R v Cox
[2021] SADC 55
•20 May 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COX
Criminal Trial by Judge Alone
[2021] SADC 55
Reasons for the Verdict of her Honour Judge Davison
20 May 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was charged with maintaining an unlawful sexual relationship with the daughter of his ex-partner. The child was aged between 8-11 years old at the time of the alleged acts. The accused pleaded not guilty.
The charge was not proved beyond reasonable doubt as the evidence of the complainant in relation to the alleged acts constituting the sexual offences could not be relied upon to the requisite standard.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 13BA; Child Safety (Prohibited Persons) Act 2016 (SA) s 38, referred to.
Nguyen v The Queen [2020] 94 ALJR 686; Azzopardi v The Queen (2001) 205 CLR 50, applied.
R v COX
[2021] SADC 55
Introduction
The accused, Henry Lewis Cox, is charged with one count of maintaining an unlawful sexual relationship with the daughter of his ex-partner. The complainant, SW, was aged between eight and 11 when it is alleged the accused committed the offence at the family homes in the Riverland.
The accused elected for trial by judge alone. The trial proceeded without a jury.
The Charge
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Henry Lewis Cox between the 12th day of August 2014 and the 1st day of December 2017 at Loxton, maintained an unlawful sexual relationship with SW, a person under the age of 17 years, by engaging in two or more sexual acts with or towards her, namely:
a)touching SW’s genital area on more than one occasion;
b)touching SW’s breasts on more than one occasion;
c)sucking SW’s breasts on more than one occasion;
d)showing pornographic material to SW on one occasion;
e)performing an act of cunnilingus on SW on one more than one occasion;
f)kissing SW on more than one occasion;
g)causing SW to perform an act of fellatio on him on more than one occasion;
h)causing SW to masturbate him on more than one occasion; and
i)placing his penis between SW’s breasts on one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Offence
There are four elements to this offence. The first is that the accused was an adult. This element is not in dispute.
The second element is that the complainant was under the age of 17 years. This element is not in dispute.
The third element is that the accused knowingly maintained a relationship with the complainant during the relevant period. This element is not in dispute. He was in the position of a stepfather to her throughout this period.
The fourth element is that he engaged in two or more unlawful sexual acts with the complainant in the course of that relationship. It is this element that is in dispute in this trial. The accused denies any unlawful sexual acts occurred between he and the complainant at any stage.
General Directions
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence with which he is charged.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, then when I have done so, in each case I mean to an extent which excludes a reasonable doubt.
The accused is presumed by law to be innocent of the charge unless and until the evidence, that I accept, satisfies me that each of the elements of the offence have been proven beyond reasonable doubt. If the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence, then he remains innocent and I must return a verdict of not guilty.
If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure where the truth lies, then I must find the charge has not been proven beyond reasonable doubt and must return a verdict of not guilty.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by the witness. I can reject or accept all or a part of a witness’s evidence.
The accused participated in a record of interview. He was not obliged to participate in this interview. The record of interview contained inculpatory and exculpatory statements. Both parts are admissible for the truth of their content.[1] As the accused did not give evidence, the exculpatory portions of his statement have not been tested by cross-examination. Some or all of these parts may be self‑serving. If I determine that they are self-serving, I can take this into account when deciding what weight to give the statements made by the accused during his record of interview.
[1] Nguyen v The Queen [2020] 94 ALJR 686.
The accused did not give evidence. This was his right. I must not use his silence against him. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution’s evidence.[2]
[2] Azzopardi v The Queen (2001) 205 CLR 50.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear and not be influenced by public opinion in the matter.
A number of the witnesses gave evidence with special arrangements in place. I remind myself that I must not allow the fact of these special arrangements to influence the weight that I give to the witness’s evidence, nor draw an adverse inference against the accused for the fact that these arrangements were in place.
There was some evidence of a discreditable nature led against the accused. This evidence was general evidence in the nature of arguments and disagreements between the accused and the complainant’s mother. The evidence was led in relation to the state of mind of the complainant and to explain why she behaved in a particular way. It will only be used for that purpose and not for any impermissible purpose. I direct myself that I must not use this evidence to reason simplistically that because the accused has done bad things in the past, that he is a bad person and therefore, the sort of person who is more likely to have committed the offence with which he is charged, nor must I allow this evidence to distract me from the need to consider whether the prosecution has proved the charge beyond reasonable doubt.
Prosecution Case
The prosecution case relied primarily upon the sworn evidence given by SW. She is now 15 years old and living in foster care. She is indigenous. She presented as shy, withdrawn and reluctant to talk about details of the alleged offending. I have borne in mind in assessing her evidence that she was a child aged between 8 and 11 at the time of the allegations. Furthermore, she is a vulnerable person who had been in foster care in the earlier part of her life, returned to live with her mother when she was about seven years old and then was removed from her mother’s care in November 2017. Further, it appears that her education has been limited. During the time she was living with her mother, she did not regularly attend school. She is now in Year 9 at school and does a range of subjects including, HPE (Health/Physical Education), Outdoor Pursuits, Maths and English. She explained in her evidence that she is not doing very well in Maths and English as she has trouble explaining ‘stuff’ to the teacher and does not know how to explain it to them. She said that she cannot really say her words properly,[3] but is receiving no assistance with this issue. No other evidence was led to explain any limitation she may have.
[3] T78.
I have taken these limitations into account as far as possible, in assessing the credibility and reliability of SW and as a consequence, the question of whether the charge has been proved beyond reasonable doubt.
SW gave evidence that the first incident that could constitute an unlawful sexual act, occurred when the family lived at an address in T Street, Loxton. The family lived at this address from approximately 8 August 2014 to 3 October 2015.[4] The complainant was eight years old at that time. She gave evidence that she and the accused made a cubby house in her bedroom using her bed that was covered with blankets. They were both in the cubby house when he kissed her on the lips. She pushed him away. She said her mother looked in and saw them and then slammed the door and walked out.[5] SW said the accused only kissed her on this one occasion.
[4] Agreed Facts, P1.
[5] T17.
The family then moved to K Terrace in Loxton. They commenced a tenancy on 3 October 2015. SW lived at this home until she was removed from the care of her mother on 10 November 2017.[6]
[6] P1.
SW gave evidence that her mother went to the pokies every week. On those occasions, she was left at home with her younger brother, who was born on 15 January 2014, and the accused. She gave evidence that at K Terrace, the accused once followed her into the toilet where he told her to lean over with her hands on the wall and he touched her vagina with his hand over her clothes. She gave evidence that she tried to leave but he would always say ‘you’re not allowed to play with my phone if you don’t let this happen’. This evidence was a little confusing. On the one hand, the complainant seemed to be describing events that occurred on a regular basis but on the other, she said that the event in the toilet only ever happened once.
She went on to give evidence that the accused showed her a pornographic video that showed someone licking a girl’s vagina. The accused said to her, ‘could I do this to you?’ and at first, she said no.[7] The accused then said, ‘if you don’t let me do it, I won’t let you play with my phone anymore’.
[7] T19.30-31.
SW gave evidence that they were in the living room of the address at K Terrace. She was on the couch and the accused was kneeling beside her. He then pulled her pants down, laid her on the couch and licked her vagina. She said this happened once. She said her mother was at the pokies and her younger brother was watching TV in the main bedroom.
SW gave evidence that the accused showed her a pornographic video twice. She did not give evidence as to the circumstances in which the second showing occurred or what she was shown on that occasion.
SW gave evidence that when she went to bed, she often wore a t-shirt, a bra and some pyjama pants. When awoke in the morning, her bra strap and t-shirt would be down near her upper arm. She demonstrated this. No further evidence was led in relation to this.
SW went on to give evidence that on one occasion she was sitting on her bed with her younger brother, when the accused came into the bedroom and told him to get off the bed. He then locked the door and took off SW’s t-shirt and bra. She was sitting on the edge of the bed while the accused was standing next to her. He then put his penis between her breasts and moved his penis up and down between her breasts. He then ejaculated. SW gave evidence that he covered his penis with a towel and wiped the ‘cum’ off his penis. She went on to say that during the incident she tried to leave and said, ‘I don’t want this to happen’,[8] but he pulled her back by her hair when she tried to open the door. She said the incident only occurred once, when she was 11 years old. Her mother was at the pokies at the time.
[8] T38.27.
She went on to give evidence that on another occasion she was sitting on the edge of her bed at K Terrace. She was 11 years old. The accused came in and stood beside her. He pulled his pants down, but not his boxer shorts. He stuck his penis through the hole of his boxer shorts. He told SW to open her mouth. He moved his penis into her mouth and then pushed her head towards his penis. He put one of his hands on the back of her head and pushed her head forward. His penis then went in and out of her mouth. He then left the bedroom. SW thought that her mother was asleep during this occasion. She gave evidence that this behaviour occurred on two occasions. On the other occasion, she thought her mother was at her aunt’s house. SW gave no other evidence about the second occasion.
SW gave evidence that the accused sucked on her breasts on one occasion whilst she was in her bedroom. She said she was sitting on her bed and was clothed. He came into her room and removed her upper clothing, including her bra. He sucked her breasts and then walked out of the room.
SW gave evidence that on one occasion the accused made her ‘jerk his penis’.[9] She said she was watching TV on her bed, in her bedroom. She was clothed. Her mother was at the pokies and her brother was asleep. The accused came into her bedroom and pulled his pants down and pulled his shirt up a little bit. He then sat on her bed, he made her put her hand out and then made her hand go up and down on his penis. SW indicated in evidence the movement of her hand. She said the accused moaned while she moved her hand in this way and then he ‘came’. She said this incident ended when she said she wanted to go to the toilet. The accused did not say anything and he left the room. She gave evidence that this behaviour only occurred once.
[9] T24.20.
SW gave evidence that on one occasion the accused told her to change into a short black dress. She was wearing this dress in the bathroom near the sink with the door open. The accused came into the bathroom and stood behind her. SW initially said that she had changed into the dress and the accused lifted the dress, pulled down her underwear and then touched her vagina. At a later point in her examination in chief, she said that the accused lifted her dress and touched her vagina over her underwear. She said he did not say anything to her. She gave evidence that he kept leaving the bathroom and going into the main bedroom to check through the window to see whether her mother was coming home. Her mother was at the pokies at that time. SW said she then felt uncomfortable with her dress. She left the bathroom, took the dress off and changed back into shorts and a t-shirt. She later went outside.
SW gave evidence that she made her first complaint to a girl at her church youth group, when she was 11 years old. She does not remember the name of the girl but said they were friends. She gave evidence that she made a complaint on a Friday night, as she would normally go to church at that time. She told the girl ‘there’s a man at home that is touching me and I need help from the church leader’.[10] She recalled the girl being a bit older than her. SW said that after she told the girl, the girl did not say anything to her but while she was leaving, she saw the girl tell her mother.
[10] T28.7-8.
SW gave evidence that she did not tell her mother or anyone else what the accused was doing to her because she was scared. She said she was scared because the accused told her that if she told anybody, he would say that she touched him first.
She also gave evidence that the accused and her mother got into fights sometimes. She said when this happened, she normally left the house with her younger brother. During the fights, she said they would use their fists and throw stuff. SW gave evidence that she would leave when they fought because she thought it was a bit too dangerous for her and her younger brother. She also gave evidence that it was her mother who disciplined her. Her mother would tell SW not to do various things or she would end up in ‘juvie’.[11]
[11] T27.20.
SW gave evidence that on an unspecified occasion when she was 11 years old, the accused asked her ‘when she turned 13, could he put his penis in her vagina’.[12] She said she was in her bed when it occurred and he was touching her vagina on that occasion.
[12] T40.21-22.
SW was cross-examined.
In relation to the cubby house incident, she said that involved a blanket over the bed frame and she was positioned under the blanket. When her mother came into the room, she and the accused both popped their heads out of the cubby to see who was opening the door. She confirmed that this was the only incident that occurred at T Street and the only time the accused kissed her.
In relation to the incident of the rubbing of her vagina in the toilet, she said that this incident happened on a school day during the day. She was outside in the front yard by herself and then came inside and told the accused that she wanted to go to the toilet. She said she did this so he knew where she was. She said her younger brother was at home and her mother was at the pokies. She walked into the toilet and the accused followed her. Whilst both of them were in the toilet, he closed the door. He did not say anything to her. After he had closed the door, he told her to put her hands up on the wall, he did not tell her why but she did it because she was scared. When asked what she was scared of, she said ‘him to be honest, I was scared of him’.[13] She said he had said something nasty to her before this incident but she could not remember exactly what he said. She said he was standing over the toilet and he touched her vagina by reaching from behind and touched her over her clothes. She said he did not say anything at that time and said she did not try to leave when she was in the toilet.
[13] T48.37.
It was put to her that in an interview with the police on 12 February 2019, SW had said she was standing over the toilet and the accused told her to spread her legs. She agreed that she said these words to the police but does not recall it specifically. She said she does not know why her version is now different but denied that she was lying about it.
SW was cross-examined in relation to the occasion when it is said that the accused told her she could not play with his phone. When asked to say what was said by the accused, she said he said, ‘you’re not allowed to play with my phone if you don’t let me do, like, let me do anything to you’.[14] She said he said this to her when she was in her bedroom. He came into the room because she had yelled out to him saying ‘Henry, can I use your phone?’. She said this conversation occurred before any of the other incidents occurred in the bedroom but after the incident had occurred in the toilet. She was asked what she thought he meant when he said those words to her and she said, ‘I don’t know what he was saying’.[15] She said he did not ask her to do anything at that time and did not say what he wanted her to do. She said this was the only occasion when they had this conversation.[16]
[14] T56.27-29.
[15] T57.34.
[16] T58.
She was cross-examined about the time she alleges the accused touched her on the vagina. She said it had occurred in the bathroom and her bedroom and always over her clothes. She gave evidence that the incident in the bathroom occurred when she was standing in front of the sink and he touched her on the vagina, and then went back to the bedroom to check on whether her mother was coming home and then came back to the bathroom, and touched her again. She described that happening with the accused going back and forth. She said that he told her ‘don’t move’,[17] and he went back and forth twice. She said the incident in the bathroom happened after the incident in the toilet and before the incidents in the bedroom.[18]
[17] T61.33.
[18] T62.
In cross-examination, she said that the only times the accused tried to touch her on the vagina were in the toilet and bathroom. She said he did not touch her vagina in the bedroom. She said that in the bedroom, he put his penis between her boobs and told her to suck his penis and she also recalled waking up with her clothes dishevelled. She described this happening a few times.
She was cross-examined about the occasion when the accused came into her room and her brother was sitting on the bed. She said that she and her brother were playing a board game but does not recall what the game is called. She described the board game in some detail.[19] She said that she and her brother were sitting in the middle of the bed and that her mother was at the pokies. She described her mother having left for the pokies about an hour before the accused came into her bedroom and told her brother to ‘hop out’.[20] She said he told her brother to ‘go out to the lounge room and watch TV’. She said she cannot remember how old her brother was at this stage, but he would have been about three, so he understood what was said and then he did that. She was asked how she knows he did that and she said because she walked out and saw him do that and then walked back into her room where the accused was.
[19] T65.
[20] T66.30.
Cross-examination was then complete for that day and recommenced the following morning.
She was then cross-examined about the incidents that were said to have occurred in her bedroom. In respect of the incident of the accused putting his penis between her breasts, she said that it happened during the day time but was unable to recall if it was a weekday or weekend. She said she was watching the TV in her room before the accused came in. She does not recall what she was watching but recalls sitting in the middle of her bed with her legs out in front of her on the bed and having her back up against the pillows.
When she was challenged about having said the day before that this incident was preceded by her playing a game with her brother and her brother being told to leave, she said that had been a mistake.[21]
[21] T73.
She said the accused put his penis in her mouth in her bedroom on one occasion and that occurred months after the occasion where he put his penis between her breasts.
She was cross-examined in relation to the bathroom incident. She agreed that she had not told the police about that incident despite the fact that she had spoken to the police on six occasions. The first time she had mentioned it was in court.
She was then asked questions about her mother going to the pokies. She said her mother went to the pokies every second week for about three hours. This was inconsistent with her evidence that she had already given that her mother went to the pokies every week, sometimes more than once a week. When challenged about the inconsistencies, she said that it was correct that her mother went every week, sometimes more than once a week, and did not know why she said it was only once every second week.
She was cross-examined about the time when the accused made her ‘jerk him off’ and said that had happened once or twice but she could not really remember. She agreed that she had not mentioned this in relation to the incidents happening in her bedroom because she forgot about it at that time. She said that she could not remember what she was doing in her bedroom before the accused came in. She thought her mother was at the pokies. She does not remember where she was when he first came into the room, but when it occurred she was sitting on the edge of the bed. She said he did not ask her to suck his penis, he just made her do it.[22] However, in relation to the event when he asked her to jerk him off, he did ask her to do something but she cannot remember the exact words he said.[23]
[22] T83.
[23] T84.
She was cross-examined about the occasion when she said the accused showed her pornography in the lounge room. She agreed that was the only video that he had shown her. She was then cross-examined about the interview on 25 March 2019 where she described to the police the accused showing her a video whilst she was in the bedroom. When cross-examined about this, she said she could not remember telling the police that the showing of the video occurred in the bedroom and thought it happened in the lounge room. She agreed that when she described the incidents occurring in her bedroom, she had forgotten to mention the ‘sucking of the boobs’ incident.
She was cross-examined about her complaint. She was asked why she had told the girl at youth group and she responded by saying ‘I don’t know, like tell her mum or something’, but that when the police came shortly afterwards she told them that the accused was really nice, and in response to a question by a police officer ‘I’ve heard that he has touched you’ she said ‘no’. She agreed that she told the police that the accused had not touched her when she was asked in September 2017. In re-examination, she said she told the police that because she was scared of the accused.
An audio-visual record of a conversation between MW and the police on 5 March 2020 was admitted pursuant to s 13BA of the Evidence Act 1929. I permitted cross-examination of MW, as I deemed that it was in the interests of justice. She said that she was at church one day when SW came up and told her that either her dad or her stepdad touches her. MW then told her mother. MW said she was sitting down at church with one of her friends when SW ‘came along and told me that’.[24] She was unsure of the exact words that were used. She said that this event occurred last year, but she was not sure what day it was or what term it was but remembered that the weather was hot.
[24] MFI-P5, p 7, q 66.
In cross-examination, she said that she knew SW from school but that she is a bit younger than SW, they did not spend any time together at school and were not in the same class. She said she spent some time with SW at church and agreed that she spoke to her regularly when they went to church. She said she did not really see SW at church that much. I assessed MW as a reliable and credible witness. I have no doubt that a complaint was made in much the same terms as recounted by MW.
The prosecution called SW’s mother, OW. OW gave evidence that the complainant’s father is deceased. She said SW was taken into foster care when she was about five years old due to OW having an alcohol problem. SW came back into her care when she was six or seven years old. By that stage, OW was in a relationship with the accused. She moved to the Northern Territory and then returned to South Australia to live in Loxton. By that stage, SW’s little brother had been born.
She described the relationship between the accused and SW and said it was ‘ok’. OW described the relationship between she and the accused as being alright to begin with but then they had arguments that involved screaming but denied that these arguments were ever physical. She said he threw things at her on one occasion. OW said that during these arguments, SW would take her younger brother out to the lounge room. OW agreed that she liked to play the pokies and went once a week, when she got her pay, to the Loxton Club. At those times, SW and her brother were looked after by the accused.
She was asked if she noticed anything about SW’s behaviour when she came back from the pokies at night and she said, ‘yeah she was like a bit down and that like feeling down, saddish’.[25] She said that SW would not talk and was just laying down watching TV, but she never asked her about it.
[25] T109.37-38.
When asked whether there was anything unusual about the way the accused acted when she came home from the pokies, she recounted a time that occurred on one occasion when he was standing in front of the bedroom door and would not let her through. She eventually pushed through and got into the room and saw SW lying on the bed. She said SW was watching TV. Her brother was in the lounge room watching TV.
In cross-examination, she said that she was receiving a family payment from Centrelink and when she received that payment, she would go and play the pokies. She agreed that she was responsible for paying the rent, household bills and groceries. She also agreed that she would not be able to spend long periods of time at the pokies because she did not have much money to spend, but maintained that she would mostly go to the pokies on her pay day.
She said that on the occasion that SW was lying on the bed in the main bedroom, she was just watching TV. When asked whether she ever walked into SW’s room when she was building a cubby house on her bed in T Street, she said no.
I have assessed OW as a credible witness. However, I have some reservations as to her evidence in relation to the extent of the violence in the home. She was asked very little as to her observations of the nature of the relationship between the accused and SW. She was not questioned at all about opportunities for the accused or anyone else to have entered SW’s bedroom at night, that resulted in her clothing becoming dishevelled. Nor was any evidence of substance led from her about the behaviour of SW when she returned from the pokies. No link at all was drawn between this evidence and any occasion when the sexual abuse was said to have occurred. Apart from the one incident that was recounted as to SW being in the main bedroom when she returned home from the pokies and the accused being reluctant to allow her in the room, no other evidence was elicited as to her observations when she returned to the family home. I accept that the children were removed from OW’s care in 2017 and the accused and OW separated thereafter.
Detective Brevet Sergeant Leigh Kennedy was called to give evidence. He is the investigating officer. He was notified of the complaint on 21 September 2017 through the Department of Child Protection. He arrested the accused in relation to the allegations on 31 January 2019 and conducted a record of interview with him. That record of interview was tendered.
In the record of interview, the accused acknowledged that he knew SW and that she is the daughter of his ex-partner. He acknowledged living in T Street and K Terrace in Loxton with the complainant. He said his relationship with SW was not very good, she would try to cause arguments between himself and her mother. He agreed that he would look after SW and her brother while her mother was playing the pokies. He said this would happen every pay day, on a weekly basis or if she got any more money she gambled with that as well. He said that whilst he was at home with the children, he mainly sat out the front of the house or sat with his son watching TV. He said that he would muck around with SW out the front, playing ball and ‘trying to get a bond with her’. He tried to be a stepfather to her as she had never had a father. He said he tried to get her to go outside but she did not want to go outside very often.
He was asked if he had ever played a game with her called ‘mummy’s and daddy’s’ and said no. He was asked if he ever touched her in any inappropriate way and said no. A series of allegations were put to him in relation to sexual allegations and he denied any sexual misconduct. He agreed that he may have looked at pornography on his phone but denied showing the complainant any pornography. He said that SW had searched for pornography on his phone and he let her play games on his phone.
He agreed that he had used his phone as an incentive to get her to behave at school or stay at school by saying that she could play a game on his phone. He denied ever being in a bedroom with SW on her own and said that the allegation made by OW of him blocking the entrance into the bedroom was a lie. He then went on to say that SW had been in a bedroom with him but not for long. He would walk in to see what she was doing and walk out again but denied having touched her at all.
There was no cross-examination of Detective Brevet Sergeant Kennedy.
Defence Case
The accused neither gave evidence nor called any evidence.
Closing addresses
It was submitted by the prosecutor that the only element in dispute was the fourth element of the offence, that is, whether the accused intentionally committed two or more unlawful sexual acts with or towards the complainant. It was submitted that the defendant had an opportunity to commit the offence. This is clear in the record of interview and also on the evidence, it is uncontested that OW played the pokies on a weekly basis leaving the accused at home with SW and her brother.
It was submitted that I should put the exculpatory statements in the interview to one side, as it was said that during the interview the accused made an attempt to divert attention away from himself being alone with SW and provide an explanation as to why he did not have an opportunity to commit the acts. In short, he attempted to limit the time that he spent alone with SW including emphasising that he was playing outside with her or tried to get her to play outside when he was playing out there with her younger brother. It was submitted that it is very unlikely when you look after a child on a regular basis over many years that you would not play inside with them.[26] It was submitted that his exculpatory statements have not been tested by cross-examination and he should not be believed in relation to them.
[26] T124.
A submission was made that I should accept the evidence of MW to whom the complaint was allegedly made. It was suggested that it was consistent with SW having complained at the time the sexual abuse was happening and that I may use it to inform me as to how the allegations first came to light and as evidence of consistency of conduct. It was submitted that SW complained that she was being touched and MW understood that to mean inappropriate touching, whilst it is a very general complaint, it is still consistent. It was submitted that this complaint then led to a report to the child abuse report line and the police speaking with the complainant on 22 September 2017, when she denied that the accused touched her. She gave evidence that she was scared of the accused at that time. It was submitted that this was consistent with the evidence that the she could be or would be scared of the accused when bearing in mind the violence in the home, that SW and OW gave evidence about. It was submitted that this was consistent with the complainant saying she was scared of the accused before the toilet incident but was unable to articulate how she felt. It was suggested that was age appropriate.
It was submitted to me that when I assess the evidence of SW, I should take into account that she is recounting events from four to seven years ago when she was a child aged eight to 11 years. She is a vulnerable child, who early in her life had been in her mother’s care and in foster care, and is now back in foster care. I should also take into account that she was in unfamiliar surrounds and generally vulnerable and these are reasons why she has been inconsistent in her evidence.
It was submitted that to me that she was particular about the acts themselves, she was particular about what the accused did to her in the toilet, how he was positioned behind her and that her inconsistency in relation to that was quite peripheral to what occurred.
It was also submitted to me that she was consistent in the way the accused acted towards her and the acts that he had required her to perform. She gave sufficient detail in relation to each of the acts that described quite clearly what she was saying the accused had caused her to perform. It was suggested that her demeanour was such that she was shy, quiet and embarrassed. It was suggested that she behaved in that way because the evidence she was giving was true. It was suggested at times her concentration seemed to wane, in particular, at the end of a long day at court.
In relation to the many inconsistencies in the evidence of SW, it was submitted that she was confused or that the details in relation to the events were not so important as the substantive nature of the event. It was suggested that although there are inconsistencies, that does not mean she was lying and I could be satisfied that two unlawful sexual acts had occurred. It was submitted to me that when you analyse many of the acts that she alleged, she is not inconsistent in the relation to them, has provided sufficient detail and that her evidence has the ring of truth about it.
Ms Demertzis addressed on behalf of the accused. She too indicated that the issue in contention is the unlawful sexual acts. She submitted that the complainant’s account lacked detail in numerous aspects, that there are a number of inconsistencies, and that I should have a concern about her evidence as a whole, because of the volume of inconsistencies and the distinct lack of detail.
She submitted that where support could have come from her mother, there was none, and the incident that her mother described of SW being in the room and the accused effectively blocking the room, is not an incident that the complainant recollects.
Ms Demertzis submitted that the inconsistencies in relation to the toilet incident are not of minor details but in effect, are the opposite of what she told police. She said that the explanation given by the complainant of being frightened is not supported by the evidence given by her mother in relation to the physical violence or domestic violence in the relationship, and she does not support the evidence given by the complainant that the complainant left home as a result of those arguments. She suggested that if SW and her younger brother had left the home and were wondering the streets of Loxton in search of a family member, as had been the evidence of SW, that was a detail that her mother would not have forgotten.
In relation to the bathroom incident, Ms Demertzis submitted that it was implausible that the accused would have left the bathroom on a number of occasions to check the window leaving the complainant alone but more importantly, she had not mentioned this incident to the police on the six occasions on which she was interviewed, and they were recorded by the police.
Ms Demertzis also submitted that what appeared at first instance to be a threat to withhold his phone unless the complainant performed sexual acts, in cross‑examination became much more innocuous. There was no suggestion that the threat was followed by any kind of sexual activity, nor that it was linked in any way to sexual activity. The description given of it in cross-examination appeared to be in relation to other activities of a non-sexual nature.
It was submitted that there were a significant number of inconsistencies including the number of times she was touched on the vagina and where this happened, who had been in the bedroom before the accused entered and what had occurred after that, and in relation to the incidents she said occurred in the bedroom. It was suggested that her description of her dishevelled clothing when she woke in the morning was no more than someone moving in their sleep and their clothes moving and in any event, it is not clear how it related back, if it did, to the accused. There was no suggestion she had seen anyone in the room or had any reason to think they had been in the room.
A submission was made by Ms Demertzis that the incident described when the accused put his penis between the complainant’s breasts changed in significant detail from her evidence given on the first afternoon of the trial to the second. This may be of some significance as it is suggested that this particular activity only ever occurred on one occasion. When the complainant gave evidence as to the preamble, she is quite clear and concise about what happened, but they are markedly different.
In relation to sucking the penis, in evidence in chief, she said ‘he would always tell me to suck his penis’ but the next day in cross-examination she could not remember any of the details and could not remember him saying anything before it happened. This causes concerns in relation to her reliability in relation to the allegations from day to day, submitted Ms Demertzis.
It was submitted there is also an obvious inconsistency to what she said occurred in the lounge room and bedroom in relation to the act of cunnilingus. When the opportunity presented itself to speak to the police after she had made a complaint, she denied any activity by the accused. It was submitted that there is no consistency in her conduct, rather she tells the police that the accused is a really nice man, despite having told her friend about the touching in an effort to get her friend to tell her mother so that the police could become involved.
Finally, in relation to the interview between the accused and the police, that rather than distancing himself from the opportunity to be alone with the complainant, as suggested by the prosecution, he has admitted that he was alone with the complainant and her brother when her mother goes to the pokies at least once a week. Ms Demertzis suggested that he was genuinely answering questions, telling the police what the situation was and denied offending against SW.
Ms Demertzis submitted that the evidence of the complainant is unreliable. It lacks detail, there are frequent inconsistencies between what she said in court and what she told police, and even what she told the court from one day to the next. It was submitted that her age and her vulnerabilities cannot be sufficient to explain the difficulties that arise in her evidence. There is simply not a safe foundation for a verdict of guilty.
Discussion
SW was a very shy witness, who as I said, was reluctant to speak about sexual matters. However, the events that she gave evidence about in the first instance, appeared to have sufficient detail and she appeared to be able to compartmentalise into the events as she recalled them. However, when she was cross-examined her uncertainty and unreliability was patently exposed. I accept that she is a vulnerable individual. I accept that events that she is recounting she says occurred at least four years ago and probably longer prior to her giving evidence, when she was a young child.
If I thought that her difficulty related to a lack of memory in relation to these events, that would be a feature to take into account. It may be explained by her inability to explain and articulate some events that have occurred in her life. It may also be explained because of a natural embarrassment to discuss such intimate issues in a public forum. However, my concern in relation to her reliability arises as a result of her expressed certainty in relation to the events and the lead up to the events but when these events are scrutinised, despite being certain about details, she is significantly inconsistent in relation to them. There was no support for her evidence in relation to the sexual allegations. I accept that there was opportunity, perhaps on a very regular basis for these events to have occurred whilst her mother was at the pokies however, the evidence elicited in court was not of regular sexual activity between her and the accused, but activity that occurred on a one-off basis, albeit that it covered a range of sexual activity.
The evidence that was led in relation to the accused having used his phone as a form of bribery to engage her in sexual activity, when analysed appears to be no more than her being told that she could only use his phone if she behaved. It does not appear on her evidence to be linked in any way to the sexual activity. There is no evidence before me that the accused went into her bedroom at night, or that he was suspected in any way by SW’s mother of being in the bedroom at night, to link the clothing being dishevelled to the conduct of the accused.
I have been cautious in relation to the use of the evidence of OW. It is clear that OW, in the past, has had an issue in relation to alcohol, it is clear that her children have been removed from her and were removed from her once again in September 2017.
I accept that SW complained to MW in about September 2017. I accept that she said she was being touched by her stepfather. I accept this is consistent with some of her allegations. The evidence also reveals how the allegations first came to light. I also accept that when questioned by the police, SW told them that the accused had not touched her and that he was a nice man. I accept that there are a raft of reasons why SW may have been untruthful with the police at that time, including being scared of the accused, being removed from the home or even having to remain in the home. However, none of these explanations take me any further as being able to assess that SW is a credible and reliable witness in respect of the charged offence.
A complaint has limited work to do in the proof of a sexual offence. It can only buttress the credibility of the complainant. This evidence cannot however, make the evidence of SW more reliable.
I accept that SW has some limitations in terms of her capacity to explain and articulate events in her life. However, I was given very little information about that and whether that has contributed to her inconsistencies and unreliability in this court. It may have done so, but without a firm foundation upon which to consider this, it would be improper to do so.
I was invited by the prosecution to find that the accused was not truthful in his interview. However, no evidence was led through the complainant or her mother or any other person who may have been able to substantiate the untruths that it was said the accused had told in an effort to distance himself from the complainant. The statements are not inherently unreliable. In those circumstances, I cannot reject his denials.
At the end of the day I must be satisfied beyond reasonable doubt that two or more unlawful sexual acts have occurred during the course of the relationship between the complainant and her stepfather. Whilst I have concerns, this evidence does not rise to the standard that is necessary to dispel any reasonable doubt in relation to her allegations.
I am not satisfied that the prosecution has proved two or more unlawful sexual acts occurred. I, therefore, find the accused not guilty of the offence of maintaining an unlawful sexual relationship with the complainant.
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