R v Cadman
[2019] SADC 144
•27 September 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CADMAN
Criminal Trial by Judge Alone
[2019] SADC 144
Reasons for the Verdict of Her Honour Judge S David
27 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with offence of Maintaining an Unlawful Sexual Relationship with a Child - accused a neighbour of the complainant - offending alleged to have occurred from 1973 to 1979 - complainant aged from seven to 13 - significant forensic disadvantage to the accused - no independent support for the complainant's evidence - accused gave evidence denying the charge.
Held: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) sub-ss 34M(4)(a) and (b), referred to.
R v CADMAN
[2019] SADC 144
Leslie Cadman (‘the accused’) is charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935. He is charged on Information dated 25 July 2019 as follows.
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935.)
Particulars of Offence
Leslie Cadman, between the 1st day of January 1973 and the 1st day of January 1979, at Ingle Farm maintained an unlawful sexual relationship with [JS], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [JS], namely:
(a)touching her vagina;
(b)inciting or causing or procuring her to touch his penis;
(c)performing an act of cunnilingus upon her;
(d)causing her to perform an act of fellatio upon him;
(e)inserting a finger into her vagina;
(f)showing her pornographic magazines; and
(g)inserting his penis into her vagina.
The accused pleaded not guilty to the charge and elected for trial without a jury. I now publish reasons for the verdict I deliver.
Overview
The complainant (‘JS’) lived next door to the accused for about two years when she was a child from 1973 to 1975. She came to know the accused’s daughter who was of a similar age. The accused and his family then moved to a second home located in the same suburb. The prosecution case was that the accused regularly sexually interfered with JS from when she was 7 years old to shortly before her 13th birthday. JS was born on 7 December 1965, and the offending allegedly occurred from 1973 to 1979.
The accused is alleged to have sexually touched JS at the accused’s home at Jakara Avenue and at his home at Barunga Avenue. The sexual acts are alleged to have occurred in various rooms at the accused’s homes, as well as in a swimming pool, tool shed and a chicken coop at the rear of the accused’s home at Jakara Avenue. The sexual acts also allegedly occurred at the beach, in the accused’s car and whilst he was taking JS for a ride on a motorcycle.
The accused is alleged to have touched JS on the vagina, digitally penetrated her vagina, caused JS to touch his penis, performed cunnilingus upon JS and caused JS to perform fellatio upon him. The accused is also alleged to have had penile/vaginal sexual intercourse with JS on one occasion.
JS first complained of the allegations to friends at a sleepover when she was aged about 13 years old. JS initially reported the allegations to police in 1996 but due to the statute of time limitation no charges were laid. JS again reported the allegations to police in 2017.
The accused was arrested on 27 December 2017. He was not made aware of the allegations until the time of his arrest.
The accused gave evidence at the trial. He denied the allegations. He also called evidence from his wife, Mrs Elizabeth Cadman, and his daughter, Mrs Carolyne Hatton. The defence case is that the accused did not commit any of the alleged sexual acts upon JS; that JS’s evidence is inherently unlikely or contradicted by other evidence called as part of the prosecution and defence cases.
Elements of the offence
To prove the charged offence, the prosecution must prove beyond reasonable doubt the following five legal elements or ingredients.
First, the prosecution must prove that the accused was an adult at the time of the charged offending. An adult person is a person of 18 years or over. The accused was born on 14 October 1937. There was no dispute that from 1 January 1973 until 1 January 1979 he was of 18 years or above and an adult.
Second, the prosecution must prove that JS was a child at the time of the alleged offending. A child is a person who is under the age of 17 years. There was no dispute that JS was born on 7 December 1965 and was aged from 7 years old to 13 years old and therefore a child at the time of the alleged offending.
The third element which the prosecution must prove is that there was a relationship (but not necessarily a sexual relationship) between the accused and JS during the course of which the accused engaged in the unlawful sexual acts. There was evidence that the accused lived next door to the complainant from late 1972 until 1975, and that he knew JS as his neighbour’s child. JS was also acquainted with his daughter, Carolyne, both girls being about the same age. The accused remained acquainted with JS after the accused and his family moved from Jakara Avenue to their home on Barunga Avenue. The extent of the relationship between the accused and JS was very much in dispute but the fact of the relationship, initially as ‘neighbours’, was not.
The fourth element the prosecution must prove is that there was an unlawful sexual relationship between the accused and JS. An unlawful sexual relationship is legislatively defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period of time. The alleged unlawful sexual acts are set out in the Information. They are allegations of the accused touching JS on the vagina, inciting or causing or procuring JS to touch his penis, performing an act of cunnilingus upon JS, causing JS to perform an act of fellatio upon him, inserting his finger into the vagina of JS and inserting his penis into the vagina of JS. Those acts are alleged to constitute offences of unlawful sexual intercourse and indecent assault and as such, unlawful sexual acts.
The offence of unlawful sexual intercourse is established if the prosecution has proved two elements. First, there must be an act of 'sexual intercourse' which is legislatively defined to include an act of digital penetration of a person’s vagina, inserting a penis into a person’s vagina, inserting a penis into a person’s mouth and the licking or sucking of a person’s vagina. The second element of the offence of unlawful sexual intercourse is that at the time of the alleged act of sexual intercourse, the complainant was under the age of 17 years.
As to the allegations of the accused touching JS's vagina and the accused inciting or causing or procuring JS to touch his penis, each act is alleged to constitute an offence of indecent assault. An indecent assault is made up of three elements. First, the prosecution must prove the accused assaulted JS. An assault is the intentional and unlawful application of force to another. Next, the prosecution must prove that the alleged touching was done intentionally as opposed to accidentally and without lawful excuse. In this case there was no evidence of accidental touching or a lawful excuse. Finally, the prosecution must prove that the touching was accompanied by, or occurred in, circumstances of indecency. That is, it must have a sexual connotation.
There was no dispute that should the court be satisfied that the accused committed two or more of the alleged sexual acts, they would constitute unlawful sexual acts and this element of the offence would have been proved.
Returning to the charged offence, the fifth element which the prosecution must prove is that the accused maintained an unlawful sexual relationship with JS. That is, on the whole of the evidence, the prosecution must prove that there was an ongoing relationship of a sexual nature between the accused and JS in that the accused carried on, kept up, or continued such a relationship. In this sense, there must be proof of continuity of sexual conduct.
Again, the issue in dispute in this trial was whether the prosecution had proved that two or more of the alleged sexual acts occurred at all. Accordingly it follows that this fifth element of the offence was also in dispute.
Legal Directions
I apply the following principles in reaching my verdict.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the offence, the prosecution is required to have proved beyond reasonable doubt each element of the charge. In these reasons, if the words ‘proved’, ‘established’, or ‘satisfied’ are used, this means to a standard of beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty.
The accused elected to give evidence. The accused was not obliged to do so. He had the right to remain silent in answer to the charge leaving it to the prosecution to prove each of the legal elements of the charge. As the accused has given evidence in his defence, and called witnesses as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, the accused’s evidence is to be assessed like the evidence of any other witness in this trial.
Special arrangements were put in place for JS without objection. The court was closed during her evidence, and a screen placed between herself and the accused. JS was also accompanied by a court companion. It is impermissible to draw any adverse inference against the accused because of such arrangements. Further, the use of those arrangements must not cause any extra or undue weight to be attached to JS’s evidence.
There is no evidence independent of JS’s evidence to support the charged offence. Consequently, her evidence must be carefully scrutinised before reliance can be placed upon it, and only after having particular regard to defence counsel’s criticisms of the credibility and reliability of JS, and taking into account the defence case.
The alleged offence occurred from 1973 to 1979, so there has been a period of 40 to 46 years between the alleged offence and the charge proceeding to trial. The specific allegations were not known to the accused until he was arrested by police on 27 December 2017. Such a lengthy delay has resulted in a significant forensic disadvantage to the accused in that there are significant difficulties for the accused in challenging and responding to the allegations said to have occurred so long in the past. The significant forensic disadvantages are as follows.
(i)First, there is no independent support for JS's account, and the overall delay in the matter proceeding to trial has inevitably led to JS being unable to remember some details of the events surrounding the charged offence. The effect of the lengthy delay on JS’s memory has disadvantaged the accused because he has lost some ability to test the detail of JS’s version of events.
(ii)Second, from the accused’s perspective, if there had been a timely trial, he would have been in a better position to remember back to the relevant period and recall any specific details of his movements or behaviour at the time. The accused may have been in a better position to produce evidence discounting JS’s version of events, although, it is not for the accused to prove anything.
(iii)The accused gave evidence that he now suffers from dementia and has some memory loss.
The significant forensic disadvantages to the accused must be taken into account when assessing whether the prosecution has proved its case. The accused cannot be convicted of the charge unless the court is satisfied of the truthfulness and reliability of JS’s evidence bearing in mind the significant forensic disadvantages to the accused caused by the delay in the allegations proceeding to trial.
JS gave evidence that she first disclosed the allegations to a friend, Deborah Jeske (now Deborah Signorelli), and other girls at a sleepover party held at Deborah’s house.[1] JS said Deborah lived near her and they were in the same year at school. They became friends in grade 7 and stayed friends during high school. JS said the sleepover occurred in year 8 or year 9 at Ingle Farm High School when JS was about 13 years old. JS gave evidence that she told the girls that the accused (whom Deborah knew) had been touching her and that she was having oral sex with him. JS said she could not recall the precise words she used. JS said that the other girls appeared shocked and as if they did not really believe her. JS said she felt really embarrassed and did not say anything more about it.[2]
[1] T 83-84.
[2] T 86.
Mrs Deborah Signorelli gave evidence that she does not recall being at a sleepover with JS, and she does not recall JS having disclosed to her that the accused sexually touched her or that she had been having oral sex with him.[3] Mrs Signorelli does not recall knowing a person by the name of Les Cadman. She said that she has not had anything to do with JS since she was about 18 years old.[4]
[3] T 208.
[4] T 209-210.
The evidence of JS’s complaint to Mrs Signorelli is potentially relevant to show how JS’s sexual allegations first came to light, and as evidence of consistency of conduct by JS.[5] The evidence of JS’s initial complaint is not admitted as evidence of the truth of JS’s statements that the accused engaged in sexual acts with her.[6]
[5] Evidence Act 1929 (SA), s 34M(4)(a).
[6] Evidence Act 1929 (SA), s 34M(4)(b).
There may be varied reasons why an alleged victim of a sexual offence has made a complaint about sexual offending at a particular time to a particular person. JS gave evidence that she did not tell anyone earlier about the sexual offending because she was too scared to do so and she believed she would get into trouble.[7] JS said that the accused told her not to tell anybody, and if she did, the accused, her parents and JS would all be in real trouble.[8] JS said the accused was an adult and she just did what he told her to do.[9]
[7] T 41.
[8] T 52.
[9] T 83.
On the defence case, JS had a motive to lie and fabricate the allegations against the accused because she was jealous of his daughter’s positive and happy family life, and because she disliked his wife. JS denied that she was so motivated and denied that she lied. The accused does not have to prove why JS may have fabricated the allegations against the accused. The absence or rejection of a motive to lie on the part of JS does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason or, indeed, for hidden reasons. It is not for the accused to put forward, or to prove a motive for JS to lie. It is for the prosecution to establish beyond reasonable doubt that JS is truthful in her evidence in court and to prove the charge.
I now turn to the evidence led by both the prosecution and defence in respect of each of the alleged sexual acts, as the contentious issue at trial was whether the prosecution had proved that the accused had committed two or more of the alleged sexual acts.
First touching – the obstacle course
JS recalled playing an ‘obstacle course’ game with other neighbourhood children during which they would run through the back yards and climb over each other’s fences. JS said that as she was one of the older children, she would hang back and help the smaller children over the fence before climbing over the fence herself.[10] On one occasion, JS recalled the accused stopping her and asking her to either show her knickers to him or asking her if he could look at her knickers. Either she or the accused lifted her dress and the accused moved his hand around the edge of her underwear in the ‘crotch region’. [11] JS thought the touching may have lasted for about 30 seconds. She then ran off.[12] JS said that this incident occurred at the side fence of the accused’s house, and that she would have been about six years of age at the time of the incident.[13]
[10] T 32-33.
[11] T 33-34.
[12] T 33.
[13] T 34, 37.
In cross-examination, JS agreed that an adult would not have been able to see over the top of the fence, but said that she used items like the meter box, fence posts, fence rails, bricks, trees and gutter posts to climb over the fences.[14] JS said that the fence pictured in the exhibit D5 (a photograph of the corner of the fence in the Cadman’s back yard) is not the fence that they climbed over.[15]
[14] T 115-116.
[15] T 176.
Mrs Maria Kern (formerly Stevens) who lived in the house on the other side of the accused’s home, and knew JS and the accused’s daughter when she was a child, said that the fences between the properties were galvanised fences. She said that she recalled playing games where children would go through gardens and climb over gates and fences.[16] However, in cross examination, Mrs Kern said that she could not recall a time where she would jump the side fences from the accused’s house to JS’s house. She only recalled climbing over her back fence into the adjoining neighbour’s garden.[17]
Defence case
[16] T 233.
[17] T 237.
The accused denied touching JS in the manner she described. He said that the side fences pictured in exhibits D5 and D6 depicted the fences as they were when he lived at the house in Jakara Avenue.[18] Mrs Carolyne Hatton (the accused’s daughter) also gave evidence that the side fences at Jakara Avenue were high corrugated steel fences, and were too high to jump over.[19] She denied ever having done so, with JS or anyone else.[20]
Touching and fellatio in the accused’s bedroom at Jakara Avenue
[18] T 272.
[19] T 403-404.
[20] T 404.
JS said there was an occasion, on a weekend, when she attended at the accused’s house looking for his daughter. The accused answered the door and told her Carolyne was not home.[21] He then took JS into his bedroom. [22] JS said that once in the bedroom, she and the accused were sitting on the bed and together they started looking through adult pornographic magazines which he had produced from underneath the bed. JS said that the accused placed her hand on his penis over his clothes and started moving it around. The accused was making noises and saying things to her like ‘wow, that feels beautiful’ and calling her a ‘good girl’. JS does not recall the accused touching her on this occasion.[23] JS said that she was ‘a bit shocked’. She said it was the first time she had ever been in that bedroom and the first time she had seen pornographic magazines.[24]
[21] T 38.
[22] T 41.
[23] T 38-41.
[24] T 39-40.
In cross-examination, JS described the layout of the bedroom. She said that the bed was underneath the window. When shown a plan of the room,[25] JS said that the plan did not depict the layout of the room as it was on the day of the sexual acts, but that over the years the furniture was moved in that room. [26]
[25] Later tendered as Exhibit D3 and drawn by Mrs Elizabeth Cadman.
[26] T 120.
JS said that there were other occasions of the accused indecently touching her in that bedroom, but she cannot now recall the exact details.[27]
Defence case
[27] T 125, 128.
The accused denied having committed any sexual acts on, or with, JS in his bedroom at Jakara Avenue.
Mrs Elizabeth Cadman (the accused’s wife) said that she would clean the bedroom every Wednesday and that she never came across any pornographic magazines.[28] She said that the bed in the master bedroom was never positioned under the window as she liked to be able to see the clouds out of the window when she was in the bed. She said that the plan drawn by her depicted the layout of the bedroom.[29] The accused’s daughter, Mrs Hatton, also said that the layout of the bedroom as drawn by her mother was correct, and that the bed was never positioned under the window.[30]
Cunnilingus and fellatio in the kitchen and laundry
[28] T 349.
[29] T 350.
[30] T 410-411.
JS said that on one occasion she went to the accused’s home at Jakara Avenue to see if Carolyne was home. The accused answered the door and let her in through the lounge room. The accused’s wife was sitting in the chair in the corner of the room watching television. JS said that the accused led her through the lounge room into the kitchen. JS said he closed the kitchen door, pulled her underwear to one side and put his tongue on her vagina. JS said the accused then had her touch his penis.[31] JS said that the accused took her into the laundry and closed the laundry room door. She said she performed fellatio on the accused in the laundry. She did not recall whether the accused ejaculated on this occasion.[32] JS said she recalled a pot of silverside beef cooking in the kitchen.[33]
[31] T 46.
[32] T 47.
[33] T 47.
JS said that the incident occurred in the afternoon and on the weekend. She could not recall how old she was at the time.[34]
[34] T 47.
In cross-examination, JS said that she was with the accused for about 10 minutes, and Mrs Cadman did not come into the kitchen or laundry looking for her. JS said she left the house through the back door such that she did not walk past Mrs Cadman on the way out.[35] JS said the accused did not pull her underwear down to her knees but to one side.[36] It was an agreed fact that she had told the police in an earlier statement that the accused pulled her underwear down to her knees.[37]
Defence case
[35] T 133.
[36] T 133.
[37] T 134.
The accused denied that he had performed cunnilingus on JS and that JS touched his penis in the kitchen. The accused denied JS performed fellatio upon him in the laundry. He said they never cooked or ate silverside as no one in their family liked it.[38] Mrs Cadman and Mrs Hatton also gave evidence that no one in their family enjoyed eating silverside and they never cooked it.[39]
[38] T 283.
[39] T 345, 367, 410.
Mrs Cadman also gave evidence that if she was aware that the accused was alone in a room with JS, she would have gone and investigated.[40]
[40] T 367.
Touching and fellatio in Carolyne’s bedroom
JS gave evidence of an occasion when she visited the accused’s home at Jakara Avenue to see if Carolyne was able to come and play. The accused let her inside the house and they went into Carolyne’s room to see if she was home.[41] JS said once inside the room, the accused tickled her on the vagina. Next, the accused undid his pants and touched his penis causing his penis to become erect. JS said that she performed fellatio on the accused and he ejaculated in her mouth.[42] This was the only time she recalled the accused ejaculating in her mouth.[43]
[41] T 43.
[42] T 43-44.
[43] T 44.
In cross examination, JS described Carolyne’s room as having one bed, toys and a cupboard. She said she does not recall a second bed being in the room when she was in there with the accused.[44]
Defence case
[44] T 137-138.
The accused denied having committed the sexual acts alleged to have occurred in Carolyne’s bedroom. The accused, Mrs Cadman and Mrs Hatton all gave evidence that Carolyne and her brother Dale always shared a room at Jakara Avenue (except, according to the accused, for a brief period in late 1972/early 1973 before two students came to live with them). The defence witnesses all said there were always two beds in that room.[45]
[45] T 341, 406.
Penile/vaginal sexual intercourse in the lounge room
JS gave evidence that she went to the accused’s home at Jakara Avenue to see if Carolyne was home and the accused answered the door in a dressing gown. He led her into the lounge room. JS said they were sitting on the couch looking at pornographic magazines when she touched the accused’s penis and performed fellatio upon him. The accused said he ‘wanted to do something different, something like was in the magazines’. JS said the accused lay her down on a fluffy rug on the floor and took her underpants off. JS said that he spread her legs apart and put his penis in her vagina.[46] She said that her underwear was near her feet and that the accused used his hand to try and put his penis in her vagina about four or five times. The accused then had JS masturbate him and he ejaculated into a handkerchief that he had in the pocket of his dressing gown.[47] JS said that she asked the accused if she would get pregnant and the accused told her that she was not going to get pregnant. The accused told her not to tell anybody and that if she did, she, her parents and he would all be in trouble.[48] JS she did not see or hear any other person in the house.[49] JS said this was the only occasion the accused had penile/vaginal sexual intercourse with her.[50]
[46] T 49-50.
[47] T 52.
[48] T 52.
[49] T 53.
[50] T 53.
In cross-examination, JS said that she believed the incident occurred before lunch and sometime on the weekend.[51] JS agreed that the accused had been given no warning that she would be coming to the house.[52]
Defence case
[51] T 139.
[52] T 140.
The accused denied the sexual acts alleged to have occurred in the lounge room.[53] He denied ever having shown JS pornographic magazines in the lounge room or anywhere else.[54] The accused and Mrs Cadman gave evidence that they never owned a fluffy, shaggy rug when they lived at Jakara Avenue.[55]
[53] T 282, 286.
[54] T 283, 322.
[55] T 286, 348.
Touching in the swimming pool
JS said there was an occasion when she was in the swimming pool with Carolyne at the accused’s home at Jakara Avenue. She said there was a blow-up dinghy with paddles in the pool. The accused got into the pool. JS said that whilst Carolyne was still in the pool, the accused started touching her vagina under the water and tried to coerce her to touch his penis. JS said she tried to get away from the accused. JS said that the pool water was not very clear and you could not see under the water.[56] JS said the accused told Carolyne to get something from inside the house. While Carolyne was inside the house, the accused made JS touch his penis for a minute or so. She could not see if the accused ejaculated.[57]
[56] T 54-55.
[57] T 54, 55.
Mrs Kern said she does not recall ever seeing an inflatable dinghy in the Cadman’s swimming pool or in their house.[58]
Defence case
[58] T 239.
The accused denied the sexual touching alleged to have occurred in the pool. He said there was never an occasion when he was in the pool with JS. Mrs Hatton also gave evidence that she never invited JS to swim in her pool and there was never an occasion when JS went swimming with her in her pool. Mrs Hatton said that there was never a time when there was an inflatable dinghy in the pool.[59]
[59] T 405.
Touching and fellatio in the ‘chicken coop’
JS gave evidence there was an occasion when the accused took her into a chicken coop situated in the corner of the back yard of the Jakara Avenue home. She said there were other people at the accused’s home at the time. She said that she was in the chicken coop with the accused for about 10 minutes. The door was closed. JS said she touched the accused’s penis and performed fellatio upon him. The accused ejaculated into a handkerchief he kept in his pocket.[60]
[60] T 55-57.
The witnesses, Mrs Kern[61] and Mrs Stevens,[62] gave evidence that there was not a chicken coop or chickens at the accused’s home at Jakara Avenue.
Defence case
[61] T 233.
[62] T 263.
The accused denied the sexual acts alleged to have occurred in the chicken coop.[63] The accused,[64] Mrs Cadman[65] and Mrs Hatton[66] said there was never a chicken coop or chickens in the back yard at Jakara Avenue. They said there was never any structure resembling a chicken coop or any structure at all in the back corner of the back yard.[67]
[63] T 328.
[64] T 271.
[65] T 350.
[66] T 403.
[67] T 301-302, 403.
Kissing, touching and fellatio in the tool shed
JS gave evidence there was an occasion when she was in the back yard of the accused’s home and inside the shed with the accused. She said that you could see into the shed even if the shed door was closed.[68] JS said that a group of children, including Carolyne, were playing in the back yard and she could hear the other children calling her name.[69] JS said that whilst she was in the shed the accused told her that he loved her more than his wife and daughter. JS said that she felt weird and asked herself whether it meant that he wanted to marry her.[70] JS said the accused was kissing her by putting his tongue inside her mouth. She recalled thinking that it was ‘a grown-up kiss’.[71] JS said that the accused lifted her up so that their heads were level and they were sort of cuddling. She had her legs wrapped around the accused while he supported her legs and waist.[72] JS said the accused made her touch his penis and pushed her head onto his penis. JS said that she felt the accused wanted her to hurry. JS recalls thinking that the other children could open the door to the shed at any point.[73]
[68] T 58.
[69] T 57-58.
[70] T 60.
[71] T 59.
[72] T 58-59.
[73] T 58.
In cross-examination, JS agreed that she may have told the police in an earlier statement that she was only playing outside with Carolyne when she went into the shed with the accused, however, she now recalls that there were other children there too.[74]
Defence case
[74] T 146.
The accused denied the sexual acts alleged to have occurred in the tool shed. The accused said there was not a tool shed in the back yard until shortly before they moved from the premises.[75] Mrs Cadman gave evidence that they received council approval for a tool shed in late 1974 and erected a tool shed three months before they moved to Barunga Avenue.[76]
[75] T 306.
[76] T 350.
Touching at the shops
JS gave evidence about an occasion when the accused had taken her and Carolyne in his car to a nearby shopping centre. JS said that it would have been on a Saturday morning or afternoon and that there were lots of cars parked in the car park. JS said the accused sent Carolyne into the shops and asked her to get some mixed lollies.[77] JS said that once Carolyne left, she touched the accused’s penis. JS said that she was alone in the car with the accused for maybe five minutes when Carolyne unexpectedly returned and the accused had to quickly pull his pants back up.[78]
[77] T 60-61
[78] T 60-61
In cross-examination, JS said she cannot recall in which car this incident occurred except to say that the car had a bench seat.[79] JS said that the accused had many different cars over the years.[80] JS had told police in an earlier statement that the ‘Batman car’ was the main car the accused used to abuse her in,[81] and that it had happened over twenty times.[82]
Defence case
[79] T 149
[80] T 149
[81] Exhibit D15 - Agreed Facts, paragraph 7.
[82] Exhibit D15 - Agreed Facts, paragraph 8.
The accused denied the sexual touching alleged to have occurred in the car at the shops.[83] He said that there was never an occasion when he drove his daughter and JS to the shops.[84] Mrs Cadman[85] and Mrs Hatton[86] both gave evidence that there was never any such occasion when the accused drove the girls to the shops.
[83] T 329.
[84] T 309.
[85] T 359-360.
[86] T 407.
Touching at the beach
JS said there was an occasion when she and her family went to Grange beach with the Cadman and the Stevens families. She said they travelled there in the late afternoon and stayed until dark.[87] JS said that she was allowed out deeper than the other children and she was swimming with a kickboard near where the accused and other adults were swimming. The adults, other than the accused, decided to head back to shore leaving her and the accused alone in the deeper section.[88] JS said the accused had her touch his penis whilst she was simultaneously trying to hold on to her kickboard and stay afloat.[89]
[87] T 62-63.
[88] T 62-63.
[89] T 62-63.
ES, JS’s mother, gave evidence that JS was an excellent swimmer, and as a family they would often swim at Henley Beach.[90] She said there were at least two, maybe three, times that the Cadman family went with her family to the beach. She said this occurred within the first year of the accused moving into his home at Jakara Avenue.[91]
Defence case
[90] T 218.
[91] T 222-223.
The accused denied the sexual touching which allegedly occurred in the water at Grange beach. He said he did not recall ever having gone to the beach with JS’s family.[92] However, Mrs Cadman gave evidence of her family having gone to Henley Beach on one occasion with JS’s family but said that ES, JS’s mother, was not there. She said this outing occurred within a few weeks of moving into their home at Jakara Avenue. She said that there were no other families from Jakara Avenue at the beach with them.[93]
[92] T 284.
[93] T 387-388.
Touching on the accused’s motorcycle
JS gave evidence of an occasion when she and some other children were sitting out the front of the accused’s house on Barunga Avenue and the accused drove up on a motorcycle. She said the accused was taking children for a ride around the block.[94] JS said that when it was her turn, the accused took her for a ride for about five minutes.[95] JS said that she was holding on to the accused’s waist when the accused moved her hand onto his exposed penis. JS said the accused had an erection.[96]
[94] T 64.
[95] T 67.
[96] T 64, 67.
In cross-examination, JS described the motorbike as being of normal size. She said that it was not as pictured in a photograph shown to her.[97] JS said that she did not know if the accused placed her hand on the inside of his pants or whether his penis was outside of his pants.[98]
[97] Exhibit D4.
[98] T 162.
Mrs Kern gave evidence that another neighbour on Jakara Avenue owned and rode a motorcycle but that she does not remember the accused having a motorcycle.[99]
Defence case
[99] T 240.
The accused denied placing JS’s hand on his penis whilst taking her for a ride on a motorcycle.[100] He said that he never owned a full-sized motorcycle, rather he had a small motorised paratrooper fold-up bicycle which was similar to that depicted in the photograph produced by him.[101] The accused said he never took JS or any child for a ride on the back of a motorcycle.[102]
[100] T 329.
[101] T 286.
[102] T 310-311.
Mrs Cadman also gave evidence that the accused never owned a full-sized motorcycle, and that her son owned and rode a small motorised bicycle, usually in the back yard.[103] Mrs Hatton gave evidence that the accused never took her for a ride on the back of a motorcycle or the small motorised bicycle. She said the ‘minibike’ was only ever ridden by her brother and in the back yard. She said that the accused never took the neighbourhood children for a ride on the small motorised bicycle.[104]
[103] T 365.
[104] T 408-409.
Touching and fellatio at Barunga Avenue - the slide projector incidents
JS gave evidence of an occasion when she went to the accused’s house on Barunga Avenue to play with Carolyne. She said Mrs Cadman and Carolyne were home that day.[105] JS said that she went into the accused’s bedroom as the accused had a slide projector set up in his bedroom and he wanted to show her some slides of their family holiday. She said there was a projector and a tripod.[106] JS said that she went into the bedroom with the accused and he shut the door.[107] JS said that the accused had a projector and a tripod but she could not recall whether there was a screen or whether the images were projected onto the wall. JS said that the accused showed her some slides, and then asked her to touch his penis which she did. The accused then had her perform fellatio upon him. JS said that the accused was sitting on the edge of the bed and she had her back to the door on a slight angle but she was not sitting on the bed. JS again touched his penis whilst both of them were standing. JS said that the accused ejaculated more than once into a handkerchief. The accused left the bedroom a couple of times and then returned whilst she remained in the bedroom.[108] JS said that it started to get dark so she left to go home. The accused asked her to come back the next day to again watch slides which she did.[109]
[105] T 68-69.
[106] T 68-69.
[107] T 68-69, 71.
[108] T 68-69, 72-73.
[109] T 73.
JS said on the following day she returned to the accused’s home at Barunga Avenue. Carolyne was sitting in the kitchen eating Weet-Bix with hot milk which she noticed as she thought it unusual to have hot milk on Weet-Bix. Mrs Cadman was also home.[110] JS said she again went with the accused into his bedroom. To do so she had to pass through the kitchen and lounge room in which Carolyne and Mrs Cadman were seated.[111] JS said once in the bedroom the accused showed her slides and at various intervals she would touch the accused’s penis and perform fellatio upon the accused. She cannot recall how many sexual acts occurred but she recalled performing fellatio more than once.[112] JS said that she was in the bedroom for a couple of hours.[113]
Defence case
[110] T 74.
[111] T 74.
[112] T 75.
[113] T 75.
The accused denied the sexual acts alleged to have occurred in his bedroom at Barunga Avenue on both days. The accused,[114] Mrs Cadman[115] and Mrs Hatton[116] said they did not own a slide projector and there was never an occasion when the accused took JS into his bedroom at Barunga Avenue to show her slides of their family holiday.
[114] T 286, 330.
[115] T 349.
[116] T 412.
Discussion
The prosecution case relied on JS being accepted as a truthful and reliable witness. I must accept her evidence beyond reasonable doubt if I am to convict the accused of the charged offence. There is no evidence independent of JS to support her allegations.
I found JS to be an articulate witness. JS gave considerable detail about many aspects of the alleged sexual acts and she made appropriate concessions in her evidence. Under cross-examination, she maintained her version of events and explained clearly various inconsistencies between her evidence in court and the earlier versions she had given to police in previous statements. JS did not strike me as a liar, nor did I consider the reasons suggested to her for having fabricated the allegations as convincing. It seemed implausible to me that a person would fabricate such serious allegations because they did not like a person’s wife or were jealous of his daughter, when those associations were so dated, and JS now had nothing to do with the accused or any member of his family.
However, having made those general observations, there were features of JS’s evidence which caused me to question the reliability of her evidence and which ultimately led me to conclude that I could not be satisfied beyond reasonable doubt of the charged offence. They are as follows.
First, JS made clear in her evidence that the alleged sexual acts occurred against a background of numerous other incidents of touching and oral sexual intercourse about which she could not provide any further details.[117] On JS’s account, she was a regular visitor to the accused’s home at Jakara Avenue and to a lesser extent Barunga Avenue, and she was often alone with the accused in his home. Yet the preponderance of the evidence is that JS never got along well with Carolyne, that Carolyne did not like JS or seek out her friendship and they were not particular friends. Further, the accused was often not home as he worked full-time during the week and played in a band on weekends. Further, during the time that the accused lived at Jakara Avenue, over a period of about two years, there was for most of that time a student or two living with his family, as well as the accused’s mother-in-law for at least six months. The accused was rarely home alone. Thus, there was limited opportunity for the accused to have committed the numerous sexual acts (including those she could not describe in detail) as alleged by JS.
[117] T 46, 96, 153.
Second, there were particular features of JS’s account which were directly contradicted by evidence given by both prosecution and defence witnesses. All the witnesses who were asked about a chicken coop (in which sexual touching was said to have occurred) gave evidence that there was no such structure in the back yard at Jakara Avenue. There was also evidence from Mrs Kern, the accused, Mrs Cadman and Mrs Hatton as to the accused not owning a full-sized motorcycle. There was evidence from each defence witness that JS never went swimming in their pool and there was never any occasion that the accused was in the pool with Carolyne and JS. The defence witnesses all gave evidence that the accused did not own a slide projector, and there was not an occasion when the accused drove JS and Carolyne to the local shops.
Whilst of course Mrs Cadman and Mrs Hatton, as his wife and daughter respectively, were loyal to the accused and understandably wanted to assist him in his defence, I could discern no basis to find that they were other than truthful in their evidence. I was also unable to accept that the abovementioned matters contradicting key features of JS’s evidence were matters that the witnesses would have simply forgotten or about which they were mistaken.
Third, several of the alleged sexual acts with JS were said to have occurred whilst Mrs Cadman and Carolyne were in the house. None of the inner doors at either house had locks. The latter occasion at Barunga Avenue in the accused’s bedroom when he was showing JS slides and engaging in sexual acts with her allegedly occurred over two hours. I thought it unlikely the accused would be so brazen to commit these acts whilst his wife and child were present in the house. Nor did I think it likely that neither Mrs Cadman or Carolyne would investigate why the accused was alone with JS or where in the house they were together over such an extended period of time as two hours.
Fourth, JS’s credibility was not buttressed by the ‘initial complaint’ in circumstances where Mrs Signorelli cannot recall JS having disclosed the allegations to her, and according to JS, Mrs Signorelli knew Mr Cadman and appeared shocked during the conversation. Mrs Signorelli would have been a teenager at the time. I am unable to find JS did complain to Mrs Signorelli as, had she done so, I would expect Mrs Signorelli to recall such a conversation, notwithstanding the elapse of time and the fact Mrs Signorelli was not asked about this conversation until many years later.
I have also had regard to the accused’s denials on oath of the allegations. His evidence was not inherently improbable, nor undermined by any inconsistencies or implausibility. I could not discount his denials as a reasonable possibility.
There has also been a considerable delay of at least 40 years between the alleged offence having occurred and the charge proceeding to trial. The accused was not made aware of the allegations until late 2017. He now suffers from dementia. I must take the significant forensic disadvantages I have outlined earlier into account in deciding whether the prosecution has proved the case.
For those reasons, I find myself unable to be satisfied beyond reasonable doubt that the accused committed any sexual act on, or with, JS or maintained a sexual relationship with JS and accordingly the prosecution has not proved the charged offence.
Verdict
I find the accused not guilty of the charged offence.
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