R v Aruop - [2016] SADC 109

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ARUOP
Criminal Trial by Judge Alone
[2016] SADC 109
Reasons for the Verdict of Her Honour Judge Davison
2 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with one count of aggravated indecent assault. It is alleged that he indecently assaulted the 13 year old daughter of a family friend. Issues of reliability of the complainant's account arose.
Verdict: Not guilty.
Evidence Act 1929 (SA) s 34; Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
R v J, JA (2009) 105 SASR 563, considered.

R v ARUOP
[2016] SADC 109

Bith Mabuac Aruop is charged with one offence that is alleged to have been committed against the 13 year old complainant, DM, who is the daughter of his friend SK. It is alleged that Mr Aruop went to the complainant’s family home on the afternoon of 2 April 2015. Later that day the accused drove the complainant to her soccer training at West Lakes Shore. Once training had finished the accused and the complainant drove to Arndale shopping centre to pick up the complainant’s sister, MS, from work. On this drive it is alleged that the accused rubbed DM’s upper thigh, on top of her shorts and on her skin, and rubbed her upper back, on top of her shirt. The allegation of the touch to the leg is the subject of the charge.
Mr Aruop pleaded not guilty to the charge of Aggravated Indecent Assault and elected for trial by judge alone. The trial proceeded without a jury.
Charge
The accused is charged with the following offence:
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Bith Aruop on the 2nd day of April 2015, at West Lakes Shore, indecently assaulted, DM, by stroking her thigh.
It is further alleged that at the time of the offence DM was under the age of 14 years.
General directions
I have directed myself as follows.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence charged. An accused person is presumed innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence I accept satisfies me beyond reasonable doubt of his guilt. In these reasons if or when I use the words “proved,” “established,” or “satisfied,” in each case, I mean to an extent which excludes a reasonable doubt.
If the evidence I accept fails to satisfy me beyond reasonable doubt on any or all of the elements of the offence under consideration, then the accused remains innocent and I must return a verdict of not guilty.
If I am satisfied that there is an explanation consistent with the innocence of the accused or I am unsure where the truth lies, then I must find that charge has not been proven beyond reasonable doubt and I must find the accused not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of the witness’ evidence.
The accused elected not to give evidence. He was not bound to give evidence. He has a right to decline to give evidence and I must not draw any adverse inference against him or the case he puts forward by the exercise of that right. His silence in this court does not constitute an admission against him and it cannot be used to fill the gaps in the evidence tendered by the prosecution. It also cannot be used as a makeweight in assessing whether the prosecution have proven the case beyond reasonable doubt.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
DM gave evidence with special arrangements in place. I must not draw an adverse inference against the accused as a result of these arrangements nor allow them to influence the weight I give to the evidence of the witness.
Aggravated Indecent Assault
There are three elements of the offence of Aggravated Indecent Assault. Each must be proven beyond reasonable doubt:
1.     That the accused assaulted DM. An assault is the intentional and unlawful application of force to another person. The application of force need not cause any injury. That application of force need not be great. Any touching or handling would be enough. It must be intentional, so purely unintended or accidental touching would not be sufficient.
2.     The force must be unlawful, that is, without lawful justification or excuse.
3.     The assault must be accompanied by or occur in circumstances of indecency. It is a matter for me to consider whether by reference to reasonable and contemporary standards that the behaviour of the accused is proven as indecent. I must be satisfied that the conduct had a sexual connotation.
The circumstance of aggravation is that the complainant is under the age of 14 at the time of the alleged offence.
The evidence
The complainant gave evidence. She said that on 2 April 2015 Mr Aruop came to her house. When he arrived she was in her bedroom. Her brother was home but he left sometime after Mr Aruop arrived. DM said that when she came out of her bedroom and into the living room she spoke to Mr Aruop about the music videos he was watching on his phone. They were both sitting on the couch and the accused said that the “girls [were] beautiful like her”.[1]
[1] T 13 line 15.
The complainant also said that the accused gave her money. He gave her $20 and said “use this for your lunch.”[2] He then gave her another $10 and said “this is more money”.[3] Later that evening the complainant said that Mr Aruop drove her to soccer training at West Lakes Shore. On the drive he complimented her and kept saying how beautiful she was. She said that he waited in his car for her to finish training.
[2] T 13 line 34.
[3] T 14 line 1.
After soccer, the complainant said that they went to pick up her sister, MS, from work. She sat in the front passenger seat. During this drive the complainant said that she and Mr Aruop had a conversation but she does not remember what was said. DM said that on the drive the accused rubbed her upper thigh and her back.[4] In response she said “don’t touch me”.[5] The complainant was wearing her soccer shorts. She said Mr Aruop rubbed her leg “for like a minute” on her skin and on her shorts with his hand but he did not rub underneath her shorts.[6] The complainant said that after Mr Aruop touched her thigh he then rubbed the top of her back. She was wearing a top and the rubbing occurred on top of her clothing.[7] She felt very uncomfortable and scared.[8] She said she told the accused to stop. He stopped touching her and said “don’t tell your mum”.[9]
[4] T 15.
[5] T 15 line 24.
[6] T 16 line 3.
[7] T 16.
[8] T 20.
[9] T 16 line 38.
The complainant said the first person she told about the incident was her sister MS. She made the initial complaint on the same day it occurred. When the complainant and accused arrived at Arndale she waited for her sister to finish work. The accused went to get some food. While the accused was getting food the complainant spoke to MS and told her that the accused ‘gave [her] some money and rubbed [her] thigh and [her] back’.[10] She told her sister that the rubbing happened ‘in the car, coming to pick her up’.[11] MS said to DM that when they got home she was going to tell their mum. When the accused came back from getting food he drove DM and MS back to their house. The two girls sat in the back seat of the car together. When they arrived home their mother, SK, was not home. About 10-30 minutes later SK came home. When SK came into the house the complainant heard her yelling at the accused but does not remember what she said.[12]
[10] T 18 line 24-24.
[11] T 18 line 36.
[12] T 19.
The complainant said that she gave the $30 back to the accused sometime after soccer training.[13]
[13] T 20.
The complainant was cross-examined by Mr Weir. The complainant gave evidence that when she came out of her bedroom and into the lounge room the accused was sitting on the lounge drinking beer and that she sat on the computer chair and watched TV. She did not sit on the lounge with the accused.[14] The complainant said that the $30 given to her by the accused was actually for her birthday that was about two weeks earlier. The complainant said in cross-examination that she could not remember whether she saw the YouTube videos Mr Aruop was watching and did not know if he showed them to her at the time.[15] The complainant confirmed that the accused did not say that she was ‘a beautiful girl’ at this time. She said he told her to keep the $30 a secret.[16]
[14] T 22.
[15] T 23.
[16] T 24.
It was put to the complainant that the accused never told her that he loved her, but she was adamant that he did. She confirmed that the accused did not touch her on the way from her house to soccer. The complainant said that when they arrived at soccer training the accused got out of the car and watched from the sidelines. He did not stay in the car as she initially said. When training finished, the complainant and the accused walked back to the car together and Mr Aruop carried her sports bag.[17] The complainant confirmed that she got into the front passenger seat. She does not remember the accused opening the driver’s side and leaning into the car to hand her the sports bag. She could not recall him placing her sports bag between her feet, in the footwell of the front passenger seat. She did not remember the bag being between her feet when they drove to Arndale. The complainant did agree that she did not have the bag when she sat in the front passenger seat and that Mr Aruop would have handed that to her at some stage.[18] The complainant did not recall saying ‘why did you touch me’ when the accused handed her the sports bag nor did she recall him saying that he was simply giving her sports bag to her. The complainant recalled the accused asking her why she was scared but said that this did not happen after he had placed the bag between her feet. It did happen some time in the car after soccer before they arrived at Arndale and she thinks he said that in response to her saying ‘don’t touch me’.[19] The complainant could not recall whether Mr Aruop said ‘why are you scared, I’m like a father to you’ but said that it could have happened.[20]
[17] T 25.
[18] T 27-28
[19] T 31-32.
[20] T 33 line 17-18
The complainant said her shorts sat about halfway between her hips and her knee when standing. The complainant agreed that the shorts would have been covering her upper thigh but that Mr Aruop’s hand definitely touched her on the shorts and skin. The complainant confirmed that the accused rubbed her leg a couple of times. She also confirmed he rubbed her back and this took place after soccer training on the way to Arndale and that nothing happened in the car ride from her home to soccer training.[21] The complainant could not remember if she told her sister that she was touched by Mr Aruop in the car driving from home to soccer training but says that he definitely touched her on the way to Arndale to pick up MS.[22] The complainant confirmed that the accused did not touch the front of her body and that she did not tell her sister that he touched her on the front of her body.[23]
[21] T 28-29.
[22] T 30.
[23] T 31.
The complainant said that the accused’s hand rubbed up and down her thigh a couple of times. He rubbed her in the middle of her back near her spine in the same manner he rubbed her on the leg. He rubbed her back for about 15 seconds and this happened after he touched her on the thigh. The complainant could not remember if Mr Aruop said anything when he was touching her.[24]
[24] T 34-35.
In re-examination the complainant said that the car was moving when she was being touched by the accused.[25]
[25] T 35.
The prosecution called MS. MS confirmed that she was working on 2 April 2015 at KFC in Arndale. She stated that the accused and her sister DM picked her up from work.[26] MS also confirmed that she spoke with DM after she finished work at the shopping centre. MS said that DM was talking really fast and said that the accused touched her on her thighs. MS could not remember the exact words DM used. She said the complainant said that the accused touched her in the car on the way to pick her up. MS said that DM also told her that Mr Aruop had touched her on the upper arm. They were the only two places DM told MS she was touched.
[26] T 36-37.
The complainant told her sister that Mr Aruop had given her money.[27] MS recalled DM was very nervous and shaking. DM said the words ‘our house’ and then Mr Aruop started touching her, gave her money and told her she was beautiful and that he wanted her. DM said that Mr Aruop touched her thighs very softly.[28] DM also said that Mr Aruop touched her on the upper arm very softly and slowly. MS said she does not think she asked DM any questions but said she was “very surprised”.[29] The only thing MS told DM was “to be quiet” so when they got home they could “tell [their] mum.” [30] MS stated that the conversation they had was not for that long. When Mr Aruop came back they went back home. When SK arrived home MS said she went outside before she came into the house and told her what happened with DM and Mr Aruop. SK went inside and confronted Mr Aruop. MS said she was able to hear some parts of the conversation between the accused and SK. MS said she yelled at Mr Aruop and said “how could you do that to my daughter”.[31] The accused kept very quiet and did not say much but did say that DM was lying and making things up. MS said her mum told her to call the police and she did.
[27] T 38.
[28] T 39.
[29] T 40 lines 13-14.
[30] T 40 lines 17-18.
[31] T 41 lines 11-12.
MS was cross-examined. MS was certain that DM did not tell her that Mr Aruop had touched or rubbed her on the back. She did not remember telling the police that DM had said she was touched on the legs and on the back.[32] MS could remember giving a statement on 14 April 2015, approximately 12 days after the incident, to police. MS said she could now remember DM saying that the accused touched her on the upper back very softly, similar to a patting motion, but could not give a reason as to why she could not remember prior to reading her statement. She also said that she had an independent memory of DM telling her that she had been touched between home and on the way to soccer training. MS also confirmed that she gave no description to the police that DM said she was touched slowly or softly when she provided them with a statement.
[32] T 43.
MS said again that she sat in the back seat of Mr Aruop’s car with DM on the way home from Arndale.[33] When MS and DM’s mum arrived home she told her mum that DM had said that Mr Aruop touched her and she thinks she told her that he had touched DM on the thighs. MS said her mum became very angry and violent towards Mr Aruop and she hit him. Her mum’s friend, Mama Boris, was also there and MS said that she also became violent towards Mr Aruop by striking him and preventing him from leaving the house.
[33] T 45-46.
MS said that after she called the police she waited for them in the front yard. She did not know exactly where the complainant was at this time but said that she was in the house somewhere.[34] MS said she spoke to two police officers when they arrived at the house. MS agreed that the police officers made notes in their notebook but does not remember saying to the police officer when they arrived that the accused had touched DM over her clothing, over the front of her body. She did not see what the police officer wrote down in his notebook.[35] MS could not remember if DM ever told her that she had been touched over the front of her body. In the 12 days between the date of the incident and giving her statement MS talked to DM about what happened but not a lot because DM did not want to remember it.[36]
[34] T 47.
[35] T 49.
[36] T 49.
In re-examination, MS told the court that she said that Mr Aruop touched DM on the upper arm because that is what she remembered being told at the food court in Arndale. She cannot remember DM telling her that she was touched on the back.[37]
[37] T 51.
The prosecution called SK, the mother of DM. SK said she was out shopping on the day of the alleged incident. While out shopping she got a phone call from the accused saying that he had just arrived at her house.[38] SK said that the accused called her several more times that day. The accused called SK about DM’s soccer training because she was running late and she asked him if he could take her. SK said she got home just after 6pm and Mr Aruop and DM had already left the house. She tried calling Mr Aruop but he had left his phone at her house so she did not know whether he was picking DM up from soccer training. As a result SK said that she went to the place DM played soccer but when she got there she could not find them. She then called MS to tell her that she would come pick her up from work but MS told her that Mr Aruop and DM were on the way to pick her up. When she arrived home Mr Aruop was still at her house. While getting the shopping out of her car she said her children told her about the incident with Mr Aruop. She then went and confronted Mr Aruop and asked him what had happened and asked him if it was true what he did.[39] She said to him “what the children are telling me, it is true? Tell me what happened, is it true?” Mr Aruop said to her “no, it’s not true”.[40]
[38] T 54.
[39] T 55-56.
[40] T 56 lines 31-33.
On the day of the incident SK said that DM told her that Mr Aruop gave her $30 even though it was not her birthday and then he asked DM to give it back to him. She did not know that the accused was giving DM money.[41]
[41] T 57-58.
SK was cross-examined. SK gave a statement to the police some months after the incident occurred on 22 January 2016. She cannot read English but the policeman read it to her son who then translated it to her.[42] SK does not remember saying that ‘normally he [Mr Aruop] would give me money to buy something’ to the police.[43] SK said that the question the police asked her was if Mr Aruop gave her money to buy presents for the children and she said no and that it was only on the occasion of the twins’ birthday that he took them out and bought gifts for them. This was the only time Mr Aruop bought birthday gifts for her children. SK denied that when she confronted Mr Aruop on the night of the incident, she hit him. SK said she was too old to be able to beat him.[44] SK said that when she came home DM was crying and told her that Mr Aruop had been touching her all over her body and that he had given her $30 but that he told her to give the $30 back because he did not want SK to know. DM told her that Mr Aruop touched her all over her body and told her she was beautiful and that she ‘looked good’. She also said that DM told her she was crying and pushing his hands away. DM said that this touching of her body happened when DM’s brother left the house.[45] DM told her mum that she was seated in the sitting room with the accused and he started touching her all over. She would move away and he would follow her. SK said DM said that the accused touched her down the front from her shoulders to her thighs. He also told her that she was beautiful and looked like a Somali girl. DM told her that the accused was touching her all over her body and that she would push his hands away but he would follow her. She said that this happened before soccer training at the house.[46] Mr Aruop kept calling SK saying “Where you? Where you?” and SK replied “I’ll be there in two minutes.” [47] She did not know what was happening.
[42] T 59-60.
[43] T 61-62.
[44] T 61-62.
[45] T 62.
[46] T 63.
[47] T 63 lines 14-16.

DM told SK that when Mr Aruop dropped her to soccer training DM first sat in the back and that Mr Aruop told her to come and sit in the front passenger seat. When they were driving Mr Aruop was touching her all over and on her thighs.[48] He also said to her “I’ll give you $30 but don’t tell your mum”.[49] When Mr Aruop called SK and gave the complainant the phone she did not mention anything about the accused having touched her at the house. When SK made her statement to police on 22 January 2016 it was put to her that she made no mention of the touching that occurred at the house prior to soccer training. SK said that she could not recall what she told police. SK then said that she told the police that Mr Aruop was touching DM while they were still at the house.
[48] T 63-64.
[49] T 64 line 10.
Senior Constable Eamon McGillion was called by the prosecution. The prosecution tendered a record of interview conducted on 2 April 2015 between the accused and Senior Constable Eamon McGillion. The record of interview was difficult to follow and in some places it was hard to understand. There was also some confusion in relation to the accused’s understanding of some of the questions put to him and therefore his answers did change from time to time as the interview progressed. I have kept this in mind when summarising what Mr Aruop said in the interview.
The accused has known the mother of the complainant, SK, for three years. He went to SK’s house, at Port Adelaide, on 2 April 2015 at about 2pm to see her but when he arrived SK was not there. He brought a 6 pack of beer with him. The complainant and her older brother were home when Mr Aruop arrived but the brother left a short time later. A couple of minutes after he left the house the accused heard a knocking and found the complainant in her room playing on the computer. He said ‘you are the one making the noise’ and told her that her brother had left to go to the Arndale Shopping Centre. The accused was sitting at the outside table drinking and the complainant came out and sat with him. At around 5pm she asked the accused to call her mum because she had to go to soccer training that evening. DM spoke to her mum before putting the accused on the phone. SK asked Mr Aruop if he could drop the complainant to soccer training. Before taking the complainant to soccer training Mr Aruop had consumed three beers from the 6 pack he had brought to the house.
DM directed the accused to soccer training near West Lakes. The accused waited until DM finished soccer training. The accused walked back to the car with the complainant after she had finished training and carried her bag for her. When she got inside the car he handed DM her bag and she said to the accused “why you touch me?” Mr Aruop replied “I am not touching you I’m just giving you your bag.”[50] The accused also asked the complainant why she said he was touching her and why she was scared.[51] He told her that he was “like [her] father”.[52] The complainant did not say anything to this and just kept quiet. After this, the accused drove them to Arndale to pick up her sister. Mr Aruop said nothing happened on the drive to Arndale Shopping Centre.
[50] MFI P2 page 18 line 5-6.
[51] MFI P2 page 19.
[52] MFI P2 page 19 line 18.
When they arrived at Arndale the accused bought the complainant some food and then told her to wait for him while he went to buy some food for himself. The accused met back up with DM and MS, who had by then finished work, and drove them both home. SK arrived home sometime after the accused and the girls. Mr Aruop went outside and brought some bags into the house and saw the children talking to SK outside. After SK spoke to the children she came in and started fighting with that accused, saying “why did you touch my daughter, why did you touch her body?”[53] The older daughter told her mum to stop fighting with Mr Aruop and separated her from him. SK told the accused that she will “put [him] in the trouble” and the police were called.[54] The accused said he did not touch the complainant on the upper right thigh but that she asked him why he touched her when he handed her bag to her. He denied touching her on the back and says that he may have touched her leg accidentally when handing her sports bag to her, which was misinterpreted.[55]
[53] MFI P2 page 20 line 30.
[54] MFI P2 page 20 lines 39-40.
[55] MFI P2 page 24-25.
That completed the Crown case.
The accused elected not to give evidence and did not call any witnesses.
Counsel addresses
Ms Barnes for the prosecution said the most important evidence in the matter was that given by the complainant because she is the only person that is able to give evidence about what she states happened in the car. It was put to me that the complainant was a credible and reliable witness. Ms Barnes submitted that the complainant gave her evidence openly, she was responsive to the questions that were put to her, remembered what had happened confidently and remembered the most important part of her evidence, which was the alleged touching in the car.
It was submitted by Ms Barnes that the accused demonstrated a sexual interest in the complainant when he told the complainant that she was beautiful like the women in the YouTube videos he was watching. Ms Barnes emphasised that the complainant did not waiver on the fact that the accused rubbed her upper thigh and her back in the car on the way from soccer training to the Arndale Shopping Centre.
Ms Barnes said that during the course of the record of interview there was some suggestion that the touching of the complainant was accidental and occurred when he placed the complainant’s sports bag in the passenger foot well. Whilst the complainant did remember the accused carrying her bag and it being in the car at some stage but she did not remember the accused putting the bag there. Ms Barnes submitted that the complainant stated that it was not possible that the touching occurred when the bag was handed over to her because Mr Aruop touched her a couple of times. Ms Barnes submitted that the complainant’s description of the touching indicated that it was not accidental but rather, deliberate.
Ms Barnes further submitted that the complainant’s sister, MS confirmed the complainant’s evidence that DM and the accused had come to pick up her up from work at Arndale on 2 April 2015 and that at the shopping centre the complainant told her about being touched by the accused. Ms Barnes submitted that the important part of this complaint was that it was made to MS contemporaneously with the alleged assault and was made at the first opportunity the complainant had to tell someone about what allegedly happened. Ms Barnes submitted that I could use this complaint to MS to demonstrate, not only as an explanation of how the allegation first came to light, but to also show consistency of conduct on the part of the complainant.
In relation the inconsistency between what the complainant said in her evidence and what MS recalled, Ms Barnes again submitted that it was the complainant’s evidence that was most crucial. She also stated that MS told the court that her sister was talking really fast when she told her what allegedly happened and that the conversation took place in a fairly short space of time. Ms Barnes went on to say that this could explain how and why there were differences in what MS was told or remembers being told by the complainant. Ms Barnes submitted that the important part was that both the complainant and MS were clear that the complainant told MS just after the alleged incident occurred, that the complainant had been touched on the thighs by the accused in the car.
In relation to the evidence given by the complainant’s mother, SK, regarding some other touching of the complainant by the accused that occurred in the house, Ms Barnes submitted that I should prefer the evidence of both the complainant and MS. Ms Barnes submitted that SK was mistaken about when and where her daughter was touched. She further submitted that any touching said to have occurred at the complainant’s house was not part of the prosecution case.
In regards to the $30 that the complainant said she received from the accused, Ms Barnes submitted that there was not anything greatly significant about the accused giving DM the money. She does say, however, that there is something significant about the accused telling the complainant to keep the money a secret. When it is taken in the context of the accused telling the complainant that she was beautiful and that he loved her, Ms Barnes stated that this suggests that some grooming conduct occurred immediately prior to the alleged offending. Ms Barnes further submitted that this ‘grooming’ along with the rubbing of the complainant’s thigh, and the age of the complainant, demonstrates that the accused had a sexual interest in the complainant and the alleged touching had a sexual connotation to it.
Mr Weir addressed me on behalf of the accused. He submitted that the prosecution case rises and falls on the evidence of the complainant.
Mr Weir said that right from the beginning the accused has been full and frank with the police. On the basis of the explanation the accused gave to the police and the complainant’s evidence regarding the allegations that were said to have occurred in the car, Mr Weir submitted that it is a reasonable possibility that if any contact did occur between the complainant and the accused, it occurred when the accused handed the complainant her sports bag. Mr Weir further submits that I can infer from the evidence that the accused did hand the complainant her sports bag and, on his account, he placed it between her feet. The accused was unable to say whether contact did in fact occur, but it was put forward by Mr Weir that there is a reasonable possibility that contact occurred at this point on the basis that the accused said the complainant said the words ‘why did you touch me’ after he handed her the sports bag.
Mr Weir submitted that there is an issue of credit with the complainant’s evidence. After assessing the evidence of the complainant against the accused record of interview, Mr Weir said that the accused’s explanation was forthright and forthcoming. Mr Weir put to me that if after assessing the complainant’s evidence, I simply do not know where the truth lies, then I must acquit the accused.
Mr Weir said that the evidence given by the complainant’s mother should provide some doubt in my mind and it revealed reasons to be concerned as to the credibility and reliability of not only her evidence, but the evidence given by the complainant. SK’s evidence that her daughter had told her touching occurred over a period of time at the house sits uncomfortably with the evidence given by the complainant and MS. Mr Weir put to me that, unless I rejected SK’s evidence as being either untruthful or unreliable, the only inference I can draw is that the information SK gave to the court came from the complainant.
Mr Weir also said that the evidence given by the complainant’s sister contained various permutations as to what the complainant actually told her. He submitted that the prosecution was relying on MS’s evidence to show a consistency in the complainant’s conduct. Mr Weir stated that the concerning part about MS’s evidence is that the statement she gave to the police 12 days after the alleged incident is said to have occurred stated that she had been told by the complainant that the accused had touched DM on the back, however in court MS maintained that the complainant never told her that the accused touched her on the back, but only on the upper arm. Mr Weir also submitted that MS’s statement speaks of the complainant having told her sister that she was touched between leaving the house and arriving at soccer training, yet the complainant maintains this did not happen.
Mr Weir also addressed the handwritten notes of Police Officer Lang who was the first to speak to MS on 2 April 2015 and recorded that the complainant said to MS that she was touched over the front of her body. He stated that he accepts that there is limited scope in which I can use this but that it does go towards showing inconsistencies and concerns with MS’s evidence. Mr Weir further submitted that MS’s description of how the complainant said she was touched was said for the first time in court and that it did not appear in her statement she gave to police.
Mr Weir’s final submission was that there is real concern as to the reliability of the complainant’s evidence in the context of various permutations of what is said to have occurred, and what is particularly important is what the complainant supposedly said to MS and then her mother.
Complaint
The prosecution led evidence of complaint pursuant to s 34M of the Evidence Act 1929. The evidence of initial complaint were the statements made to her sister MS. This evidence is admitted in the trial to inform me as to how the allegation first came to light and as evidence of consistency of the conduct of the complainant. This evidence can, therefore, affect the credibility of the complainant. Consistency of conduct includes the making of the complaint when it would have been expected to be made and the consistency between the wording of the complaint and the conduct alleged.[56] In this case the complaint was made at the earliest available opportunity. She told her sister at the first reasonable opportunity that she had. However, the evidence from her sister reveals an inconsistency in relation to the conduct that is alleged. Her sister maintained in evidence that the complainant told her she had been touched on the arm as opposed to the upper back. Whilst this touching is not the subject of the charge, it is so closely connected with the charge that it constitutes a material inconsistency between the evidence of the complainant and the evidence of her complaint to her sister.
[56] R v J, JA (2009) 105 SASR 563.
I have however borne in mind in assessing the evidence of the complainant, the timing of the complaint, and the fact that it is partially consistent with the allegation that she makes in this court.
Discussion
I found the complainant to be a straightforward witness who appeared to be doing her best to answer the questions. On its own, her evidence appeared to be quite credible. However, when her evidence is considered alongside the evidence of her mother and her sister, the reliability of the complainant begins to crumble.
I accept that her sister was doing her best in evidence, she appeared to be attempting to tell the truth as she recalled it. I accept that her mother was a truthful witness, albeit that she may not have been reliable about some aspects of her evidence.
This is a case that rests solely upon the evidence of the complainant. It is critical that her evidence be both credible and reliable. Whilst there is some support for her evidence in the fact that she complained immediately, there is also reason to be concerned about her evidence.
I have already addressed the inconsistency in the complaint. The matter however, that has given me most concern, is the evidence of the complainant’s mother SK, that the complainant told her a wildly different version about what had occurred between her and the accused on the day of the alleged offence. This evidence has left me with a number of concerns as to the credibility and reliability of the complainant. The differences in the versions can be summarised as follows.
The complainant said that the accused only touched her in the car whilst they were driving from soccer training to the Arndale Shopping Centre. She said he touched her on the front of the upper right thigh and the upper back. He did not touch her anywhere else. She gave no evidence that the accused made her sit in the passenger seat. Her mother gave evidence that the complainant told her that she was touched all down the front of her body from her shoulders to her upper thighs. She said this touching happened at the house before they left for soccer training, that it happened in the loungeroom and that the complainant would move away and he would follow her. She said the complainant told her she pushed the accused away and began crying. She was clear that this happened before soccer training at the house.
She went on to say that the complainant said the accused made her sit in the front seat of the car and touched her on her thighs and all over her body whilst she was there, and this happened on the way to soccer.
These differences are very difficult to reconcile. It may be that the complainant has told her mother a different version for a number of reasons. It may be that her mother was upset and misunderstood some of what the complainant said at the time. It may be that the complainant is prone to exaggeration and wanted to make the story more convincing when she was telling her mother. Whatever the reason is, it affects the reliability of the version given by the complainant in this court to such an extent that I am unable to rely upon it to the requisite standard required.
The accused engaged in a record of interview with the police. He denied any offending but provided an explanation. That explanation in the circumstances cannot be excluded as a reasonable possibility.
Conclusion
A finding of guilt can only be made when the prosecution presents evidence in proof of an offence that satisfies me to the extent that excludes a reasonable doubt. This very high burden exists in our criminal legal system for very good reason.
In order to find the accused guilty I need to be satisfied of each element of each offence. The differences in the complainant’s account and the account of her mother are material differences. There are also some, albeit less material, differences between the complainant’s account and her sister’s account. I therefore cannot rely upon the complainant’s evidence to an extent that excludes reasonable doubt. I do not find her evidence credible and reliable for the reasons I have given.
Furthermore, I am unable to reject the account given by the accused in his record of interview. The prosecution has failed to satisfy me of the accused’s guilt beyond a reasonable doubt. Accordingly, I find the accused not guilty.