R v C, BF
[2022] SADC 86
•27 July 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, BF
Criminal Trial by Judge Alone
[2022] SADC 86
Reasons for the Verdict of her Honour Judge Fuller
27 July 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Accused charged with maintaining unlawful sexual relationship with granddaughter between 2016 and 2019 when complainant aged between 6 and 8 and living with accused – complainant participated in two prescribed interviews 7 months apart and gave evidence at pre-trial special hearing - initial complaint evidence led from complainant’s mother into whose care complainant returned in late July 2019 – evidence led of squalid living conditions and interaction between complainant and accused during two attendances by police in January and July 2019. Complainant gave evidence of threatening and violent behaviour of accused. This evidence was led as relevant to the probability of the offending occurring notwithstanding the familial relationship and the complainant’s failure to complain.
Held: Evidence of squalid living conditions and observed interaction between accused and complainant not sufficiently probative to be corroborative of (a) complainant’s evidence that the accused threatened or assaulted her (b) her failure to complain and did not render it more probable that the accused committed the offence. Complainant’s evidence of initial complaint preferred over that of her mother who was an unsatisfactory witness. Initial complaint not capable of demonstrating consistency of account with respect to three of the particularised unlawful sexual acts and limited detail regarding remaining particularised unlawful sexual act did not buttress complainant’s credibility in any significant way.
Inconsistencies in complainant’s account and absence of any mention of alleged act of anal intercourse in first prescribed interview or physical effects of that sexual act when disclosed in second prescribed interview give rise to reasonable doubt as to whether unlawful sexual acts occurred.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50, 50(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34P, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 87 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v MJJ, R v CJN [2013] SASFC 51, considered.
R v C, BF
[2022] SADC 86
On 4 July 2022 the accused was arraigned before me on the following Information:
[The accused] is charged with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 4th day of August 2016 and the 27th day of July 2019, at Murray Bridge, maintained an unlawful sexual relationship with [BC] a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Touching his penis in her presence on more than one occasion;
(b) Touching her vagina with his penis;
(c) Causing her to perform fellatio upon him; and
(d) Penetrating her anus with his penis.
The plea
The accused pleaded not guilty to the charge and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Elements of the offence.
To prove this charge the prosecution must prove beyond reasonable doubt that:
·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
·At the time the accused committed two or more unlawful sexual acts, he was an adult.
·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.
An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.
An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.
In this case, the unlawful sexual acts alleged are as follows:
·An act of gross indecency;
·Indecent assault;
·Unlawful sexual intercourse (fellatio, anal intercourse)
As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
It is an offence under the Criminal Law Consolidation Act 1935 (“CLCA”) to commit an act of gross indecency towards or in the presence of a person under the age of 16. This is an unlawful sexual act.
To prove this offence the prosecution must prove that the accused performed an act (in this case touching his penis) and that he performed the act intentionally towards or in the presence of the complainant. The prosecution must prove that the act was an act of gross indecency and that when it was performed the complainant was under the age of 16.
The prosecution must prove that the act was not only indecent but grossly indecent. Indecency carries with it a sexual connotation. ‘Indecency’ means some form of sexual conduct which is indecent having regard to the complainant’s age, the accused’s age, the circumstances of the alleged conduct and the contemporary standards of morality and decency of right-thinking members of the community. In this context, the word gross means something that is more than minor. It must be grossly indecent by reasonable, contemporary standards. There is no dispute that if I were to find proved the act particularised in paragraph (a) of the charge, I would find that this was an act of gross indecency.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. If the touching the subject of the particulars (b) took place in the way alleged by the complainant, this element will be established.
The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. It was not disputed that if I were to find proved the act particularised in (b) of the charge, I would find proved that the particular act was committed in circumstances of indecency.
It is an offence to have sexual intercourse with a person who is under the age of 17. Sexual intercourse includes an act of fellatio and anal intercourse, the latter involving penetration of the anus by the penis.
I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that two unlawful sexual acts occurred in the context of the ongoing relationship between the accused and the complainant.
The category of relationships falling within s 50 CLCA can never be closed because relationships vary widely, and the very concept evolves over time with societal changes.[1] The wide range of social and interpersonal relationships falling within the term include:
·Familial, legal and de-facto relationships;
·Residential relationships;
·Working relationships;
·Sporting and recreational relationships; and
·Professional relationships.
[1] R v Mann (2020) 135 SASR 457 at [26].
There is no dispute that the accused was the complainant’s grandfather and therefore in a familial relationship with her.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[2] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[3]
[3] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
Overview of the prosecution case
The prosecution alleges that the accused maintained a sexual relationship with BC when she was between 6 and 8 years of age. The accused is BC’s maternal grandfather. Her mother was 16 years old when she gave birth to BC and when BC was 12 months of age she was placed into the care of TC, the accused’s mother. Shortly thereafter TC delegated the care of BC to the accused.
On 22 June 2013 the accused signed a lease for an address in Murray Bridge and moved in there shortly afterwards with BC. They lived at that address continuously until 26 July 2019 when BC was removed from the accused’s care by the Department of Child Protection.
When BC was 6 or 7 years old, the accused committed the first unlawful sexual act against her. The last unlawful sexual act occurred shortly before she was removed from his care at 8 years of age. He was also violent towards her and threatened her.
The unlawful sexual acts commenced with the accused getting into the bath with BC and touching his penis in front of her. He picked up BC and put her on his lap and moved her up and down with his penis touching her vagina.
On another occasion, the accused and BC were in the lounge room and he touched his penis in her presence. On the same occasion he asked BC if he could put his penis in her mouth and she said no. He then grabbed her head and caused her to perform fellatio on him.
On a subsequent occasion, BC was lying on her stomach on a bed she shared with the accused in the lounge room. He kneeled behind her and inserted his penis into her anus.
BC participated in two prescribed interviews and gave evidence at a pre-trial special hearing. The interviews and evidence were tendered in the prosecution case, together with documents upon which BC drew pictures or words during the prescribed interviews and pre-trial special hearing.
BC complained to her mother KC in September 2019 that the accused had committed sexual acts against her. This complaint occurred after KC observed BC touching herself and asked her why she was doing that.
Police attended the address at which BC and the accused were living on 27 January 2019 and 7 July 2019 and made observations of the accused’s interaction with BC and the state of the house, which was filthy and the living conditions squalid.
Issues in dispute
The only issue in dispute is whether the prosecution has proved that the accused performed two or more unlawful sexual acts with or toward the complainant.
The evidence
I turn now to examine the evidence in more detail.
The following facts were agreed: Exhibit P8:
Age and Relationships
1. The accused, [BFC], was born on 10 May 1975.
2. The complainant, [BJSFC], was born on 5 August 2010.
3. The complainant is the daughter of [KC].
4. [KC] is the daughter of [BC].
5. [BC] is the paternal grandfather of the complainant.
[Address redacted], Murray Bridge
6. On 22 June 2013, the accused, [BFC], signed a lease for the address of [redacted], Murray Bridge and moved there soon after with the complainant.
7. This was a property leased through Housing SA.
8. Until 26 July 2019, this was the primary residence of the accused and the complainant.
Care of [BC]
9. When the complainant was approximately 12 months old, she was placed by family in the sole care of the accused.
10. The accused’s sole care of the complainant continued until 26 July 2019, when [BC] was placed by the Department of Child Protection back into the care of her mother, [KC].
Prescribed Interview dated 24 September 2019 – Exhibit P1
11. On 24 September 2019, Senior Constable Nicolle Dempster conducted a prescribed interview with the complainant pursuant to section 13BA of the Evidence Act SA.
12. A copy of this recorded interview is tendered as Exhibit P1.
13. During this interview the complainant was provided with a naked male body chart.
14. The complainant drew a circle around the penis area of the body chart. this was done at the 13:46 mark of the interview and corresponds with lines 129-136 of the transcript of that interview, marked MFI P1A.
15. On this same body chart, at the 44:06 mark of the interview, she wrote the words ‘wewe’, this corresponds with lines 433-435 of the transcript marked MFI P1A.
16. A copy of this body chart is tendered as Exhibit P3.
17. At the 16:46 mark of the same interview, the complainant was provided with a pen and drew a picture on a page of Senior Constable Dempster’s notes. This corresponds with line 171 of the transcript marked MFI P1A.
18. A copy of this picture is tendered as Exhibit P4.
Prescribed Interview dated 9 April 2020 – Exhibit P2
19. On 9 April 2020, Senior Constable Nicolle Dempster conducted a prescribed interview with the complainant pursuant to section 13BA of the Evidence Act SA.
20. A copy of this recorded interview is tendered as Exhibit P2.
21. During this interview, the complainant was provided with an A4 colouring in picture.
22. At the 16:20 mark of this interview, the complainant turned the page over on the colouring in page and drew a picture of a ‘blue lantern’. This corresponds with lines 184-186 of the transcript of the interview marked MFI P2A.
23. At the 26:36 mark of this interview, on the same piece of paper, the complainant drew an oval representing a bath. She then drew a larger oval within that oval representing the accused, she drew a smaller circle within the oval representing herself, this corresponds with line 250 of the transcript of the interview marked MFI P2A.
24. At the 35:42 mark of this interview, on the same piece of paper, the complainant drew a picture of a bed with two figures lying on the bed representing the accused, and herself. This corresponds with lines 302-318 of the transcript marked MFI P2A.
25. At the 38:44 mark of the interview, the complainant drew another picture of a bed with figures on the bed representing the accused and herself. This corresponds with lines 332-344 of the transcript marked MFI P2A. This picture was drawn above the picture drawn at the 35:42 mark.
26. A copy of the page on which these pictures were drawn is tendered as Exhibit P5.
The recorded prescribed interviews of BC were tendered in evidence: P1 and P2. The evidence she gave at a pre-trial special hearing was tendered: P6. With the consent of the parties I have had recourse to the transcript of that hearing as an aide memoire, but it was not marked for identification.
The complainant’s evidence
The complainant did not give evidence before me and accordingly I did not have the opportunity to ask the complainant any questions regarding any aspect of her evidence, or the answers she gave in her recorded interviews. I observe in passing that where a pre-trial special hearing is conducted before a Judge who is not the trial Judge, there is no opportunity for the trial Judge to clarify or otherwise explore in an appropriate manner matters which the trial Judge considers important or significant. In this case, there were questions that I would have asked the complainant had I been the Judge conducting the pre-trial special hearing, the answers to which may well have had a bearing on my evaluation of the complainant’s credibility and reliability.[4]
[4] One of the questions I would have asked BC had she been giving evidence in the trial is the reason she did not mention the allegation of anal intercourse in the first interview. In closing submissions, the prosecutor noted that no questions had been asked of BC as to why she did not mention the allegation of anal intercourse in her first interview and as a result ‘we can only, I suppose, draw inferences or try to look at the other evidence to potentially explain why that might be’.
The Judge who conducted the pre-trial special hearing was not satisfied that the complainant had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence but permitted her to give unsworn evidence as his Honour was satisfied that she understood the difference between the truth and a lie.
Accordingly, I direct myself that I must exercise caution in determining whether to accept her evidence and the weight to be given to it. The caution is not simply because she is a child, but because her cognitive development is such that she is unable to appreciate the heavy obligation involved in giving sworn evidence. I have taken into account that her evidence may not be as reliable as evidence given on oath or affirmation and have exercised the appropriate degree of caution in determining the weight to attribute to her evidence.
The first prescribed interview – 24 September 2019
The interview started with some preliminary questions directed towards determining whether BC understood the difference between a truth and a lie.
When asked why she was there, BC said she had come to talk about her ‘Poppa’. She said she was in the bath and did not know that he was going to hop in with her. She said, ‘he picked me up and hopped me on him’. When asked if this had happened once or more than once, she said ‘um more than one time’. However, when the interviewer asked her if she could tell her everything about the last time it happened, BC said she did not understand. She was asked again if that had happened once or more than once and she said, ‘one time’. Later she was asked if anything like this had ever happened before and she said, ‘well it started when I was seven’. She then said that the incident in the bath happened when she was seven years old.
BC said that ‘he hopped me on him, and he kept pressing me up and down and I was crying. He was forcing me to do it.’ She explained that the accused was forcing her to move up and down. She was then asked to explain what happened from the time the accused got undressed and got into the bath. She said when he got in, she moved to the side of the bath where the door was.
Later in the interview she was asked to describe how the accused moved her up on his body and she said that he forced her to ‘to do the leg splits on him’ and then hopped her on his body. He had his hands on her hips and ‘placed me on his rude part and he started moving up and down’. She said the part of her body that he put on his rude part was her ‘we we’. She said she could not say no to the accused ‘because he always smacks me all the time’. She said he always smacks her on the leg and grabs her on the arm and ‘then my arm really hurts so I have to go to the doctors’.
BC said that the accused twisted her arm and she had to go the doctor and it was ‘red and I had to put an icepack there and that’s all’. She did not tell the doctor was happened because ‘Poppa was furious, and I didn’t want to…and I didn’t want him to do it again’. She did not tell the doctor why her arm was so sore. She could not remember how old she was when she saw the doctor.
When asked what the accused did after moving her up and down, she said, ‘it’s a rude word’ and she did not want to use the word. She then circled an area on a body chart to indicate the body part to which she was referring: Exhibit P3. BC then said he was grabbing this body part and moving it up and down. She was asked if the accused was rubbing it and moving it up and down and she said yes. She motioned with her hand during these answers, with her fingers and thumb configured as if she was holding something and moving her hand up and down.
BC drew a picture of the bath and the respective positions of her and the accused in it: Exhibit P4. While the accused was rubbing himself, BC said he was closing his eyes but did not say anything. She said he then hopped out of the bath and got undressed. She was in the bath for thirty seconds and then she got out and hopped into her clothes and then the accused asked her if she could have a shower. She then explained that when she said the accused got out of the bath and got undressed, she in fact meant that he put on his clothes. When she got out of the bath she put on her flamingo shorts and butterfly dress. She then said that the accused was playing music in the lounge room while she was in the shower.
BC then said she got out of the shower and at night-time she was in her bed and the dog had ‘weed on the bed’ so she could not lie in her bed in her room. She said that the accused was always in the lounge room, and he was on the couch. She put on a little lamp and then she said the accused did the same thing as in the bath. She said she did not want to use the word; it was the same word. She then said ‘it was pointy, I don’t want to say it, but it was pointy. He got a towel and started playing with it’. She motioned with her hand by forming a circle with her fingers and thumb. At this point in the interview when asked if she knew the name for the body part she was describing she became visibly distressed and was gripping her hands together. She said that the accused was fiddling with this body part and then said ‘he grabbed it and then he went, like um all around’ at the same time forming a circle with her fingers and thumb and motioning her hand up and down. She said, ‘I was asleep and it was dark and then I suddenly woke up and saw him doing it and then I went to the toilet’. She said the accused knew she had seen him doing this.
BC then said ‘the part that he was fiddling with, he asked if he, he could put it in my mouth and I said no…’ She then said ‘he forced me to do it. He grabbed my head and then I was crying…he moved it, he moved it where his rude part was’. She said he placed his rude part in her mouth. BC was then asked what happened next and she replied, ‘um it was two o’clock in the morning and then I got ready for school…and that was the day that I was taken off, taken off of Poppa’.
BC used her hands to show where the accused had grabbed her around the head. She said after he put his rude part in her mouth, he started moving it and she was crying. His rude part went into her mouth when she said ‘stop, I want to go somewhere else.’ She said it went on for a long time, but she could not remember because she was little and then she turned eight years old and was taken off the accused. She could not tell the interviewer anything about the accused’s rude part or whether she noticed anything about it. The accused was wearing his black t‑shirt and grey jeans.
She was asked if the accused had ever done anything like that to her before and she said:
Um I don’t know this um in the middle of that, I was little and then I turned eight and then I went to school and [indistinguishable].
He said ‘don’t tell anyone else otherwise I’ll come up there and flog you’.
BC then said that when the accused put her in the bath, she was seven years old and that it ended when she was eight years old because she was taken away. The interviewer then asked her whether the incident involving the accused putting his rude part in her mouth happened when she was 8 years old and the bath when she was 7 years old, and BC said yes. She was then asked this series of questions:
Dempster: Okay. So did anything else happen between the time in the bath you told me about and the time with his, his rude part in your mouth?
BC: No.
Dempster: So nothing else had happened? Did Poppa do anything else to you other than those two times?
BC: Yes.
Dempster: Would you like to tell me about one of those, another one of those times?
BC: I was in bed.
Dempster: Hmm mm
BC: and then I couldn’t remember, I can’t remember any other parts, but I knew it happened between those two.
BC was asked if there was anything that had happened with the accused that she had not told the interviewer. BC then related an occasion when her dog Lucy escaped, and the accused smacked her. She was asked whether there were any other times that the accused had done something to her that she did not like. BC shook her head and asked if she could come back another time.
Second prescribed interview – 9 April 2020
BC said that she could not entirely remember what she told the prescribed interviewer on the last occasion. BC then asked the interviewer whether she told her ‘about the bath part’. The interviewer then reminded BC that she had told her last time that she had been in the bath and that the accused got in the bath, and something happened in the bath. BC said she thought she had told the interviewer about being in the bath but wanted to know what she had said and that she was confused because she did not know what she had said and did not want to repeat the words.
The interviewer asked her if she wanted to tell her anything more about the bath and BC replied, ‘Ah well, well I don’t know what actually happened like sometimes I forget’. The interviewer then told BC that she had said on the last occasion that the accused got out of the bath and got dressed and that she got out and got dressed and then the accused asked her to have a shower. BC said she did not think she told the interviewer that the accused asked her to have a shower and then said, ‘I don’t really know’. She was asked if something happened in the shower and she said no ‘but did I tell you the part when I went to the room…in my, my Pop’s room’. She then described an occasion when her dog Lucy was stuck in the accused’s room, and she went in to get her out and she found a book and opened it. She said it ‘was a book about not nice things’.
The interviewer reminded BC that she had said at the first interview that the accused was playing music in the lounge when she was in the shower and asked her if she could recall telling her about that bit and BC responded ‘Um, I, I had a normal shower and then I got out. Nothing happened after that’. She said she went and asked the accused if she could go to her friend’s house again and he let her.
The interviewer then asked BC if the occasion when the accused was playing with his rude part in the lounge room was after shower time or another time. BC said it was another time. She then described the accused going to sleep in his chair and she went to sleep on a mattress in the lounge room. BC said she went to sleep and woke up in the middle of the night when she heard noises. She opened up the blue lantern a little bit and when she did that, the noise was up above her and it was the accused’s ‘chopper’. BC then said she needed to go to the toilet, and he stopped what he was doing and pretended he was asleep. BC said that the accused ‘was putting his fingers on it and moving it around’. She said that she came back after going to the toilet and:
…then he pretended to wake up and then it was day time that time and then and then I just got up ready for school and that was the time when I, when DCP came to pick me up to take me to mum’s. Yeah I just, I, I just spoke to the doctor about talking to Mum that’s why I moved’.
BC was reminded by the interviewer that on the last occasion she had said that the accused was playing with his rude part and that he got a towel. BC said she could not recall telling the interviewer that.
BC then said she now remembered about the bath time and asked if she could tell the interviewer about that. She said the accused asked her to open up her legs and she got up and then he lifted her up and placed her on him ‘and then he started moving me up and down without putting my Minnie into his Chopper’. She said she started crying and she did not know what happened then and that was all she could tell the interviewer about the bath time because ‘I don’t know what really happened’.
When pressed about what she meant when she said that she did not know what really happened she said the accused let her off him and she got dressed and ran back to her room. She said that this was not a different time from when she got out of the bath, and he told her to have a shower. BC said that the accused had not ever put his chopper in her Minnie because if that had happened, she would have run to her friend’s house.
The interviewer then reminded BC that on the last occasion she had told her that the accused had asked to put his chopper in her mouth. BC said she was in the lounge room when this happened and ‘as I said, the mattress was there, and he was on the chair when that happened’.
The interviewer then told BC she had told her about two occasions when something had happened, in the bath and when she was sleeping on the mattress in the lounge room. She was then asked if there had been more than two times when something has happened to her. She replied, ‘yes it all started when I was six’. The interviewer again reminded her that she had told her about the time in the bath and the time in the loungeroom when she woke up with the lantern and then asked, ‘is there another time that you’d like to tell me about that something happened?’. BC replied:
Yes. I never told you about this part because I forgot…
When I was in my bed, then he came in and then and then I felt something squishing me.
BC asked for a break at this point in the interview but returned two minutes later. The interview continued as follows:
Dempster: …so just before our quick break, you were telling me that you were in bed and you felt something squishing you. Tell me everything you can remember about that time?
BC: Well, I, his chopper his chopper was squishing on my, on my bottom and he asked me to take my, to take my, um to take my undies off, but I said “no” and he said, and he said, “you have to take them off” and then I said “no” again, so he got really angry and I started to get scared.
Dempster: Hmm mm
BC: So I had to do it.
Dempster: You had to do it?
BC: Yes. So his chopper went into my bottom and that’s all of that part. I could never really um, I, I don’t know what really happened after like that part but yeah.
BC said she was lying on her back but then said she meant her tummy. The accused was lying next to her on his back, and he was on his phone playing games. BC drew a picture of where she and the accused were and said he got up and was kneeling down. When he was kneeling, he started to ‘put his chopper into my bottom and that’s all’.
BC was asked which part of her body her bottom was, and she said it was the part where ‘you like poo’. She was asked whether the accused actually put his chopper into her bottom and she said, ‘yes he did’ and ‘he was moving it up and down so then I quickly got up and said ‘what are you doing’ and then he quickly ran into his room and pretended that he wasn’t doing it’. BC said that was all she could remember, and she thought that was all that had happened.
BC was reminded that she had said at the first interview that the accused took her to the doctor’s because her arm was hurt. BC said she had been on the swings playing and then fell over and cracked her arm. BC confirmed that this is what she had meant when she said her arm was hurt.
At the end of the interview, she was asked if there was anything else she could think of that had happened to her that they had not spoken about, and she said no.
Exhibit P5 contains the drawings of BC during the second prescribed interview, including the lantern, her position and that of the accused during the incident in which he put his ‘chopper’ in her bottom and where she and the accused were in the bath.
Pre-trial special hearing – 20 December 2021.
In examination in chief, BC identified the accused’s bedroom as being bedroom 1 and hers as bedroom 2 on what is now P7.
BC said that when the accused had his rude part in her mouth his jeans were up to his ankles. She was asked how it felt and tasted when his rude part went into her mouth and in answer to each question she said ‘disgusting’. She was asked if she recalled telling the police that the accused’s rude part was pointing, and she said yes. She was asked if she could use any other words to describe what it looked like, and she said ‘hairy’.
BC could not recall what she was wearing when she was lying on the bed when the accused came in and put his chopper in her bottom. She said he was wearing his grey tracksuit pants and a dark T-shirt. She was not sure what had happened to his clothes when his chopper went into her bottom. She said her clothes were on the floor. She then said the accused had told her to take her clothes off and she did. She was asked if she could describe how it felt when the accused’s chopper was in her bottom and she said ‘hurting’.
BC was asked if she remembered telling the police that she was put in her mother’s care and told her everything about it and she said yes. She was asked what she told her mother and BC said ‘about the bath’ and she used the word ‘me’ and ‘I was crying’. She told her mother that the accused picked her up and placed her on him but she did not know if she said anything else and she could not remember. BC did not know why she told her mother about what the accused did to her but she told her when she lived with her. She did not tell anyone before this because the accused would threaten her. She could not remember how he threatened her. She was asked if the accused ever said anything about not telling anyone about what he had done and she replied ‘do not’ and that those were his exact words.
BC said that when the accused smacked her on the leg and grabbed her arm that made her feel angry and angry about the accused.
In cross-examination, BC said she would not take a bath every day. When asked if she took a bath every second day she said ‘kind of’. She said she sometimes had a shower and the accused would help her go to the bath or shower and turn on the water for her and then leave the bathroom. She would get into the bath or shower herself.
BC agreed that she would sleep in her bedroom most nights, but she had slept on a mattress in the living room before. She could not remember how many times. The night that she told police something happened in the loungeroom was a night that she had put the mattress in the loungeroom to sleep. She said she was not going to school at that time, and she thought it was because it was a weekend but she was not sure. She said that the other times that she put the mattress in the lounge room would usually be on a weekend and agreed that it was something she would do when she did not have school the next day. If she had school, she would sleep in her bedroom.
BC confirmed that the accused touched his rude part on the occasion that something happened in the bath and when something happened in the living room.
BC said the bath incident happened during the day, but she could not say when during the day. She usually had a bath during the day.
BC agreed that when she first spoke to police she did not mention the occasion when the accused put his rude part in her bottom. She agreed that she asked the police to stop the first interview because she wanted to speak with her mother but she could not remember why. BC agreed that she had spoken to her mother after her first interview about police. Before her first interview, her mother had told her what she had to say to the police when she spoke to them. The second time she spoke to her mother, her mother told her she had to speak to the police again and she told her that she had to tell police ‘what happened to me’ and to ‘speak up’.
BC said she learnt the word ‘chopper’ and that it was another name for a rude part at ‘Ninny’s’, that is, at her nannas. Ninny also taught her that the word ‘minnie’ meant vagina. She had been staying at Ninny’s before her second interview with police.
BC said that on the day she was taken out of the accused’s house she did not go to school. Defence counsel then asked BC if she remembered telling police the first time that the accused put his rude part in her mouth and it was two o’clock in the morning and that she got ready for school and she said yes. She also agreed that she told police that was the day she was taken off the accused. BC said she went to school that day but did not go back to the accused’s house. BC then said that the incident when the accused put his rude part in her mouth did not happen the day before she was taken away and that it happened before that but she could not say how long before. She said nothing happened the night before she was taken away.
BC said that she did not want to go back to the accused’s house any more and this was because he would smack her and get grumpy with her.
The complainant’s mother
KC is the mother of six children and BC is the eldest. She was 16 when BC was born.[5] After 12 months, BC went into her grandmother, TC’s care. TC is the mother of the accused. KC is the daughter of the accused. KC did not know how long BC stayed in her grandmother’s care but at some point, she was transferred into the accused’s care. This was not discussed with her before it happened.[6]
[5] T 20.
[6] T 21-22.
BC was not returned to her care until 2019 when she received a telephone call from a teacher or the Department of Child Protection asking her to pick up BC. When she said that she could not do so, BC was dropped off to her at Gawler.[7]
[7] T 23.
When BC was living with the accused, KC could see her any time she wanted. When she did see her, ‘everything was normal. It was good’. KC said her relationship with her father was good, although they would have disagreements about him spoiling BC or about things that KC would do with BC that the accused thought were wrong. KC gave an example of the accused telling her that BC did not like sauce being put on her plate.[8]
[8] T 24.
The accused told KC that BC would not be coming back to live with her until she was 21 years of age because KC was not in a good place at the time.[9]
[9] T 25.
When BC returned to live with her in 2019, KC saw her ‘do something to my other daughter, [MC] and I asked what happened, like why did she do it’.[10] KC was asked to describe what BC did and she gave this evidence:
Well they were laying down and I seen her touch her down there and then I quickly, I just said what happened, why did you do that, and then she broke down crying to me and I asked her. She wouldn’t say anything for a couple of days and then she said ‘Pop’.[11]
[10] T 25, 33-34.
[11] T 26, 14-18.
KC said that ‘down there’ meant ‘private parts’.[12]KC said that BC would cry during the day and night ‘out of nowhere’ and when she sat her down again to ask her why she did that to MC she might have said ‘cos of pop’.[13] KC said she took her to the Gawler police station straight away.[14]
[12] T 26.
[13] T 28.
[14] T 28.
At this point I raised with the prosecutor my concerns about KC’s demeanour as she appeared to be struggling to answer questions and responded slowly to simple questions and appeared to have trouble concentrating. She could not recall the birth dates of her twins and had to be corrected regarding the year of BC’s birth. The prosecutor sought an adjournment to discuss the issue with the investigating officer. I was advised from the bar table that the investigating officer said this was KC’s normal presentation, and the evidence resumed.
KC asked BC what happened, and BC told her that ‘Pop what made me put my – her hand on his thing, that’s what she told me, and from then I took her straight back up to the police station and she didn’t say anything when I took her back to them’.[15] KC could not handle what had happened and BC then went into the care of her ex-partner’s mother.
[15] T 32, 13-16.
KC could not recall anything else that BC had said to her about what the accused had done, and she did not ask her.[16]The only other body part that BC mentioned was her mouth and this conversation occurred after she had been to the police station for the first time[17]:
AShe just said her mouth, that’s what she said, and that’s all, that was it, that’s all she said to me.
QDo you remember what she said about her mouth.
ANo, she just said her mouth, like, yes, she said about Pop, something about her mouth or something, I don’t know.[18]
[16] T 32.
[17] T 33-34.
[18] T 33, 4-9.
That was all that KC could recall regarding the conversation with BC. KC was asked if BC said anything else about how she was feeling, and KC said ‘No, she just said that she missed Pop, that’s all, like she kept, I don’t know, yeah’.[19]
[19] T 34, 23-24.
BC did ask KC ‘is Pop going to find out?’ and KC told her that he might and that she did not know. BC looked upset.
In cross-examination, KC said she started visiting BC when she was two or three years of age. KC insisted that she was with BC when she spoke to the police the first time. BC did not tell the police anything on that occasion. KC initially said that the second time, which was a couple of days later, BC was with her ex-partner’s mother at the police station. She then said she took BC back to the police station but insisted that there was no occasion when BC was alone in a room with a police officer while she waited outside.[20]
[20] T 37-38.
KC agreed that she told police in September 2019 that she did not have a very good relationship with her father, and she did not think it was best for BC to be living with him and she asked for BC back, but her father said she could not have her until she was 21.[21]She agreed she was angry with her father about this.
[21] T 40.
KC agreed that she did not tell police in September 2019 that BC had tried to touch MC on her private parts. She agreed that she told police that ‘since [BC] has been back living with us, I’ve noticed that she is really quiet and reserved, almost vacant, like she isn’t there. She is really jumpy and doesn’t interact with her young sister’.[22]
[22] T 42.
KC agreed that she also told police in September 2019 that ‘I found her staring at nothing sometimes and when I ask her what she is thinking about, she says ‘nothing’’ and ‘I’ve also caught her on a number of occasions touching her breasts inappropriately and I’ve told her to stop and not to do that, especially in front of her sister’.[23]
[23] T 42, 26-36.
KC agreed that she told police, ‘On Saturday 21 September, I was at home with [BC] when I walked into the loungeroom and saw her touching herself again. I told her to stop doing that. I sat down with her and asked her why she was doing this’.[24] However, KC denied that it was after this conversation that she took BC to the police station and insisted that BC touching MC and BC touching herself occurred before she first took BC to the police.[25]
[24] T 43, 20-25.
[25] T 43-44.
In re-examination, KC said that BC touched MC again after she first went to the police station. KC also elaborated on the conversation she had with BC when she asked her what happened:
Yeah. Well, she said to me – I said, ‘What happened?’ and then she said – actioned with her hands and stuff. ‘Pop made me put my hands on him like that’, yeah. She was just – straightaway when she did that I, yeah, like I knew – yeah, she just said ‘Pop made me put my hands on’ – yeah that’s what she said.[26]
[26] T 47, 25-30.
Discreditable conduct evidence
Two police witnesses were called to give evidence regarding the living conditions at the home at which BC and the accused resided in 2019. It is the prosecution case that the squalid living conditions, when combined with the evidence of BC that the accused was violent towards her are relevant to the probability of him sexually abusing her and serve to explain why she was afraid to complain about the sexual abuse.
Constable Rosemary Hawky gave evidence that she and Constable Scott Bow attended the home on 27 January 2019 for the purpose of a welfare check after a report of a young female alone at the address. She arrived at the address at 9.45am and after knocking on the door it was answered by BC.[27] BC told Constable Hawky that she was home alone, and her grandfather had gone shopping.
[27] T 51.
Constable Hawky could see into the house from the front door and asked BC if she could look at her bedroom. Constable Hawky described seeing lots of junk clothing on the ground.[28] BC led her through the dining room where she could see the living room and then she went into the bedroom marked ‘2’ on P7. The state of the rest of the house was similar; there was clothing and junk on the ground, together with water on the floor and animal faeces. She noticed dirt, mould and grime in the kitchen and a pile of dishes. There was a log in the hallway covered by clothing.[29]
[28] T 52-53.
[29] T 53-54.
Photographs taken by Constable Hawky were tendered: Exhibit P 9 and she was taken through them in evidence. There were animal faeces in BC’s bedroom and very limited linen. The ground was damp. As she and Constable Bow were leaving the house, the accused returned home. He was belligerent and was concerned about them being in the house.[30]He told BC off for letting police into the house.
[30] T 55-56.
Constable Hawky described BC as shy and quiet. After they had spoken to her for a little while she ‘warmed up’ to them and was happy to take them into her bedroom. [31]
[31] T 57.
As they were leaving, Constable Hawky told the accused that the living conditions were sickening and BC should not be left alone at the address. When they returned to the police station she telephoned CARL and notified of the living arrangements.[32]
[32] T 57.
Senior Constable Thomas Ryan Jonker and Constable Jamie Kemper attended the accused’s home address at 1.45am on 7 July 2019 for a welfare check of the occupants. Senior Constable Jonker said that when they approached the address they noticed domestic waste in the front yard and on the driveway, including large garbage bags of food scraps and similar items. A dog was barking out the back.[33]
[33] T 59.
They knocked on the front door and windows and could hear movement, but no one came to the front door for about 10 minutes.[34]The accused then came to the door and was ‘hyperaggressive’ and ‘mistrusting’ of police. He was swearing a lot and was generally hostile.[35]
[34] T 60.
[35] T 61.
Senior Constable Jonker said that there was no urgency about the tasking as it was a welfare check but it was a grade three so the response time was expected to be within the hour. When they saw the level of waste and filth, he considered the matter to be urgent.[36]
[36] T 61.
Senior Constable Jonker knew that the accused was wanted for a breach of bail so they decided to arrest him so that they could gain access to the house.[37] Upon arresting the accused, they followed him into the house so he could obtain his wallet, keys and ID. When inside the house, Senior Constable Jonker said it was ‘in a state of disgrace’. There were faeces everywhere, with a hot urine smell and there was a domestic rubbish smell.[38]
[37] The evidence that the accused was wanted for a breach of bail is discreditable conduct evidence. I have not misused this evidence by engaging in impermissible propensity reasoning.
[38] T 62-63.
In the living room as marked on P7, BC was lying on a bed. The accused walked up to her and grabbed her and shook her and said, ‘wake up, wake up, the dogs are here, the mutts are going to put me inside’. Senior Constable Jonker described the accused as behaving in a ‘passive aggressive’ manner to BC and in a similar manner to his behaviour with police. Senior Constable Jonker said BC was shaking, scared and terrified and could not say anything.[39]
[39] T 64.
The accused stood between police and BC and said, ‘do not speak to my granddaughter’ and told BC not to speak to police. Senior Constable Jonker initially anticipated arranging for a relative or neighbour to look after BC when they took the accused back to the station for processing. The accused told police that they were doing it hard by themselves and there was no support. Although it was not commonplace, Senior Constable Jonker decided to take BC with them back to the station.[40]
[40] T 65-66.
At the station, Senior Constable Jonker spoke to BC briefly and she said, ‘it’s just me and dad, me and granddad and without me he’d have no one.’[41] Senior Constable Jonker said, ‘she felt obliged to be at his side but she was also scared in the same breath’.[42]
[41] T 67, 33-34.
[42] T 67, 34-36. I have disregarded the inadmissible opinion evidence of Senior Constable Jonker regarding BC’s state of mind.
Whilst the accused was still at the station, Senior Constable Jonker returned to the address and took photographs: Exhibit P10. He said the dog in the photographs was a second dog at the premises.[43]When they had entered, the living room had a makeshift bed comprised of blankets, couch cushions and it was near an elemental heater.[44]The bedding was soiled and dirty with hair and other matter on it. Everything inside the house was damp and humid.[45]The corridor was littered with animal faeces and urine, leaves and waste. The kitchen cupboards were dripping with oil and grease from the bench as was the oven. BC told police that she had tried to cook a meal. There were food scraps and decaying food. The toilet was not working and it was fully loaded with human faeces. The rest of the house was littered with filth and animal faeces.[46] The amount of waste and items on the floor made access to areas of the house difficult.[47]
[43] T 68.
[44] T 70.
[45] T 71.
[46] T 74-75.
[47] T 77.
Senior Constable Jonker was then shown photographs taken by another police officer on 26 November 2019 of the outside and inside of the premises: Exhibit P11. He said that the front yard was cleaner with less domestic waste. He was then taken through the photographs and asked to compare the state of the house with his observations on 7 July 2019. He said it was broadly similar but there were some changes in furniture and he said there was less bedding, laundry and faeces on the floor. The hole in the roof in photograph 14 was not there when he attended on 7 July 2019.[48]
[48] T 81-82.
In cross-examination, Senior Constable Jonker confirmed that there were no other arrangements for someone else to take BC away and she was left with the accused.[49]
[49] T 83.
Closing submissions
In her closing address, Ms Anderson for the prosecution, said that the prosecution case primarily relied upon the evidence of BC. However, it was argued that BC’s evidence was corroborated by the observations of her mother of her sexualised behaviour and the observations of police of the living conditions and relationship between the accused and BC.
Ms Anderson said the two accounts that BC gave in the first prescribed interview of the events in the bath, one of which included an allegation that the accused rubbed his penis and the other which included an allegation that the accused put her on his penis and moved her up and down could be explained by reference to the disjointed nature of the interview process. Ms Anderson said this may have given the appearance that there was an inconsistency in her account of what occurred in the bath. Ms Anderson said that I should look at her evidence as a whole and take into account her age at the time of the interview and her age at the time of the alleged event.
Ms Anderson said that BC was much more engaged in the second prescribed interview and her account a bit more coherent. Ms Anderson agreed that there was an inconsistency in her account in the first interview of the fellatio allegation coinciding with her being taken away from the accused when compared with her account in the second interview. Ms Anderson argued that BC’s evidence at the pre-trial special hearing that when the accused’s penis was in her mouth it felt and tasted disgusting was specific detail that bolstered her credibility.
Ms Anderson argued that BC’s omission to mention in the first interview the allegation of anal intercourse was because she did not want to talk about it or had forgotten the specifics of the incident. Ms Anderson said that when BC was asked in the first interview whether the accused had done anything else to her, she said yes and that she was in bed but could not remember any other parts. Accordingly, it was argued that I could find that there was a reference to another incident and by the time of the second interview she had had time to ‘collect her thoughts’. Ms Anderson acknowledged that BC had not been asked at the pre-trial special hearing why she had omitted to mention the allegation of anal intercourse in her first interview. However, Ms Anderson said I could draw inferences or look at other evidence to explain why that might be but quite properly acknowledged that this might involve pure speculation.
Ms Anderson said that the apparent difference between the account BC gave in her first interview of the accused twisting her arm to the point that she had to go to the doctor and her account in the second interview that she cracked her arm after playing on the swings and falling over was not necessarily an inconsistency. Ms Anderson said that the interviewer did not make it sufficiently clear to BC that her attention was being directed towards the occasion when the accused twisted her arm and she had to go to the doctors. However, Ms Anderson conceded that if I was satisfied there was an inconsistency, there is no explanation for it without engaging in speculation. Ultimately, Ms Anderson said that this inconsistency was of little moment because BC had given clear evidence of the accused being violent and threatening towards her and telling her not to disclose the abuse to anyone.
Ms Anderson said that BC’s evidence of acts of violence and aggression was corroborated by the evidence of Senior Constable Jonker. She said that the fact that the accused grabbed and shook BC was indicative of the way he would exert his power and control over her and was why she appeared terrified. Ms Anderson also relied upon the accused’s reaction to BC letting police into the house in January 2019 as corroborative of her evidence of the accused’s behaviour towards her.
Ms Anderson said that the evidence of Senior Constable Jonker that the accused and BC were sleeping in the loungeroom when police attended corroborates BC’s evidence that they slept in the same area, and in turn, supports her account of the location and opportunity for the act of fellatio to take place.
Ms Anderson said that BC’s reluctance to talk again about incidents she described in her first interview was probative of the fact that she was embarrassed and distressed. This in turn reflects favourably on her credibility and rebuts any suggestion that she has been coached. Ms Anderson said the physical demonstrations given by BC of the accused’s actions in rubbing his penis could only have been performed if she had actually seen those things happen.
Ms Anderson said that although BC alleged in her first interview that the abuse started when she was 7 years of age and in her second interview said it was 6 years of age, I should take into her account her age at the time of the interview and the difficulty in estimating her age. Ms Anderson said the inconsistency in her accounts in the interviews and pre-trial special hearing regarding when the fellatio incident occurred (that is whether it occurred the night before she was taken away from the accused or some time earlier) was of little moment because BC was consistent in her account that she was taken away when she was 8 years of age.
Ms Anderson said that the conversation between BC and her mother was an initial complaint but acknowledged that there was an inconsistency between the evidence of BC and her mother as to the terms of that complaint. Ms Anderson said I should prefer BC’s evidence over that of her mother because her mother clearly struggled with her recall in evidence.
Ms Anderson said I should accept KC’s evidence about BC’s sexualised behaviour and her response when questioned about it as enabling me to infer that BC learnt this behaviour from the accused.
Finally, Ms Anderson addressed the evidence of the squalid living conditions. Ms Anderson referred me to R v MJJ, R v CJN [2013] SASCFC 51 and argued that the evidence should cause me to give less or no weight to the parental relationship and duty as a reason for thinking that the offending was improbable. She also argued that the living conditions and violence were relevant to the degree of power, control and authority the accused exercised over BC and caused her to submit and not complain.
Ms Demertzis, for the accused, emphasised the inconsistency in BC’s account of the bath incident and said that she gave two descriptions of the encounter that were mutually exclusive. Ms Demertzis also focused on the occasions in the prescribed interviews when BC asserted that she did not really know what happened or had difficulty recalling the occasions of alleged abuse. A stark example of this was her response in the second interview when asked about the bath incident, ‘Ah well, well I don’t know what actually happened, like, sometimes, like I forget’.
Ms Demertzis highlighted the inconsistency in BC’s account in her first interview of the loungeroom incident and her account in her second interview. In the second interview, BC gave an account of seeing the accused masturbating himself in the loungeroom but did not mention an allegation of fellatio occurring at that time.
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