R v BURGESS - [2009] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURGESS
Criminal Trial by Judge Alone
[2009] SADC 105
Reasons for the Verdicts of His Honour Judge Brebner
9 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with two counts of unlawful sexual intercourse with a person under 14 contrary to s 49(1) of the Criminal Law Consolidation Act 1935 - trial by judge alone - verdicts, not guilty to both counts.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 9, s 13, referred to.
Driscoll v The Queen (1977) 137 CLR 517 at 536-537; R v Seigneur (2009) 103 SASR 207; Palmer v The Queen (1998) 193 CLR 1; Spence v Demasi (1988) 48 SASR 536; R v H, ML [2006] SASC 240; Melbourne v The Queen (1999) 198 CLR 1; R v Baker (2000) 78 SASR 103, considered.

R v BURGESS
[2009] SADC 105
Criminal trial by judge alone

The accused is charged with two counts of unlawful sexual intercourse with a female aged less than 14 years contrary to s 49(1) Criminal Law Consolidation Act (1935). He elected for trial by judge alone.
Evidence
The complainant was born on 3 May 1995. She was aged about 10 years and five months at the time when the offences are said to have taken place and 14 years and three months at the time of trial. She has a younger brother. The accused is aged 62. He is the complainant’s step grandfather. He has been married to her maternal grandmother for almost 20 years.
The complainant and her brother have had a disturbed and unfortunate upbringing. Their parents separated when the complainant was about three. Their father died when the complainant was about nine and after his death she and her brother lived with their mother until they were eventually placed in foster care. The complainant has been in foster care ever since. In May 2005 the complainant and her brother went to live in foster care with a Ms Bryant and her husband at Renmark.
The accused and his wife live at Gladstone. During the school holidays in September and October 2005 the complainant and her brother went to stay with their grandmother and the accused. The acts of intercourse on which the charges are based are said to have taken place during the first week of their stay.
The complainant gave evidence that she was sitting on the accused’s lap watching television with him one night. She said she was wearing pyjamas and pants. She said that her grandmother was sitting in an adjacent chair to her left and that her brother was asleep on a nearby couch. She said that the accused slid his hand inside her pants and inserted a finger or fingers into her vagina, she said that she slid downwards, thus disengaging, and that the accused then lifted her up again and inserted his finger or fingers into her vagina a second time. She said the accused had his head next to her ear and that speaking in whispered tones, he asked her if she liked it and told her not to tell anybody. She is unsure as to which of his hands he used. She said that on each occasion about 1.5cm to 2cm of the accused’s finger or fingers intruded into her vagina The first count is based on the initial penetration and the second count is based on the subsequent penetration.[1]
[1] Sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving – penetration of a person’s vagina, labia majora or anus by any part of the body of another person: s 5 Criminal Law Consolidation Act 1935.
The complainant also said that immediately after these acts of intercourse had occurred she had said that she needed to go to the toilet. She said that she said this in order to get out of the room. She said that when she went to bed that night the accused came into her bedroom to say goodnight and gave her what she described as a kiss on the lips of a “boyfriend and girlfriend type”. She said that on the following day she and her brother asked the accused if they could go to a shop and he responded by saying that if they sat on his lap he might allow them to do so. She said that she tried to avoid the accused as much as possible for the balance of her sojourn at Gladstone and that the accused kissed her in the same way on a couple of further occasions when he was saying goodnight to her.
The accused denied the offences when he was interviewed by police about five months later. He gave evidence on oath and repeated his denials. He denied that he kissed the complainant in the manner which she described and he denied the conversation about the shop. His wife also gave evidence in the defence case and both he and his wife said that the complainant did not give the appearance of trying to avoid him at anytime during her visit and they both said that the second week of the school holidays was spent at Arno Bay. The complainant has no recollection of going to Arno Bay.
Evidence of complaint
At the end of the school holidays the complainant and her brother returned to Renmark. Arrangements were ultimately made for them to stay with their grandmother and the accused over the Christmas holidays. According to Ms Bryant, these arrangements were first discussed before the school holidays when the offences were said to have taken place and ultimately confirmed in about November 2005 a month or so after the offences are said to have taken place.
After the complainant and her brother returned to Renmark there were a number of telephone conversations between the complainant and her grandmother and the accused. In some of these conversations the complainant said she was looking forward to going to stay with her grandmother and the accused over the Christmas holidays.
The complainant said that “about a school term” after the two acts of intercourse had taken place she had told Ms Bryant that the accused had “touched me where I bleed”. Ms Bryant said that some time during the school term immediately following the school holidays when the offences are said to have taken place, she had spoken to the complainant about the complainant undergoing counselling about any problems which she might be experiencing arising out of the death of her father or the situation with her mother. Ms Bryant said that the complainant was slightly concerned about the prospect of counselling and told her that she had a big secret but did not know if she could talk to her about it. Ms Bryant said that she reassured the complainant whereupon the complainant told her that the accused “touched me in the wrong places where I bleed”. She went on to say that the complainant expanded on this by saying that she had been sitting on the accused’s lap, that he had put his hand down her pants, that she had tried to slide off, that he had asked her if she liked what he had done and that she had said she did not, whereupon he told her not to tell anybody.
There was no further contact or telephone calls between the complainant and her grandmother and the accused after the complaint emerged.
Issue and principles
The offence of unlawful sexual intercourse with a person under the age of 14 is established by proof of penetration of the complainant’s vagina by any part of the accused’s body, no matter how slight the penetration might be, and by proof that the complaint was aged less then 14 years at the time of penetration.
There is no dispute that the complainant was aged less than 14 years at the relevant time. Her evidence that the accused introduced about 1.5cm to 2cm of his finger or fingers into her vagina on two occasions during the one episode while she was sitting on his lap is clear and unambiguous. The issue is thus whether the prosecution have satisfied me beyond reasonable doubt that the complainant is both truthful and reliable in the essential aspects of her evidence.
There is no corroboration of the complainant’s account, not that any is required either as a matter of law or as a matter of practice, and the case is thus one that is often referred to as a case of oath against oath.
I commence by directing myself as to the presumption of innocence, the onus of proof, the burden of proof and the need to consider each count separately. Arising out of the onus of proof, I direct myself that the accused bears no onus to prove anything whatsoever. Although it might be regarded as unnecessary, out of an abundance of caution I warn myself against engaging in any form of propensity reasoning.
Submissions and evaluation
The complainant was a compelling witness. She gave her evidence in a calm, matter of fact manner. She gave no indication that she was exaggerating and there was nothing in her evidence which seemed inherently implausible. All of the criticisms which were made of her and her evidence were answerable by reference to her age at the time the acts of intercourse are said to have occurred, the time which has since elapsed and to her current age. Some of these criticisms seem to assume that her evidence and her behaviour after the event are to be assessed as if she was an adult and this simply cannot be so.
Counsel for the accused pointed to a number of inconsistencies between the complainant’s evidence and what she said when she was interviewed by a police officer in February 2006. The significance to be attached to any inconsistencies is a matter of fact and degree depending on the circumstances of the case.[2]
[2] Driscoll v The Queen (1977) 137 CLR 517 at 536-537.
All but perhaps one of these inconsistencies were of the kind that will almost inevitably arise in cases such as this where a relatively young witness is asked to recall events of some years ago. Both individually, and in combination, I regard these inconsistencies as inconsequential and as having no impact whatsoever on the credibility or reliability of the complainant and I do not think that it is necessary to consider them one by one.
However, there is one inconsistency to which specific reference should be made. During her interview the complainant said that immediately before the acts of intercourse took place the accused had put his hand into her pants beneath her navel without actually touching her vagina. The complainant did not mention this third intrusion of the accused’s hand into her pants during her evidence in chief. However, given the time that has elapsed since the interview, she could easily have forgotten this particular detail and I regard an inconsistency of this kind as hardly surprising and, in my view, it does not impact on her credibility or reliability regarding the essential aspects of her evidence.
The complainant said that she did not in fact need to go to the toilet after the acts of intercourse had taken place and counsel for the accused submitted that this demonstrated that she was prepared to lie to serve her own purposes. The fact that she was prepared to make up an excuse to leave the room immediately after the acts of intercourse had occurred in order to serve her own ends is both unsurprising and of an entirely different character to a false allegation of intercourse and does not, in my view, make it any the more likely that she might have fabricated her account of intercourse.
Counsel for the accused also submitted that it is inherently improbable that the accused would have perpetrated the acts of intercourse in such close proximity to his wife and to the complainant’s younger brother without any previous indecencies or grooming having taken place. The difficulty with this submission is that there is no such thing as categories of behaviour into which the allegations in a particular case must fit in order for them to be inherently plausible. The fact the accused took a significant risk does not of necessity make it any the less likely that the offences occurred. He might well have made the decision to interfere with the complainant on the spur of the moment in the belief that she would not understand what he was doing and therefore would not complain. He might also have believed that the complainant’s body would obscure his wife’s view if he used his right hand if she happened to turn her attention away from the television and he might well have thought that the audio from the television would drown out what he whispered to the complainant.
Counsel for the accused pointed to the wife’s evidence that the complainant did not appear to be avoiding the accused and submitted that this tended to contradict the complainant’s evidence. With regard to this submission, and given her age, if the acts of intercourse had in fact taken place the complainant would have found herself in a very confusing position and the possibility that she did not want to make her avoidance of the accused look obvious for fear of attracting unwelcome attention to herself cannot be overlooked. Counsel also pointed to some evidence from Ms Bryant that the complainant had told her that she had enjoyed herself with the accused and her grandmother and submitted that this is entirely inconsistent with the behaviour that would normally be expected if she had in fact been subjected to acts of intercourse as she claimed. Again, the difficulty with this submission is that it assumes that individuals will act in a particular way in particular situations and the reality might well be that the complainant could have said what she did because she thought it was expected of her and to prevent attracting any attention to herself.
Much the same can be said about the evidence of the telephone calls and the complainant saying that she was looking forward to returning to Gladstone. Again she could well have been saying what she thought was expected of her.
It follows from all this that in my view, there is nothing intrinsic to the complainant, her evidence and the evidence of complaint which calls the credibility or reliability of the complainant into question.
Turning to the evidence of complaint. As the information was filed after 23 November 2008, s 34M Evidence Act (1929) applies to the conduct of the trial.[3] That section provides as follows:
[3] R v Seigneur (2009) 103 SASR 207.
34M—Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii) as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
"complaint", in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
"initial complaint", in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The evidence of complaint I have outlined above was admitted accordingly and, in conformity with s 34M, I direct myself that the complainant’s conversation with Ms Bryant provides the complete picture of how the complaint came to light thus providing the context in which the question of whether what she said by way of the complaint has the capacity to demonstrate consistency on her part. I also direct myself that the evidence of complaint does not provide anything by way of independent evidence that that which was complained about actually took place.
Counsel for the prosecution submitted that the complaint must have proceeded from concerns experienced by the complainant about the prospect of returning to the accused’s home for the Christmas holidays, that her concerns must have originated in something that had happened during the previous visit and that the evidence of complaint thus had the capacity to demonstrate consistency on her part.
As against this, counsel for the accused submitted that the complaint could well have been false and could well have been the product of the complainant being told that she was to remain in foster care for another 12 months. As I have said, the complainant was in foster care at the time the offences are said to have occurred. In early September 2005 she was advised by her caseworker that she would be remaining in foster care for a further 12 months. She said that notwithstanding that she loved living with Ms Bryant she became very upset by this. She said that while she was living in foster care she wanted to live with her mother and she said that her mother was her world. It was put to her in cross-examination that she had fabricated her account of intercourse in order to attract attention in the hope that this would lead to her going back to live with her mother and she denied it. Ms Bryant said that the complaint emerged shortly before the complainant was due to undergo counselling. On the basis of this evidence counsel also submitted that the complainant might have become emotionally unstable and fabricated her account of penetration by the accused.
It was not suggested to the complainant in cross-examination that the impending counselling had in some way led her to fabricate her account of intercourse. This suggestion should have been put. However, it would have been astounding if the complainant had agreed with any suggestion that she had been influenced to fabricate because of the impending counselling however, I must nonetheless proceed on the basis that if this suggestion had been put, then she might well have given an explanation as to why the forthcoming counselling had no influence on her.
In any event, and bearing in mind that children and adolescents can sometimes fabricate for the most illogical of reasons, I am of the view that her apparent temperament is such that it is highly unlikely that she might have fabricated for either or both of the reasons suggested.
In this regard, it is well settled that the inability of an accused to point to a motive for a complainant in a sexual case to fabricate cannot be used in aid of proof of the prosecution case and I direct myself accordingly.[4]
[4] Palmer v The Queen (1998) 193 CLR 1.

What significance is to be attached to the evidence of complaint? A child in the position in which the complainant found herself would be highly likely to be confused about what, if anything, to do, and concerned that the making of a complaint might have unpleasant repercussions. Indeed, the way in which the complainant initially raised the topic with Ms Bryant suggests that this was so in this case. It is therefore not surprising that the complainant did not complain until she did and to whom she did. On its face the evidence of complaint thus demonstrates consistency on the part of the complainant and it is what one might have expected her to say if her concerns about returning to Gladstone were real. However, I must bear in mind that the evidence in no way amounts to independent evidence of truth of that which was asserted and that my finding that the evidence of complaint demonstrates consistency on the part of the complainant does not make findings of guilt inevitable.
The accused and the defence case
As I have said, the accused was interviewed in February 2006. As I have also said he denied the allegations of intercourse and this amounts to “some evidence” of the facts he asserted.[5] The interview was videotaped and it was played during the course of the evidence. The accused’s demeanour both during the interview and while giving evidence was unexceptionable. He gave his evidence in a forthright manner. He withstood cross-examination well and he said nothing during the interview or during his evidence which tended to undermine his denials.
[5] Spence v Demasi (1988) 48 SASR 536, R v H, ML [2006] SASC 240.
The accused has a conviction for driving under the influence of alcohol. He has no other convictions. He performs voluntary work for a local hospital. He did not adduce any evidence of good character.
Ordinarily a trial judge is not obliged to give good character directions but may give such directions in his or her discretion. In exercising this discretion and in determining the nature and extent of the directions to be given, the judge is required to evaluate the probative significance of the evidence relative to the accused’s propensity to commit the crime charged and the accused’s credibility.[6] Where the evidence does little more than establish a lack of previous convictions, a trial judge may give such modified good character directions as are appropriate to the circumstances of the case.[7]
[6] Melbourne v The Queen (1999) 198 CLR 1.
[7] R v Baker (2000) 78 SASR 103.
A conviction for drink driving has little bearing on either the accused’s propensity to commit offences of the kind alleged or on his credibility. In the circumstances, I will direct myself that I can take the accused’s otherwise good record into account in considering whether it is likely that the accused would have behaved as alleged but I will not give it as much weight as I would have accorded to a completely unblemished record.
Conclusion
As I have said, the complainant was a compelling witness, there is nothing intrinsic to her or her evidence which casts doubts on her credibility or reliability in essential respects and the evidence of complaint does demonstrate a degree of consistency on her part.
The accused was also a good witness. His evidence, and the way he gave it, creates some residual doubt in my mind. If the standard of proof was on the balance of probabilities I would have had no hesitation in convicting. Indeed, I think it is highly probable that the accused engaged in the two acts of intercourse described by the complainant. But highly probable is not enough. Accordingly, I cannot be satisfied beyond reasonable doubt that the accused is guilty as charged.
I enter a verdict of not guilty on each count.