R v B, LM
[2020] SADC 42
•8 April 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, LM
Criminal Trial by Judge Alone
[2020] SADC 42
Reasons for the Verdict of His Honour Judge Slattery
8 April 2020
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused is charged on Information for arraignment on 13 July 2018 with the offence of maintaining a sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
Pursuant to s 7(1) of the Juries Act 1927 (SA) the accused elected to be tried by a judge sitting without a jury.
Held:
Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 5, s 50(1); Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) s 13B, s 13BA, s 13C, s 13CB, s 13D, s 34P, referred to.
R v M, DV [2019] SASCFC 59; R v Tran [2017] SASCFC 99; R v Thompson [2018] SASCFC 104; R v W, PK [2016] SASCFC 5; R v Cassebohm (2011) 109 SASR 465; R v C, CA [2013] SASFC 137, discussed.
Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; R v Keyte [2000] SASC 382; (2000) 78 SASR 68; DL v The Queen (2018) 92 ALJR 636; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; AK v Western Australia (2008) 232 CLR 438; R v Maiolo (No 2) (2013) 117 SASR 1; R v R, PA [2019] SASCFC 19; R v N, RC (2012) 112 SASR 399; R v Schultz [2010] SASCFC 47, considered.
R v B, LM
[2020] SADC 42
The accused is charged on Information for arraignment on 13 July 2018 with the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
Under s 7(1)(a) of the Juries Act 1927 (SA), the accused has made an election to be tried by a judge sitting without a jury.
The particulars described on the face of the Information are as follows:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LMB at Reynella, Sheidow Park, Morphett Vale, Mitchell Park, Bedford Park and Christie Downs, between the 28th day of August 2009 and the 2nd day of November 2017, maintained an unlawful sexual relationship with TKB, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely;
(a) touching her vagina on more than one occasion;
(b) inserting a finger or fingers into her vagina on more than one occasion;
(c) causing her to perform an act of fellatio upon him on more than one occasion;
(d) causing her to touch his penis on more than once occasion;
(e) inserting an object, namely a vibrator, into her vagina on more than one occasion; and
(f) inserting his penis into her vagina on more than one occasion.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
No case has been presented under the particulars of offence (d). There was no evidence on the topic.
The complainant was born on 29 August 2002. She is the daughter of the accused, who is her biological father.
The allegations are that in the period from when the complainant was seven years of age in 2009 until when she was 15 years of age in 2017, the accused sexually abused her. The complainant said that during period from 2014 onwards, she was forced to have penile vaginal intercourse with the accused up to four times per week. The events happened in and around the family home, where the complainant resided with her mother and her sibling together with the accused.
At the time that the offending is alleged to have commenced, the family lived in Reynella. The offending is said to have ceased in November 2017 when the family was residing at Christie Downs. Soon after an alleged event on 1 November 2017, the complainant made a complaint to her school friend PR on 4 or 5 November 2017, and then to her mother on 6 November 2017. The matter was then reported to the police and the accused was subsequently arrested.
Elements of the offence
Maintaining an unlawful sexual relationship with a child
The elements of the offence of maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) are as follows:
1That at the time of the offending, the accused was an adult.
2That the complainant was a child during the relevant period.
3There was a relationship (but not necessarily a sexual relationship) between the accused and the complainant during the course of which the accused engaged in the unlawful sexual acts.
4That the accused committed two or more unlawful sexual acts towards the complainant.
In order to prove that the accused is guilty of maintaining an unlawful sexual relationship with a child, the prosecution must prove to my satisfaction each of those four elements beyond reasonable doubt.
In this case, it is not in dispute that the accused was an adult and the complainant a child at the time of the alleged offending; the first and second elements of the offences are satisfied.
Element 3: Maintaining a relationship
In the decision of the Court of Criminal Appeal in R v M, DV,[1] the majority of the Court held that it was not an element of the offence of maintaining an unlawful sexual relationship that there needs to be a sexual relationship between the defendant and the complainant in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant. Rather, it is an element of the offence that there was a relationship (not necessarily sexual) between the defendant and the complainant, during the course of which the defendant engaged in the unlawful sexual acts. In dissent, Blue J held that it is not an independent element of the offence that there is an overarching relationship between a defendant and a complainant in the course of which the defendant engaged in the unlawful sexual acts.[2]
[1] [2019] SASCFC 59.
[2] Ibid [58].
In this case, it is not in dispute that the parties had a father and daughter relationship.
Element 4: Unlawful Sexual Relationship
An unlawful sexual relationship as identified in the fourth element, is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the charged period. An unlawful sexual act means any act that constitutes or would constitute a sexual offence, including unlawful sexual intercourse, indecent assault and gross indecency. I set out below the elements of the unlawful sexual acts that are particularised on the Information.
The prosecution must satisfy me beyond reasonable doubt that the defendant engaged in at least two unlawful sexual acts with the complainant between 28 August 2009 and 2 November 2017. It does not matter which two or more unlawful sexual acts that I find proved; I must be satisfied that there have been at least two of them.
For the purposes of identifying two or more acts to constitute an unlawful sexual relationship, it is not necessary that I be satisfied beyond reasonable doubt of the particulars of any unlawful sexual act which would have to be satisfied if the act was charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
The fourth element is the issue in dispute in this matter. It must be proved beyond reasonable doubt by the prosecution that the accused committed unlawful sexual acts involving the complainant.
On the Information, the particularity of the unlawful sexual act is as follows:
(a) touching her vagina on more than one occasion;
(b) inserting a finger or fingers into her vagina on more than one occasion;
(c) causing her to perform an act of fellatio upon him on more than one occasion;
(d) …
(e) inserting an object, namely a vibrator, into her vagina on more than one occasion; and
(f) inserting his penis into her vagina on more than one occasion.
The prosecution contends and I agree that it is only necessary that I be satisfied that two or more unlawful sexual acts have occurred of the nature described in the particulars.
Sexual intercourse is defined by s 5 of the Criminal Law Consolidation Act as follows:
Sexual intercourse includes any activity consisting of or involving—
(a) penetration of a person's vagina, labia majora… by any part of the body of another person or by any object; or
(b) fellatio; or
(c) …
and includes a continuation of such activity.
Here the prosecution contends that the acts particularised in subparagraphs (b), (c), (e) and (f) constitute sexual intercourse. The prosecution contend that the conduct particularised in subparagraph (a) constitutes an indecent assault.
Indecent Assault
Indecent Assault is an assault accompanied by or committed in circumstances of indecency and consists of two essential ingredients, each of which must be proved beyond reasonable doubt.
The first element is that there was an assault. An assault is the voluntary and intentional unlawful application of force to another person. The application of force need not be great; nor must it cause any injury. It must be voluntary and intentional, so that a purely unintended, accidental touching would not be sufficient. It must also be unlawful, that is, without lawful excuse or justification. Examples of lawful excuse or justification might be self-defence, or when conducting a reasonable medical examination.
The second element of an indecent assault is that the assault was accompanied by or occurred in circumstances of indecency. To be indecent the conduct must offend against ordinary contemporary standards of decency and propriety within the community, including anything which an ordinary decent person would find to be shocking, disgusting and revolting. It must also have a sexual overtone.
General Directions
Before proceeding to discuss the evidence in this matter, it is appropriate that I set out a series of directions that I give myself in this matter. I have given myself the following basic general directions in determining my judgment. I later deal with a number of other specific legal directions separately as appropriate in different parts of my judgment.
The prosecution bears the whole onus of proof of the guilt of the accused beyond reasonable doubt and the accused is not required to shoulder any burden of proof at all. The accused is presumed to be innocent of the charge unless and until the evidence that I accept has satisfied me that each element of the offence has been proved beyond reasonable doubt. Conversely, if I am not satisfied that the evidence before the court has proved each of the elements of the offence beyond reasonable doubt, then I would reach a verdict of not guilty.
It is not a question of me preferring one party’s evidence over another, because the defendant does not shoulder any burden of proof. My task is to evaluate the evidence and then decide whether on the whole of the evidence, which includes any evidence led by the defence and the parties’ arguments, the prosecution has proved the offence charged beyond reasonable doubt. In making my decision of guilt beyond reasonable doubt, I am required to be satisfied that a version of events put forward before the defendant is not reasonably possibly true. If I am not so satisfied, I will not be satisfied of proof beyond reasonable doubt in respect of this charge.
Whenever the defendant puts forward something to me, he does not have to prove it; rather it is the prosecution that must prove the elements of the offence charged beyond reasonable doubt. If after carefully scrutinising the whole of the evidence, I am left with a reasonable doubt about the prosecution case on the charge, then I must give the defendant the benefit of that doubt and find him not guilty. As I have said, he does not shoulder any burden of proof and I would arrive at the same conclusion of not guilty if I am satisfied that any version put forward on his behalf is reasonably possibly true. Even if I did not reach that conclusion, I would still not convict the accused unless I was satisfied that the elements of the offence are proved beyond reasonable doubt.
I would not convict the accused of the charged offence if I was unable to determine where the truth lay including because of my dissatisfaction with the evidence given by the prosecution witnesses. In such a situation, I would not be satisfied of proof beyond reasonable doubt of the charged offence.
When assessing or evaluating the evidence of any witness, it is my duty to take an objective and dispassionate approach to that evidence and to base my verdict solely on the evidence presented at the trial. I have confined my deliberations to the evidence only.
I have evaluated the evidence that has been placed before me in the court. Subject to one important matter that I discuss below, I have considered how much weight I can place upon the evidence of any particular witness and I have assessed the truthfulness and reliability of the evidence of the witnesses called in the trial. I have had regard to my own impressions of the witnesses gathered by watching and hearing the witnesses in the witness box. I have given consideration to the intrinsic likelihood or unlikelihood of the stories that the witnesses tell and any bias that a witness might have. I have considered the manner in which each witness gave evidence, how the relevant story stood up in cross-examination and how the evidence of that witness fits in with the other evidence in the case that I find to be convincing.
I have given consideration to the fact that witnesses do vary in their personal histories and backgrounds, degrees of intelligence, age, education, personality and character. I have made allowances for personal qualities and characteristics such that, for example, I have taken into account that some witnesses are more nervous than others, some are more articulate, some are better educated and some are more and some less comfortable in the circumstances of a court setting.
In assessing witnesses, I have first considered whether a particular witness is truthful, who is honestly trying to tell the truth as he or she understands it. Having made that assessment, I then assessed the witness for accuracy about what he or she recalled and I have taken into account that a truthful witness might be inaccurate because of a lack of sufficient memory or recall when giving evidence.
I have taken into account that I do not need to accept everything or reject everything that a particular witness says. A witness might be truthful and reliable about some matters but not about others. A witness might be genuinely trying to tell me the truth but be mistaken for a number of reasons. I have also borne in mind that propositions put by counsel and questions are not evidence. It is only the answers given by a witness that forms the evidence.
In all of my reasoning, I have brought an open and unprejudiced mind to this case; I have made my decision without sympathy, without prejudice or fear and I have not been influenced by public opinion in relation to this matter.
In reaching my decision in this matter, I am required to observe common law rules which oblige me to give reasons that are sufficient to identify the relevant principles of law and my main factual findings.[3] In R v Tran,[4] Vanstone J, who wrote the decision of the court, said as follows:
The extent of the obligation has been earlier discussed in this Court in R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at 78 ff. The judge must state generally and briefly the grounds which have led to the conclusions reached concerning disputed factual questions and must identify the findings on the main contested issues. Reasons are not required to be lengthy or elaborate. What is required will vary from case to case and will depend upon the circumstances of the case and the issues raised. It is clear that reasons are to be read as a whole.
[3] Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699 at [8].
[4] [2017] SASCFC 99 at [67].
Similar sentiments were expressed recently by the Court of Criminal Appeal in R v Thompson.[5] Peek J who wrote the decision of the majority in relation to all counts,[6] said at [107]:
Counsel for the appellant emphasised the recent decision of the High Court in DL v The Queen[7] and I have had close regard to it. The majority (Kiefel CJ, Keane and Edelman JJ) there stated:
[33] The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’[8]. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. [9] In particular: [10]
Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.
[5] [2018] SASCFC 104.
[6] Hinton J would have allowed the appeal in relation to Count 2 and ordered a retrial.
[7] (2018) 92 ALJR 636.
[8] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
[9] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[10] AK v Western Australia (2008) 232 CLR 438.
In relation to the reference to AK v Western Australia,[11] I do not understand that the judgment of the High Court sets down some inalterable order in which matters must be considered, but requires all the matters there set out to be considered and resolved. That is the approach that I intend to take here. I now turn to the evidence at trial.
[11] Ibid.
In the discussion which follows I identify within the evidence a number of uncharged acts. The evidence about these alleged acts was given before other judges of this court in the first and second trials that I refer to below in my discussion on background matters. The admission of this evidence is largely governed by the operation of s 34P of the Evidence Act 1929 (SA).
S34R Evidence Act requires that I give a specific direction on the use of that evidence.
I am satisfied that these uncharged acts constitute discreditable conduct for s 34P Evidence Act. I am also satisfied that this evidence would only have been admitted under s 34P(2)(b) because it relies upon a particular propensity of the accused as circumstantial evidence of a fact in issue, it apparently having a strong probative value.
As a judge sitting without a jury, I am still required to identify and explain the purpose for which the evidence may and may not be used. The evidence to which I refer is: the allegation by the complainant that the accused groped her on the breasts; performed cunnilingus upon her; choked her in the course of physically assaulting her; and threatened her life and the lives of other members of her family.
The purposes for which this evidence may be used includes to identify whether there was a specific sexual attraction of the accused to the complainant and a tendency for the accused to act in furtherance of that sexual attraction. In my process of reasoning, I may not use bad person reasoning that the accused is a person of bad character and is the type of person who would offend in the manner charged or is likely to be guilty of the charged offence.
In order for s 34P Evidence Act to have any operation in this context, it is necessary for me to decide whether I am satisfied beyond reasonable doubt that the alleged charged sexual offence was committed by the accused upon the complainant. For the reasons set out hereunder, I am not so satisfied and I am therefore relieved from further considering this aspect of the matter.
Background: some preliminary observations
Before turning to the evidence, it is necessary to recount some of the history of this matter. There have been two trials of this matter prior to me embarking upon the trial on this Information as a judge sitting alone. In the first trial, there was a mistrial at a time when the complainant had only partially given her evidence-in-chief. Her evidence was recorded under s 13C of the Evidence Act. An application was made for that evidence to be tendered in evidence before me under s 13D of the Evidence Act.
There was then a second trial. Under s 13C of the Evidence Act, it was intended that the whole of the evidence comprising the examination and cross-examination of the complainant be recorded. Unfortunately, part of the evidence was not recorded because of a malfunction in the court recording equipment. In the end, the transcript for that part of the evidence has now been tendered. A similar application under s 13D of the Evidence Act was made. There was no objection to that application.
Under that section, it was first necessary for me to be satisfied that there were proper reasons to admit the evidence in this way. In support of that application, I received an affidavit from the complainant's mother, the former wife of the accused. I then required her to give evidence. After hearing the evidence of the complainant’s mother, I delivered reasons permitting the prosecution to proceed by using s 13D of the Evidence Act.
After hearing the evidence of the complainant’s mother, I then received the transcript of the evidence of the first proceeding, the second proceeding and the disks of the evidence. There was also a s 13B Evidence Act interview done with a witness, RB. The prosecution proposed and I agreed that there would be an opening, the tender of the recordings, the transcripts and the exhibits and then I would take some time to watch the videos and do whatever reading was necessary before returning for closing submissions.
Before further proceeding with this judgment, I think there are a number of matters that should be stated. I have had the benefit observing the evidence given by the complainant through the video recordings. This method is slightly imperfect but is acceptable and I could make my assessment of this evidence in the usual way. I also had the benefit of the s 13BA Evidence Act interview with RB. That falls into the same category.
I did not have the benefit of seeing the accused in the witness box; I only had the transcript of his evidence to read. Although it is not of any consequence in this matter having regard to the conclusion that I have reached, I consider that this process potentially works in unfairness upon an accused, particularly where the evidence of the complainant and the prosecution witnesses is recorded and observed by the eventual trial judge. I also consider that it is necessary for the trier of fact to have the benefit of seeing the recorded evidence of both prosecution and defence witnesses as a matter of fairness. I think that this process potentially works an unfairness upon an accused. In the end, that is a matter for defence counsel who may be content to rely upon the earlier evidence of an accused especially where, as here, he vehemently denied the allegations against him.
The evidence
I turn to the evidence. The complainant said that the first time she was sexually abused was when she was six or seven years of age and living at Hillier Road, Reynella. She said that on a particular night she was frightened perhaps as a result of a storm and it may well have been a tree branch hitting a pergola near her bedroom. She got out of her bed in her own bedroom and went into her parents’ room. The sleeping arrangements in her parents’ room were that her younger brother RB slept between her parents. That night there were three people in her parents’ bed, her mother, her brother and her father. She said that when she came into the room, her father told her to get into the bed next to him which she did. She said that immediately her father started grabbing her on the buttock and moved his hand under her underwear around to touch the front of her vagina. He squeezed her buttock and she described him as touching her on the clitoris using two fingers. This occurred for two to three minutes.
In her evidence in chief, the complainant did not inform the court that when she did go into her parents’ room at night when she was frightened, she usually slept on a separate mattress, which was already in the room and generally kept under her parents’ bed. She later agreed that usually her parents got the mattress out. There was evidence that there was a small mattress in the room. The photographic evidence within Exhibit P2 suggested there were at least one other bed and at least one other mattress or bed arrangement within the parents’ bedroom at the time. In cross-examination, the complainant said that on occasions she would take her own mattress from her bedroom into her parents’ bedroom. However, she also agreed that at different homes, there was a mattress under her parents’ bed. She also agreed that her mother slept nearest the bedroom door and her father farthest from the bedroom door. Logically, she would have put her own mattress on her mother's side of the bed but the complainant said that she could not remember having done so.
In cross-examination, the complainant denied that she would not get into her parents’ bed because it was full as her two parents and her brother RB were already in the bed. She was challenged about the unlikelihood that she was sexually interfered with by her father at the same time that her brother and her mother were in the same bed.
In her evidence, the complainant said that on this occasion she was touched on her clitoris. She was challenged that at that age, between six and seven years, she would not have known what her clitoris was. She agreed saying that she called her vagina “our ‘private parts’.”[12] She said that her memory is that her father touched her private parts. However, she had specifically told the jury that he touched her on the clitoris. When challenged, she said it was not long after that that she found out what her clitoris really was.
[12] T80.26.
Although the complainant gave her evidence in a cogent manner, I have real doubts about the credibility and reliability of her evidence given that these events occurred in a bed in which there were four people; herself, her father, her brother and her mother. I have similar difficulty accepting that her father sexually interfered with her in the way that she describes without her mother ever being aware. The complainant’s mother gave evidence that she did not ever observe anything untoward in the physical relationship between the accused and the complainant and she was unaware of the complainant ever being in their marital bed whilst her brother RB was sleeping in the bed. She recalls that on one occasion she became aware of the complainant wanting to get into their bed but she directed her to sleep on the floor. The complainant also agreed that the usual practice was for her to sleep on a mattress beside her parents’ bed. There is no reason why, on each occasion she came into her parents’ bedroom, that she would have slept otherwise than on a mattress next to her parents’ bed.
The second complaint made by the complainant was that on a number of occasions at the Hillier Road, Reynella residence, her father forced her to perform fellatio upon him. The first occasion was when she was about seven years of age. Her mother was out and her father forced her into their bedroom. She initially said that he was sitting on the edge of the bed and he forced her down onto her knees, grabbed her head and forced her to perform fellatio upon him. He asked her to “suck his penis”.[13] She had no idea what he meant. She said that he had both of his hands holding her head, moving her head and at the same time using one of his hands to move his penis.
[13] T42.19-20.
She recalls that on one occasion she said “Stop dad, stop” and on that occasion he said “Don't call me dad”.[14]
[14] T43.34-37.
The complainant said that this offence also occurred at the Sheidow Park address.
The complainant agreed that she gave her first statement to the police on 10 November 2017, which was very soon after the events of which she complained occurring in November 2017. In that statement, she made no complaint to the police about her father forcing her to perform fellatio upon him in the house at Reynella. She said that memories came back to her after she discussed it. Later, she agreed that she had omitted to tell the police that this had occurred at the Reynella house.
She agreed that she also provided further details to the police in January 2018 as part of a second statement. In that second statement, the complainant did not tell police about being forced to perform fellatio upon her father at the Reynella house. She was asked whether there was any reason why she didn't mention that to the police in either her first or second statement, to which she responded that things just started to come back to her. When challenged about that ever having occurred, she agreed that that would have been a terrifying and traumatising event for a child of her age. However, she agreed that notwithstanding, she had forgotten to tell the police about it in her first statement. This was despite her being able to tell the police in her first statement that her father had massaged her clitoris in the house at Reynella. She said she was able to add further matters later when she had an improved memory. She said that she did not mention it in her first two statements (the fellatio) because she didn't want to walk around trying to remember everything. Despite all of that, she insisted that it definitely happened.
The complainant also said that there were other occasions at the Reynella address when her father touched her on the clitoris. She described this as a round and round movement. That was the expression that he used and that is why she remembered it. He would ask the question, “do you want me to do round and round.”[15] She was not able to say how many times this occurred at the Reynella house but believes she was about seven when she was first touched on the clitoris by her father. It was after the incident in the bedroom.
[15] T48.4-5.
She then said that she can recall her father grabbing her “on the boobs”[16] underneath her nightie at the same time as he was touching her on the clitoris. The touching of the breasts would be an uncharged act. The touching of the clitoris occurred at the Sheidow Park, Morphett Vale and Christie Downs addresses. That then progressed to her father putting a finger inside of her vagina. This first occurred when she was about nine or ten years of age and would have been in her bedroom at the Sheidow Park address. She gave evidence that digital penetration happened many times after that.
[16] T49.29.
In her evidence, the complainant said that her father would come into her bedroom late at night when her mother and brother were sound asleep. He would have to have gotten out of his bed, come into her bedroom, removed her from her bed and then touched her. She said that the only time she was dragged into her parents' bedroom was when her mother and her brother were not at home. When her mother and her brother were asleep in her parents’ bedroom, he allegedly sexually abused her in her bedroom. She agreed in her recorded evidence that he would drag her into his bedroom when her mother and her brother were asleep. She said that that is not what she meant but agreed that is what she said.[17] She said that what she meant was it would be late at night when her mother and brother would be asleep and would occur in her bedroom. She then agreed that in her first two statements she did not tell the police anything about this occurring. That is, she did not tell the police that she was sexually abused in her room when her father came into her room at Reynella. This was not reported in either the first statement in November 2017 or the second statement in January 2018. She also agreed that when she gave her first and second statements to the police she did not say anything at all about any digital penetration or touching of her clitoris occurring at the Reynella house. She agreed that in both her first and second statements she did not describe her father ever using the expression “round and round” at the Reynella house. She also agreed that in her second statement she told police he used that expression at another address.
[17] T89.20-22.
She also agreed that she did not ever tell the police that her father grabbed her boobs on any occasion in the Reynella house. She was asked whether that was something that she just remembered. She said that she had remembered it for some time but it had never been put into a police statement.
She was then asked about her physical development. It was suggested to her that when she said that she was first grabbed on the boob, she must have been in grade one or two at school. She agreed with that proposition. She also agreed that she had no developed breasts at the age of five or six years. However, she maintained that her father was grabbing her boobs in the house at Reynella. She denied that this could not have physically occurred because at that age she would have had no breast development. At eight years of age, she moved to Sheidow Park. Therefore, the events whilst at the Reynella house could only have occurred when she was in grade one and two at school. She agreed that she did not tell the police that her father had grabbed her boobs at the Reynella house because she did not remember it at the time. She was then challenged that she did not develop breasts until much later in her life. Her answer was as follows:[18]
No, but I still knew what - no, I didn't have big breasts but they definitely weren't tiny.
[18] T92.14-15.
I am unable to accept this evidence. I would not accept that a female child of her age would have had any form of breasts developed and that the evidence that has been given about her not having big breasts but they “…definitely were not tiny” cannot possibly be accurate. I gained the impression that the complainant was attempting to bolster her evidence.
In her evidence, the complainant said that the digital penetration that first occurred in her bedroom at the Sheidow Park address happened many times, which then progressed to penile vaginal intercourse. She thought that the penile vaginal intercourse happened mostly after the family moved to a house at Morphett Vale and then later at a Christie Downs house. The earliest occasion she could recall was at the house at Sheidow Park. The family lived at that address between March 2011 and May 2012 so this would have been at a time when the complainant was between eight and nine years of age.
In her evidence, the complainant said that she recalled one occasion when her mother was out and penile vaginal intercourse occurred on her parents' bed. Her father removed her leggings and underwear and touched her on the vagina. He removed his own clothes, forced himself upon her and placed his penis inside of her vagina.
She said that she could not move because he was 120 kg in weight. He was on top of her. She was a small child. She asked her father to stop because it was hurting her and he told her that it would become enjoyable and she would enjoy it.
This event lasted for about five to ten minutes before he withdrew his penis and ejaculated on a towel. When he ejaculated, she did not know what was happening. He said that he really enjoyed the experience. The next time she recalled her father having penile vaginal intercourse with her was at the Morphett Vale address. This happened on several occasions, sometimes in her bedroom at night and sometimes in her parents’ bedroom. It started becoming more frequent at the Morphett Vale address and occurred too many times to remember. She described it as happening: “… sometimes once a week, sometimes it was four times a week and sometimes it was like twice a month.”[19]
[19] T58.
The complainant agreed that when they were living at the Sheidow Park address, her father was working at Wingfield. His role was to build motor bodies. He worked full-time Monday to Friday. On occasions, he did work on weekends. His usual working hours were that he left home soon after 6.00 am but usually about 6.00-6.15 am to start work at 7.00 am at Wingfield. This was about 30 km away from their home in Sheidow Park.
He returned home sometime between 5.30 pm and 6.00 pm depending upon roadworks and traffic. If it was summer time, he would return home during the daylight hours. In winter time, it would be dark when he got home. When he worked on Saturday mornings, which was only occasionally, he would have to leave home at about 6am to return home at 12.30 pm. The complainant could not remember him working on Saturday mornings.
The complainant confirmed in cross-examination that the accused placed his penis into her vagina on many occasions and on those occasions, it was for between five and ten minutes. She agreed that that would have caused her terrible pain. This was because at the time she was aged between 10 and 11 years. She agreed that this activity caused her some internal injuries including some bleeding. However, in her first statement to the police, the complainant said that when the accused first placed his penis into her vagina, it lasted for about 20 to 30 seconds. She said this was when they were living at Sheidow Park. Notwithstanding, when she gave evidence in court, she said that this event lasted for between five and ten minutes. She was asked which version was correct and she said that each was different.[20]
[20] T95.23.
The complainant also gave evidence that apart from the penile vaginal intercourse that occurred at the Morphett Vale address and the Sheidow Park address, there were occasions when the accused stopped asking her to perform oral sex upon him and he started performing oral sex upon her.[21] She said in her statements to the police that she could recall the accused performing oral sex upon her on a couple of occasions at the Morphett Vale address but also at the Christie Downs address. On the occasions at the Morphett Vale address when he performed cunnilingus upon her, he began by licking her vagina and then later had penile vaginal intercourse with her. On other occasions, there was only penile vaginal intercourse. He would always ejaculate outside of her vagina. She used the expression that her father would “eat [her] out”.[22] This is an uncharged act.
[21] T61.37-62.3 of Trial 1.
[22] T100.12 of Trial 1.
The complainant agreed that she did not tell the police in any of her statements that her father licked her vagina. She agreed that if that had happened it would have been a most traumatic event. Notwithstanding, she said that she had not told the police anything about that in any statement in November 2017, January 2018, April 2018 or May 2019. Her response was that she honestly thought that she did mention it.
In her evidence, the complainant said that whenever penile vaginal intercourse occurred, the accused would always ejaculate outside of her vagina. As she got older, she would try to fight the accused off and refused to have sex with him. She said that he would tell her that if she was to say anything about what they were doing, he would kill her and the whole family and she would have to watch him kill each and every one of them.[23] This is a further uncharged act.
[23] T63.21-24 of Trial 1.
She also recalled that at the Christie Downs address when she was a bit older and had gone through puberty, if she tried to resist the accused, fight him or get away, he would suffocate her with a pillow or he would tell her that if she did not have sex with him, he would kill her and she would lose everything. That made her feel terrified. She said that he made similar threats to her every time that he had penile vaginal intercourse with her at Christie Downs. This is a further uncharged act.
In none of the statements given to the police in November 2018, January 2018, April 2018 or May 2019, did the complainant ever tell the police that the accused threatened to kill her whole family or kill her family and make her watch. She denied having embellished or exaggerated her evidence to make things sound worse for her father. I do not accept that denial. I am satisfied that by embellishing the threat in the way that she has done, the complainant attempted to exaggerate the threats allegedly being made against her by the accused.
The complainant also said that the accused would choke her while he was sexually abusing her. This happened both at the Morphett Vale and Christies Downs addresses and this occurred from when she was about 12 years of age. She said that on those occasions when she refused to have sexual intercourse with the accused, he would choke her with both hands and then after he did that, she would submit and have sex with him. She did this because she said she had no choice. This is a further uncharged act.
In cross-examination, the complainant said that as a result of this activity she was bruised.[24] She had bruising on her arms and there were associated red marks and scratches. Often there were red marks on her arms and her neck. Despite the general nature and location of these injuries, she then said that those red marks would not have been obvious to other people. This was because she always made sure that she was covered. I have real doubts about the reliability of this evidence. She said that she took photographs of these marks but then deleted the photographs. She could not properly explain why she had deleted those photographs. She did not show them to her mother, to school teachers or friends or any social worker at school. She had deleted the photographs before she made a complaint to the police in November 2017. I entertain the same doubts about the reliability of this evidence.
[24] T104.34-35 et seq.
She then said that she always deleted the photographs because she was sure that her father would get access to the photographs and if he found them, she would have been in so much trouble. She said that she took the photographs because she was trying to work up courage to tell her mother about what her father was doing. However, she then deleted all of the photographic evidence.
Also in her evidence, the complainant said that in his violent actions, the accused ripped some of her clothing and particularly her underwear, in the course of the sexual acts. However, she did not show any of the ripped clothing to her mother. She said that she got rid of all of that ripped clothing before her mother could notice. Notwithstanding, she said that her mother never questioned her about the fact that she was losing clothing, including underwear, as a result. She said that she disposed of any ripped article to secrete the problem from her mother. She was never questioned by her mother about this and no one appeared to notice the loss of this clothing.
The complainant also gave evidence of being sexually abused at other places. In particular, she spoke about being sexually abused at her grandparents’ home in Mitchell Park. She was about 12 years of age. She was staying overnight with her father and her younger brothers. She said that her father came into the room where she was sleeping after her younger brothers were asleep and digitally penetrated her vagina and grabbed her on the breasts. On one version, she said that he performed cunnilingus upon her. In cross-examination, she said that there was another occasion on the same visit to the grandparents’ house of digital penetration.
In cross-examination, the complainant agreed that she had voluntarily gone to the Mitchell Park house of her grandparents with her father. This occurred after her parents had had a marital argument that apparently was serious enough for the accused to take the children from their home to his parents’ home. The complainant agreed that she could have stayed at home with her mother. However, she voluntarily went to her grandparents’ house with her father, whom she said had been sexually abusing her for a long time prior to then. She said that she went there to look after her siblings. She was around 12 or 13 years of age and present in the home was her grandfather and an aunty. She reiterated in cross-examination that the only thing that happened sexually to her was that her father digitally penetrated her vagina and grabbed her on the breasts. However, in her statement of 26 April 2018, she told police that the accused had penile vaginal intercourse with her and on her grandmother’s bed.[25] When confronted with her statement, the complainant said that there was another occasion when the accused’s mother was asleep in a recliner and she was digitally penetrated. She therefore now says that there were two occasions. She could not inform the court why it was that she had not remembered those two occasions previously.
[25] Third statement 26 April 2018, p.4, para.10.
The complainant also gave evidence about an event at the Flinders Medical Centre. She was being treated for the after effects of a tonsillectomy. It had been some 14 days after the tonsillectomy and there was an episode of bleeding.
The accused took the complainant to the hospital for treatment. She alleges that in the hospital room and during the time over which she was being observed by hospital staff, the accused put his hands down inside of her underwear and played with her clitoris. At that time she was about nine years of age. I have had great difficulty accepting this evidence that the accused sexually abused his daughter whilst she was receiving treatment in hospital. She had presented with an episode of bleeding after a tonsillectomy. She would have been under observation and even if treatment in the hospital was conservative, I remain unconvinced by the evidence.
The complainant said that there were other occasions of sexual intercourse. She said that her father used her mother’s vibrator on her. She said that he inserted the penis shaped part of the vibrator into her vagina.[26] This happened at the Christie Downs address when her mother was out of the house. A picture of the vibrator is Exhibit P3. She thought that she had never seen the vibrator prior to her father using it upon her. He got the vibrator out of her mother’s bedside drawer or out of a wardrobe. She said that he used it on her at least five times and more likely on more occasions. The mother of the complainant confirmed that she owned the vibrator. She used it between 2015-2017, including at the Christie Downs address. It had been kept in an underwear drawer. I will refer to the DNA evidence later but the evidence of the complainant was that the accused held the handle part of the vibrator and inferentially used the operating switch to turn on the vibrator. The DNA evidence does not support this assertion. There were four contributors to DNA found on the handle and operating function of the vibrator and a high statistical likelihood that the mother of the complainant and the complainant were both contributors. For the DNA found on the shaft of the vibrator, there were two contributors. Again, there was a high statistical likelihood that the complainant and her mother were both contributors. None of the DNA found upon the handle or the switching mechanism belonged to the accused.
[26] T69.33-71.27 of Trial 1.
There was some evidence about whether the penis of the accused was circumcised and the state of his skin above his groin area. However, there was also evidence that the accused regularly walked from the shower to his bedroom naked and his whole family would have been aware of those matters.
The last occasion on which there was any unlawful sexual intercourse was immediately prior to the report to the police on 6 November 2017. That was a Monday. The event allegedly occurred on the previous Wednesday, 1 November 2017. The complainant said that the accused forced her to have penile vaginal intercourse with him and that was the only occasion that her father ejaculated inside of her vagina. He regretted that immediately but then said that she had an implant, which was a contraceptive implant that had been installed to ameliorate the effects of her heavy menstrual periods.[27] The accused was aware of this contraceptive implant. The complainant's mother had the same implant.
[27] T68.1-69.18 of Trial 1; T145.1-21 of Trial 2.
The complainant said that the intercourse occurred on a grey rug on top of her parents’ bed. The grey rug has been tested for DNA and the results are inconclusive. Most importantly, the DNA testing does not show conclusive evidence of any DNA from the complainant upon that blanket. It was seized within a week of the event having taken place. The blanket was not washed in the meantime.
I will come to the DNA evidence later, however there is one significant matter which causes me deep concern in relation to these alleged events. The ejaculation of the accused within the vagina of the complainant is alleged to have occurred on the Wednesday prior to the Monday, 6 November. That puts the date of the intercourse at Wednesday, 1 November. This court has regularly received expert evidence that very often, high vaginal swabs are able to detect the DNA through a semen sample up to a week after intercourse. There is no expert evidence before the court on this topic and so I will leave that issue to one side in my considerations here. However, there is no evidence that, as is so often the case, the complainant was referred to the services provided at Yarrow Place and to have been examined by an expert medical witness who is able to provide evidence to assist the court. In my view, the failure to have the complainant examined at Yarrow Place is a significant forensic failure in this matter.
There is complaint evidence before the court. The evidence of the complainant was that the first person she told was a school friend, PR. She told PR via text message on the weekend after the Wednesday. This would have been on either 4 or 5 November 2017. She told her that she was being raped. She also gave evidence that on that weekend, she had been staying at her boyfriend's house. Her parents had gone for a trip to Wallaroo. It had been arranged that she would stay at her boyfriend's house on the Friday night and then be at home for the Saturday evening. That had not occurred because her parents were late back from Wallaroo and her mother did not wish her to be coming home late. An arrangement was then made that she would stay at her boyfriend's home on the Saturday night as well. In his evidence, the accused said he was quite concerned and angry about these arrangements. This is because the boyfriend, E, had been described to him by the complainant as a schizophrenic with other troubles.
Later, there were text messages sent to PR in which the complainant said it was her father who was raping her. This was in the context of what was going on in that weekend. The complainant said that she was very upset about the event on the previous Wednesday and needed to speak to someone she trusted. There was no explanation why she did not tell her mother.
The evidence of PR was read onto the transcript.[28] She said that text messages had been sent to her by the complainant. She complained that she had been raped. Later text messages identified that person as her father.
[28] T155.1-24 of Trial 2.
Therefore, the allegations first came to light on the weekend which was soon followed on Monday, 6 November 2018 by the complaints to the police. The complaint largely involved what had happened on the previous Wednesday, 1 November 2018.
There was some other evidence concerning observations by RB at his grandmother’s home and of the accused drunk at their parents’ home. I am not able to place significant weight upon this evidence. In relation to the latter, the accused was drunk and in relation to the former, the accused has no memory of the event and it is unclear whether the observation was possibly little more than the accused touching the leg of the complainant. I have taken these matters into account and given them such weight as I consider appropriate.
The evidence of the accused
In his evidence, the accused denied the allegations of the complainant. He gave alternative and contradictory evidence in relation to, for example, events that might have happened on a weekend when the complainant’s mother and her brother were in Queensland. The accused said that on that occasion, his friend Dave, who stayed over at their house a lot, did stay over for the whole weekend. He also said that his mother came to stay at the premises. I think it is not likely that the accused would have proceeded to sexually abuse his daughter whilst his mother and his friend Dave were in the house. The accused also said in his evidence, in addition to his denials, that in the weeks leading up to the complaint he had no sexual interest in anything. He had not had any sexual interest for over a year because of the medication he was on. He was injured at work in 2012 and suffered what appears to have been a severe back injury. He remained on medication and he was not in any form of employment from 2012 onwards.
The prosecution points to those facts as being important, given the possibility of the accused having the opportunity to be at home separate from his wife and to abuse the complainant. In response, the defendant points to the evidence of his physical condition to justify the submission that the accused is not guilty because either he had no interest in sexual intercourse for a year prior to that time (as was urged upon me by defence counsel), or was incapable of having sexual intercourse. Even if I was not prepared to extend this evidence in that way, I think that it is another piece of evidence that might be taken into account. This is because there was no challenge to this evidence given by the defendant.
I now set out my process of reasoning leading to my conclusion. In so doing, I have taken into account but not necessarily specifically canvassed every point put to me by counsel. In the discussion hereafter, I have canvassed a number of issues identified by counsel and have expressed the basis of my reasoning and my conclusion. I turn first to the issue of reliability of the complainant’s evidence.
Reliability of complainant’s evidence
The accused submitted that I should approach the task of assessing the complainant’s evidence with caution, having regard to her age at the time of the alleged events and that, this alone, should be a reason not to be satisfied that the allegations are proved beyond reasonable doubt. As I have earlier indicated, I have assessed the evidence as a whole as I am required to do according to the decisions of the Court of Criminal Appeal in Schultz.[29] In the course of this discussion I have expressed my misgivings about the credibility and reliability of the evidence the complainant gave before the court. For those and other reasons I have real doubts about the reliability and credibility of her evidence.
[29] R v Schultz [2010] SASCFC 47.
In cross-examination, the complainant addressed the inconsistencies between her evidence and her police statements by saying that her memories were returning as time went on. In the usual course, due allowance is made for memories about more specific details coming to the mind of the complainant in the pressured environment of giving evidence. This is part and parcel of most criminal trials and that is why due allowance is made for such things. There is a distinction to be made between that position and completely new allegations coming forward that are then embellished in an apparent attempt to give them credibility. Many of these allegations, if true, would have been so traumatic that it is difficult to comprehend how they were not mentioned earlier. It is then even more difficult to comprehend why a complainant would then embellish such matters.
I have made the same allowances for the usual exigencies of life and background for the complainant as I have for the accused. I have taken the same approach to the whole of each of their evidence in light of my own knowledge and experiences of life, based upon the evidence, of their backgrounds.
Forensic disadvantage
Section 34CB of the Evidence Act provides that if there is a delay between the alleged offending and the trial, which results in a significant forensic disadvantage to a defendant, I must identify that disadvantage and direct myself to take that disadvantage into account. The disadvantage must be specific to the circumstances in the case and not be in the form of a warning, which is so general so as to be meaningless. In other words, I must forge a warning tailored to the circumstances of this case where the delay gives rise to some real disadvantage to the accused. In addressing these matters, I take guidance from the Court of Criminal Appeal decision in R v W, PK.[30] Kourakis CJ, who wrote the judgment of the court, said:
[30] [2016] SASCFC 5 at [35]-[42].
In R v Cassebohm,[31] Doyle CJ outlined the requirements of a warning pursuant to s 34CB:[32]
[31] (2011) 109 SASR 465.
[32] Ibid 475 [32].
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
In R v C, CA,[33] I observed:
The delay in this matter was substantial and I would accept that it resulted in a significant forensic disadvantage calling for a direction in accordance with s 34CB of the Evidence Act. The Judge did alert the jury to the appellant's forensic disadvantage in general terms. However, s 34CB of the Evidence Act requires a direction explaining the forensic disadvantage faced by the particular defendant on trial. The general direction given by the Judge did not draw the jury's attention to the contradictions, in matters of detail, of the complainants' testimony, which might have been more effectively pressed but for the lapse of time.
…
The Judge addressed the topic of forensic disadvantage in general terms but did not make a finding or give a ruling about whether the requirement of a ‘significant forensic disadvantage’ within the meaning of s 34CB(2) had been satisfied.
…
Section 34CB of the Evidence Act was clearly enlivened by the circumstances of this trial. The appellant's counsel sought a direction pursuant to that section. The passage of time was, in and of itself, a reason to give such a warning. Some 40 years, or close to it, had passed. S's evidence was that the offending occurred in the context of the day to day proximity of family life. Recollection of detail and of particular occasions will necessarily be difficult in those circumstances. The Judge explained the general difficulty occasioned by the lapse of time in defending accusations of this kind well when he told the jury that a complainant in a case like this is likely to be excused for deficiencies of recollection whereas the accused is in no position to dispute the recollection.
However, s 34CB(3) of the Evidence Act requires more than a general explanation of that kind. It requires the direction to be tailored to the facts and circumstances of the particular case.
[33] [2013] SASFC 137 at [117].
It is necessary that I tailor any forensic disadvantage direction to the facts and circumstances of this particular case. At the time of trial, it was a number of years since the date of the commencement of these alleged offences. Recent authority suggests that it is not necessary as a Judge sitting alone to give myself a forensic disadvantage warning[34] but I will do so in light of the operation of s 34CB of the Evidence Act. Any warning that I give myself must comply with the matters referred to by Peek J in R v Maiolo (No 2).[35]
[34] R v R, PA [2019] SASCFC 19 at [85].
[35] (2013) 117 SASR 1 at [179].
I am aware of the real possibility of the accused suffering a forensic disadvantage in this matter because the charged matters allegedly occurred from 2009 and despite their seriousness, were not raised until the end of 2017. If the allegations had been made earlier, it would have been much easier for him to have approached witnesses, to have a clearer account from the complainant and to have a clearer idea of his own position bearing in mind the allegations of the forms of sexual intercourse. As an example, arrangements could then be made for the complainant to be medically examined. Another forensic disadvantage was that the complainant was testing memories formed as a child. The effluxion of time has created some difficulties in defending the allegations because there is no allegation of something happening on a specific day, date or time. It was impossible to ascertain whether the accused might have had an alibi, that other people may have been present such as his friend Dave or that he might have been in different places at different times with those friends or with others. None of this can occur because the allegations have comparatively come so late in the day. I consider it is my duty as a trial judge sitting without a jury to take account of the difficulties that the accused may have had. This includes the inability to test the complainant’s evidence in much detail, his inability to more readily recall exculpatory circumstances, or items of evidence which might have rendered the alleged offence more difficult, more unlikely or impossible to have occurred. In turn, this might have better equipped his counsel to cross examine prosecution witnesses or to have advanced his own case by giving defence evidence.
I accept that due to this delay, the accused has suffered prejudice. I will assume that he may have been able to more accurately identify where he might have been on particular days, where he might have been working at particular times, his activities at those times and at other times and inquiries that he might have been able to make to confirm or identify more clearly information available to challenge the version of events put forward by each of the complainants.
Based on the evidence, I am satisfied that the accused has suffered such a level of prejudice to throw doubt on the versions of events put forward by the complainant. This is after taking into account this forensic disadvantage in scrutinising the evidence of the complainant as I am required to do under s 34CB(2) of the Evidence Act. I refer to the decision of the Court of Criminal Appeal in R v N, RC.[36] In particular, there is a real disadvantage in the accused being unable to have any evidence of an earlier full forensic examination of the complainant. I have said that this was a forensic failure at the time of complaint and it has severely prejudiced the accused. The same applies to DNA testing that could have been done on clothes, bedwear and furniture to assist that process. As well, a contemporaneous complaint would have allowed more detailed testing to be done and have allowed others in the house to verify their memories much earlier.
[36] (2012) 112 SASR 399 at [42].
I have directed myself that it is unsafe to convict the defendant on the uncorroborated evidence of any alleged victim of a sexual offence if I consider it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. Having formed the view that the defendant has suffered a significant forensic disadvantage, I have taken that disadvantage into account when scrutinising the evidence of the complainant having regard to the specific circumstances of this matter.
Directions in relation to complaint: s 34M
There was a period of time between the alleged sexual offence and the time at which the complainant made a report to someone else, including the police. The complaint to PR was at the very end of the alleged offending and was made only days before she spoke to her mother and to the police. There are a number of reasons why that evidence has been given in the trial. They are: first, to inform me as to how the allegation first came to light. This gives me a more complete picture of the account of the alleged victim; second, so that I may judge whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. Do the circumstances of the making of the complaint appear consistent with the occurrence of the events the subject of the complaint? Third, the evidence of the initial complaint is not before me to demonstrate the truth of what was reported; and fourth, 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.
I have regard to the complainant’s evidence given in this court for that purpose. It will be for me to determine the significance (if any) of the evidence of complaint in circumstances of this case. Here the complaint is made to a friend and was initially that she was being raped and then later identifies the offender as the accused. Soon afterwards she informs her mother. She said that the complaint was associated with the ejaculation of the accused inside of her vagina. However, her evidence was that events of penile vaginal intercourse had been occurring regularly over several years and nothing was said by her. The defence also emphasised that the complaint only came at a time of real dispute with the accused about her activities with her boyfriend, E. I am unable separately to make much of this latter point, but it is a matter that stands in the background of these issues.
I am to determine the significance (if any) of the evidence of complaint. I find that its effect is largely neutral and that any assistance I may have taken from it has been overcome by the forensic disadvantage and separately the forensic failures earlier discussed.
At the outset, Ms Barnes for the prosecution conceded that the fourth element of the offence is the significant matter, being whether or not I am satisfied that it has been proved beyond reasonable doubt that the accused maintained an unlawful sexual relationship with the complainant. That in turn requires acceptance of the truthfulness reliability and therefore credibility of the complainant. I was not able to see the whole of the evidence given by the complainant in court and although I was able to view the substantive amount of her evidence on disk, I did not have the advantage of seeing her in person when she gave evidence. Rather than repeat the outline of counsel’s submissions it is appropriate that I discuss the issues that are of greatest importance in reaching my decision.
There are features of the complainant’s evidence that have caused me considerable concern. I find that it is implausible that the accused sexually interfered with his daughter after her admission to hospital when she had had a post-operative bleed following a tonsillectomy. As I earlier discussed, she was admitted to hospital for observation, and I believe it is beyond peradventure that any credibility could be given to the evidence that in those circumstances the accused would have sexually interfered with his daughter. I consider this allegation to be so unlikely as to have no credibility at all.
I have earlier discussed the inconsistencies between the evidence given by the complainant and the versions given by the complainant to the police.
The complainant has made a number of statements out of court, which are inconsistent with the evidence that she gave in court. They are set out above in my discussion of the evidence of the complainant and I do not need to repeat them here. As important, there is evidence given by the complainant that was not in her police statements but which was revealed for the first time at trial. I gained the impression that this evidence was given by the complainant as an attempt to bolster the credibility of her evidence.
The prior inconsistent statements of any witness in a criminal trial are not put before me for the truth of the facts that they purport to assert. Rather, they are put before me to enable me to assess whether I can accept evidence given on oath. The basic principle is that a case must be decided upon the evidence given on oath and subject to cross-examination in court. What a witness has said out of court is not evidence in the case. Prior inconsistent statements go only to the reliability or credibility of evidence given from the witness box in court.
If a witness gives sworn evidence that is significantly different from statements made on earlier occasions, I must exercise caution before accepting the sworn evidence of the witness. I am to assess the significance of each inconsistency that I find proven. If it touches upon an important issue, the question is whether there is an acceptable explanation consistent with the witness’s sworn evidence being believable and reliable. The more significant the inconsistency, the greater the risk that the sworn evidence will be unreliable. If the witness denies or equivocates about statements out of court which she is proved to have made, that also may be a factor in assessing her truthfulness and deciding whether I accept her evidence generally. I am to take into account any independent evidence that I consider goes to support the sworn evidence of the witness.
I have highlighted earlier the complainant’s failure to make allegations that the accused performed cunnilingus upon her or touching her upon her breasts. I consider this to be a significant inconsistency. Also, I consider that the absence of any evidence from the complainant about a mattress being on the floor of her parents’ bedroom - most logically on the side of the bed occupied by her mother - in relation to the first allegation, gives me significant pause. The complainant’s mother said that there was bedding on the floor if the children came into the room to sleep. On one occasion, the complainant's mother was aware of her being in the bed or trying to get into the bed and told her to get out of the bed. The complainant’s mother gave evidence that at no time did she see anything that suggested that the accused was sexually abusing his daughter. She saw no physical or other manifestation of that, including any scratching, bruising or marking.
Although the complainant gave evidence that the accused forced her to perform fellatio upon him at the Reynella house, she had not mentioned that in her first two statements to police. I consider this to be a substantial omission from her statements which causes me to doubt the credibility and reliability of this evidence of the complainant. Similarly, as I have described, the complainant did not mention in her first two statements that her father was touching her on the clitoris. In cross-examination, she agreed that she would not have known what her clitoris was at that stage. As if to bolster her evidence, she then said that learnt what it was very shortly after that. She gave no evidence about how she might have learnt that or in what circumstances.
I have earlier dealt with the evidence of the complainant about her allegedly being touched on her breasts. Again, as if to bolster her evidence, she said that between the ages of six and seven she did not have large breasts but they were not tiny. I have found it almost impossible to give any credibility to this evidence because common sense indicates that she would have had no breast formation at that time. This evidence appeared to be an attempt to bolster her evidence by attempting to claim that she would have had breasts at that time. As I have said, common sense and experience dictates that this would not have been the case. There is no logical reason for her to have claimed that she did have breasts at the time unless it was an attempt to strengthen her evidence.
Similarly, in relation to the allegations about penile vaginal intercourse and its duration, in the statements given by her, the complainant said that it lasted between 20 and 30 seconds. In her evidence, she said it lasted between five and ten minutes. There is no reason why there should be a difference of time in relation to that except that it was a form of exaggeration by the complainant in an attempt to bolster her evidence and obtain credibility. In turn, this increases the possibility of discovery by others of this extraordinary activity in the home. On the complainant’s account, no such discovery occurred.
As earlier stated, there is no evidence that the complainant was medically examined at Yarrow Place and I consider this to be a significant forensic failure; the intercourse would have allegedly occurred less than a week before the complaint to the police. In the usual course, arrangements would have been made for her to be examined as soon as possible after her complaints to the police on 6 November 2017 following the alleged sexual intercourse on 1 November 2017. There is nothing to suggest that the usual procedure was followed and there was no explanation for this failure.
Further, the complaints in relation to what had occurred at her grandparent’s home differed markedly. The complainant agreed that her version of events in her first statement was substantially different from what she told the court in evidence. She gave evidence that the accused had performed cunnilingus upon her at her grandparent’s house.[37] It is not contested that the complainant never told the police that this had occurred in any of her four statements. Nor did she tell the police about anything that might have occurred at the hospital in any of her first three statements.
[37] T103 of Trial 2.
I am also considerably troubled by the allegation that the complainant was vigorously choked by the accused in order to force her to have sexual intercourse with him. She suggested that when she was older and tried to fight off the accused, he choked her in order to force her submission. He choked her around the neck and he also physically bruised her in these struggles. However, there is no evidence led from any witness, including any other person who occupied the house, of anyone seeing any marks upon the throat of the complainant or on any part of her body. I would not accept any suggestion as credible or reliable that as a child going through puberty and having gone through puberty, that her mother would not have been making observations of the complainant from time to time. The complainant’s mother gave evidence that she never saw any marks on her throat at all. Her brother gave similar evidence. Also, the complainant's mother said that she never saw any sign of any form of abuse. She never heard anything said by the accused to his daughter suggesting that there was anything untoward happening. In light of the regularity of the sexual abuse as described by the complainant, I find it incredible that no one would have seen or heard something, whether it be a mark on the body of the complainant, or a noise associated with the activity allegedly being committed by the accused upon the complainant. I cannot accept that if someone was “severe(ly) choked” that there would not be some sign upon her throat of bruising or of the choking.
The complainant gave evidence that she was careful to cover the marks of the choking she alleged was occurring. I do not accept that it would be possible for such evidence to be continually hidden by the complainant in her own home, especially when it featured on her neck and not merely in places commonly hidden by clothing. That is compounded by a ready acceptance of summertime clothing generally exposing the neck and shoulder areas.
Also in relation to the clothing, the complainant said that when he was being particularly vigorous, the accused ripped some of her clothing during their activities. If that was the case, I consider that as a matter of common sense that the complainant's mother would have noticed that, for example, there was a depletion of her underwear or there was damage to clothing. As a matter of common sense and experience, parents dealing with pubescent children notice these sorts of matters. That is especially the case when it is recalled that the complainant continually suffered problems due to heavy menstruation. If the allegations were true, then at least the complainant's mother would have noticed the need for further underwear. This is particularly the case when such conduct was not in the short-term, but according to the evidence of the complainant, occurred over a long period of time. Also of similar concern is the evidence of the complainant that the accused came into her bedroom and sexually abused her after everyone had gone to bed. The complainant's evidence was that these matters occurred regularly.
The DNA evidence
I earlier said that I would deal with the DNA evidence. I am satisfied that the evidence of the DNA expert, Ms Fietz, does not point one way or the other and is not conclusive about any sexual contact between the accused and the complainant. Her evidence was that the DNA could not be timed or even dated and after washing, DNA sources such as blood and semen may remain on items such as bedding. Therefore, it cannot be known when DNA was transferred from a person to an item. This picture is no less complicated when there are mixed DNA profiles from two or more contributors. In those circumstances, a DNA scientist could not conclude that the DNA was transferred at the same time because there may be layering of DNA of one person over the DNA of another which are deposited at different times.
There can also be secondary transfer of DNA from bedding to clothing, such that a person may not actually touch a particular item but that person’s DNA may be upon the item. This was a household where there were three children and two parents and so in every sense there was a real mixture of five people’s DNA. In relation to the blanket, upon the final act of sexual intercourse where ejaculation is alleged to have taken place, there was a high statistical weighting of the accused being a contributor but the complainant may or may not have been a contributor. That is not conclusive. In particular, it might be expected that if there was sexual intercourse and there were secretions upon the blanket, those secretions would include the bodily fluids of the complainant as well as semen and other bodily fluids from the accused. That was not the case. That evidence is not conclusive of there having been sexual intercourse upon that blanket between the accused and the complainant, particularly given the blanket was seized only some four days after the event is alleged to have taken place.
There was a fitted bedsheet with a mixed DNA profile of four contributors. The evidence was that the accused was only 63 times more likely to be a contributor than another person. That was perhaps consistent with secondary transfer, such as after a washing process and is a very low number. It is such a low number that it does not assist me in making my decision. This is because the complainant said that the digital penetration and penile sexual intercourse took place on more occasions than she could remember. Such a low statistical weighting is of no assistance to me forensically. I am satisfied that it is not corroborative of or supportive of the complainant's allegations.
I have earlier said that on the DNA swabs taken from the vibrator, there was a very high weighting for the DNA of the complainant’s mother and the complainant on the shaft of the instrument and also on the handle. There was no analysis supporting the proposition that the DNA of the accused was detectable on the handle of the vibrator. The DNA evidence supports the proposition that he was not a contributor. There are four contributors on the handle, but the accused is not one of the contributors. Therefore, two other people, apart from the complainant and her mother, have deposited DNA on the handle of the vibrator. Neither of those other two people are the accused. Potentially, two of those other people have touched that handle in conjunction with its use. Therefore, this evidence does not point towards the accused’s guilt. Whether it points the other way is not a matter that I need to decide. All that I need to decide is that the prosecution case is not assisted by the evidence. Also, no other DNA evidence of the accused was located, such as upon towels or other places at which the accused is alleged to have ejaculated.
I am therefore satisfied that the DNA evidence adds nothing to the weight of the evidence given.
My task is to decide whether the prosecution has proved the charge against the accused beyond reasonable doubt. I have now assessed the prosecution case and the defence case. I remind myself that the defendant carries no burden of proof. I also remind myself that if the version of events put forward by the defendant is reasonably possibly true, then I could not convict the accused.
I find myself in a position where I am unable to be satisfied that I can discern where the truth lies. There are very strong indications pointing in two different directions. The complainant gave her evidence reasonably well, however at the same time, her evidence contained significant inconsistencies with her previous statements that in my view, damaged her credibility. Also, I am of the view that on many occasions she was striving to embellish her evidence and version of events apparently to gain credibility. In light of the version of events that she gave, it would otherwise be inexplicable why that should be the case. Similarly, I find a number of pieces of evidence of the complainant quite implausible. These include the evidence of the alleged events at this hospital as well as the alleged events at the grandparents' home. I am unable to accept that the accused would have sexually abused his daughter on a weekend where his mother and best friend are present. Also, in relation to the alleged events of the grandparents' home, the complainant had willingly gone with her father at the time of a short separation between the accused and his wife following some form a matrimonial dispute. She could have stayed with her mother but chose not to do so. She then gave varying versions of events said to have taken place, including an allegation that the accused forced her to have penile vaginal intercourse with him on the grandparents' bed, ranging through to oral sex and the accused digitally penetrating her and grabbing her breasts. I do not think it is possible that a person in the position of the complainant would confuse penile vaginal intercourse with oral sex or digital penetration in those circumstance. Thus, although some of the evidence of the complainant had the ring of truth about it, there were so many inconsistencies in her evidence and so many parts of her evidence that I thought were implausible and strained credulity, that I am left in the position in light of the accused’s denials where I am simply unable to determine where the truth lies. In those circumstances, I am unable to find that the prosecution has proved its case against the accused beyond reasonable doubt.
Verdict
I find the accused not guilty.
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