R v Bushnell
[2015] SADC 139
•20 October 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUSHNELL
[2015] SADC 139
Reasons for the Verdict of His Honour Judge Barrett
20 October 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with Persistent Sexual Exploitation of a Child. The complainant is a six year old girl. The information alleges eight particulars of sexual offending.
Held: The accused is guilty of the charge. All but one of the particulars are proved. One particular alleging Unlawful Sexual Intercourse (particular (g)) is not proved but the act found proved is instead an act constituting an indecent assault.
Evidence Act 1929 s 9, s 34CA, s 34P, s 34R; Criminal Law Consolidation Act 1935 S 58, referred to.
The Queen v Landmeter [2015] SASCFC 3; R v Soteriou [2013] SASCFC 114; Singleton v Police [2009] SASC 41; R v Harkin (1989) 38 A Crim R 296; Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 ; Robertson v Samuels (1973) 4 SASR 465; A-G v Huber; Ex parte Daniels (1971) 2 SASR 142; R v Drago (1992) 63 A Crim R 59, considered.
R v BUSHNELL
[2015] SADC 139
The accused, now just 47, is charged with persistent sexual exploitation of the 5 to 6 year old daughter (“M”) of a woman with whom he was having a sexual relationship. The two adults never lived together. The child’s parents separated in about October 2012. The prosecution case is that from about October 2013 until May 2014 the accused would regularly have the girl staying alone with him at his house, usually every second weekend, when she did not spend the weekend with her father. The prosecution case is that he committed numerous sexual offences against her. He committed acts of gross indecency. He swam with her naked in his spa (particular (a)) and they would shower together (particular (b)). He caused her to touch his penis on multiple occasions (particular (e)). On multiple occasions he would indecently assault her by touching her on the bottom (particular (c)) and vagina (particular (d)). He touched her on the anus with his fingers on one occasion (particular (h)). He committed two acts of unlawful sexual intercourse by inserting his fingers into her vagina on multiple occasions (particular (f)) and inserting his penis in her vagina on one occasion (particular (g)).
The defence case is that the accused committed no such acts. The accused gave evidence. He said that he loved the girl and came to see himself as a surrogate father. He conceded that he did on very few occasions allow her to shower with him and sleep with him but nothing of a sexual nature ever occurred. He agrees that the girl did stay overnight with him alone but the occasions were not regular or fortnightly as the prosecution alleges.
The prosecution case relies almost exclusively on the unsworn evidence of the complainant M.
M gives unsworn evidence
M’s examination-in-chief consisted entirely of three out-of-court statements made by her pursuant to s 34CA of the Evidence Act. That evidence was unsworn. She was cross-examined and re-examined in court. The evidence in court was also unsworn. I permitted M’s evidence to be given in that fashion after conducting an enquiry pursuant to s 9 of the Evidence Act. I, myself, spoke to her while she was in the remote evidence suite. Before the trial another judge had made vulnerable witness orders permitting her to give evidence from that location, in the presence of a court companion, and while the court was closed.
Having spoken to M I made the following findings pursuant to s 9:
She did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence (sub-s (1)(a)); and
She understands the difference between telling the truth and telling a lie (sub-s (2)(a)).
Neither of these findings was opposed by the accused.
Having made these findings I told M it was important for her to tell the truth if she were to give evidence (sub-s (2)(a)(ii)). M told me she would tell the truth (sub-s (2)(b)). The accused accepted that both these requirements had been carried out.
Before I leave s 9, Mr Algie SC for the accused, asked me to warn myself of the need for caution in determining whether to accept M’s unsworn evidence and the weight to be given to it (sub-s (4)(b)). I have borne that warning in mind. The need for the warning arises from the fact that the evidence is unsworn and the reasons why that is so. The evidence is unsworn because M does not understand the obligation entailed in giving sworn evidence.
Out-of-court statements pursuant to s 34CA
I conducted the s 9 enquiry before I turned my mind to the requirements of s 34CA. On a voir dire the prosecution tendered the disks of three statements M had given. She was interviewed by a clinical psychologist, Ms Sarah Luscombe, at the Child Protection Services on 22 May and 28 July 2014. She was interviewed by Detective Brevet Sergeant Karen Brumpton on 10 October 2014. Transcripts of the three interviews were tendered on the voir dire. I should say that, with the agreement of both counsel, I watched about half of the first interview in court to gain some familiarity with M before I spoke with her myself for the purposes of the s 9 enquiry. I watched all three interviews in court before making the determinations pursuant to s 34CA.
I sought to comply with s 34CA. M is aged seven. She is thus a young child (s 4) and a protected witness (s 34CA(5)).
I was satisfied that M’s three statements were of sufficient probative value to justify their admission (s 34CA(1)(a)). The accused did not suggest otherwise.
Mr Powell for the prosecution indicated that M would be available to be called to give evidence (sub-s (1)((b)(i)).
I gave permission for M to be cross-examined on matters arising from the interviews (sub-s (1)(b)(i)). In that regard I invited Mr Algie to prepare a list of topics upon which he sought to cross-examine M. I invited him to confer with Mr Powell about that list. That having been done, Mr Powell indicated he had no objection to the suggested topics. I granted permission for all of the five topics Mr Algie then submitted to me. I gave that permission because I was satisfied that cross-examination on those topics was likely to elicit material of sufficient probative value (sub-s (2)).
Having permitted the examination-in-chief of M to be led by way of the three statements, those statements may be used to prove the truth of the facts there asserted (sub-s (3)).
Upon making findings pursuant to s 34CA the three disks were tendered as exhibits in the trial. The transcripts were marked for identification. With the agreement of counsel several corrections were made to those transcripts.
Background
The accused is now 47. He has three children; a daughter aged 25 and two sons aged 17 and 14. It appears those children are from an earlier relationship, or relationships, which were not disclosed in court. L, the younger of the two sons, lives in Queensland. He visits the accused two or three times a year during school holidays. M’s mother TA is 33. M is her elder child. She has a son, C, who is 13 months younger than M. The son has behavioural problems. Until about October 2012 TA lived in Henley Beach with the two children and their father, BM. In October the couple separated. TA went to live in Mt Barker, but not in the same house as the accused, who also lives in Mt Barker. The father, BM, remained in the former matrimonial home in Henley Beach. Thereafter the children went to stay with their father each alternate weekend.
It is common ground between TA and the accused that they met online. They were connected by a mutual acquaintance who ran a cat shelter. TA and the accused both have cats. It appears TA had many other pets as well. TA says that the couple met face to face in early April 2012 and commenced a clandestine sexual relationship before she separated from M’s father. The accused disputes this. He agrees they had met before October 2012 but he says the sexual relationship did not begin until TA separated from BM and moved to Mt Barker. On that topic I prefer the evidence of TA. The existence of a clandestine sexual relationship is not, I think, something she would have admitted if it were not true. What is common ground between TA and the accused is that the accused was not willing to regard TA as his partner. That is because he was still in a 10 year relationship with his partner R. The accused said he made that clear to TA. He agreed he used to refer to their relationship as “friends with benefits”. They had a sexual relationship but nothing more. They never lived together.
It is common ground between TA and the accused that the accused did not meet TA’s children until they moved to live in Mt Barker. TA lived in two houses successively in Mt Barker, the first from about October 2012 to October 2013. She continues to live in the house she moved into in October 2013.
The second address is next door to a woman called EW who worked at a local supermarket. Through her work she came to recognise the accused as a customer and came to know him to some extent. She got to know TA as a neighbour about a month or so after TA moved in next door. She became aware of the relationship between TA and the accused.
EW was called by the prosecution to give evidence which was the subject of a discreditable conduct notice. The accused took objection to the admission of the evidence of EW. It was agreed I should receive her evidence de bene esse then rule upon it in my judgment. I will turn to that question shortly.
I say something about the relationships between the accused and TA and the accused and M. Although the relationship with both extended until May 2014 I will deal first with the period before M started staying overnight at the accused’s house. As I have said the accused was introduced to TA’s children in about October 2012. I find, contrary to the accused’s evidence, that he and TA began their sexual relationship somewhere between April and October 2012. I infer from the evidence that sexual relations occurred about fortnightly at the accused’s house. TA said she generally only stayed overnight at the accused’s house one night at a time, usually Fridays. The accused continued his relationship with his partner R, who lived elsewhere.
It is clear that the accused had contact at other times with TA and the children during the 12 months or so between October 2012 and October 2013. TA was a single mother. She did not drive. Her father appears to have driven up to Mt Barker from his home in Adelaide to transport the children to and from school. The accused got to meet both TA’s parents. The accused is a musician who appears to be relatively unemployed following an accident which has resulted in him receiving sickness benefits. He said that he suggested to TA that he collect the children from school to save her father making two return trips each day. That offer was accepted. While the accused collected both children from school, he himself said that he bonded with M in a way that he did not with her younger brother. The accused said he found the brother’s behaviour difficult. TA said that her son has a diagnosis of dyslexia. TA said that the accused would not let the son stay at his place because he was worried that the boy might break his ornaments and stress his cats. The accused confirmed that, by which I take him to mean that when he started having M stay overnight at his place, the boy never stayed there. The accused said that he did not mind the boy playing in the swimming pool but I take that to be during daytime visits.
The accused said he developed a love for M which he said was reciprocated. Despite having a daughter, now aged 25, the accused said that M “was like the daughter I never really had”.[1] He said he came to feel very paternal towards her. He became protective. He felt sorry for her.[2] He said TA’s house was filled with pets. He said he noticed TA would not sign M’s school reading assignments. He took it upon himself to read to her and to sign the forms. TA agrees that the accused did this. She sent him a text message thanking him for helping M advance a level in reading.[3]
[1] T125.
[2] T125.
[3] Text D11.
The accused spoke in detail about how M would run to him when he collected the children from school. He said other parents thought he was her father. “We were proud of that”.[4] M called him “Chris Bear”. She made drawings for him. He said he kept them all. A number were tendered on his behalf.[5] M invited him to the school Christmas Pageant in 2013 and to a Sports Day in 2014. She invited him to a grandparents and special friend’s function which was to have been held on 20 May 2014.[6]
[4] T147.
[5] Exhibit D12.
[6] Exhibit D9.
The accused said he paid a substantial number of the veterinary bills incurred by TA for her pets. He produced a vet’s summary of accounts for the period from 28 December 2012 to 2 May 2014 totalling just over $2,000. TA said she paid for some of those consultations but she acknowledged that the accused paid a substantial number.
M’s birthday is in October. She turned 6 in 2013. It is agreed the accused took M to Cirque Du Soleil for her sixth birthday. TA says that the accused appeared to become closer to M after that occasion. She says that M began staying overnight at the accused’s house from the school holidays in October 2013. The accused’s son, L, from Queensland, was staying with the accused during those holidays. TA said that the accused asked her if M could stay over at his place while his son was there. She agreed, and that is when M’s overnight visits started.
The accused agrees that his son stayed with him for the October school holidays in 2013 and that his son was introduced to TA and the children at about that time, but he says that M did not start staying overnight at his place until the Christmas school holidays in December 2013/January 2014 when L was staying with him again.
There were other differences between TA and the accused about those stayovers. TA said they were for most of the alternate weekends from Friday evenings at around 7pm to Sunday afternoons around 4pm.[7] The accused said they were only from Saturday lunchtime until Sunday, that is only one night, except for one occasion when L was staying, and that was for two nights.[8] TA said the stayovers were virtually every fortnight. The accused denied that, saying, first, that it was not more than twelve[9], then nine, then eight or nine. I note that if, contrary to TA’s evidence, these stayovers did not start until December 2013, then the stayovers occurred over a five to six month period. The last visit was on Saturday 3 May 2014 when the police removed M from the accused’s house. If the stayovers were as many as twelve in six months, then that would be one each fortnight. I find that the stayovers were quite frequent when they began. I can make no finding about whether they started in October or December, or whether they were for one or two nights each.
[7] T76.
[8] T145-6.
[9] T144.
Before dealing with the disputed evidence about the charged acts, I deal with two pieces of evidence which bear on that dispute. They are evidence of complaint by M to her mother, and evidence of uncharged acts from the mother’s neighbour EW.
Complaint
The first particularised act or acts of sexual exploitation is, or are, swimming with M in a spa whilst she was naked (particular (a)). In her first statement, M said that sometimes she would be in the spa while naked.[10] She said the accused would wear his jocks. She said it was her idea to be naked. She said it felt nice. She said she and the accused had a good time in the spa. She described how they would lay in the water on their backs with their feet in the air.
[10] Exhibit MFI-P1, pages 6 to 8.
TA said that on an occasion after her daughter started staying over at the accused’s house she told her that she and the accused had had a spa while both were naked and that the accused had told her that she should keep it a secret.[11] TA said she sent a text message to the accused asking him if he had had a spa naked with her daughter. While I allow for the possibility that there is some ambiguity about whether that question was directed to whether the accused, or M, or both were naked, the accused replied “yes”. TA says she again took up the topic with the accused face to face a day or two later. She said the accused apologised and said it would not happen again. TA was asked in examination-in-chief what she said to the accused about his response. She said “I just questioned why he did it, and more to the point, what would happen if her father had found out”.[12] TA’s response suggests that she was inclined to overlook the matter, and seemed more concerned about what the father’s response would be if he found out.
[11] T76.
[12] T77.
The accused gives a different account of the matter. He says that he was never naked in the spa or pool with M. Despite the mother’s evidence of M suggesting otherwise, M herself says in her first statement that the accused wore his jocks in the spa. That topic was not further explored in the later interviews.
Whereas M gives a rather detailed account of her being naked in the spa, the accused says that there was only one occasion on which she was naked. On one occasion, after coming back from the beach, she complained of sand in her panties or bathers. The accused suggested she quickly take down her pants to wash away the sand but she should put them back on again before she got out of the pool. Notwithstanding the innocuousness of that incident, the accused agrees he told M not to tell anyone.[13] He said he did that because the incident might have sounded inappropriate.[14]
[13] T173.
[14] T174.
When it was put to the accused in cross-examination that he had admitted in a text to TA being naked with M in the spa, he said, in a rather discursive answer, that he had no recollection of an exchange of texts with the mother on that topic.
I regard the evidence of M’s report to her mother of nudity in the spa as evidence of complaint pursuant to s 34M of the Evidence Act. I think it is sufficient that the account refers to only one particular of sexual exploitation but of course it can only show supportive evidence of consistency in respect of that particular allegation. The complaint cannot be used as evidence of the truth of its contents.
However, TA’s evidence of her exchanges with the accused by text and face to face, amount, in my view, to an admission by the accused of M being in the spa naked on numerous occasions as she says, rather than the single innocuous sand washing incident he asserts. The accused does not himself suggest that he explained the incident to TA as he now explains it in court. TA did not report such an explanation. TA asserts that when she asked the accused whether, to use a neutral expression, there had been nudity in the spa, he admitted it and apologised. I leave aside the question of whether the accused admitted that he himself was naked. I find however that he admitted to TA that M had been naked in the pool or spa on more than one occasion.
Uncharged acts
TA’s neighbour, EW, gave evidence of noticing three incidents of the accused touching M inappropriately. She said they occurred when she visited TA. The incidents occurred in early 2014. She said the first was something she saw in TA’s kitchen. M was sitting on the accused’s lap. He had his hand on her upper thigh in such a way that the tips of his fingers were in between her legs.[15] The other two incidents were occasions when she noticed the accused tap M on the bottom saying that she had a sexy little bottom.[16] This too happened in TA’s house.
[15] T102-3.
[16] T103.
In examination-in-chief EW was asked if she ever spoke to the accused about his relationship with M. She said she did. She said she had a conversation with him about his spoiling her with treats which TA, as a single mother, could not replicate for her other child. She said the accused replied “That is a special relationship that [M] and I have”.[17] The accused admits such a conversation took place.
[17] T104.
In cross-examination EW was asked whether she had ever said anything to M or the accused about the inappropriate touching she claimed to have seen. She said she had not.
She was then asked if she had ever said anything about it to the mother. She said she had. She said she told the mother that she thought the touching on the thigh was inappropriate. TA replied “That is what he was like”.[18]
[18] T105.
So far as the touching was concerned the accused said that although M did sit on his lap at times, he never touched her in the way that EW had said. He had only ever held her so as to secure her from falling. He denied the two tapping on the bottom incidents.
In the light of the decision in The Queen v Landmeter [2015] SASCFC 3, particularly at [18]-[35], there might be a nice question about whether, in a case where persistent sexual abuse is charged, incidents of indecent assault such as those EW speaks of should be regarded as uncharged acts within the meaning of s 34P of the Evidence Act. However the prosecution has filed a discreditable conduct notice setting out that evidence and it is not suggested the evidence should not be required to meet the requirements of s 34P and 34R. I therefore turn to those sections.
The prosecution seeks to lead the evidence to demonstrate that the accused had a sexual interest in M. The prosecution case is that, in EW’s presence, the accused has, perhaps unintentionally, disclosed that sexual interest by the way in which he held M on his lap and the casual way he tapped her on the bottom making the sexual remarks. It is necessary that that evidence comply with the provisions of s 34P. The section is not easy to interpret.
As Vanstone J observed in R v Soteriou [2013] SASCFC 114, particularly at [38], where the uncharged acts are led to establish a tendency or propensity, the permissible and impermissible uses of that evidence are hard to separate. Soteriou was a drug case, but the principles discussed there are apposite here. With qualifications, s 34P permits the admission of propensity evidence, yet sub‑s (1) provides that the suggestion that, by reason of the discreditable conduct, “the accused is more likely to have committed the offence” is an impermissible use.
There are further difficulties. Sub-section (2)(a) requires that such evidence may only be admitted if the probative value of the propensity evidence substantially outweighs any prejudicial effect. Sub-section (2)(b) provides that it must be of strong probative value. Sub-section (3) provides that the permissible and impermissible uses must be able to be kept sufficiently separate. If the evidence is admitted under s 34P, the warnings set out in s 34R apply, even in a judge alone trial. I bear in mind that in Landmeter the majority judges observed that it is rarely helpful to discuss the topic of propensity where only one M is making allegations. Perhaps in this case “disposition” to a sexual interest in M is the more apt criterion.
At [39] in Soteriou Vanstone J reconciled the permissible and impermissible uses of propensity or disposition evidence. She adopted the approaches of Cox J and Kirby J respectively in Pfennig and KRM. The fact finder should not “condemn a man simply on his record” and “proof of one count is not taken, as such, as proof of another”. I respectfully adopt those descriptions as identifying the impermissible uses of the discreditable conduct alleged here.
I determine that the permissible use, that is, the accused’s evincing a sexual interest in M, substantially outweighs the impermissible uses just identified. I find the evidence has strong probative value. It demonstrates that the accused was so attracted to M that he was barely conscious that he was disclosing that attraction in front of EW and M’s mother. I believe I can keep separate the permissible and impermissible uses. The discreditable conduct does not absolve me from the obligation of finding the charged acts proved. Discreditable conduct does not prove the charged acts. It is simply a piece of circumstantial evidence in support of that proof. Evidence of a sexual attraction must be proved beyond reasonable doubt.
I have made the above determinations on the assumption that EW’s evidence is truthful and reliable. I now make findings of fact in that regard.
I accept EW’s evidence. She gave her evidence in a straightforward way. I find that she was sufficiently struck by what she saw the accused doing with M that she remembered it. I think her speaking to the mother about it reinforces her credibility. Mr Algie submitted that her failure to raise the matter with either the accused or M detracts from her credibility, but it is not difficult to understand why she might not raise the matter with either of them. The corollary of the adverse comment about failure to speak to the accused or M is that there is a positive comment arising from her speaking to the mother. The evidence of her speaking to the mother arose in cross-examination. The mother’s unconcern about the report of EW is consistent with the mother’s relative unconcern about her daughter telling her that she had been naked with the accused in the spa.
I do not overlook the accused’s evidence that, for reasons he could not understand, EW did not like him.[19] If true, that might of course, provide her with a motive to lie about him. Or it might be that her dislike arises from what she saw the accused doing with M. It might arise from her criticism of the accused that his spoiling M caused difficulties for the mother who could not spoil the son in the same way.
[19] T152.
I accept the truthfulness and accuracy of EW’s observations. I think her observations do tend to show that the accused had a sexual interest in M. I have already borne in mind the warning contemplated by s 34R(1), that is, the purposes for which the discreditable conduct evidence may and may not be used.
Substantive issues
The prosecution case is that M’s evidence of sexual acts in guileless, credible and reliable. In her three statements she speaks of each of the sexual offences particularised in the Information. She maintained those assertions during cross-examination. The complaint evidence demonstrates some consistency of conduct. The so-called uncharged acts suggest that the accused had a sexual interest in M. The medical evidence is not inconsistent with the offending occurring as M says it did. While there are no physical signs of sexual abuse, the doctor who examined her some two to three months after the alleged abuse said that she would not necessarily expect to see signs from the acts which are alleged, even the digital and penile penetration of the vagina. The prosecution case is that there is no demonstrated motive for M to lie. She cannot be mistaken.
The defence case is that none of the acts happened. While the accused may have been unwise to show overt affection for M, and unwise to occasionally shower with her and let her share his bed, the prosecution has failed to prove the sexual acts. M may not be mistaken in her allegations. She has possibly come to believe that they are true. Mr Algie suggested that it is instructive to trace the evolution of M’s accounts, paying particular attention to what her mother was saying to her. While no motive to lie can be perceived in the child, it is not for the accused to suggest one, much less to prove it. While it might not be perceived what has prompted the mother to suggest to her daughter that she has been sexually abused by the accused, that is what in fact she has done, or it is reasonably possible that that is what she has done. She has become convinced that the accused has abused her daughter and she has prompted her daughter to give accounts of abuse.
I will take up Mr Algie’s suggestion that I analyse the evolution of M’s account. I will examine the evidence in a chronological way.
It is an agreed fact that on Saturday 3 May 2014 Detective Karen Brumpton went to M’s house at 8.05 pm as a result of “information received”. Police then went to the accused’s house at 8.30 pm where M was alone with him. Police took her home. On 5 May police advised the accused that there was an investigation involving his contact with M. On 1 June he was arrested and charged with offences of prurient interest and two counts of indecent assault arising from M’s allegations. By then M had been spoken to by officers from Families SA and interviewed once by Ms Luscombe on 22 May.
On 7 August the accused was advised that there were further allegations by M. By then she had been further interviewed by Ms Luscombe on 28 July 2014. Later the accused was charged with persistent sexual exploitation with the present particulars. M’s final interview was with Detective Karen Brumpton on 10 October 2014. The above dates and the corresponding facts are all agreed facts.
Families SA interview
I will refer in this judgment to the statements of M as the first, second and third statements, being the ones taken by Ms Luscombe from Child Protection on 22 May and 28 July and the one taken by Detective Karen Brumpton on 10 October. However, in addition to those interviews, M was interviewed by what I understand were two women from Families SA on 5 or 7 May. I have seen no record of that interview. However M was cross-examined suggesting things she had not mentioned in that interview.
I am willing to accept, without more, that when Mr Algie put to her in cross-examination that she had not mentioned certain things in that interview, that in fact she had not. Normally of course, only answers are evidence, but I would have expected Mr Powell to object if Mr Algie had put something which was not correct. I therefore infer that, despite her saying that she thought she did tell them, she did not in fact tell them about the penile penetration of the vagina. She acknowledged that she did not tell them about touching the accused’s penis or digital penetration of the vagina or anus. Nor did she tell them about touching on the vagina.[20]
First interview on 22 May 2014[21]
[20] See cross-examination T61.
[21] Exhibit MFI P1A.
I turn to the first interview with Ms Luscombe on 22 May. At that time M was aged 6 years 7 months. She was just a week short of her seventh birthday at the time of the third interview, that is, the one with Detective Brumpton.
In the first interview Ms Luscombe sought to put M at ease, but at the same time she told her that it was important to tell the truth.[22] During that interview M told Ms Luscombe that she would go into the pool and spa at the accused’s place. She said it was fun. She said sometimes she would wear her bathers, sometimes her panties and sometimes she was nude. Ms Luscombe asked her to describe specifically what happened in the spa when she was nude. M described how both she and the accused would lean back and put their feet in the air. She said it felt nice. She said that it was her idea to be in the nude.[23] She said the accused would wear his jocks. The topic of being nude in the spa was not prefaced by any reference by Ms Luscombe to anything M had said to anyone beforehand. The topic was raised in non-leading questions which would have been appropriate for examination-in-chief.
[22] Exhibit MFI-P1A, p 3.
[23] p 8.
M also told Ms Luscombe that she would sleep in the accused’s bed. That topic was prefaced by Ms Luscombe saying that she understood that M had told that to “two ladies who came over to your house and talked to you about (the accused’s) house”.[24] I take “the two ladies” to be the officers from Families SA who spoke to M on 5 or 7 May. M agreed. She went on to describe how she would sleep with the accused in his bed. They would play “I Spy”. The accused would light a candle that smelt nice. M agreed that she had told the police (it is not clear who that was) that the accused had suggested that in bed she “could air out your bottom” by not wearing knickers.[25]
[24] p 8.
[25] p 11.
It was plain from M’s account of sleeping in the accused’s bed that it was at the time they went to bed in the evening, not, as the accused says, her coming into his bed in the morning when he woke her up by feeding his cats at 5 am.
Later in the interview Ms Luscombe revisited the question of what happened in the bed. M had told her that in the bed the accused would rub her on the back, buttocks, chest and stomach. She provided a diagram which also included the genital area.[26] She said that the touching on the genital area was “very good” and “really nice”.[27] The touching was “under the clothes”.[28]
[26] p 27.
[27] p 28.
[28] p 30 – Exhibit P4.
M also told Ms Luscombe that she and the accused would shower together.[29] She said that in the shower the accused would wash her back, stomach and legs. The washing included the genital area.[30] M also scrubbed the accused’s back and stomach.[31] She denied she ever touched the accused’s penis in the shower.[32]
[29] p 12 and following.
[30] p 15.
[31] p 16.
[32] p 22.
Thus, in this first interview, M told Ms Luscombe of the first two particulars of sexual exploitation, ie swimming nude (particular (a)) and showering (particular (b)). She also mentioned the accused touching her on the bottom, (particular (c)) and vagina, (particular (d)).
She denied particular (e), touching on the penis, and made no mention of particulars (f), (g) and (h), that is digital penetration of the vagina, penile penetration of the vagina and touching of the anus.
There was no suggestion in the interview with Ms Luscombe that M had spoken to her mother about these matters (except for the nudity in the spa on an earlier occasion). The only suggestion of earlier discussions is with what I take to be Families SA and/or police women. Those conversations related only to the topic of the accused sleeping with M in his bed.
M and her mother were cross-examined on the topic of discussions between then about sexual contact with the accused. However, in respect of each of them, they were only cross-examined to suggest that the mother had questioned her daughter about the allegations of particulars (e) to (h). There was no suggestion of conversations leading to the disclosures in the first interview. Of course the accused cannot know what conversations took place between the mother and daughter, so I do not suggest that defence counsel failed to put his case. There is however no evidence to suggest that the mother had suggested to M the disclosures that were made in the first interview on 22 May. The only conversations M had had on these topics were with what I take to be Families SA personnel or police officers.
It was put to M in cross-examination that she had gone to the accused’s bed when he woke her up by feeding his cats at 5 am. She agreed that was so,[33] but in re-examination she reaffirmed what she had said in the first interview, namely that she also spent the whole night there. In fact she said that she went to sleep with the accused every night when L was not there.[34]
[33] T53.
[34] T63.
It was put to M that the accused would normally wash her hair while she was in the shower and he was standing outside it with a towel wrapped around him. She agreed with that.[35] She also agreed that maybe one or two times she got into the shower while the accused was already in it.[36] In re-examination she said that the accused never got into the shower after her and they never got in together.[37]
[35] T54.
[36] T54-5.
[37] T64.
In cross-examination M agreed that there was an occasion when the accused told her to take her bathers off to remove some sand when she complained about sand in her bathers after being at the beach.[38]
[38] T56.
M agreed in cross-examination that the accused had advised her to come to bed without knickers to “air her bottom” when she had worms.[39]
[39] T57.
The prosecution case, as disclosed in M’s first interview, is that the accused swam frequently with her naked in the pool and/or spa, that he regularly showered with her, and slept overnight with her. In both the shower and the bed, he touched her indecently on the bottom and vagina. The prosecution case is that the first interview discloses particulars (a) to (e) inclusive, each with some frequency, and over more than three days. On that basis the prosecution case is that the accused would be guilty of the principal charge if the disclosures in the first interview were proved beyond reasonable doubt.
The defence case in respect of particulars (a) to (e), is that the accused only once saw M naked in the spa. That was the sand removing incident. He only showered with her once or twice, and then only washed those parts of her back and shoulders which she could not reach. She never washed him. M only slept in his bed from 5am on a few occasions when he woke her up feeding the cats. On those occasions he only came into contact with her twice, once when he scratched her back when she was itchy, and once when she kicked him accidentally.
While there was no evidence of the mother coaching M before this first interview, I should not, on that account, dismiss the allegation. Evidence of later discussions may inform what happened before the first interview.
Second interview on 28 July 2014[40]
[40] Exhibit MFI P2A.
I turn to the second interview. It was between Ms Luscombe and M on 28 July. I turn to the evidence of the mother speaking to M about sexual allegations before that interview. Before I do that however, I think I can take judicial notice of the fact that it is not uncommon for young children to disclose sexual abuse over time. They are sometimes embarrassed by the topic. They sometimes feel they are betraying adult perpetrators who are family members and who, in their eyes, have done nothing wrong. In fact, the perpetrators have been nice to them. Young children sometimes fear the adverse reactions of non-perpetrator parents and outside agencies such as police and welfare. For all these reasons many young children disclose sexual abuse in a piecemeal fashion.
In the second interview, some two months after the first, M told Ms Luscombe about sexual offending comprising particulars (e) to (h) inclusive. This time there was reference to discussions she had had with her mother. It is plain that disclosures to the mother had led to this second interview. At page 5 of the transcript, Ms Luscombe said she had heard that M had told her mother about things the accused had done to her which she had not mentioned in the first interview. M agreed. She said she had come to talk to Ms Luscombe about what more the accused had done to her. At page 6, Ms Luscombe referred to an occasion when TA was going through some pictures of the accused on a laptop, and later that night, M had told her about touching the accused’s penis. I reproduce the questions and answers on that topic.[41]
[41] Exhibit MFI P2A pp 6.1 to 8.3.
MMmm hmm.
SYour mum was going through some photos on her laptop and you saw a picture of Chris –
MMmm hmm.
SYeah and then later that night you were watching Frozen –
MMmm hmm.
SAnd you talked about some things that Chris did, with mum.
MMmm hmm.
SOk, did you tell mum what Chris did?
MYes.
SOk, and what did you tell mum?
MUm, I telled mum that, well mummy told me that he put, well, sh, she told me last, she just pointed her finger and she, and she pretended that was a willy and, and what sh, and then, then, she told, what, um, to, what, um, to do, what, she told me what did you do, um, to Chris, to Chris’s willy and, um, she put her and then she would put it, she, then she put, put and she and then I wiggle it around and mummy, and then she said “what else:, ah, that will be all.
SOk, Alright, so I’m just trying to understand what you just said [M].
MMmm hmm.
SSo you said something about your mum getting her finger and pretending it was a willy.
MYeah,
S Mmm hmm. Tell me more about that part.
MUm, ah, I don’t know, well, well she just put out, um, her second finger –
SMmm.
M And then she put, she, she put it and then I wiggle it around of that part when mummy told me.
SPardon.
MShe, she just wiggled around when she told me what to do.
SShe wiggled it and told you what to do.
MYeah and then I wiggled it and then –
SOh you wiggled it.
MYeah and then, then she, then she told me “what did she do to you?”
SShe said “what did he do to you?”.
MYeah.
SOk, alright, so mummy used her finger to try and work out what happened with Chris.
MYes.
SOk, alright. So, that’s what you told mum –
MMmm hmm.
SSo she got her finger and pretended it was a willy.
MYes.
SOk, alright, so did something happen with Chris’ willy?
MNo, I just wiggle it.
SJust wiggle it
MHe was just, he just liked it.
SPardon.
MHe just like it when I done it.
SOk, tell me everything about what you did.
MWell first I just wiggle it and hold it and just wiggle it first like that (uses hand to demonstrate) and that was all that I done, because he would like it.
SOk, so you wiggled it –
MMmm hmm.
SAnd he liked it.
MMmm hmm.
SWiggled his willy.
MYeah and he liked it.
S Mmm hmm, ok, so did you wiggle his willy one time or more than one time.
MMore than one time.
SOk, so tell me everything about the time you remember best when you wiggled Chris’ willy.
MI don’t know.
SSo how did it get started.
MAh, ah, he opened his jocks.
There was a further exchange on this topic from pages 12.8 to 13.5. I reproduce those.
S... Um, so just to make sure I understand about what happened with the wiggling of Chris’ willy –
M Mmm hmm.
SSo first he opened his jocks.
M Mmm hmm.
S And then you put it in because he wanted you to do it.
M Yes
S And he like it.
M Yes.
S And he wanted you to wiggle it.
M Yes.
SAnd you wiggled it like that ‘cause he wanted you to do it, um, and he was laughing and it happened in bed.
MYes.
SOk, sure, what happened next
MAnd, then, mummy told me, um, I just don’t know, I just don’t really know anything else.
SOk, so when you say mummy told you, um, you’re talking about when you talked to mum about it.
M Mmm hmm.
Ms Luscombe then asked M about something else she must have heard from the mother.[42]
SUm, is there any other touching that happened with Chris’ body or willy or anything that we need to talk about today?
MNo.
SNo. Ok, ‘cause I heard that you told mum that something else happened with Chris’ willy.
MMmm hmm.
SDid you tell mum that something else happened with Chris’ willy?
MI don’t know about that.
[42] pp 16.5 to 16.8.
She revisited that topic after leaving the interview room for a while. The mother was nearby. This exchange took place.[43]
[43] pp 19.2 to 19.9.
SSo, I’ve just got a few more questions for you [M] –
MMmm hmm.
SI was thinking about when you were in bed with Chris –
MMmm.
SYou said that his will touched your hand –
M Mmm hmm.
SDid Chris’ willy touch any other part of your body?
MNo.
SNo, ok, because I heard you told mum that something happened with Chris’ silly that hurt you.
M Mmm hmm.
SDid you tell mum that something happened with Chris’ willing that hurt you?
MUm, I don’t know.
SYou don’t know, mmm hmm, did something happen with Chris’ willy that hurt you?
MUm, I don’t remember.
Almost at the end of the interview there was this exchange.[44]
SOk. Right, is there any more talking that we need to do today: Is there anything else you need to tell me about Chris?
MMaybe.
SMmm, what else do you need to tell me about Chris?
MUn, I don’t remember.
[44] pp 22.8 to end.
Defence counsel cross-examined M about this allegation. I reproduce the cross-examination[45] and I also reproduce the re-examination.[46]
[45] From T58.1 to T58.18.
[46] T64 line 15 to line 35.
Cross-examination[47]
[47] T58 line 1 to T58 line 18.
QSee M, Chris didn’t get you to wiggle his penis did he.
AHe did.
QI suggest that's just not true.
AYeah, that's not true.
QDid your mother talk to you about Chris' penis or wiggling his penis.
AYeah.
QDid she suggest to you that you've touched Chris' penis.
AYeah.
QI mean, that was her idea; wasn’t it
AI think.
QWell, she pretended to make a penis with her hand by pulling her finger out, didn't she.
AYeah
QBefore your mother did that, had you forgotten about wiggling Chris' penis.
ANo.
Re-examination[48]
[48] T64 lines 15-35.
QNow I'll ask you a couple of questions about wiggling Chris' penis. Do you remember that Mr Algie said to you that you didn't wiggle Chris' penis; do you remember that he said that to you.
AYeah.
QNow did that happen or not.
AIt did happen.
QDid it happen once or more than once.
OBJECTION: MR ALGIE OBJECTS
MR ALGIE: I object to this. It is not proper re-examination. I gave her the opportunity to say if it happened and she said that it did.
HIS HONOUR: I allow the question.
QUESTION ALLOWED
AMore than once.
REXN
QDid it happen every time you stayed at Chris' or just some of the time.
ASome of the time.
QDo you know how many times that happened.
ATwo.
In my view the re-examination was permissible and necessary to clear up the ambiguity caused by M’s answer in cross-examination to the effect that the allegation was not true.[49]
[49] T58, line 5.
I am not sure what M means by that answer, given that in the preceding answer she had said that the accused had committed the act and the whole context of the cross-examination and re-examination was that it did happen.
The cross-examination elicits that the mother has spoken to M on this topic. The question is whether the mother has implanted a false allegation in her daughter. I would not conclude that she has done so only from M’s acknowledgement[50] that the allegation was untrue, and that she thought that it was the mother’s idea.[51] The questions at lines 9 and 11 are really quite sophisticated ones for someone of M’s age. The simpler questions at lines 1 and 16 elicit answers that confirm that the acts had occurred. The re-examination does likewise.
[50] T58, line 10.
[51] T58, line 12.
I turn to the evidence of the mother on the topic of coaching, with particular regard to coaching on the subjects of the second interview.
In examination-in-chief TA said that after the first interview her daughter started “to open up” to her about what the accused had done to her.[52] She said that a couple of weeks before the second interview M told her that the accused had put his fingers in her vagina and it hurt. She told her that she and the accused had lots of spas naked and showered together.
[52] T82-3.
TA was cross-examined about that.[53] She said that the conversation between her and her daughter about the touching on the penis occurred a few days before the second interview. TA denied that she had prompted her daughter. She said she had been told by the police not to ask the girl herself what happened and she had not done so. She said she had not told M what to do but she had asked her to show her what the accused had done to her with his penis. She said her daughter demonstrated a masturbatory movement on the mother’s finger.
[53] T92-4.
From Ms Luscombe’s questions at page 19.5 about having heard from the mother that the accused had done something with his penis, I conclude that there must have been some discussion about penetration between the mother and Ms Luscombe. When Ms Luscombe asked M about that she demurred – “... I don’t know”[54] and “maybe there was something else she needed to talk about”.[55]
[54] p 19.7.
[55] p 22.8.
Although it was never put to TA in as many words, I would have no doubt that after the first interview she had become convinced that the accused had sexually abused her daughter. If the contents of that interview had been passed on to her by Ms Luscombe she could hardly have thought otherwise. It may be that she did not scrupulously avoid discussing details of abuse with M, but that does not necessarily lead to the conclusion that she has planted a false story in the girl. I will return to an analysis of the girl’s account shortly. In the second interview she alleged particular (e), the touching of the accused’s penis. To Ms Luscombe she demurred about whether other acts had happened, although I think it is likely from Ms Luscombe’s later question in the interview that she had told her mother about some penetrative act or acts.
Third interview on 10 October 2014[56]
[56] Exhibit MFI P3A.
I turn to the third interview, the one conducted by Detective Karen Brumpton on 10 October, some two and a half months after the second interview with Ms Luscombe. In this interview M speaks for the first time of acts constituting particulars (f), (digital/vaginal contact multiple times), (g), (a single penile/vaginal act) and (h), (a single touching of the anus).
M speaks of those acts very early in the interview. In respect of conversations with the mother, M said[57] that she had told her mother about the acts “because she was asking me about it”. She said her mother asked “what were you doing ... with Chris in the bed?”. When asked why her mother was asking she replied “because she wanted to know about it”. She was asked how she felt about the accused now. She replied “Not very liking”.[58]
[57] pp 10 and 11.
[58] p 11.
M was cross-examined about conversations with her mother that preceded the disclosures of particulars (f) to (h). She was asked about that just after it was put to her that those acts did not occur. In each case she said they did. I reproduce the questions and answers on the topic of discussions with the mother[59]:
[59] T58 line 26-T59 line 1.
QDid you mother talk to you about that as well.
AYeah.
QDid your mother ask you if he put his penis in you anywhere.
AYeah.
QAnd did your mother ask you ‘Oh has he put his fingers in you’.
AYeah.
QRight. Before your mother asked you that, had you forgotten about the penis in you or the fingers in you.
AYeah.
QI see. So when your mother spoke to you about this that’s when you remembered.
AYeah.
In examination-in-chief of TA, Mr Powell sought to focus her attention on what M had said to her after the second interview and before the third.[60] TA described that conversation in these terms[61]:
[60] T84-5.
[61] T84 line 13 to T85 line 16.
QBefore that, did you have another conversation with M about the accused.
AYes, I did.
QExplain that occasion for us.
AShe came into me quite upset and I said to her ‘Do you want to talk about it, and she said ‘Yes, I do’. She told me about him putting his penis inside of her and also getting her to touch is penis. And they were naked in the spa and the like, showering and stuff like that.
QDid you say that she told you something about his penis.
AYes, she told me that he used to get her to touch is penis and she showed me on my forefinger.
QI want to ask you about, specifically, what M said; what language she used, what terms she used when she told you about those things.
ALike willy.
QWas that comment about his penis.
AYes,
QWhen it came to referring to his penis, did she use –
AWilly.
QWhen it came to her own anatomy what did she use.
AFront bum and back bum.
QWhen it came to her demonstrating, the contact she had with his penis, what did you do?
AI had my finer up like that (INDICATES) and she showed me with her hand what she did.
QCan you show me.
ASliding up and down (INDICATES), touching the head, yes, and stroking it as well.
QSo she slid her hand up and down on your finger.
AYes,
QOn your forefinger.
AMy forefinger, yes.
QDid she say anything to you or did you ask her about why she hadn’t told you about those things before. Because she was scared of me.
ADid you ask what she meant by that.
QShe was scared that I would yell at her because that’s what she was told that I would do if she didn’t tell me.
ADid she tell you who told her that you would yell.
QChristian Bushnell.
In cross-examination TA appeared to be saying that the demonstration with the finger occurred before the second interview rather than the third. The reliability of that answer may be affected by Mr Algie having prefaced his questions about the interview on 28 July by describing it as the third interview.[62] He did that because he counted the interview with Families SA as the first.
[62] T92, line 30.
When TA was asked specifically in cross-examination what was said before the third interview, she said simply that M had told her herself, and that she denied questioning her daughter. She said that she had been told by the police not to.
From TA’s evidence it is a little unclear what she was told by her daughter but I think two things are reasonably clear. I conclude that sometime before the second interview M told TA about some sort of penetrative activity. I say that because Ms Luscombe’s questions towards the end of the interview indicate that TA had told her that M had said something of the sort. Further, as I have already observed, M demurred about whether something else had happened to her that she had not yet told Ms Luscombe about.
The second observation I make is that I think it is likely that M told TA something more than she had done previously. That is really the only explanation for the third interview being conducted.
The defence submits that, taken as a whole, M’s evidence leads to the conclusion that TA has, despite her denials, planted a false story. M’s evidence about the finger demonstration is the high point of that contention.
I accept that, certainly after the first interview, and possibly earlier, TA had come to the conclusion that the accused had sexually abused her daughter. She might have been particularly angry about that in the light of the accused’s earlier apology about the nude swimming followed by the promise not to do it again. She might have thought that she herself had been foolish to rely on that apology.
I would not dismiss the possibility of TA being less scrupulous than she might have been about avoiding questioning M. It must be difficult for a parent to avoid doing so, notwithstanding the importance of obeying police advice not to.
However it is one thing to question a child about sexual abuse and another to implant in them a false story. I will turn to an analysis of M’s accounts to assess their credibility and reliability.
The evidence of the complainant
I have already found that M demonstrated some consistency of conduct by her report of the nude swimming. I found, not only that M’s report was of more extensive nude swimming than the single sand removal incident, but that the accused’s admission and apology relates to more extensive nudity than the single episode he admits in court. While M’s complaint is not admissible to prove the nude swimming, the accused’s confession to the mother is. I find that there was extensive swimming when M, at least, was nude. Nude swimming without a sexual connotation is not an offence. Without more, nude swimming does not make out particular (a) of the charge.
I have found that EW’s evidence demonstrates that the accused had a sexual interest in M. Of course people can have a sexual interest that they do not act upon, but I find that that sexual interest has the potential to provide the necessary criminal intent to make the nude swimming an offence.
I turn to M’s evidence. I bear in mind that none of her evidence was given with the sanction of oath or affirmation. That is because I concluded she did not understand what is entailed in giving evidence so sanctioned. Nevertheless she gave her evidence in a way that did not suggest guile, or animus towards the accused. In fact she readily agreed with Mr Algie’s suggestions that the accused helped her and was kind to her. She looked forward to going to his house. She said it was good fun. She agreed the accused had never hurt her or had done anything bad to her.[63] Yet every time it was put to her the charged acts had not occurred, she said they had.
[63] T45, T52 and T57.
There were particular aspects of her evidence that had the ring of truth about them. I agree with the submission of Mr Powell that she appeared guileless in the way she spoke about the nude swimming for example. She explained how much fun it was.[64] Likewise her descriptions of the touching in bed[65] and showering.[66] I find it implausible that she would give what really sounded like a happy account if it was all false and had been the subject of coaching by her mother. I do not think she has imagined the account or that she is in some way mistaken about it.
[64] Exhibit MFI-P1 pp 6-8.
[65] Exhibit MFI-P1 pp 10-12, 22-26, 27-34 and 36.
[66] Exhibit MFI-P1 pp 12-7 and 18-22.
M’s account in the first interview is of acts comprising particulars (a) to (d) inclusive. Each act occurred on multiple occasions. I think that it is clear from how she spoke that that behaviour occurred over weeks, or possibly months, rather than days.
Her account in the second interview is of acts comprising particular (e), the touching of the penis. Particular criticism is levelled at the mother for using her finger for illustration. However there are two aspects of M’s account of these acts which I think are unlikely to be the subject of coaching, imagination or falsehood. Quite spontaneously she volunteered that the accused “liked it”, “he just liked it when I done it”.[67]
[67] Exhibit MFI-P2 p 7.8.
The second aspect is how she described that activity starting “... he opened his jocks”.[68] “Do you want to wiggle me?” “and I said ‘maybe’”.[69] “He was laughing”[70] and when it finished” ... he put his jocks back up”[71]
[68] Exhibit MFI-P2 p 8.3.
[69] Exhibit MFI-P2 p 9.5.
[70] Exhibit MFI-P2 p 9.6.
[71] Exhibit MFI-P2 p13.8.
M did not speak about particulars (f) to (h) until the third interview, although, for reasons I have already mentioned, I think it likely she had said something to her mother about some penetrative activity. If she had been coached about that topic before the second interview, it is somewhat unusual that she did not mention it. Of course it is possible that she was reluctant to embark upon such falsehoods and did not do so until further pressed by the mother. However the third interview was two and a half months after the second. I think that time gap is a little more consistent with a gradual, fuller, truthful disclosure than with a false and coached disclosure. However I do not place great weight on that last observation.
In relation to the allegations in the third interview, I note that M discriminated between the fingers used for the penetration of the vagina (3) and the anus (1). She even reiterated three fingers for the former when Detective Brumpton mistakenly thought she had said two.[72]
[72] Exhibit MFI-P3 p 7.2
The defence case
Before finally evaluating M’s evidence I turn to the defence case. The accused gave evidence. He disputed all of M’s allegations of sexual offending. While he admitted aspects of the swimming, showering and sleeping, he gave a quite different account of each from that alleged by M. There was only one innocuous occasion on which M took off her bathers. That it was to remove sand. There were only two occasions of showering together. The accused only washed M’s back where she could not reach herself. The only occasions M ever came into his bed were when she was woken up at 5 am by his feeding the cats. On those occasions, he had no physical contact with her at all apart from the single back scratch and the accidental kicking. As far any of these activities are concerned, there were never any sexual connotation. None of the overtly sexual acts ever occurred.
In my assessment the accused was an unsatisfactory witness. His explanations, particularly about the swimming, showering and sleeping, all had about them a “confess and avoid” flavour. I explain what I mean. I think the accused was well aware that M had told her mother about the nude swimming, despite his asking her not to. TA confronted him. I find that he admitted generalised nude swimming, apologised for it and said it would not happen again. I do not think any of this exchange with the mother would have occurred if all that had happened was the single innocuous sand removal incident. In my view he confessed in court to the single incident to avoid the implications of the more extensive nude swimming. I think it likely that he was nude himself, but I do not make a finding to that effect.
Likewise, in long discursive answers,[73] the accused explains how, on a couple of occasions only, he had been in the shower with M for the purpose of washing her hair and washing her back. His explanations for the rarity, and the necessity, of his being in the shower naked with this girl are implausible. He has, in my view, confessed the few occasions to avoid the implications of regular joint showering.
[73] T161-5.
His explanations for the early morning bed sharing, and twice only physical contact, are of the same colour. Despite the physical affection he showed M at other times, he never touched her at all in bed except once when he scratched her back and once when she accidentally kicked him. I do not accept his claim to naivety about his sharing his shower and his bed. This was with the daughter of a woman who, so far as he was concerned, was a “friend with benefits”. He professed to being unconscious of any perception of impropriety in those practices.[74]
[74] T172.
While I do not accept his claims to naivety, I do think that he was, to a degree, unconscious of disclosing this sexual attraction to M when, in EW’s presence, and that of the mother, he held M in a sexual way and touched her on the bottom while making sexually compromising comments. Those behaviours were sufficiently remarkable for EW to mention them to the mother, even if the mother chose to ignore them.
I say something about the accused’s manner of giving evidence. Mr Algie submitted I should not draw any adverse inference against the accused from what he described as an effeminate manner of speaking. I do not draw any adverse inference on that account, but I was struck by a certain childishness in the accused’s vocabulary. He referred several times to his “pussy cats” and his “bunnies”. However, without expert evidence I would not draw any adverse inference from that observation.
That said, I do not accept the accused’s denials. It is not of course for him to prove anything, but I find that his evidence does not assist him. It remains for the prosecution to satisfy me beyond reasonable doubt about the truthfulness and reliability of M’s evidence.
Findings about the complainant’s evidence
In evaluating M’s evidence, I bear in mind that it was entirely unsworn. That is so because she did not understand the obligation entailed in giving sworn evidence. I have scrutinised her evidence carefully, bearing that fact in mind, and the fact that her evidence is uncorroborated.
I am satisfied beyond reasonable doubt that M was truthful about what she says happened to her. I am also satisfied beyond reasonable doubt that, with one exception, she was reliable. The one exception is the evidence that the accused penetrated his penis beyond the outer lips of her vagina. What M demonstrated to Ms Luscombe using a tissue box, is consistent with penetration by the fingers and by the penis, but I am conscious of the evidence of Dr Gallus, that girls of that age may not be fully conscious of the degree of penetration. I am satisfied that there was digital penetration of the vagina, because M spoke of it hurting, but I am not satisfied that there was penile penetration. I am however satisfied that the accused placed his penis on the vagina. In those circumstances I am satisfied that that single incident is an act of indecent assault.
Findings about the particularised acts
Particulars (a), (b), and (e)
I am satisfied beyond reasonable doubt that the accused committed the acts particularised in paragraphs (a), (b) and (e)) of the particulars. I find that he committed those acts on multiple occasions, ie more than two, over a period of at least three weeks. There is no doubt that the act constituting particular (e), ie causing M to touch the accused’s penis, amounts to the offence of gross indecency. However I explain why I find that the acts constituting particulars (a) and (b), that the accused swimming with M in a spa while she was naked and showering with her while both of them were naked, amount to the offence of gross indecency. I find that the accused caused M to be naked in his pool and in his shower for his sexual gratification. The question becomes whether those acts amount to acts of gross indecency within in the meaning of s 58 of the Criminal Law Consolidation Act. In my view they do. I have been unable to find an authority applied to the precise facts of this case, but there are authorities which assist in answering this question.
I have already acknowledged that causing someone, even a child, to be naked, is not of itself an act of gross indecency, or even indecency. There must be proved a sexual connotation to the act.[75] I have found that there was a sexual connotation on the part of the accused.
[75] R vHarkin (1989) 38 ACrimR 296 at 301 – NSWCCA per Lee J, Wood and Matthews JJ agreeing and R v Manson and Anor (Unreported) NSWCCA 17 February 1993 per Gleeson CJ, Clarke and Sully JJ agreeing.
I turn to the test for “indecency” and for “gross indecency”. Gray J considered these questions in Singleton v Police.[76] In that case the alleged gross indecency consisted of words of a sexual nature spoken by the accused to a child. Gray J held that words alone, in an appropriate context, could amount to an act of gross indecency.[77]
[76] [2009] SASC 41.
[77] [43].
His Honour considered the purpose of s 58 of the Criminal Law Consolidation Act. He said:[78]
The question of what constitutes the offence of committing an act of gross indecency in the presence of a person under the age of 16 years is to be considered having regard to Parliament’s intention that section 58 has a wide operation to ensure the protection of children. Neither physical touching, nor an awareness of the act on the part of the child, is required to make out the charge.
[78] [40]
His Honour discussed the test for indecency and gross indecency in these terms.[79]
The Magistrate applied the correct legal test for indecency does the conduct offends against “ordinary contemporary standards of decency and propriety within the community”, including “anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting”? The Magistrate correctly directed himself that gross indecency requires something more than indecency. Indecency may be occasioned with or without sexual overtones. Something is indecent if it is of such a nature as to shock, disgust or revolt an ordinary decent person.[80] “Gross” is an indication of the nature and extent of the relevant indecency.
[79] [44]
[80] Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 at 458; [1972] 2 All ER 898; Robertson v Samuels (1973) 4 SASR 465 at 470; A-G v Huber; Ex parte Daniels (1971) 2 SASR 142; R v Drago (1992) 63 A Crim R 59.
Applying that test, I find that for a man in his 40s to cause a girl of about 6 to be naked for the purpose of satisfying his sexual gratification amounts to an act of gross indecency. I therefore find that the accused committed three types of gross indecency (particulars (a), (b) and (e)) on multiple occasions, ie more than 2, over a period of at least three weeks.
Particulars (c), (d), (g) and (h)
I am satisfied beyond reasonable doubt that the accused committed two types of indecent assault on multiple occasions (particulars (c) and (d)) and two further types of indecent assault on one occasion each, (the alternative to particular (g) and particular (h)). I find that these acts of indecent assault occurred over a period of at least weeks.
Particular (f)
I am satisfied beyond reasonable doubt that the accused committed multiple acts of unlawful sexual intercourse (particular (f)) over a period of at least weeks.
I find that while some of the acts may have occurred over a period of weeks, rather than months, the acts as a whole occurred somewhere in the period beginning in December 2013 and ending in May 2014. For example, it may be that the acts began with nude swimming, and that that activity only occurred during the months of December to February. The showering and touching of various kinds may have begun later. The single instances of genital and anal touching may have occurred towards the end of the six month period.
VERDICT
I find the accused guilty of persistent sexual exploitation of a child.
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