R v Clark - [2012] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLARK
Criminal Trial by Judge Alone
[2012] SADC 23
Reasons for the Verdicts of His Honour Judge Chivell
1 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge without a jury - accused charged with three counts of aggravated indecent assault - complainant aged 11 years
Verdicts: Not Guilty of all 3 counts
Criminal Law Consolidation Act 1935 (SA) ss 56, 56(2); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34M, referred to.
R v R, R and R, LJ [2008] SASC 35; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22; R v Calides (1983) 34 SASR 355; R v Schlaefer (1984) 37 SASR 207; R v H, T [2010] SASCFC 24; R v Franco [2010] SASC 132; R v J, JA [2009] SASC 401; R v Beard [2004] SASC 411; Police v Luha [2012] SASC 17, considered.

R v CLARK
[2012] SADC 23

Mr Clark is charged on information dated 13 February 2012 with three counts of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act. The three offences were allegedly committed on 12 April 2011 at the complainant’s home on a rural property in the Lower Murray area. I will refer to the complainant as “K” in these reasons.
Mr Clark has elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act, 1927. He has pleaded “not guilty” to the charges.
It is alleged that the offences are aggravated by virtue of the fact that, on 12 April 2011, K was 11 years old.[1] Her birth certificate[2] was admitted by consent, and shows that she was born on 29 January 2000. There is no dispute that, if the elements of the offences are proved beyond reasonable doubt, the circumstance of aggravation has also been established beyond reasonable doubt. It is not necessary that the prosecution prove that Mr Clark knew, or was reckless about K’s age.
[1] Criminal Law Consolidation Act, s 56(2)
[2] Exhibit P2
General Directions
It is not necessary that I set out in these reasons all of the directions which a judge might give a jury in a criminal trial, particularly the standard or obvious ones.[3] However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence unless and until his guilt is proved beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. Each element of each charge must be proved beyond reasonable doubt;
·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;
·“beyond reasonable doubt” needs no elaboration. Mere suspicion of guilt, or the probability of guilt, is not sufficient;
·each count must be considered separately. A finding of guilt on one count may not be used in proof of the other counts.[4] However, if I am not satisfied of K’s credibility and/or reliability in relation to one count, and the other counts rely on the evidence of K to the same extent, then that doubt should be taken into account in determining whether I am prepared to accept her evidence on other counts;[5]
·Mr Clark had the right to remain silent. He elected to give evidence on oath and subject himself to cross-examination. In so doing, he did not assume any onus to prove or explain anything. His evidence is to be assessed in the same way as that of any other witness. In particular, his evidence is not to be discounted because he is the accused;
·in this case it is common ground that there is no room for the suggestion that the evidence of the prosecution witnesses and that of the accused can be rationalised on the basis of mistake or faulty memory. K and Mr Clark cannot both be telling the truth. It is not my task to try and ascertain where the truth lies – my task is to decide whether the prosecution has proved Mr Clark’s guilt beyond reasonable doubt;[6]
·there is evidence that K was distressed after she complained of Mr Clark’s behaviour. Such evidence can assist in my assessment of the credibility of K’s evidence in that it may show consistency of conduct. I should approach this evidence with caution, since there may be other reasons for her distress which are not apparent on the face of the evidence.[7]
[3]    R v R, R and R, LJ [2008] SASC 35
[4]    R v HS [2004] SASC 300
[5]    R v Liddy (2002) 81 SASR 22 at [181-193]
[6]    R v Calides (1983) 34 SASR 355
[7]    R v Schlaefer (1984) 37 SASR 207 at p 215-17 per King CJ
Elements of Offences
For Mr Clark to be convicted of indecent assault, the prosecution must prove each of two elements beyond reasonable doubt:
1an assault – an intentional and unlawful application of force to another person – mere touching is sufficient;
2the assault was in circumstances of indecency – that is, offensive to community standards of common propriety.
In this case, there is no suggestion that, if I am satisfied beyond reasonable doubt of the truth of K’s allegations, the behaviour would not constitute an indecent assault. The trial was conducted on the issue of whether I should be so satisfied.
The Prosecution Case
The prosecution called K, her sisters M and R, her mother and father, and J, a friend of Mr Clark, to give oral evidence.
The occasion on which the alleged offences took place was K’s mother’s birthday, 12 April 2011. A family barbeque took place, and it would seem that K’s parents, in particular, drank heavily during the afternoon and evening.
J, who was K’s mother’s best friend, was to have dinner with Mr Clark, but upon being invited to the birthday celebration, she invited him to accompany her to the barbeque.
At one stage during the evening, Mr Clark sat in the lounge room with K and R watching television. The rest of the adults were outside sitting around a campfire for much of the time, although J and K’s mother came in later and used the computer.
Later in the evening, K’s mother told her it was time to go to bed. She said she did not obey immediately, but eventually complied. She said she went into the kitchen and Mr Clark was there, near the refrigerator. She said he hugged her and said
I love you, Goodnight.[8]
[8] T19.36
She said he then picked her up “like a baby”, with one hand down her back, and the other between her legs. She said that during this he “tried to stick his finger in my lady bit” for a short time, over her underwear[9] (Count 1). Before putting her down, he said “I love you” again, and kissed her on the cheek. She said she pushed him away and he put her down. She said “Goodnight” and went to her bedroom.[10]
[9] T20.5 to .6
[10] T21.5
K said that M came into her bedroom, and then she and M went to R’s bedroom, and the three of them discussed Mr Clark.[11] She said they variously described him as “weird” and “creepy”. She did not tell her sisters then of what had happened in the kitchen.
[11] T21.18
K said that she returned to her bedroom, changed and went to bed. The door was shut, and the light was off. She was in a bunk bed which is depicted in the photographs.[12] It appears to be about 1.2 to 1.3 metres off the floor. There is no lower bunk, and there is a chest of drawers underneath, and at a right-angle to the bed.
[12] Exhibit P1
K said that Mr Clark came into the bedroom. He came over to the bed and said “Goodnight” and “I love you”. The bed was about chest-high to him.[13] He hugged her with one arm, and then put his hand under the blanket and touched her breast, on the skin (Count 2). Then he put his hand down and “was trying to put his finger up my lady bit through the undies”[14] (Count 3).
[13] T36.21
[14] T 23.31
K said she “heard a door slam and someone walk inside.”[15] The context makes it clear that she did not mean that someone else came into the bedroom, but rather that someone came into the house from outside. She was specifically asked about this, and said “no-one came (in) after him”.[16]
[15] T 24.3
[16] T 24.7
R’s Evidence
There is corroborative evidence of Count 2 from K’s sister, R. She was 13 years old at the time of these events. R said that she was cleaning her bedroom when Mr Clark spoke to her. He was standing near the bedroom door. When he left, she said she saw him enter K’s bedroom and shut the door.[17]
[17] T71.14
R said she went to the lounge room and told J that Mr Clark had given her money. She put the $5 note on the television cabinet. As she walked back to her bedroom, she noticed that K’s door was still shut. She was concerned about this, and decided to go into the bedroom. She said:
A“Well, I saw my sister was on her bed and he was standing at the head of the bed and I walked around towards the foot of her bed and saw that he was, I don’t know, like tickling her or something like that, it looked like it.
QDid you see where his arms were.
AWell, one of them – I didn’t see one of them, but one of them was – looked like it was down her top.
QDid she have a blanket or sheet over her at that time.
AI can’t remember.
QWhat happened then.
AWell, my sister sort of looked at me, then he looked at me and left.[18]
[18] T65.15 to .26
R said that K started crying after Mr Clark left. She asked what happened, and K said “he was touching her” and “he had his hand down her top.”[19]
[19] T65.34
In cross examination Mr Germein asked R how Mr Clark was tickling K. She said:
His hands were moving all over her body.[20]
[20] T73.11
She added that K was not under a blanket.[21] This contradicts her earlier evidence, quoted above, that she could not remember whether this was so or not.
[21] T73.15
While R’s evidence tends to corroborate K’s evidence, there are a number of significant inconsistencies:
·R denied that she and M went to K’s room and discussed Mr Clark or that she discussed Mr Clark at all inside the house;[22]
·R said that K did not have a blanket on her when Mr Clark was touching her,[23] whereas K said that she did.
·R made no specific mention of Mr Clark touching K in the area of her vagina even though K said this happened after he touched her chest, and R said she remained in K’s bedroom until Mr Clark left the room;
·K denied that anyone came into her bedroom after Mr K, which would include R.
[22] T70.21 to .25
[23] T73.15
Evidence of M
M is the older sister of K and R. She is now 19.
As to the visit by R and M to K’s room to discuss Mr Clark, M said:
We both walked down to K’s room and she was already in bed and I was having a talk to her and I said ‘What do you think of Mr Clark?’ She said straightaway ‘I don’t like him’. And I said ‘Well, why not?’ And she is, like ‘He tried to kiss me’. And R said ‘Oh, what a goodnight kiss on the cheek?’ Like, kind of asked her what happened and she said ‘No, he tried to kiss me on the lips’. And then she kind of got a bit upset and I was, like ‘Well, that’s not on, K. Like, don’t worry about it. If anything happens come talk to me. Like, he’s not allowed to do that. Come see me if anything else happens. And then I went outside. The girls went to bed.[24]
[24] T48.19 to .31
Again, this evidence is contrary to that of K (who said merely that the discussion was about Mr Clark being “weird” and “creepy”, and that she made no complaint about what happened in the kitchen.) K did say that Mr Clark kissed her in the kitchen, but on the cheek.[25] She made no mention of being kissed on the lips. This is also contrary to the evidence of R who said no such conversation took place. Even on M’s version, there was no complaint of being lifted up and touched on the vagina, which is the central issue in relation to count 1.
[25] T21.5
I also find it extraordinary that M would take no action, in light of her evidence that she was told by her 11 year-old sister that Mr Clark had tried to kiss her on the lips. This is particularly so in the context of her earlier evidence that she saw Mr Clark leaning over towards K in the lounge, and that K looked “uncomfortable”.[26]
[26] T 46.35
While there were no grounds for a finding that K was other than a truthful witness, I find that these inconsistencies and contradictions are of such a nature that I have serious misgivings about the reliability of her evidence. In particular, R’s evidence about being present in the bedroom when count 2 was committed, but not seeing count 3, flatly contradicts K’s version of what happened in relation to those two counts and what happened afterwards. One or the other of them may be mistaken, but any doubt or uncertainty must be resolved in favour of the accused.
Initial Complaint
K’s evidence that no-one entered her room after Mr Clark is inconsistent with R’s evidence that K made her initial complaint to her.
K’s evidence was that after Mr Clark left the bedroom, she got out of bed, and ran straight through the living room, past her mother and J, who were using the computer, and out to the caravan which her other sister, M used as a bedroom. She said that the initial complaint to M, and subsequent events, were as follows:
A…came in my room once you left and he tried to feel me. He also tried to do it in the kitchen and then once he left I ran straight for you’. Then she said “Good girl. You done the right thing’.
QThen what happened after you said that to M.
AShe said ‘Good girl. You done the right thing’ and then she said ‘I’m going to go get dad now’ and then she tried to call him from the door of the caravan and he wouldn’t – he either couldn’t hear or, or wouldn’t listen and then I said ‘Don’t leave me’, so she got L and L stayed with me in the van for a while.
QThen what happened.
AThen she ran over to Dad, told Dad to come into the caravan and then she said ‘Tell him exactly what you told me” and I said “Okay” and I told him. And then he was like “You done the right thing’ and I’m like ‘Okay” and then they told J and Mr Clark was standing near the caravan and then I kind of got a bit freaked out. But then J came in and sat next to me and she started crying and then L left because somebody was getting emotional and then M came in and then I started crying because someone else was crying. And I was a bit scared and then we started, like, hugging, yes.[27]
[27] T25.34 to T26.19
This evidence was led without objection. Section 34M of the Evidence Act 1929, allows evidence of an initial complaint of a sexual offence, and a subsequent elaboration thereof, to be given. I am entitled to have regard to the evidence to inform myself as to how the allegation first came to light, and so that I may judge whether the making of the complaint demonstrates consistency of conduct on the part of K. However, it is not evidence of the truth of the allegations, since it is not independent of K. But if it is consistent with her account, it can bolster the credibility of her account.[28]
[28] R v H, T [2010] SASCFC 24, R v Franco [2010] SASC 132, R v J, JA [2009] SASC 401
R’s evidence about these events was quite different from K’s. As I have already observed, R said she was the first person spoken to by K. R said she told K to “come with me”[29] and they went out and saw her sister (M). M was sitting around the fire. R said she approached M, told her that
K ‘didn’t really like J’s friend’ and then she (M) made up a story about going to see something in her bedroom ….[30]
[29] T65.38
[30] T66.15 to .17
Once inside M’s caravan, R’s version was:
Well, K started crying again and she – she wasn’t – M asked ‘What happened?’, but K wasn’t speaking, so I told K what she told me in the bedroom and my sister asked me if it happened to me but, yeah, I said that he only gave me money.[31] [32]
[31] T66.27 to .31
[32] I think R meant that she told M, not K in this conversation
R said that M went out and called their father, but “I just wanted to go to my room”[33] so she went out of the caravan. I find this a rather odd reaction to the events in the circumstances.
[33] T66.37 to .38
R said that she went and spoke to her mother and
I tried to explain to my mum what had happened but I didn’t know how to say it without, like, offending J or something, so I can’t remember what I was saying but it didn’t really make sense.[34]
[34] T67.5 to .8
R’s mother gave evidence that R seemed “quite upset”[35] when she came in, and that she spoke to J, not her.[36] The mother admitted that she was intoxicated. On a scale from 0 to 10 where 10 is unconscious, she described herself as “at least a 7”.[37]
[35] T80.22
[36] T80.29 to .30
[37] T79.18
So there are also clear discrepancies between the evidence of K and R in relation to the complaint, particularly as to:
·whether K first complained to R or M;
·whether K going to M’s caravan was her idea or R’s;
·whether K or R articulated the complaint to M.
M’s evidence in relation to the complaint had features of both K’s and R’s evidence. Her version was:
AWhen I was outside R came out to me. I was only out there for about five minutes when I was by the fire and R came up to me and kind of looked at me and I was like ‘Do you want to go talk in my caravan?’ and she said ‘Yes’. We started to walk off and then K came out, rushed out and grabbed my hand and started just pulling me towards the caravan and R kind of just followed along behind. We went in and K said ‘Oh, he was touching me’, like and all this, like, yes, that kind of thing, like.[38]
[38] T49.28 to .37
M said that K told her it was Mr Clark who touched her,[39] that K said he touched her “girl bits and boobies”.[40] After their father arrived, and K told him that Mr Clark had touched her, their father “went berserk”.[41]
[39] T50.25
[40] T50.28 to .29
[41] T50.35
M’s evidence is consistent with K’s to the extent that, K may not have been aware that R had already spoken to M before K emerged from the house. However, on M’s version, R must have either seen something, or been told something by K, which caused her to approach M. To that extent, both girls contradict K about that.
The girls’ father also gave evidence. Apart from stating in general terms that K told him “she was molested”,[42] he only had a vague memory of the events. He said that, on the same scale of intoxication mentioned earlier, he was “7 I’d say. Yes I was drunk …”[43]
[42] T85.26
[43] T84.22
Finally, J, Mr Clark’s companion that evening, said that R came into the house looking distressed, and said merely that “K doesn’t like strange men”[44] and that her mother “brushed her off”.[45]
[44] T95.36
[45] T95.38
J said she went to the caravan later, at the girls’ father’s request, that she and M were both asking K questions about what happened, and K was answering them.[46]
[46] T96.25 to .26
This evidence contradicted that of M, who denied that K responded to questions from her and J.[47]
[47] T60.28
The evidence of the initial complaint, to whom it was made and in what circumstances, is so confused and contradictory that I am unable to find with any certainty what occurred, and hence it cannot be said to be consistent with K’s evidence. It follows that this evidence does not bolster the credibility of K’s evidence of the events. Indeed, it damages the credibility and the reliability of her account.
The Defence Case
Mr Clark gave evidence on oath. Without descending into great detail, he:
·denied “grooming” K with money, saying he gave her $2 to fetch a soft drink from his car, and gave R $5 after she “harassed” him after she found out he’d given money to K;
·admitted he was alone in the kitchen with K, and that she had hugged him around the waist and said “Goodnight”;[48]
·denied he picked up K in the kitchen, or kissed her, or touched her vaginal area;
·admitted he entered K’s bedroom once, at her invitation, to view her fish tank;
·denied he touched K at all in the bedroom, in particular when she was in bed, as she alleged;[49]
·said that he denied any wrong-doing when confronted by K’s father.[50]
[48] T107.33
[49] T107.20 to .25
[50] T116.19
Analysis and Conclusions

I take into account the submissions of Counsel regarding the above factual issues. Mr Pearce QC, counsel for the Director of Public Prosecutions, submitted that K was honest but mistaken on some details. He referred to the consistency of her conduct demonstrated by the complaint and her distress. He submitted that K appeared a truthful and forthright witness, and displayed an “absence of guile”. I accept that submission as far as it goes.
Mr Germein pointed to the inconsistencies and contradictions in the prosecution evidence, to which I have already referred.
In all the circumstances, I am unable to reconcile those inconsistencies and contradictions to the extent that I would be able to reject Mr Clark’s denials beyond reasonable doubt. I cannot be satisfied as to K’s complaints, either to R or to M, or as to the content of any such complaint. I have taken into account K’s young age , and the stressful situation she says she was in, and the fact that there is no “rule-book” as to how the victim of a sexual offence should behave. I accept there is evidence of distress, but in view of the concerns I have about the reliability of the rest of the evidence, that does not take the prosecution case much further.
I find that I am unable to be satisfied of the strength of the prosecution evidence to the extent that I could reject Mr Clark’s denials on oath beyond reasonable doubt.[51]
[51] See R v Beard [2004] SASC 411 at [12-13] and Police v Luha [2012] SASC 17 at [44]
Verdicts
In those circumstances, my verdicts are:
Count 1 – Not Guilty
Couth 2 – Not Guilty
Count 3 – Not Guilty