R v B (No 2) No. DCCRM-02-295

R v BFB
[2003] SADC 101
Judge Simpson
Criminal

The accused, BFB, is charged with 3 counts of unlawful sexual intercourse with a person under the age of 12 years. Section 49(1) of the Criminal Law Consolidation Act 1935 provides:
“A person who has sexual intercourse with any person under the age of twelve years shall be guilty of an offence and liable to be imprisoned for life.”
Pursuant to section 5(1) of the Act, “sexual intercourse” includes any activity consisting of or involving penetration of the labia majora of a person by any part of the body of another person.
The particulars of the three charges are as follows:
1.Between the 22^nd April 1996 and the 31^st December 1997 at Gawler, the accused had sexual intercourse with SLS, a person under the age of 12 years, by inserting his finger into her vagina.
2.On the 11^th day of January 1997 at Gawler, the accused had sexual intercourse with SLS, a person under the age of 12 years, by inserting his finger into her vagina.
3.On the 12^th January 1997 at Gawler the accused had sexual intercourse with SLS, a person under the age of 12 years by inserting his finger into her vagina.
The accused pleaded not guilty to all counts. He elected for trial by judge alone pursuant to section 7(1) of the Juries Act 1927.
The prosecution called SLS, who is now 17 years old, her mother, and Dr Leslie Woodard-Knight to give evidence. Ms S gave her evidence outside the courtroom by means of closed circuit television. She was accompanied by a person providing her with emotional support while she gave her evidence. I draw no inference adverse to the accused, nor do I place any greater weight on her evidence, because Ms S gave her evidence in that way.
Ms S was born on the 22^nd April 1986. She lives with her mother and her father and her two sisters, R, about three years older than she is and A, about three years younger.
Ms S has known the accused since she was born. He was a friend of the family. Ms S’s mother and the accused’s wife in particular were friends. The accused was her godfather and his wife was her godmother. They have a daughter, T, who is about five years younger than Ms S. Ms S used to visit the accused’s house once or twice a week. She liked playing with T. From time to time Ms S would stay overnight at the accused’s house. She said that she was always happy to go there.
Ms S gave evidence that the accused had behaved in a sexually inappropriate way towards her. She described three occasions on which he inserted his finger into her vagina. She was quite clear in her evidence that there were only three occasions when that happened. She said that the accused did it three times in all over a period of 3 years.
First Count
Ms S said the first time was when she was in Year 6 at the Montessori Special School, a school for children with minor learning difficulties. She said that she was ten or eleven years old at the time. The particulars of the first count allege that the offence occurred some time between 22 April 1996, when Ms S turned 10, and 31 December 1997. On the evidence, the incident on which the first count is based occurred within about six months of the incidents making up counts two and three.
Ms S said that the first occasion on which the accused inserted his finger into her vagina occurred after she had played netball one day. She said that she played netball during the summer time. After netball on this occasion, she said her mother drove her, her younger sister, A, the accused’s wife and her daughter, T, back to the accused’s house. In cross-examination, Ms S said that her older sister, R was also at the house. The three girls, Ms S, her sister, A and the accused’s daughter, T, played in the backyard. R was inside.
Two plans of the accused’s house and yard were tendered. In the backyard, there was a trampoline, a swing set and a cubby house, all situated relatively close to, and overlooked by, the rumpus room of the house. The family and meals area was between the kitchen and the rumpus room. There was no door between the kitchen and the family and meals area, nor between the family area and the rumpus room. To get to the rumpus room, it was necessary to walk through the family and meals area. The door to the back yard was from the rumpus room.
The cubby house was built of permapine on stilts, about a foot off the ground. There were steps up to the verandah of the cubby house and windows on three sides. Two of the windows, on either side of the door, looked out towards the trampoline and the swing set. Another window faced in the direction of the house. The cubby house was built for children. It had a peaked roof. Although it was possible for an adult to go into the cubby house, the ceiling was generally too low for an adult to stand without crouching over.
Ms S said that A and T were playing on the trampoline. She was playing in the cubby house. There was a tea set in the cubby house. She was pretending to make tea. She said that the accused came into the cubby house. He came up behind her, put his arm around her and then up the front of her netball skirt. He put his hand inside her underwear and his finger in her vagina. She said that she asked him to stop. He did not do so. She said that he only stopped when A and T came back. She did not tell anyone about what happened because she was scared. She said that she did not know what the accused had done to her.
In cross-examination, Ms S accepted that in giving a statement to police on 16 January 2002 about the matter, she had said that the girls, A and T, were playing on the swings, rather than on the trampoline. She agreed that the accused would have to crouch over if he was in the cubby house. Ms S said that she called out to her sister and T while the accused was in the cubby house with his finger inside her vagina. She said that T and A came in to the cubby house and the accused then stopped. She said that it hurt a lot. She felt sore for a day or two afterwards.
Second Count
Ms S remembered the second occasion on which the accused inserted his finger into her vagina because it was the day she hurt her ankle at Little Athletics. Ms S said that it would have been in winter. She knew that it was winter because she was not doing netball. She said that the time interval between the first incident, which occurred after netball, and the incidents, which occurred after Little Athletics, was about half a year, between summer to winter.
Her mother, Mrs S, said that she remembered her daughter injuring her ankle in a running race during Little Athletics, when her daughter just fell over. She was able to place that incident by reference to the certificates given to her daughter for participating in the Australian Little Athletics Union events. The certificates were tendered. They show that on the 11^th January 1997, Ms S was unable to take part in two running events because of injury.
A printout of weather bureau statistics relating to air temperature on the 11^th January 1997, tendered by the accused, shows that the temperature on the afternoon of the 11^th January varied from 27.3 degrees at 12.30 pm to 24.5 degrees at 11 pm. The temperature between 4 pm and 7 pm varied from 30.5 degrees to 27.8 degrees centigrade.
On this particular occasion, Ms S said she went to Little Athletics with her mother and her younger sister, A. She hurt her ankle doing the high jump. She did not clear the bar and she hit her ankle on the bar that holds the pole up. It was the only time she had hurt her ankle at Little Athletics.
Ms S said that she was unable to walk and a man from Little Athletics had to carry her. She was put on a chair and ice was put on her ankle. She said that arrangements had been made for her to sleep the night at the accused’s house. She was taken in a wheel chair out to the accused’s car. He drove her, his wife and their daughter, T, home to their house. Ms S was put on the couch in the family room. She had her legs up on the couch. Some frozen peas were put on her injured ankle. The accused’s wife put a blanket over her, because she felt cold.
T was in the room with her, sitting in her own small chair. They were watching a movie about a whale and a boy called “Free Willy” on television. The accused’s wife was in the kitchen preparing a meal.
Ms S said that the accused sat next to her on the couch. She said he rubbed her ankle. T was in her chair between the couch and the television, facing away from the couch towards the television, watching the movie. Ms S said that while the accused was rubbing her right ankle with one hand, he put his other hand up her leg, underneath the blanket and up one of the legs of her bike shorts. His hand went under her underpants and one finger went into her vagina. She knew it was in her vagina because it hurt. It hurt as much as the first time that he had done it. She asked him quietly to stop. She said that the accused did stop because his wife came out of the kitchen, into the family and meals area.
In cross-examination, Ms S said that she was sure that her evidence, that the accused’s hand went under her bike shorts and under her underwear and then he inserted one finger into her vagina, was correct. She was asked if she had ever said that the accused had put his hand down the front of her bike shorts and underpants. She said that she had not said that. When she was asked if she would like to refresh her memory from her statement, she said that she did not want to. She did not recall saying that and she knew that what she was saying in evidence was true.
It is an agreed fact that in her statement to the police, Ms S said:
“As B got to the top of my leg, I tried to roll on to my side (I had been laying on my back) to try and stop B from doing what he was doing to me. This didn’t stop B, however, and then he put his hand down the front of my bike shorts and underpants, and then put one of his fingers into my vagina.”
Ms S said that again, she did not tell anyone what the accused had done because she was scared. She stayed overnight at the B house that night and, she said, she was happy to do so.
Third Count
Ms S said that she slept in T’s bed overnight. She and T got up about 6 o’clock the next morning. They watched some cartoons, before going out to the cubby house to play dress-ups. Ms S put on a floral skirt. The accused came out to the cubby house. He asked T to go outside and play on the trampoline, which she did. Ms S said the accused put his arm around her waist and then down her skirt. She was wearing her bike shorts underneath the skirt. His hand went under her bike shorts and her underpants and he inserted his finger into her vagina. She knew it was in her vagina because it hurt. She asked him to stop, but he did not do so. She said in cross-examination that the accused put his hand from the back down her skirt, down the front of her bike shorts and under her underwear and inserted his finger into her vagina. She said that his finger was not in her vagina very long. She said it hurt, but not as much as the first two times.
The Uncharged Incident
Ms S said there was one occasion when the accused touched her on the outside of her vagina. It is not the subject of any charge. She said in evidence that it was the first time that the accused did anything. It was before any incident in which he put his finger in her vagina. It happened on an occasion she can remember because her older sister, R, was playing in a netball carnival that day and a photograph was taken of her in that uniform. She thought the carnival was a SAPSASA carnival. It was the first time R had played in the carnival.
The photograph of R was tendered. It is a photograph of her in her netball uniform. The photograph is dated the 23^rd July 1995. Mrs S confirmed that it was the only occasion on which R played representative netball for Gawler. The date on the photograph places the incident at a time well before the first time the accused is said to have inserted his finger into her vagina, the first charge.
Ms S said in evidence that on the day of the carnival, she was at the accused’s house for the day. She went to the video store with the accused and his daughter to return a video. When they came back, she and T played in the dolls’ house. The dolls’ house was in the rumpus room. She said in her evidence that the accused rubbed her vagina on the outside of her clothes with his hand, while T was getting a drink. She asked him twice to stop. He stopped after the second request. After that, Ms S said that she and T went and watched a video.
In cross-examination, she said that the accused came up behind her in the rumpus room. She said that he was kneeling down, because she was sitting cross-legged on the floor. He got his arm around her and just rubbed her vagina on the top of her clothes. She said that he stopped when T walked in. She said that they did not both stand up when T came in. He just stopped. She said that she had not described that incident to the police as occurring while they were both standing up. After looking at her statement to police, she agreed that she had described the incident in the rumpus room as follows:
“B was standing in front of me, facing me as he did this and didn’t say anything when he did this to me. I then moved away from B by moving back a couple of steps and B’s hand came off my vaginal area. B however moved his hand out and put his hand back on my vaginal area again for a short time, I don’t know how long, and rubbed my vaginal area again with his fingers. I then walked away as I didn’t want him doing this to me. I walked into the spare room where T had been the whole time B had rubbed my vaginal area. T was getting things out of her doll’s bed so she could bring them into the rumpus room. Nothing more happened that day.”
Ms S agreed that, in her statement to the police, after referring to the incident which occurred the day after she hurt her ankle, when she was playing dress-ups in the cubby house, the third count, she had said:
“Nothing else happened that day. The next time I can remember B abusing me was when my sister R went to play netball somewhere. R was playing for Gawler and had a yellow and maroon uniform on. We have picture of R at home wearing this uniform around this time. I think this picture has a date on the back of it. I’m not sure where R went to play but mum and K took her and I stayed with B and T. I don’t know what day I went to stay with them and I don’t know the exact date. I think however this was in 1996 as I think I would have been able to remember where R went to play if it was in 1997. I would have been 10 years old at the time.”
The implication might be that at the time of her statement, Ms S recalled the incident during which the accused rubbed her vagina on the outside of her clothes, the uncharged incident, as occurring after the last occasion in which the accused inserted his finger into her vagina, the third count on the information, and not before the first incident in count one.
On any view of the evidence, the history given of the accused’s behaviour towards Ms S does not suggest abuse over a period of three years.
The Complaint
Ms S said that the first person she told about the accused’s behaviour towards her, was her general practitioner, Dr Thorne, on the 31^st August 2001. She had been seeing him in 2000 and 2001 about personal problems, including bullying at school and family problems. She had also seen a psychologist at the Gawler Hospital, although she did not feel that she could trust her sufficiently to tell her about her problems.
Ms S said that she had found Dr Thorne sympathetic. He had asked her about her problems and anything that was troubling her.
She had refused to go to Gawler High School for a time in 2001 because of bullying by other children. She had on a number of occasions tried to harm herself. She had slashed her wrists on about four occasions. At the end of Year 8, in 2000, Dr Thorne had prescribed anti-depressant medication for her. She had told Dr Thorne that she dreamt about killing herself and that she had nightmares. She had visions of her killing herself and bad things happening to her. She also spoke to a psychiatrist, Dr Wright, about those things.
She had left home about three or four weeks before she had told Dr Thorne about the accused on 31 August 2001. The stress at home, arguing with her parents, was too much. A week before she told Dr Thorne about the accused, there had been a family blow-up, resulting in her not talking to her father. The night before she told Dr Thorne about the accused, she had an argument with her mother.
Ms S was asked whether she had at any time been asked to leave her home by her father. She said that she had not. She was asked if she had ever told Dr Thorne that she had been told to leave the house by her father. She said:
“A. Yes, but even if he does say it, I know he doesn’t mean it, so I don’t do it.
Q.            You can’t recall whether you said that to Dr Thorne or not.
A.   No.
Q.If it wasn’t serious you wouldn’t say it to Dr Thorne as a problem, would you, if your father didn’t really mean it.
A.     I can feel that’s what he wants to say but it doesn’t mean he said it.”
Ms S was also asked about speaking to her mother about what she said the accused had been doing:
“Q.After you told Dr Thorne that B was doing these things, did you speak to your mother about it.
A.Yes.
Q.Did she say to you ‘Why didn’t you tell me?’
A.Yes.
Q.And did you say ‘I thought I did’.
A.Yes.
Q.Do you really mean that, that after you spoke to Dr Thorne and told him that, when you told your mother ‘I thought I did tell you about it’, that you honestly believed that you had told your mother about it –
A.Yes, I thought –
Q.-before you told Dr Thorne.
A.Yes, I thought I had when I – when – I thought I had.
Q.So when you told Dr Thorne you thought it wasn’t such a big news or big deal because you thought you’d already told your mother.
A.It was a big deal.
Q.But you thought you’d already told your mother about it sometime previously, is that right.
A.Yes.
Q.Tell me, when you were thinking that, when you spoke to your mother after seeing Dr Thorne, were you remembering or thinking what her reaction was to being told about it.
A.No, because she – she didn’t realise I actually told her.”
There is no evidence about the circumstances giving rise to Ms S’s belief that she had told her mother before telling Dr Thorne.
The Medical Evidence
Dr Woodard-Knight is a staff specialist at the Women’s and Children’s Hospital in the Paediatric Emergency and Child Protection Unit. She examined Ms S on the 18^th September 2001. The findings on examination were of mature, that is, post-pubertal, normal genitalia. She said that had there been any trauma to the hymen as a result of digital penetration by the accused, signs of that trauma would not have been detectable at the time of her examination in September 2001. The changes which occur during puberty would have obscured pre-pubertal signs of trauma. Her findings did not either confirm or refute allegations of digital penetration of the vagina.
Dr Woodard-Knight gave evidence of general application. She said that a male finger inserted to its full degree was likely to reach the hymen of a pre-pubertal child. Hymen damage was usually accompanied by pain and bright red bleeding, but would not necessarily occur in every case of penetration.
She agreed that:
1.The hymen is at its greatest risk of injury between infancy and adolescence.
2.It is commonly, but not necessarily, damaged by the insertion of an object into the vagina.
3.The type of injury is generally a radial tearing which is painful and usually produces bleeding.
4.That although damage to the hymen heals rapidly, it leaves scar tissue.
5.The healing process can cause inflammation and a disruption of the normal vascular pattern.
6.Findings on examination following suspected trauma to the hymen, may include scar tissue, which may suggest a healed tear.
7.Scar tissue is likely to remain until the onset of puberty. At puberty, scars may become invisible, or less obvious, as a result of post-pubertal changes.

The medical evidence does not support, nor exclude, injury in the region of the vagina, including an injury to the hymen, prior to the onset of puberty. Had a complaint been made at the time, or at least before the post-pubertal changes to the hymenal tissues, there would have been a chance of medical evidence of, or excluding, the fact of injury to the hymen.
The Accused’s Evidence
The accused gave evidence. He denied any wrongdoing. I take into account the possible compromise to defending the charges because of the lapse of time before any complaint was made. In the end, I have not found it necessary to choose between the evidence of Ms S and the evidence of the accused.
The Nature of the Evidence
The evidence of Ms S was entirely uncorroborated. Pursuant to section 12A and section 34I(5) of the Evidence Act 1929, as a matter of law, corroboration is not required. In the circumstances of some significant inconsistencies in her evidence, the context in which complaint was first made and a delay of over four and a half years in making a complaint, however, Ms S’s evidence requires careful scrutiny. Recollection of childhood events may be susceptible to error. As a matter of common human experience, the effect of imagination, emotion, prejudice and suggestion, as a result of other experiences, or reading or talking about events of a similar nature, may affect recollection. (Longman v The Queen (1989) 168 CLR 79 at 87-91, 95-96, 102, 106-107; R v Pahuja (1987) 49 SASR 191 at 195-199)
Ms S said that no complaint was made about the accused’s behaviour at the time of the incidents because she was scared. There is no evidence to explain why she should be scared, apart from the nature of the incidents themselves. There is no evidence that the incidents she described in any way affected Ms S’s willingness to go to the accused’s house.
There is no evidence about the relationship between Ms S and her family and the accused and his family in the years between the last incident described by Ms S and the complaint she said she thought she made to her mother, or the complaint to Dr Thorne. There is no evidence of any sign of discomfort, or of damage to the hymen, such as bright bleeding, at the time of the events comprising the charges, even though Ms S reported feeling significant pain.
The actions attributed to the accused do not appear to have been designed to escape detection. That does not mean that the incidents described by Ms S are inherently unlikely or necessarily improbable, because of the high risk of detection. (R v Corrigan (1998) 74 SASR 454 at 468)
However, each of the incidents described by Ms S occurred while there were other people close by and in circumstances where at any moment it could be obvious that the accused was behaving in a completely inappropriate manner towards her.
Her evidence was that on each occasion the accused’s wife was in the house. On the first occasion, the uncharged act, the accused’s daughter, T, was either getting a drink or getting her doll’s bed to bring into the room where inappropriate touching was occurring.
At the time of the incident making up count one, her sister R and their mother were also in the house. Her other sister, A, and T, were playing immediately outside the cubby house. In relation to the incident comprising count two, the accused’s wife was in the next room, the kitchen, with no door between, walking into the family area without warning. Their daughter, T, was in the same room, a short distance away. On both occasions, Ms S said, the insertion of the accused’s finger into her vagina hurt a lot. There is no evidence that she showed any sign of discomfort or had to make any attempt to avoid doing so.
On the third occasion she described, T was playing with her in the cubby house and was asked to go outside by the accused. She went out to play on the trampoline immediately outside the cubby house.
The Delay in Making A Complaint
The complaint apparently made to Dr Thorne on 31 August 2001 was made over four and a half years after the last occasion described by Ms S on which the accused is said to have inserted his finger into her vagina. I bear firmly in mind that the delay in making the complaint does not necessarily mean the allegations are false. There may have been a valid reason for it. (Section 34I(6a) Evidence Act 1929)
I bear in mind that the reasons for delay on the part of a young girl in making a complaint of sexually inappropriate behaviour on the part of a close family friend might include shame, embarrassment, ignorance about the nature of what occurred, fear about being disbelieved or the effect of complaint on the relationship between the families. There may also be a reluctance on the part of a young girl to refer to those reasons in evidence. (Jones v The Queen (1997) 191 CLR 439 at 453-454, 463; Longman v The Queen (1989) 168 CLR 79 at 93, 94, 99, 103)
There is little evidence as to why no complaint was made until she told Dr Thorne in August 2001. There were, it seems, opportunities for Ms S to tell her mother, her psychiatrist, or her psychologist, as well as Dr Thorne, whom she had been seeing for some time. Ms S said she had insufficient trust in the psychologist she saw. She said she thought she had told her mother.
The context in which the complaint was made to Dr Thorne was one of emotional conflict in the family and significant psychiatric problems, for which she had been prescribed medication. Ms S’s evidence regarding the conflict in the family and her belief that she had made a complaint to her mother, although her mother did not realise she had done so, gives me a concern, especially in the absence of any other supporting evidence, regarding the reliability of her evidence generally.
The prosecution case is that the first occasion on which the accused is said to have behaved in a sexually inappropriate way towards Ms S occurred on 23 July 1995. The report of that incident to police, including its relationship in time to the charged incidents, is inconsistent with the account Ms S gave in her evidence.
On its own, if proved, it may be an indication of previous inappropriate sexual feelings towards her on the accused’s behalf, but it is difficult to draw an inference that it represents evidence of a sexual relationship between them, or provides an explanation for her submitting to the behaviour charged, or for Ms S’s unwillingness to make a complaint about the behaviour making up the charged acts, because she was scared. In my opinion, it was of no assistance in placing the charged acts in context, nor in explaining Ms S’s submission to criminal conduct, nor her failure to complain about it. (R v Neiterink (1999) 76 SASR 56)
While it is natural that Ms S cannot remember details of incidents which occurred several years ago, when she was ten or eleven years old, and the exact relationship in time between them, the inconsistencies between her statement to police and her evidence, and the lack of supporting evidence, referred to above, have also raised a doubt about placing reliance on her evidence.
The standard of proof required on each charge is proof beyond reasonable doubt. The onus of proof rests on the prosecution.
No suggestion has been made that Ms S was not telling the truth as she saw it. Notwithstanding that Ms S herself may have had a real belief in the truth of her evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. I am not satisfied beyond reasonable doubt of its truth or accuracy. It provides an inadequate foundation for a finding of the guilt of the accused on any of the charges in the information. I find the accused not guilty of each charge.

[2003] SADC 101

23 July 2003