R v DUNNING - [2013] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DUNNING
Criminal Trial by Judge Alone
[2013] SADC 107
Judgment of Her Honour Judge Bampton
13 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of Rape or in the alternative, Unlawful Sexual Intercourse with a person under 12.
Trial by Judge alone.
Verdict: Accused found not guilty of Count 1 and the alternative Count 2.

R v DUNNING
[2013] SADC 107

M alleges that when she was aged between eight and nine the accused had penile vaginal intercourse with her on one occasion. The offending is alleged to have occurred at a time when M’s mother was in an extra marital relationship with the accused.
The accused is charged on the Information dated 15 October 2012 with:
Count One, Rape (Section 48 of the Criminal Law Consolidation Act, 1935) SA) (the Act) between the 15 October 2005 and 17 October 2006 by having vaginal sexual intercourse with M or in the alternative Count 2:
Unlawful Sexual Intercourse with a person under 12 (Section 49(1) of the Act) with M between the 15 October 2005 and 17 October 2006 by inserting his penis into her vagina.
The accused pleaded not guilty and elected to have the matter dealt with by trial by Judge alone.
Background
M was born on 16 October 1996. She was aged 16 at the time of trial. She is the elder child of her mother R and her father S. Her younger brother was aged 10 at the time of trial. M has at all times lived with her parents and her brother.
When M was eight her mother commenced a sexual relationship with the accused. The accused came to the family home when S was at work on night duty. The accused continued to visit the family home until a date in 2007. On this date the accused had been drinking, an argument ensued between him and R, a broom handle was broken, a roller door was damaged and the police were called (the 2007 incident). It was following this incident that S learnt about R’s relationship with the accused. R maintained she was forced to continue to see the accused following the 2007 incident because she was trapped in a relationship and was forced to continue to see him in order to protect her family.
In early 2011, when she was in year 9 at school, M told her friend T that she had been raped by the accused. On 2 July 2011 she also told her boyfriend J in a Facebook message exchange that she had been ‘....raped by the guy that my mum was cheating with my dad on...’.[1]
[1] Exhibit D2.
The matter came to the attention of the police in September 2011.
M attended a college close to her home until she was ‘kicked out of school’ in 2012[2] when she made a ‘fake allegation’ to the effect she was the victim of violent sexual offending committed against her by two fellow students.[3]
[2] T 65.2
[3] T 68.32
Directions
The accused comes to this Court with the presumption of innocence in his favour. He is regarded by law as innocent unless and until I find the charge of rape, or the alternative unlawful sexual intercourse against him proved.
The onus of proving these charges is on the prosecution. The accused does not have any onus of proof and to the extent that a defence is put forward, he does not have to prove it, the prosecution must disprove it.
The prosecution must prove the charge of rape or the alternative unlawful sexual intercourse and every element of rape or unlawful sexual intercourse to my satisfaction beyond reasonable doubt. If after full and careful consideration of the charges, I am unable to decide where the truth lies, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty.
Forensic Disadvantage
There was a period of eight years between the first date specified on the Information and the trial of this matter. The delay in the prosecution of the accused has resulted in a forensic disadvantage to him. As such, section 34 CB of the Evidence Act 1929 applies. The forensic disadvantages of the delay are that if there had been an earlier complaint,
·the accused would have been in a position to remember back to the relevant time and to remember what, if anything, happened or he might have been in a position to remember who he was with so as to produce evidence discounting the evidence of M.
·There may have been an opportunity for the accused to interview potential witnesses and for other forensic investigations to be undertaken.
Although, as I have already directed myself, the accused does not have to prove anything.
I have taken these potentially significant forensic disadvantages into account when scrutinising the evidence relied on by the prosecution.
Assessment of Witnesses
In approaching the evidence of the witnesses, it is for me to decide whether I believe the whole or any part of the evidence of M, or any witness. I need to consider whether that witness is honest and whether or not they are reliable. I may accept some parts of what a witness says but reject other parts. Just because I reject some part of what a witness says does not necessarily mean that I reject the whole of what the witness has said.
Complaint
Pursuant to section 34M of the Evidence Act 1929 (SA), evidence was led in relation to the initial complaint by M to her friend T. There was an alleged elaboration of the complaint in Facebook messages between M and her boyfriend J in July 2011. Evidence of complaint is of assistance in this matter in understanding how the matters came to the attention of the police. It is not admitted as to the truth of what was alleged in her complaint to T and to J.
Prosecution Case
The main witness for the prosecution was M. The prosecution led evidence of the complaint made by M to T and the elaboration of that complaint to J. Evidence was also called from M’s mother R and the investigating officer Detective Brevet Sergeant Herbert Graham.
M’s Evidence.
I have carefully scrutinised M’s evidence. I have kept in mind the directions that I must give myself and the criticisms made of her evidence by the accused’s counsel.
In assessing M’s honesty and reliability I have taken into account that she was eight or nine years old when the alleged offence occurred.
M told me about how she came to meet the accused when she was aged eight. She met him on an occasion when she came home after school. He was sitting on the couch. When she arrived home she was told by her mother not to have anything to do with him and ‘do not say anything about him to anyone’.[4]
[4] T 22.36
M said that when her father was away working at night, the accused would come to her house. The accused would stay the night in her mother’s bed. She said this continued for a couple of years.
M said in 2005 when she was in year 3, she was in bed around 10 o’clock one night and she couldn’t get to sleep. Her mother was in her bedroom, which was about 5 metres away from her bedroom[5] asleep. The light in the hallway was switched on. The accused entered her bedroom, stood there for a bit, then shut the door and started breathing heavily. He staggered over to her, smelling of alcohol. He got up onto the bed and looked at her in the eyes. He turned around and grabbed her hands and ‘locked them into position’ with his left hand and put his other hand over onto the pillow as he leaned forwards. He slowly removed her pyjama pants and then her underwear. He then removed his pants which she thought felt like jeans. While she was positioned in the middle of her bed, he inserted his penis into her vagina a little bit at first. He then pushed it forward to all the way. He began to jerk back and forward. M said she was in shock at this point and could not speak. She said she saw his penis for a split second but then she moved her head and basically zoned out. She could not describe what the accused’s penis looked like.[6]
[5] T 41.20
[6] T 69.37
She couldn’t say one way or the other whether the accused ejaculated or not. M said she did not know what ejaculation was when she was eight or nine. When asked to rate on a scale of one to 10 how painful the incident was she couldn’t give it a number but she almost let out some cries.[7]
[7] T 42.9
After what ‘seemed like forever’[8] the accused got up, pulled his pants back up and just slowly staggered out of the room.[9] He turned left towards her mother’s bedroom.
[8] T 25.38
[9] T 26.1
M said her whole body felt numb. She did not get out of bed or go to the toilet immediately[10] but said it felt a bit wet around her bottom or vagina.[11]
[10] T 37.30
[11] T 37.37
When I asked if she noticed anything when she went to the toilet the next day she said she didn’t look. I also asked her whether she noticed anything on her pyjama pants. She said that when she took her clothes off to take a shower she looked at her underwear and ‘It was just a bit brown and there was a bit of blood.[12] When asked to describe the size of this patch she said it was ‘medium sized’ and indicated that it was about 3 or 4cms. She agreed that she had not told the police about this patch previously and this was the first time she had mentioned it, as a result of questions I had asked her.
[12] T 38.15
M saw the accused but only for a split second the following morning as he went off to work. Neither of them mentioned what had happened nor did she mention it to her mother as she was too scared.
That day M went to school. She said she was in a lot of pain with a burning, stinging sensation. She said walking was hard and that she ended up closing her legs tightly. ‘It felt like my insides were going to fall out of my vagina.[13] M said this feeling lasted for a couple of days. However, in cross examination she said the pain had completely disappeared the next day.[14]
[13] T 27.3
[14] T 40.
She also said in cross examination that on a scale of one to 10 the pain was probably a nine, it was really really bad and she couldn’t get through the day. She said she didn’t tell anyone and just pretended it wasn’t there.[15]
[15] T 40.20-23
M first reported this incident to her best friend T when she was 13 or 14. She was in geography class and it was in the beginning of the year. She asked T if she remembered Rob and told her that she had been raped when she was nine and then ‘dropped the conversation’.[16] She said she couldn’t remember exactly what was said.
[16] T 27.18
M said she started dating her boyfriend J on 24 June 2011. They would keep in contact by Facebook and mobile phone.
Eight days later on 2 July 2011 she first told J about what had happened with the accused in a Facebook conversation.[17]
[17] Exhibit P2.
When asked in cross examination about her reference in the Facebook message to waking up and finding the accused on top of her she said she ‘didn’t mean it like that I woke up, he came into the room, and he did what he did’.[18]
[18] T 54.27-28
M said when the accused first came to the house he was really nice. She agreed in cross examination that he used to do quite a bit for her and her brother such as take them out and buy toys and video games. She agreed they went on holidays together. She also agreed he was strict and once took Nintendo games away from her for six months for pointing her tongue out at him. She agreed he was concerned she did her homework as he wanted her to get on at school.
M recalled going on a holiday to Queensland with the accused, her mother and brother but couldn’t remember when this was.[19] She also recalled going to Tasmania with the accused, her mother and brother to meet the accused’s family.[20] She met the accused’s mother but doesn’t recall meeting his sister.[21]
[19] T 45.30
[20] T 46.1
[21] T 46.3-6
M said her Dad knew about these trips but her Mum told him they were going with a friend called Elaine. M said Elaine was the name for the accused.[22]
[22] T 66.27
M said the relationship with the accused changed after he proposed to her Mum. She heard the conversation through her bedroom door where the accused proposed. Her mother refused and that is when the accused changed. When asked about this occasion in cross examination she said it upset her when she realised the accused wanted to marry her Mum. She agreed she did not want the accused marrying her Mum. She agreed she was very close with her father, S at the time and would do anything to not make them break up.[23] When asked if she wanted the accused ‘out’ she said no, she was scared but looked up to him as a father.[24]
[23] T 46.35
[24] T 47.3-4
M said the accused became addicted to alcohol and became violent. She said the accused used to shout a lot at her mother and her. He also threw glasses at her mother and broke things.
M recounted an occasion where the accused had a fight about her homework. He had been drinking and became abusive and started going off at her and her mother defended. She ran out of the room with her brother and her mother tried to take the accused outside. The accused bashed the roller door. He broke a broom in half and threw it. The accused was screaming in the street and neighbours called the police.
M agreed her statement dated 6 August 2013 was the first time she mentioned the accused throwing glasses and the like at her mother.
M said when she told her father she had been raped, she was at home with her father and her Mum was out. She had had a fight with her father over a laptop and her mother had to be called home to deal with the situation.
In cross examination M agreed she had made a false allegation in 2012 whereby she told her boyfriend J that she had been raped by two male students. She told him that they had taken her behind a shed and repeatedly bashed her head until she was unconscious. She told J they took her into a creek, fingered her and licked her out and then she awoke from being unconscious with semen on her body.[25]
[25] T 62.8-14
She agreed this never happened and that she told this to J because at that time she ‘had many issues going on to do with this case and another case’. She was ‘going through a lot of emotional problems’ and she became someone she never thought she would be and every day she regrets doing what she did. She said at the time she wasn’t herself. She was a mess and suicidal. She said it had nothing to do with this case at all. It was her own personal thing and ‘again nothing to do with this case’.[26]
[26] T 62.34
M agreed that it made her very angry that her mother continued to see the accused after the 2007 incident. Even so, she said she ‘would never make anything like this up after what happened last time, never again. I know what it would do to people and I would never do it to anyone again’.[27]
[27] T 64.29-32
M said she had a good relationship with her mother when she was nine which changed when she started going out with J on 24 June 2011. She and her mother stopped going to the movies and she stopped giving her hugs and kisses and they now barely speak. She said their relationship got worse when she started giving her statements to police.
At the time of trial M said she was being home schooled and living with her parents. She said she left school as a result of a suicide attempt. She referred to being very suicidal and attending school with cuts on her arms. She said;
AI used to always attempt to either hang myself or drown herself or just anything. A lot of drug overdoses from like prescribed tablets which now my parents currently won’t let me near.
QThey keep a close eye on you.
AYes, and I was caught trying to drown myself, I was suspended and when I came back I cut my hair and then when I tried – when I put the fake allegation in that’s when I got expelled .[28]
[28] T 68.24-33
M was honest and open about a number of issues. For example, the false allegation, the complex issues in her life including the change in her relationship with her mother that occurred ‘the moment’ she commenced the relationship with her boyfriend, her many suicide attempts, her expulsion from school, her admitted resentment about her mother’s clandestine relationship with the accused and her fear that the relationship would fracture her family unit.
I do not reject M’s evidence in its entirety. However, as I explain at the conclusion of these reasons, against a background of the false allegation of sexual offending against the school boys, I am not satisfied of the reliability of her evidence to prove the offending occurred beyond reasonable doubt.
Complaint Evidence
I heard evidence from T who said that when she was in Year 9, in 2011, during a geography class M told her that she had been raped by the accused.
I accept T’s evidence.
I also heard about an elaboration of the complaint from M’s boyfriend J. J said that during Facebook messages on 2 July 2011 M had told him that she had been raped by the man her mother was cheating on her father with and who was an alcoholic. J was in Year 11 in 2011 and M was in Year 9.
J agreed M was upset and angry about the fact the accused was the reason her mother was cheating on her father. He also agreed that she did not want her mother and the accused splitting up the family. J said M has had issues and he has been ‘by her side trying, helping her and trying to get her through all of this’.[29]
[29] T 121.4-6
I accept J’s evidence, but it does not assist me in deciding where the truth lies.
M’s Mother
M’s mother R was a highly strung and emotional witness who described entering into a sexual relationship with the accused and the deterioration of that relationship.
R said she didn’t think she told M to keep the accused’s presence in her home a secret. She said her husband did not know she and the children went to Queensland and that he learnt about her relationship with the accused after the 2007 incident.
R said the accused was lovely, funny and very caring at first. She said he changed when he started to drink heavily. She was at pains to inform the court about how he became loud, aggressive, abusive and frightening and how he became a monster when he drank to excess. She maintained she was a victim trapped in a relationship she was forced to continue to protect her family after the 2007 incident.
R agreed giving a statement in June 2012 wherein she said ‘during the time I was seeing Robert I didn’t see him do anything to the kids that made me think he would hurt them. He was strict with them but nothing that was out of place. M didn’t like him because he was taking me away from her dad. She would tell me that she really hated him’.[30]
[30] T 106.28-35
R then said the accused was threatening towards her from the beginning and she reluctantly accepted a ring from him. She agreed she gave him a ring ‘down the track’ because his family expected her to do so.[31]
[31] T 93.16-28
R attempted to minimise the complex issues M told me she has had to contend with over the last two years. R originally thought M’s issues were related to school bullying.
R said that M now appears to be very angry and ‘it’s probably she feels I didn’t protect her enough..’.[32]
[32] T 108.37
I find it difficult to reconcile R’s evidence that M was not instructed to keep her relationship with the accused a secret, given that her husband did not know about the affair until the 2007 incident or that the accused holidayed with them. Her evidence does not assist me in deciding where the truth lies.
Investigating Officer
Detective Graham said he first opened a file in this matter on 28 September 2011. Detective Graham said he had no record of telling R not to make contact with the accused.
I accept Detective Graham’s evidence.
Defence Case

The accused did not give evidence. I must not draw any inference adverse to him or the case he puts forward with the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I bear in mind that it is for the prosecution to prove its case beyond reasonable doubt and the accused does not have to prove anything.
Conclusion
I have considered the evidence as a whole and I have carefully considered the honesty and reliability of M’s evidence. I am not satisfied of the reliability of her evidence in the sense of its capacity to establish that the accused committed the offending beyond reasonable doubt.
I am not satisfied having regard to the false allegation of sexual offending M made against two boys that her evidence is capable of supporting a conclusion beyond reasonable doubt that the offending occurred.
I make it clear that I do not reject the entirety of M’s evidence. I accept that she has had a lot to contend with from a very young age. However, I cannot accept her evidence about the alleged offending beyond reasonable doubt.
I find that the count of Rape and the alternative count of Unlawful Sexual Intercourse have not been proven.
I therefore find the accused not guilty of count 1 and the alternative count 2.