R v Anesbury - [2013] SADC 176

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANESBURY
Criminal Trial by Judge Alone
[2013] SADC 176
Judgment of His Honour Judge Stretton
20 December 2013
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY
The accused was found unfit to stand trial on 3 counts of aggravated indecent assault. Accordingly the matter proceeded pursuant to Part 8A of the Criminal Law Consolidation Act to a trial of the objective elements of the alleged offences. The accused elected for trial by judge alone. The court considered what the objective elements of the crime of aggravated indecent assault were, noting that the Supreme Court in R v Gillard [2008] SASC 38 observed that the statute excludes “voluntariness, intention, knowledge or some other mental state from consideration on the trial of the objective facts.” The court observed certain difficulties arising from a literal application of this formula when determining what the ‘objective elements’ are of offences where a voluntary act is a fundamental element of the offence.
Held:
1. The objective elements of the three charged offences are established beyond reasonable doubt.
2. The accused is liable to supervision under Part 8A of the Criminal Law Consolidation Act.
Criminal Law Consolidation Act 1935 (SA) Part 8A; Criminal Law Consolidation Act 1935 (SA) s 56(s), 269A, 269B, 269J, 269MB(3), referred to.
R v Gillard [2008] SASC 38, applied.

R v ANESBURY
[2013] SADC 176
Introduction

The accused Reginald Leith Anesbury is an 80 year old man. He lives with his wife in a house in Queenstown. The complainant is a 13 year old girl, 11 at the time of the alleged events, who lived in a house opposite the accused’s house with her mother, father and brother.
It is alleged that in 2011 the accused indecently assaulted the complainant in various ways. He was arrested and charged but by the 2013 trial date he had become unfit to stand trial, necessitating a ‘trial of the objective elements’ of the offences, which occurred at his election before a Judge rather than a jury.
This judgement records the assessment of the accused’s fitness to stand trial, and the course and outcome of the subsequent trial of the objective elements of the offences.
The charges
It is alleged that between 13 and 16 July 2011 at Queenstown in the State of South Australia the accused touched the complainant’s breast (Count 1), licked and sucked her nipple (Count 2) and attempted to touch her vagina (Count 3). The accused is accordingly charged with two counts of aggravated indecent assault and one count of attempted aggravated indecent assault.
Each charge must be considered separately, and the prosecution must ordinarily prove every element of each charged offence beyond reasonable doubt to establish that offence. Similarly, on a trial of the objective elements of any offence, the prosecution must prove beyond reasonable doubt each objective element.
The accused is unfit to stand trial
Application was initially made pursuant to Part 8A of the Criminal Law Consolidation Act (“the Act”) that the court investigate the accused’s mental fitness to stand trial. The accused elected pursuant to section 269B of the Act to have the matter dealt with by a Judge sitting alone. I was satisfied pursuant to section 269J of the Act on the basis of tendered medical reports and other material that reasonable grounds for such investigation existed.[1]
[1] See ruling at T5, 1 October 2013.
To that end a hearing was held at which evidence was called from two psychiatrists and a neuropsychologist, together with other evidence including certain GP assessments.
It is plain from the evidence that the accused suffers cognitive impairment due to vascular dementia. There was however disagreement between the experts as to his mental fitness to stand trial. That disagreement essentially concerned the degree of cognitive impairment required to satisfy the section 269H criteria that the accused be unable to “exercise … procedural rights” and to “follow the evidence or the course of the proceedings”.
On 25 October I held that the accused had been at the time of his psychiatric and psychological assessments, with the proper assistance of counsel, able to understand and exercise his procedural rights, and was, with rest, breaks and the assistance of counsel able to adequately follow evidence and the course of proceedings.[2]
[2] See ex tempore ruling, 25 October 2013.
I noted however that the accused’s condition was degenerative, the assessments had been conducted between April and July 2013, and that the trial date was set for 9 December 2013. Accordingly on the materials there was a significant chance that while he had been fit to stand trial at the time of the assessments, he would not be at the trial date some six months later. Counsel accordingly requested that I not conclude the investigation, but rather order further assessments to be undertaken proximate the trial date.
Further assessments were undertaken in late November 2013, and upon those further assessments the expert evidence became unanimous that the accused was now not mentally fit to stand trial. Counsel concurred, and with their agreement pursuant to section 269MA(5) I terminated the investigation and recorded a finding that the accused is mentally unfit to stand trial.[3]
[3] See ruling at T 2, 29 November 2013.
Trial of the objective elements of the offences must proceed
Having found that the accused is mentally unfit to stand trial, the court must conduct a trial to determine whether the objective elements of the offence are established beyond reasonable doubt.[4] The accused elected that such trial also be by judge alone.
[4] Criminal Law Consolidation Act 1935 (SA) s269MB.
Elements of the ordinary offence of aggravated indecent assault
The elements of the offence of aggravated indecent assault are ordinarily:
1.That the accused assaulted the complainant, an assault being an intentional, non-trivial application of force without lawful excuse.
2.That the assault is accompanied by circumstances which can only be described by any reasonable contemporary standard as indecent.
3.That the victim at the time of the offence was under the age of 14.[5]
[5] Criminal Law Consolidation Act 1935 (SA) s56(2).
What are the ‘objective elements’ of the offence
On a trial of the ‘objective elements of the offence’, the court is required to exclude from consideration any question of whether the defendant’s conduct is defensible on the basis that some exclusion, limitation or reduction of criminal liability might otherwise be available under statute or at common law.[6]
[6] Criminal Law Consolidation Act 1935 (SA) ss269A and 269MB(3).
This concept is not without obvious difficulty and potential ambiguity when dealing with an offence that requires the prosecution to establish a voluntary act sometimes accompanied by a complex specific intent. The offence of indecent assault ordinarily requires an intentional, ie non accidental, application of force. It also, for example, requires proof of an absence of lawful excuse, and often that will require proof of the absence of an intention or belief that might otherwise make the application of force lawful.
The distillation of what is and is not an “objective element” in the case of such an offence is not necessarily an easy or obvious process.
In R v Gillard [2008] SASC 38 the Supreme Court held that “voluntariness, intention, knowledge or some other mental state” are excluded from consideration on a trial of the objective elements. That decision binds this court, and accordingly the prosecution are not required to prove any elements of an offence to the degree that they require proof of voluntariness, knowledge, intention or mental state that might otherwise need to be proven to establish the offence of indecent assault. In other words the prosecution, it seems, are not required to prove voluntariness, intention, knowledge, or any other mental state that might ordinarily be required to establish the offence proper.
The resulting ‘objective elements’ of the offence of aggravated indecent assault, after the required removal of all aspects of voluntariness, knowledge, intent or mental state would appear to be:
1.   That non trivial force of some kind was conveyed from the accused to the complainant.
2.   That the conveyance of force is accompanied by circumstances which can only be described by any reasonable contemporary standard as indecent.
3.   That the victim at the time of the offence was under the age of 14.
The limited nature of the first of these ‘objective elements’ is not without some concern. The application of force without reference to whether that application is either a voluntary or deliberate action by an accused person, would seem on first blush to be all that is required. The application of the principle articulated in R v Gillard would seem to exclude consideration of whether the application of force was voluntary, deliberate or for that matter completely accidental, unintended or even whether that application of force be a conscious act at all. It seems incongruous and potentially concerning that a person found unfit to stand trial could nonetheless have the objective elements established against them, rendering them liable to a range of potentially onerous supervisory orders where an application of force by them was on the evidence involuntary, unintended or accidental.
True it is that such a situation might rarely be able to be characterised as accompanied by circumstances which can only be described by any reasonable contemporary standard as indecent, and accordingly the second element might rarely be established Yet one can posit an extreme case where an accidental act or movement might contact another person in an indecent place, pull down clothing, and the like. In short, objective indecency might be able to occur unintentionally or accidentally.
When I raised this with counsel both submitted that the application of force by the accused needed to be voluntary and deliberate. That has a logical attraction, and is much more consonant with fundamental concepts of criminal responsibility, however it is not necessarily consistent with the words of Nyland J in R v Gillard. This subordinate court is however bound by those words, and must therefore exclude consideration of “voluntariness, intention, knowledge or some other mental state”.
However, with the greatest of respect to Nyland J, in case those words are subsequently adjudged wrong, distinguishable, or have been wrongly interpreted by me, and the first element does require a voluntary act by the accused, and be a deliberate application of force by the accused to the complainant as suggested by both counsel, I will also consider and determine that issue and hence determine whether the alleged applications of force by the accused comprising the first element of each of the three alleged offences have been proven beyond reasonable doubt in respect of each of the three charged offences to be voluntary and deliberate.
The evidence
The complainant gave evidence. She said that she was born in January 2000, making her 11 years old as at July 2011.
She gave evidence that as at July 2011 she lived with her parents and brother at their house in a street in Queenstown, South Australia.[7] The complainant indicated that the accused and his wife lived opposite. Since the complainant and her family had moved in she had got to know the accused. They would chat often, and the accused would help the complainant and her family out in small ways, for example by giving them bread and vegetables. At one point he gave the family a pet bird.
[7] That is a cul de sac, see photo comprising exhibit P4.
The complainant said she enjoyed spending time with the accused. She said she called him ‘Bill’. She would clean the accused’s scooter or help him with his pet birds. She said that she cleaned the scooter about once a month and the accused would give her $2 and a can of drink for that.
The complainant said that a day came when the accused touched her in a sexual way. She recalled it was in the last week of a two week school holiday period in 2011. On that day the complainant said that at about noon the accused came over to her house. The complainant answered the door whereupon the accused said he had some bread for the family and that he would like the complainant to get dressed and come to the accused’s place to get it.
The complainant said that a short time later she went to the accused’s house to get the bread. When she arrived at the house and was standing with the accused under the open roller door to the accused’s garage, the accused asked her if her breasts were growing, to which she said she nervously replied ‘yes’. At this the accused said ‘give us a feel’ and grabbed and briefly squeezed her right breast. The accused then asked whether she was growing any hair ‘down there’, and the complainant said she gave the same answer. He then walked into the kitchen, the complainant followed, and the accused gave the complainant some bread. The accused then said to the complainant ‘give us a kiss’. The complainant said he would usually kiss her on the cheek but he turned his head and kissed her on the lips.
The complainant then went home. She said although she was feeling uncomfortable about what had happened she did not say anything to her mother. Her mother was in the shower. About 5 or 10 minutes after getting home the accused came to the front door again, this time asking if the complainant could clean his scooter. The complainant said she was still wearing her pyjamas, but had put a jumper on.
The complainant went with the accused back to his house but when they arrived at the carport area where the roller door was located the accused asked the complainant if he could look at her breasts. She said she did not really know what he meant by that so she lifted up her jumper and T shirt, revealing her singlet. The complainant said that the accused then told her ‘I can’t see’ and lifted up her singlet, then said to her ‘give us a kiss’ and kissed her breast. She said ‘he like opened his mouth and sort of sucked on it’, and she felt some of his teeth. She said it was only for a second or so. The complainant said it made her feel really uncomfortable. She said that the accused then said ‘I haven’t done that for a while’, and told her not to tell anyone about it. The complainant said she was not sure how to respond so she replied ‘Yeah, I won’t’.
At that the accused walked to the nearby scooter, picked up the bucket and went through the kitchen to the laundry to fill the bucket and get a cloth so that the complainant could start cleaning the scooter. The complainant said she went with the accused to the laundry. As they stood together in the laundry she said the accused bent over and the complainant bumped into him. At that the accused turned around and with his hand touched the complainant on the stomach just above the complainant’s pelvis and started pushing his hands lower. The complainant had her hands in the pockets of her jumper at the front of her body, pushed them down and told the accused ‘Don’t Bill’. At that, the accused laughed, said ‘sshh’ and pointed to the adjacent kitchen where his wife was.
The complainant said that the accused turned around again and went to touch her again, but that she put her own hands down over her vagina and blocked him from touching her there. She again said ‘Don’t Bill’ and he again said ‘sshh’ and pointed to the adjacent kitchen. The complainant said that she then grabbed the cloth, cleaned the scooter quicker than she normally did, and was about to leave when the accused told her to go and get a drink and then to sit down, which she did. The accused then gave her two dollars and they started talking. The complainant said that at this stage she was feeling really nervous and wanted to get out, and she left.
The complainant said that when she went home she told her mother about what had happened, and her mother called her own mother, ie the complainant’s grandmother, who drove over. When her grandmother arrived the complainant and her mother were at her grandmother’s car when the accused’s wife came up and invited them to the accused’s house. The complainant said that when they got there the accused told her he was sorry for what he did and that he didn’t mean to touch her ‘up there and down there’, gesturing to indicate where, and hugged her. The complainant said she was feeling really upset and just walked out. The complainant said that she has not seen the accused or spoken to him since that day.
The complainant described how her parents took her to a police station that day, and that she also spoke to police some months later when they contacted her.
The complainant also gave evidence that for a time before the day in question the accused would on occasion touch her bottom with his walking stick, and that on one previous occasion when they were discussing rabbits he had asked her if she knew what ‘fuck’ meant. She also gave evidence that on a couple of previous occasions he had also turned his head when going to kiss her and kissed her on the lips.[8]
[8] This evidence of the accused’s prior conduct was evidence of ‘discreditable conduct’, led to ‘explain the behaviour of the accused and the complainant’ in relation to the charged events. I was satisfied the statutory criteria for its admission per section 34P of the Evidence Act 1929 had been met and that there was no basis for its exclusion. I have directed myself and used the evidence strictly in accordance with the statutory requirements.
In cross examination counsel had the complainant expand on the help that the accused had given to the family in a variety of ways, and the complainant agreed that she had not seen that help happen for a couple of weeks prior to the day in question. She said her mother had not been upset about that. In cross examination the complainant agreed that from the position where the accused had done things to her in the car port under the roller door, you could be seen from the street.
The complainant was taken through the events in detail, and was broadly consistent with what she had said in evidence in chief. She denied that the events either did not happen or happened differently in a range of ways put to her by defence counsel.[9]
[9] See for example T 63.
It was put to the complainant that she told the police that the sucking of her breast occurred in the laundry, which she denied.[10] She repeated that it did not happen there, it happened in the garage area.[11] She said that when they went to the police station, at the front counter either her dad or her mum and dad did most of the talking to a lady about what happened, then she was taken into a room by herself and was spoken to in private by an officer in a uniform, after which she came out and they were told to go home and that a detective would be sent to talk to them. She said that they had to wait three months for that to then happen.[12]
[10] T 51-52.
[11] T 71.
[12] T 51-52.
The complainant agreed that a typed statement was eventually given to her to read and sign dated 8 May 2012, and she agreed it did not contain reference to the accused saying he had touched her ‘up there and down there’, gesturing to indicate where, as the complainant had said in evidence. The complainant said she wasn’t sure why she did not say that in her statement, but that the accused did say and do that. She had not talked to police again until the trial. She agreed that she first told either the police or the DPP about that when she was proofed shortly prior to trial.

She said she had not discussed the events with her mum since the day, saying she did not like talking about it.[13]
[13] T 67.
She said she spoke to her dad on the day, shortly after she came back to the house but before they all went to the police station. She said that all she told him was that Bill had touched her.[14]
[14] T 68-69.
The complainant agreed with the suggestion by defence counsel that the accused said he was sorry that she was upset, but denied the suggestion that he said he did not know why she was upset.[15]
[15] T 61.
In re-examination the complainant said that she was initially taken to the police station half an hour or an hour after it all happened, and at that time she ‘was feeling all mixed emotions … like angry, upset, uncomfortable’.[16]
[16] T 72.
At the conclusion of the complainant’s evidence my provisional impression was of a witness who gave evidence in a straightforward, seemingly credible way. She answered questions earnestly and presented well. Her evidence was consistent, and any variation in detail was consistent with what one might expect of a young witness recalling upsetting events that occurred over two years prior to trial. There was nothing rehearsed in her approach, presentation or demeanour. Overall, my provisional initial impression was that she was a good witness.
The complainant’s mother also gave evidence. She described the family’s background and relationships, and how the family had come to live opposite the accused, who she had met as a child and was a longstanding family friend. She described how he would help the family in various ways and how he had got to know the complainant well, forming a kind of ‘grandpa and granddaughter’ relationship with her.[17]
[17] T 75.
The complainant’s mother described the day in question. She said her recollection was that the accused came over at about 9.30 and asked the complainant to come over and pick up some bread, which she did. The complainant returned perhaps 5 minutes later. The complainant’s mother gave evidence that the accused came back about 20 minutes after that and spoke to the complainant about coming over to clean his scooter.
The complainant’s mother said that her daughter went to do that and returned probably 15 or 20 minutes later. She noticed that her daughter was crying, upset and backing up towards the back door. She said her daughter was as white as a ghost, and said ‘Mummy, please don’t make me go back over there again’, to which she replied ‘Why baby?’ to which her daughter replied that Bill had touched her boobs by lifting up her top and biting her on the boob, and touched her ‘down below’ which she understood as her daughter’s commonly used phrase for vagina.[18]
[18] T 79.
The complainant’s mother called her own mother, the complainant’s grandmother, who then drove over. The complainant’s mother met the arriving car, and at that time the accused’s wife came out and invited them to the accused’s house to raise the issue with him. The complainant and the complainant’s mother went there.[19] She said she asked the accused if what her daughter had said was true, ‘and he just laughed and giggled and said that it was just mucking around, he just touched her there and down below, it was nothing’. She said she responded that it wasn’t good, but that the accused was happy and laughing while she spoke to him.[20] I asked her to tell me exactly what was said and she gave evidence about that conversation in slightly different terms:
[19] T 80.
[20] T 80.
A.When we walked in there and she called Bill out. He came out laughing and I said to Bill ‘Is it true what you did to (the complainant)?’ and he just laughed and said ‘It was only just touching’ and I said ‘It wasn’t in an appropriate way’ and he said ‘It was nothing’ and I said ‘Yes, it was’ I said ‘You stuffed up’ (INDICATES)
Q.    And then what happened.
A.    And then we walked out, I walked out of the house with [the complainant].
XN
Q.When his Honour was just asking you a question, you motioned to a part of your body when you said ‘touching’. What part of your body were you motioning.
A.    He said he touched her there and on her bottom.[21]
[21] T 82-83.
The complainant’s mother said that prior to that day she had heard the accused ask the complainant on a couple of occasions whether she had pubic hair down in her private parts, to which the complainant’s mother had responded that it was an inappropriate thing to ask a child.
The complainant’s mother was then cross examined. She expanded on the help that the accused had given the family in small ways over time. She explained that they would pay 50 cents for each phone call he let them make. She agreed that in mid-June 2011 he stopped letting them use his phone, telling her it was because his phone bill was getting a bit high. She said that it did not trouble her.[22] She gave further evidence about the disposition of the two houses and the layout of the accused’s house. She agreed she had purchased a training bra for her daughter at some stage prior to July 2011. She agreed that when the complainant had returned on the first occasion on the day in question she watched cartoons and that she did not notice anything different about her. She was taken through the events of the day again and was broadly consistent with what she had said in examination in chief.
[22] T 85 and 95.
The complainant’s mother was asked about what happened at the police station. She said that her husband did most of the talking at the counter and then a different person a lady officer took the complainant in to be interviewed. She was not sure if that person was wearing a uniform.[23] She said the complainant was taken in first and then she and her husband were invited in as well. She said the lady in the room said that she was just going to write down some information because the person that does that sort of stuff wasn’t available at that time. She said she was pretty sure the lady was writing down things that her husband and the complainant were saying.[24] She said that the complainant had told her that it was in the laundry that the accused lifted up her top, so she the complainant’s mother told the police that.
[23] T 90-91.
[24] T 92.
The complainant’s mother was taken back to certain of the events. She said she wasn’t sure but she thought the accused’s wife rather than the accused had hugged the complainant, and agreed with the proposition put to her that the accused had said ‘I don’t know why you are upset but I am sorry that you’re upset’ adding ‘He knew what she was upset for’. She repeated that when she asked him what he had done he was laughing and joking and did not take it seriously.[25]
[25] T 93.
The complainant’s mother said that she and her daughter had not spoken about the events since that day as her daughter didn’t want to talk about it, although they had talked about how she was feeling about ‘the court and stuff’.[26]
[26] T 94.
Finally she was asked why she did not stop her daughter going to the accused’s house if in fact he had made the earlier comments about her pubic hair. She replied because her ‘daughter loved him like a grandad so she just blew it away’.[27]
[27] T 95.
The final witness for the prosecution was Ms Bowden. Ms Bowden said she was an administrative member of SA Police, ie not a sworn police officer. Ms Bowden gave evidence that she was the person who met the complainant and her parents at the front counter of the Port Adelaide police station when they attended on 14 July 2011. She said her role was to record basic information in the form of an incident report to pass on to qualified police officers for the purpose of investigation. It was not her role to take declarations or statements, particularly from children under 12. She said that even sworn officers had to have special training to do that.[28]
[28] T 100-101.
Ms Bowden said that the family walked in without an appointment, and she spoke at the counter to the father who was in her words ‘very emotional, quite upset, wanting things to be done pretty well straight away’. She said that the complainant did not speak to her at the front counter. Ms Bowden said that she took them all into an interview room where considerable conversation took place with the father again doing most of the talking. She said she could not recall directing any questions to the child although she would have invited her to speak if she was prepared to do so, although she would have made it clear that she was not a police officer. She said her role was not to take a completed statement from the child, which she was not qualified to do. She could not recall either the mother or the child’s demeanour.[29]
[29] T 102-103.
In cross examination Ms Bowden was taken through these events again. She agreed she jotted down some notes while everyone was talking. She agreed that about half way through her notes she jotted down the words ‘whilst in the laundry’, which is what someone must have told her, and that below that note there is a description of a mouth coming into contact with a breast. She agreed that it appears that when she was writing the notes she made she was writing them down in chronological order, in the sense that she wrote down things in the order they were said to her.
The following three facts were agreed.
1.   At about 11.25am on 17 September 2011, Senior Constable First Class Christie Siebum and Senior Constable Koch attended at the home address of the accused, at (address given).
2.   At that time, an interview with the accused was conducted by officer Siebum in relation to the allegations before the court. An audio visual record of that interview was made and placed onto disc.
3.   Exhibit P is a disc of the audio visual recording of the interview with the accused and Officer Siebum on 17 September 2011.
In that interview the accused denied that he had indecently assaulted the complainant, indicating that if he had touched her his wife was next door in the kitchen and if he had touched her why did the complainant not scream. He agreed there was a day when she washed his gopher after which he said her family had come over screaming that he had touched the complainant indecently, but that the mother and father were ‘full of bloody drugs all the time’, that the suggestion that he had rubbed her ‘was a heap of fucking bullshit’, and that since a prostate operation 12 years earlier he had been incapable of any sexual activity. He agreed that he might have commented on a couple of occasions ‘gee you’re getting boobs are you’ but that was ‘only a conversation’. Police concluded the interview by telling the accused he would be reported and could expect to receive a summons in the post in 6 to 8 weeks.
That concluded the prosecution case.
The accused did not give evidence. That was of course his right, and there can be no adverse inference whatsoever against a person for exercising that important legal right that every person possesses. There is never any onus whatsoever on an accused person, and it is always for the prosecution to prove every element of any offence they pursue against any person.
Assessment of the evidence
I have closely considered and reviewed the evidence. I have given close attention to all counsel’s helpful submissions, made orally and in writing. Whilst I have had regard to all those submissions, for brevity I do not set them out in full. In deference however to the emphasis placed on the following by counsel, I indicate that I have paid particularly close attention to the submissions about the overall plausibility or otherwise of the complainant’s evidence, the suggested inconsistencies in the evidence of the complainant and her mother, the suggested previous inconsistent statement about where at the accused’s house the oral contact with the breast took place, the suggested limitations on the evidence of discreditable conduct and complaint evidence, and the effect of the statements by the accused which are suggested to amount to admissions.
I have carefully considered and re-read the evidence of all three witnesses As the proof of the objective elements of each charge relies primarily on the evidence of the complainant I have closely scrutinised her evidence.
I have taken into account that the accused gave a full record of interview to police denying the allegations against him.
My provisional view at the time each of the three witnesses called gave evidence was that each gave evidence in a straightforward way. Overall, each presented well. Whilst there was no suggestion that SA Police administrative staff member Bowden was either untruthful or mistaken, defence counsel did challenge the credibility and reliability of the complainant and her mother. I have closely considered everything submitted in that regard.
There was some difference in the evidence of the complainant and her mother in some respects as to some detail. For example, they put the commencement of contact with the accused at different times of the day in question, and their descriptions of exactly what was said when they attended together at the accused’s house to confront him differed a little. There were some other differences as well. I have carefully considered to what extent if any those differences ought to affect the court’s assessment of their credibility. I take into account that both would have been shocked, upset and emotional at the alleged events of the day, and they were being asked to recall upsetting alleged events over two years after they occurred.
I closely scrutinised the evidence suggested to indicate that the complainant directly or through her parents made an inconsistent statement to SA Police administrative staff member Bowden about where the contact between the accused’s mouth and the complainant’s breast was alleged to have taken place at the accused’s house. If such a statement was made by the complainant it would contradict her evidence at trial as to that issue. I must bear in mind that the notes taken by Ms Bowden from which her evidence was essentially, I assume, over two years later, drawn, neither purport to be a verbatim record of what was said, nor are they necessarily the complainant’s words. Most of the talking was being done by a distraught and emotional father who was going on what his wife had told him about what her daughter had told her, and to a lesser extent what his daughter had said to him. What the father may have said to Ms Bowden was therefore a second or third hand impression of what had happened. Although Ms Bowden said that the father was doing most of the talking, the mother said in cross-examination that she told the police where this happened based on what the complainant told her. That was not put to the complainant however. She was adamant that it took place in the garage.
I consider that the note taken by the SA Police administrative officer is highly unlikely to reflect a statement by the complainant that the contact between the accused’s mouth and the complainant’s breast took place in the laundry. Rather the note is likely to be of a number of separate things said by the father, mother or the complainant, not necessarily in purported chronological order, taken down in note form by an administrative officer who was not attempting to do anything but record as best as she could what was being told to her by up to three people in the order it was being said. I find that the complainant’s mother may well have been the source of this, but if she was, she had mixed up what she was told by the complainant. I accept the complainant’s evidence that she did not say that to the SA police administrative officer. I find that the complainant did not say it to her mother. Accordingly it is not a previous inconsistent statement and it does not adversely affect her credibility thereby.
I have closely considered the fact that the complainant’s police statement did not contain reference to the accused saying, when confronted by the family, that he had touched her ‘up there and down there’ whereas she gave evidence that such a thing was said by the accused.
I have closely considered counsel’s submissions, in particular defence counsel’s submissions that the complainant’s evidence should not be accepted as credible.
I find that the inconsistencies between the complainant and her mother were relatively minor and exactly what one might expect of shocked, upset and emotional people confronted with the alleged events, then trying to recount them over two years later. I find that they were differences in honest recall. I find that those differences do not in the final analysis affect the complainant’s credibility or reliability.
The complainant despite her tender years was an intelligent, clear and forthright witness whose evidence had the ring of truth to it. I accept it beyond reasonable doubt. Her mother was honest but less clear, and while she tried to do her best, I find her recall was not as accurate as that of her daughter, and that consequently her evidence whilst honest is less reliable than her daughter’s evidence. Whilst I generally accept her evidence beyond reasonable doubt, where it differs to that of her daughter I find the daughter’s version established beyond reasonable doubt and the mother’s version honestly mistaken. I find that SA Police administrative officer Bowden was an honest and reliable witness.
I treat the evidence given of the accused’s previous conduct towards the accused strictly in accordance with the Discreditable Conduct provisions comprising Division 3 of Part 3 of the Evidence Act. This was evidence that the accused had previously touched the complainant’s bottom with his walking stick, previously kissed her on the lips, and also previously asked her if she knew what the word fuck meant in the context of the activities of certain rabbits, and previously asked whether she was growing pubic hair. This evidence was led “to assist to explain the behaviour of the complainant and the accused.” In particular it cannot be used to suggest that the accused is more likely to have committed the offence because he or she has engaged in such conduct. In this case it potentially indicates a developing sexual interest in the complainant, a possible ‘testing of the waters’, and it might explain why the complainant may have initially tolerated his behaviour on the day. I find proven beyond reasonable doubt that such behaviour occurred and that it does indicate that the accused had a developing sexual interest in the complainant.
It is agreed that what the complainant said to her mother when she returned to the house was admissible as complaint evidence. It is admissible as complaint evidence pursuant to section 34M of the Evidence Act only to inform the court as to how the allegation first came to light and as evidence of the consistency or inconsistency of the complainant. That might be a consistency or inconsistency with the allegations having occurred, or consistency or inconsistency with the evidence later given at trial. It is important to remember that it is not admitted as evidence of the truth of what was alleged.
I find beyond reasonable doubt that complaint was made as the complainant said it was, which is I find consistent with the complainant having been indecently assaulted as she alleges. I also find the complaint made was consistent with the evidence given by the complainant at trial.
Overall, I accept the complainant’s evidence as to what she says happened to her, beyond reasonable doubt. I find that where her evidence differs to that of her mother her evidence is to be preferred but that such inconsistency is in any event what one would or might expect in all the circumstances of honest witnesses recalling traumatic events and jumbled conversation a considerable time later. Whilst strictly unnecessary to have recourse to it, I repeat as a matter of completeness that I find that the evidence of discreditable conduct indicates that the accused had a developing sexual interest in the complainant, and that the complaint evidence is consistent with the events having occurred as alleged.

Defence counsel submitted that even if the complainant’s evidence is accepted, that there nonetheless remained a reasonable possibility that the alleged touching said to comprise count 3 was accidental rather than deliberate, given the close confines of the laundry and all the circumstances. I find that the repeated actions of the accused as described by the complainant, together with his indication to the complainant to ‘sshh’ while pointing to the kitchen, establish beyond reasonable doubt on the totality of the evidence that such action was deliberate and not accidental.
Conclusion
I find proven beyond reasonable doubt that on 14 July 2011 under the open roller door of the accused’s garage at his Queenstown house in the state of South Austtralia the accused asked the complainant if her breasts were growing, said ‘give us a feel’ and grabbed and squeezed her right breast. I find that this was a non-trivial application of force conveyed from the accused to the complainant. I find that the grabbing of an 11 year old child’s breast in this factual scenario could only be described by any reasonable contemporary standard as indecent. I find that the complainant was 11 at the time. Accordingly I find proven beyond reasonable doubt that the objective elements of aggravated indecent assault charged per count 1 of the information have been established beyond reasonable doubt.
For completeness, I also find proven beyond reasonable doubt that the application of force by the accused in grabbing and squeezing the complainant’s breast was a voluntary, non-accidental and deliberate act.
I find proven beyond reasonable doubt that on 14 July 2011 under the open roller door of the accused’s garage at his Queenstown house in the state of South Australia the accused asked to see the complainant’s breasts, lifted up her singlet, said ‘give us a kiss’ and kissed her bare breast also making contact with his teeth. I find that this contact with the complainant’s breast was a non-trivial application of force conveyed from the accused to the complainant. I find that the kissing of an 11 year old child’s bare breast in this factual scenario could only be described by any reasonable contemporary standard as indecent. I find that the complainant was 11 at the time. Accordingly I find proven beyond reasonable doubt that the objective elements of aggravated indecent assault charged per count 2 of the information have been established beyond reasonable doubt.
For completeness, I also find proven beyond reasonable doubt that the application of force by the accused in his oral contact with the complainant’s breast was a voluntary, non-accidental and deliberate act.
I find proven beyond reasonable doubt that on 14 July 2011 in the laundry of the accused’s Queenstown house in the state of South Australia the accused pushed his hand or hands against the complainant’s stomach and moved them down her body towards her vagina. I find that this was a non-trivial application of force conveyed from the accused to the complainant. I find that pushing the accused hand or hands down an 11 year old child’s stomach towards her vagina in this factual scenario could only be described by any reasonable contemporary standard as indecent. I find that the complainant was 11 at the time. Accordingly I find proven beyond reasonable doubt that the objective elements of attempted aggravated indecent assault charged per count 3 of the information have been established beyond reasonable doubt.
For completeness, I also find proven beyond reasonable doubt that the application of force by the accused in pushing his hand or hands against the complainant’s stomach and moving them down towards the complainant’s vagina was was a voluntary, non-accidental and deliberate act performed with the intention of touching her vaginal region through the complainant’s outer clothes.
Finding that the objective elements are proven
Count 1 The objective elements of the offence of aggravated indecent assault are established beyond reasonable doubt.
Count 2 The objective elements of the offence of aggravated indecent assault are established beyond reasonable doubt.
Count 3 The objective elements of the offence of attempted aggravated indecent assault are established beyond reasonable doubt.
I will hear counsel as to what further or other orders are required pursuant to Part 8A.
Declaration that the accused is liable to supervision pursuant to Part 8A of the Criminal Law Consolidation Act
Where the court is satisfied beyond reasonable doubt that the objective elements of a charged offence are established, the court must also declare the accused to be liable to supervision under Part 8A of the Act.
As the court is so satisfied, the court hereby declares Reginald Leith Anesbury liable to supervision under Part 8A of the Criminal Law Consolidation Act.
I will now hear any evidence or submissions as to what form that supervision should take.