R v C, Pt
[2017] SADC 113
•19 October 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, PT
Criminal Trial by Judge Alone
[2017] SADC 113
Reasons for the Verdicts of Her Honour Judge Tracey
19 October 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused charged with three counts of unlawful sexual intercourse with a person under 14 years. Interviews of complainant admitted pursuant to s 13BA of the Evidence Act 1929. Accused denied offences and gave evidence.
Verdict: Guilty of counts 1 and 2. Not guilty of count 3.
Criminal Law Consolidation Act 1935 s 5; Evidence Act 1929 s 13BA, s 25, s 34D; Statutes Amendment (Attorney-General's Portfolio) Act 2016 s 27, referred to.
R v Randall (1991) 55 SASR 447, considered.
R v C, PT
[2017] SADC 113
The accused (‘PTC’) is charged with three counts unlawful sexual intercourse with a person under the age of 14 years. It is alleged that late in the evening on 4 October 2015 or early on 5 October 2015, he performed sexual acts on the complainant (‘CR’) who was then seven years of age, at his home in Salisbury North.
On 4 October 2015, CR, her mother LC and sister AR, stayed overnight at PTC’s house. LC’s now husband, DC, was living with his brother PTC at the time. The next morning, CR made a complaint to her mother about PTC. CR was taken to the Lyell McEwin Hospital where no evidence of genital injury was found on examination. Samples were taken from CR’s vaginal area and from her pyjama shorts. Police recorded an interview with CR on that day (‘recording 1’). Another recorded interview with CR took place on 3 June 2016 (‘recording 2’).
When PTC was interviewed by police he denied the offending. Samples were taken from his hands and fingernails and the area around his mouth.
PTC elected for trial by judge alone and gave evidence at the trial.
The charges
PTC is charged with the following offences:
First count
Statement of Offence
Unlawful Sexual Intercourse with a person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
PTC on or about the 4th day of October 2015 at Salisbury North, had sexual intercourse with CR, a person under the age of 14 years, by inserting a finger into her vagina.
Second count
Statement of Offence
Unlawful Sexual Intercourse with a person under 14 years. (Ibid)
Particulars of Offence
PTC on or about the 4th day of October 2015 at Salisbury North, had sexual intercourse with CR, a person under the age of 14 years, performing an act of cunnilingus upon her.
Third count
Statement of Offence
Unlawful Sexual Intercourse with a person under 14 years. (Ibid)
Particulars of Offence
PTC on or about the 4th day of October 2015 at Salisbury North, had sexual intercourse with CR, a person under the age of 14 years, performing an act of cunnilingus upon her.
In order to prove the offence of unlawful sexual intercourse the prosecution must prove beyond reasonable doubt that PTC committed an act of sexual intercourse with CR. Sexual intercourse is defined in s 5 of the Criminal Law Consolidation Act 1935 as:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunnilingus.
The prosecution in this case must also prove that at the time of the alleged offences, CR was under the age of 14 years. It is agreed that CR was born in March 2008.
General Directions
I direct myself as follows:
·PTC is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving each of the charges lies wholly on the prosecution and PTC is not obliged to prove a thing. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict PTC of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
·I must assess each witness, including PTC, as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
·I must consider each of the counts separately on its own merits and the charges do not stand or fall together.
·If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
·CR gave evidence with special arrangements in place. I must not draw an adverse inference against PTC as a result of these arrangements nor allow them to influence the weight I give to the evidence of CR.
Application to admit recordings 1 and 2
The prosecution made an application pursuant to s 13BA of the Evidence Act, 1929, (‘The Act’) for the evidence of CR to be admitted in the form of the audio-visual record of the interviews conducted by police. Section 13BA came into operation on 1 July 2016, that is, after the interviews were conducted. The section provides:
13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2) An application for an order under subsection (1) must—
(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b) be filed in the court; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d) otherwise be made in accordance with the rules of court.
(3) An audio visual record of the evidence of a witness may be admitted under this section if—
(a) the recording has been made pursuant to—
(i) section 12AB; or
(ii) Part 17 Division 3 of the Summary Offences Act 1953; and
(b) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d) during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(4) The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a) rule as inadmissible the whole or any part of the recording; or
(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5) Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6) If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i) not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
Accordingly, s 13BA confers a discretion on the court to admit an audio visual record of the evidence of a witness where the following preconditions are met:
·The recording was made pursuant to s 12 AB of the Act or Part 17, Division 3 of the Summary Offences Act 1953.
·The court is satisfied as to the capacity of the witness to give sworn or unsworn evidence at the time the recording was made.
·The defendant has been given a reasonable opportunity to view the recording
·The witness is available if required, for further examination, cross examination or re-examination during the course of the trial.
Section 27 of the Statutes Amendment (Attorney-General’s Portfolio) Act 2016 also came into operation on 1 July 2016 and amended the transitional provision contained in the Statutes Amendment (Vulnerable Witness) Act 2016. This transitional provision renders recordings 1 and 2 potentially admissible under s 13BA. The transitional provision reads:
27—Amendment of Schedule 1—Transitional provision
(1) Schedule 1, clause 1(1)—delete "sexual" wherever occurring
(2) Schedule 1, clause 1(2)—delete subclause (2) and substitute:(2) An audio visual record of the statement of a witness to whom this subclause applies made to an investigating or other authority before the commencement of section 10 of this Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of that section, be admitted under section 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division.
Note—
Section 10 of this Act inserts section 13BA into the Evidence Act 1929.
(3) Subclause (2) applies—
(a) to a witness who is—
(i) a child of or under the age of 14 years; or
(ii) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; and
(b) despite section 34LA(2)(c) of the Evidence Act 1929.
Recording 1
Senior Constable Mandy Leray, (‘SC Leray’), conducted the interview of CR on 5 October 2015 at the Elizabeth Police Station. A transcript of the interview was prepared.[1] The vision on recording 1 showed CR’s face at the very beginning of the interview. For the remainder only the very top of CR’s head was captured. There is no issue with the audio component of the recording.
[1] Exhibit VDP1.
SC Leray gave evidence on the voir dire. She described her standard practice in regards to interviewing children in 2015,[2] which included introducing herself to the child and accompanying caregiver, explaining her role to the caregiver, taking both the child and caregiver into the interview room, and then asking the caregiver to leave so the recorded interview could commence. She said she would introduce herself at the outset as a police officer.
[2] T17.
SC Leray had a specific recollection of the circumstances of her first meeting with CR and her mother. She thought it likely that a view of CR had not been properly captured as the video recorder had slipped from its position on the windowsill behind her without noticing.
Counsel for PTC, Mr Mead, submitted that recording 1 could never comply with the requirements of s 13BA for an audio visual record given little or no vision of CR was captured. It was he said, more properly described as an audio recording and that the legislation envisaged recording the witness so that their demeanour, the way they answer questions and the time taken to respond to questions can be observed and assessed.
In the event I were to find that it was an audio visual recording, Mr Mead urged me to exercise my discretion against its admission, pointing to responses CR made that he said did not seem to follow from the question asked and responses that were obviously incorrect. For example, where CR in response to a question about how long school terms were, said ‘one or two years’. It was, Mr Mead argued, not simply a matter of excusing everything a young child says on the basis of their age. Furthermore, I must be satisfied of four requirements namely, that CR did not have the capacity to give sworn evidence, that CR knew the difference between a truth and a lie, that CR was told that it is important to tell the truth and finally, that CR said she was willing to tell the truth. Mr Mead submitted in terms of the third and fourth elements, because questions addressing those issues were not asked at the time, those third and fourth requirements could not be satisfied.
The prosecution called CR to give evidence in the application. I found her evidence was of no real assistance in determining whether she had capacity in relation to an interview conducted back in October 2015.
SC Leray had not asked questions specifically addressing CR’s capacity but careful consideration of the recording in my view, allowed for the conclusion that CR had capacity at least to give unsworn evidence at the time of the recording.
In relation to recording 1, I was satisfied that:
·The amended transitional provisions deem recording 1 compliant with Division 3 of Part 17 of the Summary Offences Act 1953.
·There was a visual component to recording 1 and while that component became degraded partway through, which may have some bearing on my assessment of CR’s evidence, it was strictly in the form of an ‘audio-visual’ record.
·I was not satisfied CR was at the time of recording 1 capable of giving sworn evidence. I was however satisfied CR had the capacity to give unsworn evidence taking into account the following matters:
a) The first interview was conducted at a time close to the alleged events and to her initial complaint.
b) At the outset of the interview CR demonstrated an understanding of the reason why she was speaking to police.
c) CR gave a consistent account with respect to the matters concerning PTC.
d) CR corrected SC Leray on a number of occasions when what was repeated to her was not correct.
e) CR indicated when she did not know the answer to a question.
f) CR was clearly endeavouring to ensure that an accurate account of what she was speaking about was given to SC Leray.
g) I was satisfied that at the relevant time, CR demonstrated both an understanding of what was truthful and what was not and a willingness to tell the truth.
h) While there were occasions during the interview where it was clear the responses CR gave bore no relation to the question she had been asked, they were not a predominant feature of the interview and did not interfere with the overall clarity of what CR was expressing.
i) PTC had been given a reasonable opportunity to view the recording
j) CR was available for further examination, cross examination or re-examination.
Recording 2
This interview was conducted by Brevet Sergeant Michael SC Sherratt (‘SC Sherratt’) on 3 June 2016. SC Sherratt described how he conducted some preliminary truth and lie testing with CR and then, using the transcript of the interview conducted on 5 October 2016, sought clarification from CR on various points.
I considered that all preconditions for the admissibility of the interview prescribed by s 13BA were met and exercised my discretion to admit recording 2. My view of CR’s capacity to give unsworn evidence at the time this interview was recorded remained unchanged.
CR’s evidence at trial
When called to give evidence at trial, CR was aged 9 years. After speaking with her I remained of the view that CR did not have sufficient understanding of the obligation entailed in giving sworn evidence but did have the capacity to give unsworn evidence.
Section 9(4) (b) of the Act requires that I must warn myself of the need for caution in determining whether to accept the evidence of CR and the weight to be given to it. I have done so. Furthermore, in accordance with s 13BA(6) I have directed myself :
(i)not to draw from the admission of evidence in the form of audio-visual recordings any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in the form of audio visual recordings to influence the weight to be given to the evidence.
Uncharged acts
The prosecution did not seek to rely on the alleged uncharged acts of PTC taking CR into his bedroom and placing her on his bed, or touching CR on or penetrating her vagina on other occasions for a propensity purpose, submitting that the evidence had a permissible use which did not rely on a particular propensity or disposition. The prosecution identified permissible purposes for the evidence as being an explanation as to why CR did not complain earlier and why she complained to her mother when she did, and why PTC may have felt emboldened to commit the alleged offences. Mr Mead conceded that there was in this case a proper basis for the admission of the evidence given that the evidence of licking had prompted the complaint to CR’s mother. I admitted the evidence for those non-propensity reasoning purposes, having found that the probative value of the evidence substantially outweighed any prejudicial effect and have not used the evidence for anything other than those purposes.
Application to cross examine CR
The prosecution did not seek to call evidence from CR. Mr Mead sought leave to cross examine CR ‘at large’ and argued that the test to be applied in relation to cross examination was different from the test that had applied in relation to s 34CA of the Act, where leave had to be sought in relation to the topics that the accused wished to explore. Mr Mead argued that under s 13BA, the test is simply whether it would be in the interests of justice for the accused to be permitted to cross-examine and any improper questions could be dealt with by s 25 of the Act.
The second reading speech of the Statutes Amendment (Vulnerable Witnesses) Bill,[3] made it clear that any further questioning of a vulnerable witness can only occur with leave, so as to ‘prevent a vulnerable witness being exposed to irrelevant, unnecessary or inappropriate questioning’.
[3] South Australia Parliamentary Debates, House of Assembly, 6 May 2015 page 1037 (The Hon. J.R Rau).
While the Act may now afford a wider basis to cross examine a vulnerable witness, there was in my view, no intention to regress to the extent argued by Mr Mead. In any event, I allowed cross examination and re-examination to proceed, in the interests of justice, on a number of specific topics.
Prosecution evidence at trial
CR
Recording 1
In the first interview, CR told SC Leray that she had come to the police station because PTC was ‘touching and licking my rude parts’.[4] She described PTC as ‘sort of like an uncle to me’.[5] She said he always carries me to the bed, his bed’.[6]CR said he ‘always...put his finger in my rude part really deep…’[7]
[4] Exhibit P2 [12].
[5] Exhibit P2 [18].
[6] Exhibit P2 [26].
[7] Exhibit P2 [52].
CR described PTC coming into the lounge room where she fell asleep and putting her on his bed. She said her mother drinks a lot there so she is not allowed to drive. When he takes her into his bedroom, sometimes PTC puts the television on. Sometimes it wakes her up and other times it does not. She said ‘Well when he wakes me up, he starts doing that gross….stuff’[8] and ‘He puts his finger into my rude part and he goes really deep in there’.[9] When asked whether she had another name for her rude part she said that sometimes she called it ‘nipples’[10] and then when asked what you use your rude part for, she said ‘peeing and pooing’.[11] CR said that on the charged occasion she snuck out and found her pyjama shorts on the couch and put them on.[12]
[8] Exhibit P2 [148].
[9] Exhibit P2 [152].
[10] Exhibit P2 [154].
[11] Exhibit P2 [158].
[12] Exhibit P2 [178].
CR said that when she fell asleep on the couch she was wearing her ‘Frozen’ shorts. PTC had taken them off and she put them on when she went back to the couch.[13] CR said that she was not sure what day it was when she slept over at PTC’s house. She did not know what day it was on the day. When asked how many times she would have slept at PTC’s house, CR said ‘when Mum drinks, cause mum drinks she cannot drive’.[14]
[13] Exhibit P2 [178]-[180].
[14] Exhibit P2 [86].
When asked whether there was anything else that she could say about when PTC does ‘gross stuff’, CR said ‘This time he licked me in the rude part’[15] and then ‘There’s the first time he ever licked me… Well I never knew he would do that and it’s the first time he did that.’[16] A short time later she said, ‘He started getting his big fella out and… sticking his finger in my rude part really deep’. She said it happened in his room on his bed ‘when he snuck in the lounge room and carried me into his bed’.[17] When asked when this all happened, CR asked what day it was today and was told it was Monday. She thought it happened on Friday. She said she was never going to visit again because ‘mum said she doesn’t want PTC doing that’. She said ‘It felt, it felt like I was going to throw up’.[18]
[15] Exhibit P2 [206].
[16] Exhibit P2 [366] – [368].
[17] Exhibit P2.
[18] Exhibit P2 [424].
Recording 2
SC Sherratt asked CR what another name was for her rude part. CR said ‘vagina’ and ‘private’.[19] She said we ‘piss’[20] with our vagina. She said she went to visit PTC lots and lots of times. She said ‘I slept on the couch but he always got me onto his bed’.[21] She said PTC licked her vagina two times on the same night and lots of times put his finger in it. ‘He put his finger in there every time’.[22] CR repeated that PTC licked her on the vagina on his bed. He had not done this on any other night. When asked about what she had told SC Leray about a ‘big fella’ CR said that was the ‘big finger’.[23] He put his ‘big fella’ in her vagina.[24] On the couch she was wearing her ‘Frozen’ shorts. She put them on ‘when she went back to the couch… PTC took them off’.[25]
[19] Exhibit P5 [40] – [42].
[20] Exhibit P5 [44].
[21] Exhibit P5 [64].
[22] Exhibit P5 [82].
[23] Exhibit P5 [118].
[24] Exhibit P5 [126].
[25] Exhibit P5 [220]-[222].
Cross examination
CR was asked about a ukulele. She said she sometimes took it to PTC’s house but that he did not play it.[26]
[26] T138.
She said that on the night that PTC licked her vagina she knew she would be sleeping there. She was wearing ‘Frozen’ pants and underpants.[27] When she went to PTC’s house she would sometimes give him a hug and a kiss when she got there but could not remember if she sometimes would to sit on his lap.[28] Later she said ‘I can’t remember. I think I did’.[29]
[27] T139.
[28] T139.
[29] T145.
She stayed at his house a lot of times and knew him very well. He used to make nice drinks for her. She did not know if he would sometimes lick her on the face. He did not put his finger in her mouth.[30]
[30] T140.
On the night that he licked her, she remembered watching some television and playing with AR. There is a television in the room that ‘Poppy’, her mum’s dad sometimes stays in. She thought he was there on the night that PTC licked her.
On that night PTC carried her into his bedroom. She woke up while he was carrying her in. It was sort of dark and she thought he turned the light on.[31] She was wearing the ‘Frozen’ pants but could not remember what top she was wearing. PTC did not really say anything to her and she could not remember if she said anything to him.
[31] T141.
She snuck out of PTC’s bedroom by going on the other side of the bed and crawled out and tip toed back to the couch. She was watching the soccer with PTC on television ‘for a little while’.[32] The other people in the house were asleep. She asked PTC to turn the television on and either he or she turned it on and she stayed on the bed watching. She thought that PTC went to sleep after watching the soccer and then a little bit later she snuck out of the room. She said she was wearing the ‘same thing’ she had been wearing when she snuck out of the room.[33] Her ‘Frozen’ shorts were off when PTC carried her to the room. She went back to the couch and back to sleep. AR was on the couch. There were two couches. The other couch was near the door to the kitchen. When asked how many times PTC had put his finger in her vagina before this night, CR said ‘I can’t remember but lots’.[34]
[32] T142.
[33] T142.
[34] T143.
She said this was the first time he licked her.[35] She sometimes fell asleep in PTC’s bed but most of the time she would sneak out. When she would fall asleep, PTC would sometimes be in the bed or he would be doing ‘other stuff’.[36] Her mum would be in bed or she would go shopping. She said she did not tell her mum about what PTC was doing until the night he licked her. She did not tell her mum about what PTC was doing because she thought her mum would be mad at her.[37] She told her on that morning because she thought if she told the truth she would not be mad anymore. She could not remember talking to her mum the next day about what PTC had done.
[35] T144.
[36] T144.
[37] T145.
She said she did not remember if PTC licked her face on that night.[38]
[38] T145.
Re-examination
In re-examination, CR said that she could not remember if she had her shorts on when she came out of PTC’s room.[39]
[39] T149.
She thought her mum would be happy that she told her the truth. PTC licking her made her tell the truth to her mother. PTC licking her had made her feel uncomfortable.[40]
[40] T149.
LC
LC and her former husband have 10 children of whom CR is the youngest.[41] She met DC when she was living in Andrews Farm in 2012 and they married in 2015. She would visit DC at PTC’s house every week.[42] The last time she went there was when CR told her what had happened.
[41] T152.
[42] T161.
She would have drinks at PTC’s house and usually took CR and AR with her. When she started visiting PTC’s house CR was 2 or 3 years old.[43] She would not drive home if she drank too much. The girls would play and watch movies and look at the goldfish in the kitchen where there was a small fish tank. The house had three bedrooms. She would sleep in one particular bedroom with DC, and CR and AR would either sleep on the couch or the spare room.[44] PTC would sleep in his own room. They would have drinks out the front or in the kitchen at the table in the dining area.[45] There were two 2-seater couches in the lounge room. In 2015 she would go to PTC’s house on a Friday or on the weekend. If CR fell asleep on the lounge she would leave her there and AR would go into the spare room.[46]
[43] T163.
[44] T165.
[45] T166
[46] T168.
On Sunday 4 October 2015 she went to PTC’s house at about 5pm. She took food and drinks for the children and alcohol for herself.
When she got to PTC’s house, she sat at the kitchen table with PTC and DC. The girls were running around and playing with their water guns in the backyard. She started drinking right away and they sat at the table for a couple of hours.[47] She had about 8-10 drinks. It was about 9pm when she stopped drinking. DC had about 20 beers, as did PTC. She did not know if anyone had any dinner. The girls watched DVD’s in the lounge room with their food and drinks ‘chilling out’. CR was wearing a light coloured T shirt and light blue shorts.
[47] T173.
LC said she felt okay, just tired.[48] She decided to stay over at about 9pm. She checked on CR who was asleep on the couch and told AR to go to bed in the spare room.[49] When she went to bed in DC’s room, PTC was still up in the dining room drinking. She slept with the door shut. PTC was ‘looking pretty good’ and wasn’t slurring his words or falling over.[50]
LC said she had no specific recollection of the interaction between CR and PTC on that night.[51]
[48] T175.
[49] T176.
[50] T177.
[51] T177.
She had made plans to take the girls to the circus the following day as it was the school holidays. She woke up about 7:15am and woke AR and CR. No one else was awake. AR was in the spare bedroom and the door was closed. CR was on the lounge in the same position that she was in when she had seen her the night before. She took a blanket off CR and saw that her shorts were on inside out.[52] When they were walking to the door, CR said ‘I don’t want to come here anymore because PTC licks me and its gross’.[53] When asked if they were the words CR used, she said ‘Yes, ‘… PTC licks my private parts and its gross’. She told CR that they had to leave and put the girls in the car and drove home. She did not tell DC or PTC that she was leaving.
[52] T179.
[53] T179.
When CR told her that PTC licks her, CR sounded upset. She drove home, not talking to the girls as she was shocked. She talked to CR in her bedroom, asking her to tell her what happened and that she had to tell her the truth.[54] AR was in the room as well. CR told her ‘that PTC licks her and puts his fingers in her’. She said he had done it every time they went there since she was a baby.[55] CR told her that PTC licked her in her private parts, referring to the ‘vagina and bum’. She said CR sounded confident in what she was saying.[56]
[54] T180.
[55] T180.
[56] T181.
She asked CR to go to the toilet so she could check if CR was bleeding and there was no blood. She saw CR did a wee but did not let her shower.[57] She called DC and asked him to come over and they then took CR to the hospital. Later that day she took CR to the Elizabeth police station. In the evening they took CR to the Women’s and Children’s Hospital for an examination.
[57] T182.
When at the police station, she took CR’s clothes in a plastic bag. CR took her clothes off in her bedroom by herself. CR had not been wearing underpants.[58]
[58] T184.
In cross examination, LC said that PTC had more than 10 beers on the evening of 4 October.[59] She could not remember if CR took her ukulele to PTC’s house that day but said that it was possible she had and that it was possible PTC had been playing the ukulele with CR.[60] She recalled CR gave PTC a kiss and hug and was sitting on his lap around the table. LC agreed that sometimes PTC would lick CR on the face in a joking way but said she did not know if PTC would sometimes put his finger in CR’s mouth.[61]
[59] T 186.
[60] T186.
[61] T186.
LC said she was sure of what she heard CR say about PTC. In her statement to police, LC said that CR told her ‘PTC licks me and it’s gross’ and disagreed that it was not until she spoke to CR in her bedroom that CR mentioned her private parts.[62] After reading through her statement dated 29 December 2015, LC accepted that what was in the statement is what CR said to her that morning.[63]
[62] T187.
[63] T187.
When CR told her that PTC licks her, LC took it to mean in a sexual context.[64] When she arrived home she took AR and CR into her bedroom. She first spoke to AR who said that PTC had never touched her sexually. CR was present during that conversation. She then spoke to CR after speaking with AR. She asked CR to tell her what happened and told her she had to tell her the truth. CR told her that PTC licks her on the private part and puts his finger in her deep and it hurts.[65] It was not until they were back at their house that CR said anything about PTC putting his fingers in her.[66] LC had told AR that no one was allowed to touch her on her private parts, but had not directly said that to CR. LC agreed that CR knew that if it did happen she needed to tell LC.
[64] T188.
[65] T189.
[66] T189.
LC agreed that PTC did not have Foxtel connected at his home. She said that there was an occasion when she stayed at PTC’s house when CR woke up in PTC’s bed but agreed she had never mentioned this to police and could not recall the details. LC said she had forgotten about it until she had been asked in court. She recalled she spoke with DC about it and he told her there was nothing to worry about.[67]
[67] T191.
In re-examination, LC said she remembered an occasion when CR walked out of PTC’s room in the morning. She did not want CR in there but DC reassured her. That put her at ease but that was probably when she decided to start talking to the girls about no one being allowed to touch their private parts.[68]
[68] T192.
LC said that she had no memory of CR sitting on PTC’s lap on 4 October 2015, or any specific memory of PTC licking CR on the face.[69]
[69] T192.
SC Leray
SC Leray gave evidence in the trial. She said that CR was sitting at a table opposite to her in the interview. During the interview, CR moved from her chair on a couple of occasions, getting up, focusing on toys and books in the book case.[70]
[70] T124.
SC Sherratt
SC Sherratt gave evidence in the trial. He said in relation to the interview on 3 June 2016 he attended the DPP for a proofing with CR. At the completion he was requested to conduct an interview with CR to clarify some ‘vague’ points.
SC Sherratt attended at PTC’s address and arrested him on 5 October 2015. At the time one of his colleagues commenced videoing the interior of the premises[71] and a separate recording was made of his dealings with PTC. PTC indicated which of the bedrooms in the premises was his.
[71] Exhibit P11.
In viewing the video footage, SC Sherratt identified a fish tank in the kitchen. Televisions were in all three bedrooms and he did not observe any Foxtel or cable television equipment.[72]
[72] T278.
SC Sherratt conducted an interview with PTC which commenced at 9.04 pm on 5 October 2015 and concluded at 9.56 pm. The interview and a transcript were tendered.[73]
[73] Exhibit P12 and P13.
Brevet Sergeant Andrew Murphy
Brevet Sergeant Murphy is a crime scene examiner who took samples from the accused.
He conducted his examination on 5 October 2015 at 10.20pm. He described the procedures involved in taking swabs from PTC’s fingers, finger nails and his mouth and moustache area.
Dr Jane Edwards
Dr Edwards is a Specialist paediatrician employed at the Child Protection Services. She conducted a medical examination on CR on 5 October 2015[74]. She was aware from the information given to her by SAPOL that CR had referred to things concerning her private parts and clarified with CR that she had been referring to where she does ‘wee’ from. Dr Edwards described the methods used in collecting the samples from CR.[75]
[74] T215.
[75] T216.
Dr Edwards described the significant changes that occur in female children over the age of 10 due to estrogen. The labia majora and minora enlarge, pubic hair develops and the hymen becomes thickened and elastic. In pre-pubescent children, like CR, the hymen is non-elastic and can be injured by penetration with something such as a finger. Using a colposcope she examined CR to see whether there were any small scratches, abrasions or signs of injury. No injury or irregularity was found.[76]
[76] T217, 219.
With the aid of a diagram[77] Dr Edwards described the ‘vestibule’ as the anatomy within the labia minora. Minimal force is required to penetrate the labia majora or labia minor of a pre-pubertal child.[78]
[77] Exhibit P8.
[78] T220.
She said that the distance between the vestibule opening and the location of the hymen in a child can vary and that it is a ‘moveable’ distance as during examination, an elongated space is created. In a resting position, there would be several centimetres between the labia and the hymen.[79]
[79] T221.
If pressure is placed on the hymen of a seven year old child, you would expect the child to feel it as the hymen is sensitive. When doing an examination and using a swab, if the hymen were accidently touched it would be likely that the child would jump.
Unless there was injury caused to the hymen, there would be no pain associated with penetration of the vestibule. The child would experience some physical sensation.[80]
[80] T221.
Young children are not able to differentiate between the degree of penetration within the vestibule as they do not have an understanding of the anatomy of the vagina.[81] Dr Edwards said it is possible to penetrate the area between the vestibule and hymen without causing injury.[82]
[81] T222.
[82] T222.
In cross examination Dr Edwards said the mucosa of a pre-pubertal girl is easily injured if abrasive force is applied.[83]
[83] T224.
Whether an injury occurs from the insertion of a foreign object, depends on the way in which the object is applied and the degree of force used. The hymen of a pre-pubertal girl is very thin and sensitive.[84]
[84] T225.
Dr Edwards concluded that the absence of bleeding and injury indicated that penetration of the hymen and into the vagina was unlikely. If there had been penetration, there would have likely to have been some sign of injury to the hymen.[85] Measuring the distance between the labia to the hymen is unreliable because it can change depending on the position of the child.[86]
[85] T226.
[86] T226.
Dr Edwards said that pre-pubertal children would tend to jump if the hymen was touched due to the sensitivity of the hymen. Penetration of the vestibule could occur without touching the hymen region as a finger could rest between the labia or at an angle in the base of the vestibule. It could differ depending on the position of the child.[87]
[87] T227.
It is possible that such penetration could cause abrasions or bleeding however the vast majority of the examinations she conducts are normal.[88]
[88] T228.
The examinations usually occur sometime after the allegations are said to have occurred but studies include different time frames. Minor injuries (superficial abrasions) can heal within 24 hours. With a more severe injury, the healing time would be longer.[89]
[89] T228.
The instrument Dr Edwards used to examine CR would not be able to identify microscopic injury and she would only examine the vaginal wall in a post-pubertal child as there is no way of examining the vaginal wall of a pre-pubertal child without injuring the hymen.[90]
[90] T229.
In re-examination, Dr Edwards said that the pre-pubertal mucosa can be easily be injured from even a scratch of a fingernail but that contact does not always cause injury. There may be very superficial injury that cannot be seen. Digital contact with the mucosa does not always cause abrasion.[91]
[91] T230.
Louise Harkin
Ms Harkin is a senior forensic scientist at the Forensic Science Centre of South Australia.
In this case, a number of items were submitted for examination by SAPOL including a reference sample from PTC, a medical examination kit for CR and other items including CR’s clothing.[92] Ms Harkin had prepared a report regarding the results of testing of the samples taken from CR, her pyjamas and from PTC.[93]
[92] T247-248.
[93] Exhibit P9.
A cutting was taken from the crotch area of the pyjama shorts and tested for the presence of amylase, which is present in saliva.[94] Ms Harkin described the ‘cut off’ time for the test to show the presence of amylase is 8.5 minutes. A positive result will be recorded at any time in that 8.5 minutes. If a result shows towards the end of the 8 minutes, it is a weak result. In this case, the crotch area gave a result within 2 minutes.[95]
[94] T250.
[95] T252.
Given the time frame of the result and the lack of the presence of faecal matter, which can give a false positive, Ms Harkin concluded that the result was indicative of salivary amylase.
The crotch cutting was also subjected to DNA analysis. Testing revealed a mixed DNA profile involving three contributors – including CR and at least one male contributor.[96]
[96] T254.
Ms Harkin compared the mixed profile to the profile that she obtained from PTC. A statistical weighting of 2.1 billion was given in favour of PTC being a contributor which she said, provided extremely strong support for the proposition that PTC was a contributor to that profile.[97]
[97] T255.
Tests on the left and right labial swabs taken from CR both gave a positive result for the presence of amylase. In relation to the right labia, there was a reaction in 8 minutes, which Ms Harkin described as very weak. The left labia gave a reaction within 4 minutes.[98] There was no evidence of a male contributor to that profile.[99]
[98] T256.
[99] T257.
Ms Harkin said that fingernail swabs are usually used in preference to finger swabs because the fingernail is an area that is more protected from cells being lost due to washing or wiping hands.[100] A single source profile was found from the left hand fingernail swab taken from PTC. There was a higher than 100 billion ratio in favour of PTC being the contributor.[101] A mixed profile was obtained from testing the right hand fingernail swab. There were two contributors including the accused.[102] When compared to the profile of CR, a ratio of greater than 100 billion was obtained that CR was the second contributor to the mixed profile.[103]
[100] T257.
[101] T258.
[102] T259.
[103] T258.
In relation to the external mouth swabs taken from PTC, Ms Harkin obtained a mixed profile deriving from two contributors including PTC. The mixed profile was compared to the known profile of CR. CR could not be excluded as a possible contributor to the mixed profile, with a likelihood ratio of 21,000, providing what Ms Harkin said was very strong support for the proposition that CR was a contributor to that profile.[104]
[104] T259.
Ms Harkin explained that DNA contained in cellular material can be removed by wiping and touching other people. Washing can remove DNA from parts of the body. Urination can remove the DNA of another person.[105]
[105] T260.
In cross examination Ms Harkin said that the test carried out in this case was specifically for salivary alpha amylase. Breast milk and faecal matter can provide false positives, which if excluded, gives some confirmation that the result is of saliva amylase.[106]
[106] T265.
The labial swabs tested positive for the presence of amylase. This was a single source profile. PTC could be excluded as a contributor.[107] Ms Harkin agreed that in general terms if the amylase found came from a source other than CR, you would expect at least a mixed DNA profile to be present in the DNA profile. The only exception would be, she said, if there is an extreme variation between the amount of DNA each contributor has given to the sample, you may not see the second person’s DNA. In her experience, if a very weak or slow reaction is achieved it is generally because there is less amylase present and therefore there is less DNA.[108] The right labial swab returned a positive reaction in 8 minutes, which Ms Harkin described as a slow reaction. The left labial swab returned a positive reading at four minutes, which she described as a moderate reaction.[109]
[107] T268.
[108] T269.
[109] T270.
When asked whether she would expect there to have been a masking of DNA in relation to a sample that produced a result positive to amylase at 4 minutes, Ms Harkin said it was difficult and really depended on how many cells in the sample were from CR. There could be a very strong positive amylase result but if there was a large amount of her DNA there was potential for that DNA to mask the DNA of another contributor.[110]
[110] T271.
PTC
PTC is aged 59 and had lived at the same address for many years. He described a number of his significant health issues. In October 2015 he was living with one of his four brothers, DC.[111]
[111] T293.
In 2015 LC would visit PTC’s house about once or twice a week. She would always bring the children with her. He said that when she came over, CR and AR would come racing in. They would kiss and hug him, ask for a drink and then go play outside. PTC, DC and LC would have drinks with some friends.[112]
[112] T294.
LC would stay over with DC. There had been only two times when LC did not stay over when she and DC had an argument. CR and AR would stay the night and sleep on the couch or in the spare room. It depended who got into the bed first.
On 4 October 2015 LC arrived at his house at around 5:30pm. He said he did not know she was coming. CR and AR came in, hugged and kissed him and went into DC’s room and hugged and kissed him.[113] LC came in and they sat at the kitchen table. PTC put the television on for the girls. He said that AR would usually just hug him but CR would both hug and kiss him. CR would sit on his lap. She would sit on everyone’s lap.[114] On this occasion, she brought a ukulele and she sat on his lap and they played it together. After playing the ukulele, CR kissed him on the face and he kissed her on the forehead and then he made her a milo.[115]
[113] T296.
[114] T297.
[115] T297.
He said he got on well with LC’s children. CR and AR had left a nerf gun at his house and the girls went outside and they played. PTC said that he and DC were drinking beer and LC was drinking vodka pre-mix. They stayed at the kitchen table drinking until DC and LC went to bed. PTC said he had about 8 or 9 drinks by then. DC had about the same and LC had about 10 drinks.[116]
[116] T299.
When LC and DC went to bed, PTC went to the toilet, finished his beer, saw CR was asleep and turned the television off. He put a quilt over CR, turned the fish tank light on for the girls, turned the kitchen light off and went to bed. AR was in the spare bed asleep. DC and LC slept in the third bedroom and he went to sleep in his bedroom. He heard LC get up in the morning and take the girls. It was daylight and he went back to sleep, getting up at 10am.[117]
[117] T299.
PTC said he has never had Foxtel at his house. PTC said he had no further contact with CR after putting a quilt on her. He did not carry her to his bedroom and he did not sexually molest her that evening.[118]
[118] T300.
In cross examination PTC said he thought CR was ‘alright’. She was funny and would make him laugh with the things she did. He liked her attitude because she would not take no for an answer.[119] She would demand a drink or food. She was friendly and he got along well with her. He thought that she liked him as a friend. She did not behave herself with him and would run amuck in a playful way. PTC said he liked AR the same as CR. AR was not like CR. AR was quiet and polite and would do her own thing. CR had an attitude and she would mumble if she did not get her own way. AR would say please and would be patient. AR was older than CR. He could have more of a conversation with AR but both would talk to him. He would go out the back and play with the nerf guns and swing set with AR, and they would play basketball. He would play with AR more than CR.[120]
[119] T301.
[120] T303-304.
When asked whether he liked CR more than AR, PTC said ‘Not really’.
CR was the main one that came up, hugged and kissed him and walked off. PTC wouldn’t hug her back, he would kiss her on the cheek.
When he would kiss CR, he would kiss her on the cheek. He kissed her on the mouth on his birthday. She would grab him and kiss him. He would kiss her, with a peck her on the mouth on special occasions.[121] In 2015 when CR was 7, he would kiss her on the forehead or cheek. He would not kiss her on the mouth.[122]
[121] T310.
[122] T311.
When questioned further, PTC said that if it was not a special occasion, he would kiss CR on forehead or cheek. He would kiss her on the mouth on her birthday – just peck her with a closed mouth. He said he did this to CR rarely – when it was her birthday or Christmas or Easter. It was not a kiss, but a peck. PTC said he had no problem doing that when she was 7.[123]
[123] T312 -313.
On 4 October 2015 CR and AR came in, said hello and hugged and kissed him. PTC said it was unusual for AR to give him a kiss. He had not seen them for two weeks. CR hugged and kissed him – she kissed him on his cheek. CR kissed him once on one side of his face.[124] CR was hugging him around the waist when she gave him a kiss. He was sitting at the kitchen table – his chair was positioned a fair way out from the table. CR came up to him from the front. She was going for the side of the cheek but she got him on the side of his beard.[125] His hair was getting up her nose. She said it was prickly she made a spitting sound and had said that it tickled. He denied he had just ‘come up’ with the evidence that CR made a spitting sound to account for the DNA evidence.[126]
[124] T314.
[125] T315.
[126] T316.
When the police came to his house the following night, he did not know anything about the allegations.
PTC said when the girls and LC arrived they went straight into DC’s room and then came out to see him. When challenged on the order of the events, PTC said he was confused. He did not know which way it was. He said he only had one hug from CR that night and one kiss.[127]
[127] T318.
He was a smoker in 2015 and he smoked inside the house while drinking – he would have smoked about 4 cigarettes that night and he rolled his own without a filter.[128] There would be a little bit of contact between his fingers and his beard.
[128] T320.
CR sat on his lap and played the ukulele maybe before or after they went out the back and played. CR sat on his lap for about 15 or 20 minutes. CR was facing away from him and was sitting on one knee. When he was playing the ukulele she was holding it still and he reached around her. CR was holding the ukulele with her left hand on the arm part and he had his hand there as well. He reached around with his right hand and strummed the ukulele.[129] He probably strummed it with his thumb but he did not remember. PTC said this evidence was not an attempt to explain why CR’s DNA was under his finger nails.[130]
[129] T322.
[130] T325.
PTC was reminded of the evidence he gave in examination in chief about CR having kissed him on his face after strumming the ukulele. He said he had not forgotten about that evidence when asked in cross examination about the number of times CR had kissed him that evening. PTC said the prosecutor was just getting him confused. CR’s kiss was a quick peck on the left cheek. He did not know if it was on his beard or away from it. He kissed her on the cheek or on the forehead. He pecked her and tussled and scuffed her hair up.[131]
[131] T326.
When he went to bed that evening, CR was asleep on the couch adjacent to the kitchen. He had seen AR go to bed earlier.[132] Her door was not shut.
[132]T327.
When he went to bed that evening he went straight to sleep. He did not shower or wash his face the next morning. He did not wash his hands when going to the toilet that night or the next day.[133]
[133] T329.
PTC denied picking CR up off the couch or taking her into his bedroom. He denied putting his finger into her vagina, or licking her vagina.[134]
[134] T329.
When he woke up the next day, he had a cup of coffee. He did not eat anything. He had one cigarette. He smoked with his right hand when talking with the police. He used his right hand to take out his ID card. He denied the footage on exhibit P12 showed him smoking his cigarette right down to the end. He agreed he had used his right hand to sign the document given to him by police and used his right had to put his seat belt on.[135]
[135] T330.
He had a formal interview after 9pm, he used his right fingers to scratch the area of his left armpit and it was after that when police took samples from his hands and mouth.
PTC recalled an occasion when CR and AR went into his bedroom to look for the cat. DC was there at the time and he told them to get out. There was no occasion when CR woke up in his bedroom.[136]
[136] T331.
Tendered by consent was a television guide excerpt from the Sunday Mail newspaper dated 4 October 2015 which showed that no program dedicated to soccer was telecast at around the time of the alleged offending.[137]
[137] Exhibit D14.
Findings
The first interview took place six or seven hours after CR complained to her mother. It is of course difficult to evaluate CR’s demeanour during the first interview using any vision of her given it is lost from just after the start of the interview. The audio of the interview is however of good quality. The tone of CR’s voice and the manner in which she responded to questions are useful in assessing her as a witness. While on occasion CR’s speech was hurried and difficult to decipher, that did not in my view detract from the very specific and clear descriptions she gave of acts of digital penetration of her vagina and cunnilingus being performed upon her. SC Leray’s evidence that CR moved about in her chair and was interested in the toys in the room does not detract from the interview. CR spoke in a responsive, compelling, straightforward and unaffected way, clearly identifying PTC as the person who touched and licked her ‘rude parts’. It is clear that her description is of events the night before the interview.[138] CR gave an entirely spontaneous response to a question asking what happens when PTC does ‘gross’ stuff to her rude parts.[139] It was a compelling response consistent with what was no doubt a memorable and shocking experience for a young child.
[138] Exhibit P2 para 143-186, 201-252 and 201-252.
[139] Exhibit P2 [366-368].
The prosecution submitted that pursuant to s 34D of the Act, I am to estimate the weight to attach to what CR says in the interviews having regard to the contemporaneity of the events in the statement CR described and whether or not she had any incentive to conceal or misrepresent facts.
Section 34D provides:
34D—Weight to be attached to evidence
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
I have been assisted by the very helpful analysis of whether the Court is required to comply with s 34D by the decision of Muscat DCJ in R v Huynh,[140] where His Honour concluded that ‘once an interview admitted under s 13BA is treated as evidence, s 34D appears not to be applicable on its own wording’. With respect, I agree with that conclusion, but as the issue was not argued before me, I approach the weight to be attached to CR’s evidence in the interviews as if s 34D applied.
[140] [2017] SADC 49 at [30] – [40].
Assessment of CR
There was no incentive by CR to conceal or misrepresent facts that she alleged, and none has been demonstrated. There were a number of topics upon which the accuracy of what CR said could be objectively assessed. In the first interview she described where she went to school, the fact that it was school holidays and the number of siblings she had. There was some level of sophistication in her answers about why they would stay over at PTC’s house, that is, because her mother would drink and therefore could not drive. She had little difficulty in describing the usual scenario of how things were when she stayed at PTC’s house which was largely consistent with the evidence of both her mother and PTC. She also described being at ‘the doctor’s room’ earlier in the day, consistent with her attendance at hospital.[141] CR demonstrated that she was capable of describing things accurately and without embellishment.
[141] Exhibit P2 Para 250.
In relation to the second interview, while it occurred eight months after the first, CR clarified the specific acts alleged to have been committed by PTC. She informed SC Sherratt that it was true that her name was CR, but that her name had been changed by her mother,[142] demonstrating her reliability and desire to ensure things were accurate. As submitted by the prosecution, this informs the reliability of what CR said in her responses that followed.
[142] Exhibit P5 para 17-18.
Nothing in CR’s answers in cross-examination gave rise to any serious concern about the accuracy or reliability of what she had said in the interviews. The inconsistencies were minor. Despite the passage of time between giving the first interview and being in court, CR’s account of the events was fundamentally consistent. There was nothing in the inconsistencies identified by either the prosecution or defence that have caused me to question the truthfulness of CR’s allegations. CR said in cross examination she had been wearing underpants and added 'Mum tells me to wear underpants'.[143] Given the passage of time, I do not think anything turns on that inconsistency. Given the apparent frequency in which CR was staying at PTC’s house, there were likely to be some difficulties in recollecting the events. While in the first interview, CR had said she put her pyjama shorts back on when she went back to the couch as opposed to her answer in cross examination that when she snuck out of the bedroom she was wearing the same thing as when she went in, in re-examination CR conceded this was something that she could not remember. What CR said the day after the alleged events took place, is far more probable.
[143] T139.
Mr Mead highlighted those passages in the interviews where CR had trouble understanding the questions put to her and some of her responses that did not follow and were quite clearly incorrect.[144] Despite those few occasions, in my view, CR gave a consistent account in her cross-examination of the events that she said had taken place. In particular, that she did not bring pyjamas to PTC’s house, was wearing Frozen pants when she went to sleep, watched television and played with her sister and that PTC carried her into his bedroom, PTC had put his finger in her rude part, had licked her there and when she woke up, she snuck out.
[144] In particular see CR's answers in Exhibit P2 at [308] and [414].
In my view nothing turns on CR’s statement that she was watching soccer with PTC in his room on the relevant evening. It may be that she was –nothing in the excerpt from the newspaper establishes one way or another whether some sort of depiction of soccer was on the television at the time.
As regards the complaint evidence, evidence of CR’s initial complaint at PTC’s house and the later elaboration has been led, not to demonstrate the truth of what CR reported but rather to inform me as to how the allegations first came to light and assess whether there is consistency of conduct on CR’s part. I reject Mr Mead’s submission that given the context in which the conversation at home with her mother occurred, CR may have felt some pressure to talk about the licking in a sexual context, other than a more innocent context, that is of CR’s face, which CR would find gross and cause her not to want to return to PTC’s house. There is simply no evidence of any pressure placed on CR by her mother to discuss the licking in a sexual context. While the complaint evidence is of course not evidence of the truth of what CR told her mother, it does show consistency of conduct. I accept LC as both a truthful and reliable witness and I accept her evidence. Clearly it was the licking of her rude part that prompted CR to make the complaint to her mother. LC conceded that at PTC’s house, CR did not say 'He licked my private part', but rather that the complaint CR made at the time was 'He licks me and it’s gross'. There was no further discussion until soon after, in the bedroom of the house, CR elaborated, telling LC that PTC licks her in her private parts and every time they went there since CR was a baby he has put his fingers in her. This is consistent with what CR has said since.
Medical Evidence
Dr Edwards said that it is possible to penetrate the vestibule area without causing injury.[145] It is, Dr Edwards explained, a well-recognised phenomenon that young children do not differentiate between levels of penetration[146] accordingly, there is nothing inconsistent with the lack of any evidence of an injury and the allegation of digital penetration. Mr Mead urged me to be sceptical of what would amount to PTC’s apparent ability to avoid contact with the hymen on the occasions where he is alleged to have penetrated CR with his finger, particularly given the alcohol he is said to have consumed. Allowing for the variability in anatomy, there can be several centimetres between the vestibule opening and the hymen[147] and penetration into the area anterior to the hymen, and a child while experiencing some sort of physical sensation that would not necessarily be painful. Although CR said that PTC put his finger in ‘really deep’ and she told her mother that it hurt, there was no reference to pain in the interviews. I am satisfied that the evidence given by CR, given the opinions expressed by Dr Edwards, allow a finding that PTC penetrated CR’s labia.
[145] T222.
[146] T 221-222.
[147] T221.
DNA Evidence
Mr Mead submitted that in relation to the DNA evidence, while amylase was found in the labial swabs, it was of note that there was no DNA profile obtained from PTC in relation to those swabs. It was a single source profile. He said he would put it as high as ‘likely’ that the amylase on the pyjamas and the labial swabs came from CR herself given Ms Harkin’s evidence that PTC’s DNA profile obtained from the pyjamas did not necessarily relate to the amylase. I note however, Ms Harkin’s evidence in cross examination that if one person has contributed a lot of DNA and another person has contributed very little, it is possible that the signal for the smaller or the lesser contributor cannot be seen because it has just been ‘out-swamped’ by the major contributor.[148]
[148] T269.
There were, Mr Mead submitted, other innocent explanations for the presence of PTC’s DNA on the pyjamas in that CR slept on PTC’s couch providing possibility of a secondary transfer. Alternatively, when CR sat on PTC’s lap that evening, there could have been a secondary transfer of material from his clothing or skin onto CR’s pyjamas. It followed, Mr Mead submitted that if PTC’s evidence that he was playing CR’s ukulele was accepted, it would not be remarkable at all that CR’s DNA was found under his right hand fingernails as opposed to the left hand, because as a right handed person, PTC would be using his right hand to strum the instrument with his nails.
Ms Harkin's evidence regarding the results obtained from the pyjama shorts showed saliva amylase, rather than anything that may have produced a false positive. LC said she had observed that CR was wearing her pyjama shorts inside out and was not wearing underpants. The entire piece of fabric was removed for analysis, rather than a scrape from one side of the fabric. I do note the labial swabs showed no evidence implicating the accused, however according to LC, CR wore the pyjama shorts home, allowing for dislodgement of DNA, and when she got home, CR urinated. Urination according to Ms Harkin could in itself remove DNA, as could wiping the area in the manner described by LC.[149]
[149] T184.
With respect to the fingernail results, I accept the submission by prosecution that it is curious that the left fingernail only yielded a single source DNA profile given that PTC engaged with CR in the way that he said, for CR’s profile to have been eradicated from one hand and not the other. I am satisfied that the explanation for CR’s profile to have been found on his dominant hand fingernails, given Ms Harkin’s evidence about why fingernails are a favoured area to swab,[150] is that PTC had been used those fingers to touch and penetrate CR’s vagina the previous evening and I reject the suggestion that it was because PTC had played the ukulele with CR.
[150] T257.
The combined effect of the DNA evidence provides strong support for the allegations made by CR. The results from the pyjama shorts and right fingernail are entirely consistent with an act of cunnilingus and digital penetration having been performed on CR, while the mouth swabs although capable of being consistent with an act of cunnilingus, I accept, may be explained by other innocent means.
Assessment of PTC’s evidence
Clearly PTC had opportunity to offend in the manner as alleged. He stayed up drinking while all other occupants were asleep. PTC was keen to provide an innocent explanation for the DNA results. In his cross examination, PTC sought to measure his descriptions of interaction with CR and AR. He gave different versions about whether he or DC was kissed and hugged first on 4 October, and was unable to explain why that was so. He was as I have said, concerned to say that CR had kissed and hugged him but could not support that recollection with an accurate recall of the surrounding events. His cross examination on whether he had received more than one kiss and hug from CR on the evening illustrated his efforts to tailor the evidence in a way that he thought would be the most advantageous to him. He had initially said in cross examination that CR kissed him on the side of the beard, but later said it may have been on his beard or away from it, demonstrating he was giving evidence without any genuine recollection.[151] While I reject and do not accept the denials PTC made in his evidence, and have found that his evidence does not assist him, is not for him to prove anything and I must be satisfied beyond reasonable doubt about the truthfulness and reliability of CR’s evidence.
[151] T318.
Conclusion
In evaluating CR’s evidence, I have kept in mind that it was unsworn and have given her evidence careful scrutiny. She gave a compelling and internally consistent account of the events. Her account was consistent with the DNA evidence.
I am satisfied beyond reasonable doubt that CR gave both a truthful and reliable account of what she said happened to her. I am satisfied beyond reasonable doubt there was penetration of CR’s vagina by PTC’s finger.
The term cunnilingus is not defined in the Criminal Law Consolidation Act. In R v Randall[152] Cox J said:
In my opinion, it denotes the licking or sucking of the vagina or vulva, including the labia majora, with the tongue or mouth. No distinction is to be drawn between the outer and inner aspects of the labia.
[152] (1991) 55 SASR 447.
I am satisfied that PTC performed an act of cunnilingus on CR however, despite CR’s assertion that he licked her ‘..two times umm and on the same night’,[153] I cannot be satisfied that there were two separate and distinct occasions on which this occurred.
[153] Exhibit P5 para 78.
I find the accused guilty of counts 1 and 2. I find him not guilty of count 3.
0
2
1