R v Finn (No 3) - [2015] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FINN (No 3)
Criminal Trial by Judge Alone
[2015] SADC 31
Reasons for the Verdict of His Honour Judge Stretton
6 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is alleged to have had unlawful sexual intercourse with his 13 year old stepsister on the upper deck of a houseboat during a 2005 family holiday. He pled not guilty and gave evidence on oath denying the offence.
Held: The offence has not been proved beyond reasonable doubt.
Verdict: Not guilty.
Evidence Act 1929 (SA) ss 34CB(2), 34L, 34M; Criminal Law Consolidation Act 1935 ss 49(3), 288A; Juries Act s 7, referred to.
R v Finn [2014] SASFC 46, applied.
R v Cotton [2015] SASCFC 15; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Maxwell (1998) 217 ALR 452; Monie v Commonwealth of Australia (2005) 63 NSWLR 729; Goose v Wilson Sandford & Co (1998) 142 SLJB 92; Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273; R v Winner (1995) 79 A Crim R 528; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v Latifi [2014] SASCFC 74; R v Finn (No 2) [2015] SADC; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162; R v N,RC (2012) SASR 399; R v Bakhuis (2012) 112 SASR 530; VNB v Police [2011] SASC 151, considered.

R v FINN (No 3)
[2015] SADC 31
Introduction

The accused Matthew Finn is charged with having unlawful sexual intercourse with the complainant, his stepsister, who was 13 years old at the time. The offence was alleged to have been committed during a family houseboat holiday in early 2005 when the two were alone at night on the upper deck of the moored house boat. There were eight other family members on the boat or in the near vicinity, following an evening campfire.
The alleged offence was first disclosed by the complainant six to nine months later. At that time the complainant was staying at her sister’s house. Her sister walked into a bedroom unannounced and recalls the complainant with a plastic shopping bag over her head, crying and saying she wanted to kill herself. Her sister quizzed her and after about 15 minutes the complainant told her the accused had had sex with her on the top deck of the houseboat after everyone had gone to sleep.
At trial the complainant said she did not have the plastic bag over her head nor was she trying to kill herself, but rather was ‘chroming’, a process of inhaling deodorant through a small hole in a plastic bag.
The complainant took her complaint to police in May 2011. The accused was arrested and charged in 2012. He pled not guilty and has denied having sexual intercourse with the complainant as alleged or at all.
A previous trial
The accused was tried before a jury, pled not guilty but was convicted. On appeal the Court of Criminal Appeal overturned the conviction and ordered a retrial.[1]
[1] R v Finn [2014] SASFC 46.
The Court of Criminal Appeal held that the accused had suffered a significant forensic disadvantage because witnesses’ memories, in particular the memory of the defendant’s then girlfriend, of when people retired to bed and the movements of the accused on the night were likely to have been adversely affected by the passage of time between the events and trial. The Court of Criminal Appeal held that the previous trial judge had erred in failing to explain to the jury, as required by section 34CB(2) of the Evidence Act 1929 (SA) (‘the Evidence Act’), the nature of the forensic disadvantage and that they should take it into account when scrutinising the evidence.[2]
[2] R v Finn [2014] SASFC 46 at [16]-[36].
As a result, the Court of Criminal Appeal determined there was a real risk that there had been a miscarriage of justice, and ordered a retrial.
The previous trial has relevance to the current trial in two ways. Firstly, this court must follow and apply the appellate decision as it applies to this retrial. Secondly, the accused’s evidence from the previous trial was tendered in the current trial, and various witnesses were cross examined by reference to their evidence at the previous trial.
Trial by judge alone
Shortly after the appeal decision was delivered, the accused elected for trial by judge alone.[3]
[3] Section 7 of the Juries Act 1927 (SA). See election notice and associated documentation signed on 16 July and filed on 24 July 2014.
While it is clear that on a trial by judge alone the court must deliver a reasoned judgement in a timely way,[4] it is not necessary to, and for brevity I do not, recite all the standard jury directions that would be delivered were this a trial by jury.[5] Of course I have regard to and apply all those basic legal principles including but not limited to the essential principles as to the burden and standard of proof, evidence, assessment of witnesses, the roles of counsel, directions as to the accused, and so forth.
[4] R v Cotton [2015] SASCFC 15, R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Maxwell (1998) 217 ALR 452; Monie v Commonwealth of Australia (2005) 63 NSWLR 729; Goose v Wilson Sandford & Co (1998) 142 SLJB 92; Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273
[5] R v Keyte (2000) 78 SASR 68 at [54]. R v Winner(1995) 79 A Crim R 528 at 530-531. R v R, R & R, LJ [2008] SASC 35 at [43]. R v T, WA(2014) 118 SASR 382. R v Latifi [2014] SASCFC 74.
The alleged offence
It is alleged that between the 31^st day of July 2004 and the 31^st day of July 2005 at or around Renmark the accused had unlawful sexual intercourse with the complainant, a person of the age of 13 years, by inserting his penis into her vagina, contrary to section 49(3) of the Criminal Law Consolidation Act 1935.
The elements of the offence of unlawful sexual intercourse
To convict a person of unlawful sexual intercourse as alleged,[6] the prosecution bears the onus of proving each of the following elements beyond reasonable doubt:
1.That the accused had sexual intercourse with the complainant. Sexual intercourse is widely defined, and includes penile penetration of the vagina. Consent is irrelevant as a child cannot legally consent to sexual intercourse.
2.That at the time of the sexual intercourse the complainant was under the age of seventeen.
[6] The applicable law is per section 49(3) as it stood in 2005. Prior to 15 May 2006 the offence of unlawful sexual intercourse per section 49(1) prescribed offending against a person under the age of 12. This was raised to 14, but not until 15 May 2006, subsequent to the time of the offence alleged in this case. Accordingly although the complainant was alleged to have been 13 at the time of the offence, the charge against the accused is per section 49(3).
The issues in the case
Whilst it is always for the prosecution to establish every element of an alleged offence beyond reasonable doubt, the real issue in the case is whether the alleged intercourse occurred at all.[7]
[7] As articulated by defence counsel at the close of the prosecution opening address, when outlining the issues in dispute pursuant to section 288A of the Criminal Law Consolidation Act 1935.
There was no issue taken with the prosecution evidence that the complainant and the accused were on a family houseboat trip in early 2005, and that at that time the accused was 21 and the complainant was 13.
Complaint evidence
As mentioned in the introduction, the prosecution called evidence that the complainant disclosed the alleged offence to her sister some 6-9 months after the houseboat trip.[8]
[8] Aspects of that evidence were excluded in the previous trial. In a separate ruling the evidence was admitted without restriction at this trial. See trial transcript pp 46-47, and R v Finn (No 2) [2015] SADC 33.
That evidence is admissible for the strictly limited purpose articulated in section 34M of the Evidence Act, to inform the court as to how the allegation first came to light and as evidence of the consistency of conduct of the alleged victim. It is not admitted as evidence of the truth of what was alleged.
The section also provides that a court should bear in mind that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time and to a particular person, but that otherwise it is for the court to determine the significance (if any) of the evidence in the circumstances of the particular case.
Evidence of prior sexual activity
The prosecution sought to lead evidence from the complainant that at the time the accused had penile/vaginal sexual intercourse with her, she was a virgin. The prosecution sought to lead it to explain aspects of the complainant’s evidence concerning whether penetration had occurred.
Section 34L of the Evidence Act regulates and restricts evidence as to the alleged victim’s sexual activities before the events surrounding the alleged offence, and accordingly an application was made pursuant to that section for its admission.
Evidence that the event in question was the complainant’s first sexual experience is plainly relevant to the witness’ perceptions of what was happening to her. It is accordingly of ‘substantial probative value’ per section 34L(2)(a), and given that it relates to the simple assertion of virginity on the part a 13 year old girl rather than a description or admission of any actual sexual conduct on her part, I am also of the view that it would not subject her to any ‘unnecessary distress, humiliation or embarrassment’ per section 34L(2). Accordingly it was admissible, and the court admitted it at the current trial.
The Court of Criminal Appeal also determined that the evidence was admissible.[9]
[9] R v Finn [2014] SASCFC 46 at [46].
Forensic disadvantage occasioned by the passage of time
The accused submits that he has suffered a forensic disadvantage as a result of the time that has passed between the incident giving rise to the offence and the trial. The evidence is that the houseboat trip must have occurred between 1 January 2005 and 31 July 2005. The defendant was arrested by police on 24 June 2012 and the first trial commenced on 28 January 2014, some nine years after the incident giving rise to the offence. The current trial commenced on 24 February 2015, following the resolution of certain pre-trial issues.
It is submitted that the delay of nine years between the alleged offence and the first trial, combined with the circumstances in which the offence was said to have occurred, warrant a direction as provided by section 34CB of the Evidence Act that the accused has suffered a forensic disadvantage, particularly upon the topic of the movements and location of the accused at the time of the alleged offence on the evening in question.
Section 34CB of the Evidence Act provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
At the previous trial the former trial judge declined to direct the jury that there had been any forensic disadvantage, or explain the nature of it, or direct that it must be taken into account when scrutinising the evidence, but to the contrary, directed the jury that the accused had suffered no disadvantage. As mentioned earlier, the Court of Criminal Appeal determined that the former trial Judge erred in so doing.[10]
[10] R v Finn [2014] SASCFC 46 at [34].
The evidence in this case is plain. The accused has suffered an obvious and significant forensic disadvantage. The prosecution case is that he had sex with the complainant on the upper level of a relatively small houseboat in the immediate vicinity of the eight other people who were on the houseboat holiday. The complainant said it occurred after dark, after dinner, after she had been playing guitar around the campfire and had subsequently climbed up to the upper level of the houseboat herself.
The accused denied having sex with the complainant and denied that he would have been on the upper level of the houseboat at any time after the evening meal. Indeed, he denied spending any time alone with the complainant on the houseboat trip.[11]
[11] Transcript p 173.
There were eight potential witnesses to the crucial issue of whether the accused went up to the upper level of the houseboat at any time after the evening meal. Only two were called at trial, so it is safe to assume the other six now have no memory as to the relevant events of the evening in question.
The complainant’s mother was called, who had some recollection of the evening in question, but could not recall whether the accused went up to the top level of the houseboat after dinner.[12] The accused’s then girlfriend was called. She said she could not remember either the complainant or the accused going to the upper level, but she could not remember when either her or the accused went to bed, or whether it was together, or where they were sleeping that night whether in a bedroom or on the fold-out couch in the lounge. Her evidence displays only a very scant and general recall of the evening.[13]
[12] Transcript p 131, in particular at line 19.
[13] Transcript pp 122-123.
Given the small size of the houseboat for 10 occupants, and the adjacent bonfire, it is likely that on the night in question many, if not most, of the other eight people would have seen whether the accused left the group and went to the upper level of the houseboat after dinner. It is certain that the accused’s girlfriend at the very least would have known whether the accused spent a significant time away from her on the top of the houseboat with the complainant, or on the other hand stayed with her the whole evening and went to bed with her. If the latter was the case, it would be cogent evidence that the accused did not commit the alleged offence.
Finally, the accused himself had only scant recollection of the evening, indicating that although he could recall he only went up to the top of the houseboat twice on the trip and hence not on the evening in question with the complainant, he could not specifically recall what he did after the evening meal at the time when the complainant now alleges he had sex with her.[14] If he had been prompted to recall the evening much earlier he would have been more likely to recall what he was doing, and he may have been able to find evidential support for him not being upstairs. For example, if after the campfire he was playing cards with someone all evening, he and others may have been able to recall that, at an earlier time.
[14] Transcript at pp 156-157 and 172-173.
The events of the evening in question were, to those unaware of the forensic significance of the accused’s whereabouts, unexceptional. Hence whilst the accused’s movements would likely have been observed by many at the time, to the observer they would have had no particular significance and hence would have, and have, faded from memory over time as unexceptional events tend to do. That evidence is now unavailable. Hence the very significant nature of the forensic disadvantage suffered by the accused.
Hence, as required by section 34CB of the Evidence Act, the court must take into account when scrutinising the evidence in this case, that the accused has suffered a very significant forensic disadvantage.
The prosecution case
The prosecution case is that the accused had sexual intercourse with the 13 year old complainant on the family houseboat holiday in early 2005.
The complainant was 23 at the time of trial. She gave evidence that she is a stepsister of the accused and that, given her birth date, she was 13 at the time of the houseboat holiday in early 2005. Her mother and the accused’s father formed a relationship when she was about six years old, and the blended family lived together from then on. Some months prior to the houseboat trip the accused had left home. She said she had a good relationship with him, regarded him as her brother, and trusted him.[15]
[15] Transcript pp 61-63.
The complainant said that her mother, her stepfather, her little brother, the accused and his partner, her sister Christine and her partner Brad and brother Dani and his partner Amy also went on the houseboat trip. All in all there were 10 people.
The complainant said that they picked up the houseboat in the Riverland near Renmark, and sailed upriver for a time, then sailed back. She thought the holiday was over about five days.
The houseboat had four bedrooms and an open lounge area with a fold out sofa, and an upper deck which was essentially an open area with an awning and railing. You could reach the upper deck by way of an aluminium ladder at the rear of the houseboat, through a folding hatch in the rear of the upper deck itself.[16]
[16] See exhibits P3 and P4 the complainant’s sketches of the houseboat layout; P5 photographs of a similar houseboat; and P6 photographs of the houseboat trip itself.
The complainant gave evidence, as indeed did the other witnesses, that the upper level of the houseboat was such that you could not see anyone up there from the lower level, and vice versa, unless you looked up through the hatch at the rear of the houseboat where the aluminium ladder was. There was a railing covered with shade cloth around the upper level.[17]
[17] Transcript pp 71-72.
The complainant said that on what must have been the last night of the trip the group had a campfire on the adjacent bank of the river. The houseboat was moored at the side of the river in a country area. Everyone was sitting around the campfire, with the adults drinking, and everyone was having a good time. She said the accused, like the other adults, had been drinking through the day. She said that someone convinced her to play her guitar to the group and she did. She recalled that she played some songs for the group, one of which was significant to her as the film clip of it featured a car accident, and the accused had had a car accident, and she had been worried about him.
After playing to the group the complainant said she decided to get back on the houseboat, and go upstairs to the top level to keep playing her guitar. She said it was starting to get dark. She said that everyone else was still at the campfire. She took a blanket and pillow up to get comfortable, and said that she may have been intending to sleep up there as it was a nice night. Once there she sat against an air conditioner, and from there she could neither see nor hear the rest of the family, although she could have if she had got up and looked over the railing at the end of the deck closest to the bank. She said that although they were in the countryside and there were no visible lights, it was a well lit night.[18]
[18] Transcript pp 76-79.

The complainant said that after she had been on the houseboat playing her guitar for a few hours, the accused came up to the upper level as well. At that stage it was dark. He had a beer with him. The complainant said that although he was under the influence of alcohol he wasn’t inebriated and she had seen him drunker before. She said he spoke to her about how he wasn’t happy with his life, had been feeling depressed, couldn’t eat or sleep and had been drinking quite a lot. Within about five minutes the accused went over to the rear side railing of the houseboat and ‘vomited or was dry retching.’ Then he came back and started talking about how even though they weren’t biological brother and sister, he saw her like a sister, and indeed the complainant said she saw him like a brother as well.[19]
[19] Transcript pp 80-81.
The complainant gave evidence she had the blanket over her and the accused then said he was cold and asked to use some of the blanket, to which the complainant agreed. She said that after five or 10 minutes the accused then moved to kneel over the top of her and she lay down to accommodate him being there. She said the accused then took off her pants and underpants and put his penis into her vagina. She said that it went on for not very long, maybe a couple of minutes. When asked to describe it, the complainant said ‘It was continuous. I suppose it was moving backwards and forwards.’ She says she knew it was called sex, although she had never had it before. Then she said the accused stopped, got up, pulled his pants up, and went downstairs straightaway. She did not see his penis or know whether he ejaculated. She said that nothing was said at any stage of these events.[20]
[20] Transcript pp 82-83.
The complainant said she felt embarrassed, and after five or 10 minutes she went back downstairs to her room at the rear of the houseboat. She couldn’t be sure whether there was anyone still at the campfire or whether there were any lights on. The next day she said she got up and acted normally. She said she did not interact with the accused and neither of them said anything about the event. The houseboat was returned that day and the holiday was over.[21]
[21] Transcript p 84.
The complainant then gave evidence as to how she first came to tell anyone about the event in question.
She said that she thought it was about six to nine months after the houseboat holiday, during the summer school holidays. The complainant told the court she was staying at her sister’s home in Maitland. The complainant said that her sister came into her nephew’s bedroom where the complainant was, to discover the complainant ‘chroming.’ The complainant described chroming as a process of making a small opening at the top of a plastic bag, then spraying deodorant into the bag, then placing the mouth on the hole in the bag to inhale the fumes. She said it altered her state of mind, made her numb and made her forget about things.
The complainant said her sister was very worried as to why the complainant was doing that and pressed the complainant to tell her what was wrong. The complainant said she was very upset at the time and didn’t want to say, but that her sister pressed the complainant so much that the complainant told her that the accused had had sex with her on the houseboat trip.[22]
[22] Transcript pp 91-92.
In cross examination the complainant was taken over all these events again. She said she had chromed twice previously, and agreed that chroming was done to make or get one ‘high’, although it caused ringing in the ears, dizziness and not being able to see properly. She agreed that everyone’s general mood throughout the houseboat trip had been happy, and that it was the males’ usual routine to drink spasmodically during the day, and in that respect the day of the campfire was no different to others. She agreed that she had not observed the accused not eating or having any trouble keeping food down. The complainant indicated by reference to courtroom dimensions that the bonfire was about 11 metres of clear ground away from the houseboat.[23]
[23] Transcript pp 94-95.
The complainant agreed that you could hear if someone was coming up the aluminium stairs to the upper level of the houseboat, and that the walls were fairly thin.[24]
[24] Transcript p 96.
The complainant reiterated in cross examination that the accused had been dry retching and spitting over the side of the upper level of the houseboat shortly prior to the alleged offence. She agreed she had first spoken to the police in detail about the matter on 28 May 2011 at Berri, but had not mentioned the vomiting or dry retching at that time, only mentioning it when she spoke to them again on 25 October 2012 at which time she said:
I think Matthew threw up over the side of the houseboat, but I’m not sure when this happened.
When it was suggested that that would have been loud, the complainant said:
Q.That would have been loud, I suggest to you, that motion, whether dry retching or vomiting contents, it must have been loud I suggest.
A.No, it wasn’t loud. I think you can dry retch obviously not quietly but not loud enough so everybody can hear.
Q.Really, in the dead of night, with no other noise around, you say it was a quiet noise that accompanied the dry retching or vomiting.
A.Yes. If you don’t want other people to hear you’re unwell, it’s not a nice noise for people to hear, you can definitely do it in a quiet manner, not projecting the sound.[25]
[25] Transcript p 98.
The complainant said the accused did not say he felt unwell or that he wanted water, but did have a beer with him. The complainant agreed she did not mention to police in her 2011 statement that the accused brought a beer up with him, saying in explanation that she did not openly talk to people about the events and for a lot of years she thought it was her own fault and felt guilty about it, such that she did not want a lot of people to know about it.[26]
[26] Transcript p 99.
The complainant said she did not smell vomit on his breath, then when she was asked whether that was the case during intercourse she initially said no she did not smell it then, but then said that he did not kiss her and she could not remember.[27]
[27] Transcript p 100.
The complainant was asked about the alleged intercourse and said that it did not cause her any pain, either in the vaginal opening or inside the vagina, notwithstanding that it was her first sexual experience. She was asked if the accused’s penis was erect when it was inside her and she replied ‘I can’t say, but I think it would have had to have been to allow him to have sex with me.”[28]
[28] Transcript p 101.
When questioned about what happened after intercourse concluded, the complainant said nothing was said, and agreed that on her evidence she wasn’t told not to tell anyone, offered anything, told how to behave, threatened not to tell or asked or told to keep it a secret. She agreed the accused’s girlfriend was on the houseboat.
The complainant agreed that while she had told the current trial that at the time she went upstairs to play her guitar and taken the blanket and pillow, everyone was still around the campfire, she had told police a different version of events in her first statement on 28 May 2011:[29]
I remember that was the night we had a fire on the bank of the river. We had all been around the fire for some time and that everyone else had gone back to the houseboat and going to bed when I decided to go upstairs and hang out up there.
[29] Transcript pp 103-104.
The complainant agreed that was different, responding that her memory was that people were still at the fire when she went upstairs, but that a couple of hours later when the accused was having sex with her she couldn’t be certain where people were but she assumed they were inside.[30] On first blush, the response does not explain why the complainant told the police that everyone was going to bed at the time she first went upstairs to play guitar.
[30] Transcript p 104.
The complainant agreed that while she had told the current trial that she had been upstairs for a few hours playing guitar before the accused came up, at the previous trial she had said the time gap was between half an hour and an hour. She agreed the versions were different, responding that it was hard to gauge time in the situation she was in.[31]
[31] Transcript p 107.
The complainant agreed that you could probably have heard the others around the campfire if she had been listening and they possibly her, but she was playing guitar and did not listen.[32] She said that no-one spoke to her from below or called out to her or called out ‘goodnight’, at any time while she was up there.[33] She repeated that everyone on the boat seemed to be happy.[34]
[32] Transcript p 108.
[33] Transcript pp 111-112.
[34] Transcript p 109.
The complainant agreed that while she had told the current trial that the accused’s drinking had affected his behaviour but not in a manner that he was so drunk he couldn’t control himself or was stumbling around, she had told police in 2011 that the accused ‘was pretty drunk’.
The complainant agreed that the effect of her evidence was that no-one said a word at any time during the whole process whereby the accused took her pants off, prior to intercourse, or during intercourse, that he wasn’t groaning or saying anything during the intercourse, and that they were also both silent from the moment intercourse ended through to when he left the upper deck of the houseboat.[35]
[35] Transcript pp 115-116.
The complainant described the incident when her sister had caught her ‘chroming’ and said that to do that she breathed in and out of the hole in the bag, and that the bag was never over her head nor was she attempting to asphyxiate herself.[36] She agreed that when her sister caught her chroming, her sister had pressed her for a long time to say what was wrong.[37]
[36] Transcript p 117.
[37] Transcript p 118.
The prosecution then called the accused’s former girlfriend. She gave evidence that she was in a relationship with the accused between 2002 and shortly after the March/April 2005 houseboat trip. The accused’s girlfriend said the trip lasted about three nights. She said that the use of the bedrooms varied from night to night, and that on at least one night there was a campfire. She did not know where that was along the river, and said she could only remember some small things about it, and could not remember the events of the ‘whole night itself.’
The accused’s girlfriend said that from what she could remember, they would have been drinking, and were sitting around the campfire. She said she recalled that at some point around the campfire, the complainant had her guitar out and was singing, but that was as much as she could remember. She was asked if she had seen either the complainant or the accused going up to the top deck of the houseboat and she replied ‘not that I can remember’. She said she could not remember going to bed that evening or whether she and the accused went to bed at the same time that night. She said she could not remember if the accused was intoxicated that night.[38]
[38] Transcript pp 120-122.
In cross examination she agreed that the sleeping arrangements on the houseboat were cramped.[39]
[39] Transcript p 124.
It is plain that due to the passage of time the accused’s girlfriend could not remember what happened at or after the campfire, whether the accused went up on the top deck of the houseboat after the campfire or dinner as alleged by the complainant, whether or not he was with her all evening, whether or not he was out of her sight for any extended period, whether he was drunk or vomiting, or whether they stayed together for the whole evening and went to bed together that evening. As earlier discussed, this represents a significant forensic disadvantage to the accused.
The prosecution then called the complainant’s mother. She described her marriage to her first husband the complainant’s father and how the complainant is the youngest of the four daughters she had in that relationship. That relationship ended in late 1997 or early 1998 when the complainant was about six years old.
The complainant’s mother then moved to Murrayville with her two youngest daughters including the complainant, and formed a new relationship with the accused’s father and the couple ultimately married. The complainant, her mother and sister moved in with the accused’s father and his three children, which obviously included the accused.[40]
[40] Transcript pp 126-127.
The complainant’s mother gave evidence that there was a houseboat trip in around April 2005, when the complainant was 13 years old. She thought it was a four day trip. She agreed the plan drawn by the complainant accurately set out the four bedrooms and the fold-out sofa in the common area. She did not clearly recall where everyone slept. She said there was a campfire one night, which she thought was on the final night of the trip. She recalled that everyone was sitting around the campfire before and after dinner talking and drinking. She said that at some stage the complainant came down from the top of the houseboat to sing a song. She said that while she did not see the accused on the top deck, she saw him go around the back of the houseboat to go up to the top deck. She said that was definitely before the complainant came down and sang her song, but she could not remember whether he went up to the top deck after that. She could not recall whether the complainant went back up either.
She said the complainant had been up there prior to dinner as she had to call her down for dinner, which was also before the complainant played at the campfire. She said that beyond that she could not remember where the complainant was at the various stages of the evening, nor did she recall where the accused was that night. She did not recall what time the complainant went to bed that night, and nor did she have a practice of putting her to bed or tucking her in as it was not a school night and they were on holiday.[41]
[41] Transcript pp 131-132.
The complainant’s mother said she didn’t hear anything from the top deck that night, but that she was a heavy sleeper. She said a lot of people went up to the top level in the course of the trip, although she didn’t as she was in need of a knee operation. She said she did remember the complainant and the accused being up there during the daytime on the day of the camp fire. She said the next day may have been the day the houseboat was returned.[42]
[42] Transcript pp 133-134.
The prosecution then called the complainant’s sister Linda. She is 17 years older than the complainant and lives in Maitland. She said that the complainant would on occasion visit and stay during the school holidays. She recalled an event when the complainant was about 13 visiting her in the July school holidays. She described the event in the following terms:
Q.    At the time when you went into her bedroom what was she doing.
A.    She was upset, sitting on the bed with a plastic shopping bag over her head.
Q.When you walked into the room, saw her with this plastic shopping bag, what did she do.
A.    She was crying and said she wanted to kill herself.
Q.    What did she do with the plastic bag.
A.    She had it fully over her head.
Q.    After you came into the room, what did she do with it.
A.Then she took it off, and I said ‘What are you doing?’, and she removed the bag from her head.
Q.    What were the words she used about this houseboat incident.
A.    She said that she felt worthless and ashamed.
Q.    Exactly what did she say happened.
A.    That Matthew had sex with her on the houseboat.
Q.    Did she say where on the houseboat.
A.    On the top deck.
Q.    Did she say what time of the day or night it happened.
A.    It was night, after everyone had gone to bed.
Q.    Did she say anything to you about who you could or could not tell.
A.    She said that she didn’t want me to tell anyone because she was ashamed.[43]
[43] Transcript p 140.
In cross examination the complainant’s sister repeated that the bag, a white shopping bag, was over the complainant’s head and face when she entered the room. She did not smell any deodorant. She said she questioned the complainant a lot, did a lot of listening, and after about 15 minutes the complainant disclosed what she said happened to her.[44]
[44] Transcript pp 141-142.
The prosecution then tendered the evidence given by the accused at the previous trial.[45] In that evidence the accused gave evidence about his life, the family relationships, the complainant, the houseboat trip, and denied the alleged offence.
[45] Exhibit P7.
The defence case
The defence case was that the accused did not have sexual intercourse with the complainant.
The accused gave evidence on oath.
It is important to note that he was not obliged to do so, he had a right to remain silent, and that the law therefore provides that he be given credit for adopting a course he was not obliged to take. It is always for the prosecution to prove every element of any charged offence beyond reasonable doubt and an accused person is not obliged to prove anything, and is never obliged to give evidence. When an accused does give evidence, as here, his evidence should be approached and assessed in the same way as any other witness.
The accused gave evidence that he is now 31 years old, and described his family history and the consequent family relationships. He described how his father met the complainant’s mother and the families combined. He is currently self-employed. He has three children, one by a former partner and two by his current partner.[46]
[46] Transcript pp 147-150.
The accused gave evidence that as far as he recalled he lived in the same house with the complainant for maybe four years, got on well with her and viewed her as family.
The accused gave evidence that he was in a relationship with his former girlfriend between 2001 and 2004. They were together in Queensland for a period. They both returned to Adelaide in 2004. He invited her on the houseboat trip in question, at which time their relationship was good.
The accused described the sleeping arrangements, indicating that he and the other two younger couples alternated use of the bedrooms and the fold-out couch in the common area. He did not recall exactly where either the parents or the complainant and her younger brother slept. He described the activities on the trip, being mainly fishing off the back deck, drinking and campfires. He said everyone was happy. He said he thought the trip was about three days long, over two nights. The accused agreed there was a campfire one night but could not recall which night that was. He agreed he was drinking, generally starting around lunchtime, as part of what he described as a relaxed family holiday. He said he spent more time with the men as he was being taught how to fish.
The accused gave evidence about the evening of the campfire. He said he recalled that it was their father’s idea, and he and others collected wood for it. He said dinner was on the houseboat, and everyone was around the campfire once it was lit. He said he recalled cooking marshmallows, and the complainant singing for around 20 minutes. At that stage it was dark.[47]
[47] Transcript pp 155-156.
The accused gave evidence that he did not remember what happened after the campfire, whether he went to bed at the same time as his then girlfriend, or when or how the complainant left the campfire, although he didn’t see or hear the complainant after the campfire. He said that he did not go up on top of the houseboat that night, so far as he could remember, and that he did not vomit up there or have sex with the complainant. He said he could not recall what time he went to bed that night, or who was still up when he went to bed.[48]
[48] Transcript pp 156-158.

The accused said that if people were on the upper deck talking you could hear them but not what they said. He said that the trip was a great trip, and that he never told the complainant he hated his life as everything was going great at that time; he had a new job and he was on holiday. Nor was he having any trouble sleeping or keeping food down.[49]
[49] Transcript pp 159-160.
In cross examination, prosecuting counsel highlighted that if a person used the aluminium steps you could hear that from upstairs, and that the accused had said at the previous trial that he did not believe people went to the top deck much at all. The accused said that he did not believe he was upstairs on the afternoon of the camp fire, as he had no reason to go up there. He agreed he had been drinking from lunchtime and was affected by alcohol. The accused said he was certain he never went to the top deck after dark. He said he did not regard the upper level as ‘relatively private’, but agreed he had responded to that proposition when it had been put to him at the previous trial with ‘Well, you could say that, I guess’. He responded to all that by saying that it depends what you determine as ‘private.’[50]
[50] Transcript pp 173-175.
Certain important principles relevant to the analysis of the evidence in this case
It must be observed that the case against the accused rests entirely on the evidence of the complainant. The law recognises that in the case of any allegation of a serious offence where the case rests entirely on the evidence of a single witness, that witness’ evidence must be ‘scrutinised with great care before a conclusion should be arrived at that a guilty verdict should be brought in,’[51] as it is the only evidence against the accused, and it comes from a single source. This court must, and accordingly does, scrutinise the evidence in this case very carefully in accordance with that principle.
[51] R v Murray (1987) 11 NSWLR 12, Fleming v The Queen (1998) 197 CLR 250, Robinson v The Queen (1999) 197 CLR 162, R v N,RC (2012) SASR 399.
Further, the passage of time between the events surrounding the alleged offence and the complaint and subsequent trial has plainly resulted in a situation where none of the eight potential witnesses were either called or, if called, could recall anything material to the resolution of at least one issue crucial to the case against the accused. That issue is whether the accused climbed the ladder to the rear of the houseboat on the night in question, and was accordingly up there with the opportunity to commit the offence as alleged. If he was not up there, he could not have committed the charged offence.
It is reasonable to conclude that none of the eight potential witnesses[52] can now remember whether the accused went up there, nor whether other aspects of his conduct up there as alleged by the complainant that may well have been observed or heard if they occurred, most notably the suggested vomiting or dry retching by the accused over the rear side railing, in fact occurred or did not occur. Nor whether, if the accused was up there with the complainant, it was at a time when the remaining eight witnesses were still around a campfire on the riverbank just a few metres away, or whether some or all were in the houseboat immediately below, and if so whether they were still awake or had gone to bed.
[52] The 2 who were called and the 6 who were not called.
That situation represents a significant forensic disadvantage to the accused, within the meaning of section 34CB of the Evidence Act.
Pursuant to section 34CB(2), the nature of the forensic disadvantage must be identified. The nature of the forensic disadvantage is that, by reason of the time that has elapsed between the alleged offending and the trial, the accused has been deprived of the evidence of eight potential eyewitnesses that may have supported his evidence that he did not go up on to the upper level of the houseboat at the relevant time, and accordingly that he could not have committed the offence as alleged by the complainant.
It may be, as discussed by Kelly J in R v Bakhuis (2012) 112 SASR 536 at 547, that section 34CB(2) does not strictly apply in cases of trial by judge alone, as the section is couched in terms of how juries must be directed. Whether or not it does, I consider that, as observed by Kelly J in Bakhuis, and indeed Grey J in VNB v Police [2011] SASC 151, a court should regard the principles reflected in section 34CB as relevant to the consideration of the evidence in any case where the passage of time has resulted in a significant forensic disadvantage to the accused.
Accordingly, the fact that the case against the accused rests entirely on the evidence of a single witness, and that the passage of time has resulted in a significant forensic disadvantage to the accused, requires the court to scrutinise the evidence with great care before a guilty verdict based upon it can be reached.
Analysis and consideration of the evidence
All the witnesses in the case gave evidence well and in a seemingly straightforward way. In particular, both the complainant and the accused presented well, answered questions responsively, had appropriate manner and demeanour, and were relatively consistent with their respective versions of events in the course of giving evidence over time and in the course of cross examination.
As earlier indicated, there was no dispute concerning the family history, any of the surrounding circumstances, nor indeed about anything of note, apart from the single issue of whether on the night of the camp fire, after dinner and after the complainant had sung to the family group around the campfire, the accused at some stage followed the complainant up to the top level of the houseboat and had vaginal sexual intercourse with her as alleged.
I bear in mind that the complainant was trying to recall and recount alleged events which would have been traumatic, which occurred some time ago, and when she was quite young.
There were some inconsistencies in some aspects of the complainant’s evidence. Whereas she told the court that at the time she went upstairs on the houseboat to play her guitar everyone was still around the campfire, in her first statement to police on 28 May 2011 she said she did not decide to go up on top of the houseboat to play guitar until everyone had gone back to the houseboat and were going to bed. The complainant also agreed that while she had told the current trial that she had been upstairs for a few hours playing guitar before the accused came up, at the previous trial she had said the time gap was between half an hour and an hour. The complainant agreed that while she had told the current trial that the accused’s drinking had affected his behaviour but not in a manner that he was so drunk he couldn’t control himself or was stumbling around, she had told police in 2011 that the accused ‘was pretty drunk’.
Whilst the latter two of these inconsistencies relate to time and level of inebriation and are likely explicable as matters of degree, the inconsistency as to when the complainant left the campfire and went to the upper level of the houseboat is not as explicable in that way. It was either when everyone was still at the campfire, or it was much later when everyone had reboarded the houseboat and were going to bed. The inconsistency was not adequately explained by the complainant, and accordingly potentially affects an assessment of the complainant’s evidence.
There was inconsistency between the complainant and her older sister as to the circumstances of the making of the initial complaint. The complainant’s older sister said she walked into a bedroom to find the complainant with a white plastic shopping bag over her head, crying and saying that she wanted to kill herself. That was flatly denied by the complainant, who said she did not have any bag over her head nor was she trying to kill herself. The complainant said that she had filled a plastic bag with deodorant and was breathing it in through a small hole made at the top of it, a process she described as ‘chroming’. The complainant’s sister said that the complainant told her the accused had sex with her after everyone on the houseboat had gone to bed. The complainant told the court that at the time the accused had sex with her she did not know where people were or whether they had gone to bed.
The difference in the evidence given by the complainant and her sister concerning the fundamental circumstances of the making of the complaint is stark. Either she had a shopping bag over her head and was saying she was trying to kill herself, or she was inhaling deodorant from a small hole in a plastic bag. Both the complainant and her sister gave their different versions of this event clearly, definitely and assertively, neither conceding they may have been mistaken. In the final analysis, on balance, the memory of the accused’s adult sister, who walked in and purportedly saw what she saw right in front of her, and as a result had a half hour conversation trying to discover, as she recalled it, why the complainant had a bag over her head and why she was saying she wanted to kill herself is more cogent and credible that that of the complainant who was aged 13, and may indeed have been ‘chroming’ at some stage near the time her sister came in. Accordingly, the complainant’s evidence as to her complaint is likely to be inaccurate, and I must consider whether that affects the cogency and credibility of her evidence more generally and in particular as to the alleged events. Given the confidence and certainty with which the complainant expressed that evidence, I find it does potentially affect an assessment of her evidence more widely.
So, for the purposes of section 34M of the Evidence Act, whilst I find that the making of the complaint at the time and in the manner it was made is consistent with the alleged offence having happened to her, the circumstances in which she alleged she made the complaint are not consistent with other evidence, ie from the complainant’s sister, which I find more credible as to those circumstances.
What is also clear is that, whichever version was to be accepted, the complainant was upset and troubled at the time when she made the initial complaint.
There were aspects of the complainant’s story which the defence argued were, separately or taken together, incongruous or inherently unlikely, in particular:
·That the accused would, without a single word before, during or after, just commence to, and have, unannounced and un-foreshadowed vaginal intercourse with his 13 year old step sister on top of a houseboat with eight other family members either just metres away around a campfire, or immediately below on the houseboat itself.
·That the accused would attempt and do such a thing when he was on holiday and in a good relationship with his then girlfriend, who would herself have been just metres away at the time.
·That the complainant said she did not feel any pain or discomfort notwithstanding she was alleging that the accused had sudden un-foreshadowed and immediate full penile/vaginal sexual intercourse with her as a 13 year old virgin for several minutes.
At the end of the day, the prosecution submitted that the complainant was an honest and reliable witness, that her story in all the circumstances was not implausible, that she should be believed, that the case had accordingly been proven beyond reasonable doubt, and that the accused should accordingly be convicted. The defence argued that for a range of reasons the prosecution case itself fell well below the requisite proof beyond reasonable doubt, that the accused’s evidence tendered from the previous trial and given on oath in this trial was believable and could not be rejected beyond reasonable doubt, and that in the final analysis there was a reasonable doubt.
There were a range of other arguments put by both counsel. I have taken all the arguments of counsel into account, although for brevity I do not set them out herein. I have closely considered all the evidence.
In the final analysis, the case relies entirely on the evidence of the complainant.
I have regard to the fact that because this case relies entirely on the evidence of a single witness, the law requires that the evidence of that witness must be scrutinised with great care, and the court has done just that.
The complainant gave evidence well and in a straightforward manner, however on the required close scrutiny there were some inconsistencies, in particular with the prior statement as to when she went to where the offence allegedly occurred, and with her sister’s evidence of complaint, which I conclude must affect the absolute reliance the court can have on her evidence as to the alleged offending. The circumstances of the alleged offending, while plainly possible, had certain elements about them that taken together as discussed above, namely the immediate proximity of eight witnesses including the accused’s parents and current girlfriend, the fact it all occurred unannounced, un-foreshadowed and in complete silence before, during and after, without the slightest vaginal pain or discomfort despite the fact that the complainant was a 13 year old virgin undergoing minutes of sudden penile vaginal intercourse for the first time, give cause for potential caution.
It is plain that the complainant made her initial complaint at a time when she was troubled and upset. I have regard to the complaint evidence as required by the relevant section of the Evidence Act, and as discussed earlier.
The accused gave evidence on oath, and did so in a straightforward manner, denying the offence. He has suffered a significant forensic disadvantage in that the passage of time between the alleged offence and trial has meant that he has limited memory of the period when the offence is alleged to have happened, and none of the eight potential witnesses who may have been available to support his evidence that he did not go up to the upper level of the houseboat and accordingly, if that were the case, could not have committed the offence, now have any memory of that part of the evening.
In the final analysis, having considered all these factors, the totality of the evidence in the case, all counsel’s arguments and submissions, and all relevant principles, there is a reasonable doubt in my mind as to the accused’s guilt.
Conclusion
There is a reasonable doubt as to the accused’s guilt, accordingly the case has not been proven beyond reasonable doubt.
Verdict
Not guilty.