R v D, P J - [2015] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, P J
Criminal Trial by Judge Alone
[2015] SADC 79
Reasons for the Verdicts of His Honour Judge Beazley
28 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone - accused charged with two counts of indecent assault - offences allegedly occurred when the complainant was aged 12 years - complainant aged 38 and accused aged 60 years as at the date of trial - prosecution case based entirely upon acceptance beyond reasonable doubt of the truth and reliability of the evidence of the complainant, and the rejection of the defence case- discreditable conduct alleged - relevance of prior inconsistent statements of the complainant - substantial forensic disadvantage to the accused by the delay - whether prosecution case proved beyond reasonable doubt.
Verdict: Accused not guilty of each of the two charged offences.
Criminal Law Consolidation Act (1935) s 56; Evidence Act (1929) s 43 CB, s 34L(5), s 34P; Juries Act (1927) s 7, referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v M, BJ [2011] SASCFC 50; R v Liddy (2002) 81 SASR 22; R v Keyte (2000) 78 SASR 68; Thorne v The Queen [2007] NSWCCA 10; R v R TB [2002] NSWCCA 104; R v Dann [2000] NSWCCA 185; R v Livingstone [2011] SASCFC 28; R v T, WA (2014) 118 SASR 382; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; Palmer v The Queen (1998) 193 CLR 1; Abrahamson v The Queen (1994) 63 SASR 139; Hargraves v The Queen [2011] HCA 44; Murray v The Queen (2002) 211 CLR 193; R v El Rifai [2012] SASCFC 98; R v ATM [2002] NSWCCA 475; WFS v The Queen [2011] VSCA 347; WFS v The Queen [2011] VSCA 347; R v BFB (2003) 87 SASR 278; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJS 571; R v Lapins [2007] SASC 281; R v Maiolo (No 2) [2013] SASCFC 36; R v A, GP [2012] SASCFC 81; R v Brady [2014] SASCFC 7; R v Smith [2013] SASCFC 128; R v E, DJ (2012) 112 SASR 225; R v Kerin [2013] SASCFC 56; R v Gavare [2011] SASCFC 38; R v Lomman [2014] SASCFC 55; R v M, JJ [2013] SASCFC 51; R v D, WD [2013] SASCFC 32, considered.

R v D, P J
[2015] SADC 79
Criminal Trial by Judge Alone
Introduction

I will employ pseudonyms when referring to the complainant, the accused and the other witnesses, so as to ensure that there is no breach of s 71A(4) of the Evidence Act, 1929 (SA).
P D (‘the accused’) is charged on a fresh Information, dated 3 March 2015, with two counts of Indecent Assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’).
It is alleged that the accused committed the subject offences against his then partner’s daughter, ‘K B’, (‘the complainant’).
The accused had initially been charged with one count of Persistent Sexual Exploitation of a Child contrary to s 50 of the Act, however that charge was replaced by the two subject counts on the fresh Information.
In his opening address at the subject trial, counsel for the Prosecution asserted that the accused had committed the first count in a pine forest near Mount Gambier in 1989; and the second count at his house in Mount Gambier, also in 1989.
The complainant was born on 26 December 1976,[1] and, was accordingly aged 12 years at the time of the alleged offences, and aged 38 years as at the date of trial. The accused was born on 3 September 1954, and was aged 60 years as at the date of trial.
[1] Ex P14.
Upon arraignment, the accused pleaded not guilty to each of the two counts on the fresh Information. It is convenient now to set out the particulars of each count as pleaded in the fresh Information, and as developed in the Prosecution opening, as follows:
First Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
P D, between the 31 December 1987 and 1 January 1990 at Mt Gambier or another place indecently assaulted ‘K B’. The Prosecution asserts that the accused touched ‘K B’ indecently by placing his hand on her vagina, in a pine forest, in 1989.
Second Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
P D between 31 December 1987 and 1 January 1990 at Mt Gambier or another place indecently assaulted ‘K B’. The Prosecution asserts that on an occasion in 1989 while the complainant and her brother were sharing a bedroom in the accused’s home, the accused entered the complainant’s bed, touched both of her breasts, and then touched her vagina.
Procedural Matters
·Trial by Judge Alone
At the commencement of the trial, the accused elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act 1927 (SA). The purported election by the accused, at such a late time, was contrary to Rule 8(1) of the Juries Rules 1996 (SA). Accordingly the accused made application for an extension of time for the subject election.
In R v Gavare,[2] the Court of Criminal Appeal held that notwithstanding the strict terms of Rule 8 of the Juries Rules, circumstances which arise after the expiration of the time fixed for the election, may still provide a basis upon which a refusal to extend time would be unjust.
[2] [2011] SASCFC 38.
There is no need to detail the reasons why the application was made late. I was satisfied that there was a proper basis, pursuant to Rule 16 to waive compliance with the prescribed time limits. I was satisfied that it would have been unjust to refuse the application.
Ultimately the application for trial without a jury was granted, and the trial commenced before me on 4 March 2015.
Mr P Hill appeared as counsel for the Director of Public Prosecutions (‘the Prosecution’), and Mr I White appeared as counsel for the accused.
Notice of Intention to Adduce Evidence of Discreditable Conduct
By Notice dated 4 March 2015, the Prosecution sought to adduce evidence of alleged ‘discreditable conduct’ by the accused, namely evidence of other alleged incidents of sexual impropriety between the accused and complainant, whether or not the subject of a specific count on the Information.
In his opening address, counsel for the Prosecution explained that:
The uncharged acts might be better described as behaviours. There are three different behaviours, each of which occur multiple times. The first is the accused watching the complainant in the shower. The complainant will state that he would go into the bathroom while she was showering and that this started early on in the accused’s relationship with the complainant’s mother. He would go in there four or five times a week. He would go in there sometimes with a bucket of cold water and he would tip it over the shower screen and over the complainant. She took this as a joke but not funny and after a time she started locking the door. The accused would also look at the complainant from the outside through the bathroom window. On one occasion the complainant complained to her mother and the police were called. The police cannot find any electronic recording. Although it is important the accused does admit in the record of interview, you Honour will hear, that this incident did occur and that he apologised for it.
The second uncharged behaviour is the accused taking the complainant’s foot and rubbing it on his penis. This is said to have occurred on numerous occasions on a couch at her mother’s home when both the accused and the complainant were under a blanket watching television. This is said to have occurred prior to count 1.
The third uncharged behaviour involves the accused masturbating in front of the complainant. The complainant will state this happened on more than one occasion. That she saw the accused masturbating in the master bedroom at her mother’s home which was the bedroom that the accused shared with the complainant’s mother. She will state this happened prior to the incident in the pines being count 1.
In R v C, CN,[3] White J expressed the opinion that, notwithstanding that no objection was taken by counsel, it was necessary for a trial Judge to consider and apply the provisions of s 34P of the Evidence Act 1929 (SA) in respect of each charge, and be positively satisfied, that the conditions for admissibility of each item of alleged discreditable conduct, had been met before being received by the court.
[3] [2013] SASCFC 44.
Subsequently, however, the Court of Criminal Appeal has in two recent decisions, declined to apply that dicta, stating that:[4]
If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under s 34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.[5]
[4] R v C G [2013] SASCFC 83 at [50]; R v C CA [2013] SASCFC 137 and R v Maiolo (No2) (2013) SASCFC 36.
[5] [2013] SASCFC 83.
In the subject case, the accused did not object to the evidence being led. I infer that he did not object to it being led on the basis that it would be treated as relationship evidence, and not as propensity evidence.[6] In its application the Prosecution asserted that the evidence of alleged discreditable conduct was permissible under s 34P(2)(4) of the Evidence Act, ‘to prove that the accused was sexually attracted to the complainant’. I made it plain that at this stage of the trial I would not admit it for the purpose identified by the Prosecution.[7] I determined that, again at this stage, the evidence was admissible for, and would be received by me for, specific non propensity reasons, and that I would rule, if necessary, upon whether it could be used for other purposes in due course.[8]
[6]    R v Maiolo (No 2) (2013) 117 SASR 1 at 36.
[7]    See R v MES [2007] SASC 201.
[8]    Transcript pgs 2 - 3.
As I have noted, I sit in this trial as Judge without a jury. In R v Abrahamson, the Court of Criminal Appeal noted that the:
Principle that a Judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force.[9]
[9] (1994) 63 SASR 139 at 143.
On the Prosecution case the alleged discreditable conduct, was relevant and probative for non propensity purposes, namely to place the charged offences in their proper context; to show an escalation of sexual impropriety, including indecent touching; to demonstrate why the complainant may have reacted the way she did and to explain why the complainant may be vague and uncertain as to dates and events given the repetitious nature of the alleged uncharged acts.
On the accused’s case, it is in the interest of justice for the court to hear, in greater detail, the alleged interaction between the accused and the complainant, notwithstanding any forensic disadvantage to the accused, as it provides a better opportunity for the court to assess the complainant’s alleged truthfulness and reliability in respect of the two charged offences.[10] The Prosecution case depends entirely upon the honesty and reliability of the complainant. Insofar as the Prosecution fails establish the allegations of discreditable conduct or any of them, this may be used in my assessment of the evidence of the complainant in respect of the charged offences.
[10] (1994) 63 SASR 139.
In so far as the evidence establishes that the alleged discreditable conduct had occurred before the final count on the Information, its probative value would substantially outweigh any prejudicial effect upon the accused.
Insofar as the alleged conduct had occurred after the charged acts, it must necessarily have little weight in placing any of the charged offences in context.[11]
·Necessity for Reasons
[11] R v ATM [2000] NSWCCA 475; WFS v R [2011] VSCA 347; R v Beserick (1998) 30 NSWLR 520 at 525; R v BFB (2003) 87 SASR 278.
In a series of recent decisions, the High Court of Australia has stressed that sufficient reasons must be given by Trial Judges, and, indeed, Intermediate Courts, which properly explain the verdict.[12] Those reasons must include the principles of law applied by the Judge and the facts as found by the Judge. A trial judge sitting alone is not however obliged to ‘express all the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of law’.[13]
[12] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438.
[13] Markou v R [2012] NSWCCA 64 at [19]; R.v R, R, L.J [2008] SASC 35 and R v T, W A [2014] 118 SASR 382.
Legal Directions
I do not propose to detail all of the obvious directions of law.
I do however remind myself of some of the following fundamental directions which apply in every criminal trial:
·The accused comes before this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on each of the charged offences has been proved beyond reasonable doubt. In the context of this case the accused is innocent of a specified act of indecent assault unless the Prosecution has satisfied me of his guilt of it beyond reasonable doubt.
·In assessing the evidence of the witnesses I am entitled to accept the evidence of a witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[14]
[14] Hargraves v R [2011] HCA 44 at [25].
·The Prosecution seeks to satisfy me beyond reasonable doubt entirely upon the evidence of the complainant, as to each of the alleged counts of indecent assault. While I am not obliged by statute to so direct myself,[15] I will approach the evidence of the complainant with caution and only rely upon it if I am satisfied beyond reasonable doubt that it is both credible and reliable, in respect of the count which I am then considering.
[15] Evidence Act, (1929), s 34L(5).
·The accused is charged with two separate charges on the one Information. Each must be considered separately on its merits. It does not follow that if I am satisfied beyond reasonable doubt of his guilt on one count that he must also be guilty of the other count. Counts do not stand or fall together.
·I do however direct myself, that as the prosecution case depends entirely upon the complainant, where inroads have been made as to her credibility and reliability, including as to any of her allegations of discreditable conduct, any reservations, I may have as to her credibility or reliability, in my assessment of one count of indecent assault, may be carried over to my assessment of the allegations in respect of the other count.[16]
[16] R v Liddy (2002) 81 SASR 22 at [181 – 193].
·The accused does not have to prove anything. The accused was not obliged to give evidence. When interviewed by the police,[17] the accused denied each of the criminal allegations made against him by the complainant. At trial the accused elected to give evidence on oath. In giving evidence the accused did not assume any onus to prove or explain anything. The onus of proof on each count beyond reasonable doubt remains on the prosecution at all times. The evidence of the accused must however be taken into account and assessed in the same manner as that of any other witness.[18]
[17] Ex P10.
[18] Hargraves v R [2011] HCA 44 at [43] - [46].
·The accused and the complainant have each given evidence on oath. Their respective evidence is in direct conflict with that of the other. It is not a question of preferring one version to the other. In Murray v R,[19] the High Court explained that:
The choice … was not whether to prefer one version of events over another. The question is whether the prosecution have proved the relevant elements of the offence beyond a reasonable doubt. This required no comparison between alternatives other than being persuaded by the prosecution beyond reasonable doubt of the guilt of the accused.
·Only proof beyond reasonable doubt by the Prosecution, can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charge I am then considering; I must give the accused the benefit of that doubt and find him not guilty of that charge.
·I must not reason that if I were satisfied that the accused had committed acts of discreditable conduct that he is the sort of person likely to have committed the charged offences. Proof that the accused had committed one or more of the alleged acts of discreditable conduct is not a substitute for proof that he committed the particular charged offence that I am considering.
·There was a significant delay by the complainant between the alleged offences and when she first brought the allegations to the police. I direct myself that there may be many reasons why a complainant may delay making allegations of sexual misconduct.
·If the accused was significantly forensically disadvantaged by the delay of some 25 years between the first date specified in the particulars in the Information, and the trial, then this disadvantage must be taken into account by me, pursuant to s 34CB of the Evidence Act 1929 (SA).
·When considering any proved out of court prior inconsistent statements by any witness, such an inconsistent statement is only relevant to the assessment of the credibility and reliability of that witness. Some prior inconsistent statements might concern a trivial aspect of the evidence or may be put down to a memory loss. On the other end of the scale, some omissions or inconsistencies are so fundamental that they may entirely undermine that witness’s evidence.
·The complainant’s evidence was not corroborated in respect of either count. Mere presence or opportunity is not, of itself enough for corroboration. It is, of course unsurprising that many alleged acts of sexual misconduct are not corroborated. It is the nature of such an offence.[20] Although a court is no longer obliged to give a warning as to the absence of corroboration,[21] I direct myself in the circumstances of this case that the complainant’s evidence must be approached with caution and scrutinised with great care.
[19] [2002] 211 CLR 193 at [213].
[20] R v EDJ [2012] SASCFC 137, [117]-[120].
[21] Evidence Act, (1929), s 34L(5).
Elements of the charged offences of Indecent Assault
A person commits the offence of indecent assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency. The offence contains four elements.
The Prosecution must prove beyond reasonable doubt, in respect of each count separately, each and every element of the offence as follows:
1. The accused applied force to the complainant.
A mere touch would constitute sufficient force.
The allegations are, in respect of:
1.1 Count 1, that the accused indecently touched the complainant by placing his hand on her vagina;
1.2 Count 2, that the accused indecently touched the complainant by touching her vagina with his fingers.
2. The application of such force was deliberate - that is not accidental.
3. The accused’s conduct in each count, as described, occurred in circumstances of indecency.
If the Prosecution proves elements one and two beyond reasonable doubt, the conduct clearly occurred in circumstances of indecency.
4. The accused’s conduct, in each count, as described, was unlawful.

As no person aged under 17 years is capable of consenting to an indecent assault, there is no doubt that if the Prosecution proves elements one, two and three beyond reasonable doubt, the accused’s acts were unlawful at the time of the relevant offending.
Overview
The complainant was born on 26 December 1976. Her brother ‘L G’, was born on 26 October 1980. Their father had passed away in 1986.
In about 1988 or 1989, the complainant’s mother ‘K G’ entered into a relationship with the accused. ‘K G’; ‘L G’ and the complainant lived at ‘K G’s’ home in Mount Gambier during that period. The accused, who had his own residence in Mount Gambier, would stay at her house initially on two to three nights per week, and later more regularly.
The relationship between the accused and ‘K G’ ended in about 1993. That relationship was, at times, volatile.
The first time that the complainant had told anyone about the alleged events in the charged counts, was when she spoke to the police in November 2011, some 22 years after the alleged events. I note that s 34M(2) of the Evidence Act, 1929 provides:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is, of itself, of probative value in relation to the alleged victims credibility or consistency of conduct. (my emphasis)
The Prosecution called oral evidence from the complainant ‘K B’, her mother ‘K G’ and her brother ‘L G’.
The accused elected to give evidence on oath in his defence.
·The complainant
Special arrangements
Upon application by the Prosecution, and without objection by the accused, special arrangements were made for the complainant to give evidence to the Court. Those arrangements were that the Court be closed during the complainant’s evidence and that a one way screen be placed between the complainant and the accused.
I have not drawn any inference adverse to the accused nor have I allowed the special arrangements to in any way influence the weight to be given to her evidence.
·Synopsis of the evidence of the complainant on each of the two counts
I turn to the complainant’s evidence with respect to each of the two counts on the Information.
Each count will be considered separately by me on its merits.
·Count 1 – ‘the pines incident’
The complainant deposed, in examination in chief, that in the spring or autumn of 1989, the accused drove her brother ‘L G’ and herself to a pine forest, a short drive from Mount Gambier to collect pine cones. She said that such a trip had occurred on one occasion only, although she had been to barbecues in the pine forests previously. She said:
I was not happy to go because I hated him.[22]
[22] Transcript pgs 21 - 22.
She said that they turned off the Highway One and travelled down a pine break for about 5 minutes. She said that when the accused stopped driving and they alighted from the vehicle, the accused had asked ‘L G’ to go and get some pine cones. She said that the accused told her that he had a little test for her and started to run his finger from the top of her head down to the centre of her body. She said that he asked her to pull up her top. She did not refuse because ‘she was too scared’.[23]
[23] Transcript p 24.
She said that she pulled up her top, and the accused continued to run his finger down the centre of her body before asking her to pull down her ‘trackie pants and underwear’. She then said:[24]
[24] Trascript p 24.
AHe continued to run to his finger down and then he touched – touched me.
QIt may be difficult to say but can you say where he touched you.
AHe touched me on my vagina.
QWhat did he touch you with.
AHis finger.
QDid that go on for very long.
ALong enough.
Q…
AIt was very slow.
QWhen you say it was slow were you talking about the movement of his finger on your body.
AYes.
QHe ultimately reached the area of your vagina.
AYes.
QHow long did his finger stay on the area of your vagina.
A30 – 40 seconds.
QDid his finger go into your vagina.
ANo.
QWhat was the next thing he said.
AHe said that I passed the test.
QWhat happened next.
AWell ‘L G’ was coming back with pine cones.
QWhat did you do.
APulled my pants up.
…
QWhich car door were you standing against?
AThe left hand side.
QThe passenger door.
AThat is right, yeah.
QWere you standing with your back to the car.
AYes.
QFrom standing with your back against the car could you see the pine forest?
AYes.
QHow far from the car did the pine forest begin.
AProbably only a couple of metres.
QHow dense was the pine forest?
ANot very because – no, not very.
QCan you say how tall the pine trees were in this particular part of the forest.
ASo they were pretty tall but the – they are not bushy down the bottom, there is no bush until halfway up the tree.
QWere there large gaps between the trees.
AYes.
QWas it from that position that you could see ‘L G’ coming back from the pine forest.
AThat is right.
…
QWhat happened next.
AWe got in the car.
QDid you head back home after that.
AYes.
QWhere did you sit on the way back.
AFurthest away I could from P D sitting on the passenger seat with ‘L G’ in the middle.
The complainant initially said that this ‘pines incident’ had occurred after the incident in count 2.[25] However, when cross-examined, the complainant confirmed that the ‘pines incident’ had occurred prior to the incident in count 2.[26]
[25] Transcript p 27.
[26] Transcript p 33.
She did however say that the ‘pines incident’ was not the first piece of sexualised behaviour and that it had occurred ‘after her mother had caught the accused looking at her in the shower.’[27]
[27] Transcript p 39. Contrast the evidence of the complainant's mother at pgs [73] - [76].
When she was cross-examined about the ‘pines incident’, she conceded that the accused had not told her to keep quiet, nor to keep it a secret.
Not only did he not offer her any gifts or inducements but, on her evidence, ‘never gave her anything, at any time’.
She conceded that on no occasion had the accused suggested to their mother that he should take the complainant on her own and not ‘L G’.
She had first given a statement to the police, some 22 years later, in 2011, and then subsequently in 2014.
·Count 2 – at the accused’s home
The complainant deposed in examination in chief that the alleged incident, the subject of count 2, had occurred at some point after the incident, the subject of count 1. She said that she and her brother were sleeping in the same room at the accused’s house, and, heard the accused and her mother arguing. Her mother left the house, and, shortly thereafter, the accused came into her bedroom, and ‘got into bed behind me’. She then said:[28]
[28] Transcript pgs 31 - 32.
QDid he touch you in any way when he got into the bed
AYes.
QHow did he touch you.
AHe put one hand underneath me and the other over the top.
QWas that with both of his hands.
AYes.
QPerhaps could you say what he did with his left hand.
AStarting touching my breasts.
QHow did he get his hand around your breast.
ASo he reached underneath me.
QWhat did he do with his right hand.
AThat went over the top.
QWhat did he do with that.
APut it on my right breast.
QHow long did he touch your breasts for.
AFelt like a long time. You want an actual time, don’t you?
…
QWhat is the next thing he did or said.
AHe moved his hands down to my vagina.
QWhat did he do then.
ATouched me.
QDid he touch you on the vagina?
AYes.
QAgain are you able to say if that went on for a short time or a long time.
AI can’t say exactly how long. It wasn’t like 30 seconds or anything. It felt longer than that.
QWhat did he touch you with.
AHis hand.
QBy that do you mean – what part of his hand.
AHis fingers.
QCan you say how many fingers.
ANo.
QCan you describe the motion he made with his fingers.
AHe was rubbing them.
QDid any of the fingers go into your vagina at any stage.
ANo.
QWhile this whole incident was happening, by that I mean from the time he got into the bed until that time when he was touching your vagina, did you say or do anything.
ANo. I was pretending I was asleep.
QDid your eyes remain closed the whole time.
AYes.
QWhat happened after he touched your vagina.
AHe walked out.
The complainant stated in cross-examination that she had stayed at the accused’s house on five occasions and that the incident, the subject of count 2, had occurred on the last occasion.[29]
[29] Transcript p 41.
In examination in chief, the complainant said that she was facing the wall laying on her left side. When cross-examined, the complainant agreed that she had initially told police, on 22 November 2011, that she was lying on her right side.
Flashbacks
The complainant was cross-examined about having suffered what she described as ‘flashbacks’:
QHad you been having flash backs about your childhood.
AYes.
QSo you wake up having experienced a flash back; is that right.
AIt happens all the time.
QIt happens when you are awake as well – does it.
AYes.
QAnd the flash back goes back to the era you were in Senior Primary School and early into High School.
AThat’s right.
QAnd you were quite adamant, aren’t you that these incidents did not happen any later than 1989.
AYes.
QSo that would put you in Primary School, is that right.
AThat’s right.
QForgive me it’s my fault but was 1990 your first year at High School.
AYes.
In re-examination the complainant explained:
QWhen did it come to you that you were actually lying on your left-hand side.
AOn the aeroplane coming here.
QAnd how did that come to you?
AWhen I reread every single word, detail for detail.
QBy re-reading every single word are you talking about re-reading your 2011 statement.
AYes, I read the paperwork and obviously I’ve got two kids, my life is flat out so to have the time to sit down and read it in peace and quiet and think about everything, that’s when I put myself back in that situation again.
QMy friend asked you some questions about things coming to you in flashbacks.
AYes.
QWhat is your understanding of what he meant by flashback.
AMy understanding of flashback.
QYes.
AWhen we lived in Mount Gambier a flashback would be walking into a supermarket and seeing someone that looks similar and then what he did to me. Anyone that looked like him, that’s a flashback. So as soon as I see something that takes me back to [his house], the pine cone incident, anything like that, it just, you know, panic attacks start again and the whole anxiety, the stress, everything comes back.
QWhen you recalled correctly which side of the bed or which side you were lying on in the bed, would you describe that as a flashback.
AYes. Because I pictured myself in that situation again.
The complainant had stated in examination in chief that the accused had been sobbing when he came into the room and got into her bed. The complainant agreed that she had not told that to the police when giving her first statement in 2011 but had remembered it as a result of a ‘flashback’.[30]
[30] Transcript p 47.
Discreditable conduct
The complainant asserted that on one occasion the accused had placed a ‘kettle cord’ around her mother’s neck.[31] She deposed that ‘he would throw – come into the shower when I was having a shower, so he would come into the bathroom, he would look through the window, he would throw buckets of cold water over me’.[32]
[31] Transcript p 18.
[32] Transcript p 14.
She explained that when the accused threw cold water over her she ‘thought it was a bit of a joke to start with and then I didn’t like it’.
The complainant deposed that during the first 12 months of his relationship with her mother and during the period when the complainant was aged 11 years, the accused would come into the shower ‘two or three times a week, sit on the edge of the bath and just watch me’.[33] She was asked how it was that she knew it was the accused coming into the bathroom and answered ‘because he was the only adult male in the house’. She deposed that there was no lock on the bathroom door. (my emphasis)
[33] Transcript p 15.
She said that, in addition, the accused would, frequently, watch her from outside the bathroom through the window when she came out of the shower over a period of 2 years namely in 1988 and 1989.[34] The complainant deposed that on one occasion her mother caught the accused looking at the complainant through the bathroom window and confronted him about it.[35] When cross-examined the complainant said that this incident had occurred before the charged incident in count 1 at ‘the pines’.[36]
[34] Transcript p 17.
[35] Transcript pgs 17 - 18. In its opening the Prosecution said that the complainant had complained to her mother and the police had been called. Transcipt pgs 6 - 7.
[36] Transcript p 39.
The complainant deposed that on more than five occasions between 1988 and 1989 when she and the accused had been sitting under a blanket watching television the accused would pick her foot up and place it on his groin during which both were clothed.[37] She subsequently described the accused’s lap as feeling ‘mushy’ during these incidents. She said that the accused’s ‘lap’ never felt hard.[38]
[37] Transcript p 18.
[38] Transcript p 44.
The complainant deposed that on about three occasions in 1988, when she was aged 11 the complainant had seen the accused masturbate by rubbing his penis up and down in her mother’s bedroom.[39] She said that on one occasion the accused had asked her ‘if I wanted to try it’.[40]
[39] Transcript p 19 - 20.
[40] Transcript p 20.
General cross-examination
She was cross-examined about her evidence that at the time of the ‘pines incident’, she had hated the accused.
She denied that she would ever have told him that she loved him or missed him. She had no memory of where he was working or what sort of work he was doing at the time. She denied ever writing to him while he was away from Mount Gambier telling him about her sporting achievements. She was shown a letter dated, 29 May 1989, which she had written to him.[41] It was suggested to her that what was plain from that letter was that she had a good relationship with the accused. The letter set out personal information to him, concluding with the words ‘see ya, miss you’, and ‘kiss’, ‘kiss’. She denied that in 1989, at about the time of that ‘letter’, the accused was treating her well, and had a good relationship with her.
[41] Ex D5.
She was shown a Father’s Day card addressed to the accused. She did not accept initially that it was in her handwriting, however, eventually conceded ‘I don’t know. I guess it is in my handwriting’.[42] She was then shown a birthday card which she conceded had been written by her to him.[43] She suggested that the accused’s relationship with her mother was ‘okay’ at the start but after some months had turned violent. She said that when the accused and her mother got on they got on extremely well and when they didn’t it was a very poor relationship.
[42] Ex D6.
[43] Ex D7.
She conceded that the accused had a good relationship with her brother ‘L G’, and that he spent a lot of time with him.
She was asked about her evidence with respect to the accused’s alleged throwing of water over her in the shower, masturbating and watching her from outside through the shower window. She could not recall which incident came first. She said that she felt threatened by the accused from the time when her mother first started going out with him. She said:
I felt threatened that he was going to take my mum away. My dad had passed away and I was worried about someone else taking my mum away, whereas I only had my mum and my brother.
She conceded that she had first spoken to the police about ‘the pines’ incident in count 1 in 2011, but that it was only in 2014, that she described the incident as having occurred inside the South Australian border.
When asked about the allegations of the accused rubbing her foot on the top of his lap, the complainant said that it lasted, on each occasion, for a couple of minutes. She said the accused didn’t say anything, and that she knew that her mother was upstairs. She said it never happened when either her mother or her brother were watching television with them.
She agreed that when she spoke to the police on 22 November 2011, she had believed that the accused had first come into their life from the beginning of 1990 when she was in High School. She agreed that she was jealous of him in his relationship with her mother, and she resented the fact that he had taken over her mother’s spare time and affection.[44] She agreed that she had mentioned nothing about the accused sobbing when she spoke to the police in 2011. She again made reference to ‘the flash backs’.
[44] Transcript p 45.
With respect to the allegation about the ‘kettle cord’, she denied that she had first mentioned it to the police in the month before trial suggesting that she had mentioned it in her first statement in 2011.
It was however an agreed fact that no such incident is recorded in that first statement.[45]
[45] Transcript p 84.
With respect to the incident in count 2, she denied that her brother had slept in the bedroom on a small mattress. She denied that the accused had bought new tyres for her car suggesting that he had ‘never bought her a single thing in her life’. In re-examination she said that when her mother was getting along with the accused, she got along with him as well.
The other witnesses
·The complainant’s mother ‘K G’
‘K G’ thought that her relationship with the accused had started in 1988 or 1989. It was brought to an end in 1992 or 1993, by the time that he had completed the building of a house for her at the rear of her initial home. She said that the accused would stay at her house over night on two to three nights per week. The relationship was ‘nice to start with but then became very volatile’. She said that both of them raised their voices during these volatile incidents. However she said that the accused had not been physically abusive to her in the presence of the children. She explained that the children would go with the accused ‘to get firewood or something like that’, and that would probably be the only times that they would go with him and without her.
She said that on an odd occasion, she would go with the children to the accused’s house, but never stayed there overnight. She conceded that the accused had a builder’s licence, and that essentially he had built her house for her. She had been of the view that the accused had favoured ‘L G’ more than the complainant.
The Prosecution sought and was granted leave to re-call ‘K G’ in respect of the allegation of the accused watching the complainant in the shower. She had not observed any such conduct by him. She said that the complainant had approached her and told her that the accused was looking through the bathroom window when she got out of the shower.[46] This was the only ‘untoward behaviour’ of the accused to the complainant of which she had been aware at the time.[47] She thought that that incident had occurred towards the end of the relationship that is to say, well after the time of the alleged events in both counts 1 and 2 on the Information. She said that the accused had said words to the effect that the complainant had a ‘lovely body’. She said that she had called the police. She was cross-examined about a statement that she had made to the police on 18 December 2011. She conceded that she had made no mention of the comment about the complainant having a ‘lovely body’. She accepted that the bathroom had a sliding and frosted window, so that if it was shut, all one could see was a silhouette of a person in the bathroom. She couldn’t remember whether she was home at the time of that incident.
[46] Transcript p 73.
[47] Transcript p 73.

She said that she could not remember a houseboat trip that the family had taken, when she was in a relationship with accused. She did however identify photographs which disclosed the accused with ‘L G’ and with the complainant during such a trip. Other photographs disclosed an attendance of the family at the Oakbank races. She had written on the back of the photographs that they were ‘happy times’, and had given those photographs to the accused.
·The complainant’s brother ‘L G’
He said that the accused had stayed at his mother’s house ‘pretty much all the time’, while he and his mother were in that relationship. He said that he visited the accused’s house with his mother and his sister but did not do so very often. He could not recall staying there overnight. He said that he and his sister would travel with the accused in his white utility and subsequently a blue Commodore. He said the relationship between the accused and his mother was good at first but subsequently ‘not as good with a lot of arguing’. He said that he got on well with the accused and he used to help him working as a bricklayer, and would go fishing with him.
He was asked about the alleged incident in count 1, at ‘the pines’. While he could remember having travelled to that area with his mother in ‘an old gold Telstar’, he could not remember any occasion of travelling with the accused and his sister without their mother. When cross-examined, he said that the accused had shown interest in him when he was playing junior football in Mount Gambier. He agreed that he had bought a Subaru utility when he was aged 16. He took it around to show that to the accused after the accused and his mother had broken up. The alleged incidents in counts 1 and 2 had never been brought to his attention.
Agreed fact
It was an agreed fact that the complainant did not mention the ‘kettle cord’ incident in the first police statement of 2011.
The defence case
·The accused
The accused explained that he had spent most of his working life in the building trades area, and had obtained a builder’s licence on 13 June 1991. He said that he formed a relationship with ‘K G’ gradually, and that after the relationship strengthened, he spent more time overnight at her home. He said that the complainant’s bedroom was upstairs, as was her mother’s bedroom. He explained that ‘L G’ lived downstairs. He said that he thought that he had related very well with the complainant. He denied engaging in any sexual behaviour with the complainant nor did he expose himself to her.
He was asked, in examination in chief, about the bathroom. He said that it had a sliding panel and a window which was frosted. He said that if the window was closed there could only be a blurred image. He explained that all of the family spent a great deal of time in the garden area at the rear of the house. On one occasion when he had walked out to the garden area, he said that he looked across, and had seen the complainant in the bathroom. He said that she had called out to him. He waited until she got dressed, and then apologised to her. He said that he had thought that the apology had been accepted by the complainant. He denied that ‘K G’ was at home, as had been asserted by the complainant. He said that he was embarrassed. He did not recall having a conversation about that incident with the complainant’s mother. He denied each of the other allegations of discreditable conduct. He denied each of the allegations in counts 1 and 2 on the Information. He denied taking the complainant and ‘L G’ to collect ‘pine cones’. He said that, as a family unit, on three or four occasions ‘maybe more’, maybe less’, they would attend barbecues. These trips as a family unit would be to the Rennick area or Sandy Waterhole. He said that this barbecue area to which he drove for barbecues was ‘definitely in the State of Victoria’. He said that all of the members of the family including the complainant took part in those barbecues.
He said that following the break-up of the relationship with ‘K G’, he had kept an old suitcase in which he had placed various photographs, including a number which had been given to him by ‘K G’ at the end of the relationship. He described a houseboat trip, captured in the photographs, as having commenced from Loxton. Photographs of camping at Murray Bridge, and others at Oakbank were also produced. He said that he had built the home for ‘K G’ over a period of about 12 months.
He was first contacted by the police on 11 March 2014.[48] He said that his health, in 2014, was very poor as he had been suffering from a depressive condition, and was on medication for it. He also took pain killers for pain in the knees and shoulder. He was unaware that the complainant had approached the police in November 2011.
[48] Transcript p 92.
He denied having in any way sexually touched the complainant. As to the complainant’s suggestion that she had stayed at his house on five or six occasions, he said that he could only remember the one time. He agreed, given the delay, that he could not be sure how many times the complainant and ‘L G’ had attended his home. He was cross-examined about the incident involving the looking through the bathroom window. He said that he was walking past the window and looked in and that it was ‘only probably an instinctive look and that was all it was.’ He conceded that he saw her naked, and the window was wide open. He said that his relationship with ‘K G’ went from ‘fantastic to ordinary’ very quickly. He said that both of them used to drink, and arguments could get quite heated. He repeatedly denied climbing into the complainant’s bed, or touching her in any way at all.
He said that after the relationship with the complainant’s mother had broken down, the complainant had visited him. On one occasion she had been injured playing hockey. On another occasion he had bought tyres for her orange Corolla motor vehicle.
Submissions of counsel
I have taken into account the whole of the submissions made by both counsel. I do not propose to detail each submission, but will set out a synopsis of only some of the main points made by them.
·The Prosecution
Mr Hill, counsel for the Prosecution, very properly conceded that before the accused could be convicted of a charged offence, the Prosecution must satisfy the Court beyond reasonable doubt that the complainant was both a truthful and reliable witness, and that the defence case should be rejected. The Court must also be satisfied that the alleged event in count 1 had occurred in the State of South Australia.[49] He submitted that the complainant’s evidence as to count 1 was detailed and compelling, and that there was ‘an air of reality’ about her allegations.
[49] Transcript p 109.
He conceded that, on the complainant’s evidence, the conduct of the accused was ‘brazen’, but submitted that it was no more brazen than his alleged conduct in respect of the uncharged acts, and indeed in respect of count 2.
He submitted that in respect of count 2 the Court ought accept that the complainant’s evidence was consistent as to the important details, and the Court ought give scant regard to inconsistencies as to her sleeping on the right or left side and as to whether the accused was sobbing at the time.
He submitted that her evidence on this count had the ‘ring of truth’ about it.
He submitted that the Court ought examine the allegations of discreditable conduct collectively, and that this weighs heavily against a suggestion that the complainant had misunderstood the nature of what she had observed in the accused’s conduct.
Mr Hill properly conceded that the accused had suffered from a forensic disadvantage by the 22 year delay between the alleged offences in 1989 and when these matters were first brought to the attention of the police in 2011. He was unable to provide any explanation as to why it was that the police did not speak to the accused until 2014.
Mr Hill ultimately submitted that the complainant had given compelling evidence and that nothing in the defence case should cause the Court to reflect adversely upon it. He invited the Court to return verdicts of guilty to both counts.
The accused
Counsel for the accused, Mr White, correctly submitted that it is not a question of considering whether the complainant’s evidence had ‘the ring of truth’ about it nor indeed to determine whether the complainant was lying or telling the truth.
There may be many reasons why a complainant may give an erroneous account of events which allegedly occurred so many years ago, notwithstanding that she has convinced herself that her account is correct.
Mr White referred to the undoubted fact that on each of the allegations in count1 and count 2, the complainant’s younger brother was present.
He said that it defied belief that the alleged sexual conduct could have occurred at all, let alone in the manner deposed to by the complainant. Mr White submitted that the Court should look carefully at, what he described as embellishment and inconsistencies in the complainant’s evidence.
The complainant had deposed that ‘the pines’ incident had occurred after the shower incident.[50] She had deposed that the ‘shower type’ incidents occurred over a 2 year period.[51]
[50] Transcript p 39.
[51] Transcript p 17.
Mr White asked rhetorically: Is it believable that after the complainant had complained to her mother about the shower incident, she would go with him to ‘the pines’, and not complain about being molested by him, and further that the accused would not have demanded her silence?
He highlighted other inconsistencies including whether there was a lock on the bathroom door; the timeline of alleged events; and the suggestion that she ‘hated’ the accused in 1989 when contrasted with the documentary evidence.
He also referred to her evidence that the alleged acts of masturbation had occurred when she was aged only 11 years;[52] and had placed her foot on his penis, ‘more than five times’ in 1988 and 1989.
[52] Transcript pgs 19 - 20.
He referred to her evidence as to her ‘flashbacks’, the long delay which had taken place before these matters were referred by her to the police, and to what he described as the vagueness, indeed embellishment, of the complainant’s evidence as to the alleged discreditable conduct; at times when the complainant’s mother and her brother would have been in the house.
Mr White referred to the forensic disadvantage suffered by the accused.
He submitted that there was no support for either of the two counts on the Information nor for the allegations of discreditable conduct. The only support came from one incident in the shower which was accidental and admitted by the accused.
He referred to her allegation of the ‘kettle cord’ incident. She was adamant that she had told police about it in 2011. It was an agreed fact that it was not recorded in that statement by the police. Further the complainant’s mother had deposed that none of her disputes with the accused had occurred in front of the children. She did not refer to the ‘kettle cord’ incident.
Mr White submitted that the complainant ought not be accepted as a reliable and credible witness. He invited the Court to return verdicts of not guilty to both counts on the Information.
Discussion
In assessing the strength of the Prosecution case, I must have regard to the obvious and significant forensic disadvantage encountered by the accused by the 22 year delay in the complainant bringing these matters to the attention of the police.
Forensic disadvantage
There can be no doubt that the accused has suffered significant forensic disadvantage in consequence of that long delay of 22 years before the reporting to the police in 2011. Indeed it was exacerbated by the further unexplained delay between 2011 and 2014, when the police first spoke to the accused.[53]
[53] Transcript p 115.
The accused has clearly lost the opportunity to make enquiries as to the alleged events which could have been made if there had been a prompt complaint.
The complainant’s own memory of events was adversely affected by the delay. I do not need to repeat inconsistencies in the complainant’s evidence, highlighted by Mr White.
I have taken into account this significant forensic disadvantage to the accused in considering whether or not the Prosecution has proved its case in respect of each count that I am considering. I have approached the complainant’s evidence with caution and have scrutinised it with great care.
Assessment of the evidence of the Prosecution witnesses other than the complainant.
·The complainant’s mother ‘K G’
‘K G’ was, in my opinion, a patently honest witness and generally reliable despite the long delay in these matters. Despite the volatile nature of her relationship with the accused, she did not exhibit any bias against him. She very fairly recounted her memory of events so long ago.
Where her evidence conflicts with that of either the complainant or the accused, I prefer the evidence of ‘K G’ to either of those witnesses.
In particular I accept her evidence as to the ‘shower incident’. I find that this incident was the only incident of which she was aware of ‘untoward’ behaviour of the accused to the complainant. I find that it occurred towards the end of her relationship, and not at the beginning as deposed to by the complainant. I find that she did not observe the incident at all but was told about it by the complainant. I find that she did confront the accused about it, and that the accused told her the complainant had a lovely body.[54]
[54] Transcript p 73 - 76.
I do not accept the complainant’s evidence as to the ‘kettle cord’ incident. I accept the evidence of ‘K G’ that no physical violence had occurred in front of ‘L G’, or the complainant.
·The complainant’s brother ‘L G’
I have no doubt that this witness gave an honest and reliable account of the events the subject of the charges, and as to the relationship between the accused and all members of his family between 1988 and 1993.
I infer that he had not seen anything to indicate any suggestion of sexual abuse by the accused against his sister. None of the complainant’s allegations had been brought to his attention by her.
·The accused as a witness
As I have explained, I accept the evidence of ‘K G’ that, while she did not witness the incident, she did confront the accused about the complainant’s allegation that he had looked at her while she was naked in the shower. I do not accept that it was an accident as he had deposed; nor do I accept that he truly has no memory of the confrontation between ‘K G’, and himself over that incident.
Save for that evidence as to observing the complainant in the shower, and whether any conversation had occurred with ‘K G’ following that incident, in my opinion the accused gave his evidence in a forthright manner, hampered as he was by the long delay which had taken place. In my opinion there was nothing else in his evidence nor the manner in which he deposed to it, which caused me to reflect adversely upon him as a witness. His denial of the allegations particularly in respect of counts 1 and 2 are consistent with the evidence given by the complainant’s mother and brother, neither of whom had any memory of the accused travelling with the complainant to ‘the pines’ to collect cones nor of any event in ‘the bedroom’ at his house the subject of count 2.
I remind myself that the accused doesn’t have to prove anything. I repeat that before I could find the accused guilty of either count that I am separately considering, I must be satisfied that the complainant’s evidence on that charge is both credible and reliable and that when considered as a whole, including the evidence of the accused, the Prosecution has proved that charge beyond reasonable doubt. In addition, proof of one allegation of discreditable conduct, particularly one which occurred well after the alleged events in counts 1 and 2 on the Information, is not a substitute for proof that he committed the alleged offences that I am to consider.
·Corroboration
It is trite that whether a piece of evidence is capable of amounting to corroboration must be determined having regard to the issues in the trial. In R v E D J [55] Kourakis J noted:
That the corroborative nature of an item of evidence is not lost merely because an accused confesses and avoids it.
[55] [2012] SASCFC 6.
In the subject case the accused did admit having observed the complainant in the shower and suggested that it was an accident. Mere presence or opportunity is not of itself enough for corroboration. While I have found that the accused did indeed observe the complainant in the shower and that it was not accidental, I will direct myself to approach the evidence of the complainant with caution and scrutinise her evidence generally with special care.
·Assessment of the evidence of the complainant
I make it plain that the failure of the complainant to complain about the alleged events in either of the charged counts on the Information does not, of itself, reflect adversely upon the complainant nor is it, of itself, probative value in respect of her credibility or consistency of conduct.
Generally it would be entirely understandable by reason of her age and the fact of the accused’s relationship with her mother, if the complainant did not complain about the alleged charged offences. It remains a curiosity in this case however that while I find that the complainant did complain about the one ‘shower’ incident, that she did not complain about what was, on her evidence, the objectively more serious alleged conduct in counts 1 and 2, and indeed the other alleged discreditable conduct.
I observed the manner in which the complainant gave her evidence, and in particular her reactions when cross-examined. She gave her evidence in a clear manner especially having regard to the long delay since the alleged events in question. She was reluctant however to admit anything which suggested that she may have had a good relationship with the accused at any time during the period of his relationship with her mother. Ultimately when she was shown photographs and cards which she had written, she conceded that there may have been some good times and bad times during period, and that she was anxious for her mother to be happy. She conceded that she was jealous of the accused’s relationship with her mother and that she had been ‘threatened by him from the very first time that her mother started going out with him because she was worried about some else taking her mother away’.
I make it plain that I do not find that the complainant gave a consciously false account of these events. I have no doubt that over the very long period of time since these alleged events, the complainant has convinced herself that they occurred in the manner to which she deposed. It is unclear to me as to the effect of the ‘flashbacks’ about which she deposed. In particular it is unclear to me as to whether she was giving evidence as to her recollections of these events or evidence as to her ‘flashbacks’. I have no doubt that she harboured resentment against the accused for the manner in which she perceived that he had treated her mother. This may have caused her to unwittingly place certain, otherwise innocent events, in a sexual context.
I have reflected very carefully about her evidence as to the alleged discreditable conduct.
I have no doubt that if any such discreditable conduct had occurred, it must have occurred well after the alleged events in counts 1 and 2, and that they would be of little or no weight as evidence placing the charged offences in context.[56] While I do not need to directly determine the allegations of discreditable conduct, I do not accept the evidence of the complainant as to the ‘kettle cord’ incident; nor do I accept that the accused had entered the bathroom on a number of occasions over two years to watch her in the shower. It does not accord with common sense that this would have occurred without further complaint to her mother. I refer to the inconsistency in her evidence as to the presence of a lock on the bathroom door. I do not accept the complainant’s evidence as to the alleged acts of masturbation, nor the accused placing the complainant’s foot on his penis, all of which were said by her to have occurred prior to count 1 on the Information.
[56] R v ATM [2000] NSWCCA 475; WFS v R [2001] VSCA 347, and R v Beserick (1998) 30 NSWLR. I do not need to consider the principle in Browne v Dunn as to the discreditable conduct matters. See CMG v R [2013] VSCA 243.

As to those last two allegations, and the alleged throwing of a bucket of water over her, I find that the complainant has unwittingly embellished some events by placing what might have been innocent acts, in a sexual context. I refer to her evidence that she did not feel any reaction by him to the alleged foot incidents, and that she had thought, at that time, that the bucket of water incident was no more than a ‘joke’.
I do not however accept her evidence that the ‘shower’ incident had occurred prior to the alleged ‘pines’ incident. In my opinion it is not credible that the complainant, after complaining to her mother about the ‘shower’ incident, would subsequently go with him to the pines, albeit with her brother, and yet not complain about being physically molested by him. This is in circumstances where, on her own evidence, the accused did not demand her silence.
Discussion and verdict on each count
I have set out in these Reasons, a synopsis of the evidence in respect of each count on the Information. I have also summarised the respective submissions of counsel. I remind myself that the whole of the evidence is admissible on each count and is available in considering the complainant’s credibility and reliability as a whole.[57]
[57] See R v Lapins [2007] SASC 281 at 52 and R v Brady [2014] SASCFC 7.
As is plain from the decision of the High Court of Australia in Douglass v R,[58] the onus of proof upon the Prosecution in establishing each charge separately beyond reasonable doubt is an exacting standard. It is for the Prosecution to establish that the complainant was both a truthful and reliable witness beyond reasonable doubt.
[58] [2012] HCA 34.
I remind myself that proof that the accused had committed one of the alleged acts of discreditable conduct is not a substitute for proof that he committed the particular charged offence that I am considering.
I turn finally to the two counts on the Information.
In respect of count 1 on the Information, it was the complainant who asserted that ‘the pines’ incident had occurred after ‘the shower’ incident.
It is trite that the date of an alleged offence is not an element of the offence, and does not need to be proved by the Prosecution.
However for the reasons that I have mentioned it does not accord with reality that the complainant, who on her version, had already complained about the accused watching her in the shower, and hated him, would then remain silent after the ‘pines’ incident. In addition, if the complainant’s version in respect of count 1 was correct, the conduct of the accused was not simply ‘brazen’ but incredibly ‘risky’. On that version the complainant had her back to the vehicle facing in the direction in which her brother would return from the pines forest. Further the accused must, on her version, have been concerned that she would complain to her brother and her mother, but said nothing to her.
I do not propose to repeat the various inconsistencies in her evidence, nor my findings as to the other alleged acts of discreditable conduct. In my opinion, having regard to the time line of the alleged event in count 1; the complainant’s evidence that she hated the accused at that earlier time in 1989 when contrasted with her cards and photographs; the absence of any support from ‘L G’ as to either event in counts 1 and 2; the significant forensic disadvantage suffered by the accused by the long delays and my concern as to the ‘flashbacks’ to which she deposed, I cannot accept the reliability of her evidence in count 1. While I accept that she was genuinely attempting to give a truthful and reliable account of her recollections of the alleged event in count 1, her evidence is simply too unreliable and inconsistent to be accepted beyond reasonable doubt.
Accordingly I will return a verdict of not guilty to the charge of Indecent Assault in count 1.
The complainant’s evidence as to count 2 in my opinion suffers from the same difficulties which adversely affect her reliability, as I have explained in respect of count 1. It is frankly impossible to determine whether the complainant’s evidence of what was alleged to be a brief event, with her brother present in the bedroom, and her mother leaving for a relatively short time, was based upon a true memory or a ‘flashback’. In my opinion the reservations which I have expressed as to the reliability of the complainant’s evidence on count 1 carry over to my assessment of this charge.
I cannot be satisfied as to the guilt of the accused of the charge in count 2 beyond reasonable doubt. Accordingly I will return a verdict of not guilty to the charge of Indecent Assault in count 2.
Conclusion
I am not satisfied beyond reasonable doubt as to either of the two counts on the Information bought against the accused. Accordingly my verdicts are:
Count 1 – Not guilty.
Count 2 – Not guilty.