R v B
[2010] SADC 149
•6 December 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B
Criminal Trial by Judge Alone
[2010] SADC 149
Reasons for the Verdicts of His Honour Judge Lovell
6 December 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
Accused charged with eleven sexual offences involving two complainants (one count of inducing a child to expose a part of her body, nine counts of indecent assault and one count of procuring an act of gross indecency) heard together.
Verdicts: Guilty of Counts 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 and Not Guilty of Count 2.
Criminal Law Consolidation Act 1935 (SA) s 56, s 58A(1)(b), s 58(1)(b); Evidence Act 1929 (SA) s 34M, referred to.
CSR Ltd v Della Maddalena (2006) 224 ALR 1; Sutton v R (1983-1984) 152 CLR 528; De Jesus v The Queen (1986) 61 ALJR 1; Hoch v The Queen (1988) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461; R v Wallace [2008] SASC 47; R v Liddy (2002) 81 SASR 22 at [62]-[68], discussed.
R v B
[2010] SADC 149Overview
T and C are sisters. They allege that in the mid to late 1980s they were sexually abused by the accused who was at that time their stepfather. The accused, when interviewed by the police, denied the offending.
J is the mother of T and C. T was born in 1976 and C in 1980. In 1981, shortly after the birth of C, J separated from their father and eventually divorced him. The separation and divorce were apparently “bitter”.
Around 1983 J met the accused at a “Parents Without Partners” meeting. Sometime in 1984 J and her two daughters moved into a house at Modbury with the accused. They lived together at that house until approximately February-March 1988 when the accused moved out. The accused continued to see the family, although there was conflict in the evidence about the regularity of the visits, until approximately mid to late 1989. J and her daughters moved out of that house sometime in early to mid 1990.
The Department of Community Welfare (the Department) became involved with the family as a result of issues being raised by J’s former husband (the complainants’ father) sometime after the divorce. Mr Moffa, counsel for the accused tendered, as part of the defence case, certain documents from the Department’s file.[1] The complete file was not tendered.
[1] Exhibits D3, D5, D6, D7 and D8.
It appears from Exhibit D5 that the Department was involved at least as early as late 1985 as that document appears to have been created in January 1986 and is clearly not the first contact. T and C were both interviewed by a Community Welfare Worker at their school on 26 November 1987.[2] The Department closed the file in May 1989.[3]
[2] Exhibit D6.
[3] Exhibit D9.
Witness summary
The prosecution called six witnesses. T and C both gave evidence as did J and Detective Brevet Sergeant Denton. BK and AL also gave evidence related to the question of “complaint”. The defendant, as mentioned, tendered documents from the Department of Community Welfare as well as a medical report from Dr Waddell dated 11 May 2009.[4] The defendant did not give evidence but participated in a record of interview dated 9 November 2004.[5]
[4] Exhibit D8.
[5] Exhibit P4.
I have carefully considered the evidence of the complainants. I have scrutinised their evidence separately. I have borne in mind the directions I must give myself in this matter. I must be satisfied of each element of the offences beyond reasonable doubt and I am to bear in mind the forensic disadvantage suffered by the accused due to the age of the allegations. I have borne in mind the criticisms of their evidence by Mr Moffa. I have not overlooked those matters and I will deal with them later in these reasons. The matters that he put to me in his final address do not shake my confidence in the reliability and truthfulness of their evidence.
Despite those matters I am satisfied that both of the complainants were honest and reliable. They were both excellent witnesses.
Reliance on the demeanour of a witness has been subject to judicial criticism in recent times.[6] Less emphasis has been given to the “advantage” a trial judge has in assessing witnesses. I bear those criticisms in mind.
[6] See CSR Ltd v Della Maddalena (2006) 224 ALR 1.
I have had regard to the demeanour of each complainant in coming to my assessment; I have done so as one part of my overall assessment of their evidence. When looking at the evidence of each complainant in its entirety, there was a quality and coherence to it that was compelling.
In relation to J, I accept that she was an honest witness. However there were aspects of her evidence which were confusing and in parts simply contradictory and incorrect. I cannot accept all of her evidence. Generally speaking I prefer the evidence of the complainants to that of their mother where there is a conflict. I accept the evidence of Detective Brevet Sergeant Denton.
The other DPP witnesses were honest witnesses doing their best to assist the court. As discussed later I accept the evidence of AL but reject in parts the evidence of BK.
Charges
As against the complainant T, the accused is charged with one count of Inducing a Child to Expose a Part of her Body (s 58A(1)(b) of the Criminal Law Consolidation Act), six counts of Indecent Assault (s 56 of the Criminal Law Consolidation Act) and one count of Procuring an Act of Gross Indecency (s 58(1)(b) of the Criminal Law Consolidation Act). As against the complainant C the accused is charged with three counts of Indecent Assault (s 56 of the Criminal Law Consolidation Act).
Evidence of complainant T
T is now 34 years of age, married and has three children. Her parents separated, she thought, when she was about four years of age. T first met the accused when she was about eight or nine years of age. The complainant C is her younger sister.
T remembered moving into the address at Modbury with her mother, sister and the accused but was unable to recollect when that occurred. A plan of the house, which she had drawn in 2002, was tendered.[7] An above ground pool was installed after they moved in.
[7] Exhibit P1.
T alleged that she was sexually abused by the accused whilst living in the Modbury house.
Count 1
Her first memory of abuse occurred before the pool was installed. Her mother had gone to the shops and she was alone in the lounge room with the accused. He was sitting on the arm of the lounge chair. T had her bathers on as they had been running under the sprinkler. It was warm and she thought she was about nine years old.[8]
[8] T 23.
The accused asked her to come over and pull her bathers, which were one piece, down. She pulled the straps down over her arms and pulled the bathers down so that they were mid thigh. The accused stared at her breast area for 30 seconds to a minute and then looked at her pubic area that was also exposed. He continued to stare for 30 seconds to a minute and she started to feel uncomfortable and pulled her bathers back up. In cross-examination she agreed that she told the police that she thought it was weird.[9] She was unable to remember whether he said anything to her at that time. T did not tell anyone about the incident at that time.[10]
[9] T 68.
[10] T 24.
Count 2
T alleged that the accused would come into her bedroom when she was doing her homework whilst seated at her desk. He would stand behind her and put his hand down her top. This occurred over a period of a “few years” and “pretty much daily”.[11] T said that before she started wearing a bra he “would play with my boobs” and that when she started wearing a bra “he would predominately do my left side because he could slip his hand down underneath my bra”.[12] The accused, it was alleged, initially pretended to be interested in her homework but would touch her breasts at that time. The acts occurred after she had come home from school. The touching of her breasts occurred three to four nights a week for years.[13] She thought she may have been 11 years of age when that behaviour started.[14]
[11] T 25.
[12] T 25.
[13] T 55.
[14] T 24, T 96.
Both C and J gave evidence, which I accept, that supports T’s version. They both said that on occasions they went into T’s bedroom to find the accused alongside her near her desk.[15]
[15] T 122, T 159.
T said her mother was normally in the kitchen and C would be playing or in her room.[16] As she got older she would tell him to “stop” or “go away”. This stopped after she told her mother what he had been doing.
[16] T 28.
Despite the best efforts of Mr Healy, counsel for the prosecution, there was a complete absence of specificity in relation to this Count on the information. T was unable to separate any one act from any other. I discuss later the consequences of the lack of specificity.
Counts 3 and 4
The accused worked shift work at Bridgestones at Salisbury. He would rotate his shifts and it included a night shift. On night shift he would come home at about 6am. He would have something to eat and then go to bed. J would wake T up about 7am to go to school.
T alleged that on one occasion, after the accused had come home from night shift he said to her “Do you want to come and tuck me in”? She thought she was about 10 maybe 11 years of age.
In cross-examination it was put to T that her estimation of her age meant that the allegations occurred either late 1987 or up until September 1988.[17] Whilst that is a possibility she had actually said she was about 10 maybe 11 years of age. The event, if she was 10, may have occurred earlier. She said she “really couldn’t put a year on it”.[18]
[17] T 70.
[18] T 71.
She went to the bedroom and he was in bed. He pulled the covers back, took her hand and had her hold his penis. He had his hand over hers at that stage. The accused then made her masturbate him. He never ejaculated.[19] He would then let go of her hand.[20]
[19] T 38.
[20] Count 3.
This happened on a few occasions. Apart from the act specified the other occasions I treat as uncharged acts.
On one specific occasion, after he let go of her hand, he asked her to “get on top of him”. She did that and “straddled him”.[21] At that time she was wearing a nightie and knickers.
[21] T 36.
The accused then got T to move so that she was sitting on his penis and then he moved her “backwards and forwards along his - the length of his penis”[22]. His penis was rubbing her vagina area. This lasted for a “short period of time, maybe a minute”.[23] She felt uncomfortable and got off and left the room.[24] At this time she thought her mum was in the kitchen as was her sister.
[22] T 36.
[23] T 37.
[24] Count 4.
She agreed in cross-examination that she went into “freak mode”.[25] T said that “this shouldn’t be happening and I needed to get away from the situation”.
[25] T 73.
T agreed that she had been taught “protective behaviours” at school but she didn’t complain to her teachers as she was unsure of what would happen if she disclosed it.[26]
[26] T 74.
Count 5
T alleged that one day, as she was coming out of the toilet, the accused was in his bedroom and called her in. She was about 10 years of age. T thought it was in the afternoon one Sunday. The accused was standing against the bedroom wall and he showed her his erect penis. Although T was unable to say how the topic came up, it was decided to measure his penis. T got her ruler from her pencil case and they measured his penis. She remembered it as being 33 cm long. The accused held his penis whilst she measured it.[27] After the measuring had finished the accused got her to masturbate him for about 30 seconds. He did not ejaculate.
[27] T 41.
The defence tendered, without objection, a medical report of Dr Waddell.[28] He is a qualified medical practitioner and Senior Consultant Sexual Health at the Royal Adelaide Hospital. He examined the accused on two occasions in May of 2009. Dr Waddell measured the length of the accused’s penis. His measurements, which I accept were:
[28] Exhibit D8.
Flaccid - ventral surface including scrotum 19.6 cm
Erect - ventral surface including scrotum 22.5 cm
The evidence of Dr Waddell proves conclusively that the evidence of T as to the size of the accused’s penis is wrong. T was definite that his penis was 33 cm in length. I find that she is wrong about that.
I have given anxious consideration to this evidence. Clearly T is incorrect. However I found her description of this act compelling. In my view she was clearly relating an event that actually occurred. The fact that she must be wrong in that aspect of the evidence does not make me doubt at all her evidence about the act.
Counts 6 and 7
T alleged that one evening the accused, carrying a torch, came into her bedroom; she thought she was about 13 years old at the time. Prior to coming into the room he directed the torchlight at her face for a brief period. She had her eyes closed and pretended to be asleep. Prior to this occurring T had heard noises from her mother’s bedroom that she interpreted as the accused and her mother “having sex”.[29]
[29] T 47.
The accused walked into the room and stood near her bed. He grabbed her hand and placed it onto his penis and he made her “masturbate him”[30] for a short period of time.[31] He then wiped the end of his penis on her nose and she felt wetness. T wiped her nose after he left the room.[32]
[30] T 46.
[31] Count 6.
[32] Count 7.
J gave evidence that after the accused left the house to live in the unit (March 1988) she and the accused did not have a sexual relationship. For reasons discussed later I reject J’s evidence about that. I accept T’s evidence about what she heard.
T agreed that around this time she was upset and angry with what the accused had been doing to her and was crying herself “to sleep every night”.[33] This had been going on for “years” maybe up to two. This touching of her breasts about three to four nights a week was also occurring at this time.
[33] T 53.
Count 8
T said that when she was about 11 years old an incident occurred in the pool that had been installed. The accused called her over and stood behind her. He was leaning against the side of the pool. He pretended to give her a hug. He then rubbed his penis up against her particularly at the top of her bottom and lower back area.[34] She thought his penis was outside of his bathers and it was partially erect. T thought that this went on for “maybe a minute” and she said “are you finished”; she broke free and left. It was summertime and she did not recall her mother or sister being around.
[34] T 31.
Whilst this type of act occurred more than once this was the only occasion when his penis was outside of his bathers.[35] On the other occasions his penis would be inside his bathers.
[35] T 33.
Other evidence of T
T agreed that as a result of a Department investigation it was recommended that the accused not live at the house. Whilst T was unable to remember specifically when the accused moved out of the house, she agreed that when he did so he did not then sleep the night at the Berryman address. However he would still come around for dinner and he would be there when she went to bed.[36] T agreed that the accused was not allowed to be alone in the house with her and C after this time.[37]
[36] T 103.
[37] T 94.
Allegations had been made by T’s father to the Department. She agreed that her mother was aware of the “issue” that the accused not be left alone with the girls.[38] Whilst T was unable to remember much by way of detail, she was able to recall that it was her father who was making allegations against the accused.
[38] T 62.
T said she was not aware of the Family Court dispute when her parents separated. She was about four years of age when they separated.[39]
[39] T 63.
T agreed that there was a time when she was very upset with her father. She thought this was about 1988. At some stage a Family Court intervention was sought to restrict or cancel the visitation rights. For a time she did not see her father. T thought she began to see her father again in 1992.
T was interviewed by the Department at school when she was about 10 years of age. T was unable to remember an interview towards the end of 1987. She was unable to remember what she was questioned about but accepted that it was possibly related to the allegations made by her father.[40] T was unable to remember any other interviews by the Department.[41] However she did agree that when interviewed she denied any suggestion of inappropriate behaviour by the accused at that time.[42]
[40] T 67.
[41] T 68.
[42] T 75.
T was unable to remember contact with other officers of the Department.[43] She did agree that her relationship with her father deteriorated to the extent that she did not see him for a period of time.
[43] T 79, T 94.
T did remember there being an issue about netball and her father.[44] She was unable to recall saying to the Department that her “father strokes her leg and arm in the car when love songs are played”.[45] She was unable to recall saying it or that it in fact happened.[46]
[44] T 94.
[45] T 95.
[46] T 96.
T agreed that by the time she was around 12-13 years of age she started to “stick up for herself” and would indicate to the accused that she “didn’t like what he was doing”.[47] Eventually she came to detest and hate him.[48]
[47] T 69.
[48] T 69.
T did not tell her mother about these incidents as she “thought her mother was happy with him” and if she said anything she may get the blame for “them being broken up and stuff”.[49] As T explained it she thought she would be taken away from her mother; “I thought that they would think that she was a bad mum and that she didn’t care about us - and that was the furthest thing from the truth - and I just wanted to stay with mum no matter what”.[50]
[49] T 48.
[50] T 76.
T was asked why she didn’t complain, at that time, to her mother. She replied:
Because I didn’t want to say anything to her because I knew this would break them up and I thought she was happy and I didn’t want to be the cause of my mum being unhappy and I didn’t want to be judged. I was scared of how I would be judged.[51]
[51] T 73.
She later said that she was “ashamed”.
When asked why she had taken about another 10 years to go to the police about the allegations, she said:
I was embarrassed and I blamed myself, that maybe somehow I had provoked him or something like that and it took me a really long time to be able to talk about it. I would still cry myself to sleep even after we left. I would sometimes dream about things that had happened.[52]
[52] T 51.
I accept T’s evidence beyond reasonable doubt. She was an excellent witness whose evidence was not shaken under cross-examination. T’s evidence as to the allegations was consistent and coherent. She was able to give details of the incidents. Her evidence was compelling.
Evidence of complainant C
C was born in February 1980. She had no recollection of her parents divorcing as she was too young. She called the accused Dad. She attended the Modbury West Primary School and then Modbury High.
C could remember Family Services coming to school to speak to her. She thought she was about seven years old. C could not remember what specifically they spoke to her about although she was able to remember a question about whether they had locks on their doors.[53] C said she lied to Families SA in that she said nothing was happening between herself and the accused.[54]
[53] T 107.
[54] T 107.
Count 9
C alleged that on occasions the accused touched her. There was an incident after Family Services had spoken to her which occurred early in the morning. She came out of her bedroom and the accused was in his bedroom ready to go to sleep as he had come off night shift. He called her into the bedroom for her to say either good morning or good night to him. He was about to go to sleep and he asked her to go in and she went in to give him a hug. The accused said “No give me a proper hug”. At that point he pulled her on to his lap.
He was sitting on the edge of the bed with his legs on the floor. She went to sit sideways on his lap and he said “No” and pulled her so that her legs went around his waist. She could feel something hard pressing against her. Although she didn’t know what it was at the time she now knows that his penis was erect. It was pressing against her vagina. He made her jiggle on his lap and at one point tried to pull her knickers aside.
There was no-one else in the room at that time and she thought her mother was probably cooking breakfast. T would have been getting ready for school.[55] She thought she was about seven or eight years of age at the time this occurred very shortly after the Family Services (the Department) people had spoken to her.
[55] T 114.
Count 10
In relation to the swimming pool C recalled two incidents. In relation to this count, C said she was out in the pool playing when the accused came outside and jumped in the pool. He came over to her side of the pool and grabbed her in a bear hug. He was behind her. He pulled her into him and she could feel that he had an erection and was rubbing himself against her. His penis was pressed up against her bottom and he was moving her around to rub against his penis. She thought that his penis was inside his bathers. She thought she might have been about eight or nine years of age at the time.[56] She thought this incident occurred after the incident where she was in his bedroom. She thought it was close to the time when they left the premises.
[56] T 115.
Count 11
C referred to an incident just prior to them leaving Berryman Drive. She thought she was about 10 years of age at the time although she was not 100 per cent confident of that.[57] She was sitting at the kitchen table when the accused walked into the kitchen and came over to give her a hug. He was on the side of her and he put his left arm around her shoulders and with his right hand rubbed her chest area. She had not developed breasts at that point but that was the area that he was touching. She told him to stop it.[58] He said some sort of comment like, “You don’t have breasts yet so it doesn’t matter” and then walked off. The rubbing occurred on the outside of the T-shirt that she was wearing
[57] T 118.
[58] T 119.
Other evidence of C
C remembered that the accused moved out of the house shortly after the Department interview.[59] The incident she described about him being on night shift she thought that he was not living with them at the time. Her recollection was that even though he had moved out he might stay over when he was on night shift because they were at school and he would come to their place and sleep because they were not there.[60] He would also come over for dinner. This occurred regularly and he would stay later until they had gone to bed. There were times she could remember when she saw him in the morning after they had got up so she assumed that he had spent the night there. She did not agree that he never stayed overnight after moving out. However she could not exclude the fact that he may have been on night shift and had come around for breakfast. She thought he had moved into a unit around the corner that was maybe a five minute drive away.
[59] T 117.
[60] T 117.
C said that prior to being spoken to by Families SA (the Department) the accused would “linger” in her doorway naked. As he walked from the shower to the bedroom “he would just put his hand on the doorway and stand there and kind of look at me. It didn’t seem like a natural thing.”[61] This would be for a weird amount of time.
[61] T 108.
C also remembered a time near the fireplace where T was sitting in front of her with her back to her and the accused came over and it looked like he was touching her breast area. She was actually unable to see his hands.[62] He would also watch them getting dressed rather than watching TV.
[62] T 110.
C remembered an incident in the pool. She was in an inflatable boat.
The accused was teaching her how to row the boat and he was wearing “speedos”. At the time his penis “fell out from his bathers” and he said something along the lines of “Oh look at that” and gestured towards his penis. This event occurred after Family Services had spoken to him and she thought she was about eight or nine years of age at the time. There was no-one else in the pool at the time.
I treat all of those matters as “uncharged acts”.
C recalled visiting her biological father every other weekend.
C agreed that she did the child protective behaviour courses at school. She did not actually remember them but accepted that she did do them.
She agreed that she felt that it was her fault that the Department came to the school. She thought it was her fault because she had told her natural father that the accused had been watching her change in front of the fire. In a short time the Department officers were at the school.
She could not remember any of the specific questions asked during the interview but she could remember the gist of what they were talking about namely whether anyone, in particular the accused, had touched her inappropriately. She had replied that had not occurred. She was unable to recall any other contact with FAYS.
She did not recall a time when there was a problem with her father letting them play netball. She had no memory of custody battles between her mother and her father back in the mid eighties.
C believed that the relationship between the accused and her mother was normal until the point where T told her mother that she was being molested. It was only when they moved out of the house that the relationship really ceased.
She was not aware as a result of the FAYS investigation that the accused was not to be left alone with either her or her sister.[63]
[63] T 129.
General directions
I remind myself that the accused comes to this Court with the presumption of innocence in his favour. The law regards him as innocent of all charges unless and until each element of each offence is proved beyond a reasonable doubt. I remind myself that each offence must be considered separately and I must consider only the evidence that relates to each specific count. When I use the term “accept” or “satisfied” in these reasons I mean that I have accepted the evidence or am satisfied in relation to the evidence to the standard of beyond reasonable doubt.
The allegations in this matter arise from conduct between 1985 to 1989. Evidence was led in relation to each complainant of their initial complaint and elaborations of those complaints. I remind myself that the evidence is admitted to inform me as to how the allegation first came to light. It is not admitted as evidence of the truth of what was alleged; it is admitted only as evidence that may go to the consistency of each complainant.
The allegations were reported to the police in 2002. The accused was not interviewed until November 2004. His trial was not until September 2010. No reason was given for the delay.
I am of the view that the period of time since the offending and the commencement of the trial has resulted in a significant disadvantage to the accused. The accused may, depending upon the issues on individual counts, have been able to have someone vouch for his movements, or provide an alibi, or find forensic evidence which may have been available or not found (which can be equally important). There may have been other issues he may have been able to raise. I must therefore take into account this forensic disadvantage when scrutinising the evidence.
The accused did not give evidence at the trial. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate. I must always bear in mind that it is for the prosecution to prove its case in relation to each charge beyond reasonable doubt.
The accused relied on his answers to Detective Denton in the record of interview. The interview contains statements in which the accused denied the offending and sought to exonerate himself. His answers are evidence in the case and I have taken them into account. When considering my assessment of the complainants’ truthfulness and reliability, I have taken into account the accused’s denials but I reject his denials.
I remind myself that I must separately consider each of the crimes charged. Each count must be considered by me separately in the light of the evidence that applies to it.
Uncharged acts
In addition to the charged acts, the prosecution has adduced evidence from the complainants about other conduct not the subject of any charge. Evidence was led of incidents that occurred with T when the accused was using the bathroom.[64] No charge was ever laid in relation to those incidents.
[64] T 42.
Due to my findings in relation to Count 2, I will treat the allegations as uncharged acts. There was a lack of specificity in the particulars of Count 2. All of the allegations surrounding Count 2 are in effect uncharged acts.
Both T and C gave evidence of acts, similar to the ones charged, that occurred. For example C gave evidence of another act of indecent assault that occurred in the swimming pool. She also gave evidence of potentially an indecent assault by the accused on T whilst both of them were getting dressed in front of the fire. T gave evidence of similar acts to those charged in Count 4 and Count 8.
T described an incident involving her sister C. The accused owned a “pop top” caravan that was left parked on a lawn area. T had come out of the house and was walking down the verandah “towards the driveway”.[65] The door of the caravan was open and the accused was sitting inside. C was standing in front of him. T could see as she got closer that the accused had his penis exposed. T thought she was about 14 years old at the time. She walked up and said “what is going on”, grabbed C and took her away. T said that she was definitely in Year 9 at school when this incident took place.[66] T was going out with AL at the time.[67] She went out with him for about a two month period. T thought that the accused had moved out about 12 months before this incident although he continued to visit regularly.[68]
[65] T 47.
[66] T 58.
[67] T 60.
[68] T 61.
C also related an incident in a caravan. The caravan was in the front yard.
They were sitting in the doorway of the caravan and the accused was wearing very short pants. Once again “his penis seemed to fall out” and once again he pointed to it and said “Oh look at that”.[69]
[69] T 112.
C thought that T walked out of the front door of the house and he heard that and put his penis away and pretended “like nothing happened”.
I find that the complainants are describing the same incident. It is an uncharged act. In this case C’s evidence is supported by T with direct evidence.
The whole alleged course of events provides a context in which it is said the charged incidents occurred. In that way it can be said that the whole sequence of events throws light on the nature of the relationship between the complainants and the accused.
The evidence of the uncharged acts along with the evidence going directly to the charges can be used by me in determining what, if any, weight I am prepared to place on a complainant’s evidence. The evidence may assist me in concluding that a complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in the evidence, thereby raising doubt about the charges.
The evidence of the uncharged acts could be used to assist in explaining the background against which the offences came about and could be used to help explain why the complainant might be unclear about precise dates of the offences charged.
I will only use the evidence of the uncharged acts where I am satisfied beyond a reasonable doubt that the act occurred.
I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged.
Ultimately it is upon the evidence in relation to the charges themselves which I must render my decision.
I find the uncharged acts all proved beyond reasonable doubt. The evidence assists in explaining the background of how the offences came about and why each complainant was on occasions unclear as to the precise date of the allegations. I make it clear that I use the uncharged acts in the same way as I have approached the evidence of T and C. I have used the uncharged acts relating to T only to assist assessing the credibility of T. I have not used the uncharged acts alleged by T in my assessment of the credibility of C. I have approached the evidence of uncharged acts alleged by C in the same way.
The Law
Elements of Indecent Assault
The offence of indecent assault consists of three essential elements, each of which must be proved by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first element is that the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient.
The application of force or violence must be unlawful, that is, without lawful justification or excuse.
The second element is that the assault must be accompanied by, or occur in, circumstances of indecency. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
The prosecution must prove that the complainant was under the age of 12 years at the time of the offence where that offence is charged.
The Crown must prove each of these elements beyond reasonable doubt in relation to each charge of indecent assault separately. I do not intend to repeat the elements each time I consider a charge of indecent assault.
Elements of Inducing a Child to Expose her Body
There are two elements to the offence.
First, the conduct must be performed with a view to gratifying a prurient interest (whether of that person or some other person).
In assessing whether an act is for a prurient purpose I must be satisfied that the conduct was performed by the accused with the intention of satisfying his own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.
Secondly, the child must be caused or induced to expose any part of his or her body.
Elements of Gross Indecency
In the circumstances of this case the offence of gross indecency is committed when a person who, in public, or private, incites or procures an act of gross indecency with a person under the age of 16 years.
The definition of gross indecency can be broken down into four elements:
·First, the act incited or procured was done with, or in the presence of the complainant. The complainant’s consent or absence of consent is immaterial.
·Secondly, the complainant was under the age of 16 years. It is immaterial whether the accused was aware of that.
·Thirdly, the act was indecent. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
·Fourthly, the indecency must be gross. The indecency must be “gross” in that it must be something more than minor or trivial indecency. The indecency must be gross by reasonable contemporary standards. I must apply the standards of right thinking members of the community in assessing the question of whether the indecency was gross.
Cross Admissibility
It was submitted by the prosecution that the evidence of the complainants was “cross admissible”. By that it meant that I could use the evidence of one complainant when assessing the allegations in relation to the other complainant. The prosecution alleged that the evidence of the complainants showed an underlying “system, pattern or unity” of behaviour of the accused.
Evidence of “similar facts” or “underlying system, pattern or unity” is a form of circumstantial evidence. However the ordinary rules of admissibility did not apply to such evidence.[70] Prior to the amendment of s 278 of the Criminal Law Consolidation Act the general principle was that where an information contained charges of a sexual nature which were based on the evidence of two or more complainants and where the evidence of one complainant was not admissible in respect to the other charges then to prevent an accused suffering impermissible prejudice a separate trial would be directed.[71]
[70] Sutton v R (1983-1984) 152 CLR 528.
[71] De Jesus v The Queen (1986) 61 ALJR 1, Hoch v The Queen (1988) 165 CLR 292.
The exclusionary rule invoked was that evidence that reveals that an accused is a person of bad character is not admissible if it proves no more than that he or she has a general dispositional propensity to commit a crime of a particular kind.[72] However propensity evidence may be relevant and admissible in relation to a number of issues in a case. It might assist in proving identity or intention, or in disproving accident or mistake or innocent association. The probative value of such evidence can arise from the fact that it bears striking similarities with the allegations made in relation to the other offences but equally its strength might lie in the “unusual features”, “underlining unity”, “system” or “pattern” which it reveals such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution.[73] The criteria for admission of such evidence was, at common law, the strength of its probative force. The test was usually stated in terms that the probative value or cogency of the evidence must be such that if accepted it bore no reasonable explanation other than the inculpation of the accused person in the offence charged.[74]
[72] Pfennig v The Queen (1995) 182 CLR 461.
[73] Hoch v The Queen (1988) 165 CLR 292.
[74] Hoch v The Queen (1988) 165 CLR 292, Pfennig v The Queen (1995) 182 CLR 461, R v Wallace [2008] SASC 47.
The principles mentioned applied to such evidence due to the highly prejudicial nature of the “propensity” nature of the evidence.
That threshold test has now been changed by Parliament. Section 278(2a)(c) of the Criminal Law Consolidation Act states the threshold test as “a relevance other than mere propensity”. The section is silent as to the strength or cogency on the evidence proposed to be led. It must, simply put, have a relevance other than the mere propensity (my underlining).
It was not argued before me that either the charges were not properly joined nor that I should consider severing the charges in anyway. That of course is not a concession that the evidence of one complainant is admissible in relation to a count involving another complainant.
It is not strictly necessary for me to decide the issue of the “cross admissibility” of the evidence given my findings that I accept the evidence of each complainant beyond reasonable doubt independently. However as the matter was raised I indicate that I do find that there was a pattern of behaviour of the accused that established an underlying “system, pattern or unity”.
Without discussing it in detail the evidence relied upon by the prosecution to establish an “underlying system, pattern or unity” of behaviour of the accused was;
·The general similarity of the nature of the allegations of the conduct of the accused in the swimming pool relating to both complainants.
·The general similarity of the nature of the allegations of the conduct of the accused in touching the breast area of each complainant.
·The general similarity of the allegations of the complainants on the occasions when the accused “invited” the complainants into his bedroom.
·That the complainants were sisters in a family befriended by the accused.
·That the accused had access alone to the complainants due to the family living arrangements.
The relevance of the evidence in this matter is clear. It was relied upon by the prosecution to establish an underlying unity, system or pattern which reveals as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution. In my opinion there was an improbability of the alleged events occurring to these complainants other than in the way alleged by the prosecution.
In my view, the conduct of the accused based upon my factual findings discussed, discloses what the authorities refer to as a system or pattern or underlying unity in the sense that the alleged offences were committed in a specific context.[75]
[75] R v Liddy (2002) 81 SASR 22 at [62]-[68].
However, as mentioned I do not need to look at the question of cross admissibility as I have decided that I accept beyond a reasonable doubt the evidence of each complainant independently of the other. However, I remind myself that it would be wrong for me to conclude from the conduct of the accused, that he is the sort of person who would be likely to commit the offences with which he is charged.
When looking at the evidence of the complainants separately, I should not reason from a finding of guilt on one count that the accused is the sort of person who abuses young girls and is therefore likely to be guilty of any other count. When considering each count separately, I remind myself of that “propensity” warning.
Concoction
T said that when she was about 26 or 27 years of age, she and her sister had talked about being touched by the accused. It had arisen during an argument with their mother.[76] As a result of that discussion they went to the police. That was a joint decision.
[76] T 51.
T denied in cross-examination that she discussed any details of what had happened with her sister. She said:
We had spoken outside my house when she had indicated to me that it happened to her and that’s when we made the decision to go the police and that’s all. We never discussed any details as to what events or what stuff had happened to either of us. I don’t know what’s happened to her, she does not know what’s happened to me.[77]
[77] T 100.
C said that in relation to the question of when they decided to go to the police, she and T were having a conversation about their mother and the question of what had happened to them came up and the fact that they hadn’t received any counselling. T was not aware at this stage of anything that had happened to her. She assumed that T knew and she remembered being surprised that T did not know that she had also been molested.
This conversation occurred a couple of weeks before they eventually went to the police in 2002. During the conversation with T, they did not go into any specific details about what happened and today she still does not know what happened to T.[78]
[78] T 123.
I have not overlooked the evidence of C on this topic. C said that after T had complained to her mother they said to each other they would kind of watch out for each other. There were a few occasions that C could remember when she was in her room doing her homework and that she knew the accused was in the house but didn’t know where he was. She would often barge into T’s room unannounced and on some occasions T would be at her desk and the accused would be standing behind her leaning over her. This would have occurred on at least three or four occasions.[79]
[79] T 122.
The time when they decided to “look after each other” C thought she was about nine or 10 years of age.[80] She believed this was after the occasion when the accused had touched her on the chest.
[80] T 124.
I accept C’s evidence about those incidents. They are similar in detail to what her mother observed. They are consistent with T’s evidence about the presence of the accused in her room. The fact that C and T had an understanding of “looking after each other” does not affect my assessment of the question of concoction. As mentioned, I accept the evidence of the complainants and their mother about this topic. It does not affect the evidence that T and C gave about their knowledge of abuse of the other or how they came to give their statements to the police.
I accept the evidence of both T and C as to how they came to make their statements to the police following the conversation mentioned above. I accept their evidence that neither knows the substance of the allegations against the accused made by the other.
I reject, even as a reasonable possibility, the suggestion of concoction.
Documentary evidence
The events the subject of the charges allegedly occurred in the mid to late 1980s. It was common ground that the biological father of T and C had raised concerns about the accused with the Department. Hence a file was opened and investigations undertaken. Interviews were conducted with T and C and their mother.
Some documentary evidence was tendered as part of the defence case. The documents were tendered without objection. They were effectively tendered as business records and it was accepted that the contents could be used to establish the facts asserted in the documents and not simply to prove inconsistencies. I have already dealt with the cross-examination of the two complainants relating to this material. Before turning to J’s evidence it is convenient to outline the documentary evidence.
There was a general acceptance by the two complainants of what was contained within the documents. On a number of issues the witnesses were unable to remember back to the events in the late 1980s but they did not deny that the events recorded may have happened.
Department of Community Welfare documents
To understand the cross-examination of J, it is necessary to discuss the contents of the documents.
I will deal with the documents in chronological order.
Exhibit D5 is a page of notes made apparently by a Community Welfare Worker by the name of Hearn. From the ages of the children at the commencement of the notes, they appear to be notes of an interview with J around January 1986. How long the investigation had been going prior to this interview is not known but from the context of the interview, it appears to be at an early stage. Mr Hearn has noted: “Impending marriage with (M) deferred due to DCW investigation. Apparently lost $300 on booking arrangements.”
J was cross-examined about the question of marriage dates. Her evidence on that topic was confusing and to an extent inconsistent.
Further the notes read: “(M) has been told not to touch them or relationship will be terminated if he does.”
Later the notes stated: “(J) denied (M) is touching (T) in breast area-claims (C) is lying. (C) has admitted lying.”
Exhibit D6 is seven pages of typewritten notes headed “Interview with: (T) at school”. It is dated 26 November 1987. The notes are apparently made by a Community Welfare Worker and a Senior Welfare Worker. However they appear to be notes of not just an interview with T but also, in part at least, an interview with C.
The document is a little confusing. It appears to be notes of some questions and answers in addition to answers where there are no questions noted. Some of the information may have come from J.
What is clear from the document and the evidence is that both T and C had an opportunity to complain about the behaviour of the accused during the interview and did not do so. Indeed both T and C admitted to lying to the Department during the course of the interview (or at some other time). They both gave evidence that they specifically denied to the Department that the accused was touching them in an inappropriate way.
Exhibit D3 is a letter dated 11 February 1988 and is signed by both J and the accused. It reflects an agreement reached with the Department about arrangements made about the children.
It states as follows:
In consultation with the Department for Community (W)elfare Workers, it has been mutually agreed that the following conditions will be implemented for the protection of (T and C). It is understood that these conditions will also help to protect (M) from suspicion.
1) (J) will discuss with children the inappropriatness [sic] of getting dressed/undressed in front of adults.
2) A lock is to be put on bathroom door so that children can have privacy.
3) (M) is to stay overnight only when children are on access visits to their natural father.
4) (M) can attend family meals and accompany family on outings but is not to have unsupervised access to children.
We understand that the above conditions satisfies the Department for Community Welfare that actions have been taken to ensure (T and C’s) safety.
Exhibit D7 is a page of handwritten notes of an officer of the Department of an interview with both C and T and their mother. It is dated 7 November 1988. It largely deals with the issue of access with biological father and his “opposition” to the amount of netball they were playing. However it includes this entry:
The allegations against (M) were raised by the girls after stating that their fa. strokes (T’s) leg and arms when love songs are played has also offered to rub her back - she and (C) have told him not to do this – (T) says he touches her bra both stated (M) had never attempted to touch them.
Exhibit D9 is an “Internal Memorandum” dated 22 May 1989. It states as follows:
Following up on a concern received on 2nd November, 1988 contact was made with (J) and her 2 daughters on 14th March, 1989.
The following points were clarified:
· (M) is not living with the family,
· (J) said there were no plans to leave S.A.,
· (J) said family are doing just fine and the girls are safe,
· No access between the girls and their further [sic] has meant less conflict between her ex-husband and herself. The children are less tense now.
As the alleged concerns were not sub-stanciated [sic], the family appear to be coping very well, it is recommended that both (T and C’s) files be closed.
Discussion
I have set out the Department of Community Welfare documents in some detail as they were relied on by the accused. The accused did not give evidence but relied on his denials to the police. He also relied on the documents mentioned to provide some objective evidence of the dates of various events as well as the contents of the documents to undermine the credit of the complainants. The accused, although there was no onus on him to do so, argued that the contents of the documents could be relied upon to establish, at least as a reasonable possibility, a motive for the complainants to lie.
The DPP did not dispute that the documents could be relied on to establish some events.
It is common ground and I find proved beyond a reasonable doubt that the Department of Community Welfare became involved with T and C and the family due to concerns raised by the complainants’ biological father. There was an interview with J around January 1986.[81] From that document I infer that the accused and J were due to be married, most likely in late 1985, but the marriage was delayed by the involvement of the Department. It is clear from the notes that at that stage J supported the accused and indeed made an allegation that C was lying.
[81] Exhibit D5.
I find that both T and C were interviewed by the Department at their school on 26 November 1987. Although it is not entirely clear from the document, I find that both T and C had an opportunity to complain about the alleged conduct of the accused and did not do so. Indeed, before me, both girls stated that they had such an opportunity and did not do so. They told me that they lied to the Department at that stage. That applies as well to the interview of 7 November 1988.[82]
[82] Exhibit D7.
I find that the accused and J signed a “contract” with the Department on 11 February 1988 agreeing to certain living arrangements for the family and the accused. I find that the accused left the Modbury premises shortly after the document was signed and lived in a unit nearby.
I find that as at 14 March 1989 it was confirmed that the accused was not living with the family, and that T and C were not having access visits with their biological father. At that stage the Department closed the file.[83] I find that T had not complained to her mother by this time and that the accused whilst not living at the address was still visiting regularly.
[83] Exhibit D9.
It is against that background that I have assessed the evidence of the complainants and J.
Complaint evidence
The common law relating to complaints has been abolished. In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. However evidence may be given about when the complaint was made, the content of the complaint, how it came to be made, why it was not made at an earlier time and why it was made to a particular person.[84]
[84] Evidence Act1929, s 34M.
Whilst delay itself is not probative the credibility of the complainants’ evidence on the topics just listed can be an issue at trial and the subject of comment and criticism.
Neither T nor C immediately complained about the alleged conduct of the accused. There was a period of time between the alleged offending and the time at which either of them made a report to someone else. I discuss the evidence below. I note that there are a number of reasons why that evidence has been given in the trial. They are:
·First, to inform me as to how the allegation first came to light.
·Second, so I may judge whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. The evidence of the initial complaint and any elaboration of it is not before me to demonstrate the truth of what was reported.
Both complainants gave their reasons for not “complaining” earlier. I have already discussed that evidence. I accept the reasons that they gave.
Evidence of T
T said that the first person she told was her boyfriend at the time named AL. She thought she was about 14 years old. At the time the accused was not living with them. AL lived a few streets away.
She mentioned something to him on the telephone, not long after she had seen the accused with her sister C. Her mother overheard parts of the conversation with AL. She thought she complained that the accused “was touching her on the boobs”.[85] After the telephone call she spoke to her mother about it.
[85] T 50.
Evidence of AL
He is currently 34 years of age and now a minister in the Uniting Church. He has been a minister for about 10 years.
He knew T when he was about 15 years of age. They were in a boyfriend/girlfriend relationship for maybe about eight weeks. He thought this was in around January/February 1991.
He lived within walking distance of where T lived. He met T’s mother and also her sister C.
He recalled a conversation he had with T where they were kissing at his house. At some stage he began touching her. She became very uncomfortable when he apologised. Her comment was, “no, no I’m not upset with what’s happened here but like my mum’s boyfriend touches me like this”. He also had a vague memory that T said, “He makes me touch his penis”. At the time he had been touching her breast.[86]
[86] T 144.
Evidence of T’s mother
In relation to the question of the complaint J said that T came to see her one day and told her that the accused had been “handling her – mishandling her inappropriately”.[87] She asked what happened and T told her that he had been “touching her boobs”. J said, “Is that all” and she said “Yes”.[88] This was shortly prior to the end of the relationship. She thought that T came to her sometime around September 1989. This was only shortly before they were due to get married.
[87] T 167.
[88] T 167.
C was also able to recall T having a conversation with her mother about the accused.[89] She couldn’t remember what T said but she “indicated to mum that (M) had been touching her”.
[89] T 120.
Discussion
There are discrepancies in the evidence between the witnesses about the complaint. After nearly 20 years this was not unexpected. AL was an impressive witness. I accept his evidence except for the time of the event. That does not mean I do not believe T. What is clear is that T complained to AL about the accused having touched her breasts. I am also satisfied beyond reasonable doubt that T also then mentioned it to her mother and C heard the conversation. I find this occurred mid to late 1989, before Christmas and some months before the family left the Modbury address.
Whilst the evidence of the initial complaint and any elaboration of it is not before me to demonstrate the truth of what was reported, I find that the evidence of “complaint” and the “elaboration” of the complaint occurred as suggested by T. However, given the delay on making the complaint and the length of time before the trial commenced, I am unable to derive any assistance from the evidence with regards to the “consistency” of T’s conduct.
Evidence of C
C said the first person she told was one of her friends BK. He was a boyfriend.
She thought she was about 18 years old at the time so it was a long time after she had last seen the accused. She was unable to recall any of the specifics but she believed she told him that “I had been molested and that would be about it”.[90] She was unable to recall whether she had mentioned who had done it.
[90] T 121.
BK was a nice person and she trusted him and he seemed like a good friend.
Evidence of BK
He is currently 33 years of age and is married with one daughter. He remembered first meeting C around 1998 and they were initially just friends. They had a romantic relationship but it did not last long. He thought that it was sometime around 1999.
He recalled a conversation with her when she told him that she had had an abusive parent or father and that he was abusive to her sister.[91]
[91] T 135.
He remembered meeting her mother and her sister but not her father. She never said much more about the alleged abuse.
Under cross-examination he confirmed that he thought that she had told him that they were abused “by her Dad”. He recalled her talking about her parents/father.
Discussion
BK was an honest witness. However he was trying to remember an event that occurred many years ago. However, I do not accept his evidence about C mentioning the abuse and relating it to her “Dad” if that was meant to be a reference to her biological father. C called the accused Dad whilst he lived with them. Whilst she did not call him Dad when she was 18 years of age, I am unable to make a finding as to precisely what she said to BK.
C has never made any allegation against her father.
My assessment as to the creditworthiness of C is not affected by the evidence of BK. C was unable to give any meaningful evidence about the “complaint”. However the evidence of complaint does not assist me assess the “consistency” of the evidence of C.
Evidence of J (the complainants’ mother)
She is the mother of T and C. T was born in 1976 and C in 1980. She married their biological father in 1971 and separated in about 1981.
She met the accused in approximately 1983 at a meeting of “Parents Without Partners” at her sister’s place.
At some stage they bought a house at Modbury and this was in late 1983/84. They moved in together shortly thereafter. In relation to a pool there was not one in the backyard when they moved in. She thought that the pool which was an above ground pool was put in about three or four years after they moved in.
J confirmed that she left her husband in 1981 and that ultimately there was a custody battle that covered a number of years where there were a number of attendances in the Family Court.[92] She agreed that her husband wanted her to reconcile.
[92] T 172.
J agreed that when she started the relationship with the accused that her former husband was particularly unhappy. She wasn’t sure of the reasons why he was that unhappy.[93] She recalled an argument that her former husband had with the accused about him always bringing the girls back late on a Sunday night. There was an argument about the accused interfering with the arrangements about his daughters. There was some aggression by her former husband in relation to this argument.
[93] T 174.
J could remember a meeting with the Department when T was in primary school. She said that they just rang and asked if she could come down as they had something to speak to her about. In relation to the interview at school, J said that the girls had been interviewed prior to her arriving at the school. Concerns had been raised about the accused. She did not know who raised the questions particularly whether they were raised by her ex-husband. After that, the accused continued to live at the premises but there was a meeting with the Welfare Department and the accused moved out and into a flat at Valley View. From the documentary evidence it can be seen that she initially spoke to the Department in early 1986 and the accused did not move out until approximately March 1988. J said that after she ended the relationship with him he still came over for a meal on occasions.[94] J said that this occurred one or two nights a week as he was a shift worker. He did not spend the night there once he moved out. She was unable to say whether he came around on the weekends.
[94] T 162.
J said that she continued to have a relationship with him but not like they had been when they were living together. She said that there was no sexual activity between them from the time he moved out. Her relationship was “ring only” after he moved out in March 1988.
J said that the relationship actually ended sometime in 1989. They were due to get married within a few months as they were still engaged. J thought they had planned to get married in December 1989. She said they had always planned to have a long engagement.
J was cross-examined about that issue. It was suggested to J that in fact there had been a number of wedding dates and that there had been an earlier wedding date in 1986 that had not gone ahead. She did not agree with that suggestion. The document from the Community Welfare Department dated 15 January 1986 suggested that she had previously lost $300 on a booking for engagement arrangements which had been called off. She agreed with that. There is an inconsistency as this was back in January 1986. J was recalled to give evidence after a proposed amendment to the information.
J confirmed that she planned to get married to the accused in December 1989 and that they had only the one date set. This evidence was confusing.
J was shown a document from the Department of Community Welfare that indicated that T was interviewed at school on 26 November 1987. Her previous evidence had been that within a few months the accused had moved out to Valley View. She was reminded of the exhibit that she had signed dated 11 February and that the accused moved out shortly after that date.
However she was then asked about the complaint that T had made to her and her evidence was that this occurred within the 12 month period of the accused moving out.[95] She was cross-examined about her statement to the police where she had put in her statement “it would have been within 12 months of (M) moving out that T came to me one day”. She conceded that if that was correct the complaint must have been made by early 1989. Despite all of this she refused to accept that the wedding was planned for 1987.
[95] T 300.
Eventually she was shown a document that suggested that 12 December 1987 was a date when she was getting married. She conceded that December 1987 could have been the date.[96]
[96] T 303.
J’s evidence about this issue showed that she had little independent recollection of events in the late 1980s.
J said that after she spoke to the Department she was vigilant in looking out for the children. She said that she was watching the accused like a hawk in relation to the girls.[97] J said she “was watching him, yes for sure”.[98] She said she never saw any inappropriate conduct from the accused and at that time the girls had not complained to her. J said that once the accused moved out she didn’t think him getting in the pool with the girls was “a proposition”.[99] I reject that evidence.
[97] T 169.
[98] T 169.
[99] T 170.
When questioned about how long after the school interview that she talked to the accused about the matter she was unable to say. She did say it was not a long time.[100]
[100] T 170.
J said that as a rule she generally didn’t leave the children alone with the accused.
J was unable to remember any contact with the Community Welfare Department at Tea Tree Gully. J was shown a document dated 11 February 1988 which she had signed as had the accused. It is a document that set out an agreement between the Department of Community Welfare and her family regarding the safety of T and C. She had no recollection of the meeting or the document. It became Exhibit D3. J did accept that as a result of that letter the accused left the house shortly thereafter. She confirmed that after that letter and particularly the earlier letter of November 1987 that she was watching her children carefully. She again confirmed that there were no sexual relations between her and the accused after this date.[101]
[101] T 180.
Having said she was watching him, J said that after she asked the accused to move out and he moved into the unit he was still coming over for dinner and there were times when he was in the house when he could wander around by himself.[102] She did see the accused in T’s room. She initially said [103] that she saw him in T’s room a couple of times. She then said:
After the department – the conversation I had with the department, they told me I had to keep an eye on him and after that I was very vigilant, so many a time he would go in there and I would turn around and tell him to get out because she had her homework to do and I felt that I – no, I did have a responsibility to those girls.[104]
[102] T 158.
[103] T 159.
[104] T 159.
On the times when she saw him in the room she would walk in and he would be standing behind her leaning over her shoulder as she was doing her homework. This was despite the conditions in the “contract” Exhibit D3, namely that the accused was not to have unsupervised access to the children. The accused being alone with T in her bedroom occurred both before and after the Family Services meeting.[105]
[105] T 160.
J initially said that the Department spoke to her just a few months before the relationship ended in September 1989.[106] When it was suggested to her that they had spoken to her sometime in 1986 or 1987 she just simply said that it did not really help her memory.[107]
[106] T 162.
[107] T 163.
It was very clear to me that J had very little recollection of the relationship she had with the accused between 1986 and 1989. Indeed the following interchange took place following a question from me:
QIf the interview occurred in November ’87, it was almost two years before you ended the relationship with (the accused). Does that accord with your memory or you just can’t remember.
ANo.[108]
[108] T 164.
J recalled that by late 1988 perhaps early 1989, T and C refused to go for weekend contact with their father and part of the reason was the problem with netball. She did not remember any suggestion of her former husband touching her children on the legs or anything of that nature.[109]
[109] T 186.
I am unable to accept much of the evidence of J. The documentary evidence proves a number of events and the dates on which those events occurred.
It is clear that the Department spoke to her as early as 1986 about the allegations made by her former husband against the accused. It is also clear from the notes that the investigation caused their approaching marriage to be deferred. It must have been the case that they were going to get married either late 1985 or early 1986. Despite those dates J maintained that the Department spoke to her “a few months before the relationship ended”.[110] That simply cannot be correct.
[110] T 192.
Even if by the expression “the relationship ended” J meant when the accused moved out to a unit, that event occurred in March 1988, namely two years after she was first spoken to by the Department. There was another 18 months or so before T complained to her mother.
J gave evidence that the relationship ended after T spoke to her about the accused touching her. She also gave evidence that after T spoke to her she called off the engagement and they moved out of the Modbury home a few months later. That was in the early months of 1990. I accept that evidence.
When the Department spoke to her in May 1989 she told the Department that everything was fine. At that stage it is clear she was still in a relationship with the accused although he was living in a unit. That occurred over three years after the Department first spoke to her.
Why J has such a poor recollection is unclear. Her evidence was confused and unclear. Whilst she said she “watched the children like a hawk” she also said the accused used to wander around the house by himself after he had moved to the unit.[111] She also said that after the Department had spoken to her she was “vigilant” but at the same time she told me that in relation to T’s room, “many a time” he (the accused) would go in there and I would turn around and tell him to get out because she had her homework to do.[112] On the times that she saw him she would walk in and he would be standing behind her leaning over her shoulder as she (T) was doing her homework.
[111] T 158.
[112] T 159.
I find that J, after she was spoken to by the Department, did not “watch the children like a hawk”. Indeed she was not vigilant. Once T complained to her she may have become vigilant.
I find that J and the accused continued to have a good relationship until T complained in the later months of 1989. Although the accused was at that time living in a separate unit, I find he visited regularly for meals. I find that the relationship continued to be of a sexual nature until T complained to her mother. It was only after T complained that J terminated the relationship with the accused and eventually moved out of the Modbury home. I find that this incident occurred in late 1989 and the family moved out in early 1990. Whether there was to be a wedding in December 1989 I am unable to say.
Evidence of Stephen Denton
He is a Detective Brevet Sergeant stationed in November 2004 at the Holden Hill CIB. He interviewed the accused and the record of interview video tape was tendered Exhibit P4 dated 9 November 2004.
In his record of interview the accused denied ever sexually assaulting either of the two girls. The accused agreed that he was sharing a home with J and the girls at Modbury.
He recalled accidentally coming out of the shower on one occasion when C “walked in on me”. He told the police that he was pretty embarrassed and sent her out. However, he denied walking from the shower to his bedroom naked.
When the specific allegations were put to him he denied ever touching either T or C and said that he had always “shown love when I was with the girls” and “I have always given them cuddles like most normal fathers would do. I just tried to be a father to the girls and that was it”.
The accused told the police that Children’s Welfare had been involved because their biological father had notified the Welfare Department that “I might be up to something”.
The accused said that he left the house for a while to let “things cool down” after the Welfare Department investigation and eventually had said to J, “look it’s my home – you are going to have to move out and I am gunna move back into my home”. He said that he proceeded to see J for quite a few months and it just didn’t feel right so in the end he said, “look we had better go our own separate ways” and that they had. He said they left on amicable terms.
I have carefully considered the evidence of Detective Denton. I reject the denials of the accused in the interview. I accept J’s evidence about how the relationship came to an end namely when T “complained”. C gave similar evidence as referred to earlier. They did not separate as described by him. I find he lied to the police about that. I find that their relationship ended after T complained. His lie to the police about that reflects on his credit.
Defence submissions
Mr Moffa, for the accused attacked the credit of both complainants.
In relation to T he referred to her evidence about crying herself to sleep every night for years. Mr Moffa submitted that T’s evidence about that was unbelievable and lacked credit. I agree that it is likely to be an exaggeration but I must bear in mind that she was a young girl at the time that these events occurred and that she was giving evidence of events that occurred over 20 years ago. I find that the accused did indecently assault her by touching her on the breasts on many occasions. Whilst she may not have cried herself to sleep “every night for years”, I find that she was certainly traumatised by the behaviour of the accused. Certainly her evidence about that did not adversely affect my assessment of her credibility.
Mr Moffa pointed to the evidence relating to the “interviews” with the Department. He submitted that both T and C had an opportunity to complain about the accused but neither did so. Both T and C agreed they had that opportunity and did not do so. I have already mentioned their reasons for doing so. I accept beyond a reasonable doubt the explanations of both girls. They were young and, at some stage at least, not seeing their biological father. Their mother was apparently happy and I accept that they did not choose to complain, at that time, for the reasons they gave.
Mr Moffa submitted that I should accept the evidence of their mother J as “she was the adult”. That is the “abuse” could not have happened because J was watching them “like a hawk” particularly after the Department became involved. I have already dealt with her evidence. Whilst she was not trying to mislead me, her evidence was often contrary to proven objective facts. She was a poor witness who had little independent recollection of events. I have no doubt that she continued her relationship in an emotional and sexual sense after the accused left the premises in early 1988. I do not accept her evidence that their engagement was “ring only”.
I do not accept that J watched over the children “like a hawk” after the Department became involved. Her evidence as mentioned previously demonstrates otherwise.
The note from the Department in 1986 suggests that despite C making some sort of allegation, J supported the accused and alleged that her daughter was lying.
Whilst it may be the case that J did not leave the accused in the house alone with the girls, it is clear that she did not monitor his movements within the house. I reject her evidence relating to the use of the pool.
Mr Moffa referred to the fact that both of the complainants had “issues” with their father. That is certainly the case and both girls remembered a time when they did not have access visits with their biological father. Mr Moffa submitted that given the problems with their father and the contents of the note Exhibit D7, there was clearly an issue with their father. T did not remember the discussion with the Department nor the fact of the alleged acts by her father. The fact that T said those things to the Department does not affect her credit in relation to the question of whether the accused sexually abused her.
It was submitted that the “issues” with the complainants’ father and the fact that their father clearly had problems with the accused, meant that I could not exclude as a reasonable possibility that in some way the complainants had subconsciously substituted the accused for acts perpetrated by their father and/or someone else. This in some way it was suggested was an attempt to “rekindle” the relationship with their father.
I reject such an explanation as being fanciful. The evidence of the complainants points unambiguously to the accused as the perpetrator of the sexual abuse.
I remind myself that the accused does not have to prove a motive for the complainants to lie. My rejection of the accused’s suggestion does not mean that I can use that rejection to support the Crown case. The absence of evidence of a motive does not strengthen the prosecution case. It is neutral. That being so, it would be wrong to conclude that, because there is no apparent reason to lie, the complainants must be telling the truth. Lies can be told for no apparent reason. Crucially it is not for the accused to provide a motive for the complainants to lie. At all times I bear in mind that prosecution bears the onus of proof beyond reasonable doubt.
Mr Moffa pointed to a number of inconsistencies, particularly in relation to T, occurring in their evidence. Generally the inconsistencies related between their statement to police and their evidence in court to the timing of events. I have carefully considered the submissions made by Mr Moffa about those matters. However none of the inconsistencies, either alone or taken together, causes me to doubt the evidence of either complainant.
I have scrutinised the evidence of T and C. I have done so carefully. I have borne in mind the forensic disadvantage the accused has because of the age of the complaints.
In my view they were both honest, truthful and reliable witnesses. I accept the evidence of each complainant beyond a reasonable doubt.
Findings
I set out below my findings which have been proved to my satisfaction beyond a reasonable doubt.
Count 1
I find that the accused asked T when she was about nine years of age to pull her bathers down. Her pubic area was exposed. The accused stared at her for about 30 seconds to a minute. I find that T was induced to expose her pubic area of her body by the accused and that he did so with the intention of satisfying his own desire for sexual arousal or gratification.
I find the accused guilty of this count.
Count 2
I find that the accused touched T on the breasts as alleged. Such touching amounts to an assault in circumstances of indecency.
However as discussed earlier, T was unable to distinguish one act from any other act. The allegation lacks specificity. If I were to find the accused guilty of the count he would not know for which act he had been convicted. If I were to acquit he would likewise not know for which act he had been acquitted. The count is bad for uncertainty (duplicity). I considered whether the appropriate remedy was a stay of the count. Mr Moffa urged me to enter an acquittal.
In the circumstances, because it is bad for uncertainty, I will acquit the accused of this count.
Count 3
I find proved beyond reasonable doubt that the accused, as stated by T, called her into his bedroom. He took her hand and made her masturbate him. That amounts to an assault in circumstances of indecency. At the time T was under that age of 12 years. Although T could not be precise about the date it certainly occurred before her 12th birthday.
I find the accused guilty of this count.
Count 4
On the same occasion as alleged in Count 3, having let go of T’s hand, the accused made her “straddle” him. She was wearing her nightie and knickers. The accused made her move backwards and forwards along his penis for a short period of time. That is an assault in circumstances of indecency. T was under the age of 12 years at the time.
I find the accused guilty of this count.
Count 5
The accused had T measure his penis. She was around 10 years of age at the time. The accused held his penis whilst T measured it with a ruler that she had obtained.
The act was done in the presence of T. She was under the age of 16 years. I find that the act was indecent and gross as earlier defined.
I find the accused guilty of this count.
Count 6
I find that the accused came into T’s bedroom as alleged. He grabbed her hand and placed it on his penis and had her masturbate him. I find that is an assault in circumstances of indecency.
I find the accused guilty of this count.
Count 7
I find that having performed the act described in Count 6 the accused wiped the end of his penis on her nose. I find that this act was an assault in circumstances of indecency.
I find the accused guilty of this count.
Count 8
I find that the accused, whilst in the swimming pool with T, called her over and stood behind her. As he gave her a hug he rubbed his partially erect penis up against her at the top of her bottom and lower back area. His penis was out of his bathers on this occasion.
I find that this act was an assault in circumstances of indecency.
I find the accused guilty of this count.
Count 9
I find the accused called C into his bedroom. He pulled her onto his lap so that her legs went around his waist. He pressed his penis against her vagina. He made her “jiggle” on his lap at that time. I cannot be precise about the age of C at the time but she was certainly under the age of 12 years at the time of this offending.
I find that this act amounts to an assault in circumstances of indecency.
I find the accused guilty of this count.
Count 10
I find that the accused was in the swimming pool with C. He grabbed her from behind. He had an erection at the time and he rubbed his erect penis against her bottom. He did so whilst his penis remained inside his bathers. C was no more than nine years of age at the time.
I find that this act was an assault in circumstances of indecency. C was under the age of 12 years at the time.
I find the accused guilty of this count.
Count 11
I find the accused, whilst in the kitchen of the Modbury house, rubbed the chest area of C. He did so on the outside of the clothing. She told him to stop. He replied words to the effect “you don’t have breasts yet so it doesn’t matter”. C was 10 years of age at the time.
I find the act was an assault in circumstances of indecency. C was under the age of 12 years.
I find the accused guilty of this count.
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