R v C, WA - [2007] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, WA
Criminal Trial by Judge Alone
[2007] SADC 12
Reasons for the Verdict of His Honour Judge Lovell
21 February 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Trial by judge alone - accused charged with one count of unlawful sexual intercourse with a six year old girl - whether prosecution proved case beyond reasonable doubt.
Evidence Act 1929 s 9; Criminal Law Consolidation Act 1935 ss 5(1) & 5(c), referred to.
R v Randall (1991) 55 SASR 447, considered.

R v C, WA
[2007] SADC 12

On 19 May 2006 S a girl aged six was being looked after by Mr and Mrs C at their home at [ - - - ]. S alleges that Mr C, whilst alone with her in the toy room of the house, pulled down her pants and licked her on the vagina – an act of cunnilingus. The Accused was charged with one count of unlawful sexual intercourse with S, a person under the age of 14 years. He elected to have a trial by judge sitting alone.
Background
The Accused and his wife are friends of the X family. The two children of the X family and the two children of the C family all attend the [ - - - ] School. On 19 May 2006 Mr X was unable to collect his children from school as he had a medical appointment. Mrs X was unable to get off work to collect the children.
An arrangement was made for Mrs C to collect all of the children from the [ - - - ] School and look after them at her address at [ - - - ]. The Cs had only been living at that address for approximately six days. The X family had assisted with the move.
The Crown case is that whilst in the care of Mr and Mrs C, S was left alone in the toy room at their premises whilst other children were watching television in a different room. One of the children was B, S’s brother. It is alleged that Mr C pulled down S’s pants and performed an act of cunnilingus.
The matter proceeded as trial by judge alone before me commencing on 1 February 2007.
The Law
At the beginning of the trial, given the age of S, I conducted an enquiry pursuant to s 9 of the Evidence Act. Having questioned S I was of the view that she was not capable of giving sworn evidence but that she was capable of giving unsworn evidence and I ruled accordingly.
The Accused is presumed innocent unless and until his guilt has been proved. The burden of proving each of the charges lies wholly on the prosecution and the onus of proof is beyond reasonable doubt. The Accused is not obliged to prove anything. He has put forward a defence by the evidence of his wife, but he does not have to prove it. The Crown must disprove it beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the Accused is probably guilty. I am not to reach a conclusion of guilt by preferring the evidence of the complainant to that of the defence case. I must be satisfied before I could convict the Accused of the count on the information that the prosecution has proved beyond reasonable doubt each element of the charge.
Given that S was six years of age at the time of this offence and still only six when she gave evidence before me I must scrutinise her evidence with great care. There was no corroboration of her account. I bear in mind that it would be dangerous for me to convict the Accused unless I was completely satisfied of S’s truthfulness and accuracy.
Elements of the Offence
There are two elements of this offence which the Crown must prove beyond reasonable doubt, first, that the Accused had sexual intercourse with S on the date charged and, secondly, that at the time S was under the age of 14 years.
Sexual intercourse includes an act of cunnilingus; see s 5(c) of the Criminal Law Consolidation Act (1935) as amended.
In relation to an act of cunnilingus I direct myself in accordance with the Court of Criminal Appeal decision of R v Randall (1991) 55 SASR 447. The definition of sexual intercourse in s 5(1) of the Criminal Law Consolidation Act is such that cunnilingus does not require proof of penetration. Thus it would not be necessary for the prosecution to prove penetration. It would be enough if the prosecution would to satisfy me beyond reasonable doubt that the Accused licked the vagina or vulva of S (including the labia majora) with the tongue.
Consent on the part of S is no defence to this charge and is irrelevant. The charge is proved if the two elements are proved regardless of whether S consented as the law merely concerns itself with the act of sexual intercourse, however it came about.
The second element of the charge to be proved beyond reasonable doubt is that S was under the age of 14 years at the time the sexual intercourse occurred. This element was not disputed. S was born on [ - - - ] 2000.
Further I note that there is an alternate offence to unlawful sexual intercourse, namely indecent assault.
If the prosecution fails to prove the charge on the information and relies on the alternative then they must prove beyond reasonable doubt that there was an assault, and that the assault was accompanied by circumstances of indecency.
Special Directions
The Accused did not give evidence. He remained silent. He was not bound to give evidence. He had the right to decline to give evidence and I draw no inference adverse to him from the exercise of that right.
On 13 June 2006 the Accused was arrested and charged with this offence. He told the police that he was not willing to answer any questions. He was simply exercising a right that the law gives to everyone. I do not draw any adverse inference against the Accused by virtue of the fact that he declined to answer any questions.
The Evidence
The Complainant
S gave unsworn evidence. She was aged six at the time of the alleged offence and was still that age when she gave evidence. I was generally impressed with her evidence and I accept that she believed she was telling me the truth.
S identified an occasion at the house at [ - - - ] when she was alone with Mr C ([ - - -]) when they were playing on the computer together. After playing on the computer “He pulled down my pants, then he pulled down my knickers and then he licked my minnie” (T56). By minnie she was referring to her genital area. She later said “licked me – he licked me near my minnie” (T58). She expanded on that to say that it was near the side of her minnie (T59). She then drew on a diagram where she said her minnie was located and she was also asked to draw where [ - - - ] had licked her. She drew an area alongside where she had indicated her minnie was located. S maintained in her evidence that [ - - - ] licked her “near her minnie”.
S was cross-examined by Mr Jolly. During cross-examination a number of inconsistencies became apparent. They included matters such as whether it occurred at [ - - - ] or the house that Mr and Mrs C had just moved from. She was inconsistent about what computer equipment was available. She was inconsistent about who was in the house at the time of the offence. It was alleged by the DPP that Mrs C and the other children were in the main lounge watching television. S thought her mother was in the house at the time. On the DPP case that could not be correct. I acknowledge the force of the criticisms made by Mr Jolly but taking into account her age I thought that S gave a generally consistent account of the alleged events.
Mr X
Mr X gave evidence that on 19 May 2006, when he went to pick up his children from the C residence, he left his car in the driveway and went to the front door. The front entrance consisted of a wooden door and a screen door. When he approached the entrance the wooden door was open but the screen door was shut. He peered through the screen door and could see Mrs C and a number of children sitting in the lounge room watching the television. He could see B, his son, the two C children J and L and Mrs C. Mrs C said something like “J’s here” and the children all got up and came out through the front door. S was not with them. He thought that S turned up about 20 seconds after the other children and she came from the “kitchen area”. Mr C was a further ten seconds behind her (T111). He stood on the front porch area smoking a cigarette and talking to Mr and Mrs C. After that he, S and B got in the car and went home. He noticed nothing unusual about S’s behaviour.
Under cross-examination he denied the suggestion that when he arrived to pick the children up they, including S, were playing in the front yard whilst Mrs C was sitting on a chair in the front porch area. I thought Mr X was an honest witness who did his best to assist the court. I did not detect any attempt by him to embellish his evidence.
His evidence, if accepted, provided some support for S’s account, as the inference reasonably arises from his evidence that Mr C and S were not with the others in the house at the time he turned up at the house. There was, on his evidence, an opportunity for this offence to be committed.
Mrs X
Mrs X gave evidence of a general nature. I accept her evidence. She was not able to give evidence on the crucial issues.
The Defence Case
The Accused did not give evidence. Mrs C gave evidence.
On 19 May 2006 she collected the four children from school and returned to the home at [ - - - ]. When they got home the children went inside, dropped their bags off and went to the toy room. Mr C was in the kitchen having a cup of tea. The children, including S, grabbed a miniature basketball and football and then went out the front to play. The back area could be accessed through the house or by the driveway at the side of the house. However there is a large gate across the driveway which was locked with a padlock. If a child was out the front, the only way into the house was through the front door. Mrs C took two magazines and sat on a chair on the front porch and supervised the children. All four children were outside. Two other children from the neighbourhood, A and M, came and joined in the group of children playing. Under cross-examination S remembered playing with at least one of those children. That could only have been this day as the Cs had only moved in six days before and apart from the day they moved this was the only time that S had been to the premises before the alleged offence. Thus some support for Mrs C’s evidence can be found in the evidence of S.
Mrs C told me that she was still outside on the front porch, and the children including S were all playing outside when Mr X arrived to pick up his children. Thus her evidence was at odds with Mr X. According to Mrs C, from the time she had picked the children up from school until the time Mr X arrived S was not out of her view. In other words there was no opportunity for Mr C to have been alone with S. By inference the offence could not have been committed.
Mrs C was not a very impressive witness. She was defensive in cross-examination, although of course I allow for the fact that she was a person not used to giving evidence. From time to time she was evasive in her answers. At times she embellished answers. I have reservations about accepting her evidence.
Discussion
Two issues arose during the trial. First, could the evidence of S support an allegation of cunnilingus when she said that “he licked her near her minnie”. Secondly has the prosecution excluded beyond a reasonable doubt the evidence of Mrs C which if accepted would mean that Mr C could not have committed the offence because he was never alone with S.
I will deal with the second issue. If this was a civil matter I would prefer the evidence of Mr X over that of Mrs C. He was on the balance of probabilities the more impressive witness. Indeed I would also accept the evidence of S. However in this matter, if it is a reasonable possibility that Mrs C is telling the truth then there must be a reasonable doubt about the matter and the Accused must get the benefit of the doubt.
As mentioned Mrs C was not an impressive witness. However I could not say that her evidence was not a reasonable possibility. To reject her evidence would be a finding that she was lying to the court about the events of the day or at least the last ten or so minutes. Whilst I am suspicious of her evidence I am unable to make a finding that she deliberately lied about those matters.
Accordingly the Accused must get the benefit of the doubt and I therefore acquit the Accused of the charge of unlawful sexual intercourse with S a girl of six years of age. As that finding relates to the fact that it is a reasonable possibility that no criminal act occurred at all it follows logically that the Accused must also get the benefit of the doubt in relation to the alternative charge of indecent assault. I find the Accused not guilty of that charge as well.
Thus I do not have to make a finding about whether what was alleged by S could amount to an act of cunnilingus.