R v D, AJ - [2009] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, AJ
Criminal Trial by Judge Alone
[2009] SADC 93
Reasons for the Verdict of His Honour Judge Nicholson
31 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Accused charged with one count of persistent sexual exploitation of a child contrary to s50 of the Criminal Law Consolidation Act 1935 - trial by judge alone - verdict, not guilty.
Criminal Law Consolidation Act 1935 s50; Juries Act 1927 s7; Evidence Act 1929 ss 9 and 13, referred to.

R v D, AJ
[2009] SADC 93
Introduction

The accused, AJD, was charged on an information dated 2 June 2009 with the offence of persistent sexual exploitation of a child, contrary to s50 of the Criminal Law Consolidation Act 1935. The accused elected pursuant to s7 of the Juries Act 1927 to be tried by judge alone.
On the morning the trial was due to commence, 3 June 2009, the accused filed a Rule 9 notice seeking an order that parts of the proposed evidence of the complainant’s “Nanny”, MS, as set out in her declaration dated 4 January 2009, be excluded. For the reasons that can be discerned from the transcript,[1] I decided to receive the contested evidence de bene esse in the event that it were to be adduced, and to determine its admissibility at the end of the trial. In due course, I will need to make a ruling with respect to this evidence. I reserved my decision at the conclusion of the trial on Friday, 5 June 2009.
[1] T18 – 20.
As at 3 July 2009, the last day of the June Port Augusta circuit, I had not completed my reasons for verdict. However, I had reached a firm conclusion. In all the circumstances, it was appropriate that I entered a verdict then rather than delay this aspect of the matter further. On 3 July 2009, I entered a verdict of not guilty and indicated that I would publish my completed reasons at a later date. These are those reasons.
The Charge
The offence with which the accused was charged is set out and particularised on the information in the following manner:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[AJD] between the 1st day of January 2007 and the 30th day of June 2007 at [W] committed more than one act of sexual exploitation of [LW], a person under the age of 16 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were:
(a) unlawful sexual intercourse with LW, a person under the age of 14 years by placing a finger into her vagina at the defendant’s house ….
(b) unlawful sexual intercourse with LW, a person under the age of 14 years by placing a finger into her vagina at the defendant’s house ….
(c) indecently assaulting LW, a person under the age of 14 years, by placing his hand on LW’s vagina at the defendant’s house ….
It was the Crown case, in essence, that the complainant, LW, had been living with the accused and her biological mother for a period up to and including the first six months of 2007. The accused, a New Zealander by birth, had been married to LW’s grandmother and was LW’s step-grandfather. LW’s grandmother had died some years previously. LW complained that, during the first six months of 2007, the accused would come into her room and touch her “billy” (vagina), insert his finger in and lick her billy “heaps of times”. The Crown asserted that sexual interference of this nature continued throughout this period.
Legal Considerations and General Directions
On the Director of Public Prosecution’s application, pursuant to s13 of the Evidence Act 1929 and with no opposition from the accused, I permitted the complainant to give her evidence from outside the courtroom and using closed circuit television. She also had the benefit of a court companion throughout the giving of her evidence. I remind myself that I am not to draw from the fact of these arrangements any inference adverse to the accused, nor am I to allow these arrangements to influence the weight, if any, that I give to the evidence of the complainant.
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following.
(i)An accused person is presumed to be innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence charged. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
(iv)I have reviewed the standard directions often given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I specifically note that the accused was not obliged to give evidence; he always had the right to remain silent in answer to the charge leaving it to the prosecution to satisfy me of all of the elements of the charge. However, in this case, the accused elected to give evidence on oath and to expose himself to cross-examination. Whilst I will assess his evidence in the same way as I assess the evidence of any other witness, I specifically remind myself that by going into the witness box, he did not assume any burden of proof.
(v)Finally, I remind myself that it is not a question of preferring one version of events over any other. The sole task before me is to determine whether or not the prosecution has proved each element of the charge beyond reasonable doubt. If I am unable to say where the truth lies in this respect, it necessarily means that the prosecution has failed.
I turn now to set out the basic elements of the offence charged. To succeed, the Crown must prove beyond reasonable doubt that:
(i)the accused committed more than one act of sexual exploitation of LW;
(ii)the proved acts of sexual exploitation took place over a period of not less than three days; and
(iii)LW was, at the time, a child under the prescribed age.
The third element was not in contest. LW was born on 24 February 2001[2] and was either 5 or 6 at the time of the alleged sexual exploitation. Further, it was not in contest that each of the alleged acts particularised in paragraphs (a), (b) and (c) on the Information would, if proved, qualify as an act of sexual exploitation as that term is defined for the purposes of this offence. In short, the task before the Crown was to prove that at least two of the particularised allegations were perpetrated by the accused and occurred in circumstances that satisfied element (ii) above.
[2] Exhibit P3.
The Crown case was dependant on the acceptance of the complainant’s evidence and corresponding rejection of the accused’s denials. In support of the credibility of the complainant, the Crown also relied on evidence of complaint heard by her Nanny, MS, and evidence from Dr Jane Edwards concerning the results of a physical examination of the complainant.
The Prosecution Evidence
LW was eight at the time she gave evidence. After discussing the matter with counsel, I decided to first conduct an enquiry into the question of whether or not the presumption under s9 of the Evidence Act 1929 that LW was capable of giving sworn evidence might be rebutted. At the end of this enquiry,[3] I found that I was satisfied that LW understood the difference between telling the truth and telling a lie, that I had told her it was important to tell the truth, that she understood this and that she indicated she would tell the truth. I was not satisfied that she had a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Accordingly, I ruled that I would receive her evidence unsworn. I came to this conclusion not without some hesitation. I am not an expert in these matters. However, I did have a concern, after questioning LW, which concern was heightened when I heard her give her evidence, that her cognitive abilities – particularly her verbal understanding and communication skills – might be significantly less than those of the average 8 year old girl. Whilst ultimately I was satisfied that she had a conceptual[4] understanding of the difference between telling a lie and telling the truth, such understanding as she had was clearly very unsophisticated. In addition, whilst I was satisfied that she understood that it was important to tell the truth in the sense of only speaking of things she remembered and not to make something up if she didn’t know or couldn’t remember, I doubt very much that she had any sense at all of the serious consequences that might follow if her evidence were to be materially inaccurate for whatever reason.
[3] T36-41.
[4] She answered “no” to the questions do you understand what it means to tell a lie/tell the truth; T37.
I have no doubt that LW did her best to tell the court the things she thought she could remember and in a number of respects her evidence was clear and cogent. She consistently told the court that her step-grandfather, the accused, to whom she referred by his nickname, put his finger in her “billy” [vagina] and licked her in her billy. She agreed with the prosecutor’s question that her billy would hurt the next day. Whilst the questions on this latter topic, strictly, were not leading, they were in my view quite directive in all of the circumstances. LW would have understood what answer counsel was looking for. To this point, LW’s evidence was clear and she was unshaken in cross-examination.
However, she was unable to give a consistent account as to or any real detail of when and in what circumstances this conduct took place, although she did say that it occurred in the accused’s bedroom “heaps of times”. When pressed on this by counsel for the Director, the following exchange occurred:[5]
[5] T46.
QWould it happen more than once a week.
AMore.
QSorry.
AMore.
QDo you know what I mean if I say “one month, two month”. Do you know what I mean by that.
AYes.
QYou know what a “month” is.
ANo.
QHow many times a week would he touch you.
AI don’t know.
This topic was taken up in cross-examination:[6]
[6] T73-74.
QYou’ve talked about [the accused] touching you. Can you remember the first time that you say he touched you.
ANo.
QYou can’t remember what day it was.
ANo.
QYou can’t remember whether it was night-time or daytime.
ANo. You can’t remember what you were wearing.
QNo.
AYou can’t remember what [your grandfather] was wearing.
QNo.
AYou’ve talked about it happening lots of times, heaps of times.
QMm-hmm.
ADo you say that that was all together on the one day.
QYes, heaps of times.
ABut on the one day, or different days.
QDifferent days.
ADo you remember what those other days were.
QNup, I can’t remember.
AYou don’t remember how many days there were between the times that you say he touched you.
QNup. No.
AYou don’t know how old you were when he is supposed to have touched you. Did you understand my question.
QNo.
ADo you remember how old you were when you say he touched you.
QFive.
ACould you have been four when he touched you.
QYes.
Earlier in the cross-examination, the following exchange occurred:[7]
[7] T55-56.
QDo you know how many days there are in a week.
ANo.
QDo you know how many weeks there are in a year.
AFive.
QDo you know how many days there are in a month.
AFive days.
QIs a month a long time.
AI don’t know.
QWhat was that. I didn’t hear the last bit.
AThat’s a hard one.
QDo you know how many minutes there are in an hour.
ANo.
QDo you know how many hours there are in a day.
ANot sure.
QDo you know how long you have been at court today.
ANo.
LW was cross-examined on a number of matters concerning her living arrangements and her interaction with the numerous people – usually members of her extended family – that she had an involvement with during the first 5 or 6 years of her life. It is clear that she had significant contact with a number of male and female people during the period she lived with her mother at the accused’s house and before then. In contrast to her evidence concerning the essential allegations, she was able to recall very little about events and people in her life and the circumstances of her life.
The physical conditions in which LW lived when at the accused’s house were very poor. The house was extremely messy and dirty. Notwithstanding the accused’s evidence that LW had a shower every day, it is plain that personal hygiene was not a high priority in the house. This finding is of some relevance for reasons I will come to shortly. LW also said that she told her Nanny, MS, that “he touched me” and that she had a sore “billy”. In this context, she said she had a sore billy “because he touched me in the wrong place”. However, she could not remember how long after the accused had last touched her that she said these things to her Nanny.
MS also gave evidence for the prosecution. She said that she has known LW since LW was about 6. She knew that she was living with the accused and two sisters, one of whom was LW’s mother. MS described an incident in mid-2007 when she saw LW on the road walking back from the roadhouse near where LW was living. She gave her a lift in the car. LW told MS “I’m sore down there, Nanny, can I come home with you”. She also said “he puts his finger down there” and indicated her pants area. MS took LW home and gave her a bath. She said that LW was not clean. After the shower, MS observed a small smear of blood on the towel. LW indicated that her vagina was sore and MS observed that it was red and put some cream on it.
Shortly after that, Families SA became involved and LW was placed in the care of MS. A medical examination was arranged with Dr Jane Edwards. Dr Edwards is a paediatrician in the Child Protection Unit at the Women’s and Children’s Hospital. She is highly experienced in performing forensic medical examinations of children. Dr Edwards conducted a genital examination of LW on 22 June 2007. She observed generalised redness of the tissue – vulvovaginitus of the non-specific type. She observed that the hymen was in tact and that there was no sign of recent injury by way of abrasion or otherwise to the hymen or genitalia as a whole. However, she said that, depending on the severity, minor injuries can heal within a few days.
According to Dr Edwards, her observations were consistent with a digital penetration some days earlier. However, she also said that the generalised redness and soreness could have had a number of other, quite innocent, causes. This problem arises or is exacerbated in very young girls because their lack of oestrogen causes the tissues in that area to be thin and sensitive to irritants. For example, anything that is rough or abrading to the surface, such as rubbing with a towel, will cause inflammation, soreness and, at times, bleeding. It is a common condition in children and is associated with poor hygiene.
I return to the evidence of MS. I accept that the comments made to her by LW were spontaneous and that what MS said that LW told her was sufficiently consistent with what LW told the court that she had told MS. However, a difficulty in the path of accepting the evidence of MS here as evidence of recent complaint is that I have no time frame within which to ascertain whether or not the “complaint” was made at the first reasonable opportunity in the circumstances. In this respect, and because of the equivocal nature of Dr Edward’s evidence, I cannot infer beyond reasonable doubt from the soreness and the fact of the blood on the towel in MW’s bathroom and LW’s “complaint” that the act of touching which LW told MS about occurred very soon prior to their meeting. I am conscious of the fact that the notion that a complaint needs to be made at the “first available opportunity”[8] can be somewhat flexible and that factors such as the age of the complainant and the circumstances they find themselves in can be significant. However, in the present case, I have very little evidence about the living circumstances of LW – particularly with respect to her relationship with her mother and other adults in her life. I have little capacity to ascertain what opportunities she had to make a complaint at an earlier time and, as I have said, I also have no time frame within which to locate the “complaint” to MW. In addition, on the Crown case, the “complaint” to MS can only refer to the last of a number of incidents of a similar type said to have taken place over a six month period.
[8] Notwithstanding that the Information at trial was filed on 2 June 2009, the Crown presented its case on the basis that the Evidence Act 1929 in the form that would have applied had the original Information dated 7 April 2008 been proceeded with, applied. Specifically, the Crown placed no reliance on s34M.
Notwithstanding these reservations, I am prepared to find that the conversation with LW recounted by MS occurred and that, for present purposes, it comprises evidence of a recent complaint. As such, it provides some evidence of consistency with the account given by LW in evidence.
However, and notwithstanding the evidence of MS, I was left with these concerns about the account given by LW.
(i)Her very young age, obvious immaturity and apparent cognitive limitations have caused me to proceed cautiously before accepting what LW said at face value. I have directed myself analogously with the requirement of s9(4) of the Evidence Act 1929.
(ii)I formed the impression that LW had been taken through her account on a number of occasions and quite possibly by members of her extended family in addition to the prosecuting authorities.
(iii)I accept that LW was clear about the essence of her complaints. However, there was much about her evidence that lacked specificity, detail and was inconsistent. I became concerned, when hearing her evidence, that she knew what she had to tell the court but that by the time she gave her evidence she may not have been speaking from any actual recollection of events.
(iv)LW had no or rather demonstrated no understanding of time and related concepts. In these circumstances and whilst the phrase “heaps of” times is well and truly part of the common vernacular, I was not confident that LW understood this phrase or what she was intending to convey by it.

The accused gave evidence and consistently denied the allegations. He gave his evidence in a frank and open manner. He made appropriate concessions in cross-examination about his lifestyle while LW was living in his house. In his view, he cared for LW appropriately in his role as grandfather and within the resources available to him. He was not an unimpressive witness.
At the end of the trial, I was faced with two conflicting bodies of evidence. In my view, it is highly likely that some act or acts of digital penetration or touching of LW occurred either by the accused or someone else. However, after hearing and reviewing the competing bodies of evidence on the question of whether or not the accused committed any one or more of the particularised allegations of sexual exploitation, I was and remain not satisfied beyond reasonable doubt about where the truth lies with respect to this first element of the charge.[9] I was not persuaded that I should reject the accused’s denials. In these circumstances, I am left with a reasonable doubt as to the guilt of the accused.
[9] R v Calides (1983) 34 SASR 355.
I express no view on the, now, hypothetical question of whether or not the second element of the charged offence would have been made out had I accepted the evidence of LW to the effect that the accused committed at least two of the particularised allegations. However a finding in favour of the Crown here would have required the drawing of an inference, beyond reasonable doubt, that this second element had been satisfied notwithstanding LW’s inability to articulate an understanding of time frames and intervals of time.
These are the reasons for the verdict of not guilty of the charge of persistent sexual exploitation of a child that I entered in favour of the accused on 3 July 2009.