R v C, Ap
[2006] SADC 53
•18 May 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, AP
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Beazley
18 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Three counts of incest, one count of unlawful sexual intercourse and one count of indecent assault - Trial by Judge Alone - Complainant aged between three and four years with respect to the count of unlawful sexual intercourse and between 11 years and 13 years when remainder of charged acts alleged to have occurred - Uncharged sexual acts and conduct alleged - No evidence of recent complaint or distress - No corroboration - Use of evidence of sexual conduct other than charged acts - Longman warning - Notional warning called for on account of delay and complainants failure to complain - Exercise of discretion to refuse application to call rebuttal evidence - Verdicts not guilty on count 1, guilty on counts 2, 3, 4 and 5.
Evidence Act 1929 s 34I; Criminal Law Consolidation Act (1935) s 49, s 56, s 72, referred to.
R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406 at [82]; R v Beserick (1993) 30 NSWLR 510 at 525; R v Musolino [2003] SASC 203; Longman v The Queen (1989) 168 CLR 79; R v Dann (2000) NSWCCA 185; R v Liddy (2002) 81 SASR 22 at [181-193]; R v HS (2004) SASC 300, considered.
R v C, AP
[2006] SADC 531. Introduction
The accused is charged on information dated 30 January 2006 with five sexual offences; namely three counts of incest, one count of unlawful sexual intercourse and one count of indecent assault against, his daughter, the complainant, “SLC”.
1.1 Procedural matters
1.1.1 Trial by Judge Alone
The accused pleaded not guilty to all five charges and elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act 1927. The election was made late, contrary to Rule 8 of the Juries Rules made pursuant to that Act. There is no need to detail the reasons as to why the application was made late however, I was satisfied that there was a proper basis pursuant to Rule 16 of the Juries Rules to waive compliance with the prescribed time limits. The accused had advised the prosecution some four months earlier of his election. He had been advised by his solicitor of his right to a trial by jury. I was satisfied that the accused had been properly advised as to his rights prior to making his election. I accordingly granted the application that the trial proceed by Judge Alone.
1.1.2 Rule 9 Notice
The accused filed a Rule 9 Notice on the first morning of the trial. By that notice the accused applied for orders:
(i)That the Record of Interview conducted by Senior Constable McDonald with the accused on 26 January 2005 at Port Augusta Police Station be excluded, inter alia, in the exercise of the Court’s general discretion.
(ii)That the evidence of the complainant SLC alleging uncharged sexual conduct between the accused and the complainant be excluded on the ground that it is so highly prejudicial that such prejudice outweighs any probative value that the evidence may have.
I referred counsel to the principles expressed in R v Abrahamson (1994) 63 SASR 139. The essence of the complaint with respect to the interview is that some of the allegations put to the accused by the police were significantly different to the counts he presently faced (T5-6). Ultimately counsel for the accused accepted that the record of interview ought properly be admitted, but submitted that little or no weight should be given to those questions and answers directed to conduct different to that which the accused now faced, and those questions of the nature of how the accused may account for what the complainant had said (T 139). I have given no weight to the questions and answers so identified. As to the evidence of uncharged acts, counsel for the accused conceded on the present state of the law, that such evidence was admissible for the purposes identified in R v Nieterink (1999) 76 SASR 56 (T6-7). He did however maintain that that evidence of conduct, which post-dated the charged acts, ought not be admitted with respect to such counts.
The charges
APC was charged on Information with the following offences: -
“First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
APC between the 13th day of September 1994 and the 15th day of September 1996 at Port Augusta, had vaginal sexual intercourse with SLC, a person of the age of between 3 and 4 years.
Second Count
Statement of Offence
Incest.(Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
APC between the 13th day of September 2002 and 15th day of September, 2004 at Port Augusta, being related as parent to SLC, had vaginal sexual intercourse with her.”
Third Count
Statement of Offence
Incest.(Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
APC between the 13th day of September 2002 and 31st day of December, 2003 at Port Augusta, being related as parent to SLC, had sexual intercourse with her.
Fourth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
APC between the 1st day of January 2003 and 31st day of December, 2004 at Port Augusta, indecently assaulted, SLC a person under the age of 16 years.
Fifth Count
Statement of Offence
Incest.(Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
APC between the 1st day of January 2003 and 31st day of December, 2004 at Port Augusta, being related as parent to SLC, had sexual intercourse with her”.
The first count is alleged to have occurred at the family home at 5 Wickstein Close at Port Augusta when SLC was aged 3 to 4 years. The last four counts are alleged to have occurred at the accused’s house at 5 Hurcombe Crescent, Port Augusta in the period between 13 September 2002, which was the day before SLC’s 11th birthday, and 31 December 2004 when she was aged 13 years.
In addition to the evidence relating to the five counts, there was both specific and general evidence relating to other incidents of sexual conduct, which are alleged to have occurred between the accused and SLC, and which are not the subject of further counts. This was not led by the prosecution as propensity evidence and cannot be used for that purpose.
In relation to the five counts as charged and the other incidents, which have not been the subject of charges, the case for the prosecution depends essentially upon the evidence of SLC. There was no evidence of recent complaint or distress made in relation to any count on the information. SLC was aged 14 years when she gave her evidence. In consequence of matters apparently raised by SLC in December 2004, the police formally interviewed the accused on 26 January 2005. The accused chose to answer questions put to him during an interview, which was recorded on video. He also chose to give evidence on oath. He was not obliged to do that. I approach consideration of his evidence in the same manner that I approach all of the other evidence in the case while giving him credit for adopting the course of entering the witness box and being cross-examined.
I permitted and directed that the evidence of SLC and her brother JC be given outside the courtroom and be transmitted to the courtroom by means of closed circuit television. I have not drawn any inference adverse to the accused, nor have I treated the evidence of those two witnesses in any different way in consequence of those arrangements. Prior to SLC, JC, and their mother KLA giving evidence, I explained to each of them, their right to apply for an order, pursuant to s 21 of the Evidence Act, exempting them from giving evidence. After examining each of them I was satisfied that they were aware of their rights and that each of them had declined to seek such an exemption.
Legal considerations and general directions
The Court of Criminal Appeal has recently determined that it is not necessary in a case of trial by judge alone for the court to set out in the verdict the obvious directions, of which any trial judge is bound to be aware.
I do, however, remind myself that an accused person such as APC comes before this court with a presumption of innocence in his favour. The law regards APC as innocent unless his guilt on any particular charge has been proved beyond reasonable doubt. The burden of proving a particular charge beyond reasonable doubt lies wholly upon the prosecution. APC does not have to prove anything and insofar he has put forward a defence he does not have to prove it. It is not enough for the prosecution to show a mere suspicion of guilt or to show that APC is even probably guilty. Nothing short of proof beyond reasonable doubt will do.
Furthermore, the requirement of proof beyond reasonable doubt extends to each and every element of each offence. I cannot convict the accused APC of any particular count so long as I have a reasonable doubt as to any element of such a count charged against him. If I am left with a reasonable doubt about his guilt as to any such count then I must give him the benefit of that doubt and find him not guilty of that count.
In this case APC is charged on Information and tried before me with five separate counts being respectively one count of unlawful sexual intercourse, three counts of incest and one count of indecent assault. Because each count charges a separate offence, I must treat each separately upon its merits and consider only the evidence produced on that count alone. In so far as I were to find the accused guilty of one count on the evidence produced on that count alone, I must not use that evidence, nor the fact of that finding as evidence to assist in the proof of any of the other charges. R v HS [2004] SASC 300. Such evidence may however be relevant background material as to why SLC did not complain to any person when the alleged sexual acts took place. Under the heading of “uncharged acts”, I have directed myself as to the relevance of and the limited use to which the evidence of uncharged acts may be made by me. I remind myself that where an accused such as APC is charged with and tried for more than one count on information it does not follow simply because I may be satisfied beyond reasonable doubt of his guilt of one offence that he is also guilty of another or other offences as charged. Counts do not stand or fall together. Accordingly, I may find the accused not guilty of all of the five counts, guilty of one or more of the five counts and not guilty of the others depending upon the view I take of the facts, or I may find him guilty of the offences in all five counts. R v PRW (2005) SASC 463 at [41].
In this case where separate charges are tried together on the one information it becomes necessary for me to take special care to ensure that the method by which the guilt of the accused on any one count may be established is by considering only that evidence which has been produced in respect of that particular count.
In the event that I am not satisfied beyond reasonable doubt that the complainant SLC is truthful and reliable with respect to one or more counts on the Information, I must then consider whether I can be satisfied as to the guilt of the accused on any remaining counts. I remind myself that if I am not satisfied as to the credibility and reliability of SLC when considering one count, and the other counts depend upon the uncorroborated evidence of SLC, then that lack of satisfaction may carry over to my consideration of the other charges. See R v Liddy (2002) 81 SASR 22 at [181-193]. Accordingly, if I am not prepared to accept the evidence of SLC with respect to a particular matter or count, my doubt in that regard should be taken into account in determining whether I am prepared to accept SLC’s evidence on other matters or counts. In this case SLC has given evidence of sexual acts, which commenced when she was 3, or 4 years of age, about 10 years ago. She did not tell anyone about what she alleges was happening until about December 2004. The absence of a recent complaint is a matter highly relevant to her credibility.
I remind myself that pursuant to s 34 I(6a) of the Evidence Act that the fact that there was no recent complaint or evidence of distress does not necessarily mean that SLC’s allegations are false. Victims of sexual offences could have their own valid reasons for failing to make an immediate complaint. In this case SLC said that she was concerned for the safety of her mother and herself. She also said that she should love her father no matter what. Both counsel submitted that a warning should be given as articulated in Longman v Queen (1989) 168 CLR 79, contrast s 12A Evidence Act 1929. The delay not merely from the first count but in varying degrees on all counts, which has occurred, is substantial and there is a potential for the accused to suffer a forensic disadvantage. I must scrutinize SLC’s evidence with caution and special care both because of the absence of a timely complaint and the fact that the prosecution case against the accused rests upon the evidence of SLC, which evidence is not corroborated. In so directing myself I make it clear that I refer to the whole of the evidence of SLC in relation to all of the counts on the Information and to the uncharged acts. R v RWB (2003) 231 LSJS 364.
Finally I remind myself that it not a question of preferring one version but the sole exercise is to determine whether or not the prosecution has proved the elements of each charge considered separately beyond reasonable doubt. If I am unable to say where the truth lies in respect of a count then it necessarily means that the prosecution has not proved its case. R v Calides (1983) 34 SASR 355.
The prosecution case
The prosecution case consisted of evidence from SLC, her brother JC; her mother KLA, four medical witnesses and some agreed facts. The accused was the only defence witness.
Evidence not in dispute
The following facts were either admitted by the accused without the need to be formally proved, or alternatively not in dispute at the trial.
1.The accused is the father of the complainant SLC (T.15).
2.SLC was born on 14 September 1991. Her brother JC was born on 18 July 1989.
3.Until 25 March 1994 SLC resided with the accused, her mother KLA, and her brother JC at 18 Mealey Street Port Augusta.
4.From 26 March 1994 to 12 September 1997 SLC resided with the accused, KLA and JC at 5 Wickstein Close at Port Augusta. While living at Wickstein Close, the mother, KLA, was employed as a cleaner at the Standpipe Motel generally from 9.00 am to 12 noon each day. She would work additional hours as a waitress principally from 6.30 am (T121-122).
5.On about 12 September 1997 KLA separated from the accused and moved to Woolundunga Homestead for approximately 22 months with SLC and JC. KLA continued to work as a cleaner at the Standpipe Motel and the Acacia Ridge Motel, and maintained a sexual relationship with the accused despite the separation (T123-125). The accused remained initially at 5 Wickstein Close but subsequently moved to 5 Hurcombe Crescent Port Augusta.
6.From 24 April 1999 to 23 July 2004 KLA resided at 10 Larkin Crescent at Port Augusta with JC and SLC. The accused remained at 5 Hurcombe Crescent Port Augusta during the whole of this period.
7.The internal layout of the Hurcombe Crescent premises is detailed in a plan prepared by SLC being (Ex P2). To the right of the front door entrance is the lounge room, which leads to the kitchen. To the left of the entrance is the spare bedroom leading to a bathroom. To the left and, adjoining the spare bedroom, is the accused’s bedroom.
8.SLC’s maternal grandparents lived approximately 150 metres from the accused’s house at Hurcombe Crescent.
Medical witnesses
The prosecution led evidence from four medical practitioners. Dr Margaret Kummerow gave evidence via video link from Broken Hill. A statement by Dr Nikhet Nasreen was tendered by consent. Dr Susan Andersson and Dr Sarah Allen were both called to give evidence in Port Augusta. I will deal with their evidence in a summary form.
Dr Kummerow was a fellow of the Royal Australasian College of Physicians. Her day-to-day work included Child Protection Services. She had been employed in that area for about 4 years having examined the genetalia of hundreds of female children. She described the hymen of a three to four year female as very tender and if penetrated by an object it would be a painful experience. She stated that a hymen could be penetrated by a finger without necessarily causing bleeding but if it had been penetrated by an adult penis and into the vaginal cavity, then she would certainly have expected some bleeding. She indicated that it would not be possible for penetration to occur of the vagina without the hymen having been broken. She described examining SLC on 19 January 2005 with a colposcope. When asked about her observations she said: (T 98)
“I certainly saw no evidence of acute injury. There was no area of redness or abrasion or scratching or any healing at all, in terms of fluff or scabbing or something that you could see in the acute stage of healing. However, I did see an area where the hymen wasn’t continuous at the area of five o’clock. So if twelve o’clock is taken as the upper area of the hymen and six o’clock the lower area it was around the bottom end of the hymen that I saw this area of absent hymen or discontinuance hymen”.
She said that when she spoke of acute injury she was speaking about an injury, which had occurred within days of being examined, and had the last incident occurred in November or December of 2004 she wouldn’t have expected to see any evidence of acute injury. When asked about what may have caused the state of the hymen as observed, Dr Kummerow said that at the area of five o’clock there was a complete transection, the edges of which were completely healed and they looked like the rest of the hymen, but there was a definite area in which there had been trauma to the hymen. All she could say from her observations was that, it was evidence of a penetrative injury to the hymen. She could not say what caused it other than it was well explained in terms of the “context of the allegation”. She was able to say however that it was highly unlikely that a finger penetrating a hymen would cause that degree of injury nor could the use of tampons. She further could not date the time that the injury to the hymen had occurred. As to the anus it appeared to be completely normal. She indicated that she did not expect to see any injury because of the nature of the anus. It would only be likely to be permanent injury if an assault was violent. In general even if bleeding occurred most injuries to the anus would heal without permanent damage. When cross-examined about whether SLC may have had a rare and unusual hymen, Dr Kummerow conceded that she was unable to compare SLC’s pre-pubertal condition. In her opinion no such abnormality could explain the depth of the tear in the hymen. She would have expected any such abnormality to be associated with an intra-vaginal ridge, and she still did not observe this in the case of SLC. As to whether such an injury might have been caused by physical exercise, Dr Kummerow opined that it was a penetrative injury and the hymen was an internal organ, which could not be damaged without some penetrative force.
Dr Andersson examined SLC on 4 July 2003 at Port Augusta. SLC had complained about an itchy rash around her anus. Dr Andersson observed red spots, “which may have been blisters perianal”. She had briefly considered whether it was a herpes rash but decided that because there had been no complaint of pain it was more likely to be thrush which she described as a fungal infection commonly occurring in warm sweaty areas. She had asked SLC’s mother whether there was any chance of sexual abuse and was informed by the mother that there was no chance.
Dr Allen had been SLC’s General Practitioner since 1995 and was consulted by her on 18 November 2003 in the presence of her mother. Having complained about a white discharge Dr Allen took a swab of the vaginal area, which subsequently confirmed a finding of thrush. On 10 February 2004 SLC again attended and complained of a rash over the perineum. At that examination Dr Allen could not see any blisters although there were “some slight red raised areas over the labia”. A vaginal swab, was taken, again disclosed thrush. Dr Allen opined that although you may see vaginal thrush in infants and post pubertal women, “you did not tend to see it in girls who haven’t as yet had periods”. It was an infection more readily seen in sexually active people. She had asked SLC whether she had been sexually abused or was sexually experimenting. SLC had denied both of those suggestions.
A statement by Dr Nikhet Nasreen dated 12 October 2005 was tendered by consent. Dr Nasreen obtained a blood sample from SLC on 3 August 2005. That blood sample disclosed a past infection with the herpes simplex virus. Dr Nasreen opined that 90 per cent of the population are infected with that virus, which may be in the form of cold sores, mouth ulcers and gingovo-stomatitis and can be transferred by sexual or non-sexual means.
The complainants evidence
Count 1 Unlawful sexual intercourse – penis placed in vagina – between 13 September 1994 and 15 September 1996
SLC described being “sexually assaulted” when she was aged 3 or 4 years and living with her family at Wickstein Close at Port Augusta (T18). She said that her mother was employed at the time at the Standpipe Motel. She described this incident as follows at (T19).
“...It was time for work for my mum, so she went out and my dad was looking after me, and I was in bed and he came into my room and he was touching me in my genital areas, and he was touching me and everything and he was pulling my shorts aside and had sex with me and he was laying on top of me and I don’t remember after that”.
When asked about the sex, she said that the accused put his penis into her vagina and it hurt that first time. She said nothing to the accused or to her mother when she came home from work.
When cross-examined she admitted that at the time she would have been wearing nappies. She could not remember if there was any blood following the accused placing his penis in her vagina. She conceded that if she had felt sore generally she would have told her mother about that (T43-44). She conceded that she did not tell her mother or anyone about that incident.
SLC was cross-examined about a statement she had provided to police on 23 January 2005 in which she had said that she didn’t know if the accused had placed his penis inside her vagina (T 59). She said in answer:
“I felt something, but I don’t know if it went in or not”.
Count 2 Incest – anal intercourse – between 13 September 2002 and 15 September 2004 at Hurcombe Crescent
SLC identified the timing of this offence as when she was between 11 and 13 years of age (T 26). She described what happened as follows:
QWhere did this happen.
AIt happened in the spare room.
….
I was going to get my Game Boy out of the spare room and he followed me in the spare room so I got my Game Boy, went to the door, he was there and I was pushed into the room and he pushed me onto the mattress and I was on my belly and then he pulled my pants down. He was wearing track pants and he started having sex up my bottom.
QCan you tell the Judge what you could feel occurring.
AIt felt like I was constipated. I had constipation – I have been constipated before and it felt like it was cutting into my bowels or something.
QCan you tell His Honour precisely where he put his penis?
AUp my bottom
….
QWhat kind of pain.
AIt felt like I was getting torn”.
She was cross-examined about suggested differences between her evidence in chief and earlier statements made to police. SLC was unable to recall whether it was daylight or dark. She had not told her mother nor anyone else about what had happened. She said that, “she was afraid that my dad might hurt me or my mum”. SLC was cross-examined about her statement to police on 10 January 2005 to the effect that the accused had placed some slippery gel on his penis on this occasion. She was asked why she did not yell out to her brother who was in the lounge room, nor complain to her mother when she returned home (T54-55). In answer to the question why she did not go to her grandparents home which was only 150 metres away, she initially said that she wouldn’t waste her energy, but subsequently said that she was going to tell her teacher Mrs West, however declined to do so when the teacher called her a “chatterbox”.
Count 3 Incest – Penile/Vaginal intercourse shortly after 14 September 2003 – the complainant’s 12th birthday
SLC said that at about the time of her second menstrual period following her 12th birthday the accused had penile/vaginal intercourse with her in his bedroom at Hurcombe Crescent (T32-33). She recalled that on this occasion: “after he put his penis into my vagina, he quickly pulled it out and he started peeing on the carpet”. After this incident she noticed blood in her underwear. She admitting telling her mother about the blood but did not use the occasion to tell her mother of the sexual intercourse (T 57). She said that she did not know how her mother would react. She said that she was still happy to see her father because “he’s my dad, and you should love your dad no matter what” (T 31).
Count 4 and 5 Indecent Assault – indecent touching on the same occasion as the final count of Incest – Penile/Vaginal Intercourse with glow in the dark condom between 1 January 2003 and 31 December 2004
SLC described the incident as involving the use by the accused of a “glow-in-the-dark” condom. She had gone to the accused’s bedroom where the accused had shown her the condom. At (T 35) she described what then happened.
“He laid me on the mattress and pulled down my pants to one of my ankles and he put a pillow under my bottom, so it felt like I had two pillows under my bottom and he had sex with me … he put his penis into my vagina”.
She further described that after he finished, he quickly rushed to the bathroom and threw the condom away.
She gave evidence (T 36) that on this occasion while placing his penis in her vagina the accused was feeling her breasts by touching the fabric of her bra. This was the allegation of indecent assault in count 4 of the Information. She said that this “glow-in-the-dark” condom incident had occurred after her 13th birthday on 14 September 2004 (T 38).
Uncharged Acts
SLC gave evidence of numerous uncharged instances of sexual contact between the accused and herself. All of those events occurred at the Hurcombe Crescent premises of the accused. Two of the uncharged acts allegedly occurred after the last of the charged offences.
In her evidence SLC identified four quite specific other instances of sexual contact between the accused and herself. She also gave evidence of regular but non-specific instances of such sexual conduct during the period she commenced visiting the accused at Hurcombe Crescent from the age of about six years.
I admitted the evidence of both the specific and non-specific uncharged sexual acts for quite limited purposes. It places the last four counts on the Information in context. It could explain the accused’s confidence, both, that SLC would submit to the charged sexual acts, and in the accused taking opportunities to commit offences notwithstanding the presence of JC and the proximity of KLA. It could also explain the failure of SLC to complain and as to why she may be uncertain as to precise dates, if the charged acts were part of a pattern that continued for some time. It was not led by the prosecution as propensity evidence.
It may however be used by the accused in assessing SLC’s honesty and reliability. I can only use this evidence of the specific and non-specific uncharged acts for the purposes I have identified. I must not use the evidence of uncharged acts nor indeed of the other charged acts to reason that (if they or any of them are proved to my satisfaction), the accused is the sort of person who is likely to have committed any of the charged offences.
I remind myself that it is the charged acts which must be proved beyond reasonable doubt and not the surrounding facts. R v IK (2004) 89 SASR 406 at [82].
Accordingly it is not necessary that the specific and non-specific uncharged acts, which are evidence of the surrounding facts only, be proved beyond reasonable doubt. Before I can use that evidence however for the purposes I have identified, I must be satisfied that those acts did occur.
The four specific uncharged acts are identified as:
1.An occasion of an attempt by the accused at Hurcombe Crescent to place his penis in SLC’s mouth. This is described as the “69 incident” when she was aged between 11 and 13 years.
2. The “bath incident” occurring close to her 12th birthday.
3. The accused’s use of a “clear white condom” after her 13th birthday.
4. The conduct of the accused while SLC was holding a rabbit.
The last two specific uncharged acts allegedly occurred after the last charged acts. Generally the evidence of uncharged acts subsequent to the last charged acts ought not be admitted in the exercise of the discretion. This is because such conduct must necessarily have little weight in placing the charged conduct in context. R v Beserick (1993) 30 NSWLR 510 at 525; R v BFB (2003 87 SASR 278. In this case the question of the single use by the accused of a “white condom” was the subject of cross-examination by counsel for the accused. Both the “white condom” incident and the “rabbit” incident allegedly occurred in close proximity to the last charged act. The evidence may only be used to put the charged acts in context, and to explain why no recent complaint was made.
In my opinion while they may be of limited weight, they ought not be excluded in the exercise of the discretion.
SLC was asked generally whether anything had occurred between the accused and her at Hurcombe Crescent. She said (T 23) “sexual intercourse and stuff like that … having sex. He used to touch me. He tried anal and 69 and he used to lick me out and stuff”. She described “69” as the accused trying to “shove his penis into my mouth, which I refused, and he was licking me out down below”. She thought, without being certain, that it occurred only once when she was aged between 11 and 13 years of age.
As to penile/vaginal intercourse she said that “it used to happen most of the time when I was over there” (T24-25). This conduct used to happen in the accused’s bedroom but also in the spare room and lounge room. The accused would either put a chair against the door or lock it whenever her brother JC was in the house (T 25). The accused would have penile/vaginal intercourse with SLC on the mattress in his bedroom. Occasionally JC would knock on the door to get her to come outside. She also spoke generally about the accused touching her. She said that the accused would often put his fingers up her vagina. She was unable to say how old she was when the accused did that (T 40).
On an occasion close to her 12th birthday in September 2003 SLC said she was having a bath at Hurcombe Crescent, when the accused “hopped in the bath with me and he had sex with me and he almost drowned me, practically” (T 29). She described the accused placing his penis into her vagina. She accepted that the bath was not very big. It was suggested to her that the bath was too small for it to have occurred. She was adamant that it did occur as she had described (T 65).
On other occasions after the “glow-in-the-dark” condom in count 5 of the information (T 37), SLC described the accused using a white clear condom when having penile/vaginal sexual intercourse with her. She identified it occurring in the accused’s bedroom. She was cross-examined about a statement, which she had given to police on 23 January 2005, in which she had said that the accused had used 3 normal condoms. She said that she could only remember one such condom being used by the accused. The last occasion allegedly involving sexual conduct between the accused and SLC, was when she was holding her rabbit on her left leg. She said (T 38-39) that the accused was patting the rabbit with her and moved his hand up near her vagina.
I permitted the prosecution leave to lead some limited evidence about alleged sexual activities with any one other than the accused pursuant to s 34 I of the Evidence Act. I reserved the opportunity to the accused to apply for leave also (T 9). As it transpired the accused did not seek such leave. SLC said that she had had boyfriends from time to time but had never engaged in penetrative sex with any one other than the accused.
The evidence of JC
He was about 7 years old when the accused moved to Hurcombe Crescent. Together with SLC and his mother, he would visit the accused every weekend, school holidays and most school days. His mother worked part time at the ETSA Club and the Myoora Motel. None of the evidence given by JC was directed to the five charged offences. The incidents about which he gave evidence were uncharged acts. This evidence again can only be used to place the charged acts in context. It cannot be used as propensity evidence. He said at (T 79) “I seen those two [the accused and SLC] in rooms together, yes, I seen them two in rooms together doing it … having sex”.
He described seeing the accused on top of SLC under the blankets on the mattress in the accused’s bedroom. Often the door was shut. He would bang on the door “to make them stop because I have caught them more than once”.
He spoke of an occasion when the accused was observed by him moving up and down on his sister under the blankets in the accused’s bedroom (T 80). The door was slightly open. He gave evidence of checking through a slight gap under the door. He said their clothes were alongside the bed (T 84). He had earlier corrected himself about whether the accused was wearing blue jeans at the time (T 80-81). He knocked on the door and opened it not knowing what was going on, and they hopped off each other. He was about 8 years old at the time. SLC could not recall an occasion where JC had entered the bedroom. He also described two occasions where the lounge room door was shut with a chair placed to stop JC from opening it. After banging on the door he heard noises, which he took as SLC and the accused, putting their clothes back on (T81-82). On such incident had occurred at about lunchtime while his mother visited his grandmother.
He had made similar observations “numerous times” which he estimated as “five and upwards”.
He agreed that SLC, his mother and he spent as much time at Hurcombe Crescent as at his mother’s house in 2004. He said the gap in the bottom of the bedroom door was about 2cms. He denied any suggestion that he could not have seen the mattress or the clothes in the accused’s bedroom. He was cross-examined about a statement he had made to the police on 18 January 2005 in which he had been unsure whether the incident had occurred in the lounge room or the accused’s bedroom. He said that he now remembered that it was the bedroom. He admitted that he was only guessing as to what the accused and SLC were doing under the blanket (T 90).
The evidence of KLA
The accused’s former wife KLA the mother of SLC, gave evidence. She said that she had moved to Wickstein Close at Port Augusta in March of 1994 and left in September 1997. She said that when the accused moved to 5 Hurcombe Crescent she moved with the children to Woolundunga Homestead. She was working at various premises cleaning nearly every day between 9.00 am and 1.00 pm. She did not have a permanent key to the accused’s house because he wouldn’t allow it. She said that the accused would only give her a key if he and the children were not going to be home and then she was required to hand the key back on those occasions. She had continued to have a sexual relationship with him between 1997 and the end of 2004. She said that she had her tubes tied when she was 23. In cross-examination she said that SLC had just about stopped wearing nappies by the time that the family moved to Wickstein. She had never noticed any blood on any of SLC’s underpants. SLC had never complained to her about being sore in the vaginal area at Wickstein. KLA’s mother and father lived approximately 150 metres from 5 Hurcombe Crescent. She said that on occasions SLC and JC sometimes slept at the end of the bed with the accused and herself and that sometimes JC slept in the spare room with SLC.
The interview of the accused
On 26 January 2005 the accused was interviewed by Senior Constable McDonald at Port Augusta Police Station. He was informed of his rights including his right to silence. He was asked a series of questions about allegations which had been made to the police by SLC.
Q29Okay. Now the first, the first one I want to speak to you about is in relation to a count of unlawful sexual intercourse. By that I mean that you had sexual intercourse with SLC and by virtue of SLC’s age that she’s under 17 years old and the fact that she’s your natural daughter, that it’s unlawful. Okay, now what I want to speak to you about is about a count of unlawful sexual intercourse that happened on or about September 2003. Can you remember anything in relation to that?
ANah.
Q30Okay, it is alleged that you had sexual intercourse with SLC at your house at 5 Hurcombe Crescent. That it was penis/vagina sex and that once you completed having sex with her that you ejaculated on the carpet. Do you have any comment you want to make in relation to that?
AMate you have to ask her about that.
Q31Okay, have you ever had sex with SLC?
ANot that I know of.
Q32What do you mean by that?
ANot that I fucking, I can’t remember doing anything like that, or do anything like that for that matter.
Q33Sorry?
AOr doing anything like matter. All I know is when she moved into her new house she’s around my house for three months straight, just before Christmas she went for a holiday with SLC, just me and JC were home by ourselves. After the holiday, she come back, SLC was there for one day, they went and ah then she come back and said ah SLC’s accused you of accusations or something like that. That’s the last I seen of her.
AAh KLA.
Q35Okay. Well I’ll move on, the next one I want to speak to you about is in relation to allegations of again you having sexual intercourse with SLC between September 2003 and December 2004. Again you don’t have to answer my questions if you don’t want to, but anything you do say is still being recorded on video. Do you understand that?
AYeah.
Q36Okay, SLC states that between September 2003 and December last year that you had penis/vagina sex with her on two occasions and during that time she was in fact having her period. Is there anything you wish to say in relation to that?
AWhat can you say, I, there’s fuck all I can say about that.
Q37This is your chance to say whatever, whatever you like in relation to it?
AYou have to ask her mother that. She’s the one with all the knowledge.
Q38Okay, I’ll again ask you, did you have sexual intercourse with SLC between September 2003 and December 2004?
ANah wouldn’t have a clue, and I wouldn’t remember even if I did.
Q39Why wouldn’t you know?
AHey.
Q40Well you said you wouldn’t have a clue, why wouldn’t you know?
AWell I don’t know, I got no memory, that’s pretty well buggered, I don’t know what she’s fucking doing.
Q42Anyway. Why wouldn’t you remember?
ACause I can’t remember, things, any things I do or what I’m doing, you know what I mean.
Q43And I understand what you’re saying, I just don’t understand why you wouldn’t remember?
ANah your guess is as good as mine, about why.
Q44Have you, have you spoken to a Doctor or anything in relation to memory loss?
AYeah waste of time, they can’t help me.
Q45You have spoken to a Doctor?
AYeah.
Q46Who have you spoken to?
AAh I don’t know, a few.
AHere in Port Augusta or.
AYeah some in Adelaide.
Q47Do you remember any of their names?
ANup.
Q48Were you referred to them by a local Doctor?
ANo I couldn’t tell you.
Q49Who is your local Doctor?
AAh, ah was Doctor Shultz I think.
Q50Okay and which surgery, Doctor surgery do you go to?
AAh Carlton Parade I think it is.
Q51Okay, so in relation to those two, those allegations that you had sexual intercourse with SLC on two occasions between September 2003 and December 2004, if I understand your answer correctly, you’re saying that it’s possible but you can’t remember?
AMmm, I didn’t say that, I just said I can’t remember, can’t remember shit I wouldn’t even know what happened from day to day let alone whenever this was supposed to been.
Q52Okay?
AAnd as for her every time she come over, if she went to bed before me it was, JC asleep in the same bed with her or SLC slept in the same bed as ours, I just had to pull a bed for myself.
Q53When you say her, who are you talking about there?
AKLA and divorced her I don’t know how many years ago. But every time she wants a holiday or anything she comes to my house and drops the kids off and goes for a little trip or whatever she does, I don’t know.
Q54So you and your wife KLA have been split for a number of years?
AMmm.
Q55You say she drops over the kids when she wants a holiday or something. How often do you see the children normally?
AAh haven’t seen them at all since after Christmas.
Q56Okay prior to Christmas?
AAll the time.
Q57When you say all the time, were there certain days of the week that you would see them or that they’d stay with you?
AYeah all the time.
Q58All during the week?
AJust about yeah. For three months before Christmas they were there everyday. Didn’t even leave the house hardly. Same with her.
Q59 Well did they leave the house to go to school or anything?
AYeah when they go to school yeah drop them off at school.
Q60When you say the same with her, do you mean KLA?
AYeah.
Q61Does KLA stay with you at all?
AUsed to yeah.
Q62Yep, how long ago would she have stayed with you, the last time?
AJust before Christmas.
Q63Yep, so would she stay over with the kids as well would she?
AYeah she was there.
Q64Yep. And would she stay during that three month period or so that the kids were there or?
AAh yeah some, most of the time.
Q65Yep?
Q66Most of the time so there were times then when, when the kids would be staying with you but KLA would stay somewhere else?
AYep. Yeah well see go out with her friends and what not or whatever, go home or whatever she done I wouldn’t have a clue what she done.
Q67Okay. We’ll move on. We’ll talk about an incident that occurred on or around September 2003. Again in relation to this matter you don’t have to answer any of my questions, but anything you do say is still being recorded and can be used as evidence. Do you understand that?
AYeah.
Q68Okay. SLC states that around September 2003 which was around her 12th birthday, that she was staying with you at 5 Hurcombe Crescent. And she says that during that time, late in the day, that she was having a bath and she said that you came into the bathroom and jumped in the bath with her. What can you tell us about that?
ATell you bugger all really, ah, when they were there, get up in the morning, if they were in the bath you’d have a shower, that was it, same with her. If the kids are in there, in the shower or whatever, she used to get in and have a shower, get dressed go, whatever you had to do.
Q69No on this occasion SLC’s saying that she was in the bath and that you came in and jumped in the bath with her?
ANup. Might wash her back with soap that’s about all.
Q70She also says that once you were in the bath with her that you used your foot to rub her on her vagina and that you then used a cake of soap and also rubbed that on her vagina. What can you tell me about that?
ANothing.
Q71Any reason why you can’t tell me anything about it?
AYeah cause it didn’t happen.
Q72Okay. Moving on to the next one, I want to talk to you about an incident that occurred in early December last year. Again you don’t have to answer my questions in relation to this, but anything you do say is still being recorded and can be used as evidence. Do you understand that?
AYeah.
Q73Okay it’s alleged that in early December last year before school holidays started, that SLC was staying at your house at 5 Hurcombe Crescent, that she was in, what she describes as the second bedroom, the main bedroom that she stayed in while she was there, I believe it’s got a fridge and TV in it. Does one of the rooms in the house have that, that can be set up as a bedroom?
AYes it’s a three bedroom house.
Q74Yep and does one have a fridge and TV in it?
AAh yeah one used to have, ah it’s still got a TV and all in there.
Q75Okay?
AIf she’s got TV and that, ah both in bedrooms.
Q76And that she says that while she was in the bedroom that you came into the bedroom and again had penis/vaginal sex with her. What can you tell us about that?
ANothing, it didn’t happen, no, I didn’t make no allegations or anything, so you’ll have to ask her that.
Q77No she’s making the allegations, that’s why I am asking you to account for it?
ANup.
Q78What do you mean by nup, you don’t want to account for it?
ANo, I don’t even know what you’re on about.
Q79Okay?
AOr what they’re on about or she’s on about.
Q81There’s another allegation that during 2002, between 2002 and 2003 that again you had sex with her, but this time it was penis/anal sex with her. I want to speak to you about that. Again you don’t have to answer my questions, but anything you do say is still be recorded and can be used as evidence. Do you understand that?
AYep.
Q82Okay, as I said it’s alleged that during 2002/2003 that you had penis/vagina, penis/anal sex with SLC. What can you tell me about that?
ACrap.
Q83Do you want to say anything else?
ANup.
Q84Okay. I also want to ask you questions in relation to an incident that occurred during 2003/2004. Again you don’t have to answer my questions, anything you do say is still being recorded and can be used as evidence. Do you understand that?
AYeah.
Q85This time SLC alleges that she was over at your house at 5 Hurcombe Crescent, that during the day time in your bedroom, that you had sexual intercourse with her and on this occasion that you were wearing a glow in the dark condom. What can you tell me about that?
AWhat can I tell you about that.
Q86Sorry I couldn’t hear you?
AAh that’s news to me I don’t know.
Q87You don’t know?
ANup I don’t know nothing about that.
Q88Okay. I also want to ask you some questions in general about your relationship with SLC. Again you don’t have to answer my questions, but anything you do say is still being recorded and can be used as evidence. Do you understand that?
AYeah.
Q89Okay. SLC alleges that you’ve been having sexual intercourse with her on a regular basis since she was about four years old. What can you tell us about that?
ACrap.
Q90Is there anything else you want to say?
ANo.
Q91She also says that it’s occurred at both houses, Wickstein Close and where you currently live at 5 Hurcombe Crescent. Do you want to make any comment?
ANup.
Q92And it’s further alleged that on a number of occasions that JC has actually walked into the bedroom and interrupted you two having sex. What do you want to say about that?
AOh he said that himself did he.
Q93Yep. What can you say about that?
AI can’t say nothing about it, it’s just out in front of me.
Q98Okay, just bear with me for a sec. Andrew I told you that you’re under arrest?
AMmm.
Q99At the completion of this interview you are going to be formally charged with six counts of unlawful sexual intercourse between you and SLC and one count of indecently assaulting SLC. Do you want to make any final comment in relation to that?
ANo.
QQ100 As a person who’s been interviewed on video, I’m obliged to give you this, it’s got my details here, and a phone number where you can contact me or where you can contact the Port Augusta Prosecution Unit or Criminal Justice Section. It tells you how you can view a copy of the tape or get a copy of the tape made for either you or your solicitor to view okay. So that’s for you. That concludes the interview, the time is 9.15?
The Defence case
The accused gave evidence. I remind myself that he was not obliged to take that course and that having made the decision to give evidence he has not assumed any onus of proving anything. I also remind myself that insofar as I were to conclude that he had been untruthful in any of his evidence that it does not follow that I should find him guilty of any one or more of the counts with which he has been charged. The accused denied committing any act of sexual intercourse with SLC at Wickstein Close (T 140). He said that when he moved to 5 Hurcombe Crescent his wife and children resided at Woolundunga Homestead. They continued to visit him on weekends, school holidays and during the week. He said that just prior to Christmas 2004 his former wife and the two children stayed at his Hurcombe premises for about 3 months. He said that JC and SLC would sleep in the lounge room most of the time but on occasions they would sleep together in the spare room while his former wife slept in his bedroom (T141-142). He said that during the day his former wife would go out to work and come and go at any time during the day and would remain at the house with him and the children of an evening. He was asked a series of questions about the allegations raised by SLC. At (T 142-143) he denied each and every allegation, with a short and succinct – No!
He was asked about the Record of Interview conducted on 26 January 2005. He said in answer to a question that he was a bit under the weather. He said that he had some difficulty with his memory. In chief he was asked (T 144).
QDuring that record of interview you were asked whether you had sexual intercourse with your daughter, between September 2003 and December 2004. Do you remember that question.
AYes.
QAnd you answered you wouldn’t have a clue and ‘I wouldn’t remember even if I did’. Do you remember that answer.
AYes.
QCan you tell the court today what you meant by that answer at that time.
AIt means I did not have sex with my daughter.
QHow were you feeling when you were being asked questions about whether you had sex with your daughter.
AShattered.
QWhy do you say you were shattered.
AI was already having a hard enough time as it was.
QUntil the time these allegations were made against you, what sort of a relationship did you think you had with your daughter.
AGood.
QAre you able to tell the court the last occasion on which your family stayed at your house.
AA couple of days before Christmas.
QWas there an occasion, in the second half of 2004, where you looked after JC and SLC by yourself.
AYes.
QIt is the fact that you deny having any sexual relations with your daughter at any time.
AYes.
It was put to him in cross-examination that he really wasn’t sure whether he had sex with SLC. He said that he was sure that he had not had sex with her. He asserted that when the police picked him up he was intoxicated. It was put to him that he was able to follow what was being said by the policeman. He answered “not really”. He said that he had been on “a bender” for about three or four days”.
He was asked at (T 147).
QIs it the case that you just don’t want to remember that you used to have sex with your daughter.
AIf something like that happened, I think I would remember.
QYou would think so, but that’s not what you told the police, was it, when they first asked you questions.
ANo, it’s not, but I corrected myself later on.
He denied that SLC ever went into his bedroom other than when she went in there to comb her hair in the mirror. He was able to remember an occasion when she was six or seven when he entered the bathroom with her having knocked on the door, had a shower and she wanted her back washed with soap and he did it with her mother present. He denied that his former wife only had a key to the house if he gave it to her on specific occasions. He denied keeping condoms in the top shelf of the cupboard in his bedroom. He asserted that he used condoms with his former wife notwithstanding that she had had her tubes tied (T 153). He said in further explanation that there was something wrong with his former wife and denied making up the answer.
Application to call Rebuttal evidence
The prosecution sought leave to call a police officer who arrested the accused and accompanied him to the police station for the subject interview. It proposed to call him to give evidence as to whether he had made an assessment of the accused’s state of sobriety. (T 160). The accused opposed the application. The prosecutor properly conceded that the proposed evidence was relevant only to the credit of the accused. In R v Musolino [2003] SASC 203 Lander J. set out at [100] the effect of the common law finality rule. It is clear that there are exceptions to the rule, which would otherwise not permit evidence to be called to refute evidence relevant only to matters of credit. One such exception, in order to preserve even-handed justice is that rebuttal evidence may be permitted to enable a party to meet unexpected or exceptional evidence. In this case the prosecution had not been made aware prior to the trial of any issue with respect to the alleged intoxication of the accused at the time of the interview. Accordingly the video record of interview was tendered by consent without the need for the police officer to be called. Notwithstanding that the allegation of intoxication by the accused was unexpected, I declined the application to call rebuttal evidence on the basis that it would infringe the common law finality rule to permit that evidence to be called in rebuttal. In addition, I had had the benefit of observing the demeanour of the accused both during the taped video interview and while giving his evidence at the trial. Of course I do not know whether the accused had been “on a bender” as he asserted. He may well have been. The question is whether he did not comprehend and follow the questions of the police in the interview. There is no doubt that he tended to mumble many of his responses at least early in the interview. When giving evidence at the trial his answers were short and succinct. It was clear from the video interview that he was upset at the allegations in the police interview and somewhat aggressive in his responses. It was apparent that some of his early responses were directed to KLA, presumably believing that the allegations had been sourced from KLA. He first described himself in chief as being “a bit under the weather”. He had been spoken to by the police initially at Hurcombe Crescent on the morning of 26 January 2005 before the formal interview at Port Augusta. I do not accept that he was intoxicated at the time of the police interview. While I accept that he would have been somewhat shocked by his arrest on such charges, I have no doubt he understood the questions being asked of him, and that he gave generally unambiguous answers to the quite simple questions put to him by the police.
Addresses of counsel
Ms Trengove, counsel for the prosecution, very properly conceded that in respect of count 1 on the Information that I could not find beyond reasonable doubt that that offence occurred in the manner described by SLC (T 164-165). I will deal in more detail with this count shortly.
She did however submit that the case against the accused on each of counts 2, 3, 4 and 5 was so compelling that I ought find those counts proved beyond reasonable doubt. She acknowledged that for the prosecution to succeed on any of those remaining counts, I must accept that SLC was a witness of truth.
She submitted that SLC’s evidence was reliable, generally consistent and with respect to the last four counts when she was aged between 11 and 13, it had the ring of truth to it. When dealing with the lack of complaint despite opportunities presented on occasions in the presence of her mother alone or with her doctors, she repeated the telling answer of SLC “because you’re supposed to love your father no matter what”; and that she was concerned about both her mother’s reaction and what the accused may do.
In respect of the remaining counts, she highlighted the detailed evidence of SLC as to the penile/anal act in count 2, the penile/vaginal act followed by the ejaculation onto the carpet in count 3, and the two counts dealing with the “glow-in-the-dark” condom. All of this evidence from such a young witness had the ring of truth and consistency, which made the prosecution case so compelling. She also submitted that the accused was demonstrably unreliable. She referred to the answer given by the accused about the use of condoms. To a lesser degree the evidence of uncharged acts both specific and non-specific was compelling.
Mr Charman, counsel for the accused, submitted that there was simply not enough evidence to find any of the counts proved beyond reasonable doubt. He pointed to inconsistencies in the evidence of KLA, JC and SLC as to the sleeping arrangements. He stressed what he submitted was the absence of opportunity for the accused to have performed any of the sexual acts, given the presence of JC and the fact KLA may turn up at any time. He stressed both the absence of any complaint, and the positive reply to Dr Allen that there had been no sexual abuse.
He submitted that the inconsistency and implausibility of SLC’s evidence with respect to count 1 ought be taken into account when assessing her credibility in respect of the other counts.
Mr Charman pointed to the change in SLC’s account of count 1 from positively asserting that the accused had placed his penis into her vagina when aged 3 or 4, to subsequently conceding that she didn’t know whether the penis had entered her vagina. He also pointed to the evidence of Dr Kummerow as to the likelihood of pain and bleeding, and to the obvious fact that SLC would have told her mother about such pain had that event occurred. Its implausibility must impact so adversely as to result in me not being satisfied in respect of any of the other four counts or indeed the uncharged acts. He also referred to that fact that SLC at no stage exhibited any distress nor did SLC ever express concern about attending at the accused’s premises.
Finally he identified what he submitted were inconsistencies in the evidence of SLC in respect of the last four counts. As to the uncharged acts he criticised the lack of detail and SLC’s credit generally. As to the “bath incident” he was particularly critical, pointing out that the dimensions of the bath made the incident implausible.
As to the demeanour of the accused in the video interview he submitted that it did not matter whether the accused was intoxicated or merely stunned – he described him as shattered and this explained the absence of outrage as to the nature of the questions asked.
Assessment and significance of evidence of witnesses other than complainant and accused
The medical practitioners
I accept the evidence of the medical witnesses. The combined evidence of the four medical practitioners is neutral in either establishing or excluding the commission of any of the counts alleged in the Information or any of the uncharged acts. I have no doubt, as found by Dr Kummerow, that there had been trauma to the hymen of SLC and that that trauma had been caused by a penetrative injury. It does not in any way assist in determining who or what caused that trauma or when it occurred. At it’s highest that evidence is consistent with the allegations of SLC. I remind myself that such evidence should not be treated as in any way bolstering the evidence of SLC. R v Dann (2000) NSWCCA 185.
The evidence of JC
I find that JC was a very impressive witness who was genuinely attempting to tell me the truth. He was 16 years of age at the time of giving his evidence. He was in the stressful position of giving evidence against his father on the distasteful topic of the accused’s sexual conduct with his sister. He was in some instances giving evidence about events he said he observed when he was 8 years old. Because of the length of time and the fact that he had made no mention to anyone of the alleged conduct I scrutinised his evidence with great care. He did not exhibit any bias against the accused. There was no suggestion that he had moulded his evidence so as to be consistent with that of the complainant. Indeed he did not give any evidence of observations made directly with respect to any of the five counts in the Information. The evidence related to what might have been seen to be a series of uncharged acts observed by him since he was 8 years old. While it is correct to say that in chief he gave evidence suggesting direct knowledge of sexual conduct between SLC and the accused, he properly admitted that there were merely assumptions, which he had drawn.
JC’s evidence was neutral as to whether any uncharged acts had occurred, with JC conceding that he had not observed such conduct directly. I accept his evidence generally and have no doubt that he had seen the accused, and SLC in both the lounge room and the accused’s bedroom over the years with the door locked or with a chair jammed up against the door to keep it locked. While his evidence could not be used to corroborate the evidence of SLC, it is generally supportive of the prosecution case as to the opportunities open to the accused.
The evidence of KLA
KLA presented as a witness who was concerned about her daughter’s well being, and had been shocked by the allegations. She confirmed that she was at all times close to her daughter, and had noticed nothing to indicate any suggestion of sexual abuse. She did not exhibit any bias as a witness. I found her to be both a truthful witness and reliable historian. I accept her evidence that she did not have a permanent key for the Hurcombe Crescent premises, as the accused would not allow her to have one. I accept that she had her tubes tied prior to the events the subject of the five counts in the Information. She was neither examined nor cross-examined about whether the accused wore condoms when having sex with her.
Conclusions – Reasons for Verdicts
Count 1
I turn first to count 1 on the Information. I have set out in these reasons a summary of the evidence in respect of this count, which had allegedly occurred when SLC was 3 or 4 years old. I have also summarised the respective submissions of counsel.
I am not satisfied beyond reasonable doubt that the accused had sexual intercourse with SLC at Wickstein Close as she alleged. Accordingly there will be a verdict of not guilty on count 1.
As this conclusion may impact upon my findings as to the credibility of SLC generally and therefore be a crucial matter in my consideration of the remaining four counts, it is necessary that I explain how I reached that finding on count 1. cf R v Keyte (2000) 78 SASR 68.
That finding was not reached only because of the danger inherent in evidence given by a young girl about an event which she had alleged had occurred 10 years previously when she was aged 3 or 4 years.
The evidence of Dr Kummerow makes it abundantly clear that had an adult penis penetrated the hymen to the lips or fold of the skin adjacent to the entrance of the vaginal canal, the pain would have been severe and blood would have been apparent.
No complaint was made by the then 3 to 4 year old to her mother nor was any blood observed by her mother nor remembered by SLC. It is inherently implausible that the alleged offence of unlawful sexual intercourse did occur. I find positively that it did not occur, when she was aged 3 to 4 years.
SLC had deposed in chief to the fact of penetration by the penis. In cross-examination she conceded, while apparently confirming the statement she had made to the police, that she did not know whether the accused’s penis had in fact so penetrated.
I have no doubt that she genuinely and honestly believes that an event occurred at Wickstein Close, in which, to put it neutrally, she was sexually abused by the accused. While I have no doubt that the incident, the subject of count 1 did not occur at age 3 or 4, I am satisfied that SLC has merged in her mind subsequent events with an event which occurred at Wickstein Close. She has therefore reconstructed when it was that the first penetrative sexual conduct must have occurred.
I have thought long and hard as to whether this finding must lead inevitably to me having a reasonable doubt about the four remaining counts. Added to this consideration was the confusing evidence about the size of the bath the subject of one of the specific uncharged acts.
SLC’s evidence as to count 1 is a matter of concern, both because the honest belief which I have found she held, was unreliable. It is also a cause of concern that she was prepared to depose in chief to the fact of penetration – a matter about which she acknowledged in both her police statement and in cross-examination that she could not be certain.
Count 1 was in a different category to the other charged acts. I have no doubt that she had to reflect in late 2004 as to when the alleged sexual contact with the accused had commenced. The remaining four counts related to events which were allegedly relatively recent within her memory namely between the ages of 11 and approximately 13 years.
I had the opportunity to observe SLC’s demeanour in the witness box and the simple manner in which she expressed her relationship with the accused over that number of years.
I do not accept the submission of Mr Charman that because I do not accept the reliability of SLC’s evidence in respect of count 1 that I cannot be satisfied beyond reasonable doubt of the remaining four counts. However given my concern about her evidence on count 1, I have quite strictly and carefully scrutinised her evidence with respect to each of the remaining counts and the uncharged acts.
In relation to the four remaining counts; the specific uncharged acts and most of the non-specific uncharged acts, SLC gave evidence about events relatively fresh in her mind, and in respect of which she was able to give quite detailed particulars. In giving that evidence there was no suggestion in her presentation of any attempted reconstruction as there had been with respect to count 1.
The evidence of course was plain that there was no recent complaint made by SLC, nor was there any evidence of distress in respect of any of the five charged counts or any of the uncharged acts. I am acutely aware that SLC had had many opportunities to complain to her mother and several opportunities to complain to doctors who had directly raised the issue of sexual conduct with her. In fact she had positively denied such abuse. Again the accused gave evidence on oath in which he denied all of the allegations against him.
There was nothing in SLC’s presentation as a witness to suggest any improper motive. Of course I do not pose for myself the improper question of why would she make these allegations? The reason why such a question is improper is because there could be a myriad of reasons, and one should not speculate. Palmer v The Queen (1998) 151 ALR 16.
Even making allowance for the stressful position in which the accused found himself while giving his answers to the police, and when cross-examined and indeed for his apparent poor memory, I find that he was a most unimpressive witness. None of what he said had the ring of truth about it.
SLC’s evidence as to each of the four remaining counts had a clear ring of truth about it. I reject entirely the evidence of the accused on the remaining four counts and the uncharged acts. I remind myself that it does not follow that the accused is guilty of any charge simply because I have disbelieved him. There is no onus upon the accused to prove anything.
I turn to the uncharged acts.
Uncharged acts
Notwithstanding R v IK, I am satisfied beyond reasonable doubt that all of the specific and non-specific uncharged acts occurred in the manner deposed to by SLC. I accept that there was some confusing evidence about the size of the bath and whether it was physically possible for it to have occurred in the manner suggested. I am not left in any reasonable doubt that it did so occur. The evidence given about the other uncharged acts was compelling both in the manner in which SLC gave that evidence but also in its particularity. I repeat that I may only use this conduct in the manner I have previously indicated. In this case it places the charged acts in context and provides an explanation as to why no complaint was made. It is evidence of the confidence of the accused that he could exploit the opportunities available to him and that his conduct would not be exposed to KLA. I have reached this conclusion conscious of the Longman direction as to this conduct and of my expressed concerns about the credibility of SLC in respect of count 1.
Counts 2, 3, 4 and 5
In relation to counts 2, 3 and 5 I do not need to set out the elements of the offence of incest in s 72 of the Criminal Law Consolidation Act. In respect of these three counts the relationship of parent and child is admitted and the allegations, if accepted, would be sufficient to constitute sexual intercourse as defined.
I have assessed both SLC’s evidence and the denials of the accused separately in respect of each of the remaining counts. I am conscious of the directions I have given myself in respect of the use which I may make of the evidence of each of the other charged counts and the uncharged acts when considering separately each charged count. I have also had regard, in respect of each of the remaining counts, my concerns about her credibility generally following my findings on count 1.
As to count 2
I am satisfied beyond reasonable doubt that the accused did perform penile/anal sexual intercourse upon SLC as she deposed in her evidence. In this instance her evidence about the method he employed and the effect upon her had an obvious ring of truth to it. I am satisfied after taking into account the Longman and other directions and my concerns about the findings in count 1, that this count has been proved beyond reasonable doubt. I am in consequence convinced that there is no reasonable possibility consistent with the innocence of the accused despite his denials on oath.
There will be a verdict of guilty on this count.
As to count 3
I have scrutinised the evidence of this count quite separately from the evidence in the other counts.
SLC’s evidence on this count was both specific and compelling. Her description of the event of penile/vaginal intercourse followed by the “peeing on the carpet” was given without embellishment and in my view was obviously both a truthful and reliable account of what had occurred.
On this count, after taking account of the above mentioned directions and my concerns about the findings in count 1, I am satisfied that this count 3 has proved beyond reasonable doubt, and that there is no reasonable possibility consistent with the innocence of the accused despite his denials on oath.
As to counts 4 and 5
These counts as I have previously indicated arose out of the one incident. Count 4 alleges the offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act.
If I am satisfied beyond reasonable doubt that the accused touched SLC’s breasts, albeit on the outside of her bra, as alleged by SLC then the elements for this offence; namely that the accused intended to assault SLC, and did so in circumstances of indecency would be established given that SLC was then under the age of 16 years and incapable of lawfully consenting.
In considering these two counts together I was conscious of the submissions made by Mr Charman as to the suggested implausibility of the evidence of SLC as to the evidence as to the use of the condom and how the accused allegedly disposed of it.
I have considered in respect of these two counts the Longman and other directions, and the findings in count 1.
The evidence of SLC in respect of both the penile/vaginal intercourse shortly after her 13th birthday and its particularity with respect to the “glow-in-the-dark condom” and the placement of the pillow was so compelling that I have no doubt that it occurred in the manner deposed by SLC. As to the touching of the breasts that evidence was again given without any embellishment. It was quite particular. She did not suggest the direct touching of flesh on flesh. She was quite clear that the touching occurring by the accused feeling her breasts through the fabric of her bra.
I am satisfied that the prosecution case has proved beyond reasonable doubt counts 4 and 5. Again I am convinced that there is no reasonable possibility consistent with the accused’s innocence despite his denials of the offending.
Conclusion
I found SLC’s evidence separately given in respect of the four counts and uncharged acts so compelling that I am left in no doubt that they did each occur. This was not a complainant whose history might have been in doubt. SLC was the young daughter of the accused, who had been basically in his care right up to the date of the statement made to the police. Despite the initial separation of her parents the family unit seemed to continue to operate. As she tellingly said without any particular emotion or bias – this was her father and she loved her father despite what was going on. It was precisely because of this relationship that the accused could confidently take opportunities, which would otherwise be fraught with the danger of him being exposed by KLA. It is hardly surprising that SLC did not tell her mother, let alone the medical practitioners. This relationship also explains the fact that SLC and JC attended willingly and regularly at the accused’s house over the many years that he resided at Hurcombe Crescent.
I am satisfied beyond reasonable doubt that the prosecution has proved all of the elements of each of counts 2, 3, 4 and 5 on the Information beyond reasonable doubt.
Accordingly my verdicts are as follows:
Count 1: Not guilty
Count 2: Guilty
Count 3: Guilty
Count 4: Guilty
Count 5: Guilty
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