R v Cashion - [2012] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CASHION
Criminal Trial by Judge Alone
[2012] SADC 132
Reasons for the Verdict of His Honour Judge Chivell
19 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with two counts of rape and five counts of unlawful sexual intercourse.
Verdict: Guilty on all counts.
Evidence Act 1929 s 34, s 34CB, s34M, s 34P, s 34R, referred to.
R v R, R & R, LJ [2008] SASC 35; Dyers v R (2002) 210 CLR 285; R v HS (2004) 90 SASR 28; R v Liddy (2002) 81 SASR 22; R v Nieterink (1999) 76 SASR 56; R v M, BJ [2011] SASCFC 50; R v J, JA (2009) 105 SASR 563; R v S, DD [2010] SASCFC 80; R v H, T (2010) 108 SASR 86; R v Franco (2010) 107 SASR 272; Suresh v R (1998) 72 ALJR 769; Question of Law (No 1 of 1993) (1993) 59 SASR 214; R v E (1996) 39 NSWLR 450; Palmer v R (1998) 193 CLR 1; Graham v R (1998) 195 CLR 606; R v SAP [2005] QCA 284, considered.

R v CASHION
[2012] SADC 132
Introduction

Darren Jordan Cashion is charged with rape (two counts) and unlawful sexual intercourse (five counts) with a female child to whom I will refer as ‘C’. He was charged on the same information with his father, David Cashion, who faced three counts of unlawful sexual intercourse with C.
The two men were arraigned on 3 September 2012. David Cashion pleaded ‘guilty’ to the three counts against him. Darren Cashion pleaded ‘not guilty’. I specifically remind myself that David Cashion’s plea of guilty is irrelevant to the case against Darren Cashion. I indicate that I have not made use of this information in any way in considering the case against Darren Cashion.
There was a preliminary objection taken to the admissibility of evidence relating to David Cashion in the case against Darren Cashion. I ruled that the evidence was admissible (ruling dated 6 September 2012). The admission of this evidence also requires specific directions to be given. These are given later in these reasons.
Darren Cashion then sought an extension of time within which to exercise his right to elect to be tried by a judge sitting without a jury, pursuant to s 7 of the Juries Act 1927. An extension of time was granted (see reasons dated 6 September 2012). The election was made, and the trial has proceeded without a jury.
Ms E Wildman appeared for the Director of Public Prosecutions, and Mr J Stewart appeared for Darren Cashion.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[1]
[1] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·Mr Cashion elected not to give evidence, nor call any other evidence on his own behalf. He was under no obligation to do that. No adverse inference may be drawn from that election. It does not constitute an admission of anything, may not be used to fill gaps in the prosecution case, nor may it be used as a make-weight when assessing the strength of the prosecution case;[2]
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’;
·each count must be considered separately. In the event that I were to find the accused guilty of a count, the evidence and that finding may not be used in proof of the other counts.[3] Conversely, if I am not satisfied about the credibility or reliability of C in relation to one count, and the other counts rely on the uncorroborated evidence of C, then that doubt should be taken into account in determining whether I am prepared to accept her evidence on other counts.[4]
[2]    Dyers v R (2002) 210 CLR 285 at [15]
[3]    R v HS (2004) 90 SASR 28
[4]    R v Liddy (2002) 81 SASR 22 at [181-193]
Prosecution Case
C gave evidence of the seven incidents said to constitute the crimes in the information against Darren Cashion. She also gave evidence of conversations said to constitute an initial complaint, within the meaning of s 34M of the Evidence Act 1929. That evidence was led without objection. I will discuss this evidence later in these reasons.
The prosecution also led evidence from RT and her brother JT about this complaint and the circumstances in which it was made.
Evidence was led from Dr Rebecca Pinyon of Forensic Science SA about the results of DNA testing which provided strong evidence that David Cashion is the father of C’s child, J, born on 1 November 2007. There was evidence from Ms Susan Andrews, David Cashion’s mother, of conversations with her in which David Cashion asserted that he was J’s father, and from Mr Andrew White that he had seen David Cashion and C having sexual intercourse at the house in Pennington. Mr White also gave evidence of general living with the group.
Agreed Facts
The following facts were agreed by the parties pursuant to s 34 of the Evidence Act (T 360):
·     From about March 2004 to about November 2004, C lived at a specified Woodville Gardens address.
·     From about November 2004 to about October 2005, C lived at a specified Ethelton address.
·     From about October 2005 to about November 2006, C lived at a specified Seaton address.
·     From about March 2006 to about May 2006, C lived at a specified Beverley address.
·     From about May 2006 to about September 2006, C lived at a specified Pennington address.
·     From about September 2006 to about June 2007, C lived at a specified Findon address.
·     C’s date of birth is 24 April 1991.
·     ‘E’, C’s niece, daughter of C’s sister ‘M’, was born on 2 October 2004.
·     On 2 September 2011, Senior Constable Sarah McFarlane attended at an Exeter address. In the bedroom of David Cashion she located the baton depicted in photographs 9-11 of Exhibit P2 and the original photographs of which Exhibits P3 and P4 are a copy. She brought those items to the attention of Brevet Sergeant Hayes. Later that day he seized the items located by Senior Constable McFarlane.
·     Darren Cashion was in custody in the Adelaide Remand Centre from approximately 7 June 2006 to 15 August 2006.
These agreed facts are particularly important in that they provide a temporal framework for C’s evidence, since she was unable to be specific about when particular incidents occurred but would identify the incidents by reference to where the group was living at the time.
C’s Evidence
C said she was one of four sisters, two of them older and one younger. The sister I will call ‘M’ was five years older. C and M are half-sisters, with the same mother but different fathers.
C’s childhood was obviously troubled. At five, she was placed in foster care. This was obviously unpleasant for her. She described it as a ‘bad experience’ but she was not asked for any details about that (T 85). Her mother suffered from mental illness. Her parents separated when she was young. She had little contact with her father.
When C was 12, her mother took her to the house that M was then sharing with Darren Cashion at Woodville Gardens, and left her there. M was then 16 and Darren Cashion was 18. Darren Cashion’s father, David Cashion, was a frequent visitor to the house. He slept there several nights a week. C said that money was short. Much of it was spent on drugs and alcohol.
So this was the environment in which C spent her early years.
After Woodville Gardens, the group moved to various locations referred to in the agreed facts. C agreed with Mr Stewart that there was a ‘party atmosphere’ at these places, which I take to mean that alcohol and drugs were taken regularly. She said she drank spirits and coke when it was available, and smoked cannabis nearly every day.
In 2004, M became pregnant. It is an agreed fact that her daughter, E, was born on 2 October 2004.
Count 1 – Rape
It is alleged that this occurred at the Woodville Gardens house on about 30 September 2004. C gave evidence that it happened two days before E was born. M was in hospital at the time. C was drinking spirits and coke with David Cashion and Darren Cashion. She was also given cannabis. She smoked it in a bong with some crushed pills on top. She felt sleepy.
C said that David Cashion had fallen asleep. She was also starting to fall asleep. Darren Cashion picked her up off the couch and carried her to her room. She was ‘out of it’ and could not move. Once in the room, she was on her hands and knees, and Darren Cashion put the head of his penis in her anus. It hurt and she cried. She told him to stop because it hurt. Darren told her to be quiet or she would wake his dad (T 81).
Count 2 – Rape
C said that after the events in count 1, she ended up on her back and Darren put his penis in her vagina. Again it hurt, and she told him to stop. She could not do anything to get him to stop because of the alcohol and cannabis she had taken.
Even though it was dark at the time, C was in no doubt that these acts were performed by Darren Cashion. She said she could tell because of the difference in build between Darren and David, and because she recognised his voice (T 82).
Uncharged Acts
Evidence of sexual acts, other than those charged, between Darren Cashion and C after the events in counts 1 and 2 was led. C said that acts of vaginal intercourse or fellatio between them occurred roughly three or four times a week. They usually occurred in her bedroom. Darren would ejaculate into dirty laundry. The laundry was next to her bedroom. M was either asleep or had gone out when these acts occurred.
C said she gave up telling him to stop because he never listened. He told her not to tell anyone or he would kill her, because he knew he would get into trouble, and M would leave him. She would have to go and live in a foster home. C said she did not tell M because:
… she’d be angry and that Darren might be mean to me, might hurt me and stuff.
(T 85)
C said that Darren Cashion hit her about the upper body when he was angry, but she could not remember the details of that. She said that Darren used to hurt her sister as well, when she was pregnant. This also scared her (T 87).
Direction re Uncharged Acts
This evidence was led on the basis that it is relevant to the question why C continued to submit to sexual relations with Darren Cashion, and why she did not complain, either then or later. It is also relevant because it shows that the charged counts did not simply arise ‘out of the blue’ but in the context of regular and frequent sexual activity. It also explains why C could not remember every specific act of sexual intercourse, or the details of each act. These are the only purposes for which I use the evidence.
I specifically refrain from using ‘propensity reasoning’, that Darren Cashion is a person of bad character and therefore more likely to have committed the charged offences (R v Nieterink[5], R v M, BJ[6]).
[5] (1999) 76 SASR 56
[6] [2011] SASCFC 50 at [58-62]
Count 3 – Unlawful Sexual Intercourse
This was one occasion which C said she could remember specifically among the many other similar occasions. It occurred not long after M returned from hospital with her baby. They were still living at Woodville Gardens. She had come home from school and was in her room. M was asleep or out. She performed fellatio on Darren Cashion at his request. She told him not to, but he put his penis in her mouth anyway. He ejaculated into a tea towel he had brought with him from the laundry. She remembered that he was wearing red boxer shorts with an M & M’s chocolate logo on them (T 88).
Count 4 – Unlawful Sexual Intercourse
According to the agreed facts, the group moved to a house in Ethelton in November 2004. C said the pattern of David Cashion sleeping over, drinking alcohol, smoking cannabis, and sex with Darren Cashion continued. She said she smoked cannabis because it stopped her thinking about the bad things that were happening.
C said that on one occasion she was home, as was Darren Cashion. Darren was in the back yard picking up rotten fruit off the ground (T 90). This was in the daytime. Darren asked her to come out and help him. She came outside, and he took her around the corner of the house and told her to suck his penis. She complied. While she was doing that, David Cashion came around the corner and saw them. Darren told her to go inside. She walked past David Cashion to do so. As she did so, she heard Darren say to his father words to the effect that if David did not tell anyone, he could do it (i.e. have sex with C), too (T 92).
Evidence in Relation to David Cashion
C said that David Cashion came into her bedroom that night and had vaginal intercourse with her for the first time. Darren Cashion was in the lounge room, and M was asleep.
David Cashion told C not to tell anyone, and threatened her, in the same way Darren had done. She said she took this seriously because David was a ‘scary person’, David and Darren were ‘violent all the time’, and David was ‘always angry’ (T 95).
C’s evidence was that this was the first of many occasions when she had sexual intercourse with David Cashion. Her evidence about this was corroborated by the evidence of Dr Pinyon, which provides strong evidence that David Cashion is the father of C’s son J; the evidence of Ms Andrews about David Cashion’s admission of that fact; of Andrew White, who said he saw David Cashion and C having sexual intercourse; and of JT, who said David Cashion told him to ‘keep away from my son’ (T 326, 339). I am satisfied beyond reasonable doubt that C’s evidence about what happened between her and David Cashion is true.
This evidence was also led for very specific purposes, which I will discuss later in these reasons.
The Move to Seaton
The agreed facts establish that the group moved to an address in Seaton in October 2005.
By this time, according to C’s evidence, there was an established pattern of sexual behaviour involving her and both David and Darren Cashion. She described a routine whereby, after M had gone to bed, Darren would come into her room and have vaginal sexual intercourse with her while David waited in the lounge room. When Darren had finished, he would return to the lounge room and then David would come in and have vaginal sexual intercourse with her.
C said that while each man was with her, the other one would keep a lookout for M, in particular. If M got up, the lookout would cough, or talk to M, warning the man with C.
C said she had sexual intercourse with both men on ‘most nights’ (T 102).
According to C, M was well aware that she was having regular sexual intercourse with David Cashion. She described how, if David was angry or in a bad mood, M would ask her, ‘Haven’t you had sex with him again?’, in other words, that she was denying him sex again (T 103).
C recalled an occasion when M found David Cashion naked in her bed one morning. She said she fell asleep during sexual intercourse with him the night before. M said she had ‘had enough’. She reported the matter to Families SA, and their officers came to the house.
Families SA took C, M and the baby E to a motel. However, the two men located them because M telephoned them. C said that one of them, she could not remember who, threatened to send members of two notorious criminal families after her if she informed on them to the police (T 107).
C said that she returned to the house at Seaton and did not complain to the police because of these threats (T 106).
Count 5 – Unlawful Sexual Intercourse
It is alleged that this event occurred at the Seaton house.
C said she was in the kitchen cooking a meal. She was holding E, who was by then nearly two years old. The others were outside drinking. Darren Cashion came into the kitchen and told her to suck his penis. She said she ‘just did as I was told’ (T 186). She was on her knees, still holding the child.
C said she heard David Cashion yell ‘slut’ through the kitchen window. Her evidence had been that this was a word both Darren and David Cashion often used in relation to her. David Cashion had become increasingly jealous and possessive of her since he started having sexual intercourse with her (T 133). He and Darren often fought over her. She said David Cashion regarded her as ‘his property’.
C said that M then ran into the kitchen and hit her on the head. She was unable to say what happened to the child at that point. M proceeded to punch C repeatedly about the head and upper body. C said she was bleeding from the ear and nose. She lay on the floor for two hours, unable to move (T 111).
C said she went and stayed with Darren Cashion’s mother at Elizabeth North for a few days so that M could have ‘respite’ from her.
Count 6 – Unlawful Sexual Intercourse
It is alleged that this event also occurred at the Seaton house.
C described how Darren Cashion told her to follow him into the garage, where he told her to get on all fours. He pulled down her lower clothing and had vaginal sexual intercourse with her from behind.
C said her knees were scratched from being in contact with the concrete floor as a result of this incident (T 112-113).
Count 7 – Unlawful Sexual Intercourse
It is alleged that this event occurred at a house in Beverley. It is agreed that the group moved to this house in March 2006.
C said that Darren Cashion came to her room one night and they had vaginal sexual intercourse on her bed. It appears that C’s room was some sort of sleep‑out or outside room, such that if the back door was locked, access to the inside of the house was impossible. C said that David Cashion came out to the toilet and said something to them, and then went back inside the house, locking the back door. Darren tried to get back inside but was unable to.
The clear implication of this evidence is that David Cashion was annoyed because Darren was having sexual intercourse with C, so he locked him outside. I have already referred to David Cashion’s increasing jealousy and possessiveness.
C said that Darren Cashion went over the back fence and was away for some time. When he came back, he had a black leather or rubber truncheon or baton with him. He told her he had stolen it. Sometime later, David Cashion, to whom Darren Cashion had presumably given the truncheon, used it sexually by inserting it in C’s vagina (T 121).
I again indicate that I will not indulge in ‘propensity reasoning’ in relation to this evidence, or conclude that because Darren Cashion is alleged to have stolen, he is more likely to have committed the charged offences. It does not follow logically, in any event, apart from the impermissibility of the reasoning.
The truncheon was the subject of DNA analysis, but apart from evidence that David Cashion had handled it, there was no indication of the presence of C’s DNA on the article (see the evidence of Dr Pinyon at T 278-281).
The Move to Pennington
In May 2006, the group moved to David Cashion’s house at Pennington. There was quite a large group there, including David and Darren Cashion, M, her daughter E, C, Darren Cashion’s mother Cindy Morrison and her partner Andrew White, and, on occasions, M’s mother. There was only one bedroom. C said she slept in the lounge room on a lounge, M’s mother slept on another lounge, and David Cashion slept on a mattress on the floor.

C said she continued to have sexual intercourse with both David and Darren Cashion at that address, although only ‘once or twice’ with Darren.
It is an agreed fact that the group stayed at Pennington from May 2006 to September 2006. It is also agreed that Darren Cashion was in custody in the Adelaide Remand Centre from approximately 7 June 2006 to 15 August 2006, so it is not surprising that his opportunity to have sexual intercourse with C was limited.
I again indicate that I do not reason from the fact that Darren Cashion was in custody, that he is a person of bad character and is therefore more likely to have committed the charged offences. I do not know the reason for the custody, whether he was on remand or sentenced. It is again both illogical and impermissible to reason that way.
The Move to Findon
It is agreed that the group moved to a house in Findon in September 2006.
C said that David Cashion continued to visit them for four or five days a week. She continued to have sexual intercourse with him on a regular basis. She was unable to remember whether she had sexual intercourse with Darren Cashion at that address. M was pregnant at that time.
While she was living at Findon, C became pregnant. She was 15 years old. She said she was unaware at the time whether David Cashion or Darren Cashion was the father. She told them that a co-worker at Hungry Jack’s was the father. J, a son, was born on 1 November 2007.
The evidence of Dr Pinyon was that Darren Cashion was excluded as the father of J. Given J’s DNA profile, and C’s profile as well, Dr Pinyon opined that it is 22,900 times more likely that David Cashion is the father of J than an unknown, unrelated male (T 274). She described this as ‘strong evidence’ for the proposition that David Cashion is the father of J (ibid). I accept the evidence of Dr Pinyon in the terms in which she gave it.
Direction re Evidence Concerning David Cashion
This evidence was the subject of objection by Mr Stewart. I ruled against that objection on 6 September 2012.
I specifically record that the purposes to which the evidence was admitted, and the uses to which it has been put in considering the case against Darren Cashion, are as follows:
·     C’s evidence was that David Cashion and Darren Cashion were involved in a joint criminal enterprise (although they have not been charged with each other’s conduct), in which each man knew of, and facilitated, the other’s conduct in relation to C.
·     As a result, C’s reactions to the conduct of each man could not be properly understood without evidence of what was happening in relation to the other.
·     C’s evidence was that both men beat her and threatened her, and both provided her with drugs and alcohol. This evidence is also relevant to C’s reactions, and her decisions not to complain at various stages, in relation to both men.
·     C’s evidence of the nature of various relationships, between C and the two men, between C and her sister M, between each of them and the other people who lived in the same house from time to time, also provides background and context to her reactions and actions. For example, her dependence on the group for accommodation and sustenance, her use of drugs and alcohol supplied by the pooling of money provided by the group, her wish to remain with her sister and to be a member of the group, are all relevant to her attitude to the parties and to outside agencies.
·     Evidence of Darren Cashion’s knowledge of David Cashion’s relations with C ‘emboldened him’ (to use Ms Wildman’s words) to continue offending against her while his father was in the house. It would present a false picture if the evidence suggested that David Cashion knew nothing of Darren Cashion’s offending and yet he continued while his father was in the house.
·     Further, the evidence tends to explain why C would not complain to David Cashion about his son’s behaviour – he was the only ‘authority figure’ in the house at the time.
Of course, Mr Stewart is correct to point out that the evidence in relation to David Cashion is not relevant to counts 1, 2 and 3, since David Cashion knew nothing of Darren Cashion’s offending prior to the events in count 4. The evidence in relation to David Cashion is irrelevant to counts 1, 2 and 3, and I ignore it when considering those counts.
Mr Stewart also argued that the David Cashion evidence is irrelevant to count 4, since David Cashion’s interruption is inconsistent with the ‘joint enterprise’ argument. It does, however, explain how it came about that the two men embarked on this course of behaviour from then on, and is clearly relevant in that context.
Mr Stewart also argued that the evidence is irrelevant to count 5 because David Cashion actually ‘blew the whistle’ on his son to M. It is true that this behaviour was not part of a joint enterprise, but is still consistent, in my view, with the complex dynamics of possessiveness and jealousy which C said were starting to pervade the household.
As to count 6, Mr Stewart argued that since M and David Cashion were not present, the evidence is irrelevant to that count as well. In my view, that is a simplistic analysis, which overlooks the long and complex background which preceded this event.
As to count 7, Mr Stewart’s argument was similar to that in relation to count 5, and I reject it for the same reasons.
Discreditable Conduct Direction
It is clear that much of this behaviour on the part of both men, apart from the charged conduct, and the knowledge each man had of the other’s conduct, is ‘discreditable conduct’ within the meaning of s 34P of the Evidence Act.
The Act makes clear that the evidence may not be used for an impermissible purpose (s 34P(1)(a)), namely, that Darren Cashion is more likely to have committed the offence because he has engaged in that conduct. This is the ‘propensity reasoning’ to which I have already referred.
Having made it clear that I have not used the evidence for that impermissible purpose, and having identified the purposes for which I have used the evidence, I consider that I have complied with s 34R(1) of the Evidence Act. As to s 34R(2), I have found the facts in proof of which the evidence in relation to David Cashion was admitted, proved beyond reasonable doubt. I consider that the requirements of that section have also been satisfied.
Initial Complaint
After J was born, C lived at Malvern House at Blair Athol with him. This was a house where young single mothers stayed while learning parenting skills. She returned to live with the group at a house on Grand Junction Road at Rosewater for two days a week.
While she was at Malvern House, C met JT, whose sister (RT) was also a resident there. JT and C formed a relationship, which C described as having been ‘on and off’ ever since (T 139). JT later became the father of C’s second child.
C said that, from time to time, she had telephone contact with David and Darren Cashion, and with M.
C described one such telephone conversation, in which she was initially talking to her sister, and then to David and Darren in turn. She said they were yelling at her, making threats and asking for money.
In any event, JT also spoke to David Cashion and, according to his evidence, David Cashion told him: ‘Keep away from my son or I’ll gut ya’ (T 326).
JT said it was obvious from the context of the conversation that David Cashion was referring to J as his son. All three of them, M, David and Darren Cashion, made it clear that they were unhappy that he was in a relationship with C.
After this conversation, JT asked C about David Cashion’s statement, and C then told him that David was J’s father. She said that both David and Darren Cashion had sexually abused her since she was a child living with them.
According to JT, this conversation occurred in February 2008, at the home of his sister, RT, in Cowandilla.
RT gave evidence of the same occasion. She said it occurred in the summer of 2008. C was staying with her at Cowandilla at the time. The three of them, RT, JT and C, were in JT’s bedroom. They were asking C about J’s father, and C told them she had been sexually abused by her sister’s boyfriend, and his father, who was J’s father. She told them she was ‘terrified’ of them. She told them it was ‘full sex, often’ (T 307).
In cross-examination, RT said C had told them that the abuse started when C was ‘around 14 years old’ (T 308).
In assessing this evidence, I have regard to s 34M of the Evidence Act and, in particular, that evidence of initial complaint is not admitted as evidence of the truth of C’s evidence, but it is admissible for the following purposes:
· to demonstrate the consistency of C’s conduct, both as to the making of the complaint when it might be expected to be made, and as to the consistency between the terms of the complaint and the conduct alleged (see R v J, JA[7]);
· to demonstrate how these allegations came to light.
[7] (2009) 105 SASR 563
In my view, the evidence is relevant to all seven counts against Darren Cashion (see R v S, DD[8]).
[8] [2010] SASCFC 80
A substantial part of the cross-examination of C was intended to demonstrate the opposite of consistency in relation to C’s conduct. In particular, Mr Stewart sought to demonstrate the many previous opportunities C had to report these allegations to people she came into contact with.
Mr Stewart listed people such as Family SA officers, school counsellors, police, a magistrate in the Youth Court, a psychologist, and various relatives, friends and acquaintances, including, of course, her own sister.
In considering this material, I must have regard to the admonition in s 34M(4)(c) that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person.
Of course, the section also provides that it remains a matter for me to determine the significance (if any) of the evidence in the circumstances of this case.
This evidence should be considered in the context that:
·     C had been abandoned by her mother into the care of her sister at the age of 13;
·     she had an unpleasant experience in foster care as a child of five;
·     she had been part of the alcohol-drinking, cannabis-smoking culture of this family, with its numerous fights and arguments, from a very tender age.
C explained that she did not say anything about the abuse because ‘I knew I would be put in a foster home’ (T 258). She said she did not find the psychologist helpful (ibid). She did not like talking to strangers (T 259). She went to live with a boy she met to get out of the house, but that did not work out because ‘all he wanted was sex’ (ibid). She said she did not want to go and live with her mother ‘because I’m stubborn, I don’t like to go back on what I say’ (T 261). She said she could see that M loved Darren Cashion and wanted to stay in a relationship with him (T 262). Clearly, she thought M would side with Darren if she complained.
C said that none of the other people who came and stayed at the house were ‘really good people’ (T 263), and she had little faith that they would help her. After all, Andrew White, who was Darren Cashion’s mother’s partner, said he saw C having sexual intercourse with David Cashion, a man in his late 40s, on the lounge room floor, on a mattress, at the Pennington house, when C would have just turned 15, and he did nothing.
Mr White also saw David Cashion physically assaulting C, demanding money from her, and calling her a ‘slut’ and a ‘whore’ (T 346-348).
Mr White did not say that Darren Cashion behaved this way towards C, except that he would take his father’s side, telling C that ‘you need to just listen’ to what his father was telling her (T 348). It must also be observed that it is agreed evidence that for a large part of the time they were at Pennington, Darren Cashion was in custody in the Adelaide Remand Centre. They were at Pennington from May to September 2006, and he was in the Adelaide Remand Centre from 7 June 2006 to 15 August 2006. This is the same period of custody I referred to earlier.
In my opinion, C’s evidence, combined with this other evidence, shows that C had decided that, for better or worse, this was her life and she had no other options.
In those circumstances, I find nothing to show that C has behaved in a manner which is inconsistent with a person who has been sexually abused in the manner alleged. She chose to make her complaint in circumstances where, perhaps for the first time in a long time, she was talking to a person (JT), with whom she felt relatively safe. On the contrary, the evidence of initial complaint shows consistency of conduct on her part, and the credibility of her evidence is bolstered by that evidence (R v H, T[9], R v Franco[10], R v J, JA[11], Suresh v R[12]).
Addresses of Counsel
[9] (2010) 108 SASR 86
[10] (2010) 107 SASR 272
[11] supra
[12] (1998) 72 ALJR 769
Accused Address
It is fair to say that C was subjected to a very searching and, at times, confronting cross-examination by Mr Stewart. The evidence upon which he relied in his address included:
·     the evidence of RT that C told her the abuse started when C was ‘about 14’. In my view, there is nothing inconsistent in RT saying ‘about 14’ and C saying ‘13’;
·     JT’s evidence (at T 327) that C had previously told him that J’s father was a workmate from Hungry Jack’s. Again, I do not see that reflecting badly on C, if she had not made the decision to disclose the abuse by then;
·     JT’s evidence (at T 328) that C told him that Darren Cashion came to abuse her ‘while her sister was giving birth to her kid or at some appointments due to pregnancy’. I do not see that as a ‘crushing blow’ to C’s credibility. It might just as much reflect frailty in JT’s memory as it does frailty of hers;
·     C’s evidence that she told the police that nothing had happened after M found David Cashion naked and asleep in C’s bed one morning. However, it was C’s evidence that she did that because (T 106-107):
… the police were coming to pick us up and they told us not to say anything and they were yelling and threatening us and just yelling and my sister said not to say anything and then when they took us to stay at …, she told us where we were. She told them where we were and she told them on the phone and they were yelling and abused us over the phone with threats and abused us and they told me not to say anything.
So this is in the context that C and M and her baby were taken to a ‘safe house’, where David and Darren Cashion were not supposed to know where they were, and M then telephoned them and told them, throwing away any safety they might have had. I do not see C’s decision to say nothing to the police or Families SA at that point as reflecting badly upon her in those circumstances.
Mr Stewart submitted that it would be almost impossible to conceive how any foster situation could be worse than family violence and family sexual violence that she had already experience at that stage. I will not begin to try to conceive what either situation would be like, particularly when seen through the eyes of a child. All I can say is that I draw no adverse inferences against C because of the choices she made to remain silent at particular stages. That is particularly so in the context that C was not asked about what happened to her while she was in foster care as a five-year-old.
Mr Stewart identified the many and varied opportunities that C had to complain. The evidence is clear that those opportunities were there. The issue is not whether opportunity was there, the issue is why C did not decide to take those opportunities. C has given valid and compelling reasons throughout her evidence for that, reasons which I accept.
This is one important area in which the evidence against David Cashion is relevant to the case against Darren Cashion. There is no doubt on the evidence that David Cashion was sexually, physically and verbally abusing C throughout most of the relevant period, and yet she did not complain about that, either, for the same reasons. Mr Stewart’s answer to that was that C was having a consensual sexual relationship with David Cashion, as evidenced by Andrew White’s observations of them having sexual intercourse. Mr Stewart also referred in his address to C’s evidence in cross-examination that David Cashion had performed cunnilingus on her after she had ‘(got) on top of his face’ (T 182). C said she had not volunteered this information previously because ‘I didn’t remember’ (ibid). C was not asked whether this act was performed at David Cashion’s direction, or what the circumstances were. It does not demonstrate to me that she favoured David Cashion.
C’s evidence was that she engaged in sexual intercourse with both men over a long period. It is not her evidence that sexual intercourse was more or less consensual with one man rather than the other. There is no evidence that she preferred David Cashion to Darren Cashion. Her evidence was to the contrary (T 100, T 177). I reject the suggestion that C was infatuated with David Cashion, if that was what Mr Stewart was seeking to suggest.
As to the actual counts on the information, Mr Stewart criticised C’s lack of detailed memory of count 1. He referred to her inability to recall her state of dress, the duration of the intercourse, how much it hurt, and other such matters. I reject those submissions. It is to be expected that a young girl of 13 in that situation, who, on her evidence, was crying and in pain at being anally raped, would be shocked and distressed and not able to remember details.
Mr Stewart pointed out that C did not report the anal rape when she initially spoke to the police. She said (T 248):
Q.     Did you not remember that the first time you were raped, it was by Darren putting his penis inside your anus.
A.     They were repressed memories and they just kept coming back in nightmares. When I kept talking about it more, I’d get repressed memories coming back.
Q.     Who told you they were repressed memories.
A    I’d tell myself that because every time I got asked about it, I remembered more.
Q.     How do you know that is correct.
A.     Because it happened.
Q.     How could you (not) remember someone putting their penis inside your anus as the first sexual thing they did to you.
A.     Because I repressed it. I chose to forget about it.
As her history shows, C is not a well-educated person. I did not understand her to be referring to the now-discredited ‘repressed memory syndrome’ which became prominent in child abuse cases some time ago. C meant simply that she had suppressed her memory of those events, and that it came back in stages.
The same arguments apply in relation to count 2.
There is no force to Mr Stewart’s argument that it is surprising that C did not become pregnant to Darren Cashion if they were having sexual intercourse as often as she asserts. Such matters are not as predictable as he suggests.
I do not find C’s evidence that she stopped protesting surprising. Her evidence was clear that she was subjugated by threats, use of drugs and alcohol, and her personal circumstances. Her attitude was that submission was survival, and resistance was useless. That is not consent (see Question of Law (No 1 of 1993))[13].
[13] (1993) 59 SASR 214 (CAA) per King CJ at 220
As to count 3, I accept that C’s evidence that Darren Cashion wore red boxer shorts with an ‘M & M’ logo is of little moment. She lived in the house, and there was ample opportunity to see such a piece of clothing. But I think Mr Stewart’s submission that her credibility is damaged because she could not remember other details about his clothing is unreasonable. If she had, he would have made the same submission as the one he made about the boxer shorts.
As to count 4, Mr Stewart submitted that it is extraordinary that C did not leave if she heard Darren Cashion giving his father permission to have sexual intercourse with her in exchange for his silence. I have already discussed why, on C’s evidence, she did not leave.

I reject Mr Stewart’s submissions about the implausibility of C’s evidence about her sexual relations with David Cashion. The evidence is clear that sexual intercourse was occurring, and I see nothing implausible about it. It is disgraceful, but not implausible, unfortunately. Nor does Mr Stewart’s submission that C’s evidence that David Cashion was an inconsiderate and unimaginative lover seem implausible, either.
There was an inconsistency in C’s evidence about count 4: whether she went into the back yard to help Darren Cashion collect rotten fruit or ‘dog poo’ (T 167). I do not think that anything turns on this discrepancy.
Mr Stewart reserved his most trenchant criticism for C’s evidence about count 5. He submitted that C’s evidence about this count that:
·     she was cooking a meal;
·     she had a child of 18 months to two years on her hip;
·     she was 14 to 15 years old at the time;
·     she got on her knees, still holding the baby, at ‘eye level with his penis’ as far as the child was concerned;
·     she then performed fellatio while David Cashion and M were outside in the garage drinking (T 109),
was absurd.
I have re-read T 106 – 110, as Mr Stewart invited me to do. It is clear that C did not regard this evidence as being as absurd as Mr Stewart did. It was clear that C regarded this sort of behaviour as commonplace. Her evidence that M, when she realised what was happening, ran inside and began violently assaulting her, rather than Darren Cashion, presumably after the child had been released, merely confirmed C’s earlier evidence about whose side M would take if she became aware that Darren Cashion and C were having sexual intercourse.
The evidence is not clear as to which way the child was facing when the act was being performed. I agree that on C’s evidence this was a sordid and disgraceful episode. But, again, I do not agree that I should reject C’s evidence for that reason. Nor do I accept that it is incredible that C would not complain to Andy and Cindy (Mr White and Darren Cashion’s mother) when she stayed with them for the next couple of nights. I do not find it surprising that C would be reluctant to share such information with such people.
As to count 6, again I do not find the suggested unlikelihood that people would have sexual intercourse in the manner described a compelling factor in the circumstances of this case. The same applies to count 7.
Mr Stewart submitted that the lack of detail in C’s evidence means that Darren Cashion is at a forensic disadvantage in terms of being able to answer C’s allegations (see Evidence Act, s 34CB). I also reject that submission. For cases of this kind, I agree with the submission of Ms Wildman, for the Director of Public Prosecutions, that C’s evidence is sufficiently detailed. The date on which each move took place has been clearly established, and C related her evidence clearly to those addresses. The accused has elected not to give evidence. I have no evidence before me as to any forensic disadvantage he may have encountered. The delay is not such that prejudice may be presumed.
Having said that, having regard to the extent to which the prosecution case relies on C’s evidence, it is appropriate that I should scrutinise C’s evidence with particular care in any event, and I indicate that I have done so.
Prosecution Address
It is not necessary that I deal with Ms Wildman’s address in detail, having regard to the conclusions I have come to. It is sufficient to say that Ms Wildman emphasised all the reasons why C was a credible and reliable witness.
I agree with Ms Wildman’s submissions about that. C’s credibility and reliability withstood a sustained and searching challenge in cross-examination. She was frank, clear when she did remember, and acknowledged when she did not remember, even where it would have been helpful to her to have remembered. As I said, I found nothing inherently implausible or fanciful in what she said. Making allowance for her limited education, and having regard to the circumstances of her upbringing, I am satisfied beyond reasonable doubt that C’s evidence was honest, credible and reliable.
Motive to Lie
One area upon which I should comment is whether C had a motive to lie in giving her evidence. It is not necessary that such a motive be established by the defence – that would reverse the onus of proof. A witness in C’s position might lie for a reason which is not apparent. The onus is on the prosecution to prove beyond reasonable doubt that what C is saying is true (see R v E;[14] Palmer v R;[15] Graham v R;[16] R v SAP[17]).
[14] (1996) 39 NSWLR 450
[15] (1998) 193 CLR 1
[16] (1998) 195 CLR 606
[17] [2005] QCA 284
Certain factors have been put forward by the defence, as follows:
·     that C was jealous of Darren Cashion’s and M’s relationship – that she had some sort of crush on Darren Cashion. She denied this in evidence (T 174) and it seems highly unlikely in that she could easily have harmed their relationship by telling M, if that was her motive. In any event, by the time of the trial, Darren and M had split up;
·     that she is angry with Darren Cashion for allowing David Cashion to have sexual intercourse with her. This is inconsistent with the first suggested motive and was denied by C (T 252). If she has or had a crush on Darren Cashion, it seems unlikely that she would seek to implicate him directly. It does not follow that, even if she preferred Darren Cashion to David Cashion, she would seek to falsely implicate both men;
·     that she wanted to punish M for not looking after her properly and allowing David Cashion to have access to her. This was also denied (T 253), and is inconsistent with C’s evidence that she was trying to keep it a secret from M.
I am persuaded that none of the suggested motives attributed to C affects C’s credibility or reliability. I repeat, there is always a possibility that a person in C’s position might lie for a reason which is not apparent. I am satisfied beyond reasonable doubt that C was not lying about any of the events she described in evidence.
Conclusion
Taking all these matters into account, I am satisfied beyond reasonable doubt that C’s evidence is true. That conclusion is based on the view I take about the credibility and reliability of C’s evidence, and the fact that it is, in relation to counts 4, 5, 6 and 7, supported by the evidence in relation to David Cashion, and supported by the evidence of initial complaint in relation to all counts. I reject the submission that there is a reasonable doubt about that. The evidence is that the conduct of these two men was extraordinary and disgraceful, but the totality of the evidence satisfies me beyond reasonable doubt that it is true.
The elements of the crime of rape in counts 1 and 2 are:
(1)there was a deliberate act of sexual intercourse;
(2)C did not consent to that act;
(3)the accused knew that C was not consenting at the time he performed the act, or was recklessly indifferent as to whether she was consenting or not.
I am satisfied beyond reasonable doubt that all three of these elements have been proved. I am satisfied beyond reasonable doubt that the accused knew that C was not consenting to these acts.
As to count 1, my verdict is – Guilty.
As to count 2, my verdict is – Guilty.
The elements of the crime of unlawful sexual intercourse in counts 3, 4, 5, 6 and 7 are:
(1)there was a deliberate act of sexual intercourse (for the purposes of this case, sexual intercourse includes vaginal sexual intercourse and fellatio);
(2)at the time the act was performed, C was aged 13 years (counts 3 and 4), 14 years (counts 5 and 6) and 14 or 15 years (count 7).
I am satisfied beyond reasonable doubt that, in relation to all five counts, both these elements have been proved. I am satisfied beyond reasonable doubt that the accused knew that C was not consenting to these acts.
As to count 3, my verdict is – Guilty.
As to count 4, my verdict is – Guilty.
As to count 5, my verdict is – Guilty.
As to count 6, my verdict is – Guilty.
As to count 7, my verdict is – Guilty.