R v B, F - [2013] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, F
Criminal Trial by Judge Alone
[2013] SADC 160
Reasons for the Verdict of His Honour Judge Cuthbertson
11 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
- INDECENT ASSAULT
Accused charged with indecent assault of his step-daughter.
Verdict: Not guilty
Evidence Act 1929 s 34M(2), referred to.
Dyers v The Queen (2002) 210 CLR 285, considered.

R v B, F
[2013] SADC 160

The accused stands charged with Indecent Assault.
The particulars, after amendment during the trial, are that the accused between 8 October 1984 and 7 October 1985, at Wynn Vale, indecently assaulted the complainant, a person of the age of about 13 years.
The allegation is a very simple one. It is alleged that approximately 30 years ago[1] the step-daughter of the accused was being massaged by the accused. During the course of the massage she was lying on her front and the accused, over her clothes, placed his hands between her thighs and touched her on the outside of the vagina.[2]
[1] T42.
[2] T27, T42, T43.
The allegation covers a small compass. Given the confined nature of the allegation it is extremely hard to make findings of fact preferring one version of facts to the other. There is less room for corroborative evidence or expansive evidence on the allegations to make for the preferment of one version to the other.
At the time of the allegation the complainant, who was the natural daughter of the accused’s wife but not of the accused, was living in a household at Wynn Vale[3] with the accused, his wife and her sister[4] who was at the relevant time about 13 years old.[5]
[3]    T40.
[4]    T40.
[5]    T42.
The complainant gave evidence in a totally satisfactory manner. I want to make it clear that there was nothing inherently unbelievable or apparently misleading or inaccurate that I could detect in the evidence of the complainant.
As well as the evidence relating to the particular offence I permitted the complainant to give evidence about two other matters which may be described as discreditable conduct within the meaning of s 34P of the Evidence Act.
Firstly, the complainant gave evidence that the accused would frequently enter the bathroom when she was having a shower.[6] He would stand looking at her.[7] The shower recess had a shower curtain which did not provide a sufficient screening of the complainant in the shower from the gaze of the accused.[8]
[6]    T37 L21-22.
[7]    T37 L21-22.
[8]    T37 L31, T38 L3.
I permitted this evidence to be led as evidence of a sexual interest by the accused in his step-daughter at a time relevant to when the offence is alleged to have occurred.[9]
[9] See Ruling transcript.
The second topic of evidence was that the complainant alleged that the accused would frequently have a bath and the complainant would be required to knock and enter the bathroom to wash her hands if she had been to the toilet.[10] She would invariably find the accused in the bath, masturbating himself whilst viewing a pornographic magazine.[11]
[10] T40.
[11] T40-T41.
I permitted this evidence to be led as evidence of why the complainant may not have complained about the sexual incident alleged which is the subject of the charge.[12] In particular it demonstrated that she was no stranger to sexual improprieties from her stepfather.
[12] See Ruling transcript.
I have formed the view that the probative value of both pieces of evidence outweighs their prejudicial effect. This being a trial by judge alone I will not permit the evidence to have any prejudicial effect on my resolution of the issues to be tried.[13]
[13] See Ruling transcript.
Further issues arose during the trial as to the following:
1Whether the bathroom had a shower curtain or an opaque shower screen as asserted by the accused and present in a photograph produced by the accused.[14]
2Whether the complainant was the subject of harsh discipline and violence from the accused, this being submitted by the complainant as a reason why she never complained about the conduct.
[14] See Ex D1.
In particular, the complainant asserts that there was an occasion when shortly after the incident when she went to a Year 9 social function and was required to be brought home by a teacher because she was intoxicated.[15] On this occasion it is said that the complainant suffered bruising as a result of an assault by the accused.[16]
[15] T47.
[16] T75, T480 & T710.
A further incident was alleged by the complainant in which she was assaulted by the accused punching her.[17] The accused took her to the police station and invited her to make a complaint which she failed to do.[18]
[17] T49.
[18] T50.
There is also an issue of a lack of recent complaint.
The complainant claims that she did not complain to her mother because her mother treated her harshly and she felt lonely and somewhat of an outcast in the family.[19] Further she was scared of the accused.[20]
[19] T35, T46.
[20] T36, T47.
The defence point out that she had ample opportunity to make a complaint. In the first place, she had previously made a complaint of sexual assault against her grandfather.[21] As a result of this she had been seen extensively by social workers at Families SA and was well aware of the impropriety of an adult sexually interfering with a child and well aware of the mechanisms open for complaining.[22]
[21] T80.
[22] T80, T116-T117.
Further there was an opportunity to complain when the complainant was brought home drunk from the school social by a teacher and subsequently taken to Families SA.[23]
[23] T48.
Finally, there was a further opportunity when the accused took her to the police station with the invitation to make a complaint after the complainant had alleged to him that he had physically assaulted her.[24]
[24] T50.
Section 34M(2) of the Evidence Act relevantly provides as follows:
34M—Evidence relating to complaint in sexual cases
(1) ...
(2) 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.
(my underlining)
A lack of complaint of itself has no probative value in relation to the alleged victim’s credibility.
Here in my view there are circumstances over and above the mere lack of complaint that give me some concern about the lack of a timely complaint.
The additional matters are as follows:
1 The complainant as a result of being interfered with by her grandfather had been the subject of intervention by Families SA and that organisation had advised her in all probability of the need to complain about any sexual interference made her aware of the mechanisms whereby complaint could be made and, in any event, the experience must have given the complainant knowledge of a ready means to make complaint.
2 A specific opportunity to complain occurred when the accused took the complainant to the police station inviting her to complain about an allegation of assault by the accused. It must also have reminded the complainant of further causes of complaint.
The fact that the prosecution led evidence of reasons for not complaining means that, reasons having been advanced by the complainant, the defence must be entitled to discredit those reasons and is not required simply to accept them at face value.
The accused gave evidence on oath and denied that he had ever sexually interfered with the complainant, or that he had assaulted her after having been brought home from a school formal while drunk or before taking her to the police station and inviting her to make a complaint.
He denied that apart from a month after moving in to the house, there was ever a shower curtain as opposed to an opaque shower screen. This would have made it impossible for him to watch the complainant while she was in the shower.
He denied that he treated her harshly or punished her harshly as a father.
Although the complainant denied making any complaint about the accused’s conduct and advanced reasons for not doing so, she did claim that she told her girl friends.
I am troubled by the lack of evidence adduced by the prosecution to support in any way the evidence of the complainant.
There was a great deal of scope for the prosecution to call evidence:
1 Of complaint to her school friends.
2 Of having been brought home drunk by a teacher.
3Of having been seen with bruising by Families SA.
4Of anything seen by anyone supporting the proposition that the accused ever had frequent baths in the bathroom.
5That he ever harshly treated the complainant.
One might have thought that the fact that the accused frequently had baths and had a pornographic magazine in the bathroom and the fact that he frequently went into the bathroom when the complainant was having a shower, and the state of the shower screen, might have been noted by the complainant’s mother or her 15 year old sister. Others too might have been expected to have observed of the complainant by the neglect of harsh treatment.
It is true that I must not speculate on what witnesses who were not called may have said.[25] On the other hand, if the absence of witnesses causes me disquiet, it can create a doubt against the background of the principle that the prosecution must prove its case beyond reasonable doubt. The lack of corroborative evidence troubles me in a case where it is one word against another.
[25] Dyers v The Queen (2002) 210 CLR 285.
In all the circumstances I cannot be satisfied beyond reasonable doubt of the guilt of the accused and there will be a verdict of acquittal.