R v D, WD - [2012] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, WD
Criminal Trial by Judge Alone
[2012] SASC 154
Reasons for the Verdicts of The Honourable Justice David
6 September 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Criminal trial by judge alone – accused charged with 3 counts of unlawful sexual intercourse and 1 count of common assault – accused pleaded not guilty – complainant the accused’s stepdaughter – prosecution case relied solely upon the evidence of the complainant.
Held: accused guilty of all 4 counts – complainant’s evidence accepted beyond reasonable doubt in relation to all elements of all charges.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 39 (as at 1 October 2004), referred to.

R v D, WD
[2012] SASC 154
Criminal Trial by Judge Alone

DAVID J: The accused was charged upon an amended Information which alleged:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 22^nd day of March 2003 and the 23^rd day of March 2004 at Beverley, had sexual intercourse with [C], a person of the age of 12 or 13 years, by inserting his fingers into her vagina.
Second Count
Statement of Offence
Common Assault. (Section 39 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[The accused] on the 1^st day of October 2004 at Beverley, assaulted [C], and [C] was at the time of the offence, a family member of [the accused].
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1^st day of January 2005 and the 1^st day of March 2007 at Beverley, had sexual intercourse with [C], a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid.)
Particulars of Offence
[The accused] between the 1^st day of January 2005 and the 1^st day of March 2007 at Beverley, had sexual intercourse with [C], a person under the age of 17 years, by inserting his penis in her vagina.
All of the allegations involve behaviour by the accused upon his stepdaughter (“C”) who was born on 6 March 1991 and is now 21 years of age. At the time of the allegations she was between 12 and 16 years of age.
Before I can find the accused guilty of counts 1, 3 and 4, I must be satisfied beyond reasonable doubt of the following elements on each count which I am considering:
1.The accused had sexual intercourse with C.
2.The act of sexual intercourse was deliberate.
3.That C was under the age of 17 years when the act occurred.
In count 1 the alleged act of sexual intercourse was digital penetration of C’s vagina. In count 3 the alleged act of sexual intercourse was the accused causing C to perform an act of fellatio upon him. In count 4 the alleged act of sexual intercourse was the insertion of his penis into her vagina. Counts 3 and 4 are alleged to have taken place on the same occasion. There is no dispute that at the time these allegations are said to have taken place C was under the age of 17 years.
In relation to count 2, the offence of common assault, the following elements have to be proved beyond reasonable doubt:
1.There must be an application of force by the accused upon C.
2.That act must be deliberate.
3.That act must have been without C’s consent.
4.The accused must have acted unlawfully.
The present allegations concern the accused slapping C in the area of the head without her consent and for no lawful reason. The issue before me is whether it has been proved beyond reasonable doubt that that happened.
I direct myself that in considering the matter, I have treated the occasions of each allegation quite separately. In other words, I have considered count 1 quite separately from count 2 and, again, quite separately from counts 3 and 4 which are alleged to have taken place on the same occasion. However, I direct myself that where there have been inroads into the credibility of C, any reservations in assessing her credibility can apply to all counts. I also remind myself that there is an amount of evidence that is common to all counts.
I turn to the evidence.
The prosecution case
The prosecution called two witnesses; C and Detective Brevet Sergeant Gale, the investigating officer. It is agreed that C was born on 6 March 1991(P1 – birth certificate). Her parents were separated and her mother remarried on 22 March 2003 when C was 12 years of age (P2 – marriage certificate). She has a younger brother who is now aged 19 years. Her mother married the accused who moved in and lived with C, her mother and her brother in their home at Beverley. C gave evidence that, at the present time, the accused resides there with his own father and his wife (C’s mother).
C gave evidence that when the accused first married her mother she understood his occupation to be that of a doctor, although in cross‑examination she accepted that he might have said he was a remedial massage therapist and not a doctor (P3 – certificate of Code of Ethics and Professional Massage – Remedial Massage Therapy Society located in the accused’s house). C told the Court that when she was young she had a problem with her hip which caused pain. At her mother’s suggestion, she allowed the accused to have an opportunity to fix the hip because of his training. She said that at the time she was 12 or 13 years of age. She thought it was about a year after her mother and the accused were married. She then gave evidence of him trying to fix her hip in her mother’s bedroom. That evidence is the subject of count 1. I summarise her evidence on that count.
C gave evidence that the accused was in her mother’s bedroom and she went into the room to have her hip fixed. She walked into the room and ended up next to the accused on her mother’s bed. They were both lying down. C said she did that because he told her to. While she was lying on the bed, the accused pulled down her trousers a little and put his hand in the area of her vagina, he then put his fingers into her vagina. She was unsure whether it was one or two fingers, but he penetrated her vagina. C’s understanding was that the accused was doing this to fix her hips. This episode came to an end when he pulled his fingers out of her vagina and her pants were pulled up. The accused then told C that her hips had been fixed. That evidence is the subject of count 1.
C then gave evidence that about six months to a year later, one of her cousins had an engagement party which her mother attended. When her mother went to that party both C and her brother stayed at her grandmother’s house. Later that night, they were picked up and they went home. When they got home, the accused was there and appeared to be in a very bad mood. C gave evidence that, whilst in that bad mood, the accused slapped her across the face at least once but possibly twice. She said it was with an open hand and was on the cheek and it was the first occasion that he had been violent towards her.
A statement was tendered by consent which established that that party took place on 1 October 2004. That same statement also said that on 14 January 2006 that same cousin of C was married.
The allegation of slapping is the subject of count 2.
C gave further evidence that when the incident which is the basis of count 2 took place she was at Underdale High School which she attended from Year 8 to the first semester of Year 10. During that time she said the accused was not working.
C gave evidence that the accused would often come to the school and pick her up during school hours, telling the school something was wrong or making up a reason for her to leave. During that period of time her mother was working. C told of an occasion when she was taken out of school early by the accused and taken home. Neither her mother nor her brother were at home at the time. C went into her bedroom and was putting her school bag down and was changing out of her school uniform when the accused came into the room and started trying to kiss her and pull her down onto the bed. She gave evidence that she was partially undressed and was wearing nothing on her top half. She then gave evidence that he started kissing her, pinned her arms down and put his penis into her mouth forcibly. She said she could not stop him because he had her pinned down. She gave evidence that he took her underwear off and put his penis into her vagina. She said she was exhausted and kept saying, “what would my mother say about this?” and was trying to kick and trying to scream but nothing was working. She then said he took his penis out and ejaculated onto the bed.
That evidence is the basis of counts 3 and 4.
C gave evidence that she did not tell anybody straightaway because she was too scared. The first person she told was a friend of hers at school (“K”), who was a student in her class. C thinks she told K about a year after the last incident and did so because she needed to tell someone. She gave evidence that she told K that her stepfather had raped her but did not go into detail. C gave evidence that sometime after that, she and K were taken out of the class and the police came down with video cameras and were asking her questions regarding those allegations. She told the police that never happened. She said told the police that because she was too scared.
By way of agreed fact, there is no dispute that on 29 November 2006 Senior Constables Lewis and Walker attended at Croydon High School and spoke to C who did not disclose any offence.
It is to be noted that K was not called at the trial. There was some dialogue with counsel as to what evidentiary basis the evidence of C would have. Strictly speaking, it is a complaint even though the person complained to has not been called. Strictly speaking, it sets out the time when the matter first was bought to the attention of the authorities, but that is to be set off against the fact that when the police came later to investigate that complaint she withdrew it. Effectively, I find that a combination of what she told K and what she told the police negates any aspect of consistent behaviour on her part and I regard it as a neutral fact which is of no benefit to the prosecution. In fact, for the purposes of assessing the credibility of C, I regard her withdrawing of the complaint to the police in the nature of a previous inconsistent statement. There is no dispute that in 2010 she brought the matter to the attention of the authorities. Other than explaining how the authorities came to be finally appraised of the matter that of itself is of no evidentiary value.
In cross‑examination it was put to C that in relation to the whole of the allegations covering all counts, she was not telling the truth. Although it is not necessary for the defence to establish a reason why C might not be telling the truth, it was put that C did not like the accused. It was put that in relation to count 1 there was in fact work done by way of remedial massage on the hips by the accused but this was done in another room in the presence of her mother. It was established that it was her mother who suggested that the accused should fix her hips. It was put very clearly that there was no digital penetration during that incident. C denied those assertions.
Also in cross-examination it was established that as the agreed facts indicated, the marriage of C’s cousin was at the beginning of 2006. C said in cross‑examination that the allegations which are the basis of counts 3 and 4 took place six months to a year after that wedding, which would put it at a different time than she said in her evidence in chief which was when she was about 14 years of age. If it was six months to a year after her cousin’s wedding, she would have been almost 16 years of age. That inconsistency was quite properly stressed by defence counsel in cross‑examination and in her address.
Also in cross‑examination, Ms Mansfield, counsel for the accused, established a number of further inconsistencies in C’s evidence. I have noted them very carefully when assessing C’s credibility and reliability and I set them out in short form:
1.In evidence at trial C said she walked voluntarily and freely into her bedroom in counts 3 and 4. In an admitted statement given to a police officer C said she felt like she was being pushed into there although it was not physical.
2.Also in relation to counts 3 and 4, C said when the accused came into the room he had his pants on, but in an admitted statement to the police she said she found him in the room sitting on the bed with nothing but a t-shirt on. In other words, he did not walk into the room with his pants on as she said in evidence.
3.Also in relation to counts 3 and 4, C said she removed her own bra when getting undressed after school, but when speaking to the police she told them that the accused removed her bra during the incident.
4.There was an inconsistency about the order of events in relation to the acts which are the basis of counts 3 and 4.[1] In relation to that discrepancy, C said in evidence that the descriptions she gave to the police closer to the event would be more accurate.
5.I also regard as an inconsistency the fact that when speaking to the police after complaining to K, C told the police that she had made it up. C has given an explanation for that, namely her fear of the accused, but that is nevertheless a further inconsistency I take into account when considering C’s evidence.
[1] T63.19-65.32.
The accused neither gave nor called evidence. I remind myself that that is a right given to him by law and it does not relieve the prosecution of the burden of proving all charges beyond reasonable doubt. The fact that the accused has taken that course cannot afford any prejudice to him nor can it bolster any weakness in the prosecution case.
Conclusion
The prosecution case relies upon the evidence of one witness. There is no outside supporting evidence. Because of that I need to, and I indeed have, scrutinised the evidence of C with great care because without her evidence there is no prosecution case.
In certain areas I found her to be hesitant and slightly vague. I acknowledge the inconsistencies quite properly brought out by defence counsel and I apply rigorously the necessity of proof beyond reasonable doubt before accepting her evidence on each count as the basis of a finding of guilt.
However, I found her evidence on the core issues compelling. I have careful regard to the cogent arguments put by defence counsel, Ms Mansfield, as to why I should not base a conviction on C’s evidence because of the inconsistencies and vagueness. However, on the salient matters I believe C is telling the truth. I accept her evidence beyond reasonable doubt in relation to all elements of all charges.
Consequently, my verdicts are as follows:
-Count 1: guilty.
-Count 2: guilty.
-Count 3: guilty.
-Count 4: guilty.