R v B, JW
[2019] SADC 102
•2 August 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, JW
Criminal Trial by Judge Alone
[2019] SADC 102
Reasons for the Verdicts of His Honour Judge Costello
2 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Accused charged with five counts of Unlawful Sexual Intercourse with the complainant SJR.
VERDICTS: Not Guilty on each count.
Criminal Law Consolidation Act 1935 ss 5, 49(1); Juries Act 1927 s 7(1); Evidence Act 1929 ss 9(1), 3BA(1), 13BA(5), 34(L), referred to.
Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; R v Mas (2013) 118 SASR 160, considered.
R v B, JW
[2019] SADC 102
This is a trial by judge alone. The accused, B, JW is charged with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of the Offence
[B, JW] between the 6th day of October 2011 and the 1st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by inserting his penis into her anus.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 6th day of October 2011 and the 1st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by causing her to perform an act of fellatio upon him.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 6th day of October 2011 and the 1st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 31st day of May 2017 and the 1st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by causing her to perform fellatio upon him.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 31st day of May 2017 and the 1st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by inserting his penis into her vagina.
B, JW pleaded not guilty to the charges. He elected to be tried by a judge sitting without a jury pursuant to the provisions of s 7(1) of the Juries Act 1927. He was represented by Mr Fowler-Walker. Mr Martin appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the Court should detail every obvious and basic direction which might be given to a jury.
I do, nevertheless, record that I have reminded myself of the following:
1 An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2 The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3 The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4 It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5 Each of the counts on the Information concerns a separate offence. I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to conclude that he is therefore guilty of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6 The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of the other offence charged. Depending on my findings on the evidence, I may find the accused guilty or not guilty of all offences charged or guilty on some of the counts and not guilty on the others.
7 I have also reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected not to give evidence and remained silent. The accused was not bound to give evidence and had the right to decline to give evidence. Because that is his legal right, I am not permitted to draw any inference adverse to him or the case he put forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. I have not done so. The accused’s silence in Court is not evidence against him; does not constitute an admission by him; may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt.
8 In assessing the evidence of the witnesses, I have had regard to their demeanour. I have considered their evidence in the context of the other evidence in the case. I have considered their answers in cross‑examination, and applied my judgment to the evidence. I am entitled to accept the evidence of any witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some part of the evidence, it does not follow that I must not accept other parts of the witness’s evidence.
9 Finally, I remind myself that I must determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lays in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
I now set out the elements of the charges (which are common to all five counts) each of which the prosecution must prove beyond reasonable doubt.
Unlawful Sexual Intercourse with a Person under 14 years
The elements of this offence are that:
· The accused had sexual intercourse with the complaint.
Sexual intercourse is relevantly defined in s 5 of the Criminal Law Consolidation Act 1935 to include any activity … consisting of or involving:
(a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio;
(c) …
In Count 1 the allegation is that the accused inserted his penis into the complainant’s anus.
In Count 2 the allegation is that the accused caused the complainant to perform an act of fellatio upon him.
In Count 3 the allegation is that the accused inserted his penis into the complainant’s vagina.
Counts 4 and 5 repeat the allegations in Counts 2 and 3 respectively, but relate to offences allegedly committed on another occasion.
· Such sexual intercourse was unlawful.
It is unlawful to have sexual intercourse with a person under the age of 14 years.
· The complainant, SJR with whom the accused is alleged to have had unlawful sexual intercourse was a person who was under the age of 14 years at the time.
On the prosecution case, all five counts occurred before the complainant was 8 years old.
The Prosecution Case
The prosecution called the following witnesses:
SJN, the complainant’s mother who was at one time in a relationship with the accused. She was also a person to whom the complainant made a complaint with respect to conduct which the DPP alleges is the subject of Counts 2 and 3. She was also present when the complainant complained of conduct which the DPP alleges is an elaboration of the conduct in Counts 4 and 5.
JFA, the complainant’s maternal grandmother, to whom the complainant made a complaint with respect to conduct which the DPP alleges is the subject of Counts 4 and 5. She also witnessed a scene at her house where the complainant was on ‘all fours’ at a time when her 12-year-old cousin, T was standing behind her with his pants down and penis out.
CT was a friend of the complainant’s mother and a person to whom the complainant made a complaint with respect to conduct which the DPP alleges is the subject of Counts 2 and 3.
SJR, the complainant who is now aged 9 years.
Dr Noori, a paediatrician who examined the complainant at the Women’s and Children’s Hospital in November 2017.
Detective Shepherd, a police officer who searched the accused’s home and conducted an interview with the accused.
Ms Porsiello, a senior clinician at the Child Protection Services (‘CPS’) at the Women’s and Children’s Hospital who interviewed the complainant in October and November 2017.
Ms Osborne, a senior psychologist at the Department for Education who conducted two psychological assessments of the complainant in 2014 and 2017.
The Prosecution Case in Overview
The complainant is, as I have said, 9 years old. In 2014, she was experiencing learning difficulties at her primary school. As a result, a psychological assessment was carried out on her which at that time concluded that she was suffering from a condition known as Global Development Delay.
A subsequent assessment conducted in 2017 confirmed the findings made in the 2014 assessment. The diagnosis made in 2017 was that she had a mild intellectual disability which meant that she would always have difficulties with learning, difficulties in being able to express herself, in communication and being able to access her memory.
SJR currently resides with her mother, SJN, her husband, MN and his son. On occasions she is also looked after by her grandmother, JFA. The true identity of the complainant’s father remains unknown because SJN was in a relationship with two men prior to becoming pregnant with the complainant.
One of those men was the accused but there has never been a paternity test to establish which of the two men is her father. However, the accused was told by SJN that he might be the complainant’s father. After her sexual relationship with the accused ended, SJN and the accused continued on with a casual relationship in the course of which the accused agreed to act as SJR’s father. At this time the complainant would have been about 3 years old.
The relationship between SJN and the accused ended in around 2016, but the accused continued to have access to the complainant in ‘a sort of fatherly way’. SJN would drop the complainant off at the accused’s house for a night or two on various occasions. At this point in time the complainant was accustomed either to calling the accused, Dad or by using his Christian name.
The intervals between these periods of access varied over the years. Sometimes it might have been as regular as once per week but at other times it could be as little as once per month.
On Sunday 23 July 2017, the accused asked SJN to drop the complainant off at his house on the understanding that she would stay with him for two nights.
However, a few hours later the accused messaged SJN and requested that she come back and pick the complainant up. The reason given by the accused for this change in arrangement was, according to SJN, that the accused’s ribs were sore and that he needed to go to hospital.
SJN duly picked the complainant up as requested. On the way home the complainant complained of having a sore tummy and sore ‘privates’ but didn’t elaborate any further despite some questioning by SJN.
Some three weeks later, on 14 August 2017, when the complainant was being looked after by JFA, the complainant stated, in a totally unsolicited manner, words to the effect that ‘[the accused] had sex with me’. When doing so she referred to the accused by using his Christian name.[1]
[1] Hereafter, unless otherwise stated, when I attribute the words ‘the accused’ to a particular speaker I intend to mean that the speaker used the accused’s Christian name.
As a result, JFA took her back to SJN’s house. After JFA told SJN what the complainant had said SJN questioned her whereupon the complainant said that the accused had ‘had sex with her’; that he had ‘touched her privates with his hands’ and that he had ‘put his willy in her privates’.
JFA then asked the complainant words to the effect of ‘what exactly did the accused do?’ The complainant responded to this enquiry by pointing to her vaginal area and to her mouth.
The act of pointing to her mouth is said by the prosecution to constitute the initial complaint with respect to Count 4 and the ‘disclosures’ by the complainant in the car on the way home; then at JFA’s house and later at SJN’s house are said to constitute both the initial complaint and an elaboration with respect to Count 5.[2]
[2] Prosecution Opening – T222.
The complainant was taken to hospital that same evening. The doctor who attended on the complainant did not conduct any examination of the complainant’s body or genitalia.
Nevertheless, as a result of this attendance, the CPS was notified. Furthermore, on the following day SJN reported the matter to the police. The complainant was not however interviewed by the CPS until some two months later on 18 October 2017.
Ms Porsiello conducted two interviews with the complainant. In the first of these interviews the complainant told Ms Porsiello that the accused forced her to suck his penis and then made her have sex with him. On the prosecution case, this conduct is said to be the subject of Counts 4 and 5.[3]
[3] Prosecution Opening – T223.
On the prosecution case, despite the fact that the complainant is only able to express herself in simple fashion; is easily distracted and subject to becoming confused with respect to things like sequences, dates and days of the week, she was nevertheless able to and did provide a detailed account of what the accused is alleged to have done to her.
In her second interview with Ms Porsiello, on 2 November 2017, the complainant described in some detail what the DPP submitted was a different occasion, where the accused forced her to commit fellatio on him and made her have sex with him. These acts were said to comprise the offences in Counts 2 and 3 on the Information about which, on the prosecution case, she made a complaint to CT and her mother at some time in late 2016 or in 2017.[4]
[4] Prosecution Opening – T223.
The prosecution asserts that SJR told CT how being forced to commit fellatio almost made her vomit and that when the accused tried to put his penis into her vagina it hurt and she screamed.
On the prosecution case, this complaint that she made to CT and her mother occurred prior to 23 July 2017 and can therefore only be referrable to separate acts other than those identified in Counts 4 and 5.
Furthermore, in the second interview, the complainant also told Ms Porsiello that the accused inserted his penis into her anus (which she described as her ‘poo hole’) which the prosecution says is referrable to the offence in Count 1. In this interview, the complainant also talked about the accused’s attempts to ‘drown her’ in the pool in the backyard of his house. On the prosecution case, aerial images of the accused’s backyard reveal a pool in July 2016 but not in 2017.
Although the complainant was not medically examined in August 2017, she was subsequently examined by Dr Noori in November 2017. Again, his examination of her genitalia did not reveal anything abnormal.
The accused was arrested and interviewed on 31 October 2017. He denied the offending. During the interview he suggested that more often than not it was SJN who asked him to look after the complainant rather than him asking to have her. He agreed that when she stayed with him she slept in his room but denied that they ever shared a bed.
He agreed that on the night of 23 July 2017 he had intended to have her for two nights, but that due to him experiencing an adverse reaction to the medication he was taking (which caused him to ‘black out’), he had asked SJN to come back and collect the complainant.
It is not in dispute that after this night there was no further personal contact between the accused and the complainant.
Section 13BA
As is readily apparent the prosecution case relied heavily upon the evidence of SJR in the form of the two audio visual recordings of the interviews conducted with her by Ms Porsiello.
The DPP made an application, pursuant to s 13BA(1) of the Evidence Act 1929, that the evidence of the complainant, in the form comprised by the recordings of these two interviews, be admitted.
Section 13BA relevantly provides as follows:
(1) Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2) An application for an order under subsection (1) must—
(a)be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b)be filed in the court; and
(c)within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d)otherwise be made in accordance with the rules of court.
(3) An audio visual record of the evidence of a witness may be admitted under this section if—
(a)the recording has been made pursuant to—
(i)section 12AB; or
(ii)Part 17 Division 3 of the Summary Offences Act 1953; and
(b)the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c)the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d)during the course of the trial, the witness is available, if required, for further examination, cross-examination or re-examination.
(4) The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a)rule as inadmissible the whole or any part of the recording; or
(b)before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5) Despite subsection (3)(d), the witness cannot be further examined, cross-examined or re-examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a)if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b)if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or
(c)if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined.
…
Having viewed the two videos, during the course of the voir dire hearing, I was satisfied that the complainant’s evidence should be admitted in that form.
Mr Fowler-Walker then applied, pursuant to s 13BA(5), for permission to cross-examine SJR with respect to the evidence given in those interviews. He also applied to cross-examine the complainant, with respect to the contents of a ‘Proofing Note’ taken by the DPP a few days before trial and more generally, with respect to her sexual activities before or after the events which comprised the alleged offences, pursuant to s 34(L) of the Evidence Act.
S 34(L) relevantly provides as follows:
(1) In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a)as to the sexual reputation of the alleged victim of the offence; or
(b)except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2) In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)is of substantial probative value; or
(b)would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3) Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
…
In support of his application Mr Fowler-Walker provided me with a written outline detailing the various topics in relation to which he wished to cross‑examine SJR, the specific questions on those topics which he wished to ask and an argument on the relevance of those questions to the issues in the trial.
Prior to considering whether or not the accused should be permitted to cross-examine the complainant, it was necessary for me to determine whether she was capable of giving evidence.
The Complainant as a Witness
Pursuant to s 9(1) of the Evidence Act a person is presumed to be capable of giving sworn evidence unless the Court determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving such evidence.
In view of the complainant’s age and intellectual disability I determined to conduct an enquiry of her to decide whether she had a sufficient understanding of that obligation and, if not, whether she nevertheless understood the difference between truth and a lie and the importance of telling the truth.
I interviewed the complainant (without wearing robes) in an interview suite while the interview was transmitted to the courtroom via closed-circuit television. As a result, I concluded that although SJR did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, it was nevertheless appropriate to permit her to give unsworn evidence because I was satisfied that she understood the difference between the truth and a lie and the importance of telling the truth.
After speaking to SJR and hearing submissions from both parties, I ruled that Mr Fowler-Walker should be permitted to cross-examine SJR in accordance with the questions set out in his written outline.
Against this background I now turn to consider, in more detail, the evidence given in this trial.
The Evidence on the Voir Dire and the Trial
Voir Dire Evidence
Ms Porsiello[5]
[5] Ms Porsiello gave evidence as part of a voir dire hearing, but it was subsequently agreed by the parties that her evidence on the voir dire could be received as her evidence in the trial.
She said that although SJR presented as someone with an intellectual disability, she still considered that she was capable of participating in an interview.
She observed that she struggled with time frames in the sense of whether something had happened ‘one time’ or ‘more than one time’. She agreed that SJR was distractible and somewhat tangential in her narrative and at times ‘difficult to understand’.
She did not agree that she was suggestible. She said that children often speak in the third person or via a foreign object, such as a teddy bear, because it externalises the experience and makes it more tolerable.
In cross-examination, she was unable to explain why when SJR said there was only one time that she was forced to suck his penis and have sex with him that she, Ms Porsiello responded by then asking ‘Tell me about the first time that [the accused] had sex with you’.[6]
[6] T45-46.
She did however accept that ‘to push a child by leading and suggesting there might have been more than one time when they have just told you quite clearly it was only time’ is ‘quite dangerous because they may be suggestible and agree with you’.[7]
[7] T47.
She agreed that telling the complainant ‘you’re doing really well, yep that’s good’ might have encouraged the complainant to answer in a particular way and that rather than push her for answers at one point it might possibly have been preferable to take a break.[8]
[8] T55.
She said that her question ‘I heard that you told Dr Rosa[9] that what happened with [the accused] made you want to vomit and that you couldn’t breathe. Right?’ was a legitimate line of questioning designed to rejig her memory.
[9] I took this to be a reference to Dr Roesler, a medical practitioner who examined SJR.
However, she agreed that her question ‘I heard from your nanny that you told mum that when you left [the accused’s] house you had a tummy ache and sore privates. Followed by the question, ‘Right?’ was something she should not have said.[10]
[10] T58.
She confirmed that in her interviews with SJR that the complainant generally referred to him by using his Christian name rather than referring to him as ‘Dad’.
Assessment of Ms Porsiello’s Evidence
Although I have no doubt as to the honesty of Ms Porsiello, I retain a number of significant reservations about the appropriateness and ultimately the utility of a number of her questions which arguably prompted a particular answer rather than questions which left it open to SJR to provide her own answers. I reached this view because, in my view, SJR was a particularly susceptible witness who was likely to be suggestible to questions such as these, given the combination of her age, communication skills, comparatively poor memory and other learning difficulties.
Ms Porsiello also had difficulty in explaining exactly what had taken place during a period of 8 minutes when SJR was absent from the interview room and in the company of her mother. Ultimately however, it is impossible for me to conclude that anything occurred or was communicated to SJR during that time which might have improperly influenced her.
Ms Osborne[11]
[11] She too gave evidence on the voir dire hearing, which evidence the parties also subsequently agreed could be received as her evidence in the trial.
She conducted two psychological tests on SJR. There is no need to rehearse the results of these tests in any detail. It will suffice to record that SJR scored at the very bottom of the range for intellectual functioning for children of her age.
Ms Osborne said that children with her deficits not uncommonly had toileting and self-care issues and were more vulnerable to being easily led by others. She also said that SJR had no concept of ‘personal space’. I have no hesitation in accepting Ms Osborne as a truthful and reliable witness.
Evidence in the Trial
SJN
SJN said that she didn’t know the identity of SJR’s father because she was in a relationship with two men (one of whom was the accused) in the year before SJR was born.
She said that SJR stayed with the accused from time to time between the ages of 1 and 7. She said that sometimes he would ask to have her for two nights but later ring her after the first night and ask her to come and pick SJR up.
She said that SJR never had problems staying with the accused and on the contrary, always appeared to be happy with him. She said that in July 2017 the accused rang and asked if he could have SJR for ‘a night, overnight’[12] and that, as a result, she dropped her at the accused’s house between 6 and 8 pm.
[12] T243.
However, she said that sometime between 11 pm and midnight he rang and asked her to pick up SJR because he was in pain and that his ribs were hurting. She said that on a number of previous occasions he had told her before that he was in pain but that he hadn’t mentioned anything about his ribs.
She said that SJR had been upset when she came to pick her up because she hadn’t wanted to leave. Later on, when they were nearly home, she had complained that her ‘belly was sore and that her privates were sore and that it was sore to wee or to poo’.[13]
[13] T246.
She said she, SJN, could not remember being in contact with the accused thereafter.
She said that some four weeks later her mother, JFA phoned her to talk about SJR who was, at that time, staying with JFA. After that conversation her mother brought SJR to her house where she spoke to SJR. SJR said that the accused had ‘touched her in her privates with his willy and his hand and that it had hurt’. She said also that the accused had ‘put his willy in her privates’.[14]
[14] T248.
She was then asked by Mr Martin whether the word ‘sex’ was used by SJR. She said that it was and that SJR had said that he ‘had put his willy inside her and that he had sex with her’.[15]
[15] T249.
She said that she had not up to that time discussed ‘sex’ or used words to describe private parts with SJR.
She said that on a previous occasion (around Christmas but she was unsure of the year) SJR had complained that the accused had ‘touched her in her privates with his hand’.[16] She said that her friend CT had been with her at this time. She said that SJR said that the accused had ‘touched her there’ in her privates but when she asked SJR to show her where he touched her, SJR couldn’t.[17]
[16] T251.
[17] T251.
In cross-examination, she denied that she was the person who generally organised to leave SJR with the accused.
She said that the last time SJR was picked up from the accused’s house her hair or clothes were not wet and nor were there any signs of her having vomited. She agreed that SJR was lactose intolerant which created toileting issues and diarrhoea for her. She said that she had trouble cleaning her private parts and that she would complain of being ‘itchy’.[18]
[18] T260-261.
She agreed that SJR sometimes called the accused ‘Dad’.
She denied telling CT in front of SJR that the accused ‘pulled out his penis, tried to put my head to his penis’; that ‘he put it in my mouth and almost made me throw up’ and that ‘he tried to put his penis in my vagina’.[19]
[19] T267.
However, she agreed that CT had said to her ‘Be careful about what you speak in front of [SJR] because you don’t know what she might pick up’.[20]
[20] T268.
She said that when SJR complained to CT about being touched on the vagina CT had examined SJR’s vagina and concluded that it looked normal.
Assessment of SJN
Although I accept that SJN was generally an honest witness, I have some reservations about her reliability in terms of matters such as dates and times when things occurred. Furthermore, and more importantly for reasons I will discuss later, whilst I generally accept the veracity of her evidence, I do not accept her evidence as to CT conducting an examination of SJR’s vagina on the occasion when she complained to them. I also reject her evidence when she said that she never complained to CT of the accused forcing her mouth onto his penis and trying to put his penis in her vagina. I prefer the evidence of CT on this issue and I am satisfied that SJN said this to CT in front of SJR on a number of occasions.
Finally, I do not accept that CT used the word ‘stretched’ in relation to SJR’s vagina on the occasion when SJR allegedly made her complaint to them.
JFA
She said that on 14 August 2017 SJR said to her that the accused ‘had sex with me’.[21] As a result she took her straight home to SJN’s house. On arriving at her house she had a private conversation with SJN and her then partner MN.
[21] T276.
She said that she then called SJR into the room and asked her if she knew ‘what sex is’ to which SJR replied ‘yes it’s when you’re humping’. She said that when she then asked ‘how did [the accused] have sex, SJR simply pointed to her mouth and private’. She said that SJR had pointed to her vagina.[22]
[22] T278.
In cross-examination, she said that SJR referred to the accused by his Christian name and did not use the word ‘Dad’.
She agreed that sometimes SJR complained when speaking of her private parts that she was ‘sore down there’.[23]
[23] T280.
She described the occasion of seeing SJR’s cousin T with his penis out and SJR on ‘all fours’.[24]
[24] I deal with the relevance of this issue later in these Reasons.
In re-examination, she said SJR would complain of ‘sore privates’ every couple of weeks or a month. She said that the incident she described with SJR’s cousin T occurred perhaps a month or two after SJR’s complaint to her in August 2017.
Assessment of JFA
I generally accept JFA as both an honest and reliable witness.
CT
She said that on an occasion in 2017 SJR told her that the accused had ‘put her head in his private to put her mouth on his penis and that he pulled her pants down and tried to put it in her vagina’.[25]
[25] T287.
She confirmed that SJR used the words ‘penis’ and ‘vagina’. She said that her demeanour when saying these things was ‘mature like a boyfriend/girlfriend thing what they would say’. She said that she gained the impression that SJR was ‘coached’ when saying these things because of the straightforward way in which she expressed herself.[26]
[26] T288.
She said that she could not recall examining SJR’s body.
In cross-examination, she confirmed that she did not examine SJR and did not use the word ‘stretched’ in relation to SJR’s vagina. She then agreed that there had been an occasion where SJN told her that the accused had pulled his penis out, tried to push her head down towards his penis to put it in her mouth, that she SJN had struggled with him and that he had tried to have sex with her.[27]
[27] T292.
She said that SJN had repeated this story on some four other occasions and that on each occasion SJR was present.[28]
[28] T293.
She said that the last time she told this story was only a couple of months before SJR made her complaint to her about the accused.[29] Finally, she denied that SJR said anything about the accused touching her on her privates with his hand.
[29] T293.
In re-examination, she said that when telling that story it was as though SJN ‘was trying to point out that she [was] the victim’.[30] She said that on each of these occasions when she told this story she went on to explain everything that [the accused] did and that she did so in front of SJR and her own children.[31]
Assessment of CT
[30] T294.
[31] T294.
I accept her as a truthful and reliable witness. Unlike SJN, who was on occasions somewhat defensive, CT gave her evidence in a straightforward and open manner. She was clear about the details surrounding the occasion when SJR complained about the accused. I accept her evidence when she says that she did not examine SJR and as to her i.e. CT not having used the word ‘stretched’.
I also accept her explanation as to why it was that she remembered SJN telling and then repeating the story of the accused forcing himself upon her, namely that she became cross that SJN was saying such things in front of her daughters.
Dr Noori
He confirmed that on 8 November 2017 he had conducted an examination of SJR’s genitalia and anal area and concluded that it was completely normal.
He said that, even if she had been sexually abused in July 2017, unless any resultant injuries were significant he would not have expected to have seen any evidence of such injury some months later in November.
In cross-examination, he agreed that Dr Roesler had initially formed the opinion, based upon a simple visual observation, that perhaps SJR’s vagina was ‘stretched’ consistently with some form of penetration. After consultation with him he said that she agreed that such a visual observation was not reliable.
Assessment of Dr Noori
I have no hesitation in accepting the evidence of Dr Noori as both truthful and reliable.
Detective Shepherd
He attended the accused’s house on 31 October 2017. He conducted a video ‘walk through’ of his house and took a series of photographs of his bedroom.
He subsequently conducted an interview with the accused. He also produced a series of overhead images depicting the accused’s house and surrounds from Google Earth at various times between late 2015 and the beginning of 2018.
In the interview, the accused asserted that SJN was the person who generally asked him to mind SJR rather than the reverse. He said that SJR always slept in his bedroom but never in bed with him. He said that she either slept in his bed or on his couch but never with him. He explained that he felt unwell from his medication and had begun blacking out and so rang SJN to come and get SJR.
He said that in the days and weeks following that day he had tried to contact SJN but that SJN had not responded.
He said that he had not ever had sexual discussions with SJR.
He said that she had never been sick during the times that she had stayed with him.
He denied the specific allegation of having fellatio with SJR when it was put to him.
He said, on being apprised of the allegations, that he was ‘shocked, like confused and everything like I haven’t, I don’t know what the hell’s going on. Being accused of something then yeah she’s saying that’.[32]
Assessment of Detective Shepherd
[32] MFI P7 Item 642.
I accept the evidence of Detective Shepherd as truthful and reliable.
Assessment of Accused in Interview
Even though the accused did not give evidence in the trial, I have nevertheless had regard to his answers during this interview when considering whether the prosecution has proved its case.
I gained an impression of the accused during the course of the interview as a person struggling to ‘come to terms’ with the situation he was in, namely as a person accused of a serious sexual offence against a person who was possibly his daughter.
Whilst he was obviously ‘on guard’ while being questioned I did not regard his responses as being, at least in general terms, other than normal. In short, I did not detect anything to suggest that he was being other than truthful in his answers to Detective Shepherd.
The Complainant – SJR
Her evidence comprised evidence in the answers she gave to Ms Porsiello in the interviews on 18 October 2017 and 2 November 2017 and in the Proofing Note. She also gave oral evidence in the trial and was cross-examined.
Interview 18 October 2017
She was asked whether she understood the difference between truth and a lie and demonstrated that she did. Then (and without being prompted) she proffered that the interview was going to be all about the accused but that her mum’s friend CT did not believe her.[33]
[33] MFI P12 – Items 55-65.
She gave an account of what she had done that morning and again said she was there to talk about the accused.
She said that ‘he wanted me to have sex, I said ‘yes’ and then I said ‘no’ to me sucking his willy and he forced me to’.[34]
[34] Ibid at Item 129.
She then said ‘it is not a willy - it is like a dick a actual dick’.[35]
[35] Ibid at Items 137-139.
She then said that ‘I has a willy’.[36]
[36] Ibid at Item 165.
She then said ‘well he never wanted anyone else to get me sucking it’ and then referred to ‘[T’s] dick’[37] which I interpret to mean a reference to her cousin ‘T’s penis’.
[37] Ibid at Items 197-199.
She then referred to a ‘cousin’ and said that she was the accused’s cousin. She again then referred to the accused saying that no-one else is to suck others’ dicks.
Then she said that she won’t be able to go ‘there’ (to the accused’s house) ‘any more’.[38]
[38] Ibid at Item 228.
She then described the accused’s bedroom before Ms Porsiello drew her back to the topic of the accused forcing her to commit fellatio to which SJR replied ‘I don’t remember those bits’.[39]
[39] Ibid at Item 254.
When she said she couldn’t remember, Ms Porsiello said that she had heard that ‘You told the Doctor that what happened with the accused – you couldn’t breathe and it made you want to vomit’.[40]
[40] Ibid at Item 257.
As I said earlier, I have assumed that this was a reference to Dr Roesler. When SJR said she couldn’t remember Dr Roesler, Ms Porsiello repeated that you told the Doctor ‘what happened with [the accused] made you want to vomit and you couldn’t breathe. Right?’[41]
[41] Ibid at Item 261.
SJR then replied ‘Yes, from not, not really can’t breathe but I can breathe so I started to vomit because he forced me to suck his dick and I, I almost vomited’.[42]
[42] Ibid at Items 262-264.
Ms Porsiello then asked her to tell her more about this incident to which SJR replied ‘That’s it, that’s all he done’. Then she said that after he gave her a drink ‘we started to have sex’.[43]
[43] Ibid at Items 272-276.
When asked by Ms Porsiello to tell her more about what happened when you started to have sex SJR replied ‘That part was about the forcing – forced to suck his dick’.
Ms Porsiello again returned to question SJR on the topic of the ‘two of you started to have sex’ and SJR again repeated that she was forced to suck his penis although this time she used the term ‘willy’.
Later still Ms Porsiello returned to the topic saying ‘Tell me everything about that part when [the accused] started to have sex with you’. Again, SJR said ‘That’s all what he done’.
SJR then talked about the accused’s younger brother and his pet cockie. SJR also then said that this [the fellatio] had not happened on other days.
Ms Porsiello then posed a question in the following terms: ‘On this day when [the accused] forced you to suck his willy and then you had sex – so this happened on one day. Did this happen on another before this day’. SJR replied ‘Mhmm’. Ms Porsiello then asked ‘This has happened on another day before’ and SJR said ‘Yep’.[44]
[44] Ibid at Items 431-444.
SJR then said that after she nearly vomited the accused gave her a drink and ‘then we went back to sex’.[45]
[45] Ibid at Item 460.
Ms Porsiello asked ‘what happened when you had sex’. SJR said she didn’t understand and then said sex is ‘like boys humping girls’.[46]
[46] Ibid at Items 477-480.
She then said ‘the boy tries to get his dick into the holes where it’s either in the poo one or the wee one’. When asked what did the accused do SJR said ‘he had it in the poo part. No he had it in the wee part’.[47]
[47] Ibid at Items 484-493.
She then said ‘it’s a little hole and then it came ‘stretched’ and had red marks on it’ and later that ‘the hole wents back to normal’. She said ‘so that’s it – that’s all what he done’. She was asked to tell her more and said ‘I can’t remember’.[48]
[48] Ibid at Items 497-513
After she repeated that she couldn’t remember Ms Porsiello said that she had heard that SJR had told Nanny that when she came back from the accused’s she had ‘a tummy ache and sore privates. Right’; to which SJR replied ‘just a tummy ache’.[49]
[49] Ibid at Items 524-525.
Later SJR said that the sex happened in the accused’s room.
Still later she was asked how she knew dicks could go into the poo hole. SJR said ‘When he does it’ to which Ms Porsiello said ‘so [the accused] has put his dick in your poo hole as well’. SJR replied ‘Yeah’.[50]
[50] Ibid at Items 660-661.
A few questions later after talking about a tractor-toy she was making SJR said that he hadn’t put his dick in her poo hole – only her wee hole; and that he had not really on that day or even a different day put his dick in her poo hole.[51]
[51] Ibid at Items 666-675.
Still later, when SJR talked about the act of fellatio, spoke of ‘his dick’ falling out of her mouth.[52]
[52] Ibid at Item 700.
She was then asked whether anything came out of his dick to which SJR replied ‘No, just white stuff’s what in there’.[53]
[53] Ibid at Item 719.
Finally, when asked where his dick was when she wanted to vomit, SJR said that it was ‘in her wee hole’.[54]
Interview on 2 November 2017
[54] Ibid at Item 729.
In this interview SJR chose to refer to the accused’s penis as his ‘willy’ not as his ‘dick’.[55]
[55] MFI P13 at Items 134-136.
Ms Porsiello then said to her that SJR had previously said the accused had forced her to suck his willy and had sex with her on more than one occasion to which SJR replied ‘Ah no – it was the only time’.[56]
[56] Ibid at Items 153-158.
Ms Porsiello then said ‘Tell me about the first time [the accused] had sex with you’ to which SJR said that ‘the first time was I think yesterday’.[57]
[57] Ibid at Items 160.
Ms Porsiello continued to press SJR and said ‘Tell me about a time, a different time from this time cos you said this wasn’t the only time. Can you tell me about a time on a different day that [the accused] had sex with you’. Pressed still further to speak of a different time SJR said ‘No I don’t remember’.[58] Finally SJR acceded to this somewhat persistent line of questioning and said that the accused had had sex with her ‘more than one time when I came there’.[59]
[58] Ibid at Items 165-170.
[59] Ibid at Items 173-174.
She said that a different time was ‘a Thursday’ and that ‘he forced me to suck his dick like in a same when he, as the other days’.[60]
[60] Ibid at Items 185-190.
She then described him wanting to and her saying ‘no’. She identified this day as ‘the last time when we went there’.[61]
[61] Ibid at Item 210.
She went on to describe being forced to suck his dick and being drowned in a pool and that this all happened on the same time.
Next SJR said that she told her mummy and then no ‘I didn’t tell mummy’.[62] She then described the drowning episode in more detail. In the middle of her description Ms Porsiello re-introduced the topic of fellatio on two occasions.
[62] Ibid at Items 259-260.
SJR then said her mother came and she said to her ‘Mummy can we go home and never come back here’ to which her mother said ‘Yes daughter yes’.[63]
[63] Ibid at Items 350-352.
Next Ms Porsiello said ‘do you remember another time when [the accused] had sex with you’ to which SJR said ‘Yes’ and then ‘No, not actually cos I don’t know which is which’.[64]
[64] Ibid at Item 362.
Then Ms Porsiello raised the topic of CT not believing her.[65]
[65] Ibid at Items 375-395.
SJR said that he asked her to suck his willy or else she would be drowned in the pool.
Then SJR repeated that she doesn’t remember anything more. Later she told the accused that she couldn’t have sex with him because her ‘Mum and Dad are here’ to which he just said ‘do it quickly’.[66]
[66] Ibid at Item 498.
After a break Ms Porsiello introduced the topic of dicks going in poo holes.[67] SJR said that when it happens she ‘poos’ herself [68] but said it only occurred on one occasion.[69]
[67] Ibid at Item 603.
[68] Ibid at Items 606-618.
[69] Ibid at Items 619-620.
SJR then said that when he put his dick in her poo hole he took his clothes off and she took her clothes off.[70] She described his room and said it had a freezer or fridge in it.[71] She then said that she hates the accused; that he’s a ratbag.[72] She also described telling the accused not to come in her ‘personal space’ and that he never gives her ‘personal space’.[73]
SJR’s Evidence in the Trial
[70] Ibid at Item 835.
[71] Ibid at Items 859-864.
[72] Ibid at Items 869-873.
[73] Ibid at Items 932-939.
In examination-in-chief, she described the pool as an above-ground blow‑up pool.
In cross-examination, she said it was an above-ground concrete pool. She said that she had not been swimming in it. She said that the accused would always have sex with her when she stayed at his house and that she never called him ‘Dad’.
She said that she and her cousin T never had sex together. She also denied telling Ms Porsiello that she and cousin T had indeed had sex together.[74]
[74] I permitted the accused to cross-examine SJR on this general topic, subject to a general objection by the DPP on the ground of relevance. In my opinion, the question of whether it was somebody other than the accused, namely her cousin, T who had sexual intercourse with her in the way she described, was a real issue in the trial. Therefore, I am satisfied that the questions as to what SJR told Ms Porsiello on this issue were admissible to demonstrate inconsistency on her part.
She also gave answers notionally through her pet snake and her pet horse ‘Pearl’. Although SJR said that she had not seen her mother having sex with men at home, through Pearl she said that Pearl says ‘Yes Yes Yes’ that she has.[75]
[75] T318.
She denied that she had ever heard her mother complaining to CT about being forced to have sex with the accused.
She then said that CT had said in her presence that her ‘poo hole’ looked ‘stretched’.[76] She did not recall hearing Dr Roesler say anything about her private parts being stretched.[77]
Proofing Note
[76] T319.
[77] Ibid.
In the Proofing Note taken on 17 June 2019 she said the accused put his dick into her poo hole more than once but that there was no time when he put his dick in her wee hole.
She described sex as being ‘humping – like moving bodies together’.
She described the pool as an above ground blow-up pool. She said the accused put his willy in her mouth more than once and said that this was Thursday, Friday, Tuesday in October.
Assessment of the Complainant, SJR
I have no doubt that SJR was endeavouring to tell the truth in the interviews with Ms Porsiello, during her proofing and when giving her unsworn evidence. However, I have reservations about the reliability of her evidence for a number of reasons, which include the complainant’s age and intellectual disability, the nature of her questioning, the uncertainty in my mind as to just what she meant when she used words such as ‘sex’, and the myriad inconsistencies in and between her various accounts.
Generally
In general terms, the combination of her age and intellectual disability, manifested, in part, in the form of low verbal comprehension, low working memory, poor ability to concentrate and corresponding poor communication skills, meant that she was likely to be more easily led or more suggestible in responding to questioning than children of the same age without her level of disability.
Interview I
The fact that at the beginning of Interview I she launched into the beginnings of a narrative, suggested to me that she may well have been recently discussing aspects of the alleged offending with others presumably adults and, in all likelihood, adults close to her. In the result, there is at least a possibility, if this in fact occurred, for her recollections to have been contaminated.
Her reference to him wanting to have ‘sex’ with her, which for a significant part of the interview could only have been referrable to an act of fellatio and not penile/vaginal intercourse.[78]
[78] The first reference to ‘sex’ is at Item 129. There are repeated references thereafter to ‘sex’ in the context of fellatio. It is not until Item 441 that fellatio and sex are used in contradistinction.
Her use of the term ‘dick’ to describe the male penis and her statement that she had a ‘willy’.
Her reference to ‘sucking a dick’ and then almost immediately mentioning ‘T’ followed by her talking about a ‘cousin’. She then said that she was the accused’s cousin.
Her inability to remember ‘anymore’ until being led by Ms Porsiello’s repeated references to ‘I heard you told the Doctor’ that what happened with the accused made you want to vomit and that you couldn’t breathe.
Her reference to the sex being with his dick in her ‘poo part’ and then a change to the ‘wee part’.
Her reference to the term ‘stretched’ in relation to her vagina.
Ms Porsiello’s leading question of her as to the accused having ‘put his dick in your poo hole as well’ to which she said ‘yeah’.
Her statement that he had not on any day put his dick in her poo hole.
Finally, she said that his dick was in her ‘wee hole’ when she wanted to vomit.
Interview II
The fact that now she referred to the accused’s penis as a ‘willy’ not a dick.
Her statement that there had only been one occasion of fellatio and penile/vaginal intercourse.
Her obvious confusion with respect to dates and times as manifested by her saying that the occasion when she had sex with the accused was ‘yesterday’ and that a different time was a ‘Thursday’.
Ms Porsiello’s leading questions of her which invited SJR to assume that there were more occasions such as ‘Tell me about a different time’.
SJR’s statement, in the context of whether there had been other occasions, namely ‘No, not actually cos I don’t know which is which’.
SJR’s reference to the accused saying to her ‘do it quickly’ in response to her telling him that her ‘mum and dad are here’ which, in my view, is inherently implausible.
Her statement that penile/anal intercourse had occurred but only on one occasion.
Her references to the accused not respecting ‘her personal space’ (being a concept that she clearly did not understand at a personal level).
The Trial
Her references to not having sex with T or having seen her mother having sex, although her pet horse ‘Pearl’ had apparently seen the latter occur.
Her reference to CT having said in her presence that SJR’s ‘poo hole’ appeared to be ‘stretched’.
The Proofing Note
Her statement that the accused had had penile/anal intercourse with her on more than one occasion, but that there had never been an occasion of penile/vaginal intercourse.
Her reference to multiple acts of fellatio with the accused occurring on ‘Thursday, Friday, Tuesday in October’.
Agreed Facts
In addition to this evidence, there were the following Agreed Facts:
1 The complainant was proofed by the prosecutor on 27 June 2019 just before she gave evidence in Court. She told the prosecutor the pool she was drowned in was a permanent stone inground pool.
2 The complainant was taken to the Women’s and Children’s Hospital on 14 August 2019 by her mother, MN and JFA. No complaint was made by the complainant of pain or bleeding as a result of the alleged sexual abuse. The complainant did not have any bruising to her upper body, shoulders, arms, back or head.
3 The complainant was taken to see Dr Roesler on 13 September 2017 by her mother and MN. Dr Roesler conducted a genital examination. Dr Roesler initially thought she observed stretching of the vagina consistent with sexual intercourse. She spoke of her findings with SJN while the complainant was in the corner of the room, playing with her toys. It is possible the word ‘stretched’ or ‘stretching’ was used during this discussion. The observations of Dr Roesler are not relied upon by the prosecution and it has been confirmed by Dr Noori in evidence there was nothing abnormal about the appearance of the complainant’s vagina or any signs consistent with sexual intercourse when he examined her in November 2017.
4 It is possible that the following medications can have the following side effects:
a.Seroquel – an antipsychotic that can cause dizziness and headaches.
b.Mirtazapine – an antidepressant that can cause sedation and drowsiness.
c.Propranolol – a beta blocker used to treat anxiety that can cause drowsiness.
d.Tramadol – an opioid pain medication that can cause drowsiness.
5 In 2017 in South Australia the July school holidays were between Saturday 8 July and Sunday 23 July.
Discussion
The manner in which this trial commenced and thereafter proceeded has resulted in the need for me to consider an overall issue of fairness to the accused as a discrete issue separate and distinct from a consideration as to whether or not on the evidence I can be satisfied beyond reasonable doubt that the accused is guilty of the charges.
In what follows I intend no criticism of the DPP. Mr Martin conducted this trial at all times with the utmost propriety in circumstances which, at various stages, gave rise to issues of unusual difficulty given the age and intellectual disability of the complainant.
The first issue, namely fairness to the accused, arises by reason of the nature and content of the Information in relation to which the trial proceeded.
The Information
At the commencement of the trial the DPP sought to file a fresh Information, which alleged five Counts of unlawful sexual intercourse in lieu of the three Counts alleging the same offence of unlawful sexual intercourse on the original Information. Importantly however, the case against the accused did not alter in one sense because the number of occasions upon which it was alleged that unlawful sexual intercourse had taken place, namely three, remained the same.
The two additional counts, namely Counts 4 and 5, were only added after Mr Martin had reviewed the contents of the second interview between Ms Porsiello and SJR in the last few days preceding the trial.
Understandably, faced with a new Information in these terms, the accused was placed in a position where he needed further particulars of the offences alleged in each of Counts 1-5.
By way of response to the accused’s request for Particulars, the DPP provided a document entitled ‘Summary of interviews relating to each count’[79] which records as follows:
[79] Strictly speaking the document initially provided by the DPP was a document entitled ‘Summary of Prosecution Case’. The ‘Summary of Interviews’ document which incorporated some amendments to the ‘Summary of the Prosecution Case’ document was provided at the close of the evidence. The ‘Summary of Interviews’ document also contained footnote references for the subparagraphs in each Count which it is unnecessary to record.
1. Counts 4 and 5
a.The accused wanted to have sex with the complainant…
b.The accused wanted the complainant to suck his penis. The complainant refused and the accused forced her to suck his penis…
c.The accused forced the complainant by persistently telling her that he wanted her to do it…
d.The act of fellatio made her want to vomit…
e.During the fellatio the accused’s penis fell out of the complainant’s mouth. When that happened he would put it back in…
f.The accused gave the complainant a drink from his drink bottle…
g.The accused then had penile vaginal sexual intercourse with the complainant…
h.The sexual intercourse caused the complainant’s vagina to stretch and to sustain red marks…
i.The complainant felt like she was going to vomit again during the penile vaginal sexual intercourse…
j.The accused ejaculated at some stage…
k.It happened in the accused’s bedroom, which is the carport of the house…
l.It happened at night whilst the accused’s mother was asleep…
m.The accused’s son was home but in another room watching television…
n.At some stage the accused also made the complainant a meal similar to porridge…
o.The complainant asked the accused whether she could tell anybody about the sexual acts, to which the accused told her she could not…
p.The accused did not drown her on this occasion…
q.This was the last time the complainant saw the accused…
2. Count 1
a.The complainant had been crying because she had hit her big toe on something very hard…
b.The accused began to cuddle her…
c.The accused took his clothes off…
d.The complainant took her clothes off…
e.The accused then inserted his penis into her anus…
f.She felt she was about to soil herself and told the accused to stop…
g.She then soiled herself…
h.The accused stopped having sex with her…
i.The light was off…
j.The complainant felt upset…
3. Counts 2 and 3
a.The complainant was watching movies with the accused…
b.The accused was her parent at the time…
c.The accused wanted to do the same thing she had already been speaking about eg fellatio…
d.There had been more than one occasion where she was forced to suck the accused’s penis in the same way…
e.The accused said ‘please suck my willy’ and the complainant refused. The accused persisted and told her to ‘do it now’…
f.The accused threatened to drown the complainant in the pool if she did not suck his penis…
g.The complainant told the accused she did not believe him…
h.The accused then put the complainant into his pool and forced her into the water…
i.The accused forced the complainant to perform fellatio on him…
j.The accused then inserted his penis into the complainant’s vagina and had sex with her…
k.The sex did not feel good…
l.The complainant was freezing, felt sick and was vomiting everywhere…
m.The accused told her he wanted her to stay with him forever…
n.She told [CT] about this allegation and [CT] did not believe her… and
o.She told her mother about the allegation and her mother had to pretend that she didn’t believe her…
The DPP submitted that the aforementioned passages clearly identify three separate and distinct occasions, the first being Count 1 when a single act of penile/anal intercourse occurred and then two further separate occasions when, on each occasion, alleged acts of both fellatio and penile/vaginal intercourse occurred.
I will leave for a moment Count 1 which alleges penile/anal intercourse.
As I have just observed, on the prosecution case, Counts 2-5 inclusive alleged acts of fellatio and penile/vaginal intercourse occurring on two separate days. The DPP submitted that the descriptions of fellatio and penile/vaginal intercourse throughout SJR’s first interview were ‘plainly referrable’ to Counts 4 and 5, and that in large measure, her descriptions of fellatio and penile/vaginal intercourse in the second interview were plainly referrable to Counts 2 and 3.
In support of this submission, the DPP asserted that in the first interview SJR was talking about the last occasion that she was at the accused’s house which, based on all the evidence, must have been in July 2017. These then would be the ‘later in time’ acts and, as such, must be referrable to Counts 4 and 5.
Counts 2 and 3 on the prosecution case were detailed by SJR in her second interview where after being ‘encouraged’ to talk about a different time she gave an account of acts which, although in terms of the acts themselves, were largely indistinguishable from the acts described in Interview I, involved SJR talking about being drowned in the pool.
On the prosecution case, the reference to being drowned in a pool, something about which she said nothing in Interview I, could only mean that in this Interview, SJR was talking about a different occasion. The accused, on the other hand, submitted that this detail amounted to no more than a mere elaboration of the details in her first interview.
The DPP also submitted it was a different occasion because apart from talking about being drowned, the unlawful sexual intercourse she talks about was described in the context of CT not believing her. This, on the prosecution case, points to a time or occasion in late 2016 or earlier in 2017, but clearly not in July 2017.
I am not satisfied that her complaints regarding unlawful sexual intercourse in the second interview do in fact relate to a different occasion. I am not so satisfied because at the beginning of the first interview SJR immediately announced that she was there to talk about the accused and when Ms Porsiello says ‘we’re just going to talk about that’ she replied ‘but [CT], my mum’s friend, doesn’t believes me but my mum believe’.
In my view, given that statement, it is quite impossible to exclude the possibility that in the first interview when SJR then proceeded to talk about acts of unlawful sexual intercourse she may have been adverting to the acts on the occasion, that CT did not believe her, namely the occasion encompassed in Counts 2 and 3.
In short, in my view, I am entirely uncertain as to whether SJR’s complaints of fellatio and penile/vaginal intercourse relate to one occasion or two. It is equally impossible to say with any certainty whether SJR’s descriptions of unlawful sexual intercourse (in either or both of the Interviews) relate to the offences charged in Counts 2 and 3 or Counts 4 and 5 or indeed an act or acts which are uncharged.
So understood, because SJR’s evidence disclosed two potential offences of fellatio and two offences of penile/vaginal intercourse, either of which could have fallen within the description in Counts 2 and 4 on the one hand, and Counts 3 and 5 on the other, in my view, there exists a ‘latent ambiguity’ in each and all of those Counts.[80]
[80] Johnson v Miller (1937) 59 CLR 467 at 486; S v The Queen (1989) 168 CLR 266 at 274.
Of course, the fact that there now remains a latent ambiguity in these Counts does not mean that the Counts were at the outset of the trial framed in an impermissible way in the Information.
The nature of the alleged offences and the difficulties confronting the DPP created by the youth and intellectual disabilities of the complainant, effectively meant that evidence needed to be led in full, before, in my view, the extent of the ambiguity became truly apparent.
Nevertheless, at the conclusion of the evidence, I am satisfied that a true ambiguity does indeed exist.
Accordingly, in the absence of the prosecution being able to cure the ambiguity (which on the evidence it hasn’t), the accused has been embarrassed in his defence in a manner which has precluded him from having a fair trial. In these circumstances, he is entitled to a verdict of not guilty on Counts 2-5 inclusive.
However, in the event that I am incorrect, in my view as to these Counts, I now proceed to consider the prosecution case on Counts 2-5 as well as on Count 1, a Count which is not infected by any considerations of latent ambiguity.
The Prosecution Case on the Evidence
SJR’s Evidence
The prosecution case on all five counts rests largely upon the evidence of SJR. However, on this issue and prior to addressing each count specifically, I need to repeat some of the observations which inter alia have caused me to doubt the reliability of SJR as a witness:
· Her age and intellectual disability which, in combination, make her prone to being more suggestible and easily led;
· The leading questions put to her on issues which were central to not only the identity of the perpetrator of the alleged offences, but the nature of the offences themselves;
· Her reference to her cousin T in the context of talking about fellatio;
· Her usage of terms such as ‘stretched’, ‘penis’ and ‘vagina’ which, in my view, can only have come from overhearing adults.
· The inconsistencies in her account which included:
ochanging the allegation from penile/anal intercourse to penile/vaginal intercourse;
ostating that she wanted to vomit during fellatio and then changing it to wanting to vomit during penile/vaginal intercourse;
oallegations of acts on multiple occasions contrasted with her statements that those acts had either never occurred or had only occurred on a single occasion; and
oreferences to her ‘vagina’ being stretched compared to her evidence that it was her ‘anus’ that was stretched.
· General confusion as evidenced by her statements that acts occurred on a Thursday or in October, and on another occasion that she didn’t know ‘which was which’;
· The inconsistency between her evidence at trial about never having had sex with T and her account to Ms Porsiello of having had sex on a number of occasions with him, being times which were at least roughly proximate to the period when the accused was alleged to have committed these offences;
· Her accounts of the penile/vaginal intercourse and the fellatio which comprise numerous features which are strikingly similar to the account she apparently overhead her mother, SJN relating to CT on multiple occasions; and
· Her descriptions of fellatio and penile/vaginal intercourse which contained a number of similar features to the account given by her mother to CT when she was present.
Although I have observed that the prosecution case rests largely on the evidence of SJR, I have also had regard to the other evidence in order to determine the extent to which corroboration exists for her account.
Balance of the Prosecution Evidence
In my opinion, the balance of the case did not provide much in the way of corroboration of SJR’s evidence.
First, there was no medical evidence to support her complaints.
Secondly, in terms of the complaint evidence, I am not persuaded that, other than in general terms, it supports SJR’s evidence.
The first complaint relied upon by the prosecution is SJR’s complaint to CT and her mother.
SJN said that SJR complained to her in late 2016 that the accused had ‘touched her in her privates with his hand’. This is clearly not referrable to any Count. She then said CT examined her vagina and commented that it was ‘stretched’.
CT says this complaint occurred in 2017 (when it was getting dark early) and that SJR described acts of fellatio and attempted penile/vaginal intercourse using the words ‘penis’ and ‘vagina’. CT denied examining her vagina or making any comment about her being ‘stretched’.
I will accept that a complaint in the terms expressed by CT was made. Although the terms of the complaint relate to acts which may be encompassed in either Counts 2 and 4 and/or 3 and 5 respectively, they do so with SJR referring to a ‘vagina’ and a ‘penis’. It is hard to escape the conclusion that when making this complaint SJR was ‘parroting’ something she had overheard from her mother, given the terms used by SJN in multiple conversations on this topic that she had with CT. As such, while the complaint is ‘prima facie’ evidence of consistency of account, it has been made in terms and using express words which leave me with genuine misgivings (when considered in conjunction with the rest of its evidence) as to precisely what offences have been allegedly committed, how many and by whom.
Ultimately, this evidence does little to support the accounts given by SJR in the interviews or during the trial.
The next complaint is the one made to JFA where SJR said that the accused ‘had sex with me’. Later she described this as ‘humping’ and then according to JFA, simply pointed to her ‘mouth and private’. SJN recalled SJR saying that he had ‘touched her in her privates and put his willy in her’.
Neither account matches the conduct alleged in Counts 2 and 4 or 3 and 5, although a combination of their accounts arguably does. Again, I do not regard this as particularly persuasive evidence of consistency in account.
In summary, there is little by way of corroborative evidence in the accounts given by the other witnesses.
Against this background I turn now to consider the individual counts.
Count 1
In relation to this Count SJR has given three different accounts:
· In Interview I she said that the accused has ‘not really’ put his penis in her anus;
· In Interview II she said it had happened but only once;
· In the Proofing Note she said that it had happened and had happened on more than one occasion.
Quite apart from the important inconsistencies in her evidence on this Count, given my views about her reliability, not only in general terms but in numerous other specific respects in relation to the other Counts, I need to take into account those doubts when considering Count 1.[81]
[81] R v Mas (2013) 118 SASR 160 at [95]-[106].
In all the circumstances, I cannot be satisfied beyond reasonable doubt as to her reliability with respect to Count 1.
Counts 2-5
I cannot be satisfied beyond reasonable doubt on any of these Counts given the views I have expressed as to the general and specific unreliability of the evidence given by SJR.
Furthermore, and in any event, given that the evidence in relation to each of these Counts is equally capable of referring to another Count, it is impossible for me to be satisfied beyond reasonable doubt as to the accused’s guilt on any of these charges.
Verdicts
My verdicts are as follows:
Count 1 – Not Guilty
Count 2 – Not Guilty
Count 3 – Not Guilty
Count 4 – Not Guilty
Count 5 – Not Guilty
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