R v D, D R - [2012] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, D R
Criminal Trial by Judge Alone
[2012] SADC 171
Reasons for the Verdict of Her Honour Judge Bampton
5 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of persistent sexual exploitation of a child or in the alternative, one count of indecent assault.
Trial by Judge alone without a jury.
VERDICT: Accused found not guilty of count one and count two.

R v D, D R
[2012] SADC 171

The accused is charged with sexual offending against his step grand daughter, J.
He has been charged on the Information dated 29 October 2012 with Persistent Sexual Exploitation of a Child (s 50(1) of the Criminal Law Consolidation Act 1935) (“the Act”).
It is alleged that between 11 May 2001 and 31 January 2010, he persistently sexually exploited J, by touching her vagina, touching her buttocks, touching her breasts and procuring her to touch his penis.
In the alternative, he is charged with indecent assault (s 56 of the Act), in that between 11 May 2001 and 7 January 2005, at Wellington, he indecently assaulted J, by placing her hand on his penis.
The accused pleaded not guilty and elected for trial by Judge alone.
Background
J was born on 11 May 1997 and was aged 15 at the time of the trial. She is the elder daughter of her mother BT and her father MW. BT and MW have another daughter T, who is one year younger than J. Until the time of her parents’ separation, J lived with her parents and sister in Victoria.
The accused is the partner of J’s maternal grandmother, JD.
The accused commenced a defacto relationship with JD prior to J’s birth.
The accused and JD moved from Wellington to live in Murray Bridge in January 2005.
Following her parents’ separation in early 2000, J moved to South Australia with her mother and sister to live with JD and the accused.
At this time, the accused and his partner were living on a property outside of Wellington. After living with JD and the accused for a short period of time, J’s mother moved with her daughters to premises in Murray Bridge.
J attended Murray Bridge pre-school kindergarten in term two of 2001 and then attended kindergarten from term three 2001 to term one 2002. Thereafter, she attended St Joseph’s School Murray Bridge to December 2007. J moved the Victoria to live with her father in January 2008.
In 2010 J disclosed to a school friend that she had been touched by the accused. On 23 August 2010, she also told her sister, T, and stepmother, KW, of the allegations which led to the matter being reported to police.
Directions
The accused comes to this court with the presumption of innocence in his favour. He is regarded by law as innocent unless and until I find the charge against him proved.
The onus of proving the charges is on the prosecution. The accused does not have any onus of proof and to the extent that a defence is put forward, he does not have to prove it, the prosecution must disprove it.
The prosecution must prove the charge and every element or ingredient of the charge to my satisfaction beyond reasonable doubt. If after full and careful consideration of the charge, I am unable to decide where the truth lies, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty.
Forensic Disadvantage
There was a period of 11 years between the first date specified in the Information and the trial of this matter. The delay in the prosecution of the accused has resulted in a disadvantage to him. As such, section 34 CB of the Evidence Act 1929 applies. The forensic disadvantages are that if there had been an earlier complaint, the accused would have been in a position to remember back to the relevant time and to remember what, if anything, happened or he might have been in a position to remember who he was with so as to produce evidence discounting the evidence of J.
There may have been an opportunity for the accused to interview potential witnesses and for other forensic investigations to be undertaken. Although as I have already directed myself, the accused does not have to prove anything.
I have taken these potentially significant forensic disadvantages into account when scrutinising the evidence relied on by the prosecution.
Assessment of Witnesses
In approaching the evidence of the witnesses, it is for me to decide whether I believe the whole or any part of the evidence of J, the accused or any witness, whether that witness is honest and whether or not they are reliable. I may accept something a witness says but reject other parts. Just because I reject some part of what a witness says, does not necessarily mean that I reject the whole of what the witness says.
Complaint
Pursuant to 34 M of the Evidence Act 1929, evidence was led in relation to the initial complaint by J to her sister and to her stepmother KW. Evidence of complaint is of assistance in this matter in understanding how the matters came to the attention of the police. It is not admitted as to the truth of what was alleged in her complaint to T and KW.
Prior Inconsistent Statements
There is evidence before me that J made statements to the police which are inconsistent with the evidence that she gave in court. The prior inconsistent statements of any witness in a criminal trial are not adduced as proof of the truth of the facts which they purport to assert. Rather, they are put before me to enable me to assess whether I can accept the reliability of evidence given on oath. I must decide this case upon the evidence which was given on oath and subject to cross-examination in court. What a witness has said out of court is not evidence in the case. Prior inconsistent statements go only to the reliability or credibility of evidence given in the court.
There were a number of asserted inconsistencies put to J. It was put to her that her allegations were added to and developed in each additional statement she gave. For example, her first statement did not include the allegation that the accused touched her breast in the spa or that he attempted digital vaginal penetration in the truck. Further, her final statement signed three days before trial, referred to some of the abuse occurring whilst her grandmother was not present.
I do not find J’s evidence unreliable on the basis of proven inconsistencies between her evidence and her prior statements.
Prosecution Case
The main witness for the prosecution was J. The prosecution also led evidence of complaint made by J to her sister TW and her stepmother KW. Evidence was also called from J’s mother BT.
J’s Evidence
I have scrutinized J’s evidence. I have kept in mind the directions that I must give myself and the criticisms made of her evidence by the accused’s counsel.
In assessing B’s honesty and reliability, I have taken into account that she was only four years old at the time the abuse is alleged to have started in May 2001.
J told me that she called the accused Pop. She said that following her parents’ breakup, she returned to live with her grandmother and Pop at their home in Wellington. After she moved with her mother and sister into Murray Bridge, she continued to visit and stay overnight at the Wellington house. She said that she would be dropped off by her mother and she would also go there with her sister T, on occasions.
She told me that her grandmother and Pop moved into Murray Bridge when she was in about year two at school. She said she would also stay overnight at the accused’s home after he moved to Murray Bridge.
She said that when she was alone with Pop, he would touch her. He touched her vagina and bottom on many occasions. She said that she can’t remember the first time the touching happened or where it happened. She remembers the first occasion in Pop’s truck and she remembers a time in the Wellington house. She told me that in the house she would be sitting on Pop’s lap watching TV. He would place a doona over them and then feel her bottom and her vagina under the doona over and under her clothing. She said he touched her with his hand and his fingers and he would just rub. She said that this first happened from about the age of four.
She also told me about an occasion at Wellington when Pop put on a porn movie and she was in the kids’ room. He called to her to come out to the living room. She came into the living room, sat on his lap and they watched the movie for a bit. She said the movie showed two people on a bed having sex.[1] He got his penis out and made her touch it. She said he grabbed her hand and told her to touch it. She said it felt squishy, she then let go, got up and went outside to the sheep. This alleged offending is also the basis of the alternative charge of indecent assault.
[1] T45.12-13
J told me that she did not think the accused’s finger had been amputated at the time of this alleged indecent assault. It is an agreed fact the accused’s finger was partially amputated on 3 April 2002. If this indecent assault occurred prior to the amputation, J would have been less than five years old.
She also said there was an occasion when her grandmother was in the room and she was sitting on Pop’s lap and he got the blanket and he was feeling her bottom and vagina sneakily.
She said that this touching happened whenever she was alone with her Pop and that she was alone with him a fair bit, especially when she went to work with him. She told me that she would travel with him in his work truck and he would get her to sit next to him. He would hand her a porn magazine which he would open up to a certain page that showed a girl and a guy in an office. The girl was wearing a red dress and they were “making out”. She said her Pop would feel her vagina and bottom both under and over her clothing. He would ask her how does it feel and whether she liked it.
She said that when they got to the work destination, he would say to her “Don’t tell anyone, it’s our secret”. She said that she mainly went to work with Pop on Saturdays.
She said that on these trips in the truck, the accused would also put his hands down his pants and then he would go back to touching her vagina and bottom and that he would do this while he was driving the truck.
She also described the accused trying to put his fingers in her vagina and bottom, but that he didn’t ever succeed because she would move around. She said the abuse in the truck happened more than once and she used to go in the truck “all the time”, so the abuse would have been over years.
She said that when the accused and her grandmother moved into Murray Bridge, she stayed on weekends and school nights quite a lot because their home was close to the school she went to. She said that the abuse that occurred at the Wellington house continued in the same manner at the Murray Bridge house. She would sit on the accused’s lap whilst watching TV and he would touch her on the vagina and bottom under the doona that was covering them.
She said that the accused started to touch her breasts when she started developing and at a time she was wearing a crop top. She said she started developing around eight or nine. She said the touching of her breasts would occur in the lounge room or in the truck, but it was not as frequent as the touching of her vagina or bottom.
She told me about an incident in the bathroom of the Murray Bridge home when she was about to have a spa and she was fighting with her sister. She said her sister hit her and the accused said to her sister, “You can’t hit her like that, she’s developing”. J described the accused then “groped my boob, and then held it and then let go, walked off”.[2] She said that she would have been wearing a singlet or pyjamas, but she could not recall how old she was or what year she was in at school when this occurred.
[2] T52.33
J said when she got older, she tried to get her sister to come with her to stay at the accused’s home so that the accused wouldn’t touch her.
She also described a time when the accused stopped touching her when his finger was amputated by a piece of iron. She said that amputation would have occurred at the Wellington house when she was in year two or below.
J could not remember the last time the accused touched her.
She told me that she moved back to Victoria to live with her father at the end of 2007 because she needed to get away from her mother’s abuse and everything that was happening with the accused.
She said that she first told a friend about the abuse at a birthday party in mid 2010. Later that year, she told her sister and stepmother.
She said that the touching of her vagina and bottom stopped when she was about eight or nine or maybe 10. It was put to her that she had told police it was when she was aged seven to eight that the accused tried to touch her but didn’t succeed. J explained that that would have been a stage when she started making up excuses to keep him away from her and she just moved away if he tried anything.
J agreed that she got on quite well with her step grandfather and that she would hug him from time to time, that he spoiled her rotten and that he bought her anything she wanted.
It was put to her that she didn’t go to work with the accused very often. She said that she went with him multiple times.
It was put to her that the magazine that she saw in the truck was “Pix” or “People” and that it was not a pornographic magazine. She said it was a pornographic magazine. She was asked whether she recalled an incident where she arrived home from a trip to work and was told off for reading one of the magazines. J couldn’t recall being told off.
J was cross examined about her story developing each time she spoke to police. She explained that she began to remember more things as she spoke to her counsellor.
J said that when she was touched by Pop, her grandmother would be there on most occasions, although she would be busy. In her final statement she said her grandmother wasn’t there all the time. She explained that there were sometimes when she was present while the abuse occurred.
J was asked in cross examination why she continued to sit on the accused’s lap when he would do these things to her. Her answer was:[3]
He never forced me, but how else are you supposed to act when a grown man older than you turns around to you when you’re only young and says “Now, don’t tell anyone. That’s our secret”. How else are you supposed to think?
[3] T117.27
J said that there were only two occasions she can recall when the accused didn’t touch her when she was alone with him. One, when she went to pick up a Bratz Doll for her birthday and the other when she went to get a gold necklace.
It was put to J that the accused saw T punch her in the chest area in the bathroom, that he walked in and said “Hey, don’t do that. If you do that when you’re developing it can cause problems later on”, and that his touch was only a momentary touch. She denied that and said “it was like a grope, shake and let go”.[4]
[4] T135.15
J was asked about whether she recalled receiving counselling in 2005, for her mother’s suicide attempt and for the domestic violence that she witnessed. She said she did. She said that there was a period of time when her mother wouldn’t let her have contact with her father. She said that she had heard so many different stories from so many sides about the relationship between her mother and father. She agreed that she had behavioural problems as well as mental health problems and that she had been admitted to the Banksia Mental Hospital three or four times. She described that she has a borderline personality disorder and that she is prescribed Epilim, which she told me was a mood stabilizer. She said that she attempted suicide in 2007.
She said that whilst in school in Victoria, she had many suspensions for behaviour such as substance abuse, violence and rebelling against authority and that she had attempted suicide on a number of occasions in Victoria.
She told me that her father would always take her side against her sister T, because T was so horrible to her.
It was put to her that the accused would rarely be alone with her. She denied that. It was put to her that none of the offending that she alleged had occurred. She said why else would she have been so mentally unwell from bottling everything up.
Finally she told me the abuse involving the porn movie where the accused made her touch him, the abuse in the truck involving the magazines and the touching of her breast in the bathroom, are the instances of abuse that stick out most in her mind.
J gave her evidence in a straight forward manner and was very honest and open about a number of issues. For example, her mental health issues and her behavioural issues.
I do not reject J’s evidence. However as I explain at the conclusion of these reasons, I am not satisfied of the reliability of her evidence to prove the offending occurred beyond reasonable doubt.
Evidence of J’s Sister T
T, J’s sister, aged 14, gave evidence about the alleged spa incident and J’s complaint to her about the alleged abuse. T said she recalled an occasion when she was in the spa with J and the accused. She said her grandmother was in the toilet and they were talking and laughing. She said she punched J and that the accused “Put his hand where I punched her and said ‘Not to punch her there because she is a growing woman.’”[5] She said his hand stayed on her breast for “Not even three seconds”[6] She said none of them had clothes on whilst in the spa. However, in cross examination, she said she really couldn’t remember whether they were clothed or not.
[5] T192.23
[6] T193.1
T couldn’t recall how old she was when the spa incident occurred. She also said she couldn’t be 100 per cent sure about whether the accused’s hand made contact with J’s chest.
T said that J would go for rides in the truck with Pop and that she would go in the truck most of the time with her and there was the odd time when it was just her or J.
She also spoke about J telling her about the alleged abuse.
I accept T was honestly trying to tell the truth. However her evidence, in particular about the spa incident, does not assist me in deciding the truth in relation to that alleged indecent assault.
Evidence of J’s Stepmother KW
J’s stepmother, KW gave evidence about J’s elaboration of the complaint she made to T. I accept her evidence
Evidence of J’s Mother BT
The final witness for the prosecution was J’s mother, who said her daughters did go for rides in the accused’s truck, but she couldn’t say how often they went in the truck or how often they rode in the truck together or alone with the accused. She told me that there were occasions when the girls stayed over at her mother’s and the accused’s home.
She said that if the girls went with the accused when he went to work, they would not be at his workplace for the whole day.
I accept BT’s evidence but it does not assist me in determining where the truth lies.
Defence Case
The accused gave evidence on oath denying the allegations. I give him credit for adopting a course that he was not bound or obliged to adopt. I am able, depending on my assessment to accept some of the accused’s evidence and reject other parts.
As the accused has given evidence, I must consider his honesty and reliability. Even if I reject the accused’s evidence, that does not mean the charges are proved. The question would remain whether the prosecution has proved its case beyond reasonable doubt.
The accused told me that he had been in a relationship with J’s grandmother for 16 years. He told me about the time that he was disqualified from driving a motor vehicle from November 2000 and how JD had breast surgery.

He told me about how JD’s grandchildren would stay overnight on occasions at his home in Wellington and Murray Bridge.
He told me about the amputation of his finger and that it was not long after that amputation, he had his appendix removed. He told me that he was a self employed concrete and shed building contractor. He was examined about the work he did on Saturdays.
He told me that he did have People or Pix magazines in his truck, but he did not have any pornographic magazines. He denied ever giving one to J or her sister. He said that J and T had been in his truck a few times. He said he could only specifically recall one occasion when J went alone with him in his truck. He said he remembered that on this occasion that she kept saying “when are we going home?”.
The accused denied any inappropriate touching of J. He denied ever putting on a pornographic movie in her presence. He did admit that there were pornographic movies in his home.
He said that he did shower with J and T whilst they were young.
He said he can’t remember too much about the incident in the spa because it was so long ago. He said he recalled that J had pants on, but he was not sure about her top. He did not see T punch J. He heard J say that T had punched her and he told T off. He doesn’t know whether he just touched J momentarily on the chest. He said that he would have told them that they don’t hit each other in that area because it can cause problems referring to their grandmother’s breast cancer and surgery.
In cross examination, the accused denied J would stay overnight quite often. He said it could have been once per month, and there were occasions when J would stay on her own overnight. He said that there were hardly ever any occasions when he would be alone with J when she stayed overnight.
He agreed that there were occasions when she sat on his lap. He denied ever touching her inappropriately or exposing himself whilst she was on his lap.
The effect of the accused’s evidence was that there was little time to be alone with J but that it may have occurred occasionally. I do not find the accused’s evidence untruthful.
Evidence of J’s Maternal Uncle
I also heard evidence from J’s uncle. I accept him as a truthful witness but his evidence is of no assistance to me in deciding where the truth lies.
Evidence of Accused’s Partner JD
JD gave evidence. She told me she enjoyed a supportive and loving relationship with the accused.
She attempted to minimise the opportunities the accused had to be alone with J in the truck and in the houses she lived in with the accused.
She told me that J and her sister would occasionally stay overnight at her home.
She said that she could not recall whether there were times when the girls stayed on their own. She said the children would be there a couple of times a fortnight and then may not come over for several weeks. She said that when she moved to Murray Bridge, the children stayed spasmodically because she didn’t want them there all the time.
She said that J treated the accused like a grandfather. She said that the accused had men’s magazines in his truck, not pornographic magazines.
She said that the accused occasionally had a lap rug over his lap whilst watching TV. She said that the children would sit on his lap and watch the TV.
She said that she could only recall one occasion when J went with her partner in the truck.
She recalled an incident involving a pornographic movie when either J or T picked it up and asked to put it on. She said she took it from them. From that point, the pornographic movies were stored in another place. She said that the movies were never played when the children were in the home.
She said that she did shower with the children when they were younger, maybe aged two or three, as did the accused.
She said that there was a stage when J’s father said to her that he would make sure her daughter BT did not get J and T back.
She told me in cross examination that she believed that J only stayed once or twice whilst they lived at Wellington. She said that there weren’t really any times when the accused would be alone with J in the lounge room. She would leave for maybe a couple of minutes or so. She said it was not usual for the accused to take the children in the truck. It did happen sometimes. She said she couldn’t think of when he did take just J.
She told me that at the time J moved to Victoria in 2008, her daughter was having a difficult time.
She recalled an incident where T hit J. She said that she was in the lounge room. She recalled that the accused was sitting in a lounge chair and the girls were having a little fisticuff and T hit J. She heard the accused say “don’t do that” and they said “why not” and he said “well, she’s developing”.
JD attempted to minimise the opportunities the accused had to be alone with J. Her evidence does not assist me in determining where the truth lies.
Conclusion
I have scrutinised with great care the honesty and reliability of J’s and the accused’s evidence. Having considered the evidence as a whole, I find myself in a position where I do not know where the truth lies. It is not a matter of me preferring J’s version of events over the accused’s or the accused’s version over J’s.
I do not reject either the prosecution or defence version of events. I do not find J or the accused to be untruthful. I am not satisfied of the reliability of J’s evidence in the sense of its capacity to establish the accused committed the offending beyond reasonable doubt. I am not satisfied, against a background of J’s fractured nuclear family and the inferences of acrimony and animosity, J’s psychological and behavioural issues and her age at the time of the alleged offending, that J’s evidence is capable of supporting a conclusion beyond reasonable doubt that the offending charged occurred.
I make it clear I do not reject J’s evidence. I also find that I cannot reject the accused’s denial of the offending.
I do not find the charge of Persistent Sexual Exploitation of a Child or the alternative charge of Indecent Assault proven.
I therefore find the accused not guilty of count one and the alternative count two.