R v B, CJ
[2015] SADC 124
•3 September 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, CJ
Criminal Trial by Judge Alone
[2015] SADC 124
Reasons for the Verdict of His Honour Judge Cuthbertson
3 September 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Defendant charged with three counts of Unlawful Sexual Intercourse.
Verdict: Acquitted of all counts.
Criminal Law Consolidation Act, 1935 s 49(1), referred to.
R v B, CJ
[2015] SADC 124
In this matter the accused is charged with three counts of Unlawful Sexual Intercourse with his daughter, F, when she was between the ages of 11 and 13 years.
The charges are as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
B, CJ between the 1st day of December 2005 and the 14th day of May 2006 at Glenelg North, had sexual intercourse with F, a person of the age of 11 years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
B, CJ between the 1st day of January 2006 and the 14th day of May 2006 at Glenelg North, had sexual intercourse with F, a person of the age of 11 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
B, CJ between the 1st day of January 2008 and the 28th day September 2008 at Glenelg North, had sexual intercourse with F, a person of the age of 13 years, by inserting his penis into her anus.
F was born on 29 September 1994 and was 20 years at the time of giving evidence.
Her younger sister, D, is now aged 16 years.
The family lived together in a house at Glenelg North at all relevant times.
The events are said to have taken place in their small, suburban house. The bedrooms are close to the main living area.
Count 1 is alleged to be the first time that the accused had sexual intercourse with F.
She was about 11 or 12 years old and going from Year 5 to Year 6. Her recollection is that it may have been the school holidays when she was about to transition from one school to another. The basis for this recollection is that it was “really sunny”.[1]
[1] T 25.
The complainant’s mother was working at a business teaching quilt-making at the relevant time, so the complainant concludes it would have been a Saturday.[2]
[2] T 25.
The accused, the complainant and her sister had a picnic outside in the back garden that day. In the morning they watched Saturday Disney on television as that is what they always did.[3] The picnic consisted of cold meat sandwiches.[4]
[3] T 26.
[4] T 28.
After the picnic the complainant went inside to have a shower and get changed out of her pyjamas. She was walking into the bathroom naked when the accused came out of D’s bedroom and grabbed her hand.[5]
[5] T 28.
He sucked and licked her nipple just outside the doorway to the parents’ bedroom.[6]
[6] T 30.
It is apparent from the plan[7] and photographs[8] that this would have been easily seen by anyone walking from the kitchen to the dining room of the house or vice versa or to anyone in the doorway of any of the bedrooms. In other words, it was in a very exposed location of the house.
[7] See Exhibit P2.
[8] See Exhibit P1.
The complainant thinks that D was in the lounge room at the relevant time,[9] so she could fairly easily have moved to a location in which she could have seen what was happening.
[9] T 30.
The accused stopped the activity outside his bedroom door because D ran from the lounge room to the kitchen.[10]
[10] T 32.
The accused then guided the complainant into his bedroom.[11] She went to her mother’s side of the bed and he went to his side of the bed.[12] There was no conversation.[13] The bedroom door was not shut. D would have been able to see them if she went to the doorway of her bedroom.
[11] T 33.
[12] T 34.
[13] T 35.
The accused got undressed, got into bed and gave the complainant a back scratch,[14] which was a common way of displaying affection in the family. He moved the complainant’s hand to touch his penis, which was erect. This occurred for about five minutes.[15]
[14] T 35.
[15] T 35.
The complainant relinquished hold of his penis and the accused then got on top of her and put his penis in her vagina,[16] the act which is the subject of Count 1. By this stage nothing had been said between the accused and F.[17] He ejaculated on her stomach.[18]
[16] T 37.
[17] T 38.
[18] T 39.
After he ejaculated, he put on his underwear and left and the complainant went and had a shower.[19] Then she went to the kitchen. The accused was there fully clothed and he told her, “not to tell mum as I know the trouble that it would cause him”.[20]
[19] T 39.
[20] T 40-41.
No precaution appears to have been taken by the accused to prevent D from observing any of this conduct and she was certainly about in the house. On the other hand, she was only 7 or 8 years of age at the time and the accused may have calculated that if she happened upon them she would not have understood the significance of what was happening.
F’s mind is blank on the issue of her mother coming home that day or what she did for the rest of that day.[21] She does, however, remember that she did not tell anyone because the accused had told her she would be in trouble.
[21] T 43.
Count 2 is alleged to be the next time the accused sexually interfered with the complainant. It occurred a couple of months later[22] and the complainant was in Year 6.[23]
[22] T 48.
[23] T 49.
On this occasion the accused, F and D were having a picnic on the chairs in the veranda at the back of the premises.[24] The complainant assumes her mother was at work because she was not at home and that is where she would normally be.[25] It was on the weekend as otherwise they would have been at school during the day.[26]
[24] T 49.
[25] T 49.
[26] T 50.
The details of this incident are remarkably sketchy. The complainant said, “I remember the picnic and then I just remember being in the bed”.[27]
[27] T 50.
When asked if the complainant remembered how she got from the picnic to the bed she replied, “I can’t remember. Just blank. I just remember being in the picnic and I remember laying there”.[28]
[28] T 50.
The complainant has no recollection where D was on that occasion. I note that if D was in the house, due to its compactness it would have been easy for D to have seen into the bedroom through the bedroom door. F cannot remember getting undressed or her father getting undressed.[29]
[29] T 51.
On this occasion the accused was between her legs in front of her with her legs on his shoulders with his penis inside her vagina. All she can remember is him saying at one stage, “Can you feel it?”[30]
[30] T 51.
She cannot remember if the accused’s body was moving, or anything about his breathing, “I can kind of just picture it like a still frame in my head”.[31]
[31] T 52.
Afterwards they cuddled, her head was up into his chest[32] and she could not breathe properly.[33]
[32] T 52.
[33] T 54.
The incident came to an end because the complainant’s mother was heard to pull into the driveway of the house, causing the accused to get up and quickly get dressed.[34]
[34] T 54.
The recollections of events surrounding this incident are remarkably sparse. When asked about other occasions that she remembers being in her parents’ bed with the accused she replied, “I remember just like little flashes of things and little feelings but nothing specific that I could really tell you about”.[35] When asked about the flashes the complainant said, “just laying in the bed and just like mum and dad had this, like, this crystal sun thing that reflected the light into rainbows on the walls, I can just remember there, like, looking at those”,
QAre you able to say whether you are remembering that flash from those occasions or from another occasion?
AI really couldn’t be sure but I feel like there were other occasions.[36]
[35] T 55.
[36] T 55.
As to the acts comprising Count 3, the complainant cannot remember how she came to be on her hands and knees nor how the accused got to be behind her.[37] She cannot remember whether there was any conversation beforehand, she simply remembers being startled.[38]
[37] T 58-59.
[38] T 59.
She remembers he put his penis in her anus. This is the act constituting Count 3. She assumes that D was in the next bedroom.[39] She remembers the accused muttering something and leaving.[40] The account of the circumstances surrounding this alleged offence is remarkably sketchy.
[39] T 60.
[40] T 61.
On none of these occasions did she ever ask him not to commit these acts on her or ask him why he was doing it or anything of that nature. It is significant to point out that there is no evidence that the accused was a tyrant and that his children were fearful of him.
Between the second occasion and this occasion there had been other acts but the complainant is extremely vague as to the nature and frequency of these acts.
The next occasion after the incident described as Count 3 when something of a sexual nature occurred was on the complainant’s 16th birthday. There is nothing that can be recalled as having occurred between the ages of 13 and 16.[41]
[41] T 65.
She went to Melbourne for her birthday with her father and sister. That morning they had had breakfast at Glenelg for her birthday and after breakfast caught a plane to Melbourne.[42] It was a weekday and there was a cycling championship in Geelong.[43] The family, especially the accused I am told, were very interested in cycling.
[42] T 66.
[43] T 66.
The complainant gave an account that they arrived in Melbourne, travelled to the Crown Metropol Hotel, which is at Southbank, and then caught a train to Geelong.[44] Later that night they returned to the hotel in Melbourne, having missed the return train from Geelong, and arrived back in the cold and dark.[45] They had had the evening meal at a hotel in Geelong.
[44] T 66.
[45] T 67.
There were two double-sized beds in the hotel room. The accused slept in one and one was shared by the complainant and D.[46] The complainant got into bed with D and was given half a glass of champagne for her birthday.[47] D would have been about 11 or 12 years of age.
[46] T 68.
[47] T 69.
The accused asked the complainant if she wanted a back scratch and so she got into his bed.[48] D was apparently asleep.[49] The accused then commenced licking the vagina of the complainant while she was lying on her back in the bed.[50] The sheets and quilt were thrown back such that the complainant did not have anything on top of her.[51] If D had looked over she would have been able to see them.[52] The accused then put his penis inside the complainant’s vagina and ejaculated.[53] The complainant wiped the ejaculate using a tissue from a desk in the room, put her knickers back on and went to bed.[54]
[48] T 69.
[49] T 69.
[50] T 71.
[51] T 73.
[52] T 73.
[53] T 74.
[54] T 75.
During cross-examination the defence tendered a “Flight-Conformation” document.[55] It tended to demonstrate that the accused and the complainant could not have booked into their hotel room and travelled to Geelong by train on the same afternoon or evening, as arrival at Melbourne Airport from Adelaide was at 4.50 pm.
[55] See Exhibit D3.
D gave evidence supporting the proposition that they did not travel to Geelong by train on the first night they arrived in Melbourne.[56] Of course, it is always possible that the complainant is mistaken and that the occasion when they went to Geelong to watch the cycling and returned back to the hotel room may have been the following night or the night after that.
[56] T 163.
There is a further difficulty for the prosecution case. The complainant asserts that she was so concerned that this act might have made her pregnant that she obtained a pregnancy testing kit back in Adelaide, with a friend, and that she used it to test whether she was pregnant.[57] There is some support for this in that the complainant’s mother confirms that she did find a used pregnancy testing kit in the bedroom of the complainant[58] and her friend does confirm that she was with her when the complainant purchased a pregnancy testing kit and used it to determine that she was not pregnant.
[57] T 78.
[58] T 194.
The difficulty is that the complainant’s mother,[59] whilst being somewhat vague about when they found the pregnancy test kit, seemed to put it at a period a considerable time after the trip to Melbourne, thus casting doubt on the asserted linkage between the alleged act of intercourse in Melbourne and the obtaining of the pregnancy test kit. The witness, G, confirms she was with the complainant when the pregnancy test was purchased but is vague about when this occurred.
[59] T194.
Moreover, this was at a time when the complainant was sexually active with a boyfriend[60] so there is always the theoretical possibility that the test kit might have been prompted by sexual activity between the complainant and her boyfriend rather than the alleged sexual activity between the complainant and the accused.
[60] T 82.
I note that the complainant says she always used condoms with her boyfriend.[61]
[61] T 83.
Finally, there is the issue of recent complaint evidence. I remind myself that evidence of recent complaint is not evidence of the truth of the sexual activity complained about. It may, however, be evidence confirming the credibility of the complainant in showing consistency with what one might expect if the complainant’s complaints were true or it might demonstrate inconsistency and hence cast some doubt on the credibility of the complainant.
In this instance, at a dinner at a restaurant with friends in November 2011[62] the complainant is alleged to have told a friend that she had had sexual intercourse with her father.[63]
[62] T 85.
[63] T 87.
Prior to making that admission the complainant had said that she had had sexual intercourse with her uncle.[64]
[64] T 86.
The complainant’s explanation was that she was so embarrassed to mention that it was her father who had done those things that she substituted her uncle and later corrected it. Either way, whether she said it was her uncle or her father, it would have been a controversial admission to make to her friends. If she wanted to make an uncontroversial admission, she could have made up a fictitional sexual partner of about her own age or her then sexual partner.
There is little assistance to the credibility of the complainant given the content of her “recent complaint”.
Before I can convict the accused I must be satisfied beyond a reasonable doubt that the acts, the subjects of Counts 1, 2 and 3, actually occurred as alleged. I must consider whether if I have some doubts about the accuracy of the complainant’s account in relation one count, it might affect my confidence in her accuracy in relation to other counts charged.
There was nothing wrong with the way the complainant gave her evidence. There was nothing in her evidence that gave me cause to positively disbelieve her, and her evidence may well be accurate and true.
I am concerned about the following matters.
There is no evidence that the accused was other than a kind father. He was not a tyrant.
In those circumstances it is perhaps unusual that the complainant did not remonstrate with him, at least in relation to the later allegations if not the first, or ask him what he was doing or request that he desist.
In considering that issue, I, of course, am aware that consent is not an issue and lack of a struggle or resistance by words or actions is not, by itself, significant.
Although the prosecution opened that there were a number of other uncharged instances, the evidence about any such uncharged instances is extremely vague.
The facts surrounding Counts 2 and 3, as alleged by the complainant, are extremely vague. There seems to be no detail as to how the accused and the complainant got to be where they were when sexual activity occurred and how they got to disengage.
The incident that one would expect to be clearest in the complainant’s memory, namely the act on her 16th birthday on the day they arrived in Melbourne, is not borne out by the independent evidence of the time the flight arrived in Melbourne and the evidence of D.
The evidence about the contemporaneity between the alleged act in Melbourne and the performing of the pregnancy test, such as it is, tends to refute any causative link between the two as it tends not to support the complainant.
I remind myself that the accused did not give evidence. He was not required to give evidence and I must not hold it against him that he elected not to give evidence.
I am obliged, therefore, to consider the complainant’s evidence alone, supported or contradicted as it is by the other evidence called by the prosecution.
For the reasons I have pointed, out I am unable to reach that degree of satisfaction that enables me to say that the elements of the offences have been proved beyond reasonable doubt.
I must accordingly acquit the accused.
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