R v D - [2019] SADC 176

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D
Criminal Trial by Judge Alone
[2019] SADC 176
Reasons for the Verdicts of Her Honour Judge Chapman
27 November 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with committing six sexual offences in relation to two sisters in 1985. The evidence is insufficient to prove any of the offences beyond reasonable doubt. Verdicts of not guilty on all counts.

R v D
[2019] SADC 176

The accused is charged with committing sexual offences in 1985 against two complainants (KM and AL) who are his sisters-in law. They are his wife’s younger sisters. They were teenagers at the time of the allegations.
The accused is charged with indecent assault of KM. It is alleged that on 5 January 1985 he indecently assaulted her by kissing her mouth and touching her breasts (count 1).
The accused is charged with committing five offences against AL. There are two counts of indecent assault and three counts of unlawful sexual intercourse. The first indecent assault upon AL (count 2) is alleged to have occurred on the same occasion as the indecent assault upon KM on 5 January 1985. The three counts of unlawful sexual intercourse (counts 3-5) are said to have occurred at the accused’s home. The second count of indecent assault (count 6) is said to have occurred at a motel in Adelaide.
Background
The two complainants are sisters in a family of nine children. The complainant AL is the sixth child, born in 1969. The complainant KM is the seventh child, born in 1971. They each have six older sisters and two younger brothers. The eldest child, born in 1956, is married to the accused.
Both complainants gave evidence their childhood was a very unhappy one. KM described herself as a very frightened little girl. Their father was an alcoholic who was violent toward his wife and children. Each of them had only one vivid memory of their mother which was seeing her leave the family home with a suitcase in hand. Their mother never returned. AL thought she was about six years old at the time.
The younger children, including AL and KM, went to live with their nanna nearby, but she died in 1977.
The four youngest children, including AL and KM, were placed in foster care for about one year in 1978. They both described that time as a horrible experience.
They returned to live with their father and his new wife. They described an unloving and hostile environment. I will not set out the details of their experiences (including being frequently locked out of the house and physically assaulted), but their evidence was they lived through a time of terror perpetrated mainly by their father, but also by their step-mother.
AL gave evidence she used to go and stay with her eldest sister, the accused and their children on weekends or school holidays. She described herself as her sister’s favourite. She said initially she got on well with the accused. She also got on quite well with their children because they were closer to her age than most of her sisters.
In 1983, AL went to boarding school. Some weekends she went to stay at her father’s place. Occasionally she went to stay with her older sisters.
Uncharged acts – AL
AL gave evidence the accused would kiss and cuddle her. She thought it probably started some years prior to counts 1 and 2. It happened whenever she and the accused were alone; inside and outside the house, in a car or on a tractor. The kisses were ‘like a pash, a sloppy wetty wet’. The cuddle was ‘like a bear hug cuddle and touching, you know, breasts, vagina’. That was on the outside and inside of her clothes. Apart from that, she was happy at the house with her sister, the accused and their children.
During cross‑examination, she gave evidence the accused did not go further than a kiss and a cuddle. It is unclear whether that is different from what she described in examination‑in‑chief.
Counts 1 and 2 – 5 January 1985
On 4 January 1985, AL and KM were staying at their father’s home. He was exceptionally angry. He woke them up and told them to pack their bags because he was going to take them ‘to welfare’. He left to pick up their brothers. They took that opportunity to leave, running to their sister’s nearby house. She was not home, but they used the phone to call the sister who was married to the accused.
That night AL and KM slept at the home of their older sister and the accused. They slept in separate beds in the same room.
AL gave evidence that when she woke up the next morning, the accused was kissing her and cuddling her. He was also touching her breasts over her clothes. She described the kissing as ‘a pash … a sloppy, wetty wet pash’. She looked over at her sister a few times whilst that was happening and saw that she was asleep.
AL said he then got up and went across to KM. He was kissing and cuddling her. She could not remember whether he touched her or not. She described the kissing of her sister as ‘like a pash as well’. Her sister was saying ‘No, no, no’. She said he sat there for a bit then left the room. The two sisters just sat there and did not really say anything. They then got up, had breakfast and acted like nothing had happened.
She said KM stayed only for a few days then moved out to live with another sister. AL remained living there and continued to go to boarding school.
KM gave evidence that she woke up to see the accused over her sister, AL. She did not really see anything that he was doing. She said he was trying to kiss her but that was based on how he was positioned over her. When asked whether she said anything to them, she described her recollection as very sketchy. The accused then came over to her and tried to give her a ‘proper kiss’ on the mouth. He also touched her breasts underneath her clothing; ‘grabbed me by the boobs’. She said, ‘No. Let me go. I’m out of here’. She got up and walked out of the room and left him there with AL.
Count 3
AL gave evidence she met the man who is now her husband in March 1985. They soon became boyfriend and girlfriend. She gave evidence that between 5 January 1985 and when she met her husband‑to‑be in March 1985, the accused had anal intercourse with her. It is alleged by the prosecution that between 5 January 1985 and 31 March 1985, the accused had unlawful sexual intercourse with AL, a person under the age of 17 years by inserting his penis into her anus (count 3).
AL gave evidence the offence occurred in the bedroom of the accused’s two sons. She cannot remember where her sister or the children were or why she and the accused were in that room. She cannot remember whether the accused undressed her or whether she got undressed. She was on her back on the bed, the accused was over the top of her on his knees and ‘he put his penis in my backside’, which hurt. She thought he got dressed and walked out again. She got dressed and left. There was not a word spoken by either of them. She could not remember if he ejaculated or recall what brought the incident to an end. She gave evidence ‘I just know what he did and it hurting and I sort of went numb, sort of blank, black out and yeah it was sort of all over’.
Count 4
AL gave evidence anal intercourse happened a second time and that was also before she met her husband‑to‑be. It is alleged that between 5 January 1985 and 31 March 1985, the accused had unlawful sexual intercourse with AL, a person under the age of 17 years by inserting his penis into her anus (count 4).
She says it must have been a weekend, or it could have been school holidays, but she could not remember. Nor could she remember where her sister and the children were. She was in her bedroom that afternoon, lying on her bed. When the accused came walking in the door, she smiled at him thinking she was going to go and help him or something. She cannot remember whether she was undressed or he undressed her, or whether she was only half undressed. He was kissing, touching and cuddling her. He was touching her on the breasts. She was lying on her back when he put his penis into her backside but she could not remember how that felt, probably because she went numb. There was nothing said between the two of them. She does not know how the incident came to an end, including whether he ejaculated.
Count 5
AL gave evidence anal intercourse next happened after she had met her husband‑to‑be. The particulars of count 5 were originally that between 5 January 1985 and 31 March 1985, the accused had sexual intercourse with AL, a person under the age of 17 years by inserting his penis into her anus. I granted an application by the prosecution after the close of evidence to amend the end date to 1986. There was no actual prejudice identified by the defence; to the contrary, the defence anticipated from the outset of the trial that the evidence would be that the incident occurred outside the date range.
AL gave evidence this act of anal intercourse occurred in the accused’s bedroom. The children were in bed and her sister was not home. She does not know whether her sister had gone away for the weekend, or whether she had gone out.
Her husband‑to‑be had been over visiting that evening. He left at around the 11.00pm curfew. AL was sitting at the back door having a cigarette when the accused came out from his bedroom. He started kissing and cuddling her and touching her on her breasts. She then followed him to his bedroom and they ended up having anal sexual intercourse in his bed. She thinks she undressed herself and he got undressed. She then went back to her own bed and got up the next day like nothing had happened. She never spoke to the accused about it.
Initial complaint
AL gave evidence she spoke to her husband‑to‑be about the accused about a month or two after count 5. She wanted it to stop, but was too scared to say no. It crossed her mind to tell her father, but she knew she would get the blame.
She asked her husband‑to‑be could he ‘please ask the accused to stop messing with me’. She did not go into much detail because she was embarrassed, scared and did not have a lot of confidence within herself. The following weekend she watched him speak to the accused from the kitchen window, but could not hear what was said.
AL’s husband gave evidence about an occasion when AL told him the accused was messing with her and asked him to speak to the accused about it. She did not give any more detail and he did not press her for detail.
He spoke to the accused about a couple of weeks later outside the accused’s house. He told the accused that he loved AL and wanted to marry her. He thought that might make him leave her alone. He did not confront him at that point because he felt a bit nervous and just could not do it.
For the accused, Mr Morrison submitted the ‘complaint’ by AL to her husband‑to‑be was not admissible pursuant to s34M of the Evidence Act, 1929 (SA) because the words ‘messing with me’ were insufficient to make the ‘complaint’ referable to a charged sexual offence. In order to be admissible pursuant to s34M, details are not required but the ‘complaint’ must be referable to charged conduct. In my view, the words used by AL should be considered in the context in which she uttered them and in accordance with a common sense approach. She was relaying to her new boyfriend an issue with her brother‑in‑law. The phrase ‘messing around with me’ has an ordinary everyday meaning of unwanted sexual conduct. I consider the words sufficient to be referable as a complaint to counts 2 to 5.
I do not use the complaint for the truth of what was said. It is admissible as being potentially relevant to the consistency of AL’s conduct, in terms of what was said and when it was said. I do not consider it has much weight in terms of consistency of AL’s conduct in terms of what was said given the very limited content of the complaint. I do consider it has more weight in terms of consistency of AL’s conduct because of when she said it. There may be varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. The fact AL said something to her husband‑to‑be relatively soon after meeting him supports her credibility. He was an ‘outsider’, that is, not a member of her family. She wanted something which was happening within her family to stop.
Count 6
AL gave evidence she went with the accused, her older sister and the children to Adelaide where they stayed at Scotty’s Motel. She thinks it was the 1985/86 holidays. At one stage, they were all in the outdoor spa. Her sister left to put the children to bed. AL stayed in the spa with the accused. He came across and started kissing her, ‘pashing’, and touching her breasts. She said she would go and help her older sister. She got out of the spa saying she was going to help her older sister.
The particulars originally alleged an indecent assault between 5 January 1985 and 31 March 1985. I granted the prosecution application to amend the particulars to 31 March 1986 for the same reason as the amendment to count 5.
Complaint - elaboration
AL said that when she got home from Adelaide, she spoke again to her husband‑to‑be. At some stage before then she had told him the accused was having sex with her, but did not tell him where or anything. When she got back to Adelaide, she said to her husband‑to‑be ‘He’s still doing it. Can you please ask him to stop again?’.
She believed her husband‑to‑be spoke to the accused the following weekend at either the Christmas party, or the occasion when the Failie was in town. She said that was the wooden sailing ship that was to do with the bicentennial and was travelling around Australia.
The sexual contact from the accused then came to an end.
AL’s husband gave evidence AL told him it had not stopped. That was in the week following her initial complaint. She gave him a few more details. He told her the accused was molesting her. She said something about his penis and described it. He did not ask for any more details because he did not want to know. He was young and it was too much for him. She asked him to speak to the accused again and he said he would. He knew it was pretty serious and he had to do it.
I consider this complaint by AL to her husband to be admissible as an elaboration of the initial complaint. It is potentially referable to counts 3 to 6. There is a little more information than the initial complaint, though not much. It is not admissible to prove the truth of what she said. Again, I do not consider it has much weight in terms of AL’s consistency on the limited content of the complaint. I do consider it supports her credibility in terms of consistency of conduct because of when she said it. The unwanted sexual conduct had not stopped following her first complaint. She still needed help to have it stop.
Alleged admission
AL’s husband gave evidence he spoke to the accused the day the Failie came to Venus Bay, which occurred on 9 February 1986. The accused was pitching a tent for the visit. He asked if he could speak to the accused, but the accused said he was too busy. He then said ‘no, look this is pretty serious. I really do need to talk to you’. The accused then agreed to talk to him. He told the accused that AL told him that you’ve been messing with her. He told him it had to stop otherwise he would tell his wife. He said the accused did not really respond.
About a week later, the accused told him that it had stopped. He did not speak to the accused about that again.
Police interview of accused
The accused was interviewed by the police on 4 April 2017. He said he would give the complainants a cuddle or a kiss in a family way. He was told the complainants had said things ‘went a bit further than that’ to which he responded, ‘oh very minor’. His wife was then present for the remainder of the interview. He denied the allegations. He said there were only ever two beds in his sons’ bedroom. He said, to his knowledge, AL never went to Adelaide with them. He denied being told by AL’s husband‑to‑be to stay away from AL.
Assessment of evidence
It is necessary to consider each count separately.
The prosecution case on count 1 relies upon the evidence of KM, with AL as a potential witness. The prosecution case on counts 2 to 6 relies upon the evidence of AL, with KM as a potential witness for count 2.
The evidence of uncharged acts is only admissible in regard to consideration of the charges involving AL. If I find them proved, then the evidence would suggest the accused had a sexual interest in or sexual attraction to AL and a tendency to act upon it as occasion presents. The evidence may also be used to put in context count 2, namely, that it did not come out of the blue which may in turn explain why AL reacted in a particular way and why the accused may have been confident to do what he did. If I find them proved, I cannot reason that the accused is a bad person or the type of person who would commit the charged offences or that he must therefore have committed the charged offences.
In regard to counts 1 and 2, Mr Morrison, submitted that collusion between KM and AL could not be excluded. For example, Mr Morrison submitted there have been variations of KM’s account as to whether she said ‘no, no, no’ to the accused or ‘no’ to the accused. This was said to suggest KM has tried to bring her account more in line with that of AL. There was evidence from Detective Monks that he contacted KM in March 2017 and told her there were differences with AL’s statement. However, I find that was in relation to another separate investigation. In any event, I do not consider a change in the account of how many times KM says she said ‘no’ has any significance.
There was evidence that AL and KM were close as teenagers such that Mr Morrison submitted it was unlikely they never talked about it. Whilst I have some hesitation in accepting their evidence they have never discussed the occasion, the fact of a discussion might be suggestive of contamination but is not in itself indicative of collusion. Although they are sisters, I found AL and KM to be quite different from each other. As adults, there did not appear to be much warmth or closeness between them. They live together, but it seems they pass each other by and it is more akin to a house sharing arrangement. KM made a number of disparaging remarks about AL during her evidence. She was, to some extent, dismissive of the occasion the subject of counts 1 and 2 in terms of her involvement. I do not consider they have put their heads together about it. Each of them denied colluding with the other. Their accounts of the relevant occasion differ. Their attitude towards it differ markedly. I am able to exclude the possibility of their collusion in relation to the occasion which is the subject of counts 1 and 2.
There are a number of discrepancies between the evidence of AL and of KM in regard to what happened in the bedroom on 5 January 1985:
(i)AL gave evidence that when the accused was indecently assaulting her, she saw that KM was asleep. KM gave evidence she was awake and saw the accused was trying to kiss AL.

(ii)KM gave evidence the accused tried to kiss her. AL gave evidence the accused was kissing KM.

(iii)KM gave evidence that after the accused tried to kiss her and touched her breasts, she left the room so that AL and the accused were there together. AL gave evidence the accused left the room and left AL and KM in the room together.

KM presented as a reluctant witness who was understandably bitter about the childhood she had experienced. She said her memory of the particular occasion was limited – ‘so many years forgetting all this stuff and then you want me to try and remember like it was yesterday; I can’t’. I consider she was doing her best to remember, but was aware of the difficulty of reliable recall after so many years – ‘look, you play it through your mind so many times’.
The evidence given by AL in relation to counts 3 to 6 was very much limited to the act itself and the location. There was no detail of surrounding circumstances. That observation is not intended as a criticism of her. The acts are said to have occurred about 34 years ago. Lack of detail is almost inevitable. There is some discrepancy between her evidence and what the accused said in his interview with police. She said there were three beds in the boys’ bedroom (count 3) whereas the accused said there were only two beds. She said she went to Adelaide on holiday with the family (count 6) whereas the accused could not recall that ever happening. I have taken the accused’s statements into account when considering whether the prosecution has proved the offences beyond reasonable doubt, although I have kept in mind their lesser weight because they were not made on oath or the subject of cross‑examination. I keep firmly in mind the accused is not required to prove those matters; rather, the prosecution is required to disprove them.
In relation to counts 3 to 5, AL gave evidence the accused did not wear a condom. Her husband gave evidence that later during their marriage she told him the accused ‘had put his penis up her bum and that he had used a condom’. I accept her husband’s evidence on that topic. The only use I can make of it is in regard to its impact upon the evidence of AL. I consider it does have some adverse impact upon the reliability of her recall of those alleged events.
The evidence of AL was that the accused never tried anything sexually after she was married. AL’s father gave evidence that in 2004, AL told him that the accused was ‘still trying to get her into bed’ after she was married. I have no hesitation in rejecting his evidence on that topic. He presented poorly as a witness. Despite admitting he was a ‘very bad father’, he denied ever being violent toward his second wife. I reject that based on the evidence of AL and KM, which I accept on that topic. Whilst AL and KM said they were mistreated by their step‑mother, their father was overly keen during his evidence to pour dislike and scorn on to his second wife, describing her as a ‘very evil woman’. He was also an unreliable witness, stating that their nanna died some ten to twelve years after his first wife left, whereas in fact it was much less than that. I do not use that evidence from AL’s father as proof of any inconsistency on the part of AL or for any other matter.
AL gave evidence that from 2004, her mental health was poor. She has been diagnosed with schizoaffective disorder and has taken antipsychotic medication since she was 35. In 2005, she was admitted to hospital with symptoms of psychosis. In 2008, she was admitted to Glenside Hospital after she stopped taking her medication. In 2015, she was detained again.
She was cross-examined about a number of statements she made to health professionals between 2004 and 2018. She admitted making some of those statements, but either could not remember or denied making most of the statements. Those prior statements were proved as agreed facts. They are not admissible to prove the truth of their contents, but rather as having potential impact upon the credibility and/or reliability of AL’s evidence in court. I do not consider her denials of making those statements or inability to recall those statements impacts upon her reliability or credibility regarding these allegations. They do not relate to the allegations or to the period of time when the relevant events are alleged to have occurred.
I do not consider the evidence of AL’s mental health has an adverse impact upon her overall credibility. There is one aspect of that evidence which does have an adverse impact upon her reliability. She gave evidence that when she was unwell, she had flashbacks about her childhood, including the alleged abuse by the accused. I am cautious about the impact that may now have on her reliable recall of those events. There was not much evidence in that respect. I note she did say she was able to then distinguish what was real from delusional thoughts. I am not suggesting that she has been delusional about her recall, but I do need to exercise caution in light of her evidence she had flashbacks of the sexual contact with the accused during the period of time when she was unwell.
AL was cross-examined about a sexual incident involving a man known to AL and KM. She said she could not remember such an incident. KM gave evidence that such an incident did in fact occur. Given the nature of the incident, it is something which AL might be expected to remember, despite the passage of time. I found her responses to be consistent with her not wanting to remember, which is understandable, but presents me with some difficulty in relying upon her evidence to the necessary standard when she has given an oath to tell the whole truth.
AL was cross-examined about a time when she was 13 and was talking to a girl (GA) at high school about boys. AL gave evidence she told GA she had ‘done it’, that is, had sex with two males, one of them being the accused. AL remembered the conversation clearly. She agreed that another male had penetrated her by that time, but that the accused had not. She said all the accused was doing ‘at that stage was kissing and cuddling and touching me and I just said them both’. I received transcript of evidence of GA who said she knew AL at school, that AL was younger than her and she could not recall ever having such a conversation with AL. From GA’s point of view, the discrepancy could well be explained by the passage of time. In assessing AL, whilst acknowledging her young age at the time, it is a concern that she was prepared to exaggerate and tell someone something that was not true.
I accept the evidence of AL and her husband regarding her initial and subsequent complaint. I accept the reason why AL did not go into much detail on the first or second occasion. Her purpose was to have the behaviour stop. I also accept the evidence of her husband about confronting the accused in 1986 after AL elaborated upon her initial complaint. He was a credible and straightforward witness. However, what AL’s husband said to the accused (that the accused was ‘messing’ with AL) lacks any detail and as such, I am not prepared to use the accused’s silence on that occasion as an admission to any of the charges. At best, it could be an admission to some sort of sexual interest upon which he had acted. The response to AL’s husband back in 1986 is as ambiguous as the comment the accused made to the police during the interview in 2017, namely, that ‘things went a bit further than that’.
I remind myself that the accused comes to court with a presumption of innocence. The prosecution must prove each element of each offence beyond reasonable doubt. There is no doubt that what has been alleged by AL and KM amount to the offences of indecent assault and unlawful sexual intercourse. The issue is whether the prosecution has proved those offences occurred. The accused did not give evidence, which is his legal right. I draw no inference adverse to him because he exercised that right nor do I use his silence as a makeweight to fill any gaps in the prosecution case. The accused has no onus of proof.
It has been approximately 34 years since these incidents are said to have occurred. There is significant forensic disadvantage to the accused because of the passage of time. The nature of that disadvantage is clear from the evidence of AL whose inability to recall any of the surrounding circumstances is understandable, but stark. The nature of the disadvantage is also clear from KM’s evidence when she admitted to the challenges of accurate recall following the playing of events over and over in one’s mind for years. Further, the accused has lost the ability to assemble evidence such as what he was doing in 1985, what his and his wife’s routines were, when AL visited from boarding school, whether they ever travelled with AL to Adelaide, the number of beds in his sons’ bedroom and the occasion in January 1985 when AL and KM ran away from home.
Having carefully considered all the evidence and considered each count separately, I am unable to find any of the charges proved beyond reasonable doubt. AL’s account of the uncharged acts is very vague with the result that I am unable to rely upon that evidence when considering proof of the charged acts concerning AL. In regard to count 1, KM admitted the difficulty of reliable recall so many years after the event. AL’s evidence about what she saw the accused do with KM in regard to count 1 (kiss KM) does not support KM’s account of what happened to her (tried to kiss her; touched her breast). Based on the available evidence given the passage of time, I am unable to be satisfied to the relevant standard in regard to the occurrence of count 1.
I have outlined issues of AL’s reliability that affect the proof of the allegations the subject of counts 2 to 6 to the standard of beyond reasonable doubt. In regard to count 2, KM did not really see much of what happened to AL other than the accused was positioned over AL. Based on the available evidence, I consider it probable the accused did sexually interfere with AL on at least a couple of occasions in 1985, hence her complaints to her husband‑to‑be around that time. However, given the passage of time the evidence is such that I am unable to be satisfied to the standard of beyond reasonable doubt as to the nature of that interference.
I find the accused not guilty of counts 1, 2, 3, 4, 5 and 6.