R v D, WJ (No 2) - [2012] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, WJ (No 2)
Criminal Trial by Judge Alone
[2012] SADC 17
Reasons for the Verdict of His Honour Judge Soulio
24 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of persistent sexual exploitation of a child.
Verdict: Not Guilty
Criminal Law Consolidation Act 1935 (SA) ss 50, 52, 53, 56, 58, 72A, 76A; Evidence Act 1929 (SA) ss 34CB, 34M, 45B; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Criminal Law Consolidation Act Amendment Act No. 14 of 2003, referred to.
R v D, WJ [2012] SADC 16; R v Dossi (1918) 13 Cr App R 158; R v T (1985) 38 SASR 428; R v Pinder (1989) 155 LSJS 65; R v Seigneur (2009) 103 SASR 207; Crampton v The Queen (2000) 206 CLR 161; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Eade (1984) 14 A Crim R 186; R v Calabria (1982) 31 SASR 423; R v Livingstone [2011] SASCFC 28 (unreported, Vanstone, White & Kelly JJ, 15 April 2011); Hardwick v The State of Western Australia [2011] WASCA 164; R V WB (2009) 197 A Crim R 18; R v Littler (2001) 120 A Crim R 512, considered.

R v D, WJ (No 2)
[2012] SADC 17
Background

As a child, the complainant G, lived in an inner suburb of Adelaide. The accused is her natural father. G alleges that between 1955 and 1959, when she was between 11 and 15 years old, she was sexually abused by the accused. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charge
The accused is charged with persistent sexual exploitation of a child, pursuant to s 50(1) of the Criminal Law Consolidation Act, 1935 (SA) (CLCA).[1]
[1] Although s 50(1) came into operation on 23 November 2008, by s 50(6) of the Criminal Law Consolidation Act 1935 the section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of the section.
The particulars alleged are that:
The accused, over a period of not less than three days between the 23^rd day of December 1955 and the 23^rd day of December 1959 at DP and WC, persistently sexually exploited G, a person under the age of 17 years, by causing her to touch his penis through his clothes, putting his penis in her mouth and by inserting his penis into her vagina.
Application for Permanent Stay
The accused made application for a permanent stay of proceedings on the basis of the extensive delay between the alleged acts giving rise to the charge, and the trial; the significant forensic disadvantage faced by the accused due to the unavailability of potential witnesses now deceased and documentary evidence now destroyed; and the medical condition of the accused. I refused the application for a permanent stay.[2]
[2] See R v D, WJ [2012] SADC 16.
Preliminary Matters
It is necessary to give consideration to the elements of the offence and to the onus of proof. Although a range of dates in relation to the offence is alleged in the Information, the exact dates are not an essential ingredient of any of the particularised acts or the charged offence. The acts alleged must be generally identified and I must be satisfied the charge is proven beyond reasonable doubt.[3] It is necessary to consider the warning which is required given the delay in bringing attention to the matters which are the subject of the present trial.
[3] R v Dossi (1918) 13 Cr App R 158 at 159–60.
Directions
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of the charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
I remind myself, that in considering any charge, I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied, before I could convict the accused, that the prosecution has proved, beyond reasonable doubt, each element of the charge.
Delay
Delay in Complaint
The principal offence is alleged to have occurred between 52 and 56 years ago. The first time the matter was reported to any authority by the complainant was in 1993 when she reported the matter to police, but requested that no action be taken.
In any event, at that time s 76A applied to such offences and thereby precluded prosecutions commenced more than three years after the alleged offence.[4] Although s 76A was repealed in 1985, and the repeal applied retrospectively, it was incapable of reviving prosecutions after the three year limit elapsed.[5]
[4] R v T (1985) 38 SASR 428.
[5] R v Pinder (1989) 155 LSJS 65.
In 2003 s 72A of the CLCA was enacted, and relevantly provided:
Any immunity from prosecution arising because of the time limit imposed by the former section 76A is abolished.
Accordingly no statutory bar operates to prevent the bringing of the present charge.
The Information upon which the accused was charged was laid in this Court on 14 October 2010. The provisions of s 34M of the Evidence Act 1929 (SA) apply.[6] Section 34M relevantly provides that:
(2)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 victim's credibility or consistency of conduct.
[6] R v Seigneur (2009) 103 SASR 207.
The prosecution did not rely on “complaint evidence”, and therefore the remaining provisions of s 34M need not be considered.
Delay Generally
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint.[7]
… It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[8]
[7] For example R v Davis (1995) 81 A Crim R 156 at 158-159; R v Liddy (No 4) [2001] SASC 152.
[8] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 at 158-159.
Section 34CB of the Evidence Act, which also applies to the present proceedings, provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; and
(b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
I bear in mind that in a case involving lengthy delay, the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic weapons that contemporaneity provides.[9]
[9] Crampton v The Queen (2000) 206 CLR 161 at [45].
Here, the lapse of time is such that there is a significant risk that the accused has suffered a forensic disadvantage. Because of a delay of such length, there is almost always the potential that an accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence to counter the allegations.
If I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach the charge on the basis that I should give close scrutiny to the complainant’s evidence.
Specific Forensic Disadvantage
In the present case, the forensic disadvantage suffered by the accused has been more particularly identified. As set out in the earlier decision dismissing the accused’s application for a permanent stay,[10] the complainant asserted, in her declarations, that the sexual acts committed against her fall into two broad categories: the first involving sexual acts committed against her at the family home, in particular when she had been sent home from the neighbour’s house and was alone in the family house with the accused; and the second involving sexual acts committed on numerous occasions when the accused collected the complainant after Girl Guides meetings.
[10] R v D, WJ [2012] SADC 16.
The complainant asserted that she had been sent to live with an aunt and uncle for a period because of something the accused had done to her. She made assertions about the nature of the relationship between her and her father, and between her and her mother. The complainant identified the vehicle, or vehicles, in which she said the sexual acts occurred after Girl Guides meetings, one of which was a work vehicle, and another a specified private vehicle.
Loss of Witnesses
Counsel for the accused submitted that witnesses identified in the declarations of the complainant could have either corroborated or contradicted critical elements of the complainant’s account, had they been able to give evidence a trial. However, because of the extensive delay the court is deprived of the opportunity to determine whether those witnesses would support or undermine that account. Further, the accused submitted, it is a reasonable possibility that the witnesses would have undermined the complainant’s account to such an extent that no reliance could be placed upon her evidence or its trustworthiness.[11]
[11] R v Littler (2001) 120 A Crim R 512.
The potential witnesses, now deceased, include the accused’s wife, the complainant’s aunt and uncle with whom she went to stay, her paternal grandfather who lived in the family house, her maternal grandparents with whom her sister went to stay, the complainant’s former husband who often visited the house, and the neighbours from whose house the complainant was allegedly sent home to stay with the accused.
The accused submitted that such potential witnesses may have been able to contradict the complainant’s account of events insofar as the witnesses were said to have been either present or near the site of alleged offending; exposed to or involved in the immediate aftermath of the alleged offending; were said to have provided opportunity for the accused to offend against the complainant; or could speak of the complainant’s relationship with her parents following the alleged abuse.
Use of Unsigned Statement
I accept that the accused should not be required to identify with precision what witnesses, now deceased and therefore unavailable, would have said had they been available to give evidence.
However, I received, by consent, a draft unsigned statement of the accused’s wife, taken on 16 May 2011. She unfortunately died on 7 September 2011. The complainant had estranged herself from the accused and his wife. The accused’s wife was therefore, it seems to me, to be regarded as being “in the accused’s camp”.
Counsel for the accused tendered the statement, not only in support for the contention that the accused had suffered a forensic disadvantage, but also pursuant to s 45B of the Evidence Act, as to the truth of its contents for the purpose of contradicting the complainant’s evidence in relation to certain issues.
Section 45B provides:
(1)An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred shall, subject to this section, be admissible in evidence.
(2)A document shall not be admitted in evidence under this section where the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.
(3)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(4)In determining whether to admit a document in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence.
(5)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(6)     In this section—
document means—
(a)     any original document; or
(b)     any reproduction of an original document by photographic, photostatic or lithographic or other like process.
Counsel for the accused relied on R v Eade[12] where King CJ accepted that the statement of a police witness was admissible pursuant to s 45B, when that police officer had passed away prior to trial. King CJ discussed the discretionary considerations that might preclude the tender.[13] However, there, the statement was a signed declaration.
[12] R v Eade (1984) 14 A Crim R 186.
[13] Ibid at 189.
Counsel for the prosecution relied on R v Calabria[14] where King CJ considered the factors which applied in consideration of whether a document should be admitted pursuant to s 45B where a document was unsigned.
[14] R v Calabria (1982) 31 SASR 423.
King CJ accepted that, in circumstances such as here, where the statement was taken from a witness by a solicitor, and dictated for transcribing, the statement was prepared at the direction of the witness for the purposes of s 45B(2).[15]
[15] Ibid at 431.
The section makes it clear that the statement must have evidentiary weight and does not affect the rule as to relevance as the basis for admissibility. The section provides a very broad ground of admissibility and surrounds that with safeguards. The ground of admissibility consists of the apparent genuineness of the document containing the statement of fact, together with the apparent ability of the person by whom, or at whose direction, the document is prepared, to have deposed of his own knowledge, at the time of the preparation of the document, to the statement contained in the document. The safeguards consist of discretions vested in the trial judge to exclude the document on the widest of grounds.[16]
[16] Ibid at 430.
King CJ went on to say that: [17]
The very breadth of the ground of admissibility and of the discretions to exclude, suggests that the section is not to be construed narrowly or technically. Its remedial character and the mischief which it is evidently designed to remedy, combine to indicate the need for a broad construction, giving the courts the widest discretion as to which documents containing statements should be admitted. In order to give full effect to the remedial purpose of the section, the dangers associated with unreliable material coming before courts should be met, not by giving a narrow or technical meaning to the ground of admissibility, but by reliance upon the judicial discretion to exclude.
[17] Ibid.
Ultimately King CJ upheld the trial judge’s decision to refuse the tender, holding that it was contrary to the interests of justice to admit a document under s 45B where available evidence to authenticate the document, and to verify the accuracy of the recording of the statement contained therein, is not produced, particularly where the statement is not made in the ordinary course of affairs, in the course of an official inquiry, or in other circumstances which themselves suggest that it is a disinterested statement given without regard to the outcome of the proceedings before the court.[18]
[18] Ibid at 432.
As King CJ observed, the documents in question could well have been the product of some degree of interpretation of the witness’s words by the solicitor.[19] There, as here, the witness did not read over and approve the statements, and did not verify them by signature. King CJ held that those factors, together with the fact that there was no affidavit from the solicitor as to how the witness came to be in the solicitor’s office, how the statements were taken, and verifying that what was contained in the documents truly represented what the witness had said, outweighed the considerations in favour of the admission of the documents.
[19] Ibid.
Here, there was affidavit evidence from the accused’s solicitor stating: that the accused’s late wife provided a draft statement to the accused’s legal advisers dealing with a number of topics raised by the complainant in her numerous statements; that the information obtained in the course of a conference was later translated into electronic form but she was not shown the draft statement at the time nor was it signed; and that it was anticipated that she would again be proofed by the accused’s advisers and would add any additional relevant details to the statement and subsequently sign it. It was anticipated that she would be called as a witness for the defence, the police having never obtained a statement from her.
The statement does not purport to be a verbatim account of the witness’s proposed evidence. It is in a narrative form. It may well be that it contains aspects of interpretation by the accused’s solicitor or indeed error. I say that entirely without criticism. Alternatively, it may be that had the accused’s wife been provided with an opportunity to read the statement she would have been prepared to adopt it in its entirety.

I indicated that I would reserve my ruling on the receipt of that statement as to the truth of its contents. Given that the evidence cannot be tested because the witness is not available to be called, and there is some uncertainty attendant upon the contents of the statement by virtue of the fact that it is unread, unreviewed and unsigned, it seems to me that the appropriate course is to exclude the statement as to the truth of its contents. I refuse the tender of the statement as to the truth of its contents, but receive the statement as some indication of the potential evidence lost to the accused for the purposes of assessing the forensic disadvantage suffered by the accused by virtue of the delay.
The draft statement of the accused’s wife raises the inference that, had she been available to give evidence, her evidence would have contradicted various allegations by the complainant as to aspects of the offending behaviour, and as to aspects of the surrounding circumstances, in particular: that the accused abused the complainant in the hallway of the family home in August 1951 in the presence of other family members; that the accused behaved inappropriately when bathing the children; that the accused excessively disciplined the complainant; that the complainant was sent home from her neighbour’s house in circumstances which provided the accused with an opportunity to sexually abuse her; that the accused collected the complainant from Girl Guides sessions in other than a timely fashion; that the complainant, in the presence of, or with the knowledge of, the accused’s wife, claimed the accused had impregnated her, and that relationships between members of the family were other than harmonious.
Loss of Documents
The accused had made attempts to obtain documentary evidence which might contradict the complainant’s account, but such attempts were futile because the records in question had long since been destroyed.
The documentary records no longer available include: documents relating to the accused’s employment history, and the accused’s ownership of or access to motor vehicles during the relevant period; the complainant’s period of involvement in Girl Guides; the complainant’s school and medical records; and at much later times, the complainant’s attendances at Yarrow Place, the Clovelly Park Community Health Centre, the Southern Women’s Community Health Centre, and the Victims of Crime Service.
The documentary material, it was submitted, had the potential to contradict the complainant’s account by providing evidence relating to: when and for what period the complainant attended Girl Guides; periods of employment relating to the accused which may have contradicted the complainant’s evidence regarding sexual acts taking place in an identified work vehicle; and private vehicles said to have been owned by the accused at the relevant time. In addition, the medical and school records had the potential to contradict the complainant’s evidence.
Hypnotherapy
Further, the complainant underwent hypnotherapy in 1992, and the topic of abuse formed part of that process. Although the complainant asserted that she had always had a memory of the abuse she suffered, there is at least a possibility that the account she has given is, in part or in whole, given from recovered memory. Given the lapse of time, the doctor in question has no memory of the complainant, the notes of the sessions are no longer available, and recordings of the sessions are not available. Such evidence may have indeed, it may be inferred, clarified that issue. It is not possible to now determine whether the complainant’s evidence is so derived.
Numerous authorities have expounded upon the dangers associated with evidence based upon memories recovered as a result of hypnotherapy.[20]
[20] Hardwick v The State of Western Australia [2011] WASCA 164 at [77], and the cases there cited.
It is not now possible to determine whether the requirements identified in R v WB,[21] as to the eliciting of hypnotically induced evidence, were relevant to this prosecution, let alone whether they had been met.
Conclusion re Forensic Disadvantage
[21] R v WB (2009) 197 A Crim R 18.
Having regard to the affidavit material, and the submissions of counsel, I have come to the view that the period of time that has elapsed between the alleged offending and the trial, has resulted in a significant forensic disadvantage to the accused, and I must take that into account when scrutinising the evidence. Further, as the case against the accused consists of G’s unsupported evidence, I should scrutinize her evidence with care. I must exercise similar caution when considering evidence of uncharged acts, and I must closely scrutinise the complainant’s evidence before I could be satisfied of its truth and accuracy.
The Elements of the Offence
Section 50(1) of the CLCA provides:
An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
The elements of the offence are:
1.That the accused was an adult.
2.That the complainant was under the “prescribed age”. If the accused is in a “position of authority” that age is 18 years. In any other case that age is 17 years.
“Position of authority” is defined in the Act.[22]
3.The accused must commit more than one act of sexual exploitation of the complainant over a period of not less than three days.
An “act of sexual exploitation” is one where, if the act was properly particularised, it could be the subject of a “sexual offence”.
A “sexual offence” is defined as:
(a)     an offence against Division 11 (other than ss 59 and 61) or s 63B, 66, 69 and 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment.
[22] Criminal Law Consolidation Act 1935 s 50(8).
Elements one and two are not in dispute. The accused was an adult at the relevant time. It was not necessary for the purposes of the trial to consider whether the accused was in a position of authority, as there was no dispute that at the time of the alleged acts particularised, the complainant was aged between 11 and 15 years.
The issue to be determined is whether the Director of Public Prosecutions (DPP) has proved, beyond reasonable doubt, that more than one act of sexual exploitation took place over a period of not less than three days, as alleged by the complainant.
As I have said, the DPP alleged that the accused committed acts of sexual exploitation which at the relevant time constituted sexual offences of:
1.     Indecent assault
2.     Gross indecency
3.     Carnal knowledge
Each of these offences is “an offence against Division 11 or a substantially similar offence against a previous enactment,” within the meaning of s 50(7) of the CLCA.
The Elements of the Sexual Offences Constituting the Charged Offence
1. Indecent Assault
The prosecution case is that the accused, in causing the complainant to touch his penis through his clothing, committed the offence of indecent assault, contrary to s 56 of the CLCA.[23]
[23] As it read at the relevant time.
It is necessary for the prosecution to prove, beyond reasonable doubt, that the accused committed the act alleged, namely causing G to touch the accused’s penis through his clothing, as the first element. The second element is that the act was done with, or in the presence of, G. The third element is that the act must have been indecent. I bear in mind that indecency connotes some form of sexual conduct or activity which is to be regarded as indecent having regard to the age of the complainant, and the nature and circumstances of the conduct or activity, and to contemporary standards of morality and decency. The defence did not dispute that, if the act alleged by G was committed, it constituted an act of indecent assault.
2. Gross Indecency
The prosecution case is that the accused, by putting his penis in the complainant’s mouth, committed the offence of gross indecency contrary to s 58 of the CLCA.[24]
[24] Ibid.
It is necessary for the prosecution to prove, beyond reasonable doubt, that the accused committed the act alleged, namely causing G to suck the accused’s penis, as the first element. The second element is that the act was done with or in the presence of G. The third element is that the act must have been indecent. In order to make out the charge of gross indecency, the fourth element which must be established is that the indecency must be gross, that is, something more than minor trivial indecency, so that it can be characterised not only as indecent but as grossly indecent.
Again, the defence did not dispute that if the act alleged by G was committed, it constituted an act of gross indecency.
3. Carnal Knowledge
The prosecution alleged that the accused had engaged in acts of vaginal sexual intercourse with the complainant. The act of vaginal sexual intercourse would amount to the offence of carnal knowledge pursuant to s 52 of the CLCA, if the complainant was 12 years or younger at the time, or pursuant to s 53 of the CLCA if she was older than 12 years at the time.[25]
[25] Ibid.
In order to establish the offence the prosecution would need to prove beyond reasonable doubt, that the accused’s penis penetrated the complainant’s vagina, and that at the time she was aged 12 years or younger, or was under the age of 17 years. Consent is not an issue given the age of the complainant at the time of the alleged events.
Again, the defence did not dispute that if the acts alleged by G were committed, they constituted acts of carnal knowledge.
Uncharged Acts
Counsel for the prosecution submitted that acts of which the complainant gave evidence, namely grabbing the complainant on the vagina over her clothing, and touching her breasts over her clothing, when she was six or seven years old, or touching her in a sexual manner when she was bathing or at the beach, would, if proven, amount to indecent assault pursuant to s 56 of the CLCA.[26]
[26] Ibid.
Witnesses
The Crown case comprised the evidence of G, together with her sister, J, the complainant’s cousin T, and the investigating officer, Detective Franz. The accused gave evidence in his own defence, and called his son-in-law, J’s husband, to give evidence. The accused denied that the offending took place.
The Prosecution Evidence
The Complainant
At the time of giving evidence the complainant was 67 years of age, having been born on 23 December 1944. During the time particularised in the Information she was therefore between 11 and 15 years old.
The complainant, and her younger sister, J, lived with her parents. When asked to describe her relationship with her mother the complainant said that she always seemed to be in trouble and that she wasn’t very happy. She said that when she was six or seven years old she did not have a real relationship with her father, and her father hardly ever spoke to her.
She spent a lot of time during school holidays staying with an aunt and uncle. Although she did not recall it personally, she had been told that she had also spent time with her aunt and uncle when she was a baby. She first recalled going there when she was four years of age, at which time she attended kindergarten and spent a lot of that year living with them.
She again spent a period there when she was seven years of age. She said that prior to going to stay with her aunt and uncle when she was seven years of age, she recalled being in the hallway with her father, and she recalled her mother coming into the hallway and starting to scream. The complainant said that her grandfather, who also lived in the house, took her and her sister to her maternal grandparent’s house. She was unable to describe what had happened in the hallway other than to say that her father had her near the wall and she was uncomfortable. Her aunt and uncle travelled from their home town to collect her and she spent the next eight months there, following which she returned to live in Adelaide.
She said that her father was never friendly towards her after her return and she felt that he did not like her. However, she said that when she would walk past her father he would pull the back of her trousers, or grab her on the vagina on the outside of her clothing. Such acts, if their occurrence was accepted, beyond reasonable doubt, would constitute offences, albeit uncharged.
She said that there were occasions when sexual acts occurred in the family house. She would go with her mother and sister to visit neighbours next door. She would “always get sent back home”. She said that when she was sent home she would try to avoid the accused but would often “get caught” and he would want her to touch him. She said that he would rub up against her, and then make her either touch his penis or suck his penis.
She said that when she was about 11 years of age she started attending Girl Guides meetings not far from her house. The accused would collect her from Girl Guides, most weeks, in a car, which was either his work van, or a two tone green station wagon he owned. She said that he would then take her to a street near the old Bex factory, a relatively isolated location, and would touch her on the breasts or vagina. Afterwards he told her not to tell anybody.
She said that the nature of the sexual abuse changed in that the accused would develop an erection, and make her touch his erection over his clothing. On subsequent occasions he took his penis out of his trousers and made her touch his penis or suck his penis. She thought that first happened when she was about 12 years old, and occurred on a significant number of occasions from when she was 12 years old until she was about 14 years old.
She gave evidence that from a time when she was 12 years old, the accused also engaged in sexual intercourse with her. She said he pushed her down after she had been sucking his penis, and then put his penis into her vagina. He did so on a number of occasions. She said that that always occurred in the front seat, and that she was in the passenger seat in the front “because the van didn’t have seats in the back”.
She said that on later occasions, commencing when she was 13 years old, the accused would sit in the driver’s seat and would move her over so that she was on top of him facing the back of the car. She was unable to say on how many occasions sexual intercourse occurred in that manner.
She said the last occasion that the accused had sexual intercourse with her was when she was about 15 years old and still attending Girl Guides. She said that sexual activity between the accused and her ceased after a day when she believed she was pregnant, and had yelled at her father. She said he picked her up, and threw her against the wall. She said her mother was present when that happened and told her not to be stupid.
Cross-examination of the Complainant
The complainant agreed that the house in which she lived was a busy house, the occupants of which included her sister, her two parents, her grandfather, and an uncle, and there was a period when her great-grandfather also lived in the house. She agreed that there were gates between the side fences connecting the neighbours houses and that neighbours would drop in informally, without notice.
She agreed that her aunt and uncle enjoyed having her visit, and would provide her with food and gifts, and that she very much liked staying there. She was asked whether the circumstances which led to her going to live with her aunt and uncle for some months related to her mother suffering some form of breakdown, or her mother requiring relief from the stress of looking after everyone. She thought that there was not much of a requirement to look after anyone, and I infer that she thereby refuted the suggestion.
The complainant suggested that she had told her mother about the sexual abuse. She said that she did not use specific language but said things like “I don’t want to go there because he’s there” and her mother responded by saying “you have to, you’re making things up.”
She said her father threatened that she and the family would be “kicked out of the house” if she said anything about what was happening because her grandfather owned the house. She agreed that the accused had purchased the house, but thought it was when she was in her teens. She conceded, however, that that might have occurred in 1953 when she was about nine years old.
She believed that the van the accused picked her up in from Girl Guides was a United Builders van which had building materials and rags in it. She said that there was also “a ute type of thing” which she believed had United Builders markings on it.
It was suggested to her that the United Builders van containing building materials could not have been in the accused’s possession in the period in question because he did not start work with United Builders until 1959 or later. It was suggested to the complainant that the two tone green station wagon did not come into the accused’s possession until some time in the 1960s or later. She said “I can see that car. Like I said I know it was a work van or maybe a ute but that car I am sure. I can see that car there, when I was there.”
The complainant married when she was 18 years old, and moved out to live with her husband. She moved back to live in the family house, where the accused was living, in late 1968, because she and her husband had purchased a house, but were unable to move into the house immediately. She agreed that she continued to have contact with both parents over the years including at family events, and at Christmas and Easter. She also agreed that her parents looked after her children, including taking them on holidays in country South Australia.
The complainant said that she had suppressed a lot of what had happened to her, but in the mid 80s following a motor vehicle collision, she experienced nightmares and dreams about the subject matter of the allegations. She said that she would see something on television, or something might trigger a memory, which would then fit together. She was asked “you have to rejig in your head the memories and see where they slot in?” and she answered “sometimes, yes.”
She underwent hypnotherapy in an attempt to relax and overcome her anxiety. She had the impression that the hypnotherapy sessions were recorded. She agreed that she had written an account of aspects of her childhood in later years and made the comment “how all these years I believed they are about someone else” in reference to the childhood memories of abuse.
She agreed that the first report to authorities was in 1993, and the next occasion was in 2009.
The Complainant’s Cousin - D
D is a cousin of the complainant, and niece of the accused. She said that when she was 11 years old she started attending Girl Guides meetings. She attended for four years but said that the complainant attended for a shorter period which she estimated at 12 or 15 months. She conceded that she could not really recall the period accurately.
The Complainant’s Sister - J
J recalled the complainant going to live with her aunt and uncle and said that she believed that the complainant was happy to do so because she was spoiled when she stayed there.
She said that she had a normal sisterly relationship with the complainant and they got on well. She thought that the complainant’s relationship with their mother was a positive relationship. She said that she never saw anything other than G and their mother getting on well together.
She described the accused as a quiet, hard working family man who worked six or seven days a week in the building trade. She said that she did not recall any arguments between the complainant and their mother, or between the complainant and their father.
She described the neighbourhood they lived in as a very busy neighbourhood with neighbours constantly visiting. J said that she and the complainant and their mother would go to visit their immediate neighbours very regularly. She said that they were treated equally by that neighbour, and to her memory the complainant was never sent home by that neighbour when they visited on Saturdays.

She was asked in cross-examination about vehicles that her father had owned. She said in the late 1950s he had an Austin A40 which was a sedan. She said he had a green ute in the early 1960s. She believed that the accused started working for United Builders in the late 50s to early 60s. She was asked about a two tone green Holden station wagon and said that he did not own that car until the early 1970s.
She also said that she recalled her mother having a breakdown when she, J, was two or three years of age, and that her mother had had a miscarriage when J was in about grade six or seven, that is in about 1954 or 1955. She said that their mother told both the complainant and J about that, and that it was an upsetting time for their parents.
The Investigating Officer – Detective Franz
The investigating officer, Detective Franz was called, in essence, to establish that he had made inquiries in relation to this matter, and ascertained: that the Girl Guides organisation had no records relating to Croydon Girl Guides at the relevant time; that the general practitioner who had treated the complainant in the late 80s had no recollection of any treatment and that all records had been destroyed; and that inquiries with Transport South Australia regarding vehicles owned by the accused from time to time came to nothing, as the records had been destroyed. Further, he confirmed that death certificates had been obtained establishing that potential witnesses, including the people referred to in evidence, had passed away in the intervening period. He had made inquiries of the country area school which confirmed that the complainant had commenced at that school in August 1951 and had resumed at her regular school in May 1952.
Defence Evidence
The Accused
The accused, as I have said, was 87 years old at the time of trial. He was born on 28 October 1924. At the time the offences are alleged to have occurred he was between 31 and 35 years old. He said that he served during World War II and returned to Australia in 1946, and resumed living in his father’s house, which he later purchased in the 1950s. He said that during that initial period he lived there with his grandfather, his father, his brother, his wife and their two daughters. He said that he had what he regarded as a normal relationship with both G and J, and that as far as he could tell there was a good relationship between the children and his wife. He denied engaging in behaviour of a sexual nature with G at all. He denied the specific incidents alleged.
He said that in the 1950s he worked for a butcher. He did not have access to the butcher’s van for private use. He said that his private vehicle in the 1950s was a small green Austin sedan. He agreed that when he worked for United Builders he was provided with a vehicle, a green utility vehicle. A photograph of the vehicle was tendered. He said that he commenced working for United Builders in 1962. He agreed that he would have carried carpentry tools in the vehicle, timber, and perhaps signs that were put up at the front of a house. After the ute, he was provided with a white van. He said that he first owned a green two tone station wagon in the 1970s.
He said that G attended Girl Guides for four or five years, contrary to the evidence of D. He said on occasions when collecting G from Girl Guides he would also take D home. He said the vehicle he used would have been the Austin sedan. He denied that any sexual activity with G took place after he had collected her from Girl Guides.
In cross-examination the accused was asked if he could be wrong about the date at which he commenced work at United Builders, namely 1962. He said that he retired in 1982 and believed that he had worked there for 20 years. He said it could have been a couple of years later than 1962, but not earlier.
He agreed that he had worked for other builders prior to that time but said that he was never provided with a work vehicle. He agreed that when he was working at the butchers shop the butcher had a white van, but said that he did not have access to that, and that it was the butcher’s private vehicle.
He firmly refuted the allegation, during the course of subsequent cross-examination, that he had engaged in sexual conduct with G.
The Accused’s Son-in-Law
The accused’s son-in-law, J’s husband, said that he first met J in 1962. He said that at the time the accused had the use of a FC Holden green utility with “United Builders” written on it. He said that he moved to Berri in 1969 and at some stage after that, the accused and the accused’s wife would visit, initially using the utility, but at a later time using a two tone green FC Holden station wagon. He said that that vehicle was not owned by the accused when he first met the family in 1962.
Addresses
Prosecution Submissions
Counsel for the prosecution, Ms Roper, submitted that the evidence of G provided a compelling foundation for finding that the charge had been proved beyond reasonable doubt.
Ms Roper urged the acceptance of the complainant as an honest witness, doing her best to tell the truth as she remembered it. She pointed to the fact that the complainant was unable to describe the detail of the incident which occurred in the hallway, which led to the complainant’s departure to stay with her aunt and uncle, and said that the complainant conceded that she was not able to remember what had happened, indicative of the fact that she did not embellish, or seek to fill in gaps in her memory.
Ms Roper suggested that the effect of the complainant’s evidence was that she could not remember much of the detail of the motor vehicle in which the offending occurred after the Girl Guides meetings, but rather she could remember building material and rags in that vehicle. She submitted that it was clear that the accused was a builder or a carpenter during the 1950s and that he may have had access to work vehicles.
Ms Roper submitted that, considering the manner in which the complainant gave her evidence, and the way she stood up to cross-examination, it was open to find that she was a reliable and credible witness, and to find the accused guilty of the charge beyond reasonable doubt.
Defence Submissions
Counsel for the accused, Mr Handshin, made the submission that having regard to the two competing bodies of sworn evidence, I would ultimately be left with at least a doubt as to where the truth lies. The accused denied the allegations on oath and was not shaken in cross-examination.
Counsel for the accused made the submission that the forensic disadvantage suffered by the accused was a significant factor which overlay all of the evidence heard in the trial. Counsel conceded, quite properly, that the mere fact of delay could not be regarded as probative, but in the present case there was a combination of factors which would give cause for concern as to whether the charge was established beyond reasonable doubt.
One such factor was the issue of the vehicle in which the complainant said that the offending after Girl Guides meetings occurred. The preponderance of evidence establishes that the accused did not commence working for United Builders until after 1960, and did not own the two tone green station wagon until after 1970.
Counsel submitted that the evidence on the topic of cars was indicative of the fact that the complainant was engaging in an exercise of reconstruction, incorporating a memory of the possession of cars into activities which could not have occurred at the time suggested, and, in counsel’s submission, thereby making a fiction out of her complaints.
Counsel submitted that the issue of forensic disadvantage was an important one in the circumstances of this case. There were a number of witnesses who would have been in a position to assist the accused, and a number of records and documents which would have assisted the accused’s case.
Counsel pointed to the inherent unlikelihood of acts of fellatio taking part in a house which was a busy household, in a busy neighbourhood where people had access to each other’s houses though the backyard gates, and would visit unannounced. He suggested that the account of the brazen behaviour in the house was at odds with the surreptitious behaviour alleged in respect of the offending following Girl Guides meetings.
He pointed to a number of inconsistencies in the complainant’s evidence, compared with that of other witnesses, including the nature of her relationship with the accused and her mother, which was contradicted by the complainant’s sister, and the accused.
He suggested there was an internal inconsistency in the complainant’s evidence, in that the complainant said she was threatened by the accused that she should not tell anyone or they would be kicked out of the house, and yet suggested that she had in effect complained to her mother about the accused’s behaviour. He described the complainant’s evidence about her confronting the accused that he had made her pregnant, as bizarre.
Conclusion
This is a difficult matter. It is made more so by the extraordinary passage of time since the acts said to give rise to the charges took place.
I find that the accused has suffered a significant forensic disadvantage for the reasons outlined. He has been deprived of the opportunity to proof and call witnesses who might have supported his account or contradicted that of the complainant. Having received the draft statement of the accused’s wife for the purposes of assessing forensic disadvantage, I conclude that she, in particular, may well have been in a position to do so. Documentary evidence as to the periods of employment and ownership of vehicles and membership of the Girl Guides has also been lost, as have medical records relating to a general practitioner’s visit to the complainant’s house when she was a child, and the records of any medical treatment, including hypnotherapy, in the late 80s and early 90s. That forensic disadvantage requires me to scrutinise the complainant’s evidence with particular care.[27]
[27] R v Livingstone [2011] SASCFC 28 (unreported, Vanstone, White & Kelly JJ, 15 April 2011).
It is apparent that the complainant truly believes that she was subjected to a sustained period of sexual abuse at the hands of the accused. It may be that she was. However, her evidence is attended by inconsistencies, and errors as to the chronology of events. In particular her evidence that part of the abuse, namely that which is said to have occurred following the Girl Guides meetings, occurred in particular vehicles which she could clearly visualise, could not have occurred as stated, given that those vehicles did not come into existence or into the possession of the accused until years and even decades later.
There is at least a reasonable possibility that the complainant has confused events, conflated events, and has come to believe in the occurrence of events as a result of a mental process which is not capable of being properly explored, given the passage of time and the loss of records, including medical records.
In the face of sworn evidence from the accused denying that any sexual activity occurred between him and the complainant, I cannot be satisfied, beyond reasonable doubt, that the accused committed the sexual acts particularised, or indeed any sexual abuse of the complainant.
Verdict – not guilty.