R v BOND - [2012] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOND
Criminal Trial by Judge Alone
[2012] SADC 125
Reasons for the Verdicts of His Honour Judge Rice
4 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone.
The accused was charged with various sexual offences against two sisters - no application for separate trials of the counts relating to each sister.
Charges not proved to the requisite degree - verdicts of not guilty on each count.
Evidence Act 1929 ss 34M, 34P and 34S, referred to.
R v Bolte [2010] SASC 112, considered.

R v BOND
[2012] SADC 125
Introduction

This is a trial by Judge alone.
The accused is charged with eleven counts alleging various offences of a sexual nature against two sisters who were his nieces. There are eight counts relating to the older child, C1, and three counts relating to the younger, C2.
The manner in which the matter came to trial by a Judge alone is a little different. The accused was originally charged with the eleven counts that eventually came to trial before me. Close to the date set aside for the commencement of the trial, the prosecution informed the defence that it had decided, of its own motion, to lay separate Informations in respect of each complainant. This was done and it was intended that the counts relating to C1 would proceed first. On that basis, the defence applied to another Judge of this Court on the morning of the trial that the trial be by Judge alone. The application, based on the new Information, was granted. In that situation it was thought appropriate that the Judge granting the application should not be the trial Judge. The trial on the new Information was then listed before me.
When the matter was called on before me, the prosecution indicated that it was proposing to revert to its original position and have one trial involving both complainants. Accordingly, another Information was filed relating to both complainants. The defence was specifically asked whether it adhered to the election and it did. The prosecution took the view that, if it was to be a trial by Judge alone, there was no risk of impermissible prejudice that may attend upon a trial before a jury involving both complainants.
In the result, the accused pleaded not guilty to all counts on the new Information. The counts were materially the same as the original Information.
Overview of the individual counts
As mentioned, Counts 1 to 8 involve the complainant C1. Those charges span the period June 1995 to 24 January 1998, some two and a half years. C1 was born in January 1986. On that basis she was between about nine and twelve years when these events are alleged to have happened. In evidence she thought she was about ten or eleven years when the alleged events occurred. She was aged 26 years when she gave evidence before me.
Counts 9 to 11 involve the complainant C2. Those counts span about 18 months, from about April 1996 to October 1997. C2 was born in April 1992. On that basis she was between about four and five years at the time of these alleged events. She was aged 20 years at the time of giving evidence.
With the exception of Count 9, the alleged offending occurred at the accused’s home at Salisbury North when the complainants spent time there. Count 9 is said to have occurred at the accused’s mother’s home at Elizabeth when C2 was visiting her grandmother and the accused happened to be there.
With respect to C1, Counts 1, 2 and 3 are alleged to have occurred on the same occasion at the accused’s home. Counts 4 and 5 are alleged to have occurred on the same occasion whilst C1 was staying at the accused’s home with her brother and uncle. Counts 6 and 7 are alleged to have occurred on the same day at the accused’s home in his bedroom. Count 8 is one of the last occasions of sexual conduct between the accused and C1.
With respect to C2, Count 9 is an indecent assault at her grandmother’s home in the bathroom. Counts 10 and 11 are alleged to have occurred in the “pit” at the accused’s home in his garage.
Main issues
In this case, the accused denied, on oath, the allegations of C1 and C2.
As for C1, the accused said she was not at his house anywhere near as often as she said and, in any event, she was not working inside while others were working outside. In a broad sense, it was said that there was not the opportunity for offending (charged and uncharged) as described by C1. The accused denied showing her any pornographic films but he said she may have seen a type of playing card showing naked men and women in a bum-bag left in the kitchen area. There was an emphatic denial of any sexual abuse or anything that could be so construed.
As for C2, the accused denied that he was ever at her grandmother’s home at the same time as her (Count 9) or that he was ever in the pit or cellar in the garage at his home at the same time as her (Counts 10 and 11). In any event, the accused said the cellar was too cluttered with bits of cars (engines, gearboxes, etc) for the described events to have been able to happen.
Objections to evidence
There were two broad areas of evidence which were the subject of objection.
The first related to the admissibility of an alleged complaint made by C2 to a Child Protection Officer in October, 1997, pursuant to s 34M of the Evidence Act 1929. There were various bases of objection put forward relating to the alleged complaint, particularly that it was not an “initial complaint” and, more importantly, the content could not support consistency of conduct on C2’s part. This is a topic to which I will return.
The second area of objection related to a Discreditable Conduct Notice served by the prosecution. That Notice related to an allegation that the accused showed pornography to C1 and a type of playing card showing sexual acts. It was said that showing C1 those items was part of the grooming process. I did not rule on the objection at the time and reserved it until a later stage of the trial. There is no doubt in my mind that the evidence under this heading should be admitted pursuant to s 34P of the Evidence Act 1929. Its probative value substantially outweighs any prejudicial effect, particularly having regard to the fact that this is a trial by Judge alone.
The basis for admissibility put forward by the prosecution is significant. Grooming is sometimes used as a prelude to sexual abuse. It is sometimes seen as a first step towards, or a lead-up to, more serious conduct, particularly sexual abuse. Grooming may take any number of forms, from generosity to conduct bordering on criminal conduct, for example, a seemingly accidental or innocent touching of a sexual nature. It is a way of testing the reaction of the potential victim to see whether that person is alarmed, frightened, complains or is perhaps passive and does not react. It is sometimes a way of introducing a sexual dimension into a relationship and then increasing the level of it. Grooming does not always take place, but its absence leaves open the comment or argument that the alleged perpetrator was increasing the risk of discovery without first testing the response of the alleged victim. This is the purpose for which the evidence is admitted. This evidence is also capable of being used impermissibly to show that the accused is more likely to have committed the offences or is the sort of person who would commit the offences. I have not used the evidence for any impermissible purpose.
Similarly, with uncharged acts of the same or a similar type to those charged relating to C1, those acts have a probative value that substantially outweighs any prejudicial effect. They are relevant to explain why no early complaint was made; why C1 may not be able to remember all of the details of the charged occasions (because there were a number of them); why the charged occasions did not seem out of the ordinary; why the multiplicity of occasions (charged and uncharged) may increase the fear in C1 that she would not be believed and that disclosure would bring more trouble for her. I have used the evidence for these types of purposes and not any impermissible use.
Separate trials – cross-admissibility
There was no application for separate trials of the counts relating to the separate complainants. As mentioned, the complainants were sisters. As s 34S of the Evidence Act makes plain, the possibility that their evidence may be the result of collusion or concoction, is a question for the decider of the facts. In other words, in reaching verdicts in this case, I would necessarily give consideration to whether the evidence of each of them was the product of collusion or concoction. This I have done.
The prosecution did not present its case on the basis that there was cross‑admissibility as between the evidence of the two complainants. As the evidence in fact came out, the prosecution maintained that position. However, the absence of cross-admissibility does not mean that there should have been separate trials: R v Bolte[1]. I have approached the case on the basis that there is no cross-admissibility and considered each count on its individual merits.
[1] [2010] SASC 112
Individual counts in more detail
C1 said she generally visited the accused’s home every couple of weekends or so, or during the school holidays. She said occasionally she would visit with her brother S, and uncle M. However, on her account, most of the time she was on her own when visiting the accused. She said she went to his house to do jobs, usually house cleaning. There were a couple of times she helped outside but it was mainly inside. M and S, when they visited, did jobs outside the house. Sometimes M and S, along with C1, would stay overnight, other times they would simply be there during the day.
C1 said the sexual offending occurred with the accused in the main bedroom of his home. On her account, the offending happened on a waterbed whereby any movement was exaggerated by the action of the water. She said he would tell her what he wanted her to do, masturbate him or perform oral sex on him. He would also touch her in a sexual way.
As mentioned above, the accused wanted her to watch a pornographic video. She saw what it was and paid little attention to it. She saw naked people and they were touching each other. She also said that the accused showed her what seemed to be playing cards with pictures of naked people showing them having intercourse and performing other sexual acts.
Count 1 was said to have happened in the bedroom during the day when they were both naked. The accused had a video camera and filmed her putting her finger into her vagina after he had shown her what to do using his own finger. Count 2, fellatio, followed whereby he pushed her head towards his erect penis and she moved her mouth up and down for a few minutes.
C1 said she was pretty sure the accused is circumcised but did not understand that at the time. She said she never saw him when he was not erect so it was difficult to tell.
Count 3 followed Counts 1 and 2 whereby the accused took C1’s hand and placed it on his penis. She masturbated him until he ejaculated onto a towel on the bed.
Counts 4 and 5 were said to have occurred on the accused’s bed whilst C1’s brother and uncle were asleep on the same bed. C1 said the accused put his hand down her pants and inserted a finger into her vagina. The accused then took her hand and had her masturbate him (Count 5).
Although I have expressed strong views about C1’s reliability towards the end of these reasons, the risks the accused was said to have taken in that situation are obvious. In addition to that, C1’s uncle, M, denied there was any occasion whereby he slept overnight on the accused’s waterbed.
Count 6 was said to have been an occasion of oral sex on the accused’s bed.
Count 7 was another occasion when it is said C1 masturbated the accused and he ejaculated onto her stomach. He used a towel to clean it up.
Count 8 was the last occasion when it is said that the accused offended against C1. She said they were naked on his bed and she was sitting with her legs together and bent up. She did not like what he was doing or about to do and resisted in that manner. He forced her legs apart and inserted a finger into her vagina.
In addition to the charged acts, C1 alleges that acts of the same type as charged, also occurred. Those acts are admissible for the reasons expressed earlier.
After the last occasion (Count 8), C1 stopped going to the accused’s place. C1 said her grandmother asked whether the accused was touching her and she said “yes”. When asked “above or below the belt”, she said “below”. C1 said the conversation was not taken further. C1 said she had not told anyone about what had happened because she thought she would not be believed. The grandmother, who was said by C1 to have initiated this conversation about touching, said there was not such conversation, although there may well be medical reasons to explain that (T247, 253).
The conversation related to touching could not be viewed as complaint evidence because it is too vague and imprecise. However, it could be used as evidence generally supportive of C1 if the grandmother gave confirmatory evidence of it. In the absence of such evidence, I do not propose to place any reliance upon it.
Turning to C2, Count 9 is said to have occurred at her grandmother’s place at Elizabeth. C2 said she was in the bathroom washing her hands when the accused came in and shut the door. He filled the sink with water, exposed his penis, took her hand and placed soap on it and got her to masturbate him. After these events, she returned to the lounge room where other members of the family were gathered.
It must be said about this count that, as alleged, the accused’s conduct was very risky. He was not to know that C2 would not tell everyone in the lounge room precisely what had just happened with the accused.
Counts 10 and 11 are said to have occurred in a room underneath the accused’s large garage. The accused built the room as a place for storage and an area where he could work on car engines, gearboxes etc. It is said by C2 that they both had their clothes off and the accused took photographs of her using a polaroid camera (Count 10). It is said that after that he got her to touch his penis and he took a photograph of that (Count 11). The photographs that were taken were said to have been stored in a wooden box.
What was put forward as a complaint about these matters is referred to below.
Discussion
I found C1 and C2 to be very believable witnesses. Having listened to their evidence I have every confidence in their honesty. I found them to be impressive witnesses, giving evidence about alleged sexual offending going back many years which has deeply affected them. They were both articulate and intelligent, being appropriately measured and responsive to the question asked. As is often the case, they were better witnesses under cross-examination when confronting the instructions from the accused. There was no concoction or collusion by C1 or C2.
I have every confidence in C1’s reliability or accuracy.
I have some reservations about C2’s reliability or accuracy, not because I believe her to be saying anything other than what she believes to be the truth, but because of her age at the time of these alleged events in combination with the terms of the suggested complaint. As noted, she was four to five years old at the time of these alleged events.
The evidence put forward as complaint evidence was not, on proper analysis, sufficiently consistent with the allegations given in evidence to amount to a complaint in the accepted sense. That evidence, in some ways, was quite inconsistent with the final allegations.
I make these additional observations about what was put forward as the complaint evidence. I am all too conscious of the difficulties in having a child convey the sense of what has happened to him or her in the absence of the necessary vocabulary and maturity. For that reason dolls and puzzles are very useful means of eliciting what occurred. That procedure, although sometimes necessary, has its shortcomings, the most obvious being a degree of leading and suggestion because spontaneity is lacking. None of this is said to be critical of the process which can be very necessary in a case such as this.
The accused was the only witness called as part of the defence case. It must be said that he was not an impressive witness. Some of his answers in cross‑examination were defensive, overly aggressive, indignant and self‑righteous. Some aspects of his evidence seemed highly convenient. For example, supposedly to account for C1 (innocently) seeing the type of playing cards with naked people, the accused said he caught C1 possibly looking through his bum-bag where they were kept. He did not assert that she did, in fact, see them then, but that was proffered as an opportunity for her to have done so and thus explain an incriminating piece of evidence from her.
By way of another example, the accused’s home was searched by the police on 10 October 1997, C2’s allegations having come to light on 2 October 1997. It was a search said to have been undertaken without any advance warning. No photographs were found to substantiate C2’s allegations. The officer who conducted the search said he would have looked for a camera but he could only guess as to that because he had no recollection of the search. The accused said they searched and the polaroid camera that he admitted owning at the time was there to be seen. He said the police did not show any specific interest in it. Bearing in mind C2 says naked shots involving her and the accused were taken using a polaroid camera, I find it difficult to accept the police did not show specific interest in it.
To convict the accused on any count not only would I need to be satisfied beyond reasonable doubt as to the truthfulness and reliability or accuracy of C1 and C2, I would need to reject the accused’s evidence. Any such rejection would need to be beyond reasonable doubt otherwise I could not be satisfied as to the prosecution case.
The evidence of the accused was not sufficiently deficient that I could reject it beyond reasonable doubt. In a practical sense, it is oaths against oath and I am left in a state of genuine uncertainty as to where the truth lies.
Conclusion
For the reasons given, I find myself not satisfied beyond reasonable doubt as to the accused’s guilt. Verdicts of not guilty will be recorded.
Before leaving this matter, some further points need to be made. C1 and C2 should not interpret these verdicts as being a disbelief of them. On the contrary, as indicated above, I found them to be very believable witnesses. However, after considering all of the evidence, I am simply not satisfied to the requisite degree. The accused should only find limited comfort in this result.