R v F, MD - [2017] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, MD
Criminal Trial by Judge Alone
[2017] SADC 103
Reasons for the Verdicts of His Honour Judge Cuthbertson
27 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
- AGGRAVATED INDECENT ASSAULT
Accused charged with seven counts of Indecent Assault, against two complainants. Accused would frequently tickle and / or rub the complainants, both over and under their clothing. Prosecution allege defendant had prurient purpose. Defence case was that the actions either did not occur or were mere horseplay and therefore could not be regarded as indecent.
Whether accused was engaging in mere horseplay – whether conduct occurred in circumstances of indecency – whether actions had “sexual connotation” – whether evidence cross-admissible.
Verdicts: guilty of count five; not guilty of counts one to four and six and seven.
Evidence Act 1929 (SA) s 34P, referred to.
R v Harkin (1989) 38 A Crim R 296; R v C, M [2014] SASCFC 116, applied.
R v Court [1989] AC 28, considered.

R v F, MD
[2017] SADC 103
Summary of Case

The accused is presented on an Information of 8 March 2017 charged with seven counts of Indecent Assault, some of which are aggravated. Six counts are against a complainant, M, and one count, count seven, is in respect of a second complainant, JA.
M is now 18 years old and JA is now 13 years old. They are half-sisters with the same mother.
The accused was a close family friend of their family. During the relevant period he lived first at Direk and then at Paralowie with his partner, Melissa and children JL and T.
The two complainants would frequent the home of the accused. JA became friends with the accused’s younger daughter T. M had previously formed a close friendship with the accused’s step-daughter, JL.
The alleged offending spans a period of about seven years from late 2007 to mid-2014.
M was born on 3 October 1998. She began staying over at the accused’s house at Direk on weekends and school holidays. She normally slept on a futon with JL in the lounge room. The accused often slept on a couch in the second living area and his partner, Melissa, slept in the main bedroom.
The alleged offending against JA did not occur until after the accused had moved into premises at Paralowie.
The elements of Indecent Assault
The elements of Indecent Assault are as follows:
1There must be an assault.
Proof of an assault involves proof beyond reasonable doubt of the following:
·That there be a voluntary and intentional act.
·That the act constitutes an application of physical force to the victim.
·That the act be without lawful excuse or justification. Consent does not make the act lawful in the case of a person under the age of 17 years. An application of physical force which was mere horseplay would, however, not be unlawful.
It is established beyond reasonable doubt that, in relation to all counts, the relevant complainant was, at the relevant time, under the age of 17 years.
·
The act must be indecent or committed in circumstances of indecency
It is in relation to this requirement that the difficulties arise in the context of this case.
Count five is the only count in respect of which the evidence of the prosecution is that the charged act is unequivocally indecent or committed in circumstances of indecency.
All the other allegations in relation to all the other counts involve the tickling and rubbing of a complainant by the accused. All these acts could be capable of being considered as mere horseplay between an adult and a child and therefore not unlawful depending on the intention of the accused at the relevant time. This is because in each case there is no allegation of tickling or touching of an area of the body giving rise to a sexual connotation.[1]
[1] R v Harkin (1989) 38 A Crim R 296.
In other words, if it were a reasonable possibility that the accused tickled and / or rubbed a complainant in the context of reasonable horseplay and without any sexual intention, then the element of unlawfulness would not be made out, nor would the requirement that the physical act be done in circumstances of indecency be made out.
Meaning of indecency
Because the alleged activity of tickling and / or rubbing might, in certain situations, be regarded as legitimate horseplay between an adult and child, it is necessary to consider with some specificity the issue of what conduct is indecent at law. In order for there to be an indecent assault it is necessary that an assault occur which has a sexual connotation to it.
The principle is relevantly stated by Lee CJ, Wood and Mathews JJ agreeing, in Harkin at 301.
It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl IAL, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.
This passage was quoted with approval by Peek J in the Full Court in R v C, M [2014] SASCFC 116 at 24.[2]
Discreditable conduct
[2] See also R v Court [1989] AC 28.
Uncharged acts
In relation to each complainant, evidence was led of uncharged acts. That is, acts of tickling and touching which are not the subject of specific charges. The tickling would often occur in the context of the accused getting water and Ventolin for M who had asthma and would frequently commence coughing at night. They are discreditable acts according to the prosecution because they were done for sexual gratification. If the acts occurred, which is in dispute, the defence case is that they were innocent acts of horseplay.
The frequency of occurrence in the case of M was virtually every time she stayed overnight.
This evidence is admissible together with evidence of other charged acts against the same complainant when considering a particular charge against that complainant. It is admissible in order to show the nature of the relationship between that complainant and the accused, as evidence which may touch on the question of whether the accused had a sexual interest in a particular complainant, to explain why the accused might have acted confidently that the particular complainant would not complain or create a scene and to show that the accused had a particular interest in tickling and /or rubbing his hands on the complainant.
It may show a propensity to indecently assault the complainant under the guise of conducting horseplay or it may show a propensity to conduct innocent horseplay with the complainant by rubbing and tickling her. It might demonstrate that the acts of touching and tickling by the accused were done for sexual gratification or were not done for sexual gratification.
When used as evidence supporting the defence case the evidence does not have to satisfy the requirements of s 34P of the Evidence Act 1929 (SA).
Such evidence is evidence of discreditable conduct within the meaning of Division 3 of Part 3 of the Evidence Act, because, on one view, it might show that the accused is guilty of misconduct other than that charged. On the other hand, if the conduct (other than the conduct the subject of the charge under consideration) shows mere horseplay, it could be used to demonstrate that the accused was wont to engage in innocent horseplay with the victim on these occasions. It may have the tendency to show that on the occasion under consideration he was merely engaging his tendency to engage in horseplay with the complainant without any sexual intent or connotation.
Thus, on one view of the matter, the other acts may tend to exculpate the accused.
If viewed as being performed for sexual motives but not if performed as mere horseplay it could constitute discreditable conduct pursuant to s 34P of the Evidence Act as “evidence tending to show that a defendant has engaged in discreditable conduct”.
In my view the probative value of the evidence admitted for the uses I have discussed substantially outweighs any prejudicial effect it may have on the accused. Further the evidence has strong probative value having regard to the issues arising at the trial.
If viewed as evidence of mere horseplay, the evidence has a tendency to exculpate the accused of a particular incident by demonstrating that he has a propensity to innocently engage in horseplay and that it is therefore more likely that the particular act under consideration is a mere act of innocent horseplay.
The evidence is available to me to use in either manner.
I am confident that I can keep sufficiently separate and distinct the permissible use of this evidence from any impermissible use so as to remove any appreciable risk of the evidence being used for an impermissible use.[3]
[3] See s 34P(3) of the Evidence Act 1929 (SA).
Inter-admissibility of evidence of each complainant in case against other complainant
Counsel for the accused did not object to the joinder of count seven relating to the complainant JA on the one Information with counts one to six involving the complainant M, nor did he object to the hearing of all counts together.
Further, counsel both agreed that the evidence in relation to counts one to six was available on the trial in relation to count seven but not vice versa.
I think the concession was properly made because the number of allegations by M that the accused tickled and rubbed her shows the accused had a propensity to do that and it might cast light on what he was doing to JA and his intent in doing it.
The evidence in relation to the allegations of M and JA is available for me to consider whether it demonstrates the possibility of collusion or concoction between them. In my view, the similarity of the conduct alleged against each complainant does not signify collusion. I accept the evidence of the complainants that there was in fact no collusion.
In my view the evidence in relation to M, and in particular her evidence in respect of count five, is available in the case involving JA, as evidence touching on the issue of the true nature of the accused’s efforts to tickle JA. It may tend to show that the tickling of JA was a pretence to gain sexual pleasure from being in close proximity to her and touching her if so much is established in relation to the allegations of M.
On the other hand, it may demonstrate that the accused has a propensity to innocently tickle young girls in an act of horseplay, perhaps in unusual circumstances. In that sense it may tend to exculpate the accused.
This discreditable conduct evidence sought to be led is evidence that relies on a particular propensity or disposition. It is therefore subject to s 34P(2) of the Evidence Act which reads as follows.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
In my view the particular issue arising at trial is whether there is a propensity of the accused to tickle young girls inappropriately and whether the tickling of JA was sexual in its nature.
In my view the evidence of the activity of the accused in tickling M generally and on one occasion pushing his pelvis into her buttocks does have strong probative value having regard to that issue and is thus admissible for that purpose in relation to the case involving JA.
Insofar as the evidence can be used to support the defence case i.e. to demonstrate a propensity for mere innocent horseplay, there is no requirement that the evidence be of strong probative value before it can be used for that purpose.
The allegations
Count one
This is said to be the first occasion that M recalls the accused touching her. It occurred at Direk when M was 9 or 10 years of age. This occurred when M had been sleeping and had commenced to cough. She had a history of asthma and the accused came into the room. He took her to the kitchen to get a drink of water and to use her Ventolin inhaler. Then he took her to sit on his lap in the other lounge room where he normally slept.
There he tickled her on the top of her clothes and then moved his hand underneath her clothes and tickled her on the sides of the ribs. He moved his hands to a position under her breasts, on her skin. She was sitting on his legs.
This was at a time when the complainant had been sleeping and had begun coughing. It was reasonable that the accused might have thought it was necessary to settle her down and calm her before sending her back to sleep. It was not an appropriate time to engage in horseplay. It was not an appropriate time to take her from the place where she was sleeping to another room and there to further arouse her from sleep by tickling her and touching her under her clothes. She was touched near her breasts and on her skin but there is no evidence she was touched on her breasts nor is there evidence to infer there was undue concentration on her breasts.
Count two
Counts two and three are the occasions M speaks of where the accused tickled her other than at night time. Count two occurred on an occasion when M had been playing with the Nintendo Wii and JL was out with her mother to get supplies for a barbecue. The accused came into the lounge room where M had been playing, picked her up and put her on his partner’s bed in her bedroom.
He put her on her back and he straddled her with his legs on either side of her body and tried to pin her arms down. He put his hands under her top and on her skin. He had a hand underneath her breast but not on her breast. He was not laughing as one might expect if this was mere horseplay. There was no innocent reason why he could not have tickled her, if it was horseplay, in the lounge. Why did he have to take her to his wife’s bedroom when no adult was home?
This was not an occasion when one would expect mere horseplay. JL and her mother were out of the premises. It took place in the bedroom of his partner suggesting a more deliberative action than a spur of the moment act of horseplay. He placed his hand under the breast albeit not touching the breast. The hand was, however, on the skin. There is no evidence he was somehow placing undue interest or concentration on her breasts.
It was inappropriate to say the least.
Count three
This is the next occasion an incident involving tickling occurred in the daytime. It is also the second incident occurring in the accused’s partner’s bedroom.
This count occurred on an occasion when M was waiting for her father to collect her and again the accused’s partner and JL were away from the premises.
Again the accused picked up M and took her into his partner’s bedroom where he sat astride her. It is rather strange that he should see it necessary to take her into his partner’s bedroom if this was mere horseplay.
Again he put his hand over her top on this occasion and was tickling and rubbing her and again he was not laughing as one might expect if the incident was mere horseplay. He told her she had gotten stronger. He restrained her while she struggled to get away. This incident ceased as M’s phone rang. She was waiting for her father to pick her up.
On that occasion M claims that as she was leaving the accused gave her $10 - $20 for cleaning which she had performed.
Count four
This count occurred on an occasion when a cousin, T, was sleeping over at the accused’s premises as well as M.
JL, T and M were watching movies in the front lounge room on the futon. The accused came in and tickled all of them on the lower sides towards the waist and hip and over the clothes.
This incident had all the hallmarks of being possible horseplay. It occurred in the presence of the other children and not with M alone. It did not involve touching under the clothing and it occurred at a time when the children were in the front lounge room watching a movie and not when one might have expected them to have been in the course of sleeping or trying to get to sleep. It did involve the taking of one or more of the children to a separate location in the house in order to conduct what, if horseplay, usually occurs spontaneously and haphazardly and not privately.
During the night M had asthma and the accused woke her and took her to get a drink and to have her Ventolin. That much might have been understandable care by an older person in loco parentis even though M expressed the wish not to get up.
It occurred at a time when M might be expected to be sleepy and endeavoring to get to sleep. Instead the accused made her sit on his lap on the couch. He had her back close to his stomach and he started touching her under and over her clothing. He moved his hand under her top and around the breast area although not touching it. M describes his hand as moving in closer to her breast. This was at a time when her breasts were developing. There is a suggestion that on this occasion it is possible the accused was displaying an interest in the breasts.
On this occasion Melissa, the defendant’s partner, came in and told them to be quiet.
Count five
On an occasion where M had been visiting JL in hospital, the accused and the complainant returned to the accused’s home. He was now living at Paralowie. They were watching a movie with Z, Melissa’s son. Z left the room and the accused started running his fingers up and down M’s back. This was under her clothing.
Then he pushed her on the couch and lay on top of her and started trying to grind his pelvis on her.
The complainant was lying face down on the couch and the accused was on top of her grinding his pelvis into her buttocks. If proved, there is no doubt this would be an act of indecent assault.
Count six
This count occurred at a time when M and JL were going to go for a drive as JL had just got her learner’s permit. JL went to have a shower in the morning. M stayed in bed and the accused came in to wake her up. He started tickling the bottom of her feet. He pulled her onto his lap and started tickling her over her clothes. He was sitting on the edge of the bed.

It is open to infer that this was another incident where the accused had physical contact with the complainant in circumstances which had sexual overtones. She had not given an indication of enjoying or encouraging this conduct. It occurred when no-one else was present.
Count seven
This count involves the complainant JA. It occurred at the Paralowie address. The accused had never tickled her at the Direk address. It was the first time the accused tickled her.
The accused woke her up during the night in the lounge room and started tickling her on the chest, her belly and her legs. He made her sit next to him on the couch and started tickling her. It is to be observed that this occurred in the night when she should have been sleeping and he should have been facilitating her sleeping rather than encouraging her to become more awake by tickling her. He was in loco parentis.
It did not just occur where she lay. He made her sit next to him on the couch before he started tickling her.
The accused has done this more than once although the order of how many times is not apparent from JA’s questioning. At no stage, however, did the accused touch her breasts or pelvic areas.
Onus of proof
There is a presumption of innocence and the accused is regarded as innocent unless or until his guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies wholly upon the prosecution; the accused does not have to prove anything.
Separate consideration of counts
The accused is charged with separate counts and each much be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other counts.
I am not to reason that because the accused is guilty of a particular count, or it is proved against him, that he has committed a particular uncharged act that therefore he has a propensity to commit sexual offences against that complainant and is guilty on that account of any particular offence.
I am however, entitled to use evidence of other acts in considering a particular account in the manner discussed under the heading, “Uncharged Acts”, and as evidence touching or the question of whether the act of tickling gives the defendant sexual pleasure.
Complaint evidence
I direct myself that there may be varied reasons why the complainant has not made a complaint and that it is a matter for me to determine the significance, if any, of the evidence in the circumstances of this particular case.
In this particular case I draw no inference in any way from the failure of either complainant to make a timely complaint.
Accused gave evidence
In this matter the accused gave evidence. He was not required to do so. I must deal with the evidence of the accused in the same way as the evidence of any other witness.
Evidence of JA given by way of playing video record of previous questioning by police
In considering the evidence of JA, given on the video, I must have regard to the following.
The evidence was not sworn evidence and the evidence was not the subject of cross-examination.
The complainant was less mentally mature at the time she answered the questions that are recorded on the video.
Some of the questions were leading questions.
Use of screen and court companion
JA gave evidence using a one-way screen in court and with a court companion present. I am to draw no adverse inference against the accused from the use of a screen and court companion and I am to consider her evidence given in the witness box in exactly the same way as the evidence of any other witness.
Forensic disadvantage
In this matter the police were not informed of the allegations until a period long after they had occurred. Accordingly, they were unable to investigate the offences at the time they were occurring.
The accused may well have been disadvantaged in that evidence that might have been available to demonstrate the impossibility or the improbability of allegations of a particular complainant may not now be available due to the effluxion of time.
In particular, the accused has been denied the opportunity to recall and produce witnesses who might have been in a position to have cast doubt on the allegations that were made by virtue of not having those allegations brought to their attention at a time when their memories were such that they may have been able to usefully contribute on the question of the circumstances alleged to have occurred.
I must take these factors into account when considering whether charges have been proved beyond reasonable doubt and I must scrutinise the evidence of the complainants with special care for that reason.
The length of time between when the alleged offences occurred and when the accused received notice of the fact that a complaint had been made would have meant that he would not have turned his mind to the allegations at a time when the presence of witnesses might have been able to be remembered and who might have been able to recall salient facts which might have cast doubt on the truthfulness or accuracy of the allegations made by the particular complainants.
In particular, young persons present in the house at the relevant time may have been able to provide some information about the alleged tickling and other children may have been able to assist as to whether Melissa and others of her children were away from the premises at relevant times if asked to remember in a timely fashion.
On the other hand, I note that most of the allegations are at a time when no-one was present to observe the alleged conduct.
Credibility of Witnesses
Generally speaking, I found the complainants to be accurate witnesses who were doing their best to tell the court the truth of what happened between them and the accused. They were scrupulous not to exaggerate or invent things. I accept their evidence beyond reasonable doubt. Most of the incidents they described are partly confirmed by the accused as having taken place although he denies that the rubbing or tickling had any sexual connotations.
I will deal with count five first as my findings in relation to it may have consequences in relation to my findings on the other counts.
Count five involves the telling of a straight forward story that the accused lay on top of M pressing his pelvis into her buttocks. M claims that subsequently she realised that at the time his penis was erect and it was his erect penis that was pressing into her buttocks.
The defence argue that the addition of the allegation that, at the time, the accused had an erect penis, was a mere recent invention that may have been deliberate or may have arisen by virtue of reconstruction over a period of time and that, in either event, it should adversely affect her credibility and accuracy as a witness.
In my view the act alleged is an indecent assault whether the penis was erect or not. It is in assault which occurred in circumstances that right minded persons would regard as indecent.
I accept M’s evidence. In coming to that view I have not had regard to the evidence alleged by the complainant JA in relation to count seven at all. The only use I have made of the other allegations are that I have found the complainant to be trustworthy in relation to them and they confirm that the accused had a propensity to touch and tickle her.
I thought M was telling the truth and doing her best to tell the truth. I found her to be an accurate historian.
If M was motivated by malevolence towards the accused, the allegations would seem rather unusual to make in the sense that motivation by malice to lie would tend to suggest more implicatory allegations would be made up rather than allegations in relation to Counts 1, 2, 3, 4 and 6 which are rather equivocal.
Credibility of JA
In considering the case involving allegations in respect of JA (count 7) I have not used the allegations made by M except to demonstrate that the accused had a propensity to touch and tickle young children including JA.
I am satisfied beyond reasonable doubt that the factual allegations made against the accused by JA are true.
Credibility of accused
I do not accept the evidence of the accused.
In summary his evidence was essentially one of denials of any improper conduct but it is not insignificant that in many instances he admits part of the incident that the complainant is describing.
This gives me some confidence in being satisfied beyond reasonable doubt that the incidents that are described by the complainants are incidents that actually happened.
It would be surprising, if these allegations of sexual impropriety were made up, that the complainants have seized upon actual occasions that really occurred sometime in the past and have made false allegations about those occasions. Yet the allegations are equivocal in the sense that they do not carry with them an emphatic description of sexual impropriety.
If the occasions were being made up to somehow falsely blame the accused the subtlety required in making up allegations that require a difficult legalised form of reasoning to demonstrate the sexual connotation to the allegation is, in my view, highly unlikely.
Further the accused was not completely honest in distancing himself in his interview from any detailed knowledge of the use by M of Ventolin, and the fact that she was up at nights with coughing fits and required assistance.
In summary I find his evidence under cross examination to be somewhat evasive.
Having accepted the complainants beyond reasonable doubt both as to their truthfulness and as to their general accuracy, it follows that I am satisfied beyond reasonable doubt that the accused rubbed his penis against the buttocks of the complainant and I find him guilty of count five.
In relation to the other counts involving M, in order to return a verdict of guilty I must be satisfied beyond reasonable doubt that each of the incidents were sexually motivated on the part of the accused.
The combination of circumstances indicating a sexual connotation are as follows:
·The acts usually occurred in the absence of any other person, particularly any other adult.
·The acts often required going to another location.
·The acts in their very nature are unusual conduct by an adult accused towards a young female in the process of physically developing.
·The acts occurred over a period of time when it ought to have been apparent to the accused that the complainant was not enjoying the activity.
An accumulation of the above reasons means that I am extremely suspicious of the conduct of the accused, particularly given that I am satisfied beyond reasonable doubt that he used one occasion of tickling and horseplay to demonstrate some sexual interest towards the complainant.
On the other hand, there remains the reasonable possibility that on one or some of the occasions the accused was genuinely motivated by an innocent desire for horseplay which he found amusing and that on those occasions there was no sexual intent.
In all the circumstances I am not prepared to make a finding beyond reasonable doubt in relation to any of the other counts involving M that the motivation for the tickling was necessarily sexually based in respect of any particular allegation.
The count involving JA
Again I am extremely suspicious. Whilst the conduct could possibly be described as innocent horseplay I am aware that the complainant has used that “innocent” horseplay to commit count five in relation to M and that the horseplay developed into sexual molestation of M on at least that occasion.
Merely because, in the case of M, the accused used seemingly innocent horseplay in the form of rubbing his hand on the bed as a subterfuge to disguise his hidden sexual interest in M, in relation to count five, it does not follow that there is such confirmation of sexual interest in the case of the accused and JA.
I cannot discount the possibility that he had no sexual interest in JA and was merely in the process of conducting innocent horseplay. His involvement with M demonstrates a propensity to engage in horseplay in what could be regarded as innocent circumstances.
I am not prepared to make a finding beyond reasonable doubt of guilt in relation to count seven.
The verdicts are:
·Count five – guilty
·Counts one to four, six and seven – not guilty
Neither of the parties presented the case on the basis that I should consider an alternative charge of assault in relation to each of the counts. For this reason, and the fact that further evidence might have been expected from the complainants and from the accused and further argument on the issue if these verdicts were considered to be open, I have declined to consider any alternative verdicts.