R v Anesbury
[2020] SADC 109
•14 August 2020
District Court of South Australia
(Criminal)
R v ANESBURY
Criminal Trial by Judge Alone
[2020] SADC 109
Reasons for the Verdict of His Honour Auxiliary Judge Barrett
14 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is charged with one count of Maintaining an Unlawful Sexual Relationship with a child who was the 14-15 year old daughter of his neighbours. In the alternative he is charged with three counts of Indecent Assault and two counts of Unlawful Sexual Intercourse. The accused exercised his right not to give evidence.
Held: The accused is Guilty of Maintaining an Unlawful Sexual Relationship with a child.
The Evidence Act 13BA(3)(b), (2), 9(2)(a)(i), (ii), (2)(b), ss(3)(d),(5), 34M, 9(4)(b), 12A, 34CB; Criminal Law Consolidation Act 1935 s 50(1), s 56, 49(3), 50; Child Safety (Pohibited Persons) Act 2016 s 38; The Summary Offences Act s 74EA(1), EB, referred to.
R v Jones [2018] SASCFC 80; R v Cassebohm [2011] SASCFC 29 (2011) 109 SASR 465; R v Mann [2020] SASCFC 69; R v Dennis Bauer [2018] HCA 40 [91], applied.
R v ANESBURY
[2020] SADC 109The accused is charged with sexual offending against the daughter of his neighbours who lived in the Adelaide Hills. The offences are alleged to have occurred between mid-2017 and October 2018 when the accused was aged between 77 and 79 and the complainant was aged between 14 and 15 years.
Count 1 on the Information is a charge of Maintaining and Unlawful Sexual Relationship With a Child. That count incorporates all the alleged offending.
Counts 2, 3 and 4 are alternative charges which relate to the offending which is alleged to have occurred on an occasion in the bedroom of the accused’s house when his wife was away interstate.
Counts 5 and 6 are also alternative charges. They relate to the offending which is alleged to have occurred on the last occasion when any offending took place. These offences are alleged to have taken place in a Nissan Hut on the complainant’s parents’ property.
What is meant by counts 2 – 6 being alternative charges is that, in the event of the accused being found guilty of count 1, no verdict will be delivered in respect of counts 2 – 6. If the accused is found not guilty of count 1, consideration will then have to be given to whether any of counts 2 – 6 have been proved beyond reasonable doubt. Verdicts will have to be delivered on each alternative count.
I reproduce the Information.
Graeme John Anesbury is charged with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Graeme John Anesbury between the 1 st day of July 2017 and the 23 rd day of October 2018 at Kersbrook, maintained an unlawful sexual relationship with JKS, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JKS, namely:
(a) touching her breasts on more than one occasion;
(b) sucking on her breasts on more than one occasion;
(c) touching her vagina on more than one occasion;
(d) inserting a finger into her vagina on more than one occasion;
(e) kissing her on the lips on more than one occasion;
(f) rubbing his groin against her groin and
(g) performing an act of cunnilingus upon her.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Graeme John Anesbury between the 11th day of August 2018 and the 17th day of September 2018 at Kersbrook, indecently assaulted JKS by rubbing his groin against her groin.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safely (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Graeme John Anesbury between the 11 th day of August 2018 and the 17th day of September 2018 at Kersbrook, indecently assaulted JKS by sucking on her breast.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Graeme John Anesbury between the 11th day of August 2018 and the 17th day of September 2018 at Kersbrook, had sexual intercourse with JKS, a person under the age of 17 years, by performing an act of cunnilingus upon her.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Graeme John Anesbury between the 1 st day of October 2018 and the 23 rd day of October 2018 at Kersbrook, indecently assaulted JKS by sucking on her breast.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Graeme John Anesbury between the 1 st day of October 2018 and the 23 rd day of October 2018 at Kersbrook, had sexual intercourse with JKS, a person under the age of 17 years, by inserting a finger into her vagina.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Course of the Trial
The trial was heard by me without a jury. The Prosecution called four witnesses to give oral evidence, apart from the complainant. I will discuss separately the evidence of the complainant. The Prosecution called the complainant’s father, two teachers and the police officer in charge of the investigation. Among the Exhibits tendered by the prosecution is a report by the psychologist Dr Robyn Young which related to a disability suffered by the complainant. The accused tendered two photographic exhibits but did not give or call evidence himself. I draw no inference adverse to the accused by reason of his not giving evidence. It was his right not to do so.
The evidence of the complainant
The complainant made an initial report of the alleged offending to one of her school teachers on 23 October 2018. (She spoke to two teachers that day, but strictly the complaint was made to only one). The matter was reported to the police. On 24 October 2018 the complainant was interviewed by Brevet Sergeant Karen Brumpton. That interview was video recorded. The disc of the interview is Exhibit P7. The transcript of the video is MFI P7A.
The prosecution made written application pursuant to s 13 BA(2) of The Evidence Act that the video be admitted as evidence at the trial. The prosecution submitted that the requirements for admission in s 13BA (3) have been met. I set out my reasons for finding that the video should be admitted.
Pursuant to ss 3 (a) the recording had been made in compliance with Part 17 Division 3 of The Summary Offences Act 1953. Section 74EA(1) of The Summary Offences Act provides that the division applies to children of, or under 14, or “a person with a disability that adversely affects that person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions”. At the time of the interview on 24 October 2018 the complainant was 15 years 11 months old.
Dr Young’s report of 7 October 2019 (P11) sets out in detail the psychological testing of the complainant which had taken place over the years from 2009. Dr Young reviewed the earlier testing and conducted her own tests. She concluded that the complainant suffers from an intellectual disability of mild severity. Addressing the other criteria pursuant to s 74 EA of The Summary Offences Act, Dr Young concluded that, as a result of the disability, there may be some adverse effects on the complainant’s capacity to give evidence. In my view the complainant met the qualifying criteria contained in s 74 EA(1) for a video interview to be conducted. The defence did not submit otherwise.
In an affidavit sworn on 11 October 2019 a solicitor of the DPP deposed that the interview was conducted in accordance with s 74 EB of The Summary Offences Act. That section governs the qualifications of the interviewer and the circumstances under which the interview must be conducted. There is no defence challenge to that deposition.
Returning to s 13 BA of The Evidence Act, there are three further requirements which must be met before such an interview can be admitted into evidence.
Sub-section 3(b) requires the court to be satisfied, first, of the witness’s capacity to give sworn or unsworn evidence at the time the recording is made. In its application for admission of the interview it is asserted by the Prosecution that it appears from the interview that the complainant is capable of giving sworn evidence. I do not agree. There is no exploration in the interview of the complainant’s understanding of the obligation to be truthful entailed in giving sworn evidence. It might be a typographical error that the word “sworn” was used.
The application, and the solicitor’s affidavit, goes on to assert that it appears from the interview that the complainant is capable of giving unsworn evidence. I agree with that assertion. The interviewer sought to comply with the tests laid down in s 9 of The Evidence Act for the determination by a Judge that a witness may be permitted to give unsworn evidence.
In compliance with s 9(2)(a)(i) the interviewer asked the complainant questions to determine whether she understood the difference between the truth and a lie (pages 2.9 – 4.3). The complainant gave answers which in my view indicated that she had such an understanding.
In reasonable compliance with ss (2)(a)(ii), the interviewer brought home to the complainant that it was important for her to tell the truth. (pp. 2.9 - p 4 line 156). The exact words of ss (2)(a) (ii) were not used, and it would have been better if they had, but I find that the interviewer sufficiently impressed upon the complainant the importance of telling the truth.
In what I find is reasonable compliance with ss (2)(b) the interviewer elicited from the complainant that she would tell the truth. I reproduce the exchange on this topic on page 4, lines 156 – 162:
Interviewer: So the main thing is you just promise to tell the truth.
Complainant: Yeah
Interviewer: While we are talking today.
Complainant: Yeah.
Quite understandably Mr Allen drew attention to that imperfect effort to comply with s 9(2)(b). It would have been preferable if the interviewer had asked “Do you promise to tell the truth?” or “I am now going to ask you to promise to tell the truth”.
Nevertheless I am satisfied that the complainant’s two affirmative responses indicate that she was promising to tell the truth.
I am satisfied that at the time the recording was made the complainant had the capacity to give unsworn evidence. (Section 13 BA(3)(b)) of The Evidence Act.
In accordance with ss (3)(c) the prosecutor’s application asserted that the defence had been given a reasonable opportunity to review the recording. That was not contested.
The Prosecutor, Mr Wilson, indicated that the complainant was available to give evidence (ss (3)(d)).
I ruled that the videoed interview with the complainant conducted on 24 October 2018 be admitted into evidence (Exhibit P7, transcript MFI P7A).
Further, I ruled that the prosecutor might ask the complainant questions in court by way of examination-in-chief, and that Mr Allan might cross-examine her. Helpfully both counsel had prepared a list of topics upon which they wished to question the complainant. Each counsel had conferred with the other. Neither objected to the topics identified in the other’s list. In my view both counsel’s topics were reasonable. Pursuant to s 13BA(5) I gave each counsel leave to question in the way proposed. I was satisfied that the conditions of that subsection had been met and it was in the interests of justice to permit the questioning.
The video interview was played in court. The complainant was examined-in-chief, and cross-examined in accordance with the leave I had given. I also permitted some brief re-examination of the complainant by Mr Wilson.
Background
The complainant, along with her parents and her older brother, moved to acreage in the Adelaide Hills in December 2009. The older brother moved out in about 2016.
The accused, his wife and an adult son lived on the acreage next door. The adult son lived in a house adjacent to the parent’s house. The son moved out around 2017.
The respective houses and outbuildings of the two families were within walking distance of each other. For the purposes of this trial the buildings on each property which are relevant are the accused’s house and work shed, and on the complainant’s family’s property, a shed, a hayshed and a Nissan Hut. The Nissan Hut was set up as fit for accommodation, including a bathroom, but at the relevant time no one lived there. It was used for storage.
Before the bushfire which threatened the two properties in January 2015 the families had been neighbourly but not especially close. The complainant’s father said that during the fires he had remained on the property and had fought the fire, both on his own property and next door. The accused and his family were not home at the time. The complainant’s father said that after the fire the two families became closer. He and the accused’s adult son undertook some joint restoration work. The accused expressed gratitude towards the complainant’s father for the efforts he had made to save parts of his property from being overrun by the fire. There was some increased contact between the families. The accused undertook to take the complainant’s family’s rubbish bins to the road for the weekly rubbish collection. The accused would more frequently be present on the complainant’s family’s property.
Although the complainant’s father did not think anything of it at the time, he had seen the accused walking together with his daughter out of the hay shed and the Nissan Hut on their property (T50).
The complainant’s recorded interview.
Brevet Sergeant Brumpton asked the complainant to tell her what she had come to talk to her about. The complainant said that her neighbour had sexually assaulted her. She said that it had happened several times. She said that some of the assaults were more serious and some not as serious. There was one serious one. She said the first one was “more casual”.
Brevet Sergeant Brumpton asked the complainant to describe the more serious occasion. The complainant said that she had been asked by her mother to go over to the accused’s house and collect a bowl that had been sent to him. The accused’s wife was away interstate at the time. It is an agreed fact (P1, para 3.2) that the accused’s wife was away interstate between the 11 August and 17 September 2018. The case for the prosecution is that the complainant’s evidence on this topic relates to sexual acts committed by the accused in his bedroom while his wife was away. It is the case for the prosecution that these acts comprise particulars (b), (e), (f) and (g) of count 1, the charge of Maintaining an Unlawful Sexual Relationship with a Child, and counts 2, 3 and 4, the alternative counts of Indecent Assault and Unlawful Sexual Intercourse.
The complainant said that when she got to the accused’s house he directed her into his bedroom. He put her on the bed on her back and laid on top of her. He said that he loved her. He kissed her (particular (e) of Count 1). He was “type of humping” her (particular (f) of Count 1 and the alternative Count 2). He lifted up her shirt and put his mouth over her breasts, (particular (b) of Count 1 and the alternative Count 3). He pulled her pants down and licked her vagina (particular (g) of Count 1 and the alternative Count 4). The complainant said she just lay there while the accused did these things to her. Eventually she said that she had to go.
The complainant described this incident as the most serious one. Brevet Sergeant Brumpton then asked the complainant to describe any other time that something happened. The complainant said “well, the others are mostly the same” (Page 22).
The complainant went on to describe the last time something happened. She said that that had happened “a week or so ago now”. (The interview took place on the 24 October 2018). She said the last occasion “was the same as, like the normal other casual ones” (Page 22 line 106).
Before Brevet Sergeant Brumpton could focus the complainant’s attention on a description of the last occasion, the complainant spoke about other unspecified occasions when the accused touched her inappropriately. She said: (p 22-23):
·… it can happen … out the back of my shed, in their shed, or if I’m over there at his for a reason.
·… normally it has been happening mostly in our Nissan Hut …
The complainant spoke of the things that the accused did to her on these unspecified occasions.
She said: (p 23):
·… put his hands around to the top and then down there …
·… he’s like had my pants a little down, not really though, to just get his hand in, but, and there (sic) not like undone, but then he’ll pull my pants right off …
·… latch his lips on to mine and like start kissing …”.
When the complainant’s attention became focussed on the last occasion she said that the accused had come up behind her in the Nissan Hut. He had grabbed hold of her, started to touch her breast underneath her bra. He put the other hand on her vagina and only a bit inside her vagina. The complainant says she told the accused to stop. He did stop. He pulled up her pants and kissed her.
Having identified two specific occasions, the “worst” one in the bedroom and the last one in the Nissan Hut, the complainant spoke in more general terms about the accused touching her in other locations. She said it occurred when she was feeding the animals (p. 30.2) in the hay shed (p.30.7) and in the shed on the accused’s property (p.31.5).
The complainant kept referring to the bedroom incident as the worst. She said that was the only occasion the accused had licked her vagina (p.32.2). She said that that incident shocked her. She thought it would be safe if she did not move “and pretend I’m relaxed”.
Brevet Sergeant Brumpton then asked the complainant if she remembered the first time the accused ever touched her on the vagina or put his mouth on her breasts. She replied to the effect that neither of those things happened the first time the accused touched her inappropriately. Each of those things happened on later occasions,
“It’s just been, like he’d do a step at a time” (p.33 line 621), “like gradually, like, oh yeah, your just gonna have a bit of fun, and then get like, oh yeah, you’re gradually gonna have sex nearly, and all that”. (p33 line 1621 onwards).
Brevet Sergeant Brumpton asked the complainant if the accused ever made her touch his “private parts”. The complainant said “No” (p.34.1).
She then volunteered this:-
“… he said, I’m not gonna pull my pants down at the moment because you’ve never had sex … and I would get killed by your dad and you would probably if we … had it and you got pregnant or something”.
Brevet Sergeant Brumpton asked the complainant if the accused had ever said anything to her about telling anyone else. The complainant said no, but then added this “it’s like, just a secret, and then it comes up because its just hit me because we were going to an event, 5 o’clock Monday night, and, er, this Monday just gone” (p34.8).
The complainant elaborated on what she meant by that answer, both at the interview and in her evidence. She said that on the Monday night she had gone with her mother to what they thought was a craft night at a local venue. It appears that they may have forgotten that that evening was not going to be the usual craft night. Instead a speaker was going to talk about sexual abuse. At the meeting the speaker recounted how he had been sexually abused. The complainant told Brevet Sergeant Brumpton about the effect on her of what the speaker was talking about - “It just, like, hit me” (p 37 Line 1814).
Brevet Sergeant Brumpton asked the complainant how she felt about what the accused had been doing to her. She replied “ … not good at all” but she elaborated on that answer thus: “Well, its, like made me sometimes have them feelings like, oh yeah, you want to do it. But then you’re like, but you know not to” (p 38.3).
Towards the end of the interview Brevet Sergeant Brumpton reviewed her notes and followed up on the complainant’s account of the accused rubbing his penis against her vagina over their clothing. Brevet Sergeant Brumpton asked the complainant how she felt about that. The complainant said “ … rubbing in that area and then sometimes it made me like have feelings nearly” (p.39.9).
Before the complainant gave evidence in court I made enquiries of her in contemplation of s 9 of The Evidence Act. As a consequence, I was satisfied the complainant understood the difference between the truth and a lie. I told her it was important that she told the truth and the complainant promised to do so (T 59). I was satisfied that the complainant was capable of giving unsworn evidence. I so ruled. At the time of giving evidence the complainant was aged 17 years 8 months. I made no enquiry about whether she had the capacity to give sworn evidence.
In examination-in-chief the complainant confirmed that the first time the accused touched her inappropriately was in the accused’s shed.
She said the accused had touched her on the breast and vagina on two occasions when they were in the shed on her parents property. The accused would touch her when he came to collect or drop off the rubbish bins. He had touched her on the breasts and vagina, under her clothing. He had touched her on one occasion in the hay shed. He had touched her between ten and fifteen times in the Nissan Hut.
The touching gradually got worse. It started over her clothes for a short time then under her clothes. The accused put his mouth on the complainant’s breasts only twice, once in his bedroom and once in the Nissan Hut.
In cross-examination the complainant was asked when the first offending took place. She said it was in 2018. (In re-examination she said it happened in a different year from the year in which she was interviewed by Brevet Sergeant Brumpton). She was not sure whether the first time was a week day or a weekend.
She was not sure whether, at a proofing with the Director of Public Prosecutions, she had said that the touching on the first occasion included touching on the vagina. In the interview she had said that that sort of touching did not occur until later. In the interview it was not made clear what touching had happened on the first occasion. She was never specifically asked what had happened when she said things such as touching on the vagina and putting the mouth on the breast happened on later occasions. In cross-examination the complainant had said that on the first occasion she was touched “top and bottom” (T 61).
She said the touching occurred regularly in the Nissan Hut, always in the bathroom.
Evidence of Complaint
The complainant’s initial complaint to the school teacher came about in this way. The complainant had been to the craft night on the Monday night. She had worried overnight about what the speaker had said. She had thought about ringing her brother but decided it was probably too late to do that. On Tuesday 23 October she said she got emotional in Ms Jolly’s class.
Ms Jolly explained what happened. She said that the complainant appeared tearful when she came into the Learning Support Group class. Ms Jolly asked if she was okay. The complainant said she would stay in the class. As the lesson progressed the complainant became very tearful. Ms Jolly said the complainant then said “to myself and the class”, “what do you do when you don’t want to have sex?” (T92). Ms Jolly stopped the complainant and asked her to come outside. As it happened The Student Wellbeing Teacher was just outside the classroom. Ms Jolly handed the complainant to Ms Henrikkson. The evidence of what happened in Ms Jolly’s class is not evidence of complaint. It is lead only to explain how the complaint to Ms Henrikkson came about.
I summarise the main points of Ms Henrikkson’s account of the complainant’s disclosure to her. She said the complainant told her about the craft night speaker. She said that since late 2017 her neighbour, whom she described, had been touching her on the breasts and genitalia under her clothes. He touched her with his hands and his mouth.
In my view that account is sufficiently consistent with the behaviour now alleged to be referable to that behaviour. It is a complaint of the relevant offending. In material respects it is consistent with the behaviour attested to in court. There is consistency of account.
The complaint was made within what appears to be a couple of weeks of the last alleged incident, although possibly a year or so after the first alleged incident. Delay in complaining about sexual offending is not of itself capable of detracting from the credit of the complainant (s 34 M of The Evidence Act) but the reasons for delay may do so (R v Jones [2018] SASCFC 80.In my view the complainant’s age, and possibly her disability, are sufficient explanations for the delay. Further, although the complainant did not say that the accused had told her to keep quiet about what was going on, she regarded it as a secret. I find there is consistency of conduct in the evidence of complaint.
The complaint evidence is not capable of being used as the truth of the matters complained of. Apart from demonstrating how the alleged offending came to light, the complaint evidence may only be used as evidence of consistency.
Officer in Charge Detective John Hunt
Detective Hunt was presented by the prosecution for cross-examination. He confirmed that at a briefing of the complainant on 1 July 2020 she had been questioned about what had happened on the first occasion the accused offended against her. The complainant had said the accused touched her on the breast, over her clothes, but she did not mention him touching her on the vagina.
Detective Hunt acknowledged that, prior to the present matter, the accused had never been charged with, or investigated in respect of, any offence.
Dr Robyn Young’s report
Before closing the case for the prosecution Mr Wilson tendered Dr Young’s CV (P10) and her report of 7 October 2019 (P11).
There was no challenge to Dr Young’s expertise as a psychologist. Nor was there any challenge to the content of her report.
I will not canvass in detail the content of Dr Young’s report. The report details areas of cognition where the complainant experiences limitations. However Dr Young said that, so long as allowances were made for these limitations when questions were put to the complainant, she would be able to respond in a meaningful way to most questions. Dr Young suggested ways in which allowances should be made.
In my view both counsel for the prosecution and defence questioned the complainant in a way which did not appear to cause her any difficulties. She was appropriately responsive to questions. While Dr Young said that the complainant’s working memory skills were lower than many individuals her age, there is no suggestion that the complainant is likely to be unreliable in her evidence. There was nothing to suggest she might be untruthful.
Addresses
Mr Wilson submitted that while there were some minor inconsistencies in the complainant’s evidence, she gave a generally reliable and truthful account of the offending. There was a credible increase in the seriousness of the offending. There were detailed and credible accounts of the types of touching engaged in by the accused and the locations in which the touching took place. While there was some discursiveness in the complainant’s answers to Detective Brumpton that very discursiveness was telling and credible. When Detective Brumpton was trying to concentrate on specific occasions of offending the complainant would begin her replies by saying “he would do this”. In other words the answer illustrates that there were multiple occasions of offending but the complainant could identify only a few. She was able to identify the first occasion in the accused’s shed, the worst occasion in the accused’s bedroom, and the last occasion in the Nissan Hut.
On the other hand the complainant was discriminating in describing what sorts of touching did, and did not, take place, and the locations in which the offending occurred. There were nuanced descriptions of limited digital penetration. There was no occasion on which the complainant saw the accused’s private parts or was made to touch them. The touching began on the outside of her clothes but it progressed to touching on the inside. There were telling accounts of some conversations. One example is the complainant’s detailed account of how the accused said he would not have sexual intercourse with her because her father would kill him if she became pregnant. There was credible naivete about some aspects of the complainant’s evidence. For example, in describing her interactions with the accused she said “… he does all the work … I just stand there … I don’t get any jobs” (p 14).
The complainants’ complaint to Ms Henrikkson, and the lead up to it, is credible. The speaker’s account of abuse hit her. It made her realise that what was happening to her was sexual abuse. She became spontaneously tearful in Ms Jolly’s class. She blurted out to Ms Jolly, and the class, what she was worried about. Her complaint to Ms Henrikkson demonstrates consistency of conduct and consistency of account.
On behalf of the defence Mr Allan urged me to give myself warnings occasioned by the complainant’s age, her disability and the fact she gave unsworn evidence.
In particular I take that submission to be that, pursuant to s 9(4)(b) of The Evidence Act, I should exercise caution in accepting the complainant’s account, and the weight to be given to it, because both her interview and her evidence in court were unsworn. I accept that I should exercise such caution. The complainant’s evidence was not given with the understanding of the obligation to be truthful entailed in giving sworn evidence.
Mr Allan asked me to give myself the warning contemplated by s 12A of The Evidence Act. A judge must not reason that it is unsafe to convict on a child’s uncorroborated evidence unless such a warning is warranted because there are, in the circumstances of the case, cogent reasons to doubt the reliability of the child’s evidence. The complainant’s evidence in this case is uncorroborated. However, I do not accept that there are cogent reasons to doubt the reliability of the complainant’s evidence. There is nothing in Dr Young’s report which suggests that the complainant is likely to give unreliable or untruthful evidence. There was, in my view, nothing in the manner or content of the complainant’s evidence suggesting it was inherently unreliable. That is not to say there were not criticisms to be made of her evidence. Those criticisms however, do not, in my view, amount to cogent reasons to doubt the reliability of her evidence, and on that basis to regard it as unsafe to convict.
Mr Allan asked me to give myself a warning contemplated by the case of R v Cassebohm [2011] SASCFC 29, (2011) 109 SASR 465. The only warning Mr Allan could be referring to in that case is the warning pursuant to s 34 CB of The Evidence Act about the effects of the significant forensic disadvantage suffered by the accused as a result of the delay in reporting the alleged offending. In this case the delay is about a year or so from the beginning, and a few weeks from the end. Mr Allen did not point to specific difficulties suffered by the accused but I accept that, for a man in his eighties, it must be difficult to gather his thoughts about events a year or more after the event. It must be difficult in those circumstances to give detailed instructions. I have regard to that significant forensic disadvantage.
I have given myself the warning contained in s 34M of the Evidence Act about the evidence of complaint.
Both counsel told me that the decision in R v Mann [2020] SASCFC 69 would be handed down later in the day on which they were presenting their addresses. I gave each a week to consider whether they wished to make supplementary submissions. Each later indicated that they did not wish to make further submissions.
I bear in mind the principles enunciated in that case. In respect of the charge of Maintaining an Unlawful Sexual Relationship with a Child, the prosecution must prove that there existed a relationship between the accused and the complainant which is separate from, or outside, the alleged unlawful sexual acts. In this case I conclude that the relationship of neighbours is sufficient to constitute a relationship for the purposes of s 50 of The Criminal Law Consolidation Act.
The prosecution must prove that the accused maintained the relationship. The relationship of neighbours was maintained during the period of the alleged offending.
Neither of these ingredients was contested in the trial. The only contest in the trial is whether the prosecution has proved beyond reasonable doubt that the sexual acts occurred as the complainant says they did.
I accept Mr Allan’s submission that the prosecution case depends on my accepting beyond reasonable doubt the evidence of the complainant.
Mr Allan submitted that there was a lack of detail about the complainant’s allegations. For example she could not remember what conversations, if any, she had with the accused when he first offended against her in his shed. She was unsure which hand the accused used to touch her breast, and which breast it was. In relation to the bedroom allegation the complainant could not say whether the accused sucked one or both her breasts. She gave limited details about the layout of the bedroom. Although the complainant said there was offending between 10 and 15 times in the Nissen Hut the complainant was only able to give details about the first and last of those occasions.
In the interview with Brevet Sergeant Brumpton the complainant conflated sexual incidents. When Detective Brumpton was trying to identify some specific occasions the complainant would often begin her replies with expressions such as “he would do things” or “he normally did certain things”.
Mr Allen pointed to what he described as significant inconsistencies in the complainant’s evidence.
The complainant said in court that the first incident occurred in 2018. In her interview she said it was 2017. In court she said that on the first occasion the accused touched her on the vagina as well as the breast (“top and bottom”). In the interview she made no mention of being touched on the vagina on that occasion. Likewise at the proofing she did not mention being touched on the vagina.
In the interview the complainant may be taken to be saying that the accused put his finger in her vagina in four locations, namely the Nissan Hut, the shed and the hay shed on her family’s property and in the shed on the accused’s property. I accept that the complainant might be taken to be saying that. Despite Brevet Sergeant Brumpton’s best efforts to be clear in her questions on pages 30 and 31 of the interview, it is possible from the text that the complainant is referring not to other locations where the accused digitally penetrated her vagina, but rather, other locations where the accused improperly touched her. For the purposes of assessing the complainant’s credit I think I should accept Mr Allen’s interpretation.
Contrary to the four locations referred to in the interview, the complainant said in court that the accused only digitally penetrated her vagina on two occasions. Both of those occasions occurred in the Nissan Hut (T 386).
Mr Allen submitted that the complainant was inconsistent in her account of the accused sucking her breasts. In court she said that that had happened only twice, once in the bedroom, and once in the Nissan Hut (T 70). In her interview she implies that that activity occurred on more than two occasions. That implication arises from her answers on page 16 line 754-761. Brevet Sergeant Brumpton is there asking her about the allegations that the accused was sucking her breasts in the bedroom. This exchange took place:
Q. So he’s sucking your nipples. So both of your breasts or just one of them?
A. Um, normally just one, like.
Q. Okay.
A. Whichever one he gets to.
I accept that the implication Mr Allen proposes is open, ie that the complainant meant that the accused engaged in multiple acts of that sort. However, it may also be that if the complainant’s attention had been specifically drawn to the number of occasions on which that activity occurred, the complainant might have said twice. That is what she said in court when she was specifically asked. In the interview the complainant was not specifically asked how many times that activity had taken place.
The final inconsistency relates to the differences in the complainant’s account of the alleged digital penetration of her vagina in the Nissan Hut on the last occasion any offending took place. In the interview (pp 27-29) Brevet Sargent Brumpton is questioning the complainant about that occasion. The complainant said the accused digitally penetrated her vagina when he touched her in that area. At times during that part of the questioning the complainant appears to be talking about activity of that sort on other occasions. However, when Ms Brumpton asks the complainant to focus on this last occasion in the Nissen Hut the complainant goes on to describe penetration on that occasion (p28 line 1363).
In examination-in-chief the complainant was asked about the accused touching her in the Nissan Hut (p 68-69). The complainant said that the touching in the Nissan Hut occurred between 10 and 15 times. The touching gradually got worse over time. Mr Wilson asked whether on the first occasion something occurred in the Nissan Hut, did the accused put his finger in her vagina, or did that occurr later. The complainant said it occurred later (T 69 line 7). She was not specifically asked in examination-in-chief whether such activity occurred on the last occasion in the Nissan Hut.
In cross-examination the complainant was asked how many times the accused had digitally penetrated her vagina in the Nissan Hut. The complainant said twice. The complainant said that these occasions were not at the start but were later on. Mr Allan then confirmed with the complainant that the last occasion of any offending was in the Nissan Hut. He then asked this question: “On that occasion, is this right: that John did not put his finger or fingers inside your vagina?”. The complainant replied “Yes”. Mr Allen then went onto another topic.
That question might well have given the complainant the impression that she had at some earlier stage said that no penetration had taken place on the last occasion in the Nissan Hut. In fact she had said it did occur on that occasion. She had said so in the interview. In examination-in-chief she had said digital penetration did occur in the Nissan Hut, but later than the first occasion.
I accept that there is inconsistency between the complainant’s interview and her cross-examination on this topic, but the inconsistency arises in circumstances where I would not be willing to place great weight adverse to the complainant.
Mr Allen submitted that the complainant’s account is intrinsically unlikely. The disparity in ages between the accused and the complainant makes it unlikely. The accused has never offended against the law. It is unlikely that the accused would offend in circumstances where there was a great risk of detection. The complainanat’s family were nearby. Most of the offending is alleged to have taken place on the complainant’s family’s property. There is no forensic or medical evidence supporting the complainant’s account.
There are inconsistencies of account in the complaint to Ms Henrikkson. The complainant makes no mention of the accused committing fellatio. Ms Henrikkson’s notes, and her witness affidavit, record the complainant saying that the accused had asked her to come into the Nissan Shed, “but I don’t go”. Ms Henrikkson said in Court that the complainant had actually said that the accused had asked her to go into the Nissan Shed but she did not want to go.
Mr Allen drew attention to Ms Henrikkson’s observations that she understood the complainant to be saying that the speaker at the Craft Night had caused her to realise that she had been sexually abused. That is how Ms Hendrickson interpreted the complainant’s words that the speaker’s presentation had “hit her”. Mr Allen submitted that while someone might come to realise they had been sexually harassed by some sexual comments, people cannot “come to realise” they have been sexually abused. People know whether sexual acts have occurred or not.
Mr Allen submitted that, while it may be possible that some verbal sexual harassment by the accused towards the complainant had occurred, I could not be satisfied beyond reasonable doubt that the accused had offended in the way that the complainant alleges.
Consideration
I found the complainant to be an impressive witness. In my view she was doing her best to answer questions truthfully and accurately, both in the interview and in court.
Despite some inconsistencies in her evidence her account was detailed. She spoke with some clarity about the sorts of things the accused was doing to her and where they took place. For example she said she only went into the accused’s bedroom on one occasion. She detailed the behaviour she said occurred then. She described that as the worst incident. It would not be improbable that if the accused was offending in a sexual way with the complainant, the most invasive behaviour might occur in the bedroom, rather than a shed, and in the privacy of the accused’s house while his wife was away.
The complainant distinguished between the offending in other locations. Some incidents occurred in the accused’s shed and the sheds on the complainant’s family’s property, but the majority occurred in the relative privacy of the Nissen Hut. The complainant’s father had seen the accused and the complainant coming out of the Nissen Hut although he did not think anything of it at the time.
The complainant gave a credible account of the behaviour gradually escalating over time, beginning with touching over the clothing to touching underneath.
It is true, as Mr Allen submits, that the complainant was somewhat discursive, particularly in the interview with Brevet Sergeant Brumpton. She was less discursive in court. However the tendency of the complainant to speak in generalities when Brevet Sergeant Brumpton was trying to focus her attention on a specific incident does not, in my view, tell against her credit. On the contrary, it may indicate that the complainant was having difficulty identifying behaviour on a specific occasion when similar incidents have occurred many other times. So when Detective Brumpton attempted to focus the complainant’s attention on a specific occasion she would sometimes reply by saying words like “he would normally do …”. That is the sort of evidence and reasoning understood by the High Court in R v Dennis Bauer (a pseudonym) [2018] HCA 40 at [91]. There is credible frankness when the complainant volunteered that at times the offending gave her sexual feelings.
Nevertheless, Brevet Sergeant Brumpton did manage to direct the complainant’s attention to three specific occasions, the first occasion in the accused’s shed, the bedroom occasion and the last occasion in the Nissan Hut.
Mr Allen does point to inconsistencies in the complainant’s account of these three incidents, but those inconsistencies are very minor. They may be partly explained by the questions which were asked on those topics, both in the interview and in court. I will not repeat the observations I have made about those matters.
It appeared to me that the complainant was careful not to overstate what she says was happening. When asked whether the accused touched her under or over her clothes she said it started over, but progressed to under. When asked about the instances of penetration of her vagina, she gave several answers which indicated that the penetration was slight.
I agree with Mr Wilson’s submission that there was a degree of telling naivete about the complainant’s answers indicating that she did not do anything while the accused was touching her (“I didn’t have any jobs to do”).
I bear in mind the caution I should exercise before accepting the evidence of the complainant by reason of her interview and evidence being unsworn (section 9 of The Evidence Act).
I also bear in mind that the accused has no prior court appearances. I bear in mind his forensic disadvantage.
I am nevertheless satisfied beyond reasonable doubt that the complainant was truthful and reliable in her account of the accused touching her in the ways particularised in count 1. While I find the act of cunnilingus, particular (g), happened on only one occasion, in the accused’s bedroom, and maybe particular (f) happened on only one occasion, I find that all the other particularised acts occurred more than once. I find that the sexual acts occurred over a period of months from the second half of 2017 to about October 2018. The particularised acts would amount to the offences of Indecent Assault and Unlawful Sexual Intercourse. I find all of the ingredients of the offence of Maintaining an Unlawful Sexual Relationship with a Child proved beyond reason doubt. I need not consider the alternative charges.
Verdict
Maintaining an Unlawful Sexual Relationship with a Child - GUILTY
0
4
1