R v CHRYSSOMALLOS - [2020] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHRYSSOMALLOS
[2020] SADC 74
Reasons for the Verdict of Her Honour Judge McIntyre
18 June 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused was charged with maintaining an unlawful sexual relationship with a child between 1 June 2013 and 6 June 2017.
Verdict: not guilty.
Criminal Law Consolidation Act 1935 (SA) CLCA s50(2), referred to.
Van de Wiel v R Unreported Corut of Criminal Appeal SA no S5202, 3 August 1995; R v Machin (No 2) (1997) 69 SASR 403 ; R v Corrigan (1998) 74 SASR 454, considered.

R v CHRYSSOMALLOS
[2020] SADC 74

The accused was charged on Information dated 8 July 2019 with maintaining an unlawful sexual relationship with a child between 1 June 2013 and 6 June 2017. He elected to be tried by a Judge without a jury. The matter proceeded, as a retrial, before me on 25 and 26 May 2020. For the reasons I now publish I find the accused not guilty of the charged offence.
Background
Much of the evidence in this trial was not in dispute. The complainant in this matter is the daughter of the accused’s former de facto partner. It is an agreed fact that the complainant was born on a date in April 2008 and the accused was born on a date in October 1973. In mid-2013, when the complainant was five, her mother KM entered a relationship with the accused. The accused became, for all practical purposes, the complainant’s step-father. The complainant, the accused and her mother lived in a three-bedroom home at SP from that date until approximately the end of May 2017 when the relationship between KM and the accused ended. The charge is particularised as having occurred whilst the accused, KM and the complainant were living as a family at SP.
KM left the home with her daughter and went to stay with her mother, step-father and younger sister AM. The allegations that form the basis of the charged offence came to light shortly thereafter. The accused was arrested and charged on 7 June 2017.
The Charge
An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period.[1]
[1] S50(2) Criminal Law Consolidation Act 1935 (SA) CLCA
There is no question that the accused was, at all relevant times, an adult and that the complainant was at all material times a child. There is likewise no dispute that the accused maintained a relationship with the complainant in the sense that, between the relevant dates, he and the complainant’s mother were living together and he had assumed a parental role towards the complainant. The issue for determination is whether he engaged in two or more unlawful sexual acts with or towards the complainant. These acts are particularised in the Information as follows:
·Causing the complainant to view pornographic material.
·Touching the complainant’s vagina
·Causing the complainant to perform an act of fellatio upon him on more than one occasion; and
·Inserting his penis into the complainant’s anus on more than one occasion.
The prosecution says that these are all acts which would constitute a sexual offence. The first is the offence of gross indecency; the second is the offence of indecent assault and the third and fourth are the offence of unlawful sexual intercourse. I do not have to be satisfied of the particulars of any unlawful sexual act as if it were charged as a separate offence but I must be satisfied as to the general nature or character of those acts. The acts said to constitute unlawful sexual intercourse are particularised as having occurred on more than one occasion. I need not be satisfied that this is the case; I need only be satisfied that two unlawful sexual acts occurred in the context of the ongoing relationship to find the charge proven.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence and the proper approach to drawing inferences of fact.
·The accused elected not to give evidence in this trial. I remind myself that he was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case. His evidence from the previous trial was however admitted in evidence. The evidence from the previous trial was given on oath and subject to cross-examination but I did not see the accused give it. Accordingly, I cannot assess his demeanour in the witness box. I am entitled to give such weight to the transcript of the evidence from the last trial as I see fit. This evidence can be used both for and against the accused.[2]
[2] Van de Wiel v. R (Unreported SA Court of Criminal Appeal, no. S5202, 3 August 1995); R v Machin (No 2) (1997) 69 SASR 403 & R v Corrigan (1998) 74 SASR 454
Prosecution Case
The prosecution case consisted of evidence from the investigating officer Detective Sergeant Argent; evidence from the complainant’s mother KM and the complainant’s aunt AM; two recorded interviews that Detective Sergeant Argent conducted with the complainant; the recorded evidence of the complainant and the transcript of the accused’s evidence at the previous trial of this matter. In addition, there were some agreed facts.
Detective Sergeant Argent gave uncontroversial evidence that was primarily directed to providing information about the investigation and relevant dates together with the tender and explanation of various exhibits.
The complainant’s mother, KM, gave largely uncontentious evidence related to background issues such as the relationship between the accused and her daughter, the family’s living circumstances including that she would from time to time leave her daughter alone with the accused whilst she went to the shops. She gave evidence about the conclusion of her relationship with the accused and the steps that she took on becoming aware of disclosures made by her daughter to her sister AM.
KM was cross-examined as to issues including the accused disciplining her daughter. She did not accept the propositions put to her, in line with the accused’s evidence, that his involvement was limited. Specifically, she did not accept that when the accused disciplined her daughter he would smack her with his hand but not a belt; KM maintained he used a belt. She also did not accept that there were only four incidents that led to the accused smacking her daughter and that there were occasions when he would intervene as she disciplined her daughter. KM agreed that as part of her sexual relationship with the accused, the two of them would occasionally video record sexual activity between them but she denied that one of those episodes occurred in the lounge room. She further denied that the recordings included mutual masturbation, oral sex between each partner, anal sex and the use of cream and baby oil to massage each other. KM also rejected the accused’s evidence that he told her that he had witnessed her daughter viewing one of these videos on his mobile phone and that she had advised him how to speak to her daughter about that. I found KM to be a cogent witness who did not appear to embellish her evidence and who made appropriate concessions.
AM’s evidence concerned the complainant’s initial complaint and was called under s.34M of the Evidence Act 1929 (SA). Evidence of an initial complaint is admitted both to inform the trier of fact as to how an allegation first came to light and as evidence of the consistency of conduct of the alleged complainant. However, the complaint does not constitute evidence of the truth of the facts alleged by the complainant.
AM was a nervous witness who appeared to do her best to give evidence but she plainly struggled with her memory of these events. AM gave evidence that at around the end of May or the beginning of June 2017 she was living at her mother’s house with her step-father, brother and newborn daughter. Her sister KM and the complainant came to stay at the house. One evening her niece came to the bathroom and was talking to AM whilst she was bathing her baby. During this conversation, the complainant said that she was naughty sometimes and would get a smack for being naughty. She paused and AM invited her to tell her what was wrong. AM remembered her niece looking around as if to see if anyone else was there and then asking if they could shut the bathroom door so that she could talk privately to her aunt. At this point in her evidence, AM had what she described as a “mind blank”. The best she could recall was that her niece said something about the accused doing “stuff”. AM could not remember the complainant’s exact words other than to say that she said something about her private parts. In cross-examination, AM agreed that when she spoke to the police on 10 June 2017 she only mentioned the complainant referring to her private parts on one occasion. AM told the police that the complainant said that the accused “doesn’t touch her private parts”. AM then gave evidence that, after saying this, her niece shut the door and said that the accused “shows her sexual stuff and makes her do it”.
The complainant did not give any detail about the conversation with her aunt beyond saying that she had a conversation in similar circumstances to those described by her aunt. The terms of her complaint are not clear from the complainant’s evidence.
I am satisfied that the complaint evidence is admissible under s.34M notwithstanding its obvious shortcomings. There was no suggestion otherwise. I accept AM’s evidence that the complainant made a complaint about the accused shortly after she and her mother came to live with AM. Specifically, that she said that the accused “shows her sexual stuff and makes her do it”. I do not consider it surprising that the complainant did not complain about the accused until after she and her mother left the home; indeed, a complaint to her aunt when she was no longer living with the accused is entirely understandable.
The complaint is however equivocal. The nature and form of the “sexual stuff” is far from clear. The complaint may refer to the accused making the complainant view “sexual stuff” or it may refer to the accused making the complainant do “sexual stuff”. Given the lack of detail and the ambiguity of the complaint evidence, I have derived no particular assistance from it other than on the topic of how the allegations came to light.
The complainant’s evidence
The complainant’s evidence was admitted in three portions. There were two audio-visual recordings admitted under s.13BA (1) of the Evidence Act 1929 and an audio-visual recording of the complainant’s evidence at the previous trial in July 2019 admitted under s.13D of the Evidence Act 1929.
The first recording was of an interview of the complainant on 7 June 2017 by Detective Sergeant Argent.[3] The second recording was a second interview conducted by Detective Sergeant Argent with the complainant on 1 February 2019.[4] The third recording, was the complainant’s unsworn evidence from the previous trial.[5] By consent I relieved the complainant of any obligation to give evidence at the re-trial. The three recordings were played in the court.
[3] Exhibit P1
[4] Exhibit P3
[5] Exhibit P6
On 7 June 2017 Detective Sergeant Argent went to the complainant’s primary school WPS to interview the complainant who was then aged 9. The prosecution says that in this recording the complainant complains of gross indecency, indecent assault and fellatio when she was 8 years of age. Detective Sergeant Argent conducted a second interview on 1 February 2019 at the complainant’s new primary school HPS. The complainant was 10 years of age. The prosecution says that in this recording the complainant alleges a further act namely anal penetration on more than one occasion and also provides further detail as to the other sexual acts alleged.
The complainant’s evidence in all three recordings is, to say the least, vague and lacking in detail even making allowance for her young age and natural embarrassment. At one point the complainant said that she had been diagnosed as autistic. I do not know whether this is in fact the case or whether this has any impact upon her presentation. The issues with narrative and expression may be a feature of that condition or there may be some other reason for it. This was not explained.
In the first two recordings, Detective Sergeant Argent experienced considerable difficulty in obtaining a coherent narrative let alone any details from the complainant. The complainant often struggled to find the correct word for items or actions. Lacking the vocabulary, she used a combination of words and gestures to express herself. For example, she was unable to recall the word for curtains and demonstrated what she meant using her hands to show the action of closing curtains. Likewise, when asked to describe the accused’s telephone she did not use the phrase telephone cover and again demonstrated this object with her hands. The complainant’s evidence therefore had to be viewed as a combination of both what she said and what she did.
In the first recorded interview with Detective Sergeant Argent the complainant initially volunteered that she was talking to the police because of arguments between her parents. The police officer then said that she had heard that the complainant had told her aunty about something that happened between her and the accused. At this point the complainant said that “he wanted me to have sex, like that and um and I was not sure and yeah but I was a little bit scared”. Detective Sergeant Argent then attempted to clarify what the complainant meant by “sex”. A reading of the transcript of the interview is very unhelpful – it is necessary to view the recording because the complainant uses a combination of physical demonstration and words to respond.
As contended by the prosecution, viewing the recording as a whole, it seems that the complainant indicates that the accused asked her to manipulate his penis with her hands and take it in her mouth. It is not clear whether she says that this happened once or more than once. The complainant’s responses to Detective Sergeant Argent are contradictory on that topic. At first, she said it happened once, but later in the interview, said it happened “a few times”. She then, apparently, described the last time it happened and was asked about the first time. The complainant said that the first time, she “didn’t realise what it was and I had to see videos of it”. She said the accused showed her “sex” on his phone. She did not elaborate on what she saw on the phone. One might infer that it was fellatio but this does not sit comfortably with what the complainant said when DS Argent attempted to clarify this topic. She said that the accused told her about sex as follows: “Um he told me about like where you to the, well where you do his rude part like that um and where you rub and the girl part that you can rub it the bit that and, and the kissy bit too”. Even viewing the recording, it was hard to ascertain precisely what was being described.
The complainant said that the accused also put cream on her hand and either put her hand or his hand or both their hands on her vagina. This was conveyed by a combination of words and demonstration. The demonstration was congruent with the accused using a pump pack of cream similar to the one located in the loungeroom of his home by police. Again, it is not clear whether the complainant said this happened once or more than once. The complainant did say she was 8 when the cream was applied, by reference to the school she was attending, but she could provide no further detail such as whether it occurred during the day, school holidays, weekend, summer or winter. It is also not clear whether it was part of the other sexual activity alleged or whether it was a separate incident.
Detective Sergeant Argent attempted to clarify the occasions upon which sexual activity occurred without success. She sought more detail concerning those events but the complainant was unable to provide any detail such as time of day, proximity to any notable event, clothing or circumstances before and after the events, or even the duration of the events. Also missing is any description of her feelings or sensations concerning the indecent assault. Matters such as the degree of force, the quantity of cream, how the cream felt on her body and how she felt about what was happening are not evident. There is some more detail associated with the fellatio in that the complainant said she didn’t want to do it and was really scared. The accused is an adult and she was a young child. As I will discuss, he did physically discipline her with, I find, some force. I have no doubt that the complainant would have been afraid of the accused. This would plainly be an explanation for why she did not complain at the time and why she appears to engage in these activities at the accused’s behest. There is however no description of the physical sensations associated with the acts that she describes – touching the accused’s penis, having his penis in her mouth, how those actions felt or what she did when this occurred.
The second interview occurred following a fresh disclosure by the complainant during a proofing session. The recording of this interview is problematic because the lighting is not optimal and it is difficult to see many of the complainant’s actions. Given the deficits in her vocabulary this is not helpful. As with the previous interview there is a striking lack of detail about the circumstances surrounding the alleged sexual activities and considerable difficulty for the interviewer in establishing whether various acts occurred more than once.
The complainant told Detective Sergeant Argent that the accused “put the rude part” in her privates. The complainant suggests that this occurred out of the blue when the accused got “it out of his shorts” and started to “do it” to her. She was not sure what he was doing at first but then “he started to do the s-word”. She said that she was “just not interested, really interested”. This is an unusual way to describe her state of mind in the circumstances she described.

When Detective Sergeant Argent asked her to describe what the “rude part” was the complainant said, “the front part”. When asked to tell the police officer about the “front part”, she said he put it in her “bum”. Detective Sergeant Argent attempted to clarify this by asking “whereabouts in your bum did he put it”? The complainant replied, “in the hole”. Thereafter the interview appears to have proceeded on the basis that this was the anus rather than the vagina. Having viewed this interview on several occasions I am not certain that this is what the complainant was intending to convey. For example, the complainant also said that, before he put his rude part in her bum, the accused put cream on her privates. Her description of this makes it plain that the cream was put on her vagina rather than the anus.
In addition, the discussion of the question of penetration was somewhat cursory; it is not clear to me that the complainant in fact described penetration. Her description of the physical sensations is an unusual description for either anal or vaginal penetration of a young child by an adult. When asked to describe how it felt, the complainant said initially that it “tickled”. She then said that it hurt because it was touching her bone. When asked to clarify what bone, she said her bottom bone. In cross-examination at the trial the complainant said she was referring to her tail bone. She also said, in cross examination, that she was not able to explain what she meant by the expression “tickly”; saying it felt tickly but she “wasn’t laughing about it”.
As with the allegations of fellatio, whilst penetration of the anus is particularised as having occurred on more than one occasion, there is inconsistency between the complainant’s responses when Detective Sergeant Argent asked her whether this occurred on one occasion or more than one occasion. I could not be satisfied that the complainant was describing more than one incident.
The complainant also provided further information about the other sexual acts she described in the first interview. Specifically, she said that the accused showed her what she described as “sex sites” on his phone. She said there were different people doing the “S-word” but she did not know them. She appears to be describing one occasion where this occurred but she did not give it the same context as in the previous interview. In that interview, the implication was that the video was shown by way of instruction prior to the first act of fellatio; in this interview, it is described more as a standalone incident.
The complainant also said that the accused would make her suck on “the private parts” whilst he was sitting in the chair and she was kneeling in front of him. This detail of sucking the accused’s penis is new; the complainant only referred to having the accused’s penis in her mouth in the first interview. There is however no further detail about the circumstances surrounding or attending this activity. Again, it is unclear if the complainant was describing one incident or several incidents of fellatio.
In the trial, the complainant was cross-examined. Similar issues arose with her evidence as with the police interviews. There was an attempt to clarify what the complainant said occurred with the cream. The complainant’s answers did not clarify whether the accused put the cream on her hand and she put cream on her vagina or whether he put his hand on her vagina. The complainant agreed that she was confused about the number of occasions on which these events happened.
The complainant denied that there was ever a time when the accused gave her his phone to watch movies while he prepared breakfast and that there was ever a time when he caught her watching movies that he hadn’t given her permission to watch on his phone.
Defence case
The accused denied any sexual activity with the complainant. His evidence about his relationship with KM and their living arrangements was generally consistent with KM’s evidence although he said that he was very rarely home alone with the complainant. He did not however deny that this occurred from time to time if KM went out to the shops.
The accused gave evidence concerning a pump pack of cream that was located by the police in the loungeroom at his home. He said that he has a problem with dry skin and loss of sensitivity. He said that he regularly used the cream to treat those conditions. I could not exclude this as a reasonable possibility but, of course, it does not preclude him from having used the cream for a sexual purpose. I note however that the accused specifically denied having rubbed the cream on the complainant’s vagina or causing her to rub it on her vagina.
The accused said that he was only involved in a limited sense with disciplining the complainant. He described four incidents which he said were the only occasions upon which he was obliged to discipline the complainant. Notwithstanding what was put to KM in cross-examination about the accused only using his hand to smack the complainant, the accused said that he would smack her on the back of the legs with his belt. He said he only hit her once on each occasion and that this never left a mark. He agreed that it was normal for an adult to smack a child with a hand but he asserted that his hands were partially numb from work he used to do and he was concerned about causing more damage with his hand than the belt. I found the accused’s evidence on this topic unconvincing particularly given his description of the belt.
The accused gave evidence of an occasion when he and the complainant got up early. He was making breakfast. KM was still in bed. The complainant asked him if she could see the ‘moon walking bird’ which was a video she had viewed on his mobile phone many times. He gave her his phone. She was in the loungeroom. The accused said that he was in the kitchen making tea and Weet-Bix for five minutes or so. When he came back into the loungeroom he realised that the complainant was not looking at the bird video but at a movie that he and KM had made a couple of days earlier depicting consensual sexual acts between them in the loungeroom. These acts included using cream and baby oil to give KM a massage, oral sex by KM to him and by him to her and probably vaginal and anal sexual intercourse. In cross-examination, the accused said that the recording was in two parts – one was 24 minutes and the other was 22 minutes. He said they also recorded their activities on a Samsung tablet and a Sony digital camera; in other words, they used three different devices. When he saw the complainant looking at this recording he grabbed the phone off her and instantly deleted the video. He walked into the bedroom and woke KM up and told her what had happened. Her response was that he should tell the complainant “that’s what loving adults do”. He then went back and said that to the complainant but he then told KM that she was going to need to speak to the complainant about that topic.
Again, I found this evidence to be unconvincing. The circumstances in which the complainant is said to have viewed the video do not seem plausible. The evidence appeared to me to be an attempt by the accused to explain how the complainant, a young girl of 9 at the time of the allegations, was familiar with concepts such as fellatio, the use of cream as part of sexual activity and anal intercourse. His evidence was moreover denied by both the complainant and her mother KM. KM, whilst accepting that they made such recordings, denied that there was one made in the lounge room and denied any conversation with the accused about her daughter viewing it. I also note the agreed fact that, whilst there were pornographic videos on the accused’s phone none of these featured KM. Even if I did accept his evidence on this topic, the time frame the accused suggested only gave the complainant a limited opportunity to view the videos before he deleted them and does not offer much of an explanation of how the complainant became familiar with the activities that are the subject of the charge.
Accordingly, I have reservations about the accused’s evidence. Whilst it is not surprising that a person accused of such an offence might try to minimise the opportunity for offending and seek to provide innocent explanations for compromising aspects of evidence; his evidence was, as I read it, far from convincing. Although I have some doubts about the evidence of the accused it does not follow that the prosecution has proved its case.
Conclusion
The complainant was the key witness for the prosecution. The accused cannot be found guilty of the charge unless I accept her evidence beyond reasonable doubt. Her evidence was unsworn and I need to exercise caution in determining whether to accept her evidence and the weight to be given to it. I should not act upon it unless completely satisfied of its truth and accuracy. There is no independent support for her allegations. I can however convict upon the uncorroborated evidence of a complainant if I am satisfied of its truth beyond reasonable doubt.
Whilst I am suspicious that the complainant has been the subject of some sexual abuse, suspicion is not enough to convict the accused. There are some aspects of the complainant’s evidence that are such that I am not able to be satisfied to the required high standard of proof that there were two or more unlawful sexual acts committed by the accused as alleged.
First, there is the absence of any context or time frame apart from the complainant saying that the activity involving the cream started when she was 8. The dates in the particulars cover the whole of the accused’s relationship with KM. It is often the case that young children are unable to provide precise dates or times particularly if the offending is regular, ongoing and similar. However, it is unusual for a complainant not to be able to link at least one incident to a particular life event such as a birthday or Christmas. Of itself that would not cause me to doubt the complainant’s evidence but it is compounded by the complete absence of any detail as to whether the offending occurred during the week, weekends or school holidays, at a particular time of the day or night, or during a particular season.
Second, there is the lack of detail surrounding the allegations of sexual acts made by the complainant. The complainant does not describe any events leading up to the various sexual acts. Beyond saying that the acts always occurred in the loungeroom with the accused occupying his chair there is little context or detail about the acts themselves. It is not possible to discern from her account whether the sexual acts alleged occurred at the same time or on separate occasions; did certain acts accompany others or were they all standalone incidents?
Third there is a lack of consistency and cogency about the complainant’s limited descriptions of the various acts. The complainant appears to have some familiarity with the mechanics of the sexual behaviours that she described. For example, the complainant is able to describe, in words and by demonstration, the rudimentary mechanics of fellatio but that description varies. Likewise, the evidence about the showing of sexual activity on the accused’s phone varies particularly between the two police interviews.
Fourth, I have detailed my reservations about the activity particularised as anal penetration. I could not be satisfied that what was described involved penetration of the anus nor could I be satisfied that this occurred more than once.
Fifth, there is a lack of consistency and clarity in the complainant’s evidence about the number of occasions upon which the various sexual acts are alleged to have occurred.
Even making allowances for the distressing nature of these allegations, the complainant’s youth and the difficulties she experienced in expressing herself these shortcomings were not in my view minor matters. The accused ought not be convicted in circumstances where I remain uncertain about critical aspects of the complainant’s evidence. I therefore do not consider that the prosecution has proven the charge beyond reasonable doubt and I acquit the accused.