R v F - [2021] SADC 84

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F
Criminal Trial by Judge Alone
[2021] SADC 84
Reasons for the Verdict of her Honour Judge Chapman
14 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with indecently assaulting his three year old daughter. The prosecution relied upon the evidence of the accused's son to prove the offence. He gave evidence that when he was five, he saw his father tickle his sister on the vagina.
Held: The evidence is not sufficiently reliable to be satisfied beyond reasonable doubt that the touching in fact occurred.
Verdict of not guilty.

R v F
[2021] SADC 84

Criminal

The accused is charged with aggravated indecent assault. The alleged victim is his daughter.
It is alleged that between 1 November 2018 and 3 October 2019, he indecently assaulted his daughter by touching her on the vagina when she was three years old. The alleged offence is aggravated because she was under the age of 14 years at the time of the offence.
The prosecution did not call the complainant, who is now seven years old. In order to prove the offence, the prosecution relies upon the eye witness evidence of the accused’s son. I will refer to him as MF.
MF gave evidence that when he was five years old, he saw the accused tickling his sister’s vagina. The accused and his sister were on the bed in the accused’s bedroom at the accused’s home. By that time, the accused and his wife were living separately.
The accused elected for trial by judge alone.
At trial, the prosecution relied upon (1) an audio-visual recording of an interview of MF by police on 29 November 2019[1] and (2) pre-recorded evidence.[2] The prosecution also tendered the complainant’s birth certificate[3], a plan of the accused’s house[4] and an interview between the police and MF on 25 October 2019.[5]
[1]     Exhibit P1. The transcript is an aide memoire, MFIP1A.
[2]     Exhibit P2.
[3]     Exhibit P3.
[4]     Exhibit P4.
[5]     Exhibit P5.
The accused elected not to give or call any evidence.
The elements of the offence
The prosecution must prove each of the following three elements of the offence beyond reasonable doubt:
1. That the accused assaulted the complainant.
The assault alleged is that the accused tickled the complainant’s vagina. The tickling on the vagina must be intentional, not accidental.
2.That the assault occurred in circumstances of indecency. There must be a sexual connotation.
3.That the complainant was under the age of 14 years at the time of the offence.
There is no dispute about this element of aggravation.
Whether or not the complainant consented to the touching is irrelevant because she was a child at the time.
There are two main issues in this trial. The first is whether the touching did in fact occur. The second is whether, even if the alleged touching did occur, it occurred in circumstances of indecency.
Proof
The prosecution has the burden of proving this offence. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty.
The accused elected to remain silent at trial. That is his legal right. I do not draw any inference adverse to the accused because of his exercise of that legal right. He is not required to prove anything.
The pre-trial special hearing
An order was made pursuant to s 12AB(1) of the Evidence Act1929 for a pre‑trial special hearing.
The complainant was interviewed by Brevet Sergeant Howie on 29 November 2019. The interview was made pursuant to Part 17 Division 3 of the Summary Offences Act 1953. I was satisfied of the matters set out in s 13BA(3)(b) of the Evidence Act1929 and made an order pursuant to s 12AB(13)(a) and s 13BA(1) that the evidence of MF be admitted in the form of that audio-visual record. MF was seven when he was interviewed.
The prosecutor did not make any application for further examination of MF. I gave permission pursuant to s 12AB(13)(b) and s 13BA(5)(b) for MF to be cross‑examined. I found MF did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. I was satisfied he understood the difference between the truth and a lie and told him it was important to tell the truth. He indicated he would tell the truth. He gave unsworn evidence on 15 June 2021 which was recorded. Upon completion of that recorded evidence, the prosecution made an application pursuant to s 13BA(2a) for an order admitting the audio‑visual record of the cross‑examination at trial. I granted the application and, pursuant to s 13BA(1), ordered that the pre‑recorded evidence of MF be admitted in the form of that audio‑visual record.
MF’s evidence
The prosecution case relied solely upon the evidence of MF as an eye witness to the alleged indecent assault upon his sister.
Interview on 29 November 2019
At almost eight minutes into the interview on 29 November 2019, MF volunteered that he does not get to see his father anymore, ‘he done bad choices’.[6] He said his father ‘done private things, he shouted at mummy, he said lots of swear words to her, made her upset and that’s all.’[7] In relation to private things he said, ‘like touching my sister’s bit when he was um, um, with us and, not with me, just [name of his sister]’.[8]
[6]     MFI P1A p7.
[7]     MFI P1A p8.
[8]     MFI P1A p8.
MF said his father touched his ‘sister’s bits’ one time. MF was up in his room then heard lots of tickling stuff going on so he had to come down and see. He then looked on the computer saw lots of pictures ‘doing some propriate things’, ‘some children, not pictures of us, picture of different kids’.[9] He said he went to get something to eat and it calmed him down. He then went to his bed and had a little nap before going back to his mum’s house.
[9] MFI P1A p8.
He was asked for more detail about that occasion. He said when he was up in his room the tickling sounds he heard were lots of laughing. He heard his sister say, ‘tickle my bits daddy’. When he heard that, he played a game on his computer. When he came down to see what was happening there was lots of tickling. He went into the living room behind the couches so they could not see him. There was no one else behind the couch with him in the living room. His sister was lying down on his father’s bed with his father and laughing. He found it ‘quite annoying’.[10] They stopped playing because it was dinner time.
[10] MFI P1A p12.
When asked what else was happening when his sister was laughing and daddy was tickling, MF replied that ‘it was starting to get too um, inappropriate’[11]. He drew on a diagram the area where the accused was tickling his sister. He described one area as the ‘gina’ and the other area as ‘bum cheek’.[12] He said his father was lying down, his sister was wearing her watch and a dress with flowers on with knickers on underneath. His father was wearing clothes, a shirt, socks and jocks. His father had a watch on; he always wears a watch.
[11] MFIP1A, p14.
[12] MFI P1A pages 14 & 15.
He said that when he was behind the couch the first thing he saw was them getting ready to start to get tickling. They were coming down the stairs, got on the bed and were tickling ‘under arm’.[13] His father tickled his sister on the outside of her undies with his hand. He forgot what was the next tickle that happened. His sister was lying on her back. His father was lying on his tummy. When asked about the tickling ‘on the bum’ he said, ‘they got too inappropriate’.[14] After the tickling, they had chicken for dinner and he went back to his mother’s place in a car. The next morning, he went to school.
[13] MFI P1A p20.
[14] MFI P1A p21.
He said he was five. He had been to his friend’s house next door that day. They played on the tyre swing.
There were times when his father tickled his mother and they laughed. MF said his father, his mother and his sister tickled him. His father tickled him on his feet, under his arms and nowhere else. His mum tickled him there too.
He was asked about what he saw on his father’s computer.[15] He saw inappropriate things one time, which was a different day to when he saw his father tickle his sister. He was watching Tarzan and Transformer and then suddenly pictures moved on. He went and got his father who ignored him so MF ‘put the cross out’, he shut the computer down, then put it back on and was just watching stuff.[16]
[15] MFP1A, p33.
[16] MFI P1A p34.
He was asked to write down what he saw. His writing included ‘kissing each other’s bits’. He did not know the names of the boy and girl who were wearing nothing. They were younger than him. He shouted to his father but his father ignored him. The kissing was on the ‘gina, bum and willy’.[17]
Pre-recorded evidence
[17] MFI P1A pp 45 & 46.
MF was cross-examined on 15 June 2021. He agreed there were times when he and his sister would go and visit his dad at his dad’s house. They would play tickling games. His dad would tickle him and his sister. When they were together his mum and dad tickled each other. The games were fun. MF said that he would wriggle around like a ‘wriggle pot’ when he was tickled. The tickling games could happen anywhere in the house. He confirmed that the occasion he is referring to was when he was five, which means his sister would have been about three. He gave evidence that his mother has told him about why he is at court. He said, ‘because so that my dad won’t get away with’.[18] His mother has told him that his father should have made the right choices instead of doing the wrong choices.
[18] T11.
There were times when he would use his father’s iPad. His father set up some computer games on the computer for him. He was asked ‘is the only thing that you ever saw on the computer, computer games’. He replied ‘yes’.[19] He said there were times when he and his sister would tickle each other. He was asked ‘What I am going to suggest to you is that when your dad would tickle your sister he never tickled her on the vagina. Do you agree with that?’ He answered ‘yes’.[20] Mr Allen QC then indicated it was the end of his cross‑examination.
[19] T12.
[20] T14.
In his closing address, Mr Allen relied upon that answer as a disavowal of this allegation by MF. In my view, given the age and presentation of MF, the question and answer did not carry much weight.
The first difficulty is that, prior to that question, the cross‑examination of MF had not included any questions about the particular occasion. He had been questioned generally about tickling between all members of the family. He was then asked questions about speaking to the police one time and then another time. It was suggested to him that when he went back the second time he told them something different from the first time. By that stage, I do not consider that MF was following the questions or thinking about what was being put to him. Rather, he was just agreeing with the propositions.
He was then asked about what he used the computer at his dad’s place for and it was put to him that it was just for computer games. He agreed with that. He then agreed with the suggestion that computer games were the only thing he ever saw on the computer.
After a short break, he was told that there are only a couple more questions about the tickling. He was reminded that he had said there were times when his father would tickle him and there were also times when he and his sister would tickle each other. It was straight after that question that the suggestion was put to MF that his father never tickled his sister on the vagina.
The second difficulty with the weight of the answer is that the question itself was complicated for a young child. It included the concept of ‘a suggestion’, a negative in ‘he never tickled her on the vagina’ and then the question, do you agree with that? In MF’s absence, I raised those issues with Mr Allen. He then asked MF further questions.
Those further questions in cross‑examination were directed to reminding MF that there was a first occasion when he told the police that nothing bad happened between his father and his sister and a second occasion when he told the police that during one of the tickling games he saw his father touch his sister on the vagina. MF agreed with those propositions.
He was then asked about the previous suggestion that had been made in court that his father never actually touched his sister on the vagina. I interrupted and asked MF whether he understood. He said no.
I then asked MF to tell me what it was that he saw. He gave evidence he was playing in his room with toys. He heard lots of laughing so he decided to sneak down to his father’s room and then he saw them kissing. He started to hide and was watching them. His father was tickling his sister which made him disappointed because ‘he spends time with [name of sister] and me’.[21] He said they were lying down on his father’s bed. He was tickling her a little bit under her armpits and under her legs. He also saw him tickle her in her vagina. He said the vagina is at ‘the bottom of your botty’.[22] He was asked whether it was a short tickle or a long tickle. He said, ‘kind of both’.[23] It made him feel a bit upset because his dad was not spending time with him. He wanted his father to be tickling him rather than his sister. He said he was hiding and watching because he thought something might happen. He hid because he was scared his dad might threaten him about coming downstairs. The couch was in the lounge room, he crouched down, he was looking over the top of the couch, he would look for a long time and then duck down. He did not want his father to see him because he thought he would be in trouble. He went back to his bedroom and pretended he was playing with his toys.
[21] T20.
[22] T20.
[23] T20.
When he left to go back upstairs, his dad was not tickling his sister anymore. His sister said she was hungry. When she said that, they were on the couch. He was no longer behind the couch at that point. He was behind the wall when he went upstairs and saw them on the couch. He went up the stairs and looked. He was still hiding.
There was no further cross‑examination and no re-examination.
Discussion of the evidence
The prosecutor submitted that the witness spoke in a straightforward way during his interview and pre-recorded evidence. He presented as a genuine witness, talking from his own experiences and about things he actually observed. The submission was made that he was honest and reliable.
It was submitted that the evidence does not support a concern about influence from his mother. There is no evidence that his mother has said anything which would cause the complainant to concoct this story. There is no evidence that this is the product of an interference.
The prosecutor submitted that there are numerous factors which should give confidence in MF’s account over and above the manner in which he gave his evidence.
The first point was that MF spoke about watching from the lounge into the bedroom. The submission was made that the house plan supports the possibility of seeing into the bedroom from the lounge room. I note that there was no direct evidence about which of the bedrooms was the accused’s bedroom at the relevant time. The evidence from MF is that he went downstairs into the lounge and could look into the bedroom. Based on that evidence, and the plan, I infer that the relevant bedroom is ‘bed one’ as marked on the plan.
Second, the submission was made that MF talked about going upstairs and looking back towards the lounge room after he made the observation. That is supported by the house plan that shows that there were stairs between the lounge and the other bedrooms in the house.
Third, the prosecutor made the point that MF was able to correct a question that I asked about whether he went into the bedroom and hid behind the couch. MF did not simply agree with what was asked of him, but said that the couch was in the lounge room. It was submitted that that was a significant part of his evidence. It demonstrated that MF had a memory that was not varied or interfered with by suggestion.
The fourth point was that a great deal of confidence can be derived from MF’s description of child exploitation material on the accused’s computer. It was submitted that is an extremely unusual thing for a child to talk about or to know about unless they have seen it. It was an agreed fact that the accused has admitted possession of child exploitation material on 27 October 2019.
The difficulty with reliance upon that agreed fact is it relates to a date which is not the date on which this allegation is said to have occurred. There is no evidence that the accused was in possession of child exploitation material at the relevant time. I am cautious about inferring from that agreed fact that the accused must have been in possession of that material on a prior relevant date (which is unknown).
The prosecution does not rely upon possession of child exploitation material on 27 October 2019 as being relevant and admissible in regard to any issue other than support for MF’s evidence on that topic. In particular, the prosecution does not rely upon any suggestion of sexual interest propensity reasoning arising from that evidence in proof of this offence.
The prosecutor submitted that MF’s description of putting the cross out to shut the computer down has the ring of truth. He submitted that the overall account of MF hearing his sister laughing, sneaking down and hiding behind the couch, seeing the tickling and feeling disappointed that he was not involved and then going back to his bedroom and pretending he was playing with his toys so he did not get into trouble for coming downstairs also has the ring of truth.
It was submitted that I could be satisfied that MF knows the location of the vagina, because he circled that area on a body sketch.
It was submitted that MF has not confused this with a mundane game of tickling. He knows the difference. He gave evidence about how the accused tickled him and made no suggestion that that was in the genital area.
In relation to MF’s failure to disclose this incident during his first interview on 25 October 2019, the prosecutor submitted that is not surprising. He was not asked about this occasion. He was asked about secrets, but this is not a secret that he was asked to keep by anybody. He was asked about bad touching and whether the accused had done anything to his sister before and he said ‘shouting’. He shook his head to say that there was nothing else. It was submitted that the question was very general and followed on directly from the topic of shouting. Further, it is apparent that from his evidence, MF did not really understand the significance of what he saw. He was not upset because he says he was witnessing anything inappropriate, or a serious offence. In those circumstances, why would he have been expected to have volunteered this incident to the police.
In relation to the topic of indecency, the prosecutor relied upon there being a sexual connotation because of the area of the body touched. He submitted the community does not tolerate the touching of a young girl’s vagina in any circumstances other than when strictly necessary, such as for a health complaint.

For the accused, Mr Allen submitted that there are two insurmountable problems for the prosecution. The first is proving beyond reasonable doubt that the accused ever touched the complainant on the vagina. The second, is that it could never be proved that any such contact was anything other than a by‑product of innocent tickling taking place between father and daughter.
Mr Allen submitted tickling is not a static event. It is not a situation where someone is lying still and being touched. It is very dynamic. He referred to s 20(2) of the Criminal Law Consolidation Act 1935 and submitted it effectively establishes the defence that if contact happens in the ordinary course of human interaction which is acceptable, then no offence of assault is made out. He submitted that tickling a child is acceptable when that child is your daughter.
He submitted that the prosecution case relies entirely upon the unsworn evidence of a nine year old boy. Further, it occurred, apparently, when he was five years old. The passage of time for such a young child affects reliability. He submitted that children can give very compelling evidence, but nevertheless, MF’s young age and the delay are such that I should scrutinise his evidence with great care.
Mr Allen made a further point that this allegation was not mentioned during the course of the first interview on 25 October 2019. MF told the police on that occasion that nothing bad had happened between his father and his sister. Mr Allen submitted that is significant because the interview was being conducted in circumstances prescribed by law with an accredited interviewer. He made reference to the possibility of unknown discussions between MF and his mother between the first and second interview. He submitted that there is the potential for subliminal contamination given MF’s evidence that he cannot remember what his mother discussed with him. He submitted that he cannot put the submission any higher than that.
I note that there was no evidence about why MF was interviewed on a second occasion. The disclosure of this allegation was the only disclosure made during the second interview. There was no inappropriate leading by the interviewing officer. The questioning was appropriate. That fact tends to detract from the prosecutor’s submission about the reasons why MF might not have mentioned this during the first interview. All of those reasons are equally applicable to the second interview, namely, this was not a secret that he had been told to keep, nor was he aware of the significance of what he saw.
I do take into account that there are many reasons why a young child may not disclose something during a first interview. It was more than a non‑disclosure, however. He was asked whether his father had done anything to his sister before. He said ‘shouted’. He was asked whether there was anything else and he shook his head.
His failure to mention this allegation during the first interview is one matter I take into account in assessing the reliability of MF’s evidence. It is not something which of itself would be decisive in regard to the issue of his reliability.
Mr Allen also referred to inconsistencies in MF’s account. MF gave evidence in court that he came down the stairs prior to the incident. However, when describing this incident during his interview, he said it was his father and his sister who came down the stairs prior to the incident.
In my view, of more significance, is that MF gave evidence that he saw his father kissing the complainant. No mention of that was made during his interview. There were plenty of opportunities during the interview for him to have included that observation. It does start to suggest to me that there was some degree of embellishment in his pre‑recorded evidence.
Mr Allen also referred to the difference between MF’s pre‑recorded evidence and the interview on the topic of the whereabouts of the accused and his sister before MF went upstairs. He gave evidence that the accused and his sister were on the couch. MF had gone up the stairs and was hiding behind the wall when he saw them on the couch.[24] In his interview, he said the next thing that happened after the tickling was that they had dinner.[25]
[24] T23.
[25] MFI P1A, T22.
Mr Allen submitted that objectively that evidence seems improbable. It is a bit odd in a number of respects. It would mean that MF moved from his hiding position to go upstairs and hide again behind a wall before the accused and his sister moved from the accused’s bedroom to the lounge room. He said he wanted to avoid being in trouble for being downstairs. The scenario is not impossible, but it does beg the question about why MF did not go straight to his bedroom after the tickling finished if that was his main concern.
I have carefully considered the submissions of both counsel. I find that the main difficulty about the reliability of MF’s evidence is his account of the scenario itself. It is a very specific observation that MF claims to have made, namely tickling in the vaginal area. As I have already indicated, in the absence of any direct evidence led by the prosecution about ‘Bed 1’ being the accused’s bedroom, I am prepared to infer from MF’s evidence that the bedroom in question is the bedroom marked ‘Bed 1’ on the floor plan. However, there is no evidence about the layout of the bedroom at the time, the type of bed that was in the bedroom or against which of the two possible walls the bed was positioned.
No evidence was led by the prosecution about the layout of furniture during this period in the lounge/dining room. According to the floor plan, there were two open entrances to the lounge/dining area. The largest open entrance is directly opposite what appears to be two double doors which open into the bedroom. On the basis of the floor plan, if those two double doors were open at the relevant time, there would be an ability to see from the lounge/dining room through that open door area into the bedroom, depending on where the witness was in the lounge/dining room.
No evidence was led from MF about whether one or both doors into the bedroom were open. There was no evidence led from MF or anybody else as to whether if the two doors were open, you could see the end of the bed such that the head of the bed was on the common wall with the garage, or whether the end of the bed was visible if the head of the bed was on the outside wall adjacent to the porch. I do not know whether the bed in the bedroom was a single, double, queen or king size bed. I do not know where or how a couch or couches were positioned in the lounge/dining room. I have no information about the height of MF as compared to the height of the couch.
The floor plan raises more questions than answers. No photos have been tendered in regard to the relevant areas. There is no information as to the approximate distance between MF and the bed, nor the lighting. MF gave evidence that the next thing that happened was dinner. It may be that I can infer from that that it was night time. If that was the case, there is no evidence from MF about whether lights were on in the lounge/dining room and/or in the bedroom.
Given MF’s age at the time he purports to have made the observation, his age at the time of the interview/pre‑recorded evidence, the delay between the observation and his interview/pre‑recorded evidence, his failure to mention this occasion during the first interview with the police and inconsistencies between his account during the pre‑recorded evidence compared to his interview, I must scrutinise his evidence with great care.
I emphasise that this is not a situation of not believing what a young child has to say. I do not approach this matter on that basis at all. Children can be compelling witnesses about all sorts of matters.
The absence of evidence about the layout of this area leaves me with doubts about the reliability of MF’s observation, particularly in circumstances where the touching is alleged to have occurred in the course of tickling. I agree with Mr Allen that an occasion of tickling necessarily means that the child being tickled is moving about. That adds to my doubt about the ability of MF to observe something so particular in the course of dynamic movement from a distance in an area about which I have very little information. Further, even if I was satisfied that the observation was reliable, I would struggle with finding it proved that the touching occurred in circumstances of indecency as compared to accidental and incidental touching during a father tickling his young daughter.
I am unable to accept MF’s evidence that when he was in his room he heard his sister say ‘tickle my bits, daddy’. I think it unlikely he would have heard that from his bedroom. In the context of the evidence I have heard, it seems an unlikely request for a three year old to make.
The prosecution has not proved beyond reasonable doubt that the accused tickled his daughter’s vagina in the circumstances alleged.
I find the accused not guilty.