R v B,FA
[2013] SADC 85
•26 June 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B,FA
Criminal Trial by Judge Alone
[2013] SADC 85
Reasons for the Verdict of His Honour Judge Soulio
26 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with two counts of indecent assault.
Verdict: Not guilty of both counts.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 56, 57; Criminal Law Consolidation Act Amendment Act No. 107 of 1981; Evidence Act 1929 (SA) ss 34CB, 34L, 34M, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 207; R v J, JA (2009) 105 SASR 563; Crampton v The Queen (2000) 206 CLR 161; R v ALJ 117 A Crim R 370; R v Livingstone [2011] SASCFC 28; R v Sluczanowski (2008) 256 LSJS 277, considered.
R v B,FA
[2013] SADC 85Background
The complainant, S, was born in 1969 and is 44 years of age. She alleges that between 1 January 1979 and 8 February 1982, when she was between nine and 12 years old, she was indecently assaulted by the accused, who was her step-father. She further alleges that between 1 January 1986 and 31 December 1986, when she was between 16 and 17 years old, the accused again indecently assaulted her. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The accused is charged with two counts of indecent assault pursuant to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1]
[1] As the Act stood at the relevant times.
In relation to Count 1, s 56 provided:
S 56A person who indecently assaults any person shall be guilty of a misdemeanour, and for a first offence, liable to be imprisoned for any term not exceeding five years and for any subsequent offence to be imprisoned for any term not exceeding seven years.
Thereafter, and relevant to Count 2, s 56 provided:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.[2]
[2] Section 56 CLCA was amended by the Criminal Law Consolidation Act Amendment Act No. 107 of 1981 which came into effect on 11 February 1982.
The particulars alleged are that:
First Count
The accused between the 1st day of January 1979 and the 8th day of February 1982 at Redwood Park, indecently assaulted S, a person of the age of between 8 years and 11 years inclusive.
Second Count
The accused between the 1st day of January 1986 and the 31st day of December 1986 at Wynn Vale, indecently assaulted S, a person of the age of 17 years.
S’s evidence in relation to the first count, in general terms, was that the incident occurred in her bedroom, when she was living at Redwood Park. She awoke to find the accused standing at her bedside touching her in the vaginal area with his left hand. She alleges that the accused had pulled her underwear to the side and was rubbing his fingers on her vagina. Once the accused noticed she was awake he stopped and moved away.
Her evidence in relation to the second count, in general terms, was that the incident occurred after the family moved to Wynn Vale, and again occurred in her bedroom. That incident, she said, began when the accused commenced massaging her calves, her back and her shoulders. He then asked her to turn over, following which he brushed the side of her breast. She told him to stop, but he then cupped his hand on her breasts over the top of her bra.
Although a range of dates in relation to each offence is alleged in the Information, the exact date is not an essential ingredient of any of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[3]
[3] R v Dossi (1918) 13 Cr App R 158 at 159–60.
General Directions
It is necessary to give consideration to the elements of each offence and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the initial “complaint” by S.
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to either charge I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied before I could convict the accused of any count on the Information that the prosecution has proved, beyond reasonable doubt, each element of the charge. Where I refer to something being proved, or me being satisfied of, or accepting something, I shall mean beyond reasonable doubt.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of the charge. I bear in mind that both the complainant and the accused are entitled to a separate consideration of the appropriate verdict in relation to each count.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence, and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
Complaint
The provisions of s 34M of the Evidence Act 1929 (SA) apply[4] and evidence of the initial complaint by S, in relation to Count 1, was led in accordance with that section which provides:
[4] R v Seigneur (2009) 103 SASR 207.
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(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.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii) as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The first offence against the complainant is alleged to have occurred between 31 and 34 years ago. The initial complaint was said to have been made to the complainant’s mother shortly following the incident. The complainant’s mother and sister, but not the complainant, said that a family meeting ensued at the kitchen table, and the accused apologised and said that “it wouldn’t happen again.” I shall return to that topic later.
In relation to Count 2, which is said to have occurred some 27 years ago, it is unclear, on the prosecution case, as to when a complaint was first made. The complainant’s mother said that she became aware of the incident because of something said by the complainant’s sister, and said that she again confronted the accused who admitted the inappropriate touching. The complainant’s account of telling her mother was quite different. She said that she telephoned her mother some weeks after the massage incident.
The complainant subsequently made a report to police in 2009. That is not asserted to be an elaboration of the initial complaints.
I bear in mind that evidence of an initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency of the conduct of a complainant and the reliability, or otherwise, of her evidence.[5] It is not admitted as evidence of the truth of what a complainant alleges.
Delay in Complaint
[5] R v J, JA (2009) 105 SASR 563 (per Duggan J) at [93].
Here, whilst on the prosecution case there was, in relation to each count, a complaint made to the complainant’s mother at a relatively early stage, there was a very significant delay in bringing the matter to the attention of the prosecuting authorities.
Section 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint. However, if I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach each charge on the basis that I should give close scrutiny to the complainant’s evidence.
I bear in mind that in a case, as here, involving lengthy delay, the defence will frequently consist simply of outright denials because the passage of time denies the necessary forensic weapons that contemporaneity provides.[6]
[6] Crampton v The Queen (2000) 206 CLR 161 at [45].
The Elements of the Offences
Indecent Assault
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove each of four elements beyond reasonable doubt.
The first element which must be proven is that there was an application of force to another person. Any touching or handling is sufficient. There need not be any great application of force. In relation to Count 1, the acts alleged to constitute the assault are that the accused touched the outside of the complainant’s vagina. In relation to Count 2, the acts alleged to constitute the assault are the touching of the side of the complainant’s breast, and touching both breasts when she was laying on her back.
The second element requires that the application of force must be intentional rather than accidental touching. Here, on the prosecution case, the nature of the contact is such as to lead only to the conclusion that the actions were intentional.
The third element is that the application of force must be without lawful justification or excuse. In relation to each count, given the age of the complainant, and the relationship between the accused and the complainant, consent is not an issue.[7]
[7] Section 57(1) CLCA relevantly provided: No person under the age of eighteen years shall be deemed capable of consenting to any indecent assault committed by any person who is his or her guardian, teacher, schoolmaster or schoolmistress.
The fourth element is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which, by any reasonable standard, can only be described as indecent. The defence did not dispute that if the acts alleged by S were committed, the acts constituted acts of indecent assault.
Witnesses
The Crown case comprised the evidence of S, the evidence of her mother, AD, and her sister HH, and brief evidence from the investigating officer Mr Maskall. The accused gave evidence in his own defence and was the only defence witness.
The Prosecution Evidence
The Complainant S
The complainant gave evidence about her family circumstances and the fact that she first met the accused when she was about six years of age. She said she, her sister, who is two years younger that the complainant, and their mother moved into the Walkerville Caravan Park with him.[8]
[8] Referred to by other witnesses as the Levi Caravan Park.
The family, including the accused, then moved to St Agnes, and later to Redwood Park where it is alleged Count 1 was committed. The complainant said that during summer one year she went to bed in her own bedroom at about 7pm and fell asleep. Some time later she awoke to find the accused touching her vagina, and said her underwear had been moved to the side. She made it clear to the accused that she was awake and the accused moved away and pretended to open the curtains. She said that she called out to her mother more than once, and that her mother came in. She told her mother what had happened and her mother went to the living room and spoke to the accused before returning to check that the allegation was true. She said that her mother then again spoke to the accused and reported back to the complainant that the accused had said he was sorry and it wouldn’t happen again.
The complainant said that following that incident her relationship with the accused changed and she no longer trusted him.
Subsequently the family moved to Wynn Vale, where Count 2 is said to have occurred. After a time the complainant came to trust the accused again. She said that she played softball at school and after a game her mother sometimes massaged her back and legs.
However, on a particular occasion, when she was in her late teens, she said the accused gave her a massage on her legs and back and then asked her to roll over. She said she didn’t want to but the accused persuaded her to. He touched her on the side of her breast and she became angry. The accused then used both hands and cupped her breasts and said “I want to show you everything I know”. The complainant said that she grabbed the accused and pinned him against the wall and told him that she would kill him. She initially said in evidence she was about 15 years old at the time and was attending Modbury Heights High School.
She said that she did not tell anyone about what had happened that time because she didn’t think she would be believed.
She said that she moved out of the Wynn Vale house “pretty much straight away”. She later contacted her mother by telephone to explain what had happened, because a youth worker told her to do so.
She said later in examination-in-chief that she left home when she was 17 years old and that the incident giving rise to Count 2 occurred weeks before her 17th birthday.
Cross-examination
When cross-examined the complainant agreed that when she spoke to police in May 2010 she told them that Count 1 occurred in the summer of 1977,[9] and that she thought she was nine years old at the time.
[9] The Information originally particularised Count 1 as having occurred between 1 January 1977 and 31 December 1977.
However, in evidence she said the incident occurred between 1978 and 1982. She initially denied living at any address other than Redwood Park during that period. She agreed that when living at St Agnes she shared a bedroom with her younger sister. She didn’t recall living at St Agnes in the period 1979-1982.
She agreed that she gave a further statement to police on 17 July 2012, when she said that Count 1 occurred before she went to high school in February 1982. After further cross-examination the complainant said that she again recalled the assault occurring when she was nine years old.
She also agreed she told police, in September 2009, that early in 1978 the family had moved from Redwood Park to Wynn Vale. She agreed that she had told police, again in September 2009, that between 1978 and 1982 life was okay, without anything happening. That may be regarded as inconsistent with her evidence as to the date of Count 1, but was said in the context of nominating 1977 as the year in which Count 1 occurred.
She agreed that police approached her to give a statement because her sister, HH, wanted to come forward “and give a sexual abuse claim” and understood that initially police wanted to interview her about the abuse of her sister.
As to Count 2, in cross-examination the complainant repeated her earlier assertion that the massage incident occurred when she was 15 years old, but later reverted to saying that she was 17 years old when her previous statement to police was put to her.
She agreed that she told police, in September 2009, that in 1985 her sister, then aged 14 years, had moved out of home. She said that she was certain that her sister had moved out by the time of the massage incident, and that only she, her mother and the accused were living at Wynn Vale at the time.
She was again questioned about her evidence regarding her age at the time of the massage incident and it was put to her that she moved out of home almost immediately after the massage incident, and the incident was just weeks before her seventeenth birthday. She said that she could not recall giving that evidence the day before. She then volunteered that at the time of the massage incident she was 17 years old and it was close to her eighteenth birthday. She agreed however that she told Mr Maskall in September 2009 that the massage incident occurred during the winter of 1986, and she had just turned 17 years of age.
She said that after moving out of the house at Wynn Vale she was living with a youth worker. She telephoned her mother to tell her about the massage incident a week or two after she moved out.
I gave leave pursuant to s 34L Evidence Act to cross-examine the complainant in relation to a complaint made by her, that she had been indecently assault assaulted by her grandfather. Whilst a question as to whether she had previously made a complaint of a sexual offence may be asked without leave,[10] leave was required to inquire into the details of the allegations.
[10] R v ALJ 117 A Crim R 370.
The complainant agreed that she told the accused that she had been sexually abused by her grandfather, from when she was about six years of age until she was 14 years of age. She agreed that she told the accused, rather than her mother, about that abuse, and that she did so after the incident constituting Count 1 was said to have occurred.
The complainant agreed that in around 1996 she had written a letter to the accused, describing their relationship in very positive terms including the statement:
I know you were a big influence in my life. I want to thank you for being my dad … your patience, your love. My husband is gentle in nature like you. He is a peacemaker and a very big influence on me too.
Whilst I accept that the complainant may well have written such a letter based on an overall assessment of the positive influence of the accused upon her, the letter made reference to her negative behaviour towards the accused, but it is perhaps notable that she made no reference to any negative or inappropriate behaviour on the part of the accused. She also agreed that she sent a Christmas card containing photographs of her three children to the accused as recently as 2007.
The complainant denied that she had arguments with her mother about relationships with boys, while she was living with her mother during 1986 and 1987. She agreed however that there was a period of some years during which she and her mother were not on speaking terms, that being from the time the complainant left the family house, until about 1998 which was the year that the complainant’s mother and the accused ceased their relationship.
The complainant denied that she had visited the accused with her children, and denied that the accused had visited her house and performed maintenance and repair work there. In subsequent cross-examination she said that her mother had asked the accused to perform some tiling work at the complainant’s house, but said that the accused did not actually attend to do that work.
The Complainant’s Sister
The complainant’s sister, HH, said that the first time she learned of allegations of sexual contact between the accused and the complainant was when she was sitting around the kitchen table with other family members “when it was explained to me what (the accused) had done and when he had made an apology for what he had done.” She said that at that time they were living at Redwood Park. She gave detailed evidence as to the positions occupied by family members sitting at the kitchen table. She said her mother had relayed details about what had happened to S.
That evidence, insofar as it relates to the allegations, is not complaint evidence, nor evidence as to the truth of what happened. It may give context to the admissions alleged to have been made by the accused, should I find that such admissions were made.
HH said that her mother had explained, in some detail, what the accused was alleged to have done to the complainant, and said that the accused then apologised and promised that he would never do it again. HH was again asked about the conversation and asked who had explained the detailed description of what had happened to the complainant and HH said that:
To the best of my memory, (the complainant) had explained it to me. My mother had explained it to me and the (accused) had actually said he was sorry for touching her and to the best of my memory, it was a very open conversation. …
In seeking to nominate the year in which that conversation took place HH said that she had a memory of the complainant looking younger than she did in a photograph taken in 1980, and on that basis thought that the date of the kitchen table conversation was 1979.
Cross-Examination
In cross-examination HH said that she was certain that the family did not live at St Agnes at all during 1979. She agreed that she shared a bedroom with the complainant at the St Agnes house, but said that in 1979 she was certain that the family was living at the Redwood Park house.
She agreed that when she spoke to police she did not say anything to police about a conversation occurring at the kitchen table which involved specifics of the allegations now made against the accused. She agreed that all she had said to police in 2009 was that she remembered sitting around the kitchen table with her mother, and the accused apologising to the complainant about a sexual assault.
Although she said to police in 2009 that the conversation at the kitchen table occurred in 1979, she made a further statement to police on 17 July 2012 in which she said that the conversation took place some time between 1979 and 1981.
In court she again maintained that the conversation at the kitchen table occurred in 1979. She reiterated that she was able to be more certain on the basis of using a school photograph and comparing that with her memory of what the complainant looked like when the conversation took place. Given the passage of time, I have some reservations about the reliability of a reconstruction performed in that way.
However, when she made the statement on 17 July 2012, she told police that it was looking at the school photograph that helped her remember when the conversation had happened. To that extent her evidence in court was inconsistent with the statement she had made to police in July 2012, as to the year in which the conversation took place.
She agreed that when she made a statement to police in October 2009 about the allegations which are the subject of the present charges, she also reported to police that her mother had assaulted her by threatening her with a knife, and that she had had regular arguments with her mother which resulted in her leaving the house permanently. HH said that she did not presently have, and had not for some years, any communication with her mother.
The Complainant’s Mother
The complainant’s mother, AD, described meeting the accused in 1974 or 1975 and said that she and her two children commenced living with him in 1976. She said they initially lived in a caravan park, and after about two years moved to the house at St Agnes. She said they then moved to Redwood Park before purchasing a house in Wynn Vale.
She said that she was told by the complainant about the incident giving rise to Count 1, when it happened in 1978 or 1979. She said that the incident occurred in the house at St Agnes. She said that she was told that the accused had gone into the bedroom, sat with the complainant, and touched her “down there”.
She said that she spoke to the accused and confronted him with the allegation and that he initially denied it. She said the accused eventually agreed that he had actually “done that act”. She said she and the accused spoke to the complainant and her sister about the incident, and the accused acknowledged that it had occurred and that it was wrong. He promised that it would never happen again. She agreed that she did not contact police, or any government department about the incident.
In relation to Count 2, AD said that in approximately 1986 there was a heated argument in the house between the accused and HH. HH left the house and when she was out in the street yelled out certain things. She said that HH was screaming very loudly. She said that as a result of hearing what was yelled out by HH she went to speak to the complainant to inquire as to whether there had been another sexual incident involving the accused.
That evidence was not led as evidence relating to a complaint, according to counsel for the prosecution, but rather in order to establish the foundation for a statement against interest by the accused.
She said that she asked the accused in turn whether he had sexually abused the complainant again; whether there had been an incident involving massage where he had touched the complainant’s breasts. She said the accused acknowledged that that had happened. That night the accused did not sleep at home but moved out to live with his father. She said that as far as she was concerned that finished the relationship. She agreed however that she later continued to live in the same house as the accused, and did so for a period which must have exceeded ten years.
AD was asked how old the complainant was when the complainant moved out of home and said about 18 or 19, after she had finished high school, and was working.
AD gave evidence of another asserted admission against interest by the accused. She said the accused had attended for counselling by a psychologist, Mr Fugler, and the accused had told AD that Mr Fugler thought the incidents involving the complainant were minor incidents. She said that she was furious upon hearing that and made an appointment to see Mr Fugler to remonstrate with him.
Cross-examination
In cross-examination AD agreed that the complainant and her sister shared a bedroom for the entire time they were living at the St Agnes house. She agreed that the family had lived at the St Agnes house for about two years after moving there in 1978, and that accordingly they were living at that house in 1978 and 1979. She said she was certain about that. She identified the time at which she said the complainant told her about the incident giving rise to Count 1, as being during a time when she was doing a course of study in 1978 or 1979. AD worked in the field of child care from about 1979.[11]
[11] AD said she had studied social work part-time between 1989 and 1996.
AD said that in relation to the complaint regarding Count 1 the complainant came to her and told her what had happened. She said that the complainant just spoke to her. AD denied that the complainant had called out loudly for AD to go to the complainant’s bedroom. She agreed that she would have remembered if the complainant, at a young age, had been calling out loudly from her bedroom and then spoken to her about such an incident.
She could not recall how long before that conversation, the incident was said to have occurred, and could not say whether it might have been days or weeks before. She confirmed that the conversation, and her subsequent conversation with the accused, happened at the St Agnes house, where, it is common ground, the two girls shared a bedroom.
She agreed that the accused was doing building work which, on occasion, required him to live away from Adelaide for extended periods. She agreed that she had received letters from the accused in July and August 1979, which were sent to her at the St Agnes address, while the accused was away working in Coober Pedy.
She agreed that she had been informed by the accused of allegations of abuse of the two girls by AD’s father, the girls’ grandfather. She thought she was told that in 1980 or thereabouts. However, given the evidence that the complainant told the accused she had been abused from the ages of 6 to 14 years, that conversation must have occurred sometime after 1983. In any event AD said she took steps to prevent her father having contact with the two girls. She arranged counselling for them. She decided not to report that matter to police.
In relation to Count 2, the massage incident, AD said that the complainant continued living in the house after that incident for a period of what could have been a year or two years. She confirmed her evidence-in-chief that the accused, rather than the complainant, moved out of the house after that incident, and said “it was for some time, I’m not saying it was 12 months, I can’t recall exactly how long it was.” She said that she thought the complainant was still living in the house when the accused moved back.
It was put to her that there was no incident where HH was outside the house yelling out loudly, which had then led to a discussion with the complainant about the massage incident and her subsequent discussion with the accused. AD said “that’s what I experienced, that’s what I heard and I was there when it happened.”
As to the assertion that AD had gone to see Mr Fugler, to raise with him her concerns that he had minimised the seriousness of the accused’s behaviour, AD said that she rang Mr Fugler’s rooms and made an appointment to see him. She gave evidence of a conversation she had with Mr Fugler regarding his attendances on the accused. Her conversation with Mr Fugler was said to have taken place at premises known as the Coach House on Fullarton Road.
AD agreed that when she provided a statement to police in March 2012 she referred to contacting the Coach House and making a time “to speak to the counsellor”. She had made no mention of Mr Fugler.
AD agreed that she had consulted Mr Fugler herself during 1992 on a number of occasions, at the Coach House, in relation to her own issues. She said that she was asked by the investigating officer to see if she had written down details of the counsellor she had seen. She said that she searched through her materials and found the folder about the notes of her attendances with Mr Fugler regarding her own counselling. It was from that that she remembered the counsellor in question was the same person.
She agreed she had kept notes about attendances on Mr Fugler for her own counselling. She agreed that she made no record whatsoever of seeing any counsellor and speaking to him about issues between the accused and the children. She agreed that she made notes about personal reflections, and agreed that she made notes about things that had happened to her, reflections about other people, and the effect that they had had upon her. She agreed that she wrote notes about her own psychological issues, and issues to do with her father. She agreed that she made no mention whatsoever about the accused or any abuse of the children.
She agreed that HH often had a poor relationship with both her and with the accused. She said HH lashed out at either AD or the accused on a number of occasions.
AD disagreed with the evidence given by HH that HH moved out of home following a heated argument, when AD had threatened HH with a knife. She denied knowing that an allegation to that effect had been made by HH to police. She conceded however that her relationship with HH was “totally fractured” and that they do not communicate.
She agreed that after the eventual break up of her relationship with the accused, in 1998, the accused had performed a building inspection at AD’s new house, at her request, and that she had met with him for coffee from time to time when she worked at Port Adelaide.
The Investigating Officer
The investigating officer, Mr Maskall gave evidence. He was cross-examined essentially on the topic of why he did not pursue the allegation of assault made by HH against AD. Ultimately I do not consider that that evidence has a direct bearing on my deliberations in this matter.
The Defence Case
The accused appeared to give evidence in a forthright manner. He denied any sexual wrongdoing. He was not shaken in that regard in cross-examination.
He said that while he was living with AD and the children he was working in the building industry. He worked within the Adelaide area and in the country. There were periods when his work took him away from Adelaide. In the late seventies he said that he was working at Coober Pedy building a hall, for a period of about three months, and on the basis of the letters sent to AD, that was probably in mid 1979. On other occasions he was away from Adelaide for two or three days at a time. He said that he was in continuous employment, and generally started work between 6.30 and 7.00am and finished between 4.00 and 4.30pm.
He said that AD was performing part-time study over a long period from the mid seventies onwards. He said that he looked after the children in her absence. He said that the complainant told him about her grandfather indecently assaulting her. He said that that was before she left home and whilst she was at high school. He could not be sure about the year.
He said that HH left the house in the mid eighties when she was 13 or 14. He could not recall an incident leading up to her leaving. He did recall physical fighting between HH and her mother, AD. He did not observe an occasion where AD assaulted or threatened HH with a knife. He said that after HH left the house she never returned to live at the house. However the complainant did return in the mid nineties, and lived with the accused and AD for about six months.
He said that he continued to have contact with the complainant during the years after she left high school. He said she occasionally visited him at home, and at other times they would have coffee, and he would visit her house and provide assistance around the house.
There was a dispute between the witnesses as to the reasons for the complainant visiting the accused. The complainant had said that she wished to maintain a relationship with the accused’s sister, HB, whom the complainant regarded as her aunty, and it was only when HB was either staying with or visiting the accused, that the complainant visited the accused’s house. The accused said that HB usually stayed in the Adelaide Hills with another family member. The evidence is that HB suffered cancer, and died some 10 years ago. It may be that she could have given evidence as to where she stayed while in Adelaide, and whether she was visited by the complainant at the accused’s house.
The accused’s evidence about the reason for the dissipation of his relationship with the complainant was not particularly convincing. He said that he did not like the complainant’s husband and that did not help the relationship. He conceded that he had never met the husband. He was asked why he did not attend the complainant’s wedding and said it was because of rumours he had heard that the husband was not a very nice person. Ultimately he said he was not invited to the wedding, on his understanding because the complainant’s biological father had been invited.
He denied having any conversation with AD about seeing Mr Fugler. He denied ever having been to the Coach House to see Mr Fugler, or having any counselling at the Coach House. In so far as it may be relevant, he denied making any admissions to anyone at the Coach House, or otherwise, that he had behaved in any sexually inappropriate sexual towards the complainant, or for that matter HH. I note it is an agreed fact that a subpoena requiring production of the records of the Coach House relating to the accused produced a nil return.
Addresses of Counsel
Dr Salu submitted that the complainant was not sophisticated, nor did she come across as cunning. She struggled to remember dates, or relate events to particular periods. He submitted however that she was straightforward and truthful about what had happened to her and how it had happened. He submitted that there was no suggestion of collusion, particularly between AD and HH, given they were not on speaking terms. Counsel relied on the evidence as to admissions by the accused, as relayed by the witnesses.
Mr Niarchos suggested that there was a concoction of evidence, or at least a melding of various accounts which should raise a doubt about the prosecution case. He submitted that HH was in effect the motivator behind the allegations. Mr Niarchos pointed to the prosecution opening in which it was said that HH would give an account of sitting at the kitchen table, and the accused apologising, and HH knowing what was being spoken about only because she had been the subject of abuse by her grandfather and understood what “inappropriate touching” meant. HH however gave detailed elaborate evidence as to the contents of the conversation including a fairly precise description of the complainant’s allegations. Counsel suggested the inference to be drawn was that there was collusion between the complainant and HH.
Counsel also referred to the original particularisation of Count 1 as having occurred between 1 January 1977 and 31 December 1977 – at a time when the family was living either in a caravan, or at St Agnes. The Information was then amended to particularise Count 1 as having occurred between 1 January 1979 and 8 February 1982, in what counsel described as a failed attempt to move the events giving rise to Count 1 to the Redwood Park house, where the complainant and her sister had separate bedrooms.
Counsel submitted that upon an analysis of the evidence of the complainant, the allegation was that the incident in Count 1 occurred when she was nine years old, at a time when she must have been living in St Agnes, and at a time when she was sharing a bedroom. That, he said, was inconsistent with her evidence that the incident occurred at Redwood Park.
Counsel emphasised that in relation to Count 2, HH added nothing and did not suggest that she was a recipient of any complaint, nor that she knew anything about the circumstances of Count 2. It was also not suggested by the complainant that she had told HH anything about Count 2. That contradicted AD’s evidence.
Further, whilst the complainant said she telephoned her mother at the suggestion of a youth worker, following Count 2, AD did not give any evidence about having received such a telephone call, and of course gave evidence that she had learned about Count 2 from HH.
The differing descriptions of the circumstances surrounding Count 1 were a cause for concern, as were the differing versions given in relation to Count 2. As counsel put it, the detail makes it fall apart.
Counsel described AD’s evidence about the visit to Mr Fugler as so unreliable that it could not be accepted. Counsel firstly pointed to the fact that that discussion was alleged to have occurred in 1991, many years after the alleged events. He emphasised the fact that the subpoena issued to the Coach House which called for production of all records, treatment notes, counselling notes related to the accused and came back “nil return”.
There is at least a reasonable possibility that AD has confused events relating to admissions by the accused, and her visit to Mr Fugler, and conflated events, and has come to believe in the occurrence of events occurring in a particular way, which is not correct.
Counsel submitted that the accused faced a forensic disadvantage as a result of the delay in this matter coming to the attention of authorities, including a lack of evidence as to whether the incidents are alleged to have occurred on a weekday or a weekend, the inability to obtain work records to show whether he was in Adelaide or out of Adelaide, and the hours he worked. In addition the death of the accused’s father deprived him of the opportunity to provide evidence answering certain ancillary aspects of the prosecution case.
Finally counsel submitted that the accused’s evidence ought to be accepted, or at least not rejected beyond reasonable doubt.
Conclusion
The determination of the issues in this matter has been made difficult by the significant passage of time since the acts giving rise to the charges are said to have taken.
I am of the opinion that the accused has suffered a significant forensic disadvantage for the reasons I have outlined. He has been deprived of the opportunity to proof and call witnesses who might have supported his account, or contradicted that of the complainant and other prosecution witnesses. As I have said, such witnesses include the accused’s father who might have been able to give evidence about whether the accused came to live with him as asserted by AD, following Count 2; and the accused’s sister who might have been able to give evidence as to the nature of the ongoing relationship between the accused and the complainant which was the subject of some dispute on the evidence. Both witnesses are now deceased.
In addition, I accept that employment records may have been available to show the accused’s whereabouts at the time that the alleged events are said to have concurred. There is, in addition, the general disadvantage that flows from the accused having to make general denials, rather than answer specific details of the allegations against him. That forensic disadvantage requires me to scrutinise the complainant’s evidence, and indeed the prosecution evidence generally, with care.[12]
[12] R v Livingstone [2011] SASCFC 28 (Unreported, Vanstone, White & Kelly JJ, 15 April 2011).
I bear in mind that there is no onus on the accused to prove a motive to lie on the part of the complainant, or other family members. It is for the prosecution to establish the charges beyond a reasonable doubt the elements of the offences. A failure of the accused to be able to provide a motive to lie can never be used to strengthen the prosecution case.[13]
[13] See R v Sluczanowski (2008) 256 LSJS 277 at [43].
In relation to Count 1, in the face of the inconsistencies to which I have referred regarding the age of the complainant, the location of the house in which the events are said to have occurred, and the circumstances surrounding the bedroom incident coming to light, particularly having regard to the accused’s credible denials in sworn evidence, I cannot be satisfied to the requisite degree that the accused is guilty.
In relation to Count 2 the prosecution evidence in combination causes me considerable difficulty. The evidence is attended by inconsistencies including as to the age of the complainant at the time of the alleged offence, the presence or otherwise of her sister HH, the way in which that matter came to light, and the difficulty in determining the issue of whether the complainant left the house shortly afterwards as she asserts, or the accused moved out as the complainant’s mother asserts.
The complainant said that HH had moved out well prior to that incident, and made no suggestion that HH was present at the time of the incident. The complainant also said that she, the complainant, moved out within weeks of the incident. She made no mention of the accused moving out. HH gave no evidence relating to the second incident. AD gave evidence that it was the behaviour of HH yelling in the street which led her to discover the incident. She said of course that the accused moved out to live with his father, and that the complainant remained at the house. The accused denied having ever moved out to live with his father. As I have said, the accused’s father might have been able to give evidence as to that incident. It is an agreed fact that he died prior to trial.
In relation to Count 2, such inconsistencies in the prosecution’s evidence, in the face of credible denials by the accused in sworn evidence, mean that I cannot be satisfied of the accused’s guilt to the requisite degree.
There will be a verdict of not guilty in relation to each count.
0
10
1