R v Adam - [2015] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ADAM
Criminal Trial by Judge Alone
[2015] SADC 46
Judgment of Her Honour Judge Davey
26 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The defendant is charged with Persistent Sexual Exploitation of a Child. A finding was made that the defendant is mentally unfit to stand trial. A trial proceeded with respect to the objective elements of the offence. The defendant elected for trial by judge alone.
Held: Objective elements of the offence charged are proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 s 269M, referred to.

R v ADAM
[2015] SADC 46

Peter Gordon Adam is charged with Persistent Sexual Exploitation of a Child. The offending is alleged to have occurred between 1 January 1993 and 1 January 2002. The complainant lived in the defendant’s home; her parents were friends of the defendant. The defendant and the complainant’s parents are profoundly deaf.
It was alleged that the defendant is unfit to be tried because of his deafness. He has been deaf since birth and is unable to hear or speak in English. He has limited literacy skills and is, effectively, illiterate. The defendant is unable to lip read and relies on signing (Auslan) in order to communicate. The defendant has limited education and limited cognitive skills. His ability to comprehend sign language and to communicate is limited.
The defendant has been examined by a number of appropriate experts including Dr Maria Tomasic, psychiatrist, Mr Richard Balfour, psychologist and Mr Mark Reid, psychologist. Additionally, the defendant engaged in a recorded session wherein appropriately qualified Auslan interpreters endeavoured to communicate with him in a manner which would be necessary for the court proceedings. That process also included the involvement of a Deaf Relay interpreter. This session was considered by the experts and opinions were expressed about the defendant’s inability to communicate at the level required to receive advice, give instructions and follow legal proceedings.
In light of the opinions about the inability of the defendant to adequately communicate in the context of court proceedings, the prosecution conceded that the defendant is unfit to stand trial. The prosecution indicated on 11 February 2015 that this issue would not be disputed. The matter was listed for a trial of whether the objective elements of the offence are established.
On 16 March 2015 I recorded a finding that the defendant is mentally unfit to stand trial. Therefore the court must hear evidence and representations put by the prosecution and the defence relevant to the question of whether a finding should be recorded that the objective elements of the offence are established.[1]
[1] See s269M A(5) Criminal Law Consolidation Act, 1935.
In respect of the trial of the objective elements, the defendant elected for trial by judge alone. For the reasons set out hereunder I am satisfied beyond reasonable doubt that the objective elements of the offence of Persistent Sexual Exploitation of a Child are proved.
The alleged sexual conduct concerned a female child, R, who the defendant caused to touch his penis, caused to touch his anal area, performed cunnilingus on her, inserted his fingers into her vagina, kissed her on the lips, inserted his penis into her mouth and inserted his penis into her vagina.
At the trial of the objective elements the prosecution called R to give oral evidence in respect of the allegations and there were other factual matters that were agreed between the parties.
At the time she gave evidence, R was 24 years old. She was born on 3 August 1990. She has six siblings and her parents are deaf. Her first language is Auslan and she eventually learned to speak English. R recalled that when she was a young child she moved into the defendant’s home at Alberton; she was about 4 or 5 years old. R thought she was about 9 or 10 when the family moved out of the defendant’s home. She said that when she was 13 she was removed from the care of her mother by Families SA.
R gave evidence of ongoing sexual touching by the defendant. She recalled some specific instances and also described frequent sexual touching which occurred on an ongoing basis.
R described incidents occurring in the doorway of the defendant’s bedroom whereby he pulled his pants down, bent over and asked R to rub baby powder between his buttock cheeks and also on his penis. R said that this occurred so many times that she couldn’t really remember when.
R said that the defendant had a skin tag in his anal area. The defendant would sign to R that she was to play with the skin tag. R described the skin tag and its position either immediately above or immediately below the anus. She described the skin tag being about 1 cm in size and located between the buttock cheeks. A booklet of three photographs was tendered by the prosecution (Exhibit P1) which showed photographs of the anal area of the defendant. The photographs were taken on 2 November 2012. There is no dispute that the photographs show the area described by R and a skin tag or similar consistent with the description given by R.
R also testified about the defendant coming into her bedroom at night and taking her to his bedroom. She said that the house was ‘pitch black’, she could not see him but she described being taken to the defendant’s bedroom and that she could smell him. R described a particular occasion when the defendant took her to his bedroom and she said that he took her pants off. She said that he started licking her vagina, he put his penis in her mouth and put his penis inside her vagina. R described that prior to putting his penis in her mouth, she sort of pushed away and the defendant lightly hit her across the head with an open hand. She said that he locked the door. He pushed his penis into her mouth. He also put his fingers in her vagina and his penis in her vagina. She could not describe how far he penetrated her.
R said that after this type of penetration she was sore and that every time she would go to the toilet it would really sting. She said it was both painful and difficult to urinate.
R said that there was an occasion that the defendant carried her out of her bedroom and put her in his bed and just lay next to her and then put her back in her room.
R described the frequency of the carrying her from her bedroom to his room as being about twice a week. She described a break of about 2, maybe 3 weeks but otherwise it occurred twice or three times a week. She said that on most occasions that the defendant took her into his bedroom he touched her sexually.
R said that she told a friend at school that a man was touching her and that she also wrote a note to the principal of her school who came and spoke to her and the police became involved. R was interviewed by a police officer. It was agreed between the parties that R was interviewed on 4 November 1999 by First Class Constable Gregory.
R also gave evidence that after the family moved away from the defendant’s home that he drove her and her siblings to school at the request of her mother. She said that the defendant did not touch her sexually after they moved away from the Alberton address.
During her evidence R made comments about her living conditions at the house which suggested that she was neglected and that her father beat her. During cross examination it was suggested to R that she suffered bed-wetting as a result of her distress. R agreed that she had been a bed-wetter until she was 13. It was suggested to R that the soreness of her vaginal area was as a result of the bed-wetting and lying in urine saturated clothing or bedding. R denied that was the case.
R was cross examined about the duration of the defendant’s penetration of her vagina with his fingers or penis. R said that she couldn’t say how long it occurred. R was cross examined about her declaration dated 12 February 2013 wherein she described digital penetration occurring for 15 or 20 minutes and penetration of her vagina with the penis for 10 or 20 minutes. R agreed that she said those things to the police.
R was also cross examined about the police interview when she was about 9 years old on 4 November 1999. R could not recall the circumstances or contents of that interview. She recalled being questioned by a police officer with blonde hair. R also remembered that the lady with blonde hair was ‘real rude’ to her.
Agreed Facts between the prosecution and the defendant about the police interview include that during the interview R was asked ‘whether anyone else had ever done anything bad or rude to you’. R answered that ‘only Barry had touched her’. Later in the interview she was asked specifically about the defendant. She was asked questions about whether he was a good or a bad person; she was asked a series of questions on that topic. R said that the defendant ‘is bad’ and said ‘he’s been doing rude stuff too’. It was agreed that following that disclosure R made further allegations of sexual impropriety against the defendant.
In cross examination R maintained that the sexual touching occurred as previously described. She also said that the defendant kissed on her on the lips on one occasion.
Submissions made on behalf of the defendant included that R’s account of sexual touching in the doorway of the defendant’s bedroom during the daytime was incredible and that such conduct would be readily viewable by others in the household. There was no evidence or cross examination of R about whether others were present during these incidents of sexual touching.
The prosecution pointed to R’s knowledge of the skin tag in an intimate location on the defendant’s body which could only have come from the sort of contact that she described. Potentially this was important supportive evidence. It was submitted on behalf of the defendant that it was impossible for the defence to meet that allegation. The skin tag was observed and photographed on 2 November 2012. The defence submission was to the effect that the defendant was not in a position to explore whether or not R’s knowledge of the skin tag came about in a way other than she has described.
It was submitted on behalf of the defendant that the type of penetration described by R when she was four or five years old (or thereabouts) would have had ‘dire consequences’. I note that R did not describe the degree of penetration. R was cross examined about her declaration of 12 February 2013 wherein she has described the digital penetration as rough and penile penetration occurring for 10 to 20 minutes. She agreed that this was true. The defendant pointed to the absence of evidence supporting this type of ongoing penetration. It was submitted that this was significant.
It was also submitted on behalf of the defendant that R’s account of being carried from her bedroom by the defendant on numerous occasions was incredible and was not supported by other evidence.
The defence pointed to the alleged inconsistency in the interview of 4 November 1999 when R made an allegation against a person called Barry (which allegation she denied in evidence) and initially said that only Barry had touched her. Later in the same interview R said that the defendant had ‘been doing rude stuff too’.
The defence submission is that in all of the circumstances I cannot be satisfied beyond reasonable doubt of the evidence of R about alleged sexual touching by the defendant.
There is no dispute that the conduct alleged would amount to Persistent Sexual Exploitation of a Child. There is no dispute that the conduct described by R, if proved beyond reasonable doubt, would suffice to prove the offence. The issue is whether or not the events occurred.
R was a very good witness. She had obvious difficulties recalling the frequency and circumstances of individual acts of sexual touching. In my view, she was plainly attempting to honestly recall events that had occurred many years ago. R made appropriate concessions about lack of memory and also, significantly, described an occasion where the accused took her to his room but did not sexually touch her. R presented as an honest and, insofar as she was able to recall, reliable witness. Her lack of recollection concerned the number of occasions and a lack of detailed description of each incident. I do not think this indicative of lack of reliability or credibility; rather this is consistent with truthful, incomplete recollection.
I have considered the submissions about alleged inconsistencies of her account, particularly having regard to the police interview in 1999 and the declaration in 2013 and I do not think that there is any inconsistency of significance. In respect of the description in the 2013 declaration of the length of time of digital and penile penetration, I observe that estimates of time of such circumstances are notoriously unreliable. The degree of penetration was also unclear.
In respect of the submission about the 1999 police interview and the assertion that R initially denied sexual touching by the defendant, I do not agree. R was 9 years old at the time of that police interview. I have not been provided with all of the interview, only part of it. Significantly, R did not, in her own words, say that the defendant had not sexually touched her. She was asked a question ‘nobody else has ever touched you, only Barry?’ and she answered ‘yeah’. Shortly thereafter she was asked questions about the defendant and in the context of being asked about whether he was a good or bad person, she volunteered that he has ‘been doing rude stuff too’ and then went on to make further allegations against the defendant. R said that she does not now recall what occurred during that interview. That is not surprising. In my view, having regard to R’s age at the time of that police interview, I do not find that any inconsistency (if there is one) is of significance.
I find that R was a truthful and reliable witness. I accept her evidence beyond reasonable doubt. I find that the objective elements of the offence charged are proved beyond reasonable doubt.