R v BONEY - [2013] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BONEY
Criminal Trial by Judge Alone
[2013] SADC 37
Reasons for the Verdicts of His Honour Judge Clayton
22 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with Aggravated Attempted Procuring Sexual Intercourse and Unlawful Sexual Intercourse with a person under 12.
Verdict: Not guilty both counts.

R v BONEY
[2013] SADC 37

The accused is charged first with the offence of Aggravated Attempted Procuring Sexual Intercourse and secondly with the offence of Unlawful Sexual Intercourse with a Person under 12. He has elected for trial by judge alone.
The offences are alleged to have been committed between 31 July 2010 and September 2010. The complainant is a female born in December 2001. She was eight years of age at the time of the alleged offending and was 11 years of age at the time of the trial. She is intelligent and articulate.
The accused is currently aged 33 years. He was an acquaintance of the complainant’s older brother.
The prosecution case is that on the afternoon of the offending the complainant was playing in the yard outside of her house when the accused visited the house with others who went inside. It is alleged that the accused committed the offences while she was playing outside. At the time her mother and others were inside the house.
Count 1 relates to an allegation that the accused asked the complainant to suck his penis. The alleged offending is aggravated because of the age of the complainant, that is the accused knew that she was under the age of 12. Count 2 relates to an allegation that the accused inserted a finger into the vagina of the complainant.
The complainant gave evidence in support of the prosecution. So did the complainant’s mother, brother and B, a seventeen year old girl who lived with the complainant’s family and treated the complainant’s mother as her own.
The accused also gave evidence.
The only persons who were present in the yard at the time of the alleged offending were the complainant and the accused. Because the resolution of this case depends on the acceptance of the evidence of the complainant I will set out the relevant passages of her evidence rather than attempt a summary.
The complainant gave evidence that when she was eight the accused "Put his fingers in me" and he "Put his finger up my privates". She said that occurred at the side of the house next to a basketball court.[1] If I accepted that evidence beyond reasonable doubt the Crown would have proved count 2.
[1] T 8.
The complainant said that that she had been inside the house when the accused arrived but became bored and went outside to jump on a trampoline, that the accused followed her outside and encouraged her to jump higher. She went from the trampoline to the basketball court to shoot hoops. The accused followed her and she told him to watch her.
She said that the accused pulled his pants down and said "If you do this with me we will have no more favours".[2] She said that she saw his penis which "was brown and red and it had a circle thing at the bottom".[3]
[2] T 13 & 14.
[3] T 14.
She said that while he had his pants down he said "Would you rather this (pointing to his penis which he called his "cock") or the finger?" She said that he also said "If you don't do this for me I'll tell everyone I'll kill you" (sic).[4]
[4] T 14 l30.
The evidence which followed was:
QDid he say anything else to you.
AI can’t remember.
QWhen he pulled his pants down were you standing up or lying down.
AStanding up.
QYou said at the start of my questions that he put his finger somewhere; where did he touch you.
AWhat do you mean?
QDid he touch you.
ANo.
QDid he do anything to you.
AHe actually said – he – no.
QSo you said that he pulled his pants down.
AYes.
QAnd said those things to you.
AYes.
QDid he touch you after that at all.
AYes.
QWhere did he touch you.
AOn my shoulder.
QWhat did he touch you on the shoulder with.
AHis hand.
QDid he touch you anywhere else.
ANot until I choosed.
QCan you say that.
ANot until I choose the finger or the cock.
QSo later on did he touch you somewhere.
AYes.
QYou said later on you chose the finger.
AYes.
QWas that after he asked you to choose the finger or his private part.
AYes.
QDid you choose one or the other.
AI actually choosed the finger.
QDid you say anything to him when you chose the finger.
AI don’t know, I can’t remember.
QThen after you chose the finger did he touch you.
AYes.
QWhere did he touch you.
AIn my mimi.
QWhat is your mimi.
AIt’s my private part.
QIs your mimi your vagina.
AYes.
QDid he touch you inside or outside your mimi.
AIn.
QDid he do that while your clothes were on or were your clothes off.
AWhen my skirt was off.
QWho took your clothes off.
AI did.
QWhat of your clothes did you take off.
AMy skirt and my knickers.
QI missed the last part.
AKnickers.
QWhen he touched your mimi that was when your skirt or all your clothes were off.
AMy skirt and my knickers.
QWere you wearing a top at the time.
AYes, and my skirt and knickers were around my ankles.
QDid he touch you on the outside or the inside of your mimi.
AInside.
QDid you see what he touched you with.
AHis finger.
QWas it one or more fingers.
AI don’t know.
QCan you say what it felt like.
ASore.
QWhen he touched your mimi were his clothes all still on or were they off.
AI think his pants were down or maybe up, don’t remember.
QDo you remember which finger he touched your mimi with.
AI think it was either this hand or this finger (INDICATES).
HIS HONOUR: Indicating the first finger of both right hands and left hands.
AI’m saying that it might have been the left or it might have been the right finger of this (INDICATES).
HIS HONOUR
QThe first finger.
AYes, after the thumb.
XN
QWhen he touched your mimi were you standing up or lying down.
ALying down.
QAt which point did you lie down.
AI didn’t get that.
QDid you lie down on your own or did Colin ask you to lie down.
AHe asked me to lie down.
QWas he lying down or was he standing up.
AHe was standing up.
QDid Colin say anything to you while he touched your mimi.
AHe said sorry because it was hurting me.
LAST ANSWER READ BY REPORTER
QDid he say anything else.
ANo.
QHow long did that go on for.
AAbout a minute or two.
QWhat happened when he stopped.
AI’m sorry, I don’t know.
QWhat happened when it stopped.
AIt started hurting even more.
QDid you stand up at some point.
AYes.
QWhat happened then after you stood up.
A(K) – well we went – he stopped and I pulled up my pants – skirt actually and we went up – we went around the corner and then we were just about to go to the gate and he smacked my bum and (K) was there near the letterbox.
QYou said he smacked your bum.
AYes.
QWho.
AColin.
She said that they went inside, she put her shoes on and the accused said to her mother "Me and your daughter (name) have a secret" to which her mother replied "You have no fucken secret with my daughter".[5] The suggestion of a secret was not taken further.
[5] T 19 l12 and T 19 l33.
The complainant said that the first person she told about the incident was B. She said that about a week and a half to two weeks after the alleged offending the complainant and B went with the complainant’s mother to Job Prospects, where the mother had an interview. While the two of them were waiting outside the complainant said to B "Let's tell secrets". The complainant said that she had waited before telling anyone "Because I was scared because he said he was going to kill me". Her evidence continued:
QWas this when you are outside the house, is that when he said he was going to kill you.
AHe said ‘Pick one or I'll kill you and this is the only favour and you’ll have to do no more favours for me’.
QDid he say this to you when the incident was occurring on the basketball court.
APardon? I didn’t hear that.
QDid he say this to you when the incident was occurring on the basketball court.
AWhat does that mean?
QDid he say this to you when you were outside your house and he was touching you.
ABefore he was touching me.
QDid he say it before he pulled his pants down or after.
AI’m not sure.
QWhen you told (B), what did you say to her.
AI said my first secret and then I told her that ‘Colin touched my private, you know, Jarvis’s friend’.
QYou said the first secret; what was that.
AThat was ‘I’ve had half a smoke before with my friend Caitlin’.
QSo did you tell (B) that secret first.
AYes.
QAnd then did you tell her this other secret.
AYes.
QDid you then later on tell your mum about this.
A(B) actually said ‘That’s pretty bad’ so she said ‘Let’s tell – go tell your mum’ and then I said ‘No, you tell her’. And then she said ‘Let’s tell her together’ and I said ‘Okay’.[6]
[6] T 20 to 21.
In cross-examination her evidence was:
QYou’ve told us that the first person you told about these things in the backyard was (B).
AYeah.
QAnd you told (B) about some secrets when you were at the Job Prospects office.
AYes, but we was at the front waiting for mum because mum said to wait at the front.
QAnd you told (B) one secret was about, I think, smoking.
AYes, half a cigarette.
QAnd another secret was about –
AColin.
QBreaking a plate.
APardon, no.
QYou didn’t tell (B) that you’d broken a plate, one of your mother’s
AYeah, one, yeah, in the kitchen, but I don’t remember telling her that.
QCould you have told her that.
AI’m not sure.
QAnyway, you then told her about being on the trampoline and Colin watching.
AYes.
QAnd you told her that he told you to jump higher.
AYes.
QAnd that after that, around the corner, he pulled his pants down.
AYes.
QAnd showed you his cock.
AYes.
QThat was the word you used to (B).
AThe word I used to (B) was his private part but the real word was that ‘cock’.
QDidn’t you use that word when you were speaking to (B).
ANo. I just – I said that so it – to make it make sense.
QDid you say that he said for you to kiss him.
AYes.
QAnd then did you say this –
AWhat?
Q– ‘It was lucky mum called me otherwise he would have been able to touch me’.
ANo, but –
QI’ll just say that again. See whether you can remember whether this was true or not. You said to (B) ‘After he said “kiss me” – you said ‘Lucky mum called me otherwise he would have been able to make me touch him’. Did you say that to (B).
ANo, I didn’t.
QYou didn’t tell (B) that Colin had touched you, did you, when you were at Job Prospects.
ANo, I told her after when mum was there.
QWhere was that.
AWhen – when mum was finished with her appointment and we was walking back home in the McDonald centre and the Christies Beach Police Station, when mum walked in and asked to tell whoever it was. I think it was Dave something.
QDid this happen, that after your mum had finished her appointment –
AYeah.
Q– at the Job Prospects, you and your mum and (B) walked back towards home and went past the police station.
AYeah and then the – I don’t know how long after she actually did go to the police station.
QYes, but I’m talking about after Job Prospects, when you left Job Prospects with your mum –
AAnd (B).
Q– did she say to you when you were walking past the police station ‘You should tell your mum because I don’t want to’.
AYes.
QYou said ‘I can’t’.
AYes, that’s correct.
QAnd your mum said ‘You can’t what, (M)?’.
AYeah.
QAnd did you then tell your mum what you’d told (B) –
A(B).
Q– while you were in the waiting room of Job Prospects, about Colin pulling his pants down.
ANot in the waiting room, when we were walking back, on the footpath.
QI may have put that confusingly, but as you were walking past the police station you told your mum about Colin pulling his pants down.
AYes, correct.
QBut you didn’t say anything to your mum about being touched in any way, did you.
AI’m not sure.
QI say this to you –
AYep.
Q– that after you’d left Job Prospects with your mum and (B) –
AYes.
Q– (B) said that you’d been hurt.
AI’m sorry, I didn’t get what you were saying.
QYou didn’t tell your mother that you’d been touched by anyone in the backyard.
AI’m not sure.
QYou can’t remember ever telling your mother that.
ANah. I don’t remember if I did tell her or I didn’t.
QBut you can’t remember now telling her anything about being touched in the backyard.
APardon?
QYou can’t remember any occasion when you told your mum about being touched –
AI actually have told her that I did get touched but not on that day when I told (B) the secret and then I told mum.
QSo on the day you told (B) the secret –
AYes.
Q– you didn’t tell your mum you’d been touched, did you.
AWell I didn’t tell them both the full secret.
QYou didn’t tell them the full secret because it just didn’t happen.
APardon?
QYou didn’t tell them the full secret because the full secret didn’t happen.
AIt did happen though.
QDo you remember going to the police station on 8 September 2010 and being interviewed by two police –
AA policewoman and a policeman.
QYes. Malcolm Marr and Vicki Marr.
AYes.
QWhen you spoke to them, you told them about jumping on the trampoline.
AYeah.
QYou said that you saw Colin watching you.
AYep.
QHe said ‘You should jump higher’.
AYes, and then I jumped on the trampoline onto the tree and then he said ‘No, don’t jump on the tree, just jump higher’.
QAnd then he walked away.
ANo, he stayed there watching me for a bit and then he walked away and then he come back.
QYou went around the corner and started playing basketball.
AYes, correct.
QThen you said he came around the corner and said ‘Suck my cock’.
ANo.
QYou didn’t say that.
ANo.
QDid you tell the police that he showed you his cock.
AYes.
QAnd you said to them that he said ‘Kiss me’.
AYes.
QAnd you told them that you took the cap from him.
AYes, I did take the cap from him.
QAnd were you asked this ‘Did Colin touch you or anything when he was talking?’, And you said ‘No’.
ANo.
QYou told the police on that occasion that he didn’t touch you at all.
AHe did touch me though.
QYes, but didn’t you say to the police during that interview that he didn’t touch you at all.
AI’m not sure.
QYou didn’t say to the police during that interview that he’d said anything about going to kill you.
APardon?
QYou didn’t tell the police on that first interview that he’d said anything to you about –
AGoing to kill me.
Q– him going to kill you.
AI think I didn’t or I did, I’m not sure.
QI’m saying to you now that you didn’t say that to the police when you were interviewed that time.
AI think I didn’t say it to them, that guy and that girl police officer, I’m not sure that I did, but I think I didn’t.[7]
[7] T 26 l19 to T 30 l38.
Then she told the cross examiner that the accused had touched her on her "mimi". She said that it hurt and indicated that his finger was placed about one and a half or 2 cm into her "mimi".[8]
[8] T 31.
The cross examination then moved to a later interview with another police officer on 15 November 2010:
QDid you tell Detective Johnson, Dave, I think, that he pointed his whole finger up your mimi.
AI’m not sure.
QDid he ask you this at p 3 ‘All right and what did he do with his finger?’. And you said ‘He put it all the way up my mimi’.
AMimi.
QMimi.
ANo.
QDo you agree that you told him that.
AI’m not sure.
QYou say that he only put one and a half to 2 cm up your mimi.
AYes, and his finger was about 3 or 4 cm, 3 cm.
QSorry, his finger was –
AAbout 3 cm.
QWhat do you mean by that.
ALike, his finger, how big it was.
QSo you mean 3 cm from side to side of his finger.
ANo, that way (INDICATES).
HIS HONOUR
Q3 cm long.
AYes, 3, 3 and a half.
XXN
QI want to be clear about this. Are you saying that the finger that he put in your mimi was 3, 3 and a half cm long.
AYes. But he put about one and a half cm in.
QHis first finger is much longer than 3, 3 and a half centimetres in full.
AHis first finger, yes, about 3, 3 and a half, 4. I’m not sure how long that is. Just trying to describe it.
QDo you agree that you told Dave Johnson in that first interview that he had with you at your house that he had put his finger the whole way up your mimi.
AI think I did. I think I did.
QDo you say now that it was his whole finger.
AI’m not sure. I don’t really remember. I’m just trying to describe it.
QI think you told us that that hurt.
AYes, it did.
QDid you say anything when it hurt.
A‘Ow’.
QDid you ever say to your mum that he had put his finger in your mimi.
ADave said not to tell mum because she is a witness, and then – because that – the court might think that she’s copying me.
QWasn’t your mother with you when you said this to Dave Johnson about the whole finger.
AI watched a video the other day but – she was in one of the videos but I’m not sure if she actually was with me when I said that to Dave.
QAnd you say that he told you not to tell your mum about that.
AYes. Not to tell anyone that I know otherwise he would kill me.
QDid you say, when you were being spoken to by David Johnson on 15 November 2010 that, firstly, you couldn’t remember which finger he put inside.
AYes.
QHe asked you if that hurt you at all. You said ‘Yes, it really hurt when I laid down and did it and he put it all the way up me for like two minutes’.
AYes, I did say that.
QDid you mean by that that he put all of his finger inside you.
AI did say that to Dave but I can’t really remember because all the – yeah.
QYou can’t really remember because –
ABecause of all the stress that I’m going through.
HIS HONOUR
QWhat is it that you can’t really remember. What happened on the basketball court.
AHe put his finger –
QListen to me first.
ASorry.
QWhat can’t you remember; what happened on the basketball court or what it was that you said to Dave.
AWhat it was I said to Dave.[9]
[9] T 31 l38 to T 34 l3.

I note that when asked whether she had told a detective that the accused had put his finger the whole way up her mimi her evidence at first was “I am not sure. I don’t really remember” but later she agreed that she told the detective he put it all the way up me for like two minutes. Her evidence to the court was that he only inserted his finger one and a half to 2 cm.[10]
[10] T 32 l37 and T 33 l29.
I also note that the complainant agreed that she had never told her mother that the accused had put his finger in her mimi.
Later:
QDid you tell (C) and (S) that you were pulled around the corner to the basketball court.
AYes, I think I did.
QBut that didn’t happen, did it.
ANo.
QWhy did you say that if it didn’t happen.
AI don’t know if it actually did happen because – I’m not actually sure.
QDid you tell (C) and (S) that you tried to call out and run.
AYes.
QBut he covered your mouth.
AYes.
QBut that didn’t happen, did it.
AYes.[11]
[11] T 34 l32 to T 35 l8.
Towards the end of cross examination, when the cross examiner was putting the case of the accused, the following dialogue took place:
QColin (the accused) never said that he would kill you, did he, when you were in the backyard.
ANo.
QHe didn’t say that.
AHe did say that he would actually kill me though but I’m not sure if he said he would hit me.
QHe didn’t say he would hit you, did he.
AI’m not sure.
QHe never said to you to keep what happened in the backyard a secret.
AHe did say it.
QAnd he didn’t say that he had a secret with you when he spoke to your mum.
AHe did say that.
QHe never asked you to suck his cock.
AHe did say that.
QHe never put his finger in your mimi.
AHe did.[12]
[12] T 40 l32 to T 41 l11.
B gave evidence. She confirmed the complainant’s evidence that when the complainant entered the house followed by the accused the accused said that he had a secret with the complainant to which the complainant’s mother said "No‑one has a secret with my f’ing daughter".[13]
[13] T 44 l32.
B also gave evidence of the initial complaint made by the complainant. She said that the complainant started telling her a few secrets. She could not remember the first secret. The second secret was that the complainant had broken a plate. Then the third related to the accused. B said that the complainant told her that there was "a special secret and she didn't want me to know because she didn't want me to tell mum".[14] The complainant did tell her what the secret was. When asked what the complainant said B gave evidence that the complainant told her that she had been jumping on the trampoline, that she walked around the corner to play basketball and the accused "had pulled his pants down and flopped his cock up in her face and told her to suck his cock".[15] She could not recall whether the complainant used those exact words. The complainant told her she was really scared and nervous.
[14] T 45 l29.
[15] T 46 l7.
B told the complainant that she should tell her mother and that when they were walking back home past the police station, B told the complainant she should tell her mother, the complainant said that she couldn't, her mother said "You can't what (M)?" and "that's when she let it all out".[16]
[16] T 46 l28.
When cross-examined about the discussion at Job Prospects B said that the complainant told her that the accused said to her "suck my cock", that he had pulled his pants down and showed her his cock. B agreed that the complainant did not complain to her that she had been touched.[17]
[17] T 51 l10.
The complainant’s mother gave evidence of a day when the accused attended at her house with another man.[18] The complainant had been playing outside and the mother called her in for lunch. The complainant did not come immediately and her mother called again. She then saw the accused and the complainant come out of the back gate. The mother's instinct caused her to think that the complainant looked "a little bit scared and apprehensive" and she said to the complainant "Are you alright (M)? Is there anything that you need to tell me?".[19] The mother said “To me as a mum I could see something but I didn't know what".[20] She said the accused was with the complainant and spoke to the mother saying "(The complainant) and I have a secret". The mother replied "You don't have no fucking secrets with (the complainant)". She repeated that she knew something just by looking at her daughter's demeanour. The accused and his companion then left.
[18] T 55.
[19] T 57 l3.
[20] T 57 l5.
The mother also gave evidence of the complaint to her after her attendance at the Job Prospects office. She said it was "a little while" afterwards, "It would have been weeks" but she could not say how many.[21] The topic was raised by B who told her that she had something awful to say but it was a secret with the complainant and B said "I need to tell you, it's important".
[21] T 58 l7.
B told the mother, in the complainant’s presence, that the accused had hurt the complainant and the mother asked "In what way". B replied "Touch her" (sic).[22] The mother then reported the matter to the police. She is not sure whether it was the same day or weeks later.[23] There is no evidence that the accused had touched the complainant. The initial complaint was that the accused had asked the complainant to perform fellatio.
[22] T 58 l17.
[23] T 58 l32.
In cross-examination the mother said that the complainant did not actually tell her anything about what had happened.[24]
[24] T 60 l11.
The evidence of the mother and B does not provide evidence of the offending although it does indicate how the matter came to be reported to the police and it can be used for the purpose of testing the consistency or inconsistency of the complainant’s statements..
The mother was cross-examined about her evidence that the accused said that he told her that he had a secret with the complainant. On that topic she was not shaken. Her evidence is consistent with the evidence of the complainant and B. The accused denied having made that statement. Why the accused would have volunteered a statement which had the potential to lead to an enquiry as to what the ‘secret’ was is a mystery.
Defence counsel challenged the reliability of the evidence of the complainant’s mother on the basis that she told the police that she did not remember the companion of the accused being at the house on that day.[25] The mother had difficulty remembering times and dates. However I do accept her evidence that the accused told her that he and the complainant had a secret. That evidence is too bizarre to have been fabricated otherwise the evidence of the mother does not support the complaint.
[25] T 63.
The complainant was recalled for further cross-examination at the end of the Crown case. She gave the following answers to questions from myself.
HIS HONOUR
QP. 34, at the bottom, you told us yesterday that you told (C) and (S) that you were pulled around the corner to the basketball court.
AYes.
QDo you remember telling us that.
AYes.
QAnd then Mr Tonkin said that that didn’t happen, did it and you said ‘No’.
ANo, it didn’t.
QThen he asked ‘Why did you say that if it didn’t happen?’ and you said ‘I don’t know if it actually did happen, because I’m not actually sure’, is that the case.
AYeah. I’m not sure if it did or not but I do remember it happening you know.
QThan Mr Tonkin asked ‘Did you tell (C) and (S) that you tried to call out and run?’
AYes.
QAnd you said ‘Yes’. Do you remember telling them that.
AYes.
QAnd Mr Tonkin asked ‘But he covered your mouth’.
AYes.
QAnd you said ‘Yes’. And then Mr Tonkin asked ‘But that didn’t happen, did it?’ and you said ‘Yes’. Did you try to call out and run.
AYes.
QYou did.
AYes.
QDid he cover your mouth.
AYes.
QThen p 40 line 32, Mr Tonkin said to you “Colin never said that he would kill you, did he, when you were in the backyard?’
AAnd I said ‘Yes’.
QThe answer that you gave yesterday was ‘No’.
AHe did though.
QWhat did he say.
AThat he will kill me and that he will tell – that he will kill me and – I forgot.
QDid he say why he would kill you, or anything about that.
AI don’t know.[26]
[26] T 76 l32 to T 77 l35.
Generally that passage demonstrates vagueness and unreliability in the evidence of the complainant. In order to convict I must accept her evidence beyond reasonable doubt.
The accused elected to give evidence. He denied that he ever went into the backyard of the complainant’s home and said that on the occasions he went to the house he stayed in the dining area. He said he was never alone with the complainant. He denied that he had exposed his penis to her in the backyard and he denied that he had asked the complainant to suck his penis. He denied that he had placed a finger in her vagina and he said that he never threatened her in any way. He said he never physically touched the complainant.[27]
[27] T 88.
The accused denied that he told the complainant's mother that he and the complainant had a secret.[28] As I have said I accept the evidence of the complainant, her mother and B on that topic. Accordingly, I can not accept the accused’s denial.
[28] T 89.
The accused acknowledged that in 2010 he knew that the complainant was eight years of age.
There are two agreed facts. First it is agreed that at a briefing at the Director's office on 21 May 2000 the complainant told the prosecutor that the accused told her to pull her pants down and hit her in the face. Secondly it was agreed that at the first police interview with the complainant on 8 September 2010 the complainant made no allegation that the accused had touched her vagina.[29]
[29] T 99.
The prosecution case depends entirely upon the evidence of the complainant. The question is whether her evidence has proved the two counts beyond reasonable doubt. Each count must be considered separately.
There are internal inconsistencies in the evidence of the complainant. There are inconsistencies between the evidence of the complainant and the complaints which she made to others.
Agreed Fact one is that the complainant told police officers that the accused hit her in the face. She never gave evidence of such an event. The occurrence of such an event is inconsistent with her evidence. It is not just the inconsistency which is significant. The statement to the police officers demonstrates a propensity to exaggerate or fabricate evidence.
Agreed Fact two establishes that at the first police interview the complainant made no allegation that the accused had touched her vagina. Similarly no allegation of digital penetration was made to the complainant’s mother or B. The fact that this fundamental allegation was not made at the same time the other allegations were made provides reason to doubt the veracity of the complainant.
The complainant was cross-examined about her first interview by the two police officers at the police station on 8 September 2010.[30] Her evidence as to this interview displays a poor memory and the complainant said things to the police officers which are inconsistent with her evidence to the court. The inconsistencies have caused me to doubt the accuracy of the complainant’s evidence generally.
[30] T 29 l24 to T 34 l3.
B said that when the complainant first reported the incident to her when they were at Job Prospects the complainant told her that the accused flopped his cock out in her face, told her to suck his cock and asked her to kiss him.[31] That was not the complainant’s evidence to the court.
[31] T 46.
The only evidence by the complainant that the accused asked the complainant to perform fellatio was when the cross-examiner was putting the accused’s case and put “He never asked you to suck his cock” and she replied “He did say that”. The complainant had not given that evidence-in-chief and the statement in cross-examination does not fit in with the other evidence to the court.
B gave evidence that the complainant said to her "Lucky mum called me otherwise he would have been able to touch me".[32] Although the complainant denied that statement I accept the evidence of B. It is unlikely that B would have invented that evidence. Such a statement by the complainant is inconsistent with the accused having inserted his finger in the complainant's vagina.
[32] T 50 l29.
Most importantly the evidence of the complainant taken as a whole does not provide a clear and consistent understanding of the sequence of the alleged events. The story that the complainant told in evidence was mainly directed at count 2. However her initial complaint was confined to count 1.
Defence counsel relied upon discrepancies in descriptions of the penis of the accused given by the complainant. He said that it was the defence case that the complainant never saw the accused's penis and for that reason it is a matter of great significance that a drawing of the penis by the complainant in no way resembles a photograph of the accused penis. I do not attach the same importance to that issue. The complainant was a child and on the Crown case had at most a fleeting glimpse of the penis of the accused. Her artistic ability is not on trial.
Defence counsel also submitted that apart from the mother of the complainant and B there was no other witness who gave evidence of the accused being outside in the backyard with the complainant. As I have mentioned the accused himself denied being in the backyard and being alone with the complainant. It is not necessary to resolve this conflict. The accused does not have to prove anything. The question is whether the prosecution has discharged its onus of proof as to the alleged offending.
While the date is not an essential ingredient of either count there is an issue going to reliability. The complainant and her mother gave evidence that the alleged offending occurred during school holidays. If that was the case then the alleged offending must have been in the month of July, not two weeks prior to 8 September, the date of the report to the police. The evidence of the complainant and her mother that the alleged offending was about two weeks prior to 8 September must be incorrect.
The accused was interviewed on 28 October 2010 in relation to an allegation that he exposed his penis and requested the complainant to suck it. At that time the allegation of penetration of the complainant’s vagina by a finger had not yet surfaced.
Count One – Aggravated Attempted Procuring Sexual Intercourse
This count relates to the allegation that the accused pulled his pants down and asked the complainant to suck his penis. The complainant’s evidence to the court was that he said "If you do this with me we will have no more favours" and while his pants were down the accused said "Would you rather this (indicating his penis) or the finger". The complainant said that the accused said "If you don't do this for me I'll tell everyone I'll kill you".[33]
[33] T 13 and T 14.
This count depends upon interpretation of the words attributed to the accused. The words that the complainant gave evidence of do not support an allegation that the accused attempted to procure the complainant to perform fellatio. In fact the conversation deposed to by the complainant moved from a rather vague threat by the accused to the complainant being asked to choose between the finger and the penis which led to the allegation that the accused inserted his finger into the complainant’s vagina. The alleged conversation was not connected with a request to perform fellatio.
In my opinion the evidence of the complainant as to count one if accepted, would fall short of establishing the alleged offence.
The evidence of B that the complainant said to her that the accused showed her his penis and asked the complainant to ‘suck his cock’ is not evidence of such an event but was only admitted for the special purpose that permits evidence of initial complaints. The only evidence by the complainant of such a statement is her response to the cross-examiners assertion that she never made the statement.
More importantly, for the reasons which I have already expressed, I am not able to accept the evidence of the complainant as proof beyond reasonable doubt.
Count Two – Unlawful Sexual Intercourse with a Person under 12
The only evidence of this alleged offending is the evidence of the complainant. I am not able to accept the evidence of the complainant as proof beyond reasonable doubt. The complainant did not mention the alleged digital penetration of her vagina when she made her initial complaints to B, her mother and the police. She has given inconsistent descriptions of the alleged event itself.
The prosecution has not proved the allegation of the alleged offence beyond reasonable doubt.
Verdict
On each count there will be a verdict of not guilty.