R v C, PJ - [2019] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, PJ
Criminal Trial by Judge Alone
[2019] SADC 101
Reasons for the Verdict of Her Honour Judge McIntyre
2 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of Unlawful Sexual Intercourse with a Person under 14 years.
HELD: Not guilty - Count 1
District Court Criminal Rule 49(1); Evidence Act 1929 s34M, referred to.
Van de Wiel v R (Unreported Court of Criminal Appeal SA no. S5202, 3 August 1995); R v Machin INo 2) (1997) 69 SASR 403; R v Corrigan (1998) 74 SASR 454; R v Storey & Anor [1978] 140 clr 364 , considered.

R v C, PJ
[2019] SADC 101

The accused has elected to be tried by a judge without a jury. He was charged on Information dated 17 June 2016 with three counts of Unlawful Sexual Intercourse with a person under the age of 14. These were particularised as one count of digital penetration and two counts of cunnilingus all occurring on the same occasion; the evening of 4 October 2015 at the accused’s home in Salisbury North.
On 19 October 2017, the accused was convicted of counts 1 and 2, the digital penetration and one count of cunnilingus. He was acquitted of count 3; the second count of cunnilingus. On 19 June 2018, the convictions were quashed and a new trial was directed.
On 9 July 2019, I granted the accused’s application, under District Court Criminal Rule 49(1), for a stay of count 2 of the Information. The trial therefore proceeded only in relation to count 1 on the Information, unlawful sexual intercourse with a person under the age of 14 particularised as an act of digital penetration.
For the reasons I now publish I find the accused not guilty of count 1 on the Information.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
·The accused elected not to give evidence in this trial. I remind myself that he was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case. His evidence from the previous trial and his interview with the police was however admitted in evidence. The evidence of the interview with police was not given on oath nor was the accused subject to cross examination in the strict sense. The accused was told that he did not have to answer the questions put to him but he nonetheless chose to do so. That interview was video recorded. I can therefore see and hear the accused’s answers to police. The evidence from the previous trial was given on oath and subject to cross-examination but I did not see the accused give it. Accordingly, I cannot assess his demeanour in the witness box. I am entitled to give such weight to the evidence of the police interview and the transcript of the evidence from the last trial as I see fit. This evidence can be used both for and against the accused.[1]
[1] Van de Wiel v. R (Unreported Court of Criminal Appeal, SA noS5202, 3 August 1995); R v Machin (No 2) (1997) 69 SASR 403 & R v Corrigan (1998) 74 SASR 454
Undisputed facts
CR’s mother LAT was in a relationship with the brother of the accused, DC. They have subsequently married. In October 2015, the accused and DC were sharing a 3 bedroom house. LAT and CR attended at that house on a regular basis. They often stayed the night.
At around 5 pm on 4 October 2015 LAT went to the accused’s residence with CR and another daughter, AR. After a period of time LAT decided to stay the night. She went to bed with DC in one bedroom. The accused had his own bedroom. AR went to sleep in the spare bedroom. CR fell asleep in the lounge room on a couch.
Following a complaint by CR the next morning, LAT took her to the Lyell McEwin Hospital where she was seen by Dr Monzur Murshed at 10.05 am. The police were notified and took possession of the clothes that CR was wearing on the night of 4 October 2015. CR was subsequently examined at the Women & Children’s Hospital by a forensic paediatrician, Dr Jane Edwards. Swabs were taken during the course of that examination of the complainant’s labia together with a reference sample.
The accused was arrested and interviewed that day, 5 October 2015, swabs were taken from his hands, fingernails and around the outside of his mouth together with a reference sample. He was interviewed and a recording of his interview was tendered as exhibit P8. He denied the allegations.
CR’s clothing and the various swabs taken from CR and the accused were examined at the SA Forensic Science Centre and a report was prepared by a forensic scientist Ms Louise Harkin.
Prosecution evidence
The prosecution called 6 witnesses, CR, her mother LAT, two police officers Brevet Sergeant Murphy, a crime scene examiner, and the investigating officer, Brevet Sergeant Sherratt.
Two expert witnesses were called Ms Harkin, a senior forensic scientist at the Forensic Science Centre of South Australia, and Dr Jane Edwards, a consultant forensic paediatrician. I remind myself of the standard direction given to juries in relation to expert evidence specifically that I am not bound to accept such opinion evidence and I am entitled to assess, accept or reject any such opinion evidence as I see fit.
In addition, there were some agreed facts and a number of exhibits tendered.
Elements of the Offences
The prosecution must prove two elements beyond reasonable doubt in order to prove the offence of unlawful sexual intercourse. First, that the accused had sexual intercourse with the complainant, sexual intercourse includes penetration of the vagina or labia majora by any part of the body of another person. Second, that the complainant was under 14 at the time. There is no dispute that the complainant, CR, was 7 years of age in October 2015. I am satisfied beyond reasonable doubt of this element of the offence. The contentious issue is whether the prosecution has proven the first element of the offence.
Dr Edwards described the genitalia of a pre-pubescent girl by reference to exhibits P11 and P12. It was plain from her evidence that CR’s vagina had not been penetrated because this requires penetration of the hymen which had demonstrably not occurred. Accordingly, if there was penetration, it was of the vestibule or area beyond the labia majora but before the hymen. The definition of sexual intercourse contemplates this level of penetration but the prosecution has particularised its case as the accused inserting a finger into CR’s vagina.
CR said that the accused “stuck his finger up my privates”. When she was asked for another word to describe her privates she said “vagina”. Plainly she was not using the word vagina in the same manner as Dr Edwards. She also referred to the accused licking her vagina – again this cannot be understood in the same sense as the word was used by Dr Edwards. This use of the word “vagina” to encompass both the vagina and the vestibule of this matter is not uncommon but, in the circumstances of this matter, the use of this terminology makes understanding the mechanics of what CR says occurred somewhat challenging. I will deal with this in context. However, unfortunate though the terminology used to particularise count 1 is, I do not consider that the accused was misled as to the nature of the prosecution case. Both parties presented their cases on the premise that the word vagina encompassed the vestibule. It might have been preferable for the particulars to be amended but the prosecution is not bound to prove the particulars only the elements of the offence. Accordingly, if the prosecution has proven that there was penetration of CR’s labia majora by the accused’s finger then it will have proven this element of the offence notwithstanding the particulars. For consistency, given the use of the word vagina in submissions I will continue to use that word noting that there that the accused did not in fact penetrate CR’s vagina in the strict sense.
Evidence Ruling
Following the ruling in which I stayed count 2 on the information, the accused issued a second Rule 49 application seeking to exclude certain evidence. First the accused sought the exclusion of evidence relating to counts 2 and 3, including forensic evidence, on the basis that this evidence was neither relevant nor admissible in relation to count 1. Specifically the accused sought exclusion of CR’s evidence that the accused licked her vagina during the course of their interaction in his bedroom on the night of 4 August 2015; the complaint evidence insofar as it referred to licking; the accused’s evidence on that topic and the forensic evidence concerning analysis of the complainant’s shorts, swabs taken of her labia and swabs of the accused’s mouth area.
Second, the accused sought the exclusion of evidence of uncharged acts of digital penetration on the grounds that, absent counts 2 and 3, this evidence did not properly amount to relationship evidence and was therefore inadmissible.
In a ruling on 11 July 2019 I dismissed the accused’s Rule 49 application seeking the exclusion of that evidence. In view of the trial listing, that ruling was brief. It is therefore appropriate that I expand upon the ruling by indicating the uses to which this evidence may be put.
Uncharged Acts
On the prosecution case, there were other instances of the accused inserting his finger into CR’s vagina that are not reflected in a charge. CR and her mother LAT stayed overnight at the accused’s house on a number of occasions in the approximately 4 years preceding the charged event. It is said that on some of these occasions the accused took CR into his bedroom when everyone else had retired for the night and had inserted his finger or fingers in her vagina.
The prosecution sought to lead the evidence of uncharged acts for a non-propensity purpose; namely to give the whole picture, to provide the context in which the charged act occurred and to explain why the CR complained on this particular occasion. The uncharged acts were said to assist in assessing the interactions of the accused and CR and to assist in understanding their respective actions.
On the prosecution case, the accused’s relationship with CR and his conduct towards her over a period of time serves to explain why she in effect submitted to him, continued to interact with him and complained only when he, for the first time, licked her vagina. The uncharged acts are said to demonstrate that the charged act, which might otherwise be considered surprising or unlikely, did not occur out of the blue, rather they show a pattern of behaviour by the accused which demonstrated how he felt emboldened to offend against the complainant on the charged occasion. Defence whilst objecting to the admission of this evidence nonetheless relied upon the evidence as a means to impugn the reliability and credibility of the complainant. These are proper uses for that evidence.
The evidence of uncharged acts was not led in proof of the accused’s sexual attraction towards CR and I have not used it for this purpose or any other propensity purpose. Of course, before I could use the evidence of the uncharged acts for the purposes suggested by the prosecution, I would first need to be satisfied that they occurred. This is contentious.
I now direct myself as to how I cannot use CR’s evidence of the uncharged acts. Even if I am satisfied that the uncharged acts occurred, that does not in any sense absolve me from the task of determining whether the charge itself is made out. It is simply one part of the evidence presented in proof of the charged offence. I must not reason that because I am satisfied of any or all of the evidence of the accused’s uncharged acts involving CR, he must necessarily be guilty of something and convict the accused. That would clearly be a wrong approach and I have not adopted it.
I direct myself that it would also be wrong for me to reason that because I am satisfied of any or all of the uncharged acts by the accused, that he is the sort of person who would be likely to commit the offence with which he is charged and therefore he is more likely to be guilty of the charged offence. Again, that would be a clearly incorrect approach and I have not adopted it.
Evidence relating to cunnilingus
The accused was acquitted of one count of cunnilingus but convicted of another. The conviction was quashed. I stayed the second count of cunnilingus on the basis that it was not clear what the defendant was acquitted of given the matters set out in my ruling of 9 July 2019. I considered it would be unfair to the defendant and a potential abuse of process to allow the prosecution to proceed on that count.
Whilst the accused is entitled to the full benefit of the acquittal on count 3 of the Information this does not mean that evidence admissible to establish that offence is inadmissible merely because it was tendered in the earlier proceedings. The evidence may not be used for the purpose of challenging or diminishing the benefit to the accused of the acquittal on count 3 but the evidence will be admissible if it is relevant to the remaining charge.[2] The same is true of the stayed count, count 2.
[2] R v Storey & Anor [1978] 140 CLR 364
My ruling on the stay application was directed to the unfairness occasioned by the prosecution proceeding to retry the accused on a charge of cunnilingus in the particular circumstances of this matter. I made no finding as to whether an act of cunnilingus did or did not occur.
The evidence of cunnilingus is relevant to count 1, the allegation of digital penetration because it is necessary in order to make a proper assessment of CR’s evidence. To exclude evidence of cunnilingus from her account would distort her account. The act of cunnilingus is inextricably linked with her account of the digital penetration. To exclude the act of cunnilingus would unfairly edit CR’s evidence.
Further there is evidence concerning the examination of CR’s clothing and swabs taken from her labia which is relevant to her evidence about being licked by the accused. To exclude that evidence would potentially deprive the prosecution of evidence that supports or corroborates CR’s evidence. Equally it would potentially deprive the accused of evidence that may undermine CR’s account.
CR’s evidence about being licked is also relevant to the complaint evidence. CR makes allegations of digital penetration on other occasions where there was no complaint. The prosecution case is that the act of cunnilingus on this particular occasion is the distinguishing feature that prompted the timing of CR’s complaint to her mother the following morning. I note the provisions of s.34M of the Evidence Act 1929. The evidence of complaint is admitted to inform me how the allegations first came to light. It is admitted as evidence of consistency of CR’s conduct and not as evidence of the truth of what CR alleged to her mother. I further note that there may be varied reasons why a complainant makes a complaint of the offence at a particular time or to a particular person. Consistency of conduct is relevant to my consideration of the CR’s credibility and it may buttress CR’s credibility.
CR’s Evidence
CR was 7 at the time of the alleged offence. She is currently 11. I was satisfied, following a discussion with her, that it was appropriate for CR to give unsworn evidence. CR clearly indicated that she understood the difference between truth and lies and she promised to tell the truth in court. I remind myself of the jury directions given in such cases. I must exercise particular care in assessing such evidence.
CR has recently been diagnosed with autism spectrum disorder. I received a report prepared by a communication partner dated 2 July 2019 which made a number of recommendations for facilitating CR’s evidence. Based on that report I permitted CR to use a pen or pencil and paper to draw during her evidence. The communication partner report indicated that allowing CR to draw whilst answering questions would help her to maintain focus and avoid her becoming distressed and overwhelmed. This appeared to be the case. The drawings were marked for identification but do not contain anything of relevance to the within proceedings.
Likewise, the communication report indicated that CR rarely made eye contact. It was said that this is consistent with her disorder and may not be a sign of inattention rather it was likely to be a sign of her listening. Whilst CR was visibly frustrated with the court process and with the need to revisit matters that occurred nearly 4 years earlier, I considered that CR listened to questions and genuinely endeavoured to truthfully answer the questions that were put to her. I have no doubt that CR was an honest witness and that she genuinely believes the evidence that she gave. I do however have concerns about her reliability because her evidence lacked detail on critical issues and at times it was challenging to know whether she was describing the charged event, uncharged acts or reconstructing the charged event.
CR described the members of her family and explained the contact that she had with the accused. She described going to the accused’s house on a number of occasions with her mother and sister AR. On many occasions they would sleep over. CR said the accused stuck his finger “up my privates”[3] on a number of these prior occasions. CR was unclear when this first started and how often this happened. CR said that another word for “privates” was “vagina”. The word vagina was then used throughout her evidence even though, as can be seen from the evidence of Dr Edwards, it is not anatomically correct. She was not asked to elaborate on what she meant by “up her privates” beyond supplying the word “vagina”. CR only described this activity one more time in her evidence and on that occasion she said that “He’d put his finger up my vagina”[4]. Again she was not asked to elaborate. Unhelpfully her evidence was often paraphrased as the accused putting his finger in her vagina or privates.
[3] TX 63
[4] TX p66

CR described the events on the charged occasion as different because the accused licked her on the vagina. She gave evidence about this occasion in evidence-in-chief as follows:[5]
[5] TX p66 - 67
Q.And you mentioned about your shorts or your pants.
A.The Dora ones.
Q.What did you say just then about your shorts or your pants.
A.The Dora ones. I remember saying it was Frozen before but it was not Frozen, I'm pretty sure it was Dora.
Q.Dora, so you had a pair of Dora shorts on, did you.
A.Yes, mm.
Q.And what did Pete do with your Dora shorts.
A.Nothing. Basically, he just pulled them down, I guess.
Q.When he pulled them down, did he take them off of you completely or did he leave them on you a little bit.
A.From what I remember he'd leave them on me a little bit.
Q.And when he pulled your Dora shorts down, you've said he put his fingers in your vagina. Did he do anything else with your vagina.
A.Well, one time, one time he licked it.
Q.And on the one time that he licked it, did he put his finger in your vagina on that night.
A.Not, not at the same time, but I think he still put that in there.
Q.Do you know if he put his finger in your vagina before or after he licked it.
A.Um, I think before and, and after. I'm not too sure on that one.
Q.And when he put his finger in your vagina on this time that you're talking about, that's the time when Pete licked your vagina, how did it make you feel.
A.Uncomfortable.
Q.On this time that Pete licked your vagina and put his finger in your vagina, was it daytime or night-time.
A.It was always night-time.
It is plain, in context, that when CR said that the accused licked her vagina she was referring to the area that she called her privates and the same area that she says the accused stuck his finger up.
CR said that after the accused licked her vagina and put his finger up her vagina she went back to the lounge room where she also fell asleep. CR’s evidence about her Dora shorts was unclear. As can be seen she said that the accused pulled them down rather than removed them completely at the outset of this incident however she also said that when the accused fell asleep “I put on my Dora shorts and went back to the lounge room”.[6] This ambiguity was not resolved. It further appeared that she had no specific recollection of what occurred to her shorts on this occasion. Her answer suggests that she was reconstructing on the basis of what she says usually occurred.
[6] TX p68
CR described what happened the following morning:[7]
Q.When you got up the next morning at Pete's house, did you tell your mum what happened with Pete.
A.Not really, but I'm pretty sure she is sure because I don't remember telling her, but then she woke me up and then saying 'We got to get out of here'.
[7] TX p68-69
CR then became confused and it appeared to me, in line with the communication report, that she was becoming tired. We took a short break. After the break CR then gave evidence about the next morning as follows:[8]
Q.Thank you. And the next morning, so that's the morning after Pete licked your vagina, when you woke up the next morning, can you remember if you told mum what's happened with Pete.
A.Not exactly.
Q.Do you remember talking to mum about Pete that next morning.
A.I think.
Q.Do you remember anything that was said to mum about Pete that next morning.
A.No.
[8] TX p70
CR’s evidence about complaining to her mother was accordingly unclear. The effect of CR’s evidence is that she does not remember whether she spoke to her mother or not and recall what was said. Given CR’s age and the length of time since these allegations this is not surprising but it is unhelpful.
In cross-examination, CR said that the accused put his finger in her vagina a lot of times and indeed suggested that this occurred on most occasions that they went to stay overnight. CR said it hurt on those occasions and gave evidence on that topic as follows:[9]
[9] TX p104
Q.When he put his finger in your vagina did that hurt.
A.Most of the time.
Q.Did it hurt a lot.
A.Sometimes.
Q.Where did it hurt.
A.In the vagina.
Q.Did you ever tell Pete that it hurt.
A.No.
Q.On the night that he licked you as well, did it hurt on that night.
A.Kind of but not too sure.
Q.Can you say if it hurt more or less than on the other times that it happened.
A.Less.
CR was asked about whether she had a ukulele. She agreed that she did and it was purple. CR could not remember whether she ever played it at the accused’s house. She did not remember if the accused had ever played her ukulele when she went to his house. CR agreed that she would sometimes give him a hug when she got to his house. CR said she was not sure if she used to give the accused a kiss when she went to his house but said that maybe she did. She was not asked about 4 October 2015. She said she was not sure whether she sometimes sat on his lap when she went to visit him. She was not asked about this particular occasion. She denied that he ever licked her on the face.
LAT’s evidence
LAT gave evidence about the circumstances in which she and her children came to stay at the accused’s home address. She was in a relationship with the accused’s brother DC who she met in about 2011. They started living together about 6 months after they first met. They are now married.
When she and DC were living together she would visit the accused with DC and some of her children including CR on a weekly basis. Sometimes they would stay overnight. In the year before the charged incident she and DC had separated but were in an on again off again relationship. DC was living with the accused and she would visit approximately once a month taking her children CR and AR with her.
On 4 October 2015 LAT went to the accused’s house at about 5 pm. with CR, who was 7, and AR, who was 11. She had some drinks whilst sitting with the accused and DC at the kitchen table. She remained at the table unless she went to check on the children or went to the toilet. The girls were playing in the garden and then in the lounge room. The adults were just drinking or talking at the kitchen table. CR fell asleep on a couch in the lounge room so LAT decided that they would stay the night. At about 9 pm LAT went to bed with DC. CR remained asleep in the lounge room on a couch. She was wearing the shorts and t-shirt that she had been wearing that day. AR slept in the spare bedroom.
The next morning at about quarter past seven LAT woke her two daughters up. She noted that CR had a blanket on and she did not recall her having one the night before. She also noticed, when she pulled the blanket off, that CR’s shorts were inside out. They had not been in that position the evening before. LAT told her daughters that it was time to go. As they were walking to the door CR said, “I don’t want to come here anymore because [the accused] licks me and it’s gross”. It does not seem from this evidence that CR indicated where the accused licked her. They then drove home where LAT had a further discussion with CR which she described as follows:[10]
[10] TX p129
Q.Can you tell the court what that discussion was about.
A.I told [CR] that - to tell me what [the accused] has done and that she had to tell the truth to me and then - do I say what [CR] said?
Q.Yes please.
A.Then [CR] told me that [the accused] licks her in her private parts and puts his fingers in her and it hurts and it is gross and then I thanked [CR] for telling me and I told her - yeah, I just thanked her for it, for telling me the truth. I rung up [DC] after that.
Q.When she used the words 'private parts', what did you understand her to be referring to.
A.Yeah, because that's the word I use for - me and the girls use 'private part', it means vagina but we just say 'private parts'.
Q.So is that a term you'd used with the girls prior to this particular day.
A.That's a word I use all the time.
I note the difference between LAT’s use of the term “private parts” and CR’s use of the word “privates”. I do not consider the difference to be significant.
LAT watched CR go to the toilet to make sure there was no blood. There was no blood when CR wiped herself. LAT then got CR to take the clothes off that she had been wearing that night. CR was not wearing underpants. LAT placed the t-shirt and shorts in a bag. She and subsequently gave them to the police. She identified exhibit P3 as photographs of the clothes her daughter was wearing on 4 October 2015. LAT then took CR to the Lyell McEwin Hospital where she was examined and the police were called.
In cross-examination LAT agreed that when she spoke to CR at home CR said “[The accused] puts his fingers in me deep and it hurts”. CR did not give evidence about saying this to her mother nor did she give any indication about the depth of penetration in her evidence. This evidence of what LAT says her daughter said to her cannot be used for the truth of what was said.
LAT said that CR would give the accused hugs but not often. She saw CR kiss him on previous visits but not on 4 October 2015. She disagreed that CR gave him a kiss on arrival. LAT agreed that CR had a toy ukulele but said that CR was not particularly interested in it. LAT then gave evidence as follows:[11]
[11] TX p136
Q.If I suggested she brought that over to Pete's on this day, can you comment on that.
A.It's possible because I'm always getting them to bring toys with them when they come so they've got something to do.
Q.If I suggest Pete was playing the ukulele on this day can you comment on that.
A.No, I didn't see him play any toys.
Q.If I suggested that Pete would sometimes lick her on the face could you comment on that.
A.Yes, because that's disturbing and he's done it before and Dave's done it before and I do not like it.
Q.So you've seen Dave lick Cindy on the face.
A.Yeah, I think I have once and Pete's done it before but not on this occasion because they were playing out the back and they weren't at the table.
LAT denied that the accused interacted with her daughters much that evening as they were both playing outside before coming in and watching TV in the loungeroom. She denied that CR sat on the accused’s lap and that they were playing the ukulele together.
The evidence of LAT is that from her arrival until everyone retired for bed at around 9.00 pm the adults were at the kitchen table drinking and the children were either in the garden playing or in the lounge. LAT impressed me as a careful witness. I found her evidence to be cogent and compelling. She made appropriate concessions. She conceded that her daughter CR may have taken her toy ukulele with her on this occasion but did not accept that CR had sat on the accused’s lap for about 15 – 20 minutes playing it as he asserted in his evidence on the last occasion. It would be surprising if she had forgotten this. Likewise, while LAT conceded that the CR hugged the accused on arrival she denied that she kissed him or that she saw either CR kissing the accused or him kissing CR during the course of this evening. The tenor of LAT’s evidence was that this was not a usual occurrence.
On the topic of the clothing worn by CR that evening LAT said the following in cross-examination:[12]
[12] TX p131-132
Q.[LAT], just in relation to the clothing that we see in the photographs, where did you actually get the clothing from on that day.
A.The clothes are from Sea World, I bought them.
Q.Are they both from Sea World.
A.Well the top definitely is, I'm not sure about the bottoms, I don't know.
Q.Are you familiar with the movie Frozen.
A.Yes.
Q.Had [CR] watched that movie.
A.Yes, she has watched it.
Q.Did she have some Frozen pants.
A.Yeah.
Q.Are they the Frozen pants that we see in the photograph.
A.Yes, it looks possible, they have snow flakes and that, yeah.
Q.Did she also have some Dora pyjama pants.
A.I don't know. She didn't watch Dora, I'm not sure.
Q.These two items of clothing that we see in the photograph did you get them from [CR’s] room.
A.[CR] wore these clothes to [the accused’s] house and she gave them to me after she took them off the next day.
Q.Do you remember where in the house you were when she gave them to you.
A.The bathroom.
Q.So you say she hadn't been wearing some Dora pyjama bottoms or pants that day.
A.No, I don't know.
Q.You are not sure.
A.Not sure.
Investigation evidence
The evidence of the two police officers Brevet Sergeant Murphy and Brevet Sergeant Sherratt related to the investigations that they undertook into this matter and were not contentious. In particular I note the evidence of Brevet Sergeant Murphy about the manner in which he took the evidence swabs from the accused.
The evidence of Dr Edwards confirms her examination of CR at the Women & Children’s hospital at approximately 7.30 pm on the evening of 5 October 2015. She explained the nature of the examination that she conducted. She examined CR’s genital area by separating the labia. She did not observe any signs of injury either over the skin or the internal structures in front of the hymen. There was no injury to the hymen that she saw. She subsequently collected some swabs in the areas where CR indicated that there had been oral genital contact for the purpose of seeing if there was any salivary DNA present. Those swabs were taken of the labial area.
I have already referred to Dr Edwards’ evidence about the genitalia of a pre-pubescent girl. Dr Edwards said that penetration up to the hymen does not require any real force. The tissue is quite mobile and easy to penetrate. It is possible for this to occur without any injury. She explained that based on her experience, and the literature, children who have not experienced genital penetration or have any knowledge of their internal genital structures find it very difficult to explain penetration and degrees of penetration. I do not know what CR would have said on this topic as she was not asked to elaborate on this evidence that the accused stuck his finger up her privates.
Dr Edwards was cross-examined at some length on this topic of reported pain and discomfort. She explained that an individual’s experience of pain is varied and that children often use the term pain for a feeling that is uncomfortable or something they haven’t experienced before. She described pain as a difficult term to interpret particularly with a child. I found Dr Edward’s evidence to be very helpful and I accept it.
Ms Harkin is a senior forensic scientist at the Forensic Science Centre of South Australia and works in the area of DNA analysis. She gave evidence about her qualifications and experience, general evidence about DNA and the manner in which it is extracted and compared in the Forensic Science Centre. She also explained how DNA is deposited including the concepts of primary or direct transfer and secondary transfer. Ms Harkin then explained her involvement in this matter and described her examination of clothing and swabs provided to her by SAPOL. Ms Harkin’s findings are conveniently summarised in exhibit P4. I accept Ms Harkin’s evidence although I note that her findings concerning the presence of DNA on various items will only be relevant it I find that the DNA was deposited in incriminating circumstances. Ms Harkin could not give any evidence about that matter.
A large cutting was taken from the crotch of CR’s shorts. A small portion of that cutting was tested for the presence of alpha-amylase. Alpha-amylase is a substance which is found in high levels in saliva. The cutting was put into a solution to wash off anything present on that piece of fabric. That solution was then tested for alpha-amylase. Ms Harkin said that the test has a cut-off point at eight and half minutes after which they do not record any positive results. If a positive result occurs quickly, within a minute or two, that indicates that there is a reasonable amount of alpha-amylase present whereas positive reactions towards the end of the cut-off period indicate a lot less alpha-amylase present.
In the case of the sample from the crotch of CJ’s shorts Ms Harkin said that they got a positive result at 2 minutes indicating that there was a reasonable quantity of alpha-amylase present. Her opinion was that the positive result was indicative of salivary alpha-amylase as opposed to other types of alpha-amylase that she described.
The larger cutting from the crotch of the shorts was then tested for DNA by putting it into a solution to wash off any cells present. A mixed DNA profile was detected. Because of the manner in which this fabric sample was tested, it is not possible to say if this DNA profile came from the inner or outer aspect of CR’s shorts or a combination of both.
CR was assumed to be at least one of the contributors to the mixed profile. There were two other contributors. Ms Harkin compared the probability of obtaining that profile if CR, the accused and another person were the sources of the DNA as opposed to the probability of obtaining that profile if CR and two unknown people were the sources of the DNA. She expressed that comparison as a ratio. The ratio Ms Harkin calculated indicated that the DNA profile obtained from the cutting is 2.1 billion times more likely to be obtained if CR, the accused and an unknown person are the sources of the DNA rather than CR and two unknown people. Ms Harkin said that an alternative way of expressing that ratio was to say that the result obtained provides extremely strong support for the proposition that the DNA profile is from CR, the accused and another person.
Ms Harkin then gave evidence about testing the four swabs received from Dr Edwards’s examination of CR. In relation to each of those swabs a single source DNA profile was obtained. Ms Harkin calculated a statistical weighting of greater than 100 billion to 1 of CR being the contributor. No male DNA was detected.
The four labial swabs were also tested for the presence of alpha-amylase by cutting a small portion from the top of the swabs. The outcome of that testing was that swabs taken from the right labia tested positive for the presence of alpha-amylase at eight minutes and the swabs taken from the left labia returned a positive result for alpha-amylase at four minutes. Ms Harkin said that the result obtained from the right labia was a slow reaction or a very faint reaction which indicated to her that there were very low levels of alpha-amylase present. She described the results from the swabs taken from the left labia as a moderate result. Ms Harkin then gave evidence as follows: [13]
Q.Just in general terms, is it possible to obtain a positive reaction for alpha-amylase and not have any DNA detected at all.
A.In general when we have a positive result to alpha-amylase we would obtain DNA from that sample.
Q.Does your ability to undertake DNA analysis depend on the amount of DNA that might be there in the first place.
A.Yes, that's correct.
[13]TX p184
Ms Harkin then described testing evidence samples taken from Mr Cronin. First, she tested two swabs taken of Mr Cronin’s left-hand fingernails. These produced a single source DNA profile and the statistical weighting was greater than 100 billion in favour of the proposition that Mr Cronin was the contributor to that single source profile.

The right-hand fingernail swabs produced a mixed DNA profile of two contributors including Mr Cronin. The result of that testing was that the DNA profile obtained was greater than 100 billion times more likely to be obtained if Mr Cronin and CR were the sources of the DNA rather than Mr Cronin and somebody else. Ms Harkin said this provides extremely strong support in favour of CR being a contributor to the DNA profile located from the swabs of the accused’s right-hand fingernail.
The final evidence swabs were external mouth swabs taken by SAPOL from the accused. It was again a mixed DNA profile of two contributors one of which was assumed to be the accused. The DNA profile obtained from the external mouth swabs was 21,000 times more likely to be obtained if the accused and CR are the sources of the DNA rather than the accused and somebody else. Ms Harkin said this provides very strong support in favour of CR being a contributor to the DNA profile.
Police interview
The accused voluntarily submitted to an interview with police in which he was asked about the allegations; specifically, that he had taken CR into his room, that he’d licked her vagina and that he had put his finger inside her vagina. The accused denied these allegations.
The accused described LAT coming to visit his brother with her two children CR and another whose name he could not recall. He said LAT had quite a bit to drink and ended up staying the night with his brother. The accused described the events of the evening to the police in much the same terms as LAT in her evidence. The adults were in the kitchen drinking, talking and listening to the radio. He turned the TV on for the children in the lounge room. LAT and his brother went off to the bedroom, he finished his drink turned the TV off and went to bed. Before he did so he put on the “fish light” to so that the children could find the toilet in the night and he put a rug on CR who was sound asleep. He woke up in the morning hearing LAT telling the children to go and he went back to sleep. Later his brother told him that there was some trouble because CR had been interfered with and was at the hospital.
The accused told police that when CR arrived she said hello and gave him a kiss on the cheek as did her sister. He did not mention the ukulele or CR sitting on his lap. The tenor of the accused’s interview with the police was that, as was usual on these occasions, after the initial greetings were over the adults sat at the kitchen table drinking and talking and the children either played in the garden or watched TV in the lounge.
Accused’s evidence at previous trial
The accused gave evidence at the previous trial that when LAT arrived at the house that evening she and her two daughters came in, CR said hello, hugged and kissed him and then went to see his brother and did the same to him. The adults sat down at the kitchen table. He switched the television on for the children. He said that CR had brought had ukulele with her and came and sat on his lap and started:[14]
A.This time she brought a, I call it a ukulele. It's a little guitar. She come and sat on me lap and she started playing it, and I said 'I'll give it a go', so I started playing it with her. She'd strum it, I'd strum it and I'd - she goes 'I'll show you how it's done', she was doing it and 'Now you do it', and I was - I tried but I don't know, I'm not music inclined.
Q.So you don't play the ukulele.
A.No.
Q.Are you right-handed Mr Cronin.
A.Yes, yes.
Q.What happened after you had tried to play the ukulele.
A.They asked for a drink so I made them a Milo and - she kissed me on the face, I kissed her on the forehead and she got up and said 'Could I have a drink?', so I said 'Yeah', and I grabbed me - grabbed - roughed her head up and said 'Right I'll go and make it' and I'd make her and Alice a Milo.
[14] Exhibit P10 – TX p297
In cross-examination, he described both CR and AR coming in cuddling and kissing him on arrival and gave evidence as follows:[15]
[15] Exhibit P10 – TX p313-314
Q.Cindy hugged you and kissed you.
A.Yeah.
Q.How did Cindy hug you and kiss you that night.
A.She kissed me there (INDICATES).
Q.Can you just show us where you're point to.
A.(INDICATES).
Q.So you're pointing to your left cheek.
A.And me right. I don't know what side she kissed me on because yeah, that's how she kisses.
Q.Did Cindy give you one kiss or more than one kiss.
A.One.
Q.On one side of your face.
A.Yeah, I think. Long ago, so. She come in, hug me and -
Q.Was it a peck.
A.Yeah.
Q.Quick peck.
A.No, no, she goes (DEMONSTRATES).
Q.You better try and tell us what you're describing there. How did Cindy kiss you when she arrived that night.
A.She kissed me fair and square on me face (INDICATES).
Q.On your cheek.
A.Just between cheek and, yeah, me mouth, just there (INDICATES). I turned me head and she got me there, in-between there and - she goes 'oh, it's prickly'.
Q.She said that, did she.
A.Yeah, I think so, I can't - can't remember what she said but yeah, she said something like 'it's prickly'.
Q.Possible you're making that bit up.
A.No.
Q.You're just remembering it now.
A.No.
A little later in his evidence the accused said:[16]
[16] Exhibit P10 – TX p315-316
Q.So is what you're telling us there, she was going for the side of your cheek.
A.Yeah.
Q.But she got you on the beard.
A.Yeah.
Q.And you're pointing to the side part of your beard.
A.Yeah, just here, cheek, just there (INDICATES).
Q.Not under your nose.
A.Well I don't know.
Q.Not on -
A.She went - like that, as well.
Q.She went how.
A.She spat, she goes (DEMONSTRATES) because this was all getting up her nose (INDICATES).
Q.Did she make contact with your chin, the hairs on your chin.
A.I don't know.
The difficulty of assessing the accused’s evidence from the previous trial in the absence of vision is obvious given the number of occasions on which he accompanied his words with a demonstration.
There is a minor discrepancy between the accused’s evidence in examination-in-chief and in cross-examination where he reverses the order of CR’s greetings. In examination-in-chief he said that she hugged and kissed him first and then his brother. In cross-examination he reversed the order. He said that he was confused. I do not consider this to be a significant discrepancy.
The accused could not explain why he did not remember AR’s name when he spoke to the police. He denied that it was because his interest was mainly in CR.
The accused could not recall how long after CR arrived that she sat in his lap and started playing the ukulele. He could not recall whether it was after they had been “in the back” or before. I assume by “in the back” he means the back garden. CR sat on his lap playing the ukulele for about 15 to 20 minutes during the course of which he reached around her with his right arm to strum the ukulele. He was asked some questions about that:[17]
Q.How were you strumming the ukulele.
A.I was going like that (DEMONSTRATES).
Q.So you just -
A.Yeah, then turned around and I - I strung it like that and then I went like that because she started doing the same thing, she was - yeah (DEMONSTRATES).
Q.Let's get that down, so we all understand what action you're doing there; you sort of did a claw and you're strumming up and down.
A.Yeah, then I went like that because all the strings, you get like your nails and all that, you go like that. I don't know what you call it (DEMONSTRATES).
[17] Exhibit P10 – TX p324
Again, it is hard to know what to make of this evidence as I did not see the demonstration that accompanied it. The accused did not agree that one would normally play a ukulele by resting it in one’s fingers and strumming it with a thumb. The accused said that he was doing it with his fingernails and banging the side of it to make it work like a drum. He denied that this was an attempt to explain CR’s DNA profile on his right fingernails.
The accused was not shaken in his denial of any untoward conduct towards CR.
Discussion
The most critical witness for the prosecution case was CR. I must accept her evidence beyond reasonable doubt if I am to convict the accused. I found CR to be an engaging and truthful witness but her evidence was lacking in detail. This is hardly surprising as she is now 11 explaining events that occurred some 4 years ago when she was 7. However, it does not make the task of assessing her evidence any easier. Likewise, the unusual aspects of her presentation render the task of assessing her evidence challenging.
CR maintained the central core of her evidence specifically that the accused had, over a period of time, carried her into his bedroom and inserted his finger up her privates. She also maintained that on the 4 October 2015 he licked her in the same area for the first time. She was not shaken in her evidence under cross-examination.
There was no significant inconsistency in CR’s evidence. The main change in CR’s evidence related to the type of shorts she was wearing; “Frozen” or “Dora” shorts. LAT gave evidence about instructing CR to remove her clothes in the bathroom. LAT was clear that she put those clothes into a plastic bag which she later gave to the police. LAT identified the clothing in exhibit P3 as those items of clothing. LAT said in cross examination that the shorts had a snowflake pattern on them and she thought that these were related to the movie “Frozen”. LAT was not sure if her daughter had “Dora” shorts and that she did not know if CR had been wearing some Dora shorts the day before. LAT maintained however that the clothes depicted in P3 were the clothes that CR wore to the accused’s house and that CR gave to her in the bathroom. I accept this evidence and further accept that the shorts that were examined by Ms Harkin are the shorts that CR was wearing on the night. Given the presence of the snowflakes it is clear that these could be characterised as “Frozen” shorts. They do not, apparently, have anything to do with “Dora”. CR’s amendment to the evidence that she gave previously is not a significant change rather it indicates to me that she was doing her best to give truthful evidence.
LAT gave evidence about observing that CR’s shorts were inside out when she woke her daughter on the morning of 5 October 2015. She had not observed them to be inside out the previous night. CR’s evidence about what happened to her shorts in the Accused’s bedroom is, as I have noted above, not entirely clear. If CR’s evidence that she “put her Dora shorts on” before returning to the lounge room indicates that, at some point, the shorts were completely removed then this observation by her mother would be significant. I cannot however say this with confidence in the circumstances. LAT’s observation does not therefore support CR’s account.
CR was not clear about the number of occasions upon which the uncharged acts occurred or even when they started. Given her age, the length of time over which she visited the accused and the frequency of visits to the accused’s house again I do not consider this lack of clarity to be remarkable. Although there was not a great deal of detail to her account she did provide details such as that she was sometimes awake and sometimes asleep when the accused picked her up; that the accused always picked her up and took her to his bedroom, that he would lean her on the bed and pull down her pants or her shorts and that it always happened at night when everyone was asleep. CR’s evidence had the hallmarks of a child who genuinely believed the events that she described but the lack of detail and the challenge of determining what was memory and what was reconstruction raise concerns about its reliability.
Further, as I have said, CR was not asked to elaborate on her two statements about the accused’s actions. She said that the accused “stuck his finger up my privates” and that “He’d put his fingers up my vagina”. The use of the word “up” suggests penetration but it is not possible to be sure. The use of the word “vagina” when Dr Edwards’ evidence makes it plain that CR’s vagina was not penetrated is also unhelpful. I could not therefore be satisfied that what CR was describing by way of the uncharged acts was penetration of the labia majora as opposed to indecent assault given the lack of clarity in her description of what the accused did.
CR’s evidence was that the accused licked her vagina on 4 October 2015 and that this was the first occasion upon which she had been licked in this manner. The use of the word vagina was introduced in lieu of the word privates but her meaning is plain. The area that was licked was the same are that the accused put his fingers up. The tenor of CR’s evidence was that this act was something that made this occasion stand out from the uncharged acts that had occurred prior to that night. I have noted above the issues with CR’s evidence about complaint. As I have said, CR did not deny speaking to her mother rather she says she cannot recall speaking to her and cannot recall what was said. I accept LAT’s evidence about what CR said to her both at the accused’s house and subsequently. LAT’s evidence was clear and cogent. LAT took immediate action consistent with what she says was disclosed.
I infer that it was the act of cunnilingus which persuaded CR to tell her mother about the accused when she had not complained about the prior occasions. This is evident from the fact that the first complaint made to LAT, unprompted before CR left the accused’s house, was of being licked albeit she did not specify where she was licked. The subsequent conversation at home was the conversation in which the digital penetration disclosure was made; it also clarified that the licking was in the same area – “the private parts”. The timing of the complaint and what CR said to LAT demonstrates consistency of conduct and supports CR’s credibility.
The prosecution say that CR’s evidence is supported by the DNA analysis of the accused’s right fingernails, his mouth swabs and the crotch of her pyjama shorts and by the alpha-amylase evidence. Counsel for defence however says that the prosecution case is not supported by and indeed is undermined by the analysis of the labial swabs and that there are reasonable explanations consistent with the accused’s innocence for the DNA evidence.
The labial swabs were taken by Dr Edwards and analysed by Ms Harkin as outlined above. Alpha-amylase was detected. The DNA analysis indicated a single source of DNA consistent with CR. Ms Harkin gave evidence that if there was a positive reaction for alpha-amylase one would generally expect to obtain DNA from that sample. If this is so then it raises the very clear implication that the alpha-amylase was not the accused’s saliva as the prosecution contend given the absence of any DNA potentially attributable to the accused and indeed the absence of any male DNA. It is unfortunate that Ms Harkin was not asked further questions on this topic given her qualification that DNA was “generally” obtained when there was a positive reaction for alpha-amylase. I understand from Ms Harkin’s evidence that the alpha-amylase obtained from the labial swabs was moderate at best. It is possible, given her other evidence, that this limited quantity of alpha-amylase adversely affected Forensic Science Centre’s ability to extract DNA. I cannot resolve that issue on the basis of the evidence before me. Accordingly, I find that the labial swabs do not support the prosecution case.
Defence counsel contends that not only is this evidence not supportive it is contrary to the prosecution case because it means that the DNA taken from the crotch of CR’s shorts was not DNA obtained from alpha-amylase from the accused and therefore undermining CR’s account of being licked in that area. This submission is based on an assumption that the source of the alpha-amylase on the labial swabs is the same as the alpha-amylase on the crotch of CR’s shorts. This is something I do not know and cannot resolve on the evidence. Further I do not know whether the mixed DNA profile obtained from the crotch of the shorts was derived in any way from the alpha-amylase detected. The two cuttings were tested separately. The fact that the cutting tested for alpha-amylase came from the larger cutting that was tested for DNA suggests that it is likely that the DNA profile was at least in part contributed to by the alpha-amylase but I cannot be satisfied of this. In view of this, whilst I do not consider that the alpha-amylase evidence undermines the prosecution case, I find that it does not support CR’s evidence that the accused licked her.
The analysis of the accused’s mouth swabs is supportive of CR’s evidence. It is however equally consistent with the accused’s evidence at his previous trial and with what he said to the police about CR kissing him when she arrived at his home. LAT said that her daughter did not kiss the accused that evening however CR conceded that she might have. In view of this evidence, and my findings on the alpha-amylase evidence, I could not exclude as a reasonable possibility that CR’s DNA as found on the mouth swabs was deposited in innocent circumstances.
The DNA profile obtained from the crotch of CR’s shorts is consistent with CR’s evidence about digital penetration as is the evidence of analysis of the DNA obtained from swabs of the accused’s fingernails. The accused contends that these results are readily explainable because CR had been at the accused’s home address the previous evening for the entire night, had slept on the accused’s couch and further because of the accused’s evidence at the previous trial about ukulele playing.
I do not accept the account that the accused gave about ukulele playing. CR could not remember playing her ukulele at the accused’s house or the accused ever playing her ukulele. I accept that evidence. LAT denied that this had occurred. LAT’s evidence about the way in which the adults sat at the table whilst the children played in the garden or watched TV in the lounge was moreover consistent with what the accused told the police when he was interviewed on 5 October 2015. I accept LAT’s evidence.
Even having rejected the accused’s evidence about the ukulele I must consider the possibility that the DNA results from the fingernail swabs of his right hand and the DNA results from the shorts occurred in innocent circumstances given that CR had been at his house for some hours and had some physical contact with him. I note Ms Harkin’s evidence about secondary transfer and I have carefully considered the submissions of counsel on that topic. Counsel for the prosecution says that it is implausible that this combination of DNA results could be the result of innocent depositions. This submission is attractive but given the circumstances I could not exclude as a reasonable possibility that the results were occasioned by secondary transfer.
CR’s version of events is not supported or undermined by Dr Edwards’ examination. I reject the defence submission that one might expect to find some evidence of injury as this is plainly not the import of Dr Edwards’ evidence. Penetration of the labia majora can occur without visible injury.
Defence submits that the prosecution has not established that there was penetration of the labia majora or vestibule in the light of Dr Edwards’ evidence about the difficulties that pre-pubertal girls have in differentiating levels of penetration and their lack of knowledge about their internal genital structures. I have already referred to the issues with CR’s evidence that that the accused “stuck his finger up my privates”. The lack of precision concerning what precisely was meant by the term “privates” is a significant issue. The use of the word vagina as an alternative to “privates” was unhelpful in view of Dr Edwards’ evidence about the correct anatomical meaning of the word “vagina”. Dr Edwards’ evidence establishes that whatever was penetrated it was not CR’s vagina. Further CR was not asked to elaborate on her evidence that the accused stuck his finger up her privates in any other way. Defence counsel contended that in those circumstances I could not eliminate as a reasonable possibility that that what was being described was a touching of the outer area of CR’s genitals as opposed to penetration. This would of course be an indecent assault but would not amount to sexual intercourse for the purpose of the charged offence. In the circumstances as I have outlined them above, I accept this submission.

In order to convict the accused I must accept the evidence of CR beyond reasonable doubt. CR was a truthful witness who genuinely believed what she was saying. The difficulties with her evidence relate to the reliability of her account and arose due to the lapse of time since the charged event, her age and her disability. There was, as I have indicated, some support for her evidence but it does not in my view overcome the difficulties that I have referred to. I think it likely, even probable, that the accused has indeed touched CJ in the genital area on more than one occasion including on the 4 October 2015. This is not however enough; I must be satisfied beyond reasonable doubt that the accused had sexual intercourse with CJ on 4 October 2015. In view of the matters that I have referred to I cannot be satisfied of that to the requisite standard and accordingly the prosecution has not discharged the onus of proving the charged offence.