly, I am satisfied that the elements of indecent assault, namely an intentional touching in circumstances of indecency have been proved beyond reasonable doubt in relation to each count.
Verdicts
Count 1 – Guilty
Count 2 – Guilty
Count 3 - Guilty
0
3
1