R v BALL - [2009] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BALL
Criminal Trial by Judge Alone
[2009] SADC 40
Reasons for the Verdicts of His Honour Judge Chivell
1 April 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Three counts of unlawful sexual intercourse - Trial by judge alone - Complainant aged five or six at time of alleged offences - Uncharged sexual acts alleged - No corroboration - Delay of 12-13 years until matters reported to police - Longman warning - Verdicts - Counts 1, 2 and 3 - Not Guilty
Criminal Law Consolidation Act, 1935 s49(1); Evidence Act, 1929 s34I, referred to.
R v Seigneur [2009] SASC 59; R v R,R & R,LJ [2008] SASC 35; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22; Longman v The Queen (1989) 168 CLR 79; R v Corrigan (1998) 74 SASR 454; R v Smith [1999] SASC 109; Director of Public Prosecutions v Kilbourne [1973] AC 729; Doney v The Queen (1990) 171 CLR 207; R v Matthews & Burgess [2005] SASC 289; RPS v R [2000] HCA 3; Doggett v The Queen (2001) 208 CLR 343; R v BFB (2003) 87 SASR 278; R v Wilson (No 2) [2007] SASC 129, applied.

R v BALL
[2009] SADC 40
INTRODUCTION

The accused is charged on Information dated 2 June 2008 with three counts of unlawful sexual intercourse with a person under 12, an offence against s49(1) of the Criminal Law Consolidation Act, 1935. It is alleged that, at the time of the offences, the complainant was aged five or six years, and that she was the daughter of the de facto partner of the accused.
The accused elected to be tried by a judge sitting without a jury pursuant to s7 of the Juries Act, 1927.
The Information was filed in this court prior to 23 November 2008, and hence the provisions of the Statutes Amendment (Evidence and Procedure) Act 2008 do not apply (see R v Seigneur [2009] SASC 59).
I will refer to the alleged victim of these offences, the complainant, as “C”. C gave evidence while accompanied by a Victim Support Officer, an employee of the Director of Public Prosecutions, and while the court room was closed to the general public. These measures were taken pursuant to s13 of the Evidence Act. C’s mother, to whom I will refer as M, also gave evidence. A screen was placed between the witness box and the dock while she gave evidence, pursuant to the same section.
I record that I have not drawn any inference adverse to the accused, and have not allowed these arrangements to influence the weight to be given to the evidence given by either of these witnesses as a result of these measures being adopted.
GENERAL DIRECTIONS
The Court of Criminal Appeal has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial (R v R, R & R, LJ [2008] SASC 35).
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is “not guilty”; and
·each count must be considered separately. In the event that I were to find the accused guilty of a count, the evidence and that finding may not be used in proof of the other counts (R v HS [2004] SASC 300). The evidence in other counts may be used for the same limited purpose as the evidence of so‑called “uncharged acts”. I will discuss this issue as a separate topic in due course. Conversely, if I am not satisfied about the credibility and reliability of C in relation to one count, and the other counts rely on the uncorroborated evidence of C, then that doubt should be taken into account in determining whether I am prepared to accept her evidence on other counts (R v Liddy (2002) 81 SASR 22 at [181-193]).
THE PROSECUTION CASE
C is now 20 years old. She gave evidence that her mother and father separated when she was four or five. M confirmed that this occurred in 1992. C was the youngest of their children. M met the accused in 1994, and he lived with her and the children in a house at Osborne until February/March 2005. He was the owner/driver of a blue Scania semi‑trailer depicted in the photographs Exhibit P1 and Exhibit P8.
Count 1
C said that the first incident of inappropriate touching occurred in the accused’s truck. She said she was in the “back cabin”, in other words, the sleeping space behind the seats. She said:
He asked me if I wanted to know where my spine ends and I replied ‘Yes’ ... And then he slid his finger down me and his fingers entered my vagina ... (he then) moved it around ... (and then) took it back out.
(T12)
C said that she “liked it”, and that she asked him to do the same thing to her on other occasions (ibid).
Count 2
C said that on another occasion she was in the bath with the accused. She said:
He was rubbing my body with water, soap and his hands were, you know, just rubbing my body and then his fingers entered my vagina.
(T13)
C said her mother came into the bathroom and took her out of the bath. C conceded in cross-examination that she did not have a memory of being removed by her mother when she spoke to the police in 2007, but had regained it since then (T34-5).
M said:
A.Well I recall that yes at one time he said he was going to run a bath for C and that so I let him run the bath and I didn’t go in there until about 10 minutes after and when I went in there I just got a shock because he was sitting in the bath naked and she was down the other end naked.
Q.Did you say or do anything when you saw that.
A.I just got a shock and I just automatically stayed in there with her and just washed her and got her out and stayed in there with her, I just - didn’t say anything to him at - straightaway - I was just - shocked - because I didn’t expect to see that because it is not the normal thing.
(T71.20-32)
UNCHARGED ACTS
C then described an incident in the bathroom, near the hand basin. This was not the subject of any charge. C said:
A.Greg was at the handbasin and I’m not too sure how I walked up there but I was with him and he was showing me how to wash foreskin, his penis.
(T13.33-35)
...
A.He said, I remember him saying ‘See’ as in, you know ‘See, this is how you do it’ and I put my hand on it and touched it.
Q.What did you feel when you put your hands on it and touched it.
A.Hard.
(T14.13-18)
C described another incident in which she woke up during the night and found the accused undoing her nappy. She was bed‑wetting at that time and sometimes she wore nappies to bed. She said:
He undid my nappy, didn’t fully take it off just sort of pulled it down, put his fingers in my vagina, and wiggled it around for a short time, removed his finger, did my nappy back up and left the room.
(T14.38 - T15.3)
The final “uncharged act” occurred, on C’s evidence, in the bedroom. She said:
One morning I woke up as you do run into your mum and dad’s room, jumped into bed with them, mum left the room to do, get coffee or do whatever and I had just, you know, I was naked, I had knickers or nappy on I can’t remember what I had on but I know I wasn’t fully clothed and Greg put his fingers in my vagina, wiggled it around and I remember him quickly pulling the sheet over or something and then mum entered the room and that was, that was it.
(T15.12-20)
None of this evidence was objected to. None of these “uncharged acts” were the subject of specific cross‑examination by Mr Algie, although he did put to C that the accused denies all allegations of sexual impropriety (T40). It was relevant and admissible because it tends to show that the accused had a sexual interest in C, that he would take opportunities to engage in sexual behaviour in the house, and that he was confident she would not complain.
I remind myself that the evidence is only admissible for those purposes, and that if I find those acts proved, I may not use the evidence to show a propensity to commit sexual acts with children.
Count 3
C alleged that this act also occurred in the bedroom. She said:
One night mum was out of the house, she was across the road and I was in mum and Greg’s bed and we were - I was on top of Greg and we were what I believe now having dry sex and I remember his penis going inside me and it hurt and I sort of didn’t like it, he knew that and he softly removed me from him and I went back into my room and that was it.
(T15.24-30)
C said that she was on top, she was “grinding” up and down, but that his penis was only in her vagina for five seconds or so. She said that she “screamed”, and then he “removed me from him” (T16).
CORROBORATION
Section 34I(5) of the Evidence Act 1929, prior to the 2008 amendments, provided:
In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
However, there is, at common law, a duty to warn the jury in the specific circumstances of the case about convicting the accused on the uncorroborated evidence of the victim in a sexual case in order to avoid “a perceptible risk of a miscarriage of justice” (Longman v The Queen (1989) 168 CLR 79 at 87, R v Corrigan (1998) 74 SASR 454, R v Smith [1999] SASC 109 at [38]).
Corroboration evidence is evidence that “confirms”, “supports” or “strengthens” other evidence in the sense that it “renders that other evidence more probable” (Director of Public Prosecutions v Kilbourne [1973] AC 729 at p758).
It is not necessary that corroboration evidence, standing alone, should establish any proposition beyond reasonable doubt (Doney v The Queen (1990) 171 CLR 207 at 211, R v Matthews & Burgess [2005] SASC 289 at [158]).
I agree with the submission of Mr Algie that C’s evidence is unsupported by corroboration. Her mother’s evidence, even if it was consistent with C’s evidence in material respects, was so vague, illogical, internally contradictory and at odds with the objective facts that it lent no support to C’s evidence at all. For example, M refused to acknowledge the contradiction between her statement to the police in 2007 that the accused offered to bath C and that she let him, with her evidence before me that she would never allow a man to bath her daughter (T86-9). To do so may have forced her to admit that what she told the police was untrue, and was a conscious exaggeration in order to make it worse for the accused.
Indeed, there is considerable force in Mr Algie’s submission that M’s behaviour after the bath incident (Count 2), when she did not even ask C what had happened, is inconsistent with C’s allegations. The same applies to the bedroom incident (the last of the “uncharged acts”). M asserted that she heard C say “No” or “Don’t”, and went into the room to investigate, but asked neither C nor the accused what had happened, and saw no signs that C was distressed (T76). In both cases, this seems extraordinary if, as C asserts, the accused had just put his finger in her vagina only moments before M entered the room.
Either M is speaking of entirely different incidents (in which case her evidence is of no corroborative value), or her evidence is not consistent with C’s evidence.
There is no other evidence which corroborates C’s evidence. The accused was interviewed by the police on 18 August 2007 and denied the allegations. The video tape of the interview is Exhibit P6. Of course, the denials are not on oath, but on the face of it, the accused had no notice that the police were coming, declined the opportunity to take legal advice, and answered the officers’ questions in an apparently open and co‑operative manner. He denied all allegations of sexual impropriety. He admitted there was one occasion when C was in the bath with him, but said she hopped in uninvited, and he immediately told her to get out. He said M overheard him and came in and got her out (p18 of the transcript of Exhibit P6).
At pp8 and 14 of the transcript, the accused did acknowledge that he used the bunk in the truck cabin to sleep in, which is somewhat at odds with Mr Algie’s cross-examination of C that there was an Engel refrigerator there (T26).
Further, the accused said (p19) that C was “between my legs” in the bath which is consistent with C’s version, and inconsistent with M’s version that they were at opposite ends of the bath.
However, neither of those matters constitutes corroboration in the sense that it makes C’s evidence more probable.
The accused exercised his right to silence, and did not give evidence. I draw no adverse inference from the fact that he exercised his rights in this way (RPS v R [2000] HCA 3).
I therefore find that C’s evidence is uncorroborated.
REPORT TO POLICE
C did not report these allegations to the police until April 2007, when she was about 19 years old. She first told her mother when she was 16.
M said that her relationship with the accused finished around February‑March 1995. C would have been almost seven years old by then. She said she was sad when he left the house (T20). So much so that she would often stand by the side of the road and wait until his truck drove past on his way to work. She said one day he stopped and got out of the truck and hugged her and then left. She could not recall what was said between them (T21).
C said she first mentioned the issue to her mother when she was 16. She explained:
I learnt what paedophiles were and what happened and sort of thought about it in my mind and had all these memories of these things happening and realised it was wrong, that I was a child, that I didn’t know right from wrong.
(T40.18-22)
When asked why she did not realise it earlier, she added:
I thought it was a fun thing to do. I thought it was normal - what does a six-year-old know?
(T41.1-3)
C acknowledged that she was troubled as a child by the fact that she was unable to re‑establish a close relationship with her natural father (T41).
C developed a blood disorder called aplastic anaemia when she was eight years old, and was unwell for about two and a half years. The treatment was long and painful, and her education was no doubt severely disrupted as a result.
C was also displaying some behavioural problems at about that age, and her mother had taken her to the Child and Adolescent Mental Health Service (“CAMHS”) about that.
During the course of treatment, C was referred to a psychiatrist in relation to anxiety and other symptoms she was exhibiting.
In 2002, her mother took C back to CAMHS because she had become bulimic, and she began truanting from school. She threatened suicide in 2004 and was self‑harming. This was associated with relationship problems with her boyfriend who was about five years older.
When C raised the issue of sexual abuse with her mother, it appears that she gave little support. M said she “didn’t want her to go into it”. Later, she said “No, I said it’s up to her, whatever she wants to do” (T98).
M denied that she suggested to C that she could have been sexually abused as a child before C reported it to her (T100). However, in an entry made in the CAMHS notes, dated 10 February 2003, (Exhibit D7), a staff member has recorded:
Mo. concerned that bulimia may mean C has been sexually abused/may lead to burst appendix.
Someone suggested contacting C’s fr. Suggested C discuss this with m first, giving her time to think abt it. Suggested mo take C for GP check every couple of weeks, as C has lost a lot of weight in the last few months. Encouraged mo to attend.
M was unable to remember whether she took up the suggestion of the CAMHS worker to discuss her concerns with C, although she conceded that she “might have” (T103).
As to whether the delay should cause me to doubt C’s credibility, it is clear that she has had a troubled and unhappy childhood and adolescence. I have seen and heard her mother give evidence, and can fully understand why C might have had little confidence that telling her mother would produce a reaction that was helpful to her. In all the circumstances, I do not draw an inference which is adverse to C’s credibility from the delay in reporting the matter. I remind myself of the provisions of s34I(6a) of the Evidence Act 1929, prior to the 2008 amendments:
If, in proceedings in which a person is charged with a sexual offence, any information is presented to the jury, or suggestion made in the presence of the jury, that the alleged victim failed to make a complaint, or delayed in making a complaint, about the alleged offence, the judge must‑
(a)warn the jury that the alleged victim’s failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and
(b)inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint.
It is another question whether the delay might cause concerns about the reliability of C’s evidence. C was, after all, an adult giving evidence about events which occurred when she was a small child. Any suggestion that her recollection may have been contaminated by suggestions from her mother needs to be considered with great care. She frankly conceded that she and her mother had discussed their recollections (T33). She also admitted that further details had “come back” since she made her statement to police in 2007 (T35). This evidence gives rise to some concern that C’s memory may have been subject to suggestion and reconstruction.
LONGMAN WARNING
C has given evidence that the acts giving rise to these charges took place when she was about five or six years old (T10). The Information charges that, on each count, the alleged offence occurred between 1 March 1994 and 1 April 1995. It is an agreed fact that C was born on 14 April 1988. On 1 March 1994, C was five years 11 months old and on 1 April 1995, she was six years 11 months old.
C also gave evidence that she first told M about these offences when she was 16 (T18). She turned 16 in April 2004. A report was not made to police until April 2007 (T34), somewhere between two and three years later. There is, therefore, a gap of about 12-13 years between the alleged events and the report to police.
In this case, C said that it was not until she was old enough to understand that what the accused did to her was wrong that she realised the significance of his actions (T52). She thought about it “for a while” (T51), and said that she might have been scared of her mother’s reaction (T52). Having seen and heard M give evidence, I find that understandable. Further, C’s actions must be seen in the context of a very troubled adolescence. I will elaborate on these issues later. In all the circumstances, I am not prepared to draw an inference which is adverse to C’s credibility from C’s failure to report the alleged offences earlier than she did. As I have already observed, however, the reliability of her evidence is another matter.

In a case where there has been a substantial delay between the occurrence of the events and notice being given to the accused of the complaint of a sexual offence having been made, and that delay has placed the accused in a position of forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant (Longman v The Queen (supra), Doggett v The Queen (2001) 208 CLR 343 at [45], [138], R v BFB (2003) 87 SASR 278 at 83 per Doyle CJ).
Such a warning is required regardless of whether the complainant’s evidence is corroborated (Doggett v The Queen (supra)). The warning must be clear and firm, and tied to the circumstances of the case (R v BFB (supra)). The terms of the warning must be that it would be dangerous to convict on the complainant’s evidence alone “unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy” (Longman v The Queen (supra), per Brennan, Dawson and Toohey JJ at p91).
An exhortation to “scrutinise the evidence with particular care” and to “not act upon it unless, bearing in mind the warning, you are completely satisfied of its truth and accuracy” was held to be insufficient and a “material misdirection” (R v Wilson (No 2) [2007] SASC 129 per Gray J at [76], with whom Duggan and White JJ agreed).
There is no doubt that a delay of between 12 and 13 years between the alleged events and the report to the police, in the circumstances of this case, is substantial. Further, I accept Mr Algie’s submission that the forensic disadvantage suffered by the accused is not merely potential or theoretical. C’s understandable inability to identify with any precision the timing of these events prevents the accused from investigating his movements at the time by accessing business records related to his occupation as a truck driver. M’s recollection of the relevant time is now poor. A forensic medical examination of C would have been pointless by the time the matter was reported.
In those circumstances, if these charges were before a jury, it would have been appropriate to give the jury a warning that it would be dangerous to convict the accused on the evidence of C unless, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, they are satisfied of its truth and accuracy. I will pay heed to the same warning in my consideration of the issues here.
ADDRESSES OF COUNSEL
Ms Griffith, counsel for the Director of Public Prosecutions, drew my attention to s34I(5) of the Evidence Act. I have already dismissed that section.
Ms Griffith submitted that C was a good witness, who made concessions against her interest where appropriate. She readily admitted she was fond of the accused, and was sad when he was gone.
Ms Griffith submitted that C’s reasons for the delay in reporting the allegations did not harm her credibility, and for the reasons I have already expressed, I accept that as well. It is the reliability of the evidence which concerns me.
As to the CAMHS note, there is no evidence that M actually raised the possibility of sexual abuse with C following that conversation, as Ms Griffith correctly pointed out. However, M’s concession that she might have done, in the context of her concern about her daughter’s bulimia and erratic behaviour, gives rise to what I consider a real possibility that she did.
I have already mentioned a number of the submissions made by Mr Algie, counsel for the accused.
Mr Algie pointed out what he said was the inherent implausibility of C’s story that Count 1 occurred at the accused’s work, being such an open and busy place. He also pointed out the inherent implausibility of C’s evidence that these events occurred in such proximity to her mother.
Mr Algie pointed to the fact that the other alleged incidents, charged and uncharged, were described in such sparse detail, without “depth”, giving me no opportunity to assess the truthfulness of the allegations. Such vagueness is often unavoidable in such cases, but the point is well‑made that any doubt arising therefrom must be resolved in favour of the accused.
I have already discussed Mr Algie’s submissions about the delay, and the forensic disadvantage suffered by his client as a result.
CONCLUSION
Taking all these matters into account, the concerns I have about the reliability of C’s evidence, the possibility that at least some of it may have been the result of suggestion by her mother, with the added possibility of reconstruction over the years since then, the fact that the evidence is uncorroborated, and heeding the Longman warning to scrutinise the evidence with great care, I conclude that I am not satisfied beyond reasonable doubt of the reliability of C’s evidence in relation to any of the three counts before me.
Accordingly, my verdicts are:
Count 1 - Not Guilty
Count 2 - Not Guilty
Count 3 - Not Guilty