R v Ahmadi - [2010] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AHMADI
Criminal Trial by Judge Alone
[2010] SADC 143
Reasons for the Verdict of His Honour Judge Stretton
25 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT
Trial by judge alone- accused charged with one count of indecent assault- alleged that he while babysitting the 11 year old complainant entered her bedroom and placed his hands under her bedclothes and rubbed her chest.
Held: The accused found guilty of the charge.
Evidence Act 1929 (SA) s 34M; Criminal Law Consolidation Act 1935 s 56, referred to.
R v Calides 34 SASR 355, discussed.

R v AHMADI
[2010] SADC 143
Introduction

The accused Aga Mohammad Ahmadi is charged with one count of indecent assault. It is alleged that between the 31 December 1995 and 1 January 1997 at Hillbank, he indecently assaulted a person I will describe as J, who was under the age of 12 years.
It is alleged that the accused was in a relationship with J’s mother, and on an occasion when he babysat her took the opportunity to indecently assault J by entering her bedroom when she was asleep, placing his hands under her clothes and rubbing her breasts. J told her mother in a note the next day. A complaint was made to the police some years later. The accused declined to answer questions and has pleaded not guilty. He has elected to be tried by judge without a jury.
Principles
The accused is presumed innocent unless and until the prosecution has proved each element of the offence beyond reasonable doubt.
I adopt all the principles I would explain to a jury concerning the appropriate approach to assessing witnesss, credibility, reliability and the drawing of inferences.
The accused in this matter exercised his legal right not to answer any questions when spoken to by the police. That is his right and no adverse inference may be drawn against him for exercising a right fully and legally open to him.
The accused in this matter gave evidence on oath in his own defence. I give him credit for that in that he adopted a course he was not obliged to adopt.
The offence
The accused is charged with indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935. It is also alleged that the complainant was under the age of 12 years at the time. There are three essential elements to this offence.
The first element is that the accused assaulted the complainant. An assault is an unlawful application of force to another person. Any touching or handling is sufficient. It must be intentional, such that an unintended or, for example, accidental touching would not be sufficient. It must also be unlawful, that is without lawful justification or excuse.
The second element is that the assault must be accompanied by or occur in circumstances of indecency. That is, conduct which by any reasonable contemporary standard can only be described as indecent. Consent is not an issue in that a person under the age of 12 cannot consent to an act of indecency.
The third element is that the complainant was under the age of 12 at the time.
The Prosecution Case
The prosecution case is that the accused formed a relationship with J’s mother in 1996. It is alleged that an arrangement was made for the accused to babysit J and her brother and sister at J’s house while J’s mother and a friend went out. It is alleged that the accused took advantage of that occasion to go into J’s bedroom while she was asleep and indecently assault her by placing his hands under her clothing and rubbing her breasts.
The Defence Case
The defence case is that a relationship with J’s mother did occur, as did an occasion when the accused babysat J. The defence case is that J was badly behaved and did not like the accused, and the accused tried to control and discipline her. The accused denies that an indecent assault, or anything like it occurred.
Evidence
Prosecution Case
J was called to give evidence on oath. She gave evidence she was born on 24 March 1985 in Mt Gambier, but that her parents separated when she was about eight years old in the early to mid 1990’s. She said that by 1996 she was living with her mother in a house at Hillbank. Her sister E and her brother L lived with them. Her sister had made friends with a girl at school called A. The accused was A’s father, and a relationship then developed between the accused and J’s mother as a result of that contact.
J recalled an evening when she was being babysat by the accused. She said that when she woke she didn’t know what time it was but the accused was on her bed and his hands were up under whatever she was wearing, and he was stroking her bare chest. She said at first she was very confused and then when she realised what was happening, she was very sacred. She said she didn’t remember exactly what happened next but the next thing she could remember was grabbing her quilt around her, running and locking herself in the bathroom and the accused knocking on the bathroom door and asking her to come out. When she had woken to these events, she recalled the accused describing her breasts and making comments about them. She said once she got to the bathroom she was scared, wanted to be safe, wanted to get away from the accused and be by herself. She said when she thought he was gone, she came out and tried to go into her sister’s room but the accused reappeared and told her not to go in there because, she thought that he thought, she was going to wake her sister and tell her, although she actually wanted to go to sleep on the floor there.
The accused would not let her in her sister’s bedroom, even though she said she just wanted to go in there to sleep. She said he was very insistent and that she eventually went back to her own room. She said she stayed there until the morning. She said this is the only time this type of thing has happened to her.
She described the accused’s appearance in 1996. She said on the evening concerned, her brother and sister were in their bedrooms. She said she knew she had told her mother the following morning and could recall her mother coming up to her and telling her that she believed her and that it was okay. She said she since remembered that she wrote her mother a note and handed it to her in the morning. That note was tendered as P2.[1] Also tendered was her Year 6 Student Profile Book which progressively records work done through the 1996 year.[2] That was P3.
[1] Transcript p 20.
[2] Transcript p 22.
J gave evidence that the accused had not lived at their house nor had he babysat her before. She said she eventually told police about the events in 2008.
She expanded on what had happened earlier in the evening in question, saying that the accused had come into her room earlier in the night and was saying weird things that she didn’t really understand for quite a time. She said she knows she has talked about it in the note. She said she didn’t give the accused permission to touch her breasts that night.
She was asked about the contents of the note and was also cross-examined extensively by defence counsel about its contents. That note contained considerably more detail about the events of the evening. J said she was reminded of the note for the first time earlier this year. She said she saw bits of it but didn’t read it in detail because she didn’t want it to interfere with her memory of what happened. Once she read it at trial she said the letter did refresh her memory to some events. She said in light of the letter she remembered that the accused was talking to her about strange things like boys, and things like that.[3]
[3] Transcript p 24.
In cross-examination photos of the accused and his son and daughter were tendered as Exhibits D1 and D2. Photo D3 was tendered which showed the accused’s son and daughter and J’s sister E. It was date stamped 18 January 1997. Two more photographs including the accused’s daughter and J’s sister date stamped 9 August 1997 were also tendered.
In cross examination J confirmed she had read her note when it was put to her in the witness box that day. She reiterated that reading the note reminded her that the accused asked her if she liked boys, which she found quite terrifying. She was cross-examined extensively about the contents of P2, which such document did contain considerably more detail about the evening in question.
She was asked why she wrote the note. She said that both previously and since if something was difficult for her, she would write it in a note. She also said that another reason may have been if she had been unsure of what mood her mother was in, or she may have been feeling scared that her mother was angry with her for something else. She said that she never had a detailed verbal conversation with her mother about what happened to her.[4] She said her mother told her that she believed her and broke up with the accused.[5] She said she wasn’t sure whether the evening in question was New Year’s Eve 1996.
[4] Transcript p 36.
[5] Transcript pp [37]-[38].
J said she recalled that her mother went out with her friend R on the night in question. She recalled that the accused slept over that night. She said that whilst she had written in the note that she had greeted her mother when she came home, she now had no memory of that. She said that what she wrote in the note was true, but that she couldn’t remember many of the details recounted there now. She said she had forgotten about the note over the 14 years since the event.
Under cross-examination about bringing the matter to the police, she said she gave a statement to police on 14 May 2008. She said signed the statement on 25 October 2009. She said;
All I wanted to do was record the incident so at the time that was my primary concern. The rest of the legal proceeding sort of, like, it was just okay, so this is happening now, and yes, this is happening now, and I really wasn’t expecting it to get this far at all.
And later;
… I felt it was my right to go in and make a statement and say that this is what happened, I was worried that other girls might have had the same thing happen to them, and I wanted it to be known that this is what he did and then this - just kept progressing.
J was cross-examined on aspects of her statement. She was cross-examined extensively about her reason for coming forward and telling police, and what she had told her sister. She was asked why she had only given a brief description of the incident to a select few other people, and she went into certain issues that had arisen with her fiancée over sexual contact that had had made her feel uncomfortable.
I bear in mind and apply the provisions of section 34M of the Evidence Act relating to complaints in sexual cases. That section provides that evidence related to the making of an initial complaint of an alleged sexual offence is admissible at trial. The initial complaint was P2 and the surrounding brief discussion that J had with her mother on the morning after the alleged offence.
I am mindful that a complaint may be admitted only to inform the court as to how the allegation first came to light, as evidence of the consistency of the conduct of the alleged victim, but importantly is not admitted as evidence of the truth of what was alleged. I must also bear in mind that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that otherwise it is a matter for the court to determine the significance, if any, of the evidence in the circumstances of this particular case.
Importantly it is plain that J’s statements to the police or others in 2008, 2009 or since then are not initial complaints. The evidence as to that, elicited in cross-examination, I give no probative weight whatsoever in support of the prosecution’s case.
Defence counsel elicited that information to attack the credibility and reliability of J, and so I do consider it closely in that light.
J was cross-examined extensively about the contents of P2, her statements to police, her reasons for coming forward to police at this late time, and other potentially significant events in her life. She was taken to the events in 2001 when her sister was raped, although the attacker could not be located. She was cross-examined about her brother and the problems that had occurred with him, and difficulties her mother had in at least one other relationship.
J was asked whether she swore and she said back in 1996 she probably didn’t because she was brought up in the country and “Shut up” was a big deal[6]. Defence counsel suggested she had said to the accused “You’re a f’ing black Arab”, or “You’re a stupid Arab”, or “You can’t tell me what to do you’re not my father”. She said she didn’t recall anything like that and that she was fairly well behaved.[7]
[6] Transcript p 79.
[7] Transcript p 79.
J denied the suggestion by defence counsel that she often fought with her siblings in 1996 and had to be restrained and told off by the accused. She said she couldn’t recall anything like that.
J was taken through P2 in some detail and cross-examined about the aspects of P2 that she now did not remember[8].
[8] Transcript pp 81-95.
Defence counsel put to J that on the night in question that the accused was attempting to get her to go into her room but she was making a lot of noise, swearing and being very loud. He suggested that she was causing chaos, fighting with her brother and teasing her brother, her sister and the accused’s daughter, and having a pillow fight. She denied that[9]. She recalled that the accused, when he came into her room while she was at her desk that evening, was talking about her mother’s friend who her mother had gone out with that night. J said he was saying things she didn’t quite understand, negative things.
[9] Transcript p 96.
Further cross-examination about P2 occurred[10]. Much cross examination was directed towards ascertaining when J knew what happened to her was illegal. The inference being, that she would have known it was illegal long ago and therefore should have complained much earlier than she did in 2008. She answered this in a number of ways including;
ALife seems normal. I mean, you have really no way of telling whether what you’re living is normal or not and you just live in your family, the way that you do things and things happen and your parents deal with them in certain ways and that is just how it is. You don’t- that’s just the way things are.
[10] Transcript pp 97-98.
And a few lines later;
AWell, I felt that it had been dealt with. I was- I wasn’t sure how serious it was and she’d, you know, she’s broken up with him and seemed very serious, and I didn’t have to see him again, so he never babysat me again, so that was at the time not wanting to be babysat by him was what I wanted.
J was then cross-examined about why she took action in May 2008. She said;
ABecause I could- that wasn’t justice. I mean, that was a solution for me as a child and I was- that had resolved it then but that wasn’t- that wasn’t- I mean, obviously I can see as an adult that’s not where it should end. He should have to carry it himself and answer to what he has done. I have a right to take it to the police.
QAnd he has to answer for what he has done.
AYes, it should be his problem, not my problem. It should have never been my problem but I can’t change that. What I can do now is just do what I can do and pass it back.[11]
[11] Transcript pp 108-109.
Defence counsel then turned to the issue of when the event occurred and referred J to her 14 July 2010 statement when she identified events as occuring in 1996 at a particular address, by reference to having been asked by a teacher what she had done over the holidays. She said that that event happened after the evening in question.
I formed the provisional view that J gave evidence in a straight forward and seemingly very credible manner. She was upset appropriately at the times when she was describing the alleged events, she made appropriate concessions in terms of her memory. Her responses to questions concerning her note to her mother and to varied other matters raised with her in cross-examination, were all logical, appropriate and provisionally very credible. There was nothing about her presentation, demeanour or evidence in general, which gave any indication of dishonesty or unreliability. In all, she was an impressive witness.
The prosecution then called S, J’s mother[12]. S gave evidence that in 1996 she was living in Hillbank, having moved there in about 1994. She confirmed the date of her daughter’s birth as March 1995. J has a sister two years younger and a brother about six years younger. S gave evidence that in 1996 she was in a relationship with the accused. It developed as the accused was the father of a girl who J’s sister E had developed a friendship with. S could not quite remember the length of the relationship and said “Maybe a year and a bit”.
[12] Transcript p 118.
S said the accused didn’t stay over at her house because he had children of his own and needed to be with them. She was asked when the charged events happened and she said she couldn’t remember exactly when, to the best of her memory it was maybe around February or March of 1996 or 1997. S said she had a friend visiting from Mt Gambier and she made arrangements to go out with that friend one evening. As a result she asked the accused if he would mind babysitting her children when she went out. S said he agreed and he came over to mind her three children. She said she came home at around 11.30pm and no trouble was reported. S said she went to sleep and the accused went home. In the morning she said J gave her a note which she read and was horrified at its contents. S said she went and saw J, hugged her and cried and told her daughter that the accused would never be allowed to be involved in her family again. She said she then rang the accused, told him she knew what he had done to her daughter, that she didn’t want to see him again, nor speak to him again and that he should not come over or contact her[13].
[13] Transcript p 127.
S said she didn’t remember what he said but that she didn’t think she gave him a chance to say much, and she hung up. She said he came back one night some time afterwards and banged on the door and made a nuisance of himself and would not go away. In the end she called a friend who came and told him to leave. He then went away. She had not spoken to or seen the accused since that time.
S identified P2 as the note that J had given her. S said at the time she folded it up and put it away in a file. She said she took it out once a few years later when they moved house, but had not looked at it since. She said after the complaint had been made to the police, some time later when she came to court for the trial, she remembered for the first time about the note. She went and found it and brought it to court and gave it to counsel for the DPP. She gave evidence that when she showed it to J, J said she didn’t want to look at it. She said J was very upset.
In cross-examination S initially agreed that the events in question could have been New Year’s Eve 1996, but denied that it was an occasion which commenced with arrangements to celebrate New Year’s Eve together as a family. She said she didn’t remember the particular reason for her friend to be in town, but it would have been a special night in some way, and she does remember the accused was to babysit. She initially said it could well have been New Year’s Eve. She said, as J did, that she could not recall the accused’s daughter being there that evening.

S was cross-examined about the events of that evening. It was put to her that she got home at 3.00am and she replied that she couldn’t recall what time she came home. She didn’t recall meeting her daughter when she got home, and said that she did not think that the accused stayed over that night. She said he didn’t usually because he had his children and they were not there that night.
S was cross-examined on her police statement and noted that she did in one of those statements say that the accused’s daughter had been there. S said that she had done a lot more thinking about events since that time and is now sure that the accused’s daughter was not there.
S said she didn’t initially recall the letter her daughter had written about the events because in the intervening years she had blanked what she described as “the whole nasty incident” from her mind, protected her family and put the events away. She said she’d kept the letter because it was such a distressing and important letter. She said, consistently with J’s evidence, that she didn’t discuss the letter again with J until recently when the matter had come to the courts. It had come to court initiated by J.[14] S also said the reason why they did not discuss it a lot was to protect her other two children, J’s siblings.
[14] Transcript p 134.
On the next day of trial defence counsel revisited the issue of when the event was and S indicated that she now did not think it was New Year’s Eve. She said that she had thought about it over night, and whilst it may have been early in January or close to New Year’s Eve, it would not have been New Year’s Eve. That was because, she said, she would not have gone out and left her children on a family evening such as New Year’s Eve. Also, she said the friend who had visited from the country would not have left her family on New Year’s Eve either. She said whilst it could have been around that time when festivities were happening, her strong feeling is that it was not on New Year’s Eve.
S was cross-examined about the contact between the respective families over time, and when and how often each would visit or stay at the others house. She denied the suggestion that she had told the accused that J did not like him, or that J did not like him disciplining her. She denied she ever had trouble disciplining J herself, or that J had ever said to the accused “You are a f’ing black Arab” or a “Stupid Arab”. She also denied hearing J ever say to the accused “You’re not my father, you can’t tell me what to do”.
S was cross-examined about her next relationship and whether J disliked that person as well. She replied that at the end of that relationship it was obvious that nobody had liked him, and went into some details about that. In relation to the accused, S said that the accused did not try to exercise any parental prerogative over J. She said J was excellently behaved, a model student and a lovely person who had never made any racist slurs. She said her son L could be very badly behaved and that discipline was imposed on him on at least one occasion, but that her son’s behaviour had been outrageous on that occasion. She said that J, whilst she did tease, did not pull hair or bully other children.[15]
[15] Transcript p 155.
S was also cross-examined about J’s father and the problems that had historically occurred with him and the family. There had been some problems. She was cross-examined about why, given that in her professional life she was a mandatory reporter of child abuse, she didn’t report this matter. She reiterated why she did what she did, said she felt very badly about withdrawing her support from the accused’s child, and that she did what she did. S denied the suggestion put to her that her friend telephoned the accused about a week later and invited him around, and denied the suggestion that the three sat down together, or that she and her friend were then laughing and insulting towards the accused.[16]
[16] Transcript p 167.
When the date stamped photographs showing her daughter E together with the accused’s daughter were put to her, she said that there were some times when E still went over to the accused’s house to play with his daughter or when the accused’s daughter came to her house.[17] When a statement was put to her to the effect that she also didn’t report the matter to the police because her children had gone through one separation, she agreed, and said that it would have been difficult for them to go through another one because they had developed a relationship with the accused’s daughter A.
[17] Transcript pp [171]-[172].
Considerable further cross-examination occurred concerning why S didn’t report the matter to the police at the time. I was unsure of the relevance of that cross-examination, except perhaps to suggest that, inferentially, S did not believe her daughter. When that was put, S said that she absolutely believed her. I remind myself that this is not evidence of guilt, nor can it have any probative weight in assisting the prosecution case.
S was cross-examined about the ongoing contact the children had, and the degree to which her children went to the accused’s house after school after the events in question.
I formed the provisional impression that S was an honest witness, but whose recall was not as good as J.
The final prosecution witness was Senior Constable First Class Mowday. She gave evidence that she had received a police incident report concerning the accused and investigated the matter. As a result of her investigations she conducted an interview with the accused whereupon he chose not to answer any questions, as was his legal right. She gave evidence that exhibit P2 was given to her by S. She sought hand writing samples from J for the purposes of comparison. She also obtained P3, J’s Student Profile Book from 1996.
In cross-examination defence counsel elicited that J had given a statement on 14 May 2008 that was signed and witnessed on 25 October 2009. She also gave evidence about other statements and addendum statements she took in the matter.
That was the close of the prosecution case.
Defence Case
The accused gave evidence on oath. He gave evidence that he is 56 years of age having lived in Australia for 23 years. He said he is currently married and has been so since 1998. He also had a first wife from whom he separated in 1995. She passed away on 2 January 1996 in a motor vehicle accident. After that his daughter A came to live with him permanently. He said that his daughter had a friend who’s mother was S. Over time he developed a relationship with S, which became closer. He gave evidence that he commenced a sexual relationship with S around March 1996.
The accused said he would regularly sleep overnight at S’s house and take his daughter with him. His son was mature enough to be with his friends and look out for himself. The accused said he was not working in 1996 as he had stopped work in 1991 when he had a motor vehicle accident injuring his back. He said S worked at a kindergarten close by his house. That was also next to the children’s school. He said that the children and S would come to his house regularly after school, but in the last part of 1996 he would go to S’s house nearly every weekend or S would come to his place.
He said that when he went to S’s house her children behaved wildly and would say “It’s our house, we do as we like”. He said they would tease, chase and kick each other and scream. The accused said that when he tried to discipline them they used racist words such as “A stupid Arab”. He said they used ‘f’ words a lot and said “You’re not my father. You can’t tell me what to do”, and that J especially did that. He said he spoke to S about it, who couldn’t do anything about it. He said he felt responsible to fix the kids, and that it was hard to discipline them. He said he tried to do so. He said he would send them to their room and that he needed to push hard sometimes.
The accused said he met S’s friend R twice, once at Easter time in 1996 and the other time on the night of the alleged events. He said it was a strange relationship and when S and R were together he felt left out. He said he thought they were lesbians. The accused said that the second time he saw S’s friend R was New Year’s Eve 1996. He said they were invited over for New Year’s Eve but R turned up at around 8.30pm-9.00pm and asked S to go out dancing with her, and for him to stay home and mind the children. He said S and R left and he never saw R again, with S coming back at 3.00am.
The accused said that on the evening it was a struggle with the children to calm them down, they fought, pulled hair and screamed.[18] He said he attempted to control them. He said he had to pull the children apart. He said J said “You stupid Arab, you can’t tell me to. You’re not my father to tell me”. He said he told her to stop. He said “you go” and screamed at her and she ran into her room and shut the door and did not come out again. He said J “pushed the door hard with big noise” and the other children did not come out again. He said he waited up for midnight and opened champagne but that neither S nor R returned, so he had a bit to drink and went to sleep. He said he was woken when S came home and he woke up again in the morning. He then went home.
[18] Transcript p 226.
Later that morning he said that S rang him and said she didn’t want to see him because he behaved badly with J. He said he told S “Not J, it is R, so I don’t want to see you again”. He said that was the last time he spoke with her.
The accused denied that he went into J’s room and he denied that he fondled her breasts. He denied the allegations in P2. He repeated that S had told him many times that J had said she did not like him, and that J needed discipline but S couldn’t discipline her. He said they just screamed at each other, and that wasn’t problem solving.[19] He said he didn’t want to see S again because of R, and that he was disappointed on New Year’s Eve.
[19] Transcript pp 228-229.
The accused said that he went to see S a week later. He said he had been at home with his children at around 8.00pm when he received a phone call and heard some laughing over the phone. He said it was R who said “Hello, this is me can you come for coffee and a chat”. He said they laughed and that stirred him up and he rang a taxi and went there. He knocked on the door and went in and sat in the kitchen but they laughed and that made him upset. He said he got louder and louder and S said for him to leave, so he went outside and started making noise. He said when he was outside he screamed that they were lesbians. S rang somebody who came and talked to him, and then he left.
The accused was cross-examined about how the relationship developed, the children and the occasions that R visited. He was cross-examined about disciplining his and S’s children. The accused repeated that he was upset about New Year’s Eve when R wanted to go out with S. He said he thought they were in a lesbian relationship and was very upset that the mutual family celebration had been broken up in that way. He said that he didn’t have any problem with S’s daughter E, but that J was always disrespectful, would swear at him and use the terms earlier discussed. He said sometimes she would come and talk dirty, she would swear and go to her room.[20]
[20] Transcript p 239.
The accused repeated his evidence about that evening. He said that his daughter had come with him and was sleeping over at S’s house. The accused again denied indecently assaulting J on the evening.
I did not form a favourable impression of the accused’s evidence. There was nothing untoward about his demeanour but I found his accusations that S and R were lesbians incongruous and unconvincing, and his evidence as to the events of the evening, in particular that R simply turned up and extracted S from an otherwise mutually agreed family New Year’s Eve in the way described, unlikely. I was unconvinced by the suggestion that J’s behaviour included the racist insults mentioned. I find it highly unlikely that a week after he had been accused of molesting J and never to see her again, he would have been invited back over, invited in by S and R, and laughed at. I was not impressed with his presentation in general.
The defence then called A, the accused’s daughter. She gave evidence that she is now 23 years of age. She was 8 years of age in 1996, in year 3 at school. She gave evidence that she was living with the accused and her brother. Her mother had passed away on 2 January 1996 in a car accident. She said she befriended E, J’s sister, and was her best friend.
She said her father started a relationship with S. She said they would go to S’s home. She said she would sleep over and her father would do so as well. She said that would happen often in 1996 and that E would stay at her house as well. She said that on occasions E, J and L would come to her house after school. She said when the parents’ relationship became serious, that happened perhaps 90% of the time. She said there was a lot of contact on the weekends as well. She said the last time that she and her father stayed at S’s place was New Year’s Eve of 1995. She remembered that because the anniversary of her mother’s death anniversary is 2 January. I take it that she must have meant New Year’s Eve 1996 rather than 1995.
She said that,
The eldest, J- she was quite naughty. She used a profanity and she would tease her other two siblings. E was well behaved and she was my best friend and didn’t really get into trouble. We were always hanging out together. The youngest, L, was quite naughty. He would also swear a lot. And at one stage both L and I had pet mice and he had killed one of her mice so he was quite naughty as an example of what naughty things he did.
QDo you recall any other things that J said during that time?
AWell, I know that she was told off by my father for taunting us children, and because she didn’t like being told off she called him and “effing Arab” and used a lot of profanity[21].
[21] Transcript pp [253]-[254].
She said she was scared of J and saw how J bullied the other siblings. She said her father disciplined S’s children including occasionally giving chilli to them. She said on the New Year’s Eve concerned, J fought with her siblings as her father had said. She said that after that evening she did go around to their house on some occasions, and was referred to photos D2, D3 and D4.
She said that after 1997, she didn’t see E again regularly. She said in recent times she had been in contact with E via MySpace and Facebook, but she stopped that when her father told her about the case.
She said she did not ask her father about not spending time with E’s family anymore, as she was not brought up to question her parents or older people.
I did not form a very favourable impression of A. She was recalling events 14 years ago when she was 8 years old, about an evening which would have been of little controversy to her at the time. It is strange that she would remember the details she did, when there would have been nothing to cause her to remember that evening in particular. The evidence was that she was allowed to maintain contact with E after that event, and that no one told her about any adverse events at the time. Further, I gained a strong impression that she was a very loyal and dutiful daughter to the accused, had been brought up not to question him, and was giving evidence in support of her father rather than it being her independent recollection of events.
The final witness called in the defence case was Ms Bird, a handwriting expert. She gave evidence that she compared J’s handwriting from her Student Profile Book from 1996, P3, to P2 the note that J said she wrote to her mother about the alleged events. Her opinion was that J wrote P2. She said that based on the change in the handwriting over 1996 in P3, more similarities in style occurred from Term 2 Week 10 and later. Ms Bird said her opinion was to the degree of “qualified support”.
Ms Bird’s evidence is broadly supportive that J wrote P2 in the latter part of 1996 or thereabouts, which is the time J alleges she wrote it.
Addresses of counsel
Prosecution Address
Counsel for the prosecution submitted that J was a credible witness and that prosecution case was proven beyond reasonable doubt. J’s evidence was summarised and counsel submitted that there were a number of reasons why she should be accepted. He referred to her demeanour and how she expressed her evidence, secondly he referred to what he said was the inherent plausibility of J’s account, and thirdly he said that P2, J’s note and complaint to her mother showed consistency of conduct, both as to when the complaint was made i.e. straight after the events, and as to the wording of the complaint.
Counsel for the prosecution submitted that the accused’s evidence as to J’s bad behaviour, disrespectfulness and the like was a complete fabrication and the accused’s evidence about R was a smokescreen to cast doubt on the family. Prosecution counsel submitted that J’s evidence was highly credible and consistent with P2, and her mother’s evidence.
Defence address
Defence counsel submitted there was a lack of clarity as to the exact date of the allegations on the prosecution case, and that in all the circumstances the most likely time that it occurred was as claimed by defence witnesses, New Year’s Eve 1996. Defence counsel emphasised the limited use the court can make of the complaint by J to her mother. She emphasised the accused’s evidence about the relationship. She submitted that the fact that both J and her mother had forgotten about P2, and that J’s mother didn’t report the event at the time to police, should cause alarm bells to ring as should some aspects of the contents of P2 that she referred me to.
Defence counsel emphasised issues elicited in cross-examination from J’s mother concerning problems the family had and, and she emphasised the accused’s denials of the allegations. She characterised J’s upset and concern in the witness box when recounting the events themselves and reading P2, as “crocodile tears”. She submitted that J may now believe the story she had conjured up and is now recounting.
Defence counsel highlighted what she says were aspects of J’s mother’s lack of recall and again suggested that the failure of her as a mother to report the matter was worthy of comment. Defence counsel submitted that P2 could have been written at any time, and highlighted details given in P2 that J does not recall now. She submitted that as J was a gifted, intelligent and smart child, she would scarcely have forgotten about the note she wrote, as claimed
Defence counsel emphasised R v Calides 34 SASR 355, and the matters therein. She submitted that I should take with a grain of salt J’s evidence that she didn’t doubt that what was in P2 was true, but that she doesn’t have a memory of all of it now. Mrs Read submitted that some key inconsistencies and all the circumstances mean that the court should treat J’s evidence with great caution. She argued that there was a reasonable doubt.
Discussion
The prosecution case in this matter rests almost entirely on the evidence of J. I have therefore closely scrutinised her evidence. I bear in mind the potential forensic disadvantage the accused may face these years after the event. In this case however, the accused has said he has a good memory of the event in question and has called a witness, his daughter, who both say they were present at that time. I have carefully considered the evidence called by the defence.
I bear in mind that despite the fact that the case is primarily the word of J against the word of the accused, it is not an “either or” situation. It remains for the crown to prove each element of the offence against the accused beyond reasonable doubt. I might accept the evidence of the complainant beyond reasonable doubt, I might accept the evidence of the accused about the events as he described them, or I might not know where the truth lies. In both of the latter instances, the Crown has not proven its case beyond reasonable doubt.

I must bear in mind that even if I form the view that the complainant was an honest witness, I must also carefully scrutinise her evidence as to its accuracy and reliability.
I formed provisional views about each witness as the evidence progressed, as mentioned. I have reconsidered my assessment of each witness in light of the evidence as a whole and the totality of the material presented.
In the final analysis I find J to be an honest, reliable and accurate witness as to the events she described in the bedroom with the accused. She was clear and forthright, there was nothing in her demeanour, in what she said or the way in which she gave her evidence, nor was there any other evidence in the case which ultimately causes me to doubt the accuracy of what she said.
I found J’s mother to be an honest witness but with a less detailed and less accurate recall of the night in question.
I closely assessed Mr Ahmadi’s evidence. I accept that his recollection of the evening is ostensibly is quite good, but ultimately I do not accept that his evidence as to the events concerned is a reasonable possibility. I was particularly unimpressed with his accusation that J’s mother and her friend were lesbians, his suggestions as to the extremely bad and racist behaviour of J, and the dysfunctional nature of her family. This did not have the ring of truth about it at all, and in my view that evidence was created for the purposes of this trial and to suggest a motive for the complaint to lie. His evidence that a week after S had told him never to see them again, that R and S would invite him over, invite him in and laugh at him did not have any credibility.
In my view Ms A had little recollection of the events but was in court to support her father as a dutiful daughter and her evidence is quite unreliable.
I accept the evidence of J as honest and reliable, beyond reasonable doubt.
Verdict
I find proven beyond reasonable doubt, on the totality of the evidence, that on or within a few weeks New Year’s Eve 1996 the accused Mr Ahmadi entered the bedroom of J whilst babysitting her. I find proven beyond reasonable doubt that he intentionally placed his hands under her bed clothes and massaged her breasts causing her to wake.
I find this was an assault and that it was accompanied by circumstances of indecency. I find that at the time J was under the age of 12 years.
Accordingly the charge is proved beyond reasonable doubt.