R v F, KV
[2019] SADC 53
•3 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, KV
Criminal Trial by Judge Alone
[2019] SADC 53
Reasons for the Verdict of His Honour Judge Muscat
3 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
STATUTORY CONSTRUCTION; ALTERNATIVE OFFENCES; DOUBLE JEOPARDY
The defendant is charged with maintaining an unlawful sexual relationship with a child, between 2015 and 2017 (Count 1) and in the alternative, with unlawful sexual intercourse with a person under 14 years (Count 2). The defendant pleaded guilty to Count 2 on the Information at the commencement of the trial. The defendant’s guilty plea to Count 2 was not accepted in satisfaction of the Information by the prosecution.
Consideration of the construction of s 50(7) of the Criminal Law Consolidation Act 1935. Procedure relating to guilty plea entered to alternative offence.
Verdict: Guilty of Count 1.
Criminal Law Consolidation Act 1935 s 50; Evidence Act 1929 ss 12A, 13BA, 34M, 34P; Criminal Code 1899 (Qld) s 229B, referred to.
R v Murphy (1988) 52 SASR 186; R v Brady & Smythe (2005) 92 SASR 135; R v Hazeltine [1967] 2 QB 857; R v Botterill (2010) 108 SASR 143; R v Landmeter (2015) 121 SASR 522; R v LKB (2017) 127 SASR 274; R v Cronin [2018] SASCFC 61; R v P, G [2019] SASCFC 7; Hughes v R [2017] HCA 20; 264 A Crim R 225; 92 ALJR 52; 344 ALR 187; R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846; 359 ALR 359; McPhillamy v R [2018] HCA 52; 92 ALJR 1045; 361 ALR 13; R v M, BJ (2011) 110 SASR 1; R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN (2013) 117 SASR 81; R v Bonython-Wright (2013) 117 SASR 155; R v Heinze [2017] SASCFC 155; R v Jones [2018] SASCFC 96; R v Van Wyk [2018] SASCFC 138, applied.
R v Holder [2018] SASC 168; R v Pearce [2019] SASC 33, not followed.
R v Zampogna (2003) 85 SASR 56; R v AP [2003] QCA 445; R v DAT [2009] QCA 181; R v LAF [2015] QCA 130, considered.
R v F, KV
[2019] SADC 53Charges
F, KV (“the defendant”) is charged on an Information dated 4 March 2019 with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
F, KV, at Hayborough, between the 10th day of April 2015 and the 25th day of March 2017, maintained an unlawful sexual relationship with F, C a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards F, C, namely:
(a)Touching her on her genital area on one or more occasions;
(b)Penetrating her labia majora with his finger on one or more occasions.
F, KV is further charged in the alternative with the following offence:
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years (Section 49(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
F, KV, on the 24th day of March 2017 at Hayborough, had sexual intercourse with F, C, a person under the age of 14 years, by penetrating her labia majora with his finger.
Introduction
Count 1 involves an allegation that the defendant committed digital vaginal penetrative and non-penetrative acts upon his granddaughter, F, C, (hereafter referred to as “C”, who was born on 21 November 2010) when she was staying at his home during school holiday periods between 2015 and 2016 and again during a week long period between about 17 March 2017 and 25 March 2017.
Count 2 involves a specific allegation of digital penetration of C’s labia majora on the night of 24 March 2017, when C and her family were staying at the defendant’s home following her mother’s separation from her partner (C’s father). C stated that while she was sitting on the defendant’s lap watching the movie Peter Pan, he placed his hand underneath her knickers and, using his index finger, touched her on the “minnie”, which she explained was her vagina. C also described feeling her minnie being penetrated by the defendant’s finger. C said that after the defendant removed his finger from her minnie he licked his finger.
Immediately following this alleged incident, C made a complaint to her mother, SF (the defendant’s daughter), telling her that the defendant had touched her minnie. In turn, SF immediately confronted the defendant, who admitted C’s allegation but claimed that he was drunk when the incident occurred.
C later made further disclosures to her mother about this incident, telling her mother that the defendant had “put his finger up inside her and licked his finger.”[1] SF confronted the defendant with this additional allegation, which he admitted but reiterated that he was drunk when it occurred.
[1] T82.
C’s maternal grandmother, LF, was told of this allegation by her daughter and confronted the defendant on 27 March 2017, putting to him: “Is it true that you put your finger down C’s minnie and licked it?” The defendant responded by saying: “I was drunk wasn’t I.”
C later disclosed to her mother that the defendant had also touched her on other occasions.
The defendant made admissions to the Peter Pan incident when interviewed by the police on 29 March 2017 and again on 8 May 2017 but denied any other sexual impropriety against C.
The defendant elected to be tried by judge alone.[2]
[2] Notice of Election for Trial by Judge Alone dated 6 June 2018.
Arraignment at trial
At the commencement of the trial the defendant pleaded guilty to Count 2 on the Information.[3] The defendant’s plea of guilty to that count was not accepted in satisfaction of the Information by the prosecution.[4]
[3] T4.
[4] T17.
Section 50(7) of the Criminal Law Consolidation Act 1935 now specifically permits the charging, on the same Information, of both the offence of maintaining an unlawful sexual relationship with a child and one or more sexual offences committed during the alleged period of the unlawful sexual relationship, and for there to be convictions and punishment for all offences charged on the single Information. This represents an important departure from established charging practices and appears to abrogate the protective principle of double jeopardy.
It is, therefore, necessary to consider the construction of s 50(7) and the prosecution charging practices in relation to charging, on the same Information, an offence of maintaining an unlawful sexual relationship with a child and separate sexual offences alleged to have occurred during the same period.
Procedure relating to a guilty plea entered by a defendant to an alternative or lesser offence which is not accepted by the prosecution
Where a defendant is charged with an offence (the primary offence), he or she is entitled to plead guilty to any alternative or lesser offence charged in the Information or to any statutory or common law alternative offence that exists in relation to the charged offence (the alternative offence). If the prosecution accepts the guilty plea to the available alternative offence, then the defendant will be convicted of that offence and the conviction operates as an acquittal of the charged offence.[5]
[5] Section 133 Criminal Procedure Act 1921 (formerly s 285B Criminal Law Consolidation Act 1935).
However, when a guilty plea entered to an alternative or lesser offence is not accepted by the prosecution in satisfaction of the primary offence, the procedure with respect to the rejected guilty plea differs according to whether or not the alternative offence has been charged on the Information.
When the alternative offence is charged on the Information, a guilty plea entered to that alternative offence is recorded by the court and the trial proceeds only upon the primary offence. If the defendant is acquitted of the primary offence, no verdict is necessary in relation to the alternative offence which the defendant pleaded guilty to. The court then proceeds to sentence the defendant for that admitted (alternative) offence. If the defendant is convicted of the primary offence, then while the defendant’s guilty plea to the alternative offence remains, the defendant cannot be sentenced for that offence.[6] To do so would offend the principle of double jeopardy.[7]
[6] R v Murphy (1988) 52 SASR 186; R v Brady & Smythe (2005) 92 SASR 135.
[7] Pearce v R (1998) 194 CLR 610.
When the alternative offence is not included as a charge on the Information but a defendant pleads guilty to an available statutory or common law offence that exits as an alternative to the primary offence, then if the guilty plea is not accepted by the prosecution in satisfaction of the primary offence, the guilty plea is deemed to be withdrawn. In that situation the trial proceeds in relation to the primary offence, although the trier of fact is entitled to return a guilty verdict to any available alternative offence in the event of an acquittal on the primary offence.[8]
[8] R v Zampogna (2003) 85 SASR 56. It is noted that in R v Holder [2018] SASC 168 (reasons for verdict of Vanstone J) and R v Pearce [2019] SASC 33 (reasons for verdict of Doyle J), both cases involving a primary offence of attempted murder and a charged lesser offence, neither trial judge adopted the procedure approved in R v Murphy and R v Brady & Smythe, deciding instead to take the rejection of the guilty plea entered to the charged lesser offence as being withdrawn.
The simple reason that the rejected guilty plea is deemed to have been withdrawn in those circumstances is that there is only one count for which the defendant can be put in the charge of the jury for determination. As a not guilty plea has been entered to that count it follows that it is for the jury to determine whether that count has been proved beyond a reasonable doubt and, where directed, in the event the jury has returned a not guilty verdict to the primary offence charged on the Information, to return a verdict to any alternative offence available on the evidence.[9]
[9] In such a situation, while it is for the jury to return verdicts in a criminal trial, there would be no reason why the jury would not act upon the defendant’s guilty plea entered to an available alternative offence, as evidence establishing all of the elements of that alternative offence, in the event the jury has found the defendant not guilty of the primary offence and is considering its verdict in relation to the alternative offence.
The rationale for the difference in the procedure is neatly illustrated in R v Hazeltine,[10] a case involving, amongst other charges, one count of wounding with intent to do grievous bodily harm (the primary offence). The defendant pleaded not guilty to that offence but guilty to the common law alternative offence of unlawful wounding. The prosecution did not accept the defendant’s guilty plea to the available alternative offence, which was not separately charged in the Information. Although the trial judge directed the jury on the available verdicts, he directed the jury that it was not necessary for them to return a verdict to the alternative offence because the defendant had pleaded guilty to that offence. The defendant was found not guilty of the primary offence and the trial judge proceeded to sentence him for the offence of unlawful wounding to which the defendant had pleaded guilty upon his arraignment.
[10] [1967] 2 QB 857.
Salmon LJ stated at 861-862:
A case such as this is quite different from a case such as R v Cole [1965] 2 QB 388, where there were two counts in the indictment, one charging a serious offence, one a lesser offence. That case lays down the correct procedure to be followed where a prisoner pleads guilty to the count charging the lesser offence and not guilty to the count charging the more serious offence. If the plea to the less serious offence is not accepted, the prisoner will then be put in the charge of the jury only on the more serious count. If he is acquitted on that count he will then be sentenced on the count to which he pleaded guilty. If, on the other hand, he is convicted on the more serious count, the proper course is for the judge to allow the count to which he has pleaded guilty to remain on the file and not proceed to sentence him on that count. In the present case, however, there was but one count which is indivisible and the only effective plea to that count in respect of which the appellant was put in charge of the jury was the plea of not guilty.
At one stage of the summing-up the judge explained the position with complete accuracy to the jury. He told them that they could find this man not guilty of anything or if they were satisfied, beyond a reasonable doubt, that he was guilty of wounding with intent, they could find him guilty of that offence or if they were satisfied beyond a reasonable doubt that he was guilty of unlawful wounding but not satisfied about the intent, then they could find him guilty of unlawful wounding. Towards the end of the summing-up, however, he appears to have told the jury that since this man pleaded guilty to unlawful wounding in the first instance, it was unnecessary for them to consider that matter. When the jury were asked for their verdict on Count 4 they were asked merely whether they found him guilty or not guilty on that count and they said not guilty. They were not asked whether they found him guilty of unlawful wounding and they certainly did not do so. Unfortunately in this particular case the plea which he had offered of guilty to unlawful wounding as a plea, was a nullity.
… [T]here cannot be more than one effective plea to any count in respect of which an accused is put in charge of the jury. The only effective plea here was a plea of not guilty.
In either situation where a defendant pleads guilty to an alternative offence charged in the Information or an available statutory or common law alternative offence, the plea of guilty to the alterative offence, can be relied upon by the prosecution as evidence of an admission of matters inherent in the guilty plea, in proof of the primary offence. So, for example, in a case of murder, where a defendant pleads not guilty but guilty to manslaughter (a common law alternative offence), the guilty plea would be evidence of a deliberate and intentional physical act on the part of the defendant that caused the death of the deceased, which could be used against the defendant in proof of the charge of murder.
Applying the procedure stated in the authorities above, and on the assumption that Count 2 was correctly charged in the alternative to Count 1, the defendant’s guilty plea to Count 2 stands, and if he is acquitted of Count 1 he will then be sentenced for Count 2. If he is convicted of Count 1 then his guilty plea to Count 2 remains on the court file but he cannot be sentenced for that sexual offence.
Interpretation of s 50(7) of the Criminal Law Consolidation Act
Young children who have been subjected to a course of sexual abuse are often unable to identify specific occasions of that sexual abuse. They can usually only provide general details of the nature of the sexual abuse perpetrated upon them.
The legislative intent behind the enactment of the offence of maintaining an unlawful sexual relationship with a child, contained in s 50 of the Criminal Law Consolidation Act 1935, and its predecessor offences,[11] was to overcome difficulties in prosecuting child sex offences, where a child was unable to identify or provide sufficient particularity of the alleged sexual act to enable the laying of a sexual offence in conformity with the certainty which the law requires.[12]
[11] Persistent Sexual Abuse of a Child contrary to s 74 of the Criminal Law Consolidation Act 1935 which was replaced by the offence of Persistent Sexual Exploitation of a Child contrary to s 50 of the Criminal Law Consolidation Act 1935 on 23 November 2008.
[12] See S v R (1998) 168 CLR 266; R v S (1992) 58 SASR 523.
The offence of maintaining an unlawful sexual relationship with a child created by s 50 (the “maintaining offence”) was introduced by Parliament in response to the High Court’s decision in Chiro v R.[13]The Court held that upon a general verdict of guilty returned by the jury to the predecessor offence of persistent sexual exploitation of a child where multiple acts of sexual exploitation are alleged in the particulars of the offence, a trial judge should determine whether to exercise his or her discretion to ask the jury questions designed to identify which of the underlying acts of sexual exploitation it found proved in arriving at its guilty verdict, so as to found a factual basis for sentence. This was particularly important in cases where the prosecution had alleged a number of different acts of sexual exploitation, some of which were more egregious than others.
[13] (2017) 260 CLR 425.
In Chiro v R the particulars of the charge alleged a number of different acts of sexual exploitation, ranging from acts of unlawful sexual intercourse (both fellatio and digital vaginal) to indecent assault (including kissing the complainant on the lips). In the absence of ascertaining from the jury which of the particularised acts of sexual exploitation were agreed upon in reaching its general verdict of guilty, the defendant stood to be sentenced upon the view of the facts most favourable to him. As the complainant’s evidence included that she was kissed on the lips on more than one occasion and as that sexual conduct was alleged in the particulars, the Court held that in the absence of the jury being asked by the trial judge which of the particularised sexual acts it was satisfied had been proved, the defendant was required to be sentenced on the basis that he had only kissed the complainant on the lips, that being the least serious of the sexual acts particularised by the prosecution.
Section 50 of the Criminal Law Consolidation Act provides:
50—Persistent sexual abuse of child
(1)An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)However—
(a)the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b)the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c)if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(6)This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.
(7)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a)an offence of maintaining an unlawful sexual relationship with a child; and
(b)1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)Except as provided by subsection (7)—
(a)a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b)a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(9)A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(10)For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(11)A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
(12)In this section—
adult means a person of or over the age of 18 years;
child means—
(a)a person who is under 17 years of age; or
(b)a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age;
predecessor offence means an offence of persistent sexual exploitation of a child, or of persistent sexual abuse of a child, as in force under a previous enactment;
sexual offence means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 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;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
unlawful sexual relationship offence means an offence against subsection (1).
(13)For the purposes of this section, a person is in a position of authority in relation to a child if—
(a)the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or
(b)the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or
(c)the person provides religious, sporting, musical or other instruction to the child; or
(d)the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or
(e)the person is a health professional or social worker providing professional services to the child; or
(f)the person is responsible for the care of the child and the child has a cognitive impairment; or
(g)the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or
(h)the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
I consider that s 50 was designed to be a code detailing how charges could be laid, in circumstances where a course of conduct is alleged by a child who is able to identify some specific sexual acts with sufficient particularity to justify charging specific sexual offences, but who also alleges that the same or other sexual acts occurred on a regular basis without being able to provide sufficient detail or specificity that could found the basis of charging a specific sexual offence.
Section 50(7) authorises the charging on a single Information of a maintaining offence and one or more sexual offences alleged to have occurred during the period particularised in the maintaining offence over which the unlawful sexual relationship was alleged to have been maintained. Critically, it authorises that a defendant so charged may be convicted and punished for both the maintaining offence and any sexual offence.
Has s 50(7) overridden the protective principle of double jeopardy?
An important question that arises for consideration is whether in enacting s 50(7) Parliament has overridden the well-established principle of double jeopardy which protects a defendant from being convicted and punished twice for the same conduct.
It is a fundamental legal principle that a person cannot be prosecuted or punished twice for the same offence or an offence, elements of which, are wholly included in the other offence the person is also charged with.[14]
[14] The principle of double jeopardy or the common law pleas in bar of autrefois convict and autrefois acquit. See: Pearce v R (1998) 194 CLR 610; Island Maritime Ltd. v Filipowski (2006) 226 CLR 328.
In enacting s 50(7), Parliament is taken to have been aware of such a fundamental legal principle. Any intention to overrule the principle of double jeopardy would need to be explicitly stated by Parliament in clear and unambiguous language.[15]
[15] Pearce v R (1998) 194 CLR 610 at [40]. Examples of where Parliament has abolished the common law can be found in s 34M of the Evidence Act 1929, where Parliament expressly stated that it abolished the common law relating to recent complaint evidence as pronounced by the High Court in Kilby v R and Crofts v R, and also in Division 6 of the Criminal Procedure Act 1921, dealing with limitations on rules relating to double jeopardy.
Applying the literal rule of statutory construction to subsection (7), Parliament’s inclusion of the words “convicted and punished for both” the maintaining offence and any sexual offence, evinces a clear intention to abolish the principle of double jeopardy. This language is not found elsewhere in Criminal Law Consolidation Act, therefore, it can be inferred that Parliament has used this language as a direct reference to the principle of double jeopardy.
This construction is further supported by the consideration of the purpose behind enacting s 50, which was to broaden the options available to the prosecution to prove the maintaining offence. There would have been no need for Parliament to permit a conviction and punishment for both a maintaining offence and a sexual offence allegedly committed during the period of the unlawful sexual relationship unless Parliament intended the sexual act, the subject of the sexual offence, to be counted towards the sexual acts required to prove the unlawful sexual relationship. It inexorably follows that Parliament intended to override the principle of double jeopardy.
A consideration of the legislative history of the predecessor offences also provides a guide to Parliament’s intentions in enacting subsection (7).
On 28 July 1994, Parliament created the offence of Persistent Sexual Abuse of a Child, contained in s 74 of the Criminal Law Consolidation Act. Parliament's intention in relation to a person charged with this offence was made explicit in ss 74(8) and (9):
(8)A charge of persistent sexual abuse of a child subsumes all sexual offences committed by the same person against the same child during the period of the alleged sexual abuse, and hence a person cannot be simultaneously charged (either in the same or in a different instrument of charge) with persistent sexual abuse of a child and a sexual offence alleged to have been committed against the same child during the period of the alleged persistent sexual abuse. (Emphasis added)
(9)A person who has been tried and convicted or acquitted on a charge of persistent sexual abuse of a child may not be charged with a sexual offence against the same child alleged to have been committed during the period over which the defendant was alleged to have committed persistent sexual abuse of the child.
Under s 74, where the prosecution elected to charge a person with the offence of Persistent Sexual Abuse of a Child, no additional or alternative sexual offences could be charged against that person involving the same child which were alleged to have been committed during the period of the sexual abuse as particularised in the charge. The charge effectively “covered the field” of all sexual offences during the period of the alleged abuse and there could be no question of double jeopardy arising in that situation.
On 23 November 2008 the offence of Persistent Sexual Abuse of a Child was abolished and replaced with the offence of Persistent Sexual Exploitation of a Child, contained in s 50 of the Criminal Law Consolidation Act.
Parliament’s intention with respect to charging a person with this offence and other sexual offences during the same period involving the same child was expressed in ss 50(4) and (5):
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) …
(b) …
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative. (Emphasis added)
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
Parliament again stated how the prosecution was to approach the laying of criminal charges in the circumstances outlined in s 50(4). It was clear from s 50(4)(c) that any other sexual offence charged on the same Information as the offence of Persistent Sexual Exploitation of a Child and allegedly committed during the same period could only be charged in the alternative to that offence.
By requiring the prosecution to charge any other sexual offences in the alternative to the offence of Persistent Sexual Exploitation of a Child, Parliament envisaged that the prosecution could rely upon the conduct, the subject of any separately charged sexual offence as an act of sexual exploitation to establish the offence of Persistent Sexual Exploitation of a Child. If a guilty verdict was returned to the offence of Persistent Sexual Exploitation of a Child, no verdicts could be taken in relation to the alternative sexual offences also charged on the Information. In other words, a defendant could not be convicted for both. This was the interpretation expressed by Duggan J in R v Botterill[16] and later by Vanstone and Bampton JJ in R v Landmeter.[17]
[16] (2010) 108 SASR 143 at [11].
[17] (2015) 121 SASR 522 at [25].
This construction of s 50(4) was later confirmed by Vanstone J[18] in R v LKB[19] at [35]:
Subsections (4)(c) and (5) each provide protections to an accused person which are only necessary and appropriate if conduct can simultaneously amount to a sexual offence and an act of sexual exploitation. Subsection (4)(c) provides that an Information may contain a charge against s 50 as well as one or more for sexual offences, or other offences. However, charges for sexual offences allegedly committed in the same timespan as the s 50 offence must be charged in the alternative. Plainly, this provision protects an accused person against being convicted twice for charges founded on the same facts. Implicitly this subsection acknowledges that the sexual offence capable of proper particularisation might be among the acts of sexual exploitation alleged as part of the s 50 charge.
[18] With whom Kourakis CJ and Chivell AJ agreed.
[19] (2017) 127 SASR 274.
The structure of s 50(4), therefore, clearly recognised and protected an accused person against double jeopardy.
On 24 October 2017, Parliament replaced the offence of Persistent Sexual Exploitation of a Child with the current offence of Maintaining an Unlawful Sexual Relationship with a Child. Parliament’s intentions in relation to charging sexual offences against children are expressed in ss 50(7) and (8) which provide:
(7) A person may be charged on a single indictment with, and convicted of and punished for, both—(Emphasis added)
(a)an offence of maintaining an unlawful sexual relationship with a child; and
(b)1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship. (Emphasis added)
(8) Except as provided by subsection (7) — (Emphasis added)
(a)a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b)a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
A consideration of the predecessor offences, which curtailed the prosecution charging discretion, is also informative in determining Parliament’s intention. The previous restrictions against charging other sexual offences when a charge of Persistent Sexual Abuse of a Child was laid (s 74) or to charge sexual offences in the alternative, when a charge of Persistent Sexual Exploitation of Child was laid (s 50), have been removed from the current version of the offence, revealing that Parliament has broadened the reach of s 50 to permit the laying of a charge(s) of a sexual offence(s) on the same Information, as a separate offence(s) to the offence of Maintaining an Unlawful Sexual Relationship with a Child, and for there to be a conviction(s) and punishment for both, which was previously specifically forbidden.
This is consistent with the interpretation expressed by Vanstone J in R v LKB, where she held that subsections (4)(c) and (5) were only necessary if the alleged conduct could simultaneously amount to a sexual offence and an act of sexual exploitation.
The inter-relationship between ss 50(7) and (8) also supports the conclusion that Parliament has abolished the principle of double jeopardy where subsection (7) is utilised by the prosecution.
The preamble words to subsection (8) - “Except as provided by subsection (7)” - evinces a clear and unambiguous expression by Parliament that it has abrogated the common law principle of double jeopardy in enacting subsection (7).
Subsection (8) was enacted to replicate the safeguard against fresh proceedings that was also protected under s 74(8) and s 50(5) of the predecessor offences.
In R v Botterill,[20] Duggan J stated:[21]
[I]t is clear that s 50(5) was intended to prevent the prosecution from commencing fresh proceedings after the completion of a trial of an offence of persistent sexual exploitation by charging a defendant with a sexual offence allegedly committed during the period specified in the charge of persistent sexual exploitation of which the defendant was convicted or acquitted at the trial.
It appears that the principal purpose of s 50(5) is to avoid double jeopardy. It would be inappropriate to commence fresh proceedings charging a specific sexual offence alleged to have occurred during the period alleged in a charge of persistent sexual exploitation upon which the defendant had been convicted at a previous trial. The charging of an offence in the alternative as contemplated by s 50(4)(c) avoids double jeopardy by reason of the fact that a defendant cannot be convicted of both offences.
The legislation also addresses the situation of an acquittal on a charge of persistent sexual exploitation. If the prosecution were permitted to commence fresh proceedings alleging a specific sexual offence which occurred during the period of the alleged persistent sexual exploitation after an acquittal on that charge at a previous trial, it is conceivable that the incident giving rise to the subsequent charge was found by the jury not to have been proved at the first trial. This difficulty would not arise if the specific sexual offence was charged as an alternative to the offence of persistent sexual exploitation. Obviously, the jury would not convict on the specific offence if it found that offence had not been proved as a component of the charge of persistent sexual exploitation.
In my view the intention of the legislature was to recognise the different considerations applicable to the situation where, on the one hand, a sexual offence is charged as an alternative to a charge of persistent sexual exploitation under s 50(4)(c) and, on the other hand, where an attempt is made to charge the specific sexual offence in fresh proceedings in the circumstances referred to in s 50(5).
The intention to provide for each of these situations is also revealed by the grammatical construction of the relevant subsections. Section 50(4)(c) refers to a sexual offence “during the period during which a person is alleged to have committed” the offence of persistent sexual exploitation whereas s 50(5) speaks of a sexual offence “committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation”. The tense used in s 50(4)(c) is appropriate to a current trial whereas the tense used in s 50(5) is apt to describe an allegation made in previous proceedings.
[20] (2010) 108 SASR 143.
[21] At [10]-[14].
In construing Parliament’s intention, it is significant that in subsection 8(b) the words “during the alleged period of the unlawful sexual relationship”, that appear in subsection (7)(b), were not used, but instead the words “is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship” were used. This can only be construed as permitting a sexual act, the subject of a charged sexual offence, to be counted towards the sexual acts that constitute the unlawful sexual relationship. In my view, that puts beyond doubt that Parliament did intend to abolish the principle of double jeopardy but only when the prosecution charges other sexual offences pursuant to subsection (7), otherwise the principle remains applicable.
It is quite apparent that s 50 has been heavily modelled on s 229B of the Criminal Code 1899 (Qld), which provides:
229B Maintaining a sexual relationship with a child
(1) Any adult who maintains an unlawful sexual relationship with the child under the age of 16 years commits a crime.
Maximum penalty – life imprisonment.
(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.
(3) For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.
(4) However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and
(c) all the members of the jury are not required to be satisfied about the same unlawful sexual acts.
(5) If the child was at least 12 years when the crime was alleged to have been committed, it is a defence to prove the adult believed on reasonable grounds the child was at least the age of 16 years.
(6) An adult can not be prosecuted for the crime without a Crown Law Officer’s consent.
(6A) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for the crime.
(7) An adult may be charged in 1 indictment with—
(a)the offence of maintaining an unlawful sexual relationship with a child (the maintaining offence); and
(b)1 or more other offences of a sexual nature alleged to have been committed by the adult in relation to the child in the course of the alleged unlawful sexual relationship (the other offence or offences).
(8) The adult charged in 1 indictment as mentioned in subsection (7) may be convicted of and punished for any or all of the offences charged.
(9) However, if the adult is—
(a)charged in 1 indictment as mentioned in subsection (7); and
(b)sentenced to imprisonment for the maintaining offence and for the other offence or offences;
the court imposing imprisonment may not order that the sentence for the maintaining offence be served cumulatively with the sentence or sentences for the other offence or offences.
Note—
See the Penalties and Sentences Act 1992, section 155 (imprisonment to be served concurrently unless otherwise ordered).
(10) In this section—
offence of a sexual nature means an offence defined in section 210 (other than section 210(1)(e) or (f)), 215, 222, 349, 350 or 352.
unlawful sexual act means an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature.
The prosecution referred to a number of Queensland cases involving s 229B,[22] and also to the legal directions contained within the Queensland Bench Book,[23] as supportive of the conclusion that Parliament had, in enacting s 50(7), expressly abolished the principle of double jeopardy.
[22] R v AP [2003] QCA 445; R v DAT [2009] QCA 181; R v LAF [2015] QCA 130.
[23] Jury Directions on the offence of Maintaining an Unlawful Sexual Relationship with a Child:
"If you are satisfied beyond reasonable doubt of the guilt of the defendant in relation to any of counts (2, 3 or 4), the relevant sexual act or acts will then be used in your consideration of the count of maintaining.
In this case, as well as relying on the specific sexual acts identified in counts (2, 3 and 4), the prosecution relies upon sexual acts about which the complainant was not specific as to times or circumstances under which the acts occurred. Those sexual acts described by the complainant were…
If you have a doubt about the specific offences in counts (2, 3 and 4), then you should only convict the defendant on the basis of the evidence of other alleged acts if after carefully scrutinising the evidence of the child you are satisfied beyond reasonable doubt that the defendant did these acts during the period alleged in the indictment (specify period).
A reasonable doubt with respect to the complainant’s evidence on any specific count should be taken into account and considered by you in your assessment of the complainant’s credibility generally: however it remains a matter for you as to what evidence you accept and what evidence you reject."
It certainly appears to be the case that in Queensland the view of the law is that in proving the maintaining offence, the prosecution is permitted to rely upon any sexual act that is the subject of a separately charged sexual offence included on the same Information as the maintaining offence.
Although neither counsel was able to refer to any Queensland authorities in which the question of double jeopardy was specifically considered by the Court of Appeal of that State, it is likely because the language used in s 229B(7)(b) of the Criminal Code (Qld) has specifically abolished the common law principle of double jeopardy. It is noted that s 229B has existed in Queensland since 30 March 1989.
Section 229B(7) of the Criminal Code (Qld) provides:
(7) An adult may be charged in 1 indictment with—
(a)the offence of maintaining an unlawful sexual relationship with a child (the maintaining offence); and
(b)1 or more other offences of a sexual nature alleged to have been committed by the adult in relation to the child in the course of the alleged unlawful sexual relationship (the other offence or offences). (( Underlining and emphasis added))
In contrast, s 50(7) of the Criminal Law Consolidation Act provides:
(7) A person may be charged on a single indictment with, and convicted of and punished for, both—
(a)an offence of maintaining an unlawful sexual relationship with a child; and
(b)1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship. (Emphasis added)
One important point of distinction between the Queensland and South Australian provisions is the inclusion in s 229B(7)(b) of the words “in the course of the alleged unlawful sexual relationship”. This was clearly designed to allow for the inclusion of other sexual offences charged on the Indictment as forming part of the maintaining offence, therefore, evincing a clear intention to override the common law principle of double jeopardy.
Whilst the language used by the South Australian Parliament differs from that used by the Queensland Parliament, it has no practical difference in meaning. In my view it would be illogical or artificial to seek to distinguish individual sexual offences during the period of the unlawful sexual relationship because they themselves comprise, in part, the unlawful sexual relationship. This is the point Vanstone J recognised in R v LKB and why it was necessary for Parliament to state that any sexual offences had to be charged in the alternative under the predecessor offence in recognition of the principle of double jeopardy. The specific language now used by Parliament in s 50(7) was designed to override the principle of double jeopardy in the knowledge that any sexual offences charged during the period of the unlawful sexual relationship form part of that relationship.
Furthermore, as I have already observed, subsection (8)(b) evinces Parliament’s intention with arguably more specificity and clarity than s 229B(7)(b) does.
Another point of distinction is found in s 229B(9), of which there is no equivalent in s 50. By declaring that any sentence imposed for the maintaining offence and any other sexual offences cannot be served cumulatively, the Queensland Parliament has abrogated the principle of double jeopardy in s 229B(8).[24] While s 50(7) provides no fetter to the court’s sentencing discretion, it does not follow from this alone that Parliament has not abolished double jeopardy.
[24] Pearce v R (1998) 194 CLR 610.
In his written submissions, the defendant accepted that it was arguable that subsection (7) removed the principle of double jeopardy.[25] However, during oral submissions the defendant submitted that the language used by Parliament in subsection (7) lacked the requisite level of clarity as to be construed as having abolished the principle of double jeopardy.
[25] Written Submissions at [4].
Whilst Parliament could have chosen to include in subsection (7)(b) words to the effect that the sexual act the subject of the charged sexual offence could be used in proof of the unlawful sexual relationship for the maintaining offence, I nevertheless remain of the view that Parliament’s intention is abundantly clear.
The use of the words “convict and punish for both” in subsection (7) is plainly a reference to double jeopardy and the preamble to subsection (8) simply confirms that to be so. Whilst there are differences in the wording of s 50(7)(b) of the Criminal Law Consolidation Act and s 229B(7) of the Criminal Code (Qld), they are not sufficient to affect my construction of subsection (7).
I construe subsection (7) as having abolished the principle of double jeopardy.
It follows that where the prosecution charges both the maintaining offence and other sexual offences alleged to have occurred during the period of the unlawful sexual relationship on the same Information, the prosecution is permitted to rely upon the sexual act the subject of a separately charged sexual offence to establish the existence of an unlawful sexual relationship in proving the maintaining offence.
Can Count 2 be charged in the alternative to Count 1?
Charging an offence or offences in the alternative to a primary offence is a practice well known and understood in the criminal law.
It is also well accepted that the prosecution is vested with a wide discretion regarding the laying of charges against a person, which, subject to either a clear restriction imposed by Parliament[26] or the court’s inherent power to stay proceedings as an abuse of process, may not be reviewed by the court.[27]
[26] Such as existed with the predecessor offences.
[27] See Maxwell v R (1996) 184 CLR 501.
A question, however, arises as to whether charging Count 2 on the same Information as Count 1 is only authorised pursuant to s 50(7), and then only as an additional offence, or whether it can be charged, as the prosecution has contended, in the alternative to Count 1, as so described on the Information.
The defendant accepted that the prosecution was permitted to charge Count 2 in the alternative to Count 1. He further accepted that the prosecution may rely upon his guilty plea to Count 2 to establish one of the two sexual acts necessary to prove the existence of an unlawful sexual relationship in relation to Count 1.
In charging Count 2 in the alternative to Count 1, the prosecution has adopted the charging position under s 50(4) of the predecessor offence, which clearly stipulated that any other sexual offences allegedly committed during the period alleged in the particulars of the offence of Persistent Sexual Exploitation of a Child could only be charged in the alternative. As previously discussed, this clearly indicated that the principle of double jeopardy was not being displaced by Parliament.[28]
[28] See [36]-[43].
Consistent with that position, the prosecution submitted that if the court was to convict the defendant of Count 1, then although the defendant had pleaded guilty to Count 2 and his guilty plea remains noted on the court file, the defendant could not be sentenced for Count 2. This conforms to the procedure set out in R v Murphy and R v Brady & Smythe, discussed earlier in these reasons.[29]
[29] See [11]-[19].
The prosecution submitted that unlike the predecessor offences, Parliament has not placed any restrictions on its charging discretion and pointed to the use of the word may in s 50(7) as support for the view that there is no restriction on the prosecution’s usual power to lay charges in any way it determines appropriate.[30]
[30] See s 7 Director of Public Prosecutions Act 1991.
The prosecution has submitted that it may either charge sexual offences in addition to the maintaining offence (in which case a defendant may be convicted and punished for both, pursuant to s 50(7)), or it may decide to charge specific sexual offences in the alternative to the maintaining offence. In either of these situations the prosecution submitted that the trier of fact is permitted to rely upon the sexual acts which are the subject of the separately charged sexual offences (charged either in addition to or in the alternative to the maintaining offence) in establishing that an unlawful sexual relationship existed in proof of the maintaining offence.
By charging Count 2 in the alternative to Count 1, the prosecution has expressly indicated to the defendant that it does not intend to utilise s 50(7) to seek convictions for both Count 1 and Count 2 against him.
There is nothing within the terms of s 50 that would indicate Parliament has curtailed or fettered the prosecution’s charging discretion, as it had with the predecessor offences.
Given my interpretation that s 50(7) has abolished the principle of double jeopardy, whilst one can question the utility of the prosecution charging a sexual offence or offences in the alternative to the maintaining offence,[31] I accept that such a charging practice is nevertheless available to the prosecution.
[31] A point conceded by the prosecution at T227.
Plainly, in light of the construction of s 50(7), if the prosecution does determine to charge other sexual offences in the alternative to the maintaining offence, then it must expressly state that on the Information, as it has done in this case, so that a defendant is on notice whether the prosecution is seeking convictions for both the maintaining offence and the other sexual offences charged on the Information as authorised by subsection (7).
Elements of the offence of Maintaining an Unlawful Sexual Relationship with a Child
In order to establish the offence of Maintaining an Unlawful Sexual Relationship with a Child, the prosecution must prove beyond a reasonable doubt the following elements:
1. The defendant was an adult throughout the relevant period.[32] The defendant was born on 20 January 1952.[33]
[32] See s 50(12).
[33] Agreed Fact 3.
2. C was under the age of 17 years throughout the relevant period.[34] C was born on 21 November 2010.[35]
3. The defendant engaged in an unlawful sexual relationship with C. An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period alleged in the particulars.[36] The prosecution has alleged the period of time over which the unlawful sexual relationship existed as being between 10 April 2015 and 25 March 2015.[37]
An unlawful sexual act means any act that constitutes, or would constitute (if particularised), a sexual offence.[38] The prosecution has alleged sexual acts in the particulars which would amount to the offences of aggravated indecent assault,[39] or unlawful sexual intercourse with a child under the age of 14 years.[40] The prosecution must prove that the defendant committed any two or more of the particularised unlawful sexual acts.
4. The defendant maintained the unlawful sexual relationship with C. In this context “maintained” carries its ordinary meaning; that is “carried on”, “kept up”, or “continued.” In other words, there must be some continuity of sexual conduct and not merely isolated sexual acts.
As McMurdo J stated in R v DAT,[41] when discussing the requirement in the offence that the unlawful sexual relationship must be maintained:
[T]he necessity … for the prosecution to prove ‘that there was a sufficient continuity or habituality to the activity of a sexual nature … as opposed to some isolated incidents which occurred, on occasions …’ applying what was said by Macrossan CJ and Mackenzie J in their judgments in R v Kemp (No.2), and by the Court (Pincus and McPherson JJA, Muir J) in R v S, which held that:
‘The decision in KBT v R does not relieve the Crown of the need to prove that the sexual relationship specified in s 229B(1) was ‘maintained’ for some period of time rather than being a discontinuous succession of sporadic and isolated acts.’ (Citations omitted)
Only elements 3 and 4 were in dispute in the trial.
[34] See s 50(12).
[35] Agreed Fact 1.
[36] Section 50(2) and (5).
[37] See particulars of Count 1.
[38] See definition of unlawful sexual act in s 50(12).
[39] See particular (a) in Count 1: Touching C on her genital area on one or more occasions, an aggravated offence of indecent assault, contrary to s 56(1) and (2) of the Criminal Law Consolidation Act 1935. In order to prove this offence, the prosecution must establish, beyond a reasonable doubt: (a) that the defendant assaulted C (which is an intentional and unlawful application of force); (b) committed in circumstances of indecency (namely which offends the community’s contemporary standards of propriety or decency and which has a sexual connotation or overtone to it), and (c), that C was aged under 14 years at the relevant time (which makes the offence an aggravated one).
[40] See particular (b) in Count 1: Penetrating C’s labia majora with his finger on one or more occasions, an offence contrary to s 49(1) of the Criminal Law Consolidation Act 1935. In order to prove the offence of unlawful sexual intercourse with a child under the age of 14 years, the prosecution must establish, beyond a reasonable doubt: (a) that the defendant engaged in an act of sexual intercourse with C by penetrating C’s labia majora with his finger, and (b), that C was under the age of 14 years at the relevant time.
[41] [2009] QCA 181 at [22].
C’s evidence
C’s evidence was presented in the form of two recorded interviews with a senior child psychologist employed by the Child Protection Service, the first dated 18 April 2017,[42] and the second dated 16 November 2017,[43] which were admitted into evidence pursuant to s 13BA(1) of the Evidence Act 1929.[44] The prosecution did not apply to further examine C pursuant to s 13BA(5) and I refused the defendant’s application for permission to cross-examine C on identified topics.[45]
[42] Exhibit P1.
[43] Exhibit P2.
[44] See reasons for ruling delivered ex tempore on 5 March 2019: T29.
[45] I was not satisfied that it was in the interests of justice to permit C to be cross-examined on the topics identified by the defendant: s 13BA(5)(c) of the Evidence Act 1929. T64-71, applying R v Cronin [2018] SASCFC 61 per Kourakis CJ at [8] and Vanstone J at [30]-[31].
Whilst s 13BA does not require such a warning, when assessing C’s evidence, I have nevertheless taken into consideration that it was not tested by way of cross-examination[46] and have, therefore, scrutinised the evidence with particular care.
[46] Cf repealed s 34CA(4) of the Evidence Act 1929.
Although I was satisfied that when C was interviewed she had the capacity to give unsworn evidence, the statutory warning required pursuant to s 9(4) of the Evidence Act only applies to testimonial evidence, and does not apply to C’s evidence in the form of the recorded interviews admitted pursuant to s 13BA of the Evidence Act.[47]
[47] R v P, G [2019] SASCFC 7 at [31]-[35].
Count 2
As the defendant pleaded guilty to Count 2, thereby admitting that sexual act, it is convenient to detail the evidence relating to this sexual offence first.
During the first recorded interview C displayed a clear understanding of the reason she was being interviewed and volunteered that she was touched inappropriately by her grandfather.[48]
QOkay. So let’s talk about why you’re here today. What have you come to talk to me about today?
A My poppa touched my minnie.
QYour poppa touched your minnie, okay. Mmm hmm. And has poppa touched your minnie one time, or more than one time.
A More than one.
[48] ROI 18 April 2017 at 7.
Later during the interview, C stood up and demonstrated where the defendant had touched her “minnie” by placing her hand over her vagina.[49] C also clarified that by “minnie” she meant her vagina.[50]
[49] ROI 18 April 2017 at 30.
[50] ROI 18 April 2017 at 30-31.
Because C had said she had been touched more than once, she was asked about the last occasion the defendant had touched her minnie:[51]
[51] ROI 18 April 2017 at 7-11.
QSo I want you to tell me about the last time your poppa touched your minnie. Start from the beginning.
AWhen I was watching Peter Pan movie and I was sitting on poppa’s lap.
QMmm hmm.
AMy poppa sort of was going to touch my minnie and lick his finger.
QMmm hmm. Your poppa was going to touch your minnie and lick his finger. Is that right?
AYep.
QMmm hmm. Mmm hmm. Okay, and what happened next?
AMy poppa
QMmm hmm.
AThen I telled my mum.
QTell me more about the part where, about what happened when you were sitting on poppa’s lap.
A I was watching Peter Pan, the movie and all of a sudden.
QMmm.
AThen poppa touched my minnie.
QThen poppa touched your minnie, okay, mmm hmm. Mmm hmm. Mmm hmm, okay. And tell me more about the part where poppa touched your minnie?
AI, was watching and watching it.
QYeah.
AAnd-.
QMmm.
APoppa started to do, touch my minnie.
QMmm hmm.
AAnd, then I went to my mum.
QMmm hmm. Okay.
AIn a little time.
QIn a little time. Okay, Mmm hmm.
AWhen an ad was on.
QWhen the ad was on. Mmm hmm. Okay, Mmm hmm. Okay. So you told me that poppa touched your minnie, what did poppa do to your minnie?
A He was going out into the thing where it nearly goes to wee.
QMmm hmm, he was going out to the thing where it nearly goes to wee, mmm hmm, mmm hmm.
A And.
Q Mmm hmm.
A I did really.
QMmm. Okay so he goes, so he, poppa was going out to the thing where it nearly goes to wee.
A Yep.
QMmm hmm, okay. Mmm hmm. Okay. And tell me more about that, tell me more about when he was going out, going to where it nearly goes to wee?
A He um.
Q Mmm hmm.
A I don’t know all of the stuff.
QMmm hmm, okay, that’s alright, that’s a pretty hard question that one, okay. Mmm hmm, mmm hmm. Okay. Mmm. Tell me more about how you were sitting on poppa’s lap?
A I was sitting on two legs.
Q Mmm hmm. Mmm hmm. Yep.
A And, I was on the ad I wasn’t doing anything to him.
Q Mmm hmm yep.
A I was just staring at the television watching.
Q Mmm hmm, yep.
A And then he touched my minnie.
QMmm hmm. Mmm hmm. Okay. Mmm hmm, okay. And what did poppa touch your minnie with?
A His fingers.
QHis fingers, okay, mmm hmm. Mmm. Okay. Okay. So if you were sitting on poppa’s lap, can you listen very carefully? So if you were sitting on poppa’s lap, how did he touch your fingers, sorry, how did he touch your minnie with his fingers?
A He touched it with one finger.[52]
[52] At this point in the interview C demonstrated how she was touched, indicating the defendant used his index finger.
Q Mmm hmm, he touched it with one finger, mmm hmm, mmm hmm. Mmm hmm, Okay, so he touched it with one finger and what happened next?
A And then he licked it.
QThen he licked, licked it, mmm hmm. Mmm hmm. Mmm hmm. Tell me more about when poppa licked it?
A He, went to get his fingers out.
Q Pardon?
A His fingers out.
Q He went to get his fingers out, yep.
A And, he carefully went out so I didn’t feel it much.
Q So you said he licked it, what did he lick?
A His finger.
C described feeling the defendant’s finger inside her minnie/vagina.[53]
[53] ROI 18 April 2017 at 27-28.
QMmm hmm, you’re having some fun, mmm hmm. Mmm. That’s good. So C when I was out the room I was just thinking about what you’ve been telling me. I wanted to ask you a little bit more about what happened at the night time when you were watching the Peter Pan movie, okay, I’ve got a few more questions … Mmm, hmm. You said to me that poppa took his finger out so you didn’t feel it much.
ANo, I just feeled it a little bit.
QYou feeled it a little bit, okay. And where did you feel it.
AI feeled it, my brain send the message.
QMmm hmm, your brain sent a message, yep?
AIt, got the message from the minnie.
QFrom the minnie. It got the message from the minie, okay. Mmm hmm.
ACos your body sends messages.
QMmm hmm.
ATo your brain.
QTo the brain, yep, okay. Mmm hmm, okay. So that time when poppa touched your minnie and you were watching Peter Pan. Where did poppa have his finger?
AHe had his finger in my minnie.
QIn your minnie, mmm hmm, okay. Mmm hmm, okay. And how do you know it was in your minnie?
ABecause my brain got the message very fast.
QAh, cos your brain got the message very fast, mmm hmm, okay that makes sense, mmm hmm, mmm hmm. Okay. Mmm hmm. Okay. And what did it, what did it feel like when poppa had his finger in your minnie?
AIt feeled like a nail was coming up my bum.
QIt felt like a nail was coming up your bum. Is that what you said?
AYep.
C said that she was wearing a nightie and knickers when the defendant touched her minnie[54] and that he touched her minnie underneath her knickers.[55]
[54] ROI 18 April 2017 at 13.
[55] ROI 18 April 2017 at 13-14.
C also said that she was alone with the defendant in the room when he touched her minnie[56] and that this was the only occasion she had been touched by him at night.[57]
[56] ROI 18 April 2017 at 14.
[57] ROI 18 April 2017 at 14.
C explained that she got off the defendant’s lap during an advertisement break in the movie and walked to her bedroom, which was next to the defendant’s bedroom, and told her mother what had happened.[58] C told her mother that she did not want to watch the movie on her poppa’s lap[59] and that he removed his finger out of her vagina and licked his finger.[60]
[58] ROI 18 April 2017 at 9.
[59] ROI 18 April 2017 at 8.
[60] ROI 18 April 2017 at 12.
C said her mother confronted the defendant about this disclosure whilst he was in his bedroom watching television. C said the defendant initially denied touching her minnie but eventually admitted doing so and apologised when C intervened and told him that he did in fact touch her minnie.[61]
[61] ROI 18 April 2017 at 13.
QMmm hmm, okay. Mmm hmm. Okay, so you told mum and what happened after you told mum?
A Then we said to poppa.
Q Mmm hmm.
A Did you-
Q Mmm hmm.
Atouch C’s minnie? And he said no.
QMmm hmm.
ABut he actually did.
QMmm hmm.
ASo we said, so I said you did.
QMmm hmm.
AAnd, then poppa said, sorry.
Q Mmm hmm, mmm hmm.
A And then we went, we got out of his room.
QMmm hmm. Then you got out of his room, mmm hmm, mmm hmm. Mmm hmm, okay. And what happened when you got out of poppa’s room?
A Poppa was watching the television.
C’s mother, SF, said she separated from her partner in Mount Gambier and together with her three children moved to Adelaide on 10 March 2017, spending the first week at her mother’s home before moving in with her father on 17 March 2017.[62]
[62] T74-75; 88.
SF recalled that on the evening of 24 March 2017 C was sitting on the defendant’s lap in the recliner chair watching the movie Peter Pan on the television. Her other children, S and P, were in another room in the house.[63] SF said it was common for C to sit on the defendant’s lap.[64]
[63] Described as the long room: T76.
[64] T87.
SF described her father as a seasoned drinker.[65] She said he would constantly drink alcohol all through the day,[66] starting in the mornings with cask wine before moving to beer.[67] On 24 March 2017, she recalled seeing him drinking cask wine from 8am.[68]
[65] T101; 110.
[66] T101.
[67] T108
[68] T80.
SF said somewhere between 10pm and 11pm her father told her that he was going to bed. SF said C was sitting in the recliner when she (SF) gave her father a hug and said “good night” to him.[69]
[69] T78.
SF said about 10 minutes after her father went to bed she made her way to the lounge room where C disclosed to her that “Poppa has touched my minnie”.[70] SF explained that “minnie” was the word C used to describe her vagina. SF said she gave C a hug and asked her if she was okay.
[70] T77.
SF said she was in shock at what had been disclosed to her by C and immediately “stormed up to my father's room, angry and in shock, mainly shocked, knocked on his door really hard and I said to him: ‘What's going on. Did you touch C’s minnie?’ to which he responded: ‘Yes, I was drunk.’”[71]
[71] T79; 80; 92-93.
SF said that C remained in the lounge room when she confronted her father in his bedroom.[72]
[72] T81.
Although her father had been drinking all day SF said that he “wasn’t paralytic, like stumbling”. She said he was responsive to her questions and his speech did not sound slurred.[73]
[73] T 80-81.
SF said that the following morning C also told her that “it happened more than once.”[74] However, later in her evidence SF agreed it was a few days after she went to the police station and reported the incident to the police, that C told her the defendant had touched her on other occasions.[75]
[74] T82.
[75] T95-96. C’s mother first reported her daughter’s allegation to the Victor Harbor Police on 29 March 2017.
SF also said C disclosed that the defendant “touched C with his finger, put his finger up inside her and licked his finger.”[76] SF said that C also told her “it (the touching, not the use of or licking of the finger) happened every time C went there (that is, stayed at the defendant’s house).”[77]
[76] T82; 92-93.
[77] T82.
SF said that following this extra disclosure by C, she confronted her father again with this additional allegation, to which he responded by saying that “he had touched C with his finger and licked his finger and he was drunk.”[78]
[78] T82.
On 27 March 2017, C’s maternal grandmother, LF, attended at the defendant’s home and confronted him. LF had only recently been informed of C’s disclosure by her daughter, SF.[79]
[79] It must follow that SF was mistaken when she said in evidence that C disclosed these additional details only after SF reported the matter to the police on 29 March 2017 because it is an agreed fact LF confronted the defendant with these allegations on 27 March 2017. It follows C must have made the additional disclosures when SF first said they were made in order for them to have been conveyed to LF before LF confronted the defendant.
LF asked the defendant: “Is it true that you put your finger down C’s minnie and then licked it?” LF said the defendant replied: “I was drunk wasn’t I.”[80]
[80] See Agreed Fact 19.
SF reported her daughter’s disclosure of having been touched on the vagina by the defendant to the Victor Harbor Police on 29 March 2017. At that time C had not yet been spoken to or interviewed by a police officer or child psychologist.[81]
[81] C was first interviewed about her allegation of sexual abuse on 18 April 2017 by Ms Kerri Molden, senior child phycologist at the Child Protection Service, Flinders Medical Centre.
The defendant’s first police interview
Police officers attended at the defendant’s home at 5.31pm on 29 March 2017 to investigate the report made by SF.
Consistent with what he admitted to SF and LF, the defendant told the police that he had touched C on her vagina at a time when he was “blind drunk.”[82] He added: “And I was tickling her, and I actually tickled her on the pussy, and I regret it most sincerely. I’ve never done it before and it will never happen again, and it’s all got blown out of proportion.”[83]
[82] ROI 29 March 2017 at 3.
[83] ROI 29 March 2017 at 3.
The defendant demonstrated to the police how he was tickling C, by forming a fist with his right hand and sticking his middle finger out pointing down at the ground towards the genital area and curling his middle finger forward and back.
The defendant repeated that he was severely intoxicated:
AAs far as I remember, I mean, like I said, I was, I was under vast amounts of alcohol, and er, like I said, I regret it sincerely, but-
QHow much would you say you had to drink, Keith.
AOh, Christ, um, seven or eight glasses of white wine and about seven or eight beers, I suppose. Quite a bit.
He was then questioned over the allegation that he had touched C on her vagina:
QYeah. And, like, you, you just indicated there, with your finger, was that over underwear or under-
AUnder.
QUnderwear. Under.
AUnder, yeah, ‘cos I was tickling her on the bum when-
QYeah.
AJoking around, as far as I remember.
QYeah. And did you insert your finger in her vagina at all.
ANuh.
QNo. So what, what was your intention there, Keith.
AI can’t remember, to be quite honest. I told you, I was very inebriated.
QOkay. Did you know that was wrong to do that.
AWhen I sobered up, I did, yes.
QYeah, all right.
AI certainly did, and I apologized.
QWho did you apologise to.
AMy daughter.
Q[C]an you, can you explain where you were sitting at the-
AHere.
QTime. You were sitting in there. And where was C.
ASitting on my lap.
QOkay. And, and how long were you tickling her for, to the best of your recollection.
AOh, I can’t remember. Five minutes.
QOkay. And how long was it that your, you were tickling her on the vagina, how long was that.
AI can’t remember.
QTo your recollection.
AI can’t remember.
QA few seconds, a minute.
AIf that.
QIf that.
AYeah.
QOkay. And how long was your hand down her pants.
AA few seconds.
QOkay. And did you tickle her any other place under her underwear.
AI was tickling her on the bum.
QOn the bum.
AYeah.
QOkay. So how did it be that you tickled her on the vagina.
AI don’t know, I was blind drunk.
QYou were blind drunk.
AYeah.
QDid you mean to tickle her on her vagina.
AOh, I wish I’d never touched her.
QOkay.
AIt’s never happened before, and it will never happen again.
QSo, so why did you put your hand down her underwear.
AI was drunk.
Q Can you recall what you were watching on television.
ANuh.
QAnd where was S [the defendant’s daughter] at this time.
AI think she was downstairs in, what we call, the long room, um, watching TV or playing a game with, um, S, her elder son.
QOkay. So who was in this room with you.
AI think PR [C’s younger sister] was on the floor.
QAnd how long had they been staying with you.
AOh, over a week.
QAnd what happened after you touched your grand-daughter.
AI can’t remember a great deal about the night, but I can remember in the morning. I apologised to S and she wasn’t very impressed obviously, so-
QSo what can you remember from that night.
ANot a great deal.
QSo you said the next morning you apologised-
A Yeah
QWhy
ACos C had told mum that I touched her on the pussy.
Q Yeah.
A So-
QAnd what did mum say.
AShe went absolutely apeshit.
QAt you.
AYeah.
QDid you recall the incident at the time that you were accused.
ANot really, nuh.
QWhat did you specifically recall.
AWell I was tickling her, and that’s about it.
QOkay. Do you recall that your hand was in her underwear when you were tickling her.
ANuh.
QOkay. So when you said earlier on that you were tickling her under her underwear, and tickling her bum-
AMmm hmm.
QHow do you know that.
AWell, basically, I remembered, remember doing it, and tickling her leg, and then it sort of gets a bit vague from there.
QSo you remember tickling her bum.
AYeah.
QUnder her underwear.
AYeah.
QOkay. And is there a reason why you would put your hand down her underwear.
ANot really.
As I have already stated, the defendant pleaded guilty to Count 2, thereby admitting C’s allegations concerning this specific sexual act.
Count 1
C was interviewed by a senior child psychologist on 18 April 2017. During that interview C described the sexual act that had occurred while she was sitting on the defendant’s lap on his recliner chair watching the movie Peter Pan, as I have already detailed. She also stated in the interview that she was touched in a similar way by the defendant on other occasions while sitting on his lap watching television.[84] C said she was only touched by the defendant when watching television[85] and that he only used his finger.[86]
[84] While watching the children’s programme, Numtums and while watching the News.
[85] ROI 18 April 2017 at 26.
[86] ROI 18 April 2017 at 30.
The defendant’s second police interview
Following C’s interview on 18 April 2017 the police re-attended the defendant’s home on 8 May 2017 to question him further about C’s additional allegations.
The defendant denied having sexually abused C on any other occasion than the single occasion he had previously admitted.
QSo they’ve stated that there’s more occasions that you’ve actually sexually assaulted her over the period of time.
ANuh.
QNo.
ANuh. Definitely not.
QNo.
A No.
QOkay. So I do, on, when we recently came here, we spoke to you, you did say that was the only occasion.
AYeah.
QYeah. So, like I said, over the period of time that she was staying here, which C believes three weeks, is, would that sound right, when-
AYeah.
Q They’d moved from Mount Gambier.
A Yeah.
Q And they were staying here, and so she was saying during that time it has happened more than one, one time.
A Nuh. Nuh. She got a vivid imagination that little girl.
Q Okay.
A Yeah. No, definitely not.
QAll right. I’ll read out the allegations to you as far as what she said. So she’s like I said states that it’s happened more than one occasion. She’s been watching Numtums, which is a child’s programme, I’m assuming. So she’s quite specific on those particular incidents. That was on one of them. While you were watching the News, saying it was boring TV and you’ve done a similar type of thing that you made admissions to on the 29th, that you’ve again touched her minnie.
ANo. Definitely not.
QNo
ANo
QAll right and there’s even allegations there that it appears you’ve inserted your finger into her vagina.
ANot that I can remember, no.
C was interviewed for a second time on 16 November 2017 and repeated that she had been sexually interfered with by the defendant on more than one occasion.
Although the defendant admitted sexually interfering with C on 24 March 2017, he has consistently disputed any suggestion that he sexually interfered with her on any other occasion.
C’s evidence of the other disputed sexual acts
During C’s first interview she stated that the defendant touched her vagina on other occasions.[87] She was able to distinguish between the Peter Pan incident, which she said was the only time she was touched by the defendant at night,[88] and other instances where she was touched in that way during the day.
[87] ROI 18 April 2017 at 7, 14, 15 and 21.
[88] ROI 18 April 2017 at 14; 18.
When asked to detail the touching during the day, C said that she was touched by the defendant whilst she had been sitting on the defendant’s lap watching the children’s programme Numtums; whilst watching what she described as “boring stuff/the News”, and also whilst watching an “older kids show”.
Numtums [89]
[89] The Numtums is an animated counting or literacy children’s television programme on the ABC.
QSo C you told me that poppa touched your minnie more than one time.
AYep, it’s true.
QThat’s true, mmm hmm. Okay. Tell me about the first time poppa touched your minnie.
A I don’t remember the first time.
QMmm hmm, you don’t remember the first time. Mmm hmm. Okay. So tell me about another time when poppa touched your minnie.
AI remember one time I was sitting on poppa’s lap. I only sit on poppa’s lap. Sometimes he does it in the day time.
QMmm hmm. Sometimes he does it in the day time. Mmm hmm.
AThat’s the only time I’ve been touched by poppa on the minnie at night time.
QOkay. So that’s the only time at night time. Mmm hmm, okay. The one that we’re talking about.
AThat’s the one were talking about. [ie the Peter Pan incident]
QYep, okay, so the one where you watched Peter Pan the movie. That was the one at night time. Is that right?
AYep
QYep. And that’s the only time poppa’s touched you minnie at night time?
A Yes he-
QOkay
Athat’s the only one.
QOkay but sometimes he does it in the daytime, is that right?
AYep.
QYep, okay, so tell me about a time when poppa touched your minnie in the day time?
AHe has touched it when I have been sitting and watching Numtum.
QSitting and watching?
ANumtum.
QNumtum, mmm hmm. Numtum, okay. Okay. Okay and has poppa touched your minnie one time or more than one time when you –
AMore than one time.
QMore than one time, yep. Has he touched it more than, one time or more than one time when you’ve been watching Numtums?
AMore than one time when I have been watching Numtums. I don’t often watch Numtums because I don’t really see it.[90]
[90] ROI 18 April 2017 at 15.
C said the defendant touched her minnie[91] when she was watching Numtums with her brother and sister when all three of them were sitting on the defendant’s lap at the same time.[92]
[91] ROI 18 April 2017 at 17.
[92] ROI 18 April 2017 at 16.
QYou can’t see him, okay. Okay. Mmm hmm. So C, I want you to think really hard and tell me about a time when you were sitting and watching Numtum with poppa, and
AI’ve been watching Numtum with my brother and sister and we’ve all been watching it on the lap.
QMmm hmm.
AOn his, my poppa’s lap.
QOn whose lap?
APoppa’s lap.
QOn poppa’s lap, on poppa’s lap. Okay, so you’ve been … okay, so who’s been on poppa’s lap when you’ve been watching Numtum?
AMy brother and my sister.
QOh okay, mmm hmm, okay and where were you when you were watching Numtum, with poppa?
AOn poppa’s lap.[93]
[93] ROI 18 April 2017 at 16.
C then explained this incident in more detail.[94]
[94] ROI 18 April 2017 at 16-17.
QRight, mmm hmm, okay. Mmm hmm. Okay. So, tell me about a time when you were sitting on poppa’s lap, watching Numtum and he touched your minnie. How did it get started?
AI settled in watching Numtum.
QMmm hmm.
AAnd poppa tries to strike in.
QHe tries to?
AHe tries to strike to get in.
QHe tries to strike to get in? Is that what you said?
AYeah.
QMmm hmm. What do you mean he tries to strike, strike to get in?
AHe’s trying to touch it.
QOh he’s trying to touch it. Mmm hmm. Touch what?
AMy minnie.
QOh mmm hmm, yep. Okay … Okay, Mmm hmm. Okay. So tell me more about when he’s trying to touch your minnie, when you’re watching Numtum, what happened.
AI was watching Numtum with my brother and sister, not fighting –
QMmm hmm.
AAnd I was staring at the TV.
QMmm hmm yep.
AAnd I was, just watching and watching and watching and watching.
QMmm hmm. Yep. Just watching and watching and watching. Mmm hmm. And what happened next?
AI was, then poppa touched my minnie.
C provided even more detail about the touching, explaining that the defendant’s hand goes under her knickers and that he always gets “his fingers in”.[95]
[95] ROI 18 April 2017 at 18.
QMmm hmm, okay. It sounds like poppa’s touched your minnie at other times.
AYes he had.
QIn the day time, is that right?
AHe’s only touched it in the day time.
QOkay.
AOnly one time he’s touched me in the night time.
QRight, okay. So one time in the night time and you’ve told me about that time. And now we’re talking about when he’s touched it in the day time.
AYep.
QYep. Mmm hmm, okay, mmm hmm, mmm hmm. So you’ve been watching Numtum-
AYep.
QOkay, with your brother and sister and you weren’t fighting, you were settled in on poppa’s lap and then he, poppa touched your minnie, is that right?
AYes.
QYep. Okay, Mmm hmm. Okay. Okay. How did poppa touch your minnie that time when you were watching Numtum?
AHe’s always getting his fingers in.
The defendant, through his guilty plea to Count 2, has admitted that sexual act. The prosecution relied upon this admission as proof of one of the two sexual acts necessary to establish the existence of an unlawful sexual relationship for Count 1.[120]
[120] The defendant acknowledged this.
The prosecution also sought to rely upon the admission by the defendant of the conduct the subject of Count 2, as evidence of discreditable conduct, pursuant to s 34P(2) of the Evidence Act. Specifically, the prosecution submitted that this evidence demonstrated the defendant’s sexual interest in C, such that it was admissible pursuant to s 34P(2)(b), as circumstantial evidence of a fact in issue, being the commission of other sexual acts to prove the existence of an unlawful sexual relationship with C.
The evidence can be used for this purpose, if and only if, the court is satisfied that the probative value of the evidence, for that use, substantially outweighs any prejudicial effect on the defendant. Moreover, as the use of the evidence relies upon a propensity or disposition on the part of the defendant, namely a sexual interest in C and a willingness to act upon that interest, as circumstantial evidence of the commission of sexual acts constituting an unlawful sexual relationship for Count 1, the evidence must have strong probative value in relation to that issue.[121]
[121] Section 34P(4)(b) of the Evidence Act 1929.
In determining whether the evidence satisfies this threshold, I have considered a number of decisions of the Court of Criminal Appeal,[122] as well as the recent High Court authorities of Hughes v R,[123] R v Bauer (a pseudonym),[124] and McPhillamy v R.[125]
[122] R v M, BJ (2011) 110 SASR 1; R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN (2013) 117 SASR 81; R v Bonython-Wright (2013) 117 SASR 410 and R v Heinze [2017] SASCFC 155.
[123] [2017] HCA 20; 264 A Crim R 225; 92 ALJR 52; 344 ALR 187.
[124] [2018] HCA 40; 92 ALJR 846; 359 ALR 359.
[125] [2018] HCA 52; 92 ALJR 1045; 361 ALR 13.
In R v Bauer the High Court stated:[126]
[126] At [48]-[50].
Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts. In HML, Kiefel J (as her Honour then was) explained its significance thus:
"'[R]elationship evidence" refers to all the conduct of a sexual kind that has taken place between the accused and the complainant. It encompasses sexual conduct which is an offence, often referred to as 'uncharged acts', and misconduct which may not be an offence. ...
Clearly, relationship evidence is relevant as showing the sexual interest of the accused in, or the 'guilty passion' for, the complainant. Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts. There can be little doubt about its probative force. It may reveal a tendency in the accused, sometimes described as a motive. Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged.'
Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML:
'Generally speaking ... there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.'
And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant's account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused's guilt of the charged offences. (Footnotes omitted)
Later the Court stated, with specific reference to cases involving the evidence of a single complainant:[127]
… [I]n a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. As was established in HML and has since been applied in Victoria under s 97 of the Evidence Act in JLS, MR, PCR and Gentry, and was recognised, too, in Velkoski, evidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents. And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents. (Footnotes omitted)
[127] At [60].
In R v Bonython-Wright, Kourakis CJ stated:[128]
The evidence of the appellant’s subsequent sexual conduct with NW shows that, at times sufficiently proximate to the commission of the offence charged, the appellant was sexually attracted to NW. The evidence of that sexual attraction circumstantially supports NW’s direct testimony of the commission of the offence because it provides a motive for the appellant’s offending. The commission of an offence of sexual misconduct may appear improbable if it is not viewed in the context of the sexual relationship in which it occurs. In that respect, it has strong probative value, which can be readily distinguished from reasoning from a mere general propensity to commit crimes of the kind charged.
[128] (2013) 117 SASR 410 at [41].
In R v Hughes, the High Court similarly stated:[129]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (Footnotes omitted)
[129] At [16] per Kiefel CJ, Bell, Keane and Edelman JJ.
Applying these guiding principles to the question of admissibility of the evidence for the purpose contended for by the prosecution, I am satisfied that the probative value of the evidence of the defendant’s admitted sexual act upon C substantially outweighs any prejudice to the defendant. Further, I consider that the evidence possesses strong probative value having regard to the disputed factual issues in the trial, and it is, therefore, admitted for that purpose pursuant to s 34P(2)(b) of the Evidence Act.
Complaint evidence
C’s initial complaint made to her mother on the very night the defendant touched her minnie, and her elaboration to her mother that the defendant also “put his finger up inside [C’s minnie] and licked his finger”, is directly related to what occurred while watching Peter Pan on the evening of 24 March 2017. However, SF also said that C disclosed to her that the defendant touched her “on other occasions/every time” she stayed at the defendant’s home.
The evidence of C’s initial disclosure to her mother, and later elaboration, is admissible as complaint evidence, pursuant to s34M of the Evidence Act 1929 to:
i.inform the court as to how C’s allegation first came to light; and
ii.as evidence of the degree of consistency of C’s conduct.
It is not evidence of the truth of what C alleged.
Assessment of C’s evidence
In determining whether the prosecution has established the existence of an unlawful sexual relationship and whether it was maintained, I have had regard to all of the evidence, including what the defendant said in his police interviews and the submissions of his counsel.
Before turning to an assessment of C’s evidence I should comment on an observation I made regarding the recorded interviews. In each interview the camera was positioned some distance from C, which made assessing her demeanour difficult. This was further exacerbated by the fact that C was permitted to play with playdough and kinetic sand throughout the first interview and was colouring in throughout the second interview, meaning she was constantly looking down at the table in front of her.
Whilst I acknowledge the variety of techniques employed by child psychologists when interviewing young children, it was very apparent that allowing C continuous access to playdough, kinetic sand and colouring-in books during her interviews interfered with her ability to fully focus and concentrate and also affected my ability to properly assess C’s demeanour when she was being interviewed.
That said, I was nevertheless impressed with C’s evidence. She provided a great deal of detail in relation to the incident where she was sexually interfered with whilst watching Peter Pan with the defendant.
Importantly, C was consistent in each interview that she had been sexually interfered with on more than one occasion.
The defendant’s counsel was critical of the interviewer, who, he submitted, made no attempt to ascertain from C whether she was able to distinguish between indecent touching and innocent/ordinary touching or interactions between a grandfather and his granddaughter.[130] I cannot accept this criticism. C’s allegation of the defendant placing his fingers underneath her knickers and playing with her vagina could not be construed as anything other than indecent. C’s detailed description of the touching excludes any possibility that it was innocent or part of the ordinary physical interactions expected between a grandfather and his granddaughter. It was patently clear that what C was alleging was indecent.[131]
[130] T199.
[131] Namely, contrary to ordinary community standards of propriety or decency and which involves a sexual connotation or overtone: R v Harkin (1989) 38 A Crim R 296; R v C, M [2014] SASCFC 116.
The defendant submitted that there was only one incident, namely the Peter Pan incident of the 24 March 2017 charged in Count 2, and that C’s evidence of further sexual abuse was only elicited through persistent questioning by the interviewer. He has further submitted that there existed a reasonable possibility that C had conflated the single Peter Pan incident into more than one event.[132]
[132] T198; 205.
The defendant also submitted that C was quite prepared and willing to exaggerate what was happening, as demonstrated during a proofing with the prosecutor,[133] when C said that the defendant touched her minnie all of the time when she sat on his lap.[134] He submitted this was contradicted by C’s own evidence that she was not always touched inappropriately by the defendant whist sitting on his lap watching television.[135]
[133] On 5 March 2019.
[134] Agreed facts 8-17; T211.
[135] See for example ROI 16 November 2017 at 8-12; 14-18.
I do not accept these criticisms of C’ evidence.
C was clearly able to differentiate between different occasions of sexual abuse by reference to particular television programmes she was watching with the defendant.
C also differentiated between being touched only once at night whilst watching Peter Pan and other instances of sexual abuse, which she said all occurred during the day.
Further, C also differentiated the alleged incidents on the basis of whether the defendant licked his finger or placed spit onto his finger before or after penetrating her, with an identified occasion when he did not lick his finger or place spit on it, being the occasion the defendant “just did it plain”, as she expressed it, when watching the older kid’s show.[136]
[136] ROI 16 November 217 at 24-27.
I am also satisfied that C’s evidence was not influenced by improper prompting or encouragement from the interviewer. When pressed for details which C could not remember she was prepared to say so rather than guess. I did not detect any evidence of exaggeration on her behalf during either interview.
Furthermore, there were many occasions when C claimed she could not remember something or that her memory was limited in respect of an incident she was alleging. Her evidence remained consistent throughout the two interviews regarding this, which has satisfied me that C was not exaggerating in her evidence.
Insofar as C stated during her proofing that when she sat on the defendant’s lap she was touched inappropriately all of the time, as evidencing a tendency to exaggerate, I have taken this into account in assessing what she said during each interview and it has not affected my assessment of her credibility or reliability. It is also to be noted that SF said C disclosed to her that she had been touched by the defendant every time C stayed at the defendant’s home. It is apparent from the interviews that C was not asserting that she was touched inappropriately on every single occasion she sat on the defendant’s lap. Moreover, it is to be remembered that C was only six years old when she disclosed the sexual abuse to her mother and eight years old when she was proofed shortly before the trial, which I have taken into consideration when evaluating the defendant’s submission that C was disposed and willing to exaggerate what happened to her and that she has conflated one incident into many.
The defendant submitted that there were inconsistencies in C’s evidence and pointed to the evidence of SF, who said that when she confronted the defendant, following C’s disclosure, C was not present; whereas C said that she was present when her mother confronted the defendant and indeed, C said she challenged the defendant when he initially denied any wrongdoing. The defendant also pointed to inconsistencies in C’s evidence concerning the number of occasions C said she was touched when watching Numtums and the News.
I have taken into account these matters and they do not cause me to doubt C’s reliability or credibility. SF said she was in a state of shock and anger when she confronted her father and I consider that it is possible that C was present and SF did not remember her being there. It is also noteworthy that C recalls the defendant apologising for his behaviour which she could only have known if she was present when her mother confronted the defendant.
Insofar as the inconsistencies as to the number of occasions C alleged she was touched when sitting on the defendant’s lap, I am satisfied that she was clearly conveying that she was touched on more than one occasion. That was the clear effect of her evidence across both interviews.
The defendant submitted that it was inherently unlikely he would risk sexually interfering with his granddaughter, not only when his own daughter was present in the house but also on occasions when C’s siblings were sitting on his lap. It was an agreed fact that C’s brother, S, was interviewed by a police officer on 10 May 2017 and did not disclose seeing the defendant touch C on the minnie.[137] I have considered this evidence and the submissions made by the defendant and they have not altered my assessment of the truthfulness of C’s evidence. C’s sister, P, was born on 17 February 2015, while S was 17 months older than C, having been born on 20 June 2009. The evidence allows for S not witnessing his grandfather touching C for a variety of reasons, including that he was focused on watching the television. There was also no suggestion on the evidence that C’s mother was physically present in the lounge room when C was sitting on the defendant’s lap and allegedly being sexually abused by him.
[137] Agreed Facts 5 and 7.
In evaluating C’s evidence, I have used the complaint evidence as demonstrating consistency of conduct on her part. The fact that she did not complain earlier has not caused me to doubt her credibility.[138] As Parliament has recognised, there can be varied reasons why a victim of a sexual offence has made a complaint at a particular time.[139] I do not overlook the fact that C was a young child when she was being sexually abused by her grandfather and that C had not visited the defendant’s home since the October 2016 school holidays as a potential explanation for why she complained to her mother when she did.
[138] R v Jones [2018] SASCFC 96; R v Van Wyk [2018] SASCFC 138.
[139] Section 34M(4)(c) of the Evidence Act 1929.
Furthermore, in determining whether to accept C’s evidence that she was sexually touched by the defendant on occasions, other than the admitted Peter Pan incident, I am satisfied that the defendant’s admission of that incident reveals his sexual attraction towards C and his willingness to act upon it. This provides circumstantial support for C’s evidence of the other alleged acts of sexual abuse detailed by her.
I reject the defendant’s submissions that the conduct admitted by him was isolated and situational or that he was “emboldened” to behave that way because of the lateness of the night and his level of intoxication. Whilst he was intoxicated, I do not accept his categorisation of his behaviour as revealing no more than a “curiosity or a sexual interest in C on that particular occasion and in those particular circumstances only”.[140]
[140] T196.
I also do not accept the defendant’s categorisation of his own behaviour in licking his finger after touching C’s vagina, as “bizarre”.[141] Describing the behaviour as bizzare, does not inform the Court that it only occurred once. Indeed, in my view, the defendant’s admitted sexual behaviour clearly demonstrates a sexual attraction towards his granddaughter and strongly suggests it was not isolated as the defendant has submitted.
[141] T196.
The evidence of the defendant’s sexual interest in or attraction towards C and his willingness or tendency to act upon it, makes it more likely that he committed the disputed sexual acts of which C gave evidence. Given C’s evidence of the existence of a course of sexual conduct, which allegedly occurred when she would stay with the defendant during school holidays, there is a clear temporal connection between the admitted Peter Pan incident on 24 March 2017, and the earlier alleged sexual abuse, to suggest the defendant’s sexual attraction and his willingness to act upon it existed at the time C said she had been sexually abused on those earlier occasions.[142]
[142] Cf McPhillamy v R op cit.
I make it clear, however, that the defendant’s sexual attraction towards C would not be not enough to convict him of Count 1, nor have I reasoned that as he has admitted sexually abusing C on 24 March 2017, that he must have necessarily committed the sexual acts in dispute. I cannot find the defendant guilty of Count 1, unless, upon a consideration of all of the evidence relevant to that charge, I am satisfied of the defendant’s guilt of the offence beyond a reasonable doubt.[143]
[143] R v Bauer (a pseudonym) op cit at [86].
Section 12A Warning
The defendant requested that I warn myself that it would be unsafe to convict him on C’s evidence, unless it was corroborated.[144] The defendant submitted that “cogent reasons” existed to doubt the reliability of C’s evidence, being:[145]
·Material inconsistencies in C’s evidence.
·That during C’s second recorded interview she only disclosed acts of sexual abuse following persistent questioning by the interviewer.
·The risk that C conflated the admitted sexual act, the subject of Count 2, with other alleged sexual acts described by her in similar terms, demonstrating a preparedness and willingness to exaggerate.
[144] Pursuant to s 12A of the Evidence Act 1929.
[145] T211.
I have already addressed those criticisms of C’s evidence. I am not satisfied that those matters, either individually or in combination, amount to cogent reasons to warrant the warning requested. In any event, C’s evidence was corroborated through the defendant’s own admission of the conduct that formed the subject of Count 2.
Factual findings
Based on the evidence of C, the admissions made by the defendant to SF, LF, and later to the police, and his guilty plea to Count 2, I am satisfied beyond a reasonable doubt that the defendant penetrated C’s labia majora with his finger on 24 March 2017 whilst C was sitting on his lap watching the movie Peter Pan.[146]
[146] Thereby constituting the sexual offence of unlawful sexual intercourse with a child under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935.
For the reasons already outlined by me, I accept beyond a reasonable doubt C’s evidence that she was sexually abused on occasions other than the occasion of the admitted sexual act of 24 March 2017 (the Peter Pan incident).
I found C’s evidence regarding being touched by the defendant on her minnie whilst watching Numtums to be clear, consistent and compelling. I am satisfied beyond a reasonable doubt that the defendant indecently assaulted C by touching her on the vagina with his finger[147] when they were watching Numtums together and that this occurred on more than one occasion.
[147] An offence contrary to s 56 (1) and (2) of the Criminal Law Consolidation Act 1935.
Although C was only able to specifically recall one incident, I am satisfied beyond a reasonable doubt that the defendant indecently assaulted C, by touching her vagina with his finger, on more than one occasion when they were watching the News. C had reason to recall being touched when watching the News, because, as she put it, she did not enjoy watching the “boring stuff”. I found her evidence that she was thinking of a Numtums show when she was being sexually interfered with when watching the News particularly compelling.
I accept beyond a reasonable doubt C’s evidence that she was indecently interfered with once when watching the older kid’s show. This was the occasion C said the defendant “touched her minnie plain”. In other words, on this occasion the defendant did not lick his finger or place spit on his finger before touching her vagina with his finger, as he had done on other occasions. After initially stating the defendant touched her minnie with his finger, C later said that his finger was inside her minnie. I consider C was describing one incident of sexual interference, which involved the defendant touching her minnie with his finger (aggravated indecent assault) and the digital penetration of her labia majora (unlawful sexual intercourse with a child under 12 years). I am satisfied beyond a reasonable doubt that both sexual acts occurred on that occasion as described by C.
I am satisfied beyond a reasonable doubt that the sexual acts described by C occurred during the period alleged in the particulars of Count 1.
It follows from my factual findings that I am satisfied beyond a reasonable doubt that the evidence establishes that an unlawful sexual relationship existed between the defendant and C during the period alleged in the charge.
It also follows from my findings that I have rejected the defendant’s claims, in his police interviews, that he only sexually touched C on one occasion, as a reasonable possibility. The very specific nature of the sexual touching, involving the licking of his finger after having penetrated C’s labia majora, is strongly suggestive of an underlying sexual attraction towards C, rather than the actions of someone who was motivated, through “drunken curiosity”, as the defendant submitted, to perform a sexual act upon his granddaughter for the first and only time.
I found what the defendant told the police unconvincing. At first he claimed that he was “tickling C on her bum” and “joking around” before he tickled C on the vagina. Later he said that he was tickling her leg but when asked to explain how he was tickling her leg he said that he did not know because he was “blind drunk”. He then said when he sobered up he remembered tickling C’s leg and then it became “vague from there”. He claimed he did not recall his hand being underneath C’s underwear when he was tickling her and that he did not know what he did was wrong until he sobered up. He said he could not remember how long he was tickling C for, saying it could have been for five minutes, or a few minutes or a minute “if that”. He later said his hand was “down C’s pants for a few seconds”. It was clear that he was suggesting his memory of what he did, just as his behaviour, was affected by the alcohol he consumed. However, I find that despite his intoxication, he knew, at the time, that what he did was wrong because when his daughter, SF, confronted him about the allegation, immediately following C’s disclosure, he admitted his conduct and explained that he was drunk.
I am satisfied beyond a reasonable doubt the sexual acts described by C occurred when she stayed at the defendant’s home sometime during the school holidays in 2015/2016 and 2016/2017 (excluding the October 2016 and December/January 2016/2017 school holidays), and on 24 March 2017.
I am satisfied beyond a reasonable doubt that there was sufficient continuity of the sexual abuse during C’s visits to the defendant’s home, such that the defendant maintained the unlawful sexual relationship he was having with C.[148]
[148] R v DAT [2009] QCA 181 per McMurdo J.
Verdict
I find the defendant guilty of Count 1.
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