R v DOLAN - [2006] SADC 104

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOLAN
Criminal Trial by Judge Alone
[2006] SADC 104
Reasons for the Verdicts of His Honour Judge Clayton
8 September 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with four counts of unlawful sexual intercourse with a person under 12 and two counts of indecent assault.
HELD: Not guilty on all counts
Criminal Law Consolidation Act 1935 ss 49(1) and 56, referred to.

R v DOLAN
[2006] SADC 104

The accused stands charged with four counts of unlawful sexual intercourse with a person under 12 contrary to section 49(1) of the Criminal Law Consolidation Act 1935 and two counts of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935.
The first count of unlawful sexual intercourse and the first count of indecent assault are alleged to have been committed between 1 January 1990 and 13 September 1993 at Lyrup. The second count of indecent assault is alleged to have been committed between 1 January 1990 and 6 September 1993 at Lyrup. The final three counts are alleged to have been committed between 1 September 1991 and 30 November 1992 at Athol Park. In each case the alleged victim was a daughter of the accused who was born on 28 March 1984.
The accused elected for trial by judge alone.
In addition to the complainant, evidence for the prosecution was given by the mother of the complainant, a police officer who at the relevant time was attached to the Sexual Assault Unit of the South Australian Police Force, Ms R C Gray a solicitor who was employed in the Office of the Director of Public Prosecutions and Detective Davis, a police officer who interviewed the accused at his property at Lyrup on 5 October 1993. The exhibits included extracts from a letter which the accused posted to Detective Davis on 18 November 1993 and a “proofing note” which Ms Gray had dictated following an attendance upon the complainant on 16 July 2002.
The prosecution has taken more than a decade to come to trial. One explanation for that is the fact that the accused had moved to Queensland and was not brought back to South Australia until August 2002. The prosecution did not suggest that the move of the accused to Queensland amounted to flight which demonstrated a consciousness of guilt.
The prosecution also conceded that there was no recent complaint which corroborated the evidence of the complainant. Accordingly, the prosecution case depends entirely upon the evidence of the complainant. There is no independent corroboration of her allegations.
The accused did not give evidence. He was not obliged to do so and like any accused was entitled to remain silent. No inference can be drawn from the fact that he did not give evidence.
The complainant’s evidence in chief about the first two counts
Together with her sister the complainant visited her father at Lyrup. The first two of the alleged offences occurred in her father’s bedroom at nighttime. The sister was on a double bed in the bedroom; presumably she was asleep. The complainant and the accused were on a single bed in that room. The complainant was wearing a nightie. The accused was wearing jocks which he normally wore to bed. When asked what happened the complainant said:
AWe were lying down and he asked me if I wanted a back scratch, because he would normally scratch my back all the time. I remember that. I said ‘Yeah’. He would scratch my back for a while and he asked me if I wanted a stomach rub and I said ‘Yes’. I felt his hands go between my legs. I asked him what he was doing. He said it was okay and to lie back down.
QCan you remember whereabouts between your legs you could feel him.
AOn my clitoris.
QWhat did he do.
AHe rubbed in a circle motion. He would keep doing that.
QCan you remember what part of his body he used to do that.
AHis fingers.
QWas your clitoris the only part of your vagina that he touched.
ANo. Also the entrance as well.
QWhat did he do to the entrance of your vagina.
AHe would insert his finger and move in and out with his finger.
QWere you able to tell how far his finger went into you.
ANo.
QDo you know, now being a woman, whether his finger went into your vaginal canal. Do you understand what I mean by that term; inside the entrance to your vagina.
AYes, he did, but I don’t know how far he went up.
She said that the accused was on his side and she was on her back. He used two fingers when touching her clitoris and one finger when he inserted it into her vaginal canal. She said he would play with her breasts as well and rub his lips on her nipples.
She was asked whether on the occasion in question she did anything in relation to the body of the accused and she said:
I had to - he put my hand on his penis and I had to move it up and down and he told me - he put my hand - he had his hand on top of mine and put it on his penis and said - moved it and said ‘Keep doing that’.
She said the penis was hard, that was the first time she had touched the penis of the accused, that the accused took his hand off hers, that she kept doing what he had told her to do and that while she was moving her hand up and down on his penis the accused continued to rub her clitoris.
The complainant’s evidence in chief of the second occasion at Lyrup
The complainant was asked whether she recalled other occasions when her father did similar things to her. She gave evidence of another occasion in another bedroom in the house at Lyrup. The complainant and the accused were initially in the accused’s bedroom together with the complainant’s sister, but the sister was watching a movie on television and the sound was too loud so the complainant and the accused went to the other room. She said:
We laid down. He asked me if daddy should be a good boy or a bad boy. I said ‘Good’. He got up and went to the fridge in the kitchen, grabbed something off of it, came back into the room. I saw a jar of Vaseline. He rubbed some on his penis and he lifted up my leg and wrapped it around him and put his penis in between my legs. I could feel that it was erect then. He asked me to hold onto the end of it. I had to move my hips back and forth, rubbing on it.
She was asked whether she could feel the penis touching any part of her body other than her hand and she said “my vagina, my clitoris”. She said the activity continued for what might have been two minutes and was the only occasion on which the complainant engaged in that activity with the accused. She did not recall if he ejaculated. The complainant went back to the room of the accused to sleep.
The complainant said that incident had occurred during a visit during which she hurt her finger and required treatment. The date can be identified as 17 January 1993. She would have been aged 8 years and about ten months at the time.
Uncharged acts
The complainant gave evidence of another occasion when she had travelled to Lyrup to celebrate a birthday and the accused had bought her and her sister a cake. She said:
I remembered him touching me that night, but I can’t remember like the specifics of what happened or anything like that. I know that he would have just rubbed my clitoris, he always does that - or he always did that.
She said she went to see the accused at Lyrup every school holidays and that she would be touched in a sexual way in every holiday that she went there.
The complainant’s evidence in chief of the alleged offences at Athol Park
The complainant gave evidence of an occasion when there was a birthday party for her sister at her home at Athol Park. It was either the tenth or eleventh birthday of her sister. A slumber party had been arranged for guests to sleep in a large tent which had been erected in the back yard. Friends from school had been invited. The complainant said that she was 7 or 8 years old.
Her stepfather, who was living with her mother at that time, had used a tube to make a noise which scared the children, including the complainant. She started crying and went inside the house. She climbed into the top bunk in her room. The accused was on the bottom bunk. She was wearing pyjamas. She could not recall what the accused was wearing. She said:
He asked me if I wanted a back scratch and I said I didn’t want one because straightaway I just knew, I just knew, and he told me to come down anyway, so I did that. And I jumped over and I was laying with my back towards the wall, and, yes, he started to touch me again.
She said that the accused touched her on her breasts over her pyjamas and between her legs with her pyjama pants on, he asked her to take her pants off which she did and then:
He started playing with my clitoris and inserted a finger, and he had a hand around the back of me and he had one in my bum hole. And he was moving in and out like in sequence. And he asked me to lick his penis. And I did that. And I don’t know what happened but I just didn’t want to be there and I don’t know but he let me go back up to bed.
She said that was the last sexual incident with her father. At that time her breasts were just forming and the accused “would grab them and play with them and, yes, rub his mouth on them”.
The case for the Prosecution
Counsel argued that I should accept the evidence of the alleged victim and convict. Counsel said the complainant was a compelling and honest witness.
The defence case
Defence counsel did not argue that the evidence of the complainant did not establish each of the counts which are alleged.
If the only evidence was the evidence of the complainant in chief there would have been a basis on which to find that the Prosecution had established each of the charges. However, defence counsel attacked the credibility and reliability of the complainant.
In cross-examination the complainant acknowledged that she first spoke to the police about her allegations on 13 September 1993. The interview was recorded by a video recorder. Before giving her evidence to the court the complainant read a copy of the transcript of her interview in 1993 and a copy of a later statement which she made on 14 August 2002.
At the time when the complainant first spoke to the police about these matters on 13 September 1993 she was aged 9.
The complainant disagreed that it would be fair to say that her memory was better on 13 September 1993 with respect to the allegations than it is now. She said:
No, not really, because there are some things that will never leave me, that I will just remember like it happened yesterday.
She said her memory has not got better but has remained the same.
The complainant agreed in cross-examination that in her interview with the Sexual Assault Unit in September 1993 she said:
Um, that he only - I think he only did it once. It’s a long way back, but it’s hard for me to remember because all that’s just wiped away.
Later the person asking questions in 1993 said to the complainant “the more you remember, the better for us to be able to speak to [the accused], that’s all. All right, so it happened once you think”. The complainant agreed. It was put in cross-examination that was what she had said to the police in 1993. The complainant replied “obviously, yes”.
The complainant was asked in cross-examination whether when she told the police “I think he only did it once” she was referring to a trip in the April school holidays to Lyrup or only once ever. She said she could not be sure. She was asked whether that was because it was difficult to remember back to 1993 and said “yes. I can’t really remember that. I can remember bits and pieces of that interview”. As to the event itself she was asked whether she had a recollection of what happened at Lyrup and replied “no, I’m not too sure which one I should be referring to”.
The complainant said that at the time of the interview in 1993 her memory was “pretty good”. However, she said:
.... but when I went there, I didn’t know I was going there. I was just shoved in a room with this lady and she was asking me all these questions. I hadn’t been told I was going there. I didn’t know that my parents knew. I didn’t know anything.
She said that in 1993 she was scared. She said “I was a scared little girl thrown in a room with a police officer asking me all these questions”.
She said her statement to the police in 1993 that “it’s hard for me to remember because all that’s just wiped away” was incorrect.
The complainant gave a further statement to the police in August 2002. Prior to making that statement she had spoken about the matter with her sister. She said “we never discussed the - we talked about the case and stuff, but not what happened or anything. We never discussed what happened to each other”. She said they never discussed any detail.
She was asked in cross-examination about the first incident which she gave evidence of in the shack at Lyrup. The cross-examiner asked whether she had wanted to read. She responded that her father was reading a book. In 1993 she told police that she came to be lying on her father’s bed because her sister was asleep and she wanted to read.
The following passage from the 1993 interview was put to the complainant;
Q.... Was it sort of worn on top or was it more sort of in between.
AIt was in between.
QIn between your legs, was it. All right. Were your legs apart or not.
AHe moved them apart.
QDid he. Okay, did you have your pyjamas on or not.
AEr, er.
QYeas, okay, and was his hand on the outside of your pyjamas or -
AI wore a nightie that night and he just put it under my nightie.
QUnder your nightie.
AYeah.
QWhat was that.
AMy knickers.
QWhat about - did he touch your knickers at all.
AUm, he just - he didn’t go under my knickers.
QHe didn’t.
ANo.
In cross-examination she agreed that was what she had told police in 1993 but she had told the court that on that occasion the accused put his fingers inside her vagina.
In her evidence to the court the complainant said that the accused had made her put her hand on his penis, but the transcript of the interview in September 1993 does not contain any reference to the accused making her put her hand on his penis. When the cross-examiner asked whether that was because her memory was better in 2006 than it was in 1993 the complainant answered “I suppose, yes”.
The complainant was referred to her evidence of the occasion at Lyrup when the accused had used Vaseline and rubbed his penis in the area of her clitoris. She agreed that she told the police in the interview on 13 September 1993 the following:
QWhat’s your thinking inside that’s making you feel yucky. Okay. All right. So has he ever, um, tried to put his penis in between your legs when you are looking the other way.
ANo.
QNo, like, say this - that angle.
ANo.
QNo, not from behind, so the only privates - it’s not your bottom.
ANo.
QNo, it’s your privates. All right then. Okay. Has he ever done anything else with his penis.
AOh, oh.
QNo, to you.
ANo.
QNo other parts of the body where he -
ANo.
QNot your eyes. He hasn’t touched your eyes or your hair or your mouth.
ANo.
QWhat about your other part here.
ANo answer.
She agreed that what she told the police officer in 1993 was not what she said in her evidence to the court. She said that she did not know why she did not tell the police officer about the matters that she described to the court.
As to the charges which relate to Athol Park the complainant agreed that in September 1993 she did not tell the police that the accused had touched her on her vagina or in her vagina or that the accused put his finger in her anus. Nor did she tell the police that on that occasion the accused had made her lick his penis. She said in cross-examination “I don’t know why I didn’t tell the lady”.
The complainant was interviewed by Ms Gray, a solicitor at the Office of the Director of Public Prosecutions, on 16 July 2002. Ms Gray took contemporaneous hand written notes and then dictated a document described as a “proofing note”. Ms Gray dictated:
She cannot recall the first occasion on which the defendant started touching her. She can recall that he would put Vaseline on his penis and rub his penis between her legs. His penis would become hard. She did not know if he would ejaculate. She states at the time she did not know what ejaculation was. As she grew older he would insert his penis in her vagina. By the time she advised the police of the sexual abuse he was having penile intercourse with her.
Ms Gray gave evidence. She finished working with the Director of Public Prosecutions on 8 August 2002 and moved interstate. She said that she could not recall the proofing in any detail except by referring to the notes. Ms Gray could not remember the meeting that she had with the complainant in any detail and could not now say what the complainant said to her.
In her evidence Ms Gray said that the reference to the insertion of the penis of the accused and the reference to “penile intercourse” could refer to “any penetration at all”, but she said that some degree of penetration would have been necessary.
The complainant was cross-examined about what she had told Ms Gray. She denied that she had told Ms Gray that as she grew older the accused would insert his penis into her vagina. She said “I never once said that. Never. Never. Never once have I said that”.
The complainant also denied that she told Ms Gray that by the time she advised the police that the accused was sexually abusing her he was having penile intercourse with her. She said “no. No, he never did that to me”. When it was suggested by the cross-examiner that was what she told Ms Gray she replied “well, I suggest that that is wrong because I wouldn’t say that. I’m only saying what he did. I would never say that he inserted his penis into me because he never did”.
The complainant said that in 1993 she gave incorrect answers to the police officer because she was scared and did not want to be in the room with the police officer. She said “I don’t think I was saying what I should have been telling her”.
Submissions
The prosecution submitted that the apparent inconsistencies between the complainant’s evidence and what she told the police in 1993 can be explained because she was a scared little girl thrown in a room with a police officer and that while she had a good memory in 1993 she did not tell the police everything. Counsel submitted that was a perfectly understandable explanation and that should be combined with her “obvious improved ability as an adult to describe what had gone on when she was a child”. Counsel submitted she was forthright in her denials of the accused’s case, that she gave clear evidence and that her demeanour did not change between evidence in chief and cross-examination. He also argued that the complainant met the questions about the “proofing note” without difficulty and was able to express the fact that she did not say that the accused put his penis inside her vaginal canal.
Counsel submitted that the evidence of Ms Gray was entirely consistent with the evidence of the complainant and that the “proofing note” was “a non-event in this trial”. He submitted that the complainant was a compelling and honest witness who did her best to assist the court.

Counsel for the accused argued that the issue in the case was the reliability of the complainant. He conceded that in 1993 the complainant was a young girl of tender years and that some allowance should be made for that. His submission was that the evidence of the complainant has so many inconsistencies of a significant nature that it raises a very real doubt as to the prosecution case. First, in 1993, the complainant told the police officers that sexual misconduct had only happened on one occasion. In the 1993 interview the complainant did not mention touching the accused on his penis. As to the count which now alleged unlawful sexual intercourse counsel pointed out that the allegation made in 1993 was a rubbing of the general vaginal area over the underpants, but over the years that has become an allegation of unlawful sexual intercourse by digital penetration of the vaginal canal.
Counsel for the accused submitted that the complainant’s memory had improved with the effluxion of time. Counsel pointed out that with respect to the Athol Park allegations the complainant did not tell the police in 1993 anything about digital penetration of her anus or the alleged cunnilingus.
Defence counsel did not regard the “proofing note” as a “non-event”. He submitted that Ms Gray would not have recorded what is in the “proofing note” if those things had not been said. The statements in the “proofing note” are clear and unambiguous.
Counsel said that it is necessary to have regard to the entire history of the matter, that is, what the complainant told the police in 1993, the “proofing note” in 2002 and her evidence to the court.
As I have mentioned, defence counsel did not suggest that if I accepted the evidence of the complainant any count would not have been proved.
The question is whether the evidence of the complainant can be accepted as proof of each of the counts beyond reasonable doubt. It is not a question of whether the accused might have committed one or more of the counts or whether he probably committed one or more of the counts.
In considering whether the prosecution has proved each count beyond reasonable doubt I must consider the elements of the offences, but because of the view that I have formed as to the credibility and reliability of the complainant, it is unnecessary for me to discuss the elements of the offences in any detail.
I am troubled by the differences between what the complainant said in her evidence and what she told the police officers in 1993. I do not accept her explanation as to why she did not in 1993 accurately describe to the police officers what had happened. Between 1993 and 2002 she had spoken with her sister about the matter, although she denied discussing the particular allegations. I am particularly worried by the statement which the complainant made in 1993 that “I think he only did it once. It’s a long way back, but it’s hard for me to remember because all that’s just wiped away”, and her agreement with the proposition that “it happened once you think”. The complainant agreed that she had said those things to the police in 1993. Her answer in cross-examination that she could not be sure whether when she told the police “I think he only did it once” she was referring to the April school holiday trip to Lyrup or only once ever casts doubt on the credibility and reliability of the evidence.
The complainant agreed that in 1993 she had told the police that the accused had touched her over the top of her knickers but did not go under her knickers. As I have mentioned, that incident has developed into an allegation of digital intercourse.
There are so many differences between what was said in 1993 and what was said in evidence that I am unable to rely upon the evidence of the complainant. The allegations made in 1993 are quite different from the complainant’s evidence to the court. The allegations have become more extensive and more serious over the years.
The credibility of the complainant is further diminished by the “proofing note”. The “proofing note” was dictated by an experienced solicitor who was fully aware of the significance of penetration in the context of allegations of sexual offences. There is no reason to find that the “proofing note” is not an accurate record. The statement “he would insert his penis in her vagina” is unambiguous. So is the expression “penile intercourse”. The fact that the plain meaning of the words used in the “proofing note” is inconsistent with what the complainant asserted in her evidence casts doubt on her reliability.
The 1993 and 2002 statements do not corroborate the complainant’s evidence to the court, but actually contradict it.
Because I am unable to rely upon the evidence of the complainant, I must conclude that there is no satisfactory evidence to prove any of the counts to the required level of proof, that is beyond reasonable doubt.
On each of the counts the verdict is that the accused is not guilty.