R v G, AD
[2018] SADC 109
•8 November 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, AD
Criminal Trial by Judge Alone
[2018] SADC 109
Reasons for the Verdicts of Her Honour Judge Schammer
8 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
The accused is charged with offending against one complainant, namely two counts of unlawful sexual intercourse with a person under 12 years between 2 April 2002 and 2 April 2004 at Queenstown and one count of unlawful sexual intercourse with a person under 14 years between 30 April 2007 and 1 June 2007 at Elizabeth Downs. At the time of the alleged offending the complainant was the accused's step-daughter.
Verdict: Not guilty on all three counts.
Criminal Law Consolidation Act 1935 ss 5, 49; Evidence Act 1929 (SA) s 34M, referred to.
R v Pfitzner (1976) 15 SASR 171; R v P, S [2016] SASCFC 97; R v Jones [2018] SASCFC 80; R v S, DD (2010) 109 SASR 46; R v Maiolo (No 2) [2013] SASCFC 36; Hughes v The Queen (2017) 92 ALJR 92, considered.
R v G, AD
[2018] SADC 109Introduction
The accused, G, AD, is charged on Information dated 4 August 2017 with two counts of unlawful sexual intercourse with a person under the age of 12 (Counts 2 and 3) and one count of unlawful sexual intercourse with a person under the age of 14 (Count 4).
The complainant in each instance is the accused’s step-daughter, SS (Date of Birth: 2 April 1997).
It is alleged that the first two counts occurred in the lounge room of the family home at Queenstown when the accused was home alone with the complainant, then aged approximately five years old.
The final count is alleged to have occurred several years later at the family’s subsequent home at Elizabeth Downs, at a time when both the complainant’s mother, TS and her brother, JS were at home.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. A nolle prosequi was entered with respect to Count 1 on the Information immediately prior to the commencement of the trial.
The accused gave evidence denying the allegations and denied ever having a sexual interest in the complainant.[1]
[1] T 133.14-22.
The Charges
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, AD between the 2nd day of April 2002 and the 2nd day of April 2004 at Queenstown, had sexual intercourse with SS, a person under the age of 12 years, by performing an act of cunnilingus on her.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, AD between the 2nd day of April 2002 and the 2nd day of April 2004 at Queenstown, had sexual intercourse with SS, a person under the age of 12 years, by causing her to perform an act of fellatio on him.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, AD between the 30th day of April 2007 and the 1st day of June 2007 at Elizabeth Downs, had sexual intercourse with SS, a person under the age of 14 years, by causing her to perform an act of fellatio on him.
Legal Directions
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything and in particular it is not for the accused to prove that he did not commit the offence or offences as charged.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt.
If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then he remains innocent and I must return a verdict of not guilty to that charge.
There are three charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused or I am unsure where the truth lies then I must find that the charge has not been proven to the standard required by the law and I must find the accused not guilty of that charge.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that even if I reject the evidence presented by the defence in its entirety, that fact does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offence (and in this case, offences) charged beyond reasonable doubt.
Counsel for the accused suggested to the complainant in cross-examination that she had a motive to lie about the alleged offending, namely to gain financial compensation. The complainant denied this.
I must consider the possibility of a motive for SS to lie, as it is relevant to her credibility. However, if I reject any motive to lie, that does not strengthen the prosecution case, rather the position remains neutral. It remains for the prosecution to satisfy me of the accused’s guilt beyond reasonable doubt.
The allegations relate to a period spanning just over five years from April 2002 to June 2007, meaning there has been a period of delay of over 16 years between the alleged offending and the trial.
That delay has resulted in forensic disadvantage to the accused in terms of challenging and responding to allegations so long in the past.
The alleged acts of sexual intercourse were not witnessed by others, meaning an acceptance of SS’s evidence as being both reliable and credible is critical to my findings on the elements. Due to the delay, SS could not recall certain details of the alleged offending (for example, precisely when Counts 2 and 3 were said to have occurred, whether Count 4 occurred during the day or the night and what employment the accused held at the time of the alleged offending).
But for the delay, the accused may have been in a position to explore the circumstances of the individual acts of offending; to identify the occasions of the alleged offending; to make a defence other than a simple denial; and, to test the events that may have affected SS’s recollection or reliability.
Had a timely complaint been made it is possible that forensic evidence such as DNA or photographs of the locations of the alleged offending may have been available. The accused may have been in a better position to provide a relatively contemporaneous recollection of the nature of his interaction with SS at the time of the alleged incidents.
Of course the problems created by the passage of time may also have impacted adversely on the ability of SS to provide detailed and precise recollections of the incidents in question. However, it must be remembered that the prosecution carries the onus of proving that SS gave truthful and reliable evidence.
I must take those forensic disadvantages into account when scrutinising the evidence for the prosecution and take them into account when assessing whether the prosecution has proved each element of the offence(s) as charged beyond reasonable doubt.
The prosecution led evidence (without objection by defence) of uncharged sexual acts and other discreditable conduct allegedly committed by the accused. As to the latter, SS gave evidence that the accused would discipline her and her siblings when they misbehaved or did not listen to their mother. She gave evidence that the accused would use his open hand to smack her and her siblings on the arm, sometimes on the bottom and on the back of their hand.
I am satisfied the probative value of this evidence substantially outweighs any prejudicial effect it may have on the accused, and the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
The evidence is admitted by way of background information to put the alleged offending into context; to properly explain the relationship between the accused and SS at the relevant time(s), why she submitted to him and did not persist with a complaint with respect to his alleged conduct and why it is alleged the accused was emboldened to continue the offending.
SS’s evidence about the uncharged acts may also be used to show inconsistency or unreliability or the inherent improbability in SS’s account more generally, thereby raising doubts about the charged offences.
The evidence is not admitted for a permissible use that relies on a particular propensity or disposition of the accused as circumstantial evidence of a fact in issue.
If I am satisfied that the accused engaged in the uncharged sexual acts and other discreditable conduct as described by SS I can use the evidence only for the identified permissible purposes. I must not reason that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged and/or is more likely to be guilty of any or all of the charged offences. Further, I must not reason that because of the multiplicity of charged and uncharged acts that the accused must be guilty of something and convict the accused of one or all of the charged offences.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.
Elements of the Offence
The prosecution must prove each element of the offence beyond reasonable doubt.
As to Counts 2 and 3, the prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with SS and that at the time of the sexual intercourse SS was aged under 12.
As to Count 4, the prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with SS and that at the time of the sexual intercourse SS was aged under 14.
‘Sexual intercourse’ includes the acts of fellatio and cunnilingus.[2]
[2] Criminal Law Consolidation Act 1935 (SA), s 5.
Consent affords no defence to any of the charges.[3]
[3] Criminal Law Consolidation Act 1935 (SA), s 49(7).
Whilst proof of the precise time or date is not an element of any of the charged offences, it remains necessary for the prosecution to clearly identify and prove the particular occasion of the offending before a finding of guilt is returned.[4]
[4] R v Pfitzner (1976) 15 SASR 171.
The Evidence
The prosecution called evidence from the following witnesses:
1.The complainant, SS;
2.The complainant’s mother, TS; and
3.The complainant’s brother, JS.
The complainant gave her evidence with a screen placed between the witness box and the dock and with the court closed. The complainant’s mother gave her evidence with a screen placed between the witness box and the dock. The taking of the witnesses’ evidence in this way does not affect the weight to be given to that evidence, nor can any adverse inference be drawn against the accused because of the manner in which the complainant and her mother gave evidence.
There were only two exhibits tendered, being Exhibit P1, a family tree and Exhibit P2, being hand-drawn plans by TS of the family homes at Queenstown and Elizabeth Downs which were marked by the witnesses during the course of their evidence.
The accused gave evidence and called evidence from his mother, KS.
Background
The complainant’s mother, TS met the accused in or about 2001.
At that time TS was living at Craigmore with her three children; her oldest daughter T (DOB: 25/2/1992), her son JS (DOB: 11/8/1994) and the complainant, SS. JS and SS are full siblings, T is their half sibling.
SS would spend every second weekend from Friday to Sunday with her father.
As the relationship between TS and the accused developed, the accused spent increasingly more time with SS and her siblings.
During 2002 TS fell pregnant with the accused’s child. The accused’s mother offered the accused her mother’s home at Queenstown for the accused, TS and the family to live in, rent-free.
At some stage at or shortly prior to the birth of the baby, the accused, TS and the family (T, JS and SS) moved from Craigmore to the house at Queenstown. The accused gave evidence that this move was scheduled to occur the day after TS went into labour with the baby.[5] Neither TS nor SS was asked precisely when the move occurred, although SS said the baby was born ‘only a few months’ after the family moved to Queenstown.[6]
[5] T 124.9-17.
[6] T 28.8-10.
The baby was born prematurely. As a result, when TS came home from hospital after the birth, the baby stayed in hospital. SS said her mother stayed in hospital for a week when the baby was born and that thereafter her mother visited the baby every day or every second day in hospital for six weeks.[7]
[7] T 47.3-10.
SS was five, nearly six, when this baby, a girl, TT, was born.
TS said that she was in hospital for around five days when the baby was born and that the baby had to stay in the hospital for seven weeks.[8] TS said she visited the baby ‘pretty much every day’ and that the accused and the three children would go with her to the hospital in the sense that they all went in together as a family.[9] TS said that she thought she may have gone in once by herself to visit the baby, and that when she did, the accused had looked after the other three children.[10]
[8] T 98.11-25.
[9] T 98.26-36.
[10] T 98.37-99.4.
Exhibit P2 includes a hand-drawn plan of the Queenstown home, prepared by TS.
All of the witnesses agreed that the plan accurately depicted the layout of the Queenstown home and, for example, where the bedrooms were positioned and who slept in what room. There was some divergence of opinion as to where certain items of furniture were located and the precise locations of doors and windows. For example, SS said there was a cupboard in the main bedroom with a television on it. The accused said there was a large, heavy cupboard in that room, but if there was a television in the room, which he did not recall, it was not located in the position as marked by SS. He said there was a computer in that room, but that was never put to either SS or to TS in cross-examination.
The accused and TS were married in October 2003 and SS was a flower girl at their wedding.
From time to time TS would leave either one or some of the children home alone with the accused at the Queenstown home when she went out shopping to get groceries.[11] TS said she trusted the accused with her children.[12]
[11] T 97.27-31; T 98.2-5; T 127.37-128.9.
[12] T 97.22-23.
SS never called the accused ‘dad’, either before or after his marriage to her mother and always called him by his first name.[13]
[13] T 42.17-20.
During 2005 TS fell pregnant with the accused’s second child, and this baby, a girl, C was born on 23 January 2006. SS was eight, nearly nine, when C was born.
The family moved to a larger house at Elizabeth Downs to accommodate their growing numbers. Both TS and the accused said that C was born while the family was still living at Queenstown and that they moved to Elizabeth Downs thereafter, noting TS said this move happened when C was only a couple of weeks old.[14] Conversely SS said C was born ‘a few months to a year’ after they had moved to the Elizabeth Downs home.[15]
[14] T 91.34-92.6; T 128.25-35.
[15] T 28.20-26.
Exhibit P2 also includes a hand-drawn plan of the Elizabeth Downs home prepared by TS. The witnesses generally agreed with the layout of the home as depicted therein, save that the accused described the wall of the kitchen (as it appears at the very bottom of the plan, facing the unnamed road) as being set back from the lounge wall, where there was a pergola.[16]
[16] T 130.21-131.6.
Both the accused and TS described there being a window on the kitchen wall facing the road,[17] together with a window over the sink, facing out to the backyard (that is, to the left of the plan). SS could not remember there being any kitchen window facing the road.[18]
[17] T 103.37-104.4; T 111.22-33; T 131.18-22.
[18] T 76.33-77.2.
SS described there being an air conditioning vent outside the house between the lounge room and the kitchen. She elaborated that this was:[19]
Like a metal cage. Not so much a cage, a metal frame with a fan that pushed out hot air when you had the air conditioner on.
[19] T 54.28-30.
The accused agreed there was an air conditioning vent of this type in this area, although he recalled it being on the lounge room wall (therefore facing towards the backyard) and that there was a pergola in the area between the kitchen and lounge room walls.[20]
[20] T 130.38-131.16.
All of the witnesses agreed there was a ‘back verandah’ running along the left-hand side of the house as depicted in the plan. There was an external room which was converted into a bedroom for JS.
Both the accused and TS were smokers. Neither TS nor the accused smoked inside the family home. When they were living at the Elizabeth Downs home they would usually, but not always, smoke together under the back verandah, where there were some outdoor chairs.[21]
[21] T 69.4-6; T 99.28-100.15; T 129.38-130.3; T 164.19-20.
At all relevant times TS engaged in home duties. She was responsible for getting the children to and from school and for most meal preparation.
The accused was gainfully employed from time to time during his relationship with and marriage to TS, although he had occasional periods of unemployment.[22] The accused had responsibilities around the home including mowing the lawns, helping with the cooking, handyman jobs and car maintenance.[23]
[22] T 105.3-5; T 137.24-27.
[23] T 43.30-33; T 138.28-139.19.
The accused and TS separated in 2007, at a time when they and the family were still living at the Elizabeth Downs home. Thereafter, SS had very little to do with the accused.[24]
[24] T 64.31-65.3.
The complainant’s relationship with the accused
SS gave evidence that at the beginning of the accused’s relationship with her mother, her own relationship with the accused ‘was quite good’. She described him doing family things with them, such as going to the beach at Semaphore, when they lived at Port Adelaide (Queenstown). [25]
[25] T 41.30-42.11.
She said there was a time when this changed. She said ‘I can’t really remember how it started, I just remember most of the incidents’.[26]
[26] T 44.2-3.
She said these were incidents both of physical discipline and of sexual abuse.
As to the physical discipline, SS gave evidence that if she, or her older siblings, did not listen to their mother, or were naughty, they would be yelled at and sent to their room and that occasionally the accused would hit (or smack) them, using his open hand,[27] on the arm, sometimes on the bottom and on the back of their hands.[28] She said this happened ‘not too regularly’,[29] that she could not remember the accused ever hitting them when they were not misbehaving[30] and that the accused did not discriminate between the three children in this respect.[31]
[27] T 78.2-3.
[28] T 44.3-18.
[29] T 44.19-20.
[30] T 44.35-36.
[31] T 75.18-25.
SS agreed that no one got smacked harder than anyone else, that she knew of.[32] She said she bruised easily and she got a few bruises from this, on her arms and sometimes on her legs.[33]
[32] T 75.37-76.1.
[33] T 45.2-6.
In cross-examination the following exchange occurred:[34]
[34] T 79.32-80.8.
QDo you suggest that (the accused) hit you hard when he disciplined you or he just smacked you and you felt the sting.
A Felt the sting.
Q So you’ve never suggested (the accused) hit you really, really hard.
AOccasionally, depending what it was for.
QWhat sort of things would he smack you hard for.
AIf we had not been listening to mum or we had been told more than once to go and do something and we hadn’t done it.
QBut it might have been hard, it wasn’t so hard, necessarily, it left marks, it just hurt.
AHard enough to leave a red mark and I bruise quite easily, so I would occasionally be bruised.
SS was asked what the accused’s tone was like when he told her (or her siblings) to go to their room. She said it was ‘angry just not too aggressive’ and that he raised his voice ‘slightly’.[35]
[35] T 44.28-34.
SS gave evidence that she ‘didn’t like it 'cos I had never been hit by dad or mum so it was new’.[36] She said her mother may have been home at the time the accused smacked her, but not there with her when he did.[37]
[36] T 44.38-45.1.
[37] T 45.7-11.
SS was asked how she felt about the accused marrying her mother. She said:[38]
AAt the time I was happy for mum but a little bit uncomfortable because what was going on.
QWhy were you uncomfortable.
AJust how aggressive he could be sometimes with telling us kids off and the things that he had done to me.
QWhen you say ‘things that he had done’, what are you talking about there.
ASexually.
[38] T 41.17-24.
In her evidence-in-chief SS was asked how the fact of the physical discipline made her feel about the accused and she said that it made her scared of him.[39]
[39] T 45.22-23.
In cross-examination SS reiterated that the fact she was physically disciplined by the accused made her scared of him.[40] She said:
The fact that I hadn’t been hit by any parent before and all of a sudden I was by someone who came into mum’s life and started hitting us when we were naughty when I wasn’t used to it.[41]
[40] T 78.19-21.
[41] T 78.9-12.
She said she did not tell her mother about being frightened of the accused because he smacked her when he disciplined her rather she ‘tried to stay away from him as much as I could’.[42]
[42] T 78.22-24.
TS was asked in cross-examination if she had ever smacked her children, including SS, to discipline them and said that sometimes she had done so.[43]
[43] T 102.19-28.
The following exchange occurred:[44]
[44] T 102.29-103.5.
QOnce you married (the accused) did he also discipline the children by smacking them.
ANot that I knew of.
QSo you never saw him smacking them.
ANo.
QIf they were naughty would he leave it to you to tell them off, as it were, and if necessary smack them.
AYes.
QWas that an arrangement that you had or just the way it worked out, automatically followed.
AI told him that ‘I’m their mum, that it’s my job to discipline them’.
QThat’s what I was about to ask. You said ‘It’s my job, not yours’.
AYes.
JS gave evidence that the accused would discipline him, T and SS by smacking them with an open hand if they had been naughty or had talked back to their mother.[45]
[45] T 117.34-118.3.
The accused gave evidence that once he moved in with the family in the Queenstown home he would smack the children (including SS) occasionally, using an open hand, on the buttocks or on the back of the hand. He said that TS saw him smack the children on occasions. He remembered one occasion when he smacked SS and she sustained some bruising on her arm. He said this occurred when they were living at Elizabeth Downs.[46]
[46] T 126.30-127.17.
The accused’s mother gave evidence as to her observations of the interactions between TS’s three older children (including SS) and the accused. She said: ‘They treated him like their father. They gave him a hug, they gave him a cuddle.[47]
[47] T 179.9-10.
She said she treated the children as if they were her own grand-children.
The first uncharged act – the bedroom incident
SS recalled that the first occasion when she was sexually abused by the accused occurred in the main bedroom of the Queenstown home.[48]
[48] T 80.11-14.
She said that she and T were home with the accused. She believed her mother was in hospital having TT.[49] She was unsure where JS was at the time.[50]
[49] T 46.29-47.2.
[50] T 49.1-2.
She could not recall what time of the day the incident happened or what she or the accused were wearing.[51]
[51] T 47.26-31.
SS said she could remember being in the main bedroom with the accused and T. She and T were lying on the bed on either side of the accused. She could not recall what they were doing. She said that the accused asked her to get up, to go to the foot of the bed and to touch her vagina, although she could not recall the exact words used by him. She said she listened, then went to the end of the bed, pulled down her pants to her ankles and started touching her vagina. She said she had done this because she was scared of him and felt like she had to listen.[52]
[52] T 46.3-25.
SS said that she did not touch her vagina for very long and that she could not recall the accused saying anything to her, or T saying anything, while she was doing this.[53]
[53] T 48.14-19.
She said she stopped because she felt uncomfortable and left the room.[54]
[54] T 48.27-29.
In cross-examination it was suggested to SS that this incident could not have occurred as the accused was either working or in the hospital visiting TT with her mother during this period of time. SS stated in response:[55] ‘It would have been a weekend when he had us at home’.
[55] T 79.14.
It was also suggested to SS that she and her siblings had been left with the accused’s parents the first night their mother was in hospital having TT and that thereafter they had stayed with their mother’s parents. SS said she could not recall staying with the accused’s parents but that she remembered staying with her mother’s parents.[56]
[56] T 79.15-20.
It was suggested to SS that there was never a time when she was alone with the accused in the house such that this incident could have occurred. SS disagreed and said that there were days when it was ‘just him’ at the Port Adelaide (Queenstown) house.[57]
[57] T 79.21-27.
Although there was some time devoted to examination of the witnesses on the topics of where the children stayed when TT was born and of the accused’s working hours during the time TS was in hospital with TT, the accused agreed in his evidence that he was alone in the Queenstown home with T, JS and SS for one or two nights when TS was in hospital.[58]
[58] T 127.37-128.4.
In cross-examination the accused was quite adamant that other than those nights, there were no other occasions when he was alone with the children while TS was in hospital, or during the seven week period TT was in hospital.[59] The following exchange occurred in cross-examination:[60]
[59] T 147.29-148.5.
[60] T 148.6-26.
QThere were no occasions when TS went to the shops and left you alone with the children in that period.
ANot really because, yeah.
QWhat do you mean ‘not really’.
AShe had had a C-section and it took her weeks and weeks to recover fully, so if I could assist her by driving her to the shops or if we needed something from the shops I’d go because, you know, driving was something – and sitting down actually – she was very uncomfortable doing.
QSo do you say because of TS’s C-section she never went to the shop at any time during that seven-week period.
ANo, that’s incorrect.
QShe did go to the shops.
ANo, that’s not what I said.
QIs that right or wrong what I put to you.
AShe might have gone to the shops but not that I can remember but it wouldn’t have –
QThere might have been periods of time when you were –
AYeah, there might have been.
Although it is not entirely clear, by this evidence it is likely the accused agreed that there may have been periods of time that he was alone with the children during the seven week period when TT was in the hospital, but he could not now remember any such times.
By way of completeness, the accused gave evidence-in-chief that he was working at the time of TT’s birth at Burton as a forklift driver, commencing at around 5 am.[61] He said that TS was in hospital for only four or five days when she had TT.[62] He said that once TS came home she was unable to drive ‘the first week or two’ due to having had an emergency C-section. During the time TT remained in the hospital he would drive TS to the hospital to see TT and that the other children would come with them as ‘we weren’t going to leave them alone’. He said this was ‘definitely daily’ and always at night time after he had finished work.[63] He said that TS may have visited TT alone on one occasion when the children were at school and he was going to be home late from work.[64]
[61] T 124.32-125.4.
[62] T 124.22-26.
[63] T 125.11-33.
[64] T 147.23-28.
The accused’s mother, KS, gave evidence that she had been called by the accused early in the morning on the day of TT’s birth, and he asked if she could look after the children. The accused had then dropped the children off, and they had stayed with her until TS’s parents had collected them after tea and took them back to their place.
The accused was asked in cross-examination if there were ever occasions when he, SS and T were all in his bedroom together and he said no. He was asked if he was absolutely sure about that and he said yes. He confirmed that he had not been alone in his bedroom with SS and T at either the Craigmore, Queenstown or Elizabeth Downs homes.[65]
[65] T 156.19-31.
The following exchange then occurred:[66]
[66] T 156.32-157.20.
QYou can say with absolute certainty there was never one occasion where you, SS and T were all in your bedroom together, just the three of you, in that entire period of time.
AIf the kids were on the computer at the same time and I was helping them with homework then yes, there would be then.
QSo there were occasions.
AYes.
…
QYou appreciate that’s quite different to what you said before.
ANo, I didn’t, you know, fully understand the question but when you reiterated then I understood what you meant.
The accused denied the incident as described by SS had occurred. He denied there ever being any occasion when he was alone in his room with SS and T and they were all on the bed together.[67] Further, he said that there was never an occasion when he was alone on his bed at the Queenstown home with SS and T, and JS had walked in.[68]
[67] T 158.34-160.14.
[68] T 128.20-22.
JS gave evidence that the furniture, including the television, in the main bedroom of the Queenstown home as marked by SS on the plan in Exhibit P2 was exactly as he remembered it.[69]
[69] T 115.3-9.
He described an occasion he could remember when he had been playing in his room and he heard his sisters squealing (and he added ‘it wasn’t a joyful scream’), so he went to investigate. He walked into the main bedroom of the Queenstown home where he saw the accused, SS and T lying on the bed, with the accused in the middle and his sisters either side of him. He said:[70]
I had asked them what was wrong and they didn’t get a word out before (the accused) told me that nothing – it was all right – ‘everything’s fine, just go back to what you were doing, I’m trying to put the girls to sleep’…
[70] T 115.25-29.
He said he had then turned around and gone back to what he was doing.[71] He did not think anything of it at the time[72] and he did not tell his mother what he had seen.[73]
[71] T 115.30-31.
[72] T 115.32-34.
[73] T 116.18-21.
When asked how the girls appeared at the time he said ‘they looked shocked out of their mind’ and that the accused ‘looked shocked for me walking in’.[74]
[74] T 117.9-12.
He described himself as a 10 year old at the time this occurred but was not asked when this incident occurred by reference to when TT was born. JS was eight when TT was born.[75]
[75] Exhibit P1.
T was not called to give evidence. I remind myself that I must not speculate about any evidence I have not heard and about what T may or may not have said had she been called to give evidence. I should not presume that because she was not called her evidence may have assisted either case. I simply do not know what evidence she may have given.
Counts 2 and 3
SS gave evidence that when she was six years old and at school,[76] she was at the Queenstown home with the accused when her mother, TT and older siblings were not present. She said her mother had gone out to do the shopping and her siblings had gone with her.[77]
[76] T 54.6-8.
[77] T 50.2-10.
She said she walked into the lounge room and the accused was sitting on the left side of the couch watching sport on television. She remembered the accused closing the door. She sat on the other end of the couch. She said the accused pulled her on top of him and made her lie ‘head to toe’, such that she was lying with her stomach on his chest, with her head facing his legs. She believed she was ‘propped up’.[78] The accused had his back against the left-hand armrest of the couch with the rest of his body lying on the couch.
[78] T 52.35.
SS said the accused pulled down his pants and pulled down her pants, started licking her vagina and made her put her mouth on his penis.[79] She thought the latter had happened first.[80]
[79] T 49.28-34.
[80] T 52.15.
She could not remember either her pants or the accused’s pants being taken all the way off. The accused did not remove any of her other clothing.[81]
[81] T 52.8-12.
SS described the accused holding her head and guiding it down onto his penis. She tried to pull away but he guided her head to go back. She said ‘he wasn’t very rough but he was very persistent’. He had his other hand on her waist.[82]
[82] T 52.16-30.
She said that the accused guided her head to move up and down while his penis was in her mouth. His penis was in her mouth ‘not very long’ and he was licking her vagina for ‘not long’. This was happening at the same time.[83]
[83] T 53.1; T 53.6-11.
She could not remember the accused saying anything to her, or that she had said anything to the accused. She remembered feeling very uncomfortable.[84]
[84] T 53.12-19.
The incident had ended after about a minute or two when her mother came home from doing the shopping. She remembered hearing the car come home; she said she got up off him, pulled up her pants and left the room. The accused had not said anything to her before she left. She didn’t say anything to him afterwards as she was scared it would happen again. She did not tell her mother about this incident when she came home because she was scared she wouldn’t believe her.[85]
[85] T 53.20-54.4.
The accused denied ever touching SS inappropriately, or of performing an act of cunnilingus on SS or of making her perform fellatio upon him at any time when they were living at the Queenstown home.[86] He admitted that there were times when he was home alone at Queenstown with one or some of the children, being for two nights when TS was in hospital having TT and on other occasions when TS went shopping and did not take all of the children with her.[87] He said he had been alone in the Queenstown house with SS ‘most probably more than once’.[88] He said there were occasions when he and SS would be alone in the lounge room of the Queenstown home and they would be watching television.[89]
[86] T 127.25-36.
[87] T 127.37-128.9.
[88] T 150.4-8.
[89] T 156.13-15; T 160.19-28.
The accused said that he had a particular interest in and loved his sports. He said he watched sport on television as well as watching JS and T play sport.[90]
[90] T 139.20-34.
In cross-examination the accused said that on those occasions that TS left him alone in either the Queenstown or Elizabeth Downs home with the children while she did the shopping, she would only be gone for short periods of between 15 minutes to one hour. He said she would not leave the children alone with him for whole days.[91]
The second uncharged act - moving furniture[92]
[91] T 150.23-151.9.
[92] The evidence ultimately given by SS with respect to this incident is equivocal as to whether it was, in fact an uncharged act, in the sense of being an uncharged act of indecent assault, or rather innocent conduct which was misinterpreted by SS.
SS gave evidence that when the family moved from the Queenstown home to the Elizabeth Downs home she and the rest of the family assisted with the move.
She recalled helping move the furniture into the house and in particular helping to move the mattress into the main bedroom. T was in the room with her at the time. She said that the accused had attempted to grab at her bottom, but did not make contact with her. She said:[93]
He had just gone to grab it. I don’t know if he was moving out of the way or not but, yep, I had seen it and that’s all I can remember.
[93] T 55.28-30.
She said her mother had arrived at the home with some more furniture.
The accused agreed that when the family moved from Queenstown to Elizabeth Downs they had not hired removalists and instead the family had all helped with the move. He had no memory of SS moving anything into his bedroom at Elizabeth Downs.[94] He denied that he attempted to grab SS’s bottom at a time when they were moving furniture into the Elizabeth Downs house, even as a sort of joke.[95]
[94] T 141.32-142.5; T 168.19-31.
[95] T 168.32-37.
On the basis of the evidence given by SS as to what occurred, there is insufficient evidence to support a finding that the accused had intended to, but did not, grab SS’s bottom at this time. I mention this alleged incident simply for the sake of completeness.
The third uncharged act - bathroom incident
SS gave evidence that she could remember having a bath in the bathroom of the Elizabeth Downs home one night when the accused came into the room. She said she usually bathed with the door open in case her mother needed to come in to check on her.
She said the accused knelt beside the bath and used his hand to rub up one thigh, slowly across her vagina, and then down the other thigh. This happened very quickly, for only about five seconds.[96] He touched her vagina externally.[97]
[96] T 57.1-16.
[97] T 81.6-9.
This was the only occasion that the accused had ever helped wash her whilst at the Queenstown or Elizabeth Downs homes[98] and by this stage she was old enough to wash herself. She said her mother would only come in to the room to wash her hair.[99]
[98] T 56.4-14.
[99] T 58.7-10.
She said this incident occurred only a few months after they had moved to the Elizabeth Downs home. She could not recall the accused saying anything to her during this incident or as he left or of her saying anything to the accused. She said the incident made her feel uncomfortable and she got out of the bath straight away.[100]
[100] T 57.23-30.
In cross-examination SS said she believed her mother was home at the time cooking dinner, as she always had her bath when she was doing dinner. She said her mother would occasionally check on her when she was having a bath to see if she had not rinsed her hair properly and that she would occasionally knock before coming in.[101]
[101] T 80.28-81.5.
TS said that when SS was aged six she would poke her head in to check on SS if she was in the bath to make sure things were okay.[102]
[102] T 103.11-18.
The accused gave evidence that TS would ask him to check on the children (and he named SS and JS) when they were having their bath to see if they had rinsed their hair properly.[103] He said he would pop his head in to see if they had rinsed their hair properly. Otherwise he would not look in on the children in the bath or help them with their baths.[104]
[103] TS was not asked to confirm or deny this in cross-examination.
[104] T 132.32-133.1.
The accused denied ever touching SS when she was in the bath in the manner that she claimed.
In cross-examination the accused said that when he was asked to check on SS in the bath he would pop his head into the bathroom and ask her whether she had rinsed her hair. He would be able to see her naked body, but only ‘waist up, because of the high bath’.[105]
[105] T 165.5-17.
He said he did not step all the way into the bathroom, but he would just put his foot in, so he could make sure she was in there and washing her hair.[106] The following exchange occurred in cross-examination:[107]
QWhen you were checking on her about rinsing, was there any reason why you didn’t simply knock and ask her from the door without having to go in.
AOn occasions I did.
QWhat about the other occasions when you did go into the bathroom, why did you do that.
ABecause she didn’t respond, you know when you knock on the door, you just, you know, pop your head on (sic).
[106] T 166.4-18.
[107] T 166.33-167.2.
When it was suggested to the accused that this was the first time he had raised the fact that he would knock on the door and then only enter the bathroom if SS did not respond, the accused said (with respect to why he had not said anything previously about knocking):[108]
I – no, I hadn’t, but, of course, every time I’d walk in I’d knock on the door first. ‘SS, you know, have you washed your hair’. If no response, open the door, ask her. But this was a couple of times. It wasn’t like a regular occurrence to go check if she’s rinsed her hair.
[108] T 167.37-168.4.
Count 4
SS gave evidence that one day she had gone outside to play at the Elizabeth Downs home and was running around outside. The accused was outside smoking. She said he was sitting on an air conditioning vent located between the kitchen and the lounge room.[109] SS drew the location of this vent on Exhibit P2.
[109] T 54.25-34.
SS said she remembered stopping beside the accused although she could not recall why. She said he pulled her closer to him by her arm, unzipped his jeans, pulled out his penis from where the zip sits and used his left-hand to hold the back of her head and guide it down onto his penis.[110] She then moved her head up and down on his penis for between 10-30 seconds.[111] She could not remember anything being said by the accused either before or during the incident.[112] She had tried to pull her head away but he guided her back.
[110] T 60.11-29.
[111] T 60.33-34.
[112] T 58.33-35; T 60.6-8; T 61.22-25.
SS said this incident stopped when, she believed, her mother came out to join the accused for a smoke. She said that she guessed the accused heard what she thought was the front door open. She said she then moved away and walked down the side of the house to JS’s room.[113] She did not tell JS about what had happened because she felt uncomfortable about it and did not think anyone would believe her as she was so little.[114]
[113] T 61.4-11.
[114] T 61.12-16.
SS gave evidence that this was the only time she had ever seen the accused smoking while sitting on the air conditioning vent and that the accused and her mother would generally smoke outside under the back verandah where there was an outdoor seating area. She said her mother also occasionally smoked on the front porch. She said occasionally they would smoke at the air conditioning vent, but only if they had people around.[115]
[115] T 61.32-62.4.
TS gave evidence that she smoked between 10 and 20 cigarettes per day, both during the time they lived at Queenstown and at Elizabeth Downs. She said the accused was also a smoker and that he smoked ‘around the same amount’ as she did.[116]
[116] T 99.5-27.
TS said that she never smoked inside and that at the Elizabeth Downs house she smoked out on the back verandah. She said sometimes she and the accused would smoke together and that they ‘mainly’ smoked out the back. She also gave evidence that she had never seen the accused smoke in any other area of that house.[117]
[117] T 99.28-100.15.
The accused denied this incident occurred.
The accused gave evidence that he smoked during the time he lived at the Elizabeth Downs house and that TS also smoked, he said ‘like a train’.[118] He said most of the time he and TS would smoke together because they would share the same packet and would not have their own and that they would smoke out the back under the verandah.[119] He said they smoked Escort Red, which came in packs of 35 and they would smoke a packet a day between the two of them.[120]
[118] T 129.24-27.
[119] T 129.36-130.3.
[120] T 161.14-16.
The accused was asked in cross-examination where they would put the pack of cigarettes that they shared. The accused described a spot as you walked out of the kitchen door in the Queenstown home on the top of the dryer. The following exchange then occurred:[121]
QThat’s where the cigarette packet was kept.
AYeah, we’d keep them there or they’d be in her handbag or out on a ledge out the back, just random spots really, no specific place that we’d keep the smokes.
QBut is it the case that if you both used the same packet you would want it in a spot so you both could access it at any time. So if TS left for instance, you wouldn’t want her to take her cigarettes with her.
AShe’d leave a couple for me, you know.
QWhat about the Elizabeth Downs house, was it the same sort of arrangement there.
AYeah.
[121] T 161.24-35.
The accused said he would also smoke under the carport if he was working on the car.[122] He said that if they had guests over he (and TS) would smoke in the pergola area between the kitchen and lounge room (that is, near the air conditioning vent), or he may smoke in that area if he was tidying up in the backyard and walked into that area while he was smoking.[123] He said the only time TS would smoke in that area was if there were guests over.[124]
[122] T 162.4-9.
[123] T 163.2-10; T 164.14-20.
[124] T 164.21-24.
The accused was asked if there were ever any occasions he could recall where he had been sitting on the air conditioning vent smoking and he said no.[125] He said:[126]
[125] T 163.11-13.
[126] T 163.15-164.7.
ANo, it was pretty uncomfortable – well, would have – you know, it had like fins that came out and everything from the air-conditioning vent bit, like – yeah, it wouldn’t have been comfortable to sit on.
QBut could you have actually sat on it.
AIf I pushed myself up onto it, yeah.
QSo how tall was it compared to you.
AI don’t know, I never really sized it up.
QWhat part of your body would it go up to.
AIf I was standing up most probably my waist sort of thing.
QYour waist.
AYeah.
QRoughly how tall are you.
A5' 10" and a half, 5' 11".
QAnd the top surface of the air-conditioning box, if I can call it that –
AYes.
Q– was that just a horizontal surface.
AYes.
QHow wide was it.
AI don’t know, 30, 40 cm, I’m not exactly sure. Like I said, I never really sized up the air-conditioning vent. It wasn’t –
QYou could certainly sit on it.
AYeah, you could.
QWhy do you say it would have been uncomfortable.
ACold metal surface – I don’t hold much weight so, you know, I’m basically bone so, you know, sitting on a metal – cold metal surface wouldn’t have been something that was very comfortable.
He disagreed that there were ever occasions when he sat on the air conditioning box.[127]
[127] T 164.10-13.
Evidence as to ‘complaint’
SS gave evidence that maybe a year after they had moved into the Queenstown house she had tried to tell her mother that the accused ‘had tried making me touch his penis’ but that her mother didn’t believe her at the time, because she was so little. She then said that she had not used those words; rather she had said the accused had tried to make her touch him and that she had then pointed to her crotch area. She said her mother asked her if she was lying and that she had told her she was telling the truth, she was not making it up and was not lying.[128]
[128] T 62.11-33.
SS said her mother had told her to leave it with her and that she would deal with it.[129] Nothing came of this and it made her feel uncomfortable. She said she ‘felt like she didn’t believe me and that I couldn’t tell anyone again’.[130]
[129] T 63.8-10.
[130] T 64.9-20.
SS gave evidence that she spoke to her mother again about this. She said it was only a month or two later and by that time they had moved to Elizabeth Downs.[131] She said this was after the air vent incident and ‘it was I think a week later’.[132] She did not tell her mother about that incident and said ‘No, I never gave her any specific answers’.[133] She could remember hearing her mother speaking to Families SA and to the police on the phone thereafter.[134]
[131] T 63.11-15.
[132] T 64.21-26.
[133] T 64.27-30.
[134] T 63.21-64.3.
She said that she had reported the alleged abuse to the police in 2016 when she was 18. She described having had her daughter about two months beforehand when she saw the accused at the Craigmore shops. She said she went into shock and had a panic attack. After speaking with her partner and mother she ‘went to the Elizabeth Police Station and reopened my case’.[135]
[135] T 65.4-19.
In cross-examination the following exchange occurred:[136]
[136] T 70.30-71.16.
QYou told us that you, and please correct me if I’ve got this wrong, you tried to tell your mother some years before –
AYep.
Q– about what happened to you.
AYes.
QYou told her that (the accused) had touched you and had tried to touch you.
AYep.
QThat was in about 2009.
AI opened – I first opened my case in I think it was either 2009 or 2010, so it would have been at least a year or two earlier.
QYou didn’t tell her about this incident by the air vent, did you.
ANo, I didn’t.
QYou regarded that, I take it, as much more serious than touching you or trying to touch you.
AYes.
QAs I understand, you didn’t tell her about that because you didn’t think she would believe you.
AI didn’t feel like –
QThat’s what was in your head.
AI didn’t feel like anyone would because I was so young at the time.
There was no objection to this line of questioning, albeit SS had not given evidence that she had told her mother either that the accused had touched her or tried to touch her, rather the only evidence she had given was that she had told her mother that the accused had tried to make her touch him.
Later the following exchange occurred in cross-examination:[137]
[137] T 71.38-72.22.
QWhere did you tell mum he had touched you.
AI had just said that he had tried to touch my vagina region.
QAnd did you give her a specific occasion or just generic.
AJust generic.
QIf you could tell her that why couldn’t you tell her about what had happened on the air vent.
AI don’t know.
QYou must have assumed that she would believe you if you told her generically that he had tried to touch you inappropriately.
AI was more scared to tell her than anything because nothing got done about it the first time.
QDidn’t it occur to you that if you told her there had been another incident she might believe you this time or didn’t you think about it.
AI didn’t really think about it.
QYou knew your mother could put a stop to it, didn’t you.
AYes.
QBut you didn’t persist with your mother to get it stopped.
ANo.
Upon careful analysis of this evidence it is apparent that SS must have been referring to the occasion when she ‘revisited’ the alleged abuse with her mother, after the alleged air conditioning vent incident.
Later in cross-examination the accused’s counsel suggested to SS that she had not told her mother about the ‘first incident’ at Queenstown because ‘there was nothing to tell’.[138]
[138] T 73.9-20.
SS responded:[139]
AI didn’t tell her because I was scared of (the accused).
QWhat, because he’d smacked you when you were naughty.
ABecause of what he had done. The fact that he was aggressive and that I was scared he would do it again.
QWell, not if you went to mum.
AMore than likely not but I didn’t know that, I was little.
[139] T 73.21-27.
SS agreed that she had never told her mother about ‘the three more serious ones’ but said ‘That doesn’t mean I made it up at all.’[140]
[140] T 84.24-26.
In re-examination SS clarified that there were two occasions she had tried to speak to her mother about what the accused had done to her. She said the first occasion was in Queenstown and the second occasion was in Elizabeth Downs. She said the police became involved ‘within that week’ of the second occasion.[141]
[141] T 86.7-16.
TS gave evidence that when she was living at Craigmore, and at a time when the accused was not yet living with her, SS had told her ‘that he was doing things to her’. When TS was asked to elaborate as to what were the exact words SS had used, the following evidence was given:[142]
AShe – I’m pretty sure she used the words that he was hurting her.
QDid she do anything with her hands when she said that.
AShe said too that he had touched her.
QDid she elaborate on where.
ANo, she didn’t.
[142] T 100.30-101.4.
She said that she had asked her, in a calm tone, if what she was saying was correct, and that she did not believe her. She said that ‘(A)fter a while she said that she had made it up’ and that thereafter she had done nothing more about it at that time.[143]
[143] T 101.5-22.
During examination-in-chief TS was not asked about any other occasion when SS had told her about anything done to her by the accused.
In cross-examination TS was asked if when SS had spoken to her at Craigmore she had given any detail about how the accused was hurting her and she said no.[144]
[144] T 106.34-38.
TS was asked whether SS had ever ‘revisited’ that and she said that she had when she was older, around 10 years old.[145]
[145] T 107.1-6.
TS gave the following evidence:[146]
QLeaving aside what SS had said to you at Craigmore, you saw – in the ensuing months in different residences – no sign of her not being near (the accused).
AYes, there was.
QIs that because he disciplined her.
ANot that I know of, no.
[146] T 108.10-15.
TS was not asked in cross-examination whether she had ever told the accused what SS had told her about him.
In re-examination, TS was asked about the occasion when SS had ‘re-visited’ the conversation with her about the accused. She said that at that time SS had told her ‘that he had been abusing her’. This conversation had occurred in the kitchen of the Elizabeth Downs home[147].
[147] T 109.2-7; T 111.13-18.
When asked what SS had specifically said to her she said: ‘She told me that he had been physically abusing her’.[148]
[148] T 109.8-10.
Later in re-examination TS gave the following evidence:[149]
[149] T 110.26-111.11.
QWhat did she say.
AShe said that he had been abusing her.
QDid she elaborate on what the abuse was.
ANot specifically at that time.
QDid you ask her what she meant by that.
AYes.
QWhat did she say.
AShe said that he had been touching her inappropriately.
QDid she say where.
AYes.
QWhere.
AIn her ‘private area’.
QDid she say those words ‘private area’ or did she use different words.
AWell, that’s how I taught her to explain those so she would have used those words.
QSo she would have said in her ‘private area’.
AYes.
QWhen she was talking to you did she use her hands at all.
ANot that I can recall.
QAnd is it the case that police became involved at some stage after that.
AYes.
The accused gave evidence that TS had told him about the allegations made by SS at Craigmore when he had come ‘home from work one day’. He believed SS had told TS about it that day.[150] He said that TS had told him that it was okay; she had questioned SS about it, and that SS had said she was lying. He said SS was about four at the time. He said that was the last he had heard of any complaint by SS until about 2016.[151]
[150] T 175.6-14.
[151] T 133.23-33.
In cross-examination the accused said he was positive that this conversation had occurred at Craigmore as he had a distinct memory of standing outside the Craigmore house behind the gates, in front of a double garage. He said TS had told him that SS had said that he got her to touch his ‘penis’, being the word used by TS. He said he was ‘freaked out’ by what she had said and that it ‘shocked the crap out of’ him, such that he could not forget it.[152]
[152] T 170.9-171.23; T 172.7-17.
He said he had not spoken to SS about the allegation as she was only four or five, it was not his place to speak to her and that SS had been really upset about having made up the story.[153]
[153] T 171.29-172.6.
The accused said that SS used to make up ‘random stories’, such as of things she had done, for example, like when she was at the park, or about imagination ‘Unicorns flying around my bedroom’, but nothing as serious as talking about someone being made to touch someone’s penis.[154]
[154] T 173.11-24; T 174.5-14.
Admissibility and use of ‘complaint’ evidence
Section 34M of the Evidence Act 1929 provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The prosecutor submitted that although it was open to me to use the complainant’s evidence that she had told her mother at the Queenstown house about the accused’s conduct towards her as ‘complaint evidence’, he did not ask me to do that. He submitted that rather than treat this evidence as a ‘complaint’ within the meaning of s 34M of the Evidence Act, I could use the complainant’s evidence as an account that had been given by her about sexual abuse.
The issue as to the admissibility of this evidence and what use was sought to be made of it ought to have been raised and determined prior to trial during the voir dire. For whatever reason, it was not.
No objection was raised as to the admissibility of the evidence of either the first and/or second alleged conversations between SS and her mother TS at which time SS alleged the accused had sexually abused her.
During his closing address the prosecutor submitted I could use the evidence for three (non-propensity) purposes namely:
1.To explain why nothing came of the matter until 2009/2010 when the matter was first reported to police, namely because TS did not believe that SS was telling the truth and that SS ‘ultimately relented’ in this respect. It was submitted that SS knew her mother did not believe her and had done nothing when first told by her of the alleged abuse, thus explaining why she did not complain until 2009.
2.To explain why SS continued to submit to the accused, namely because she felt helpless to stop him and to explain why the accused felt emboldened to continue abusing SS, in a brazen manner in the bathroom and near the air conditioning vent of the Elizabeth Downs home, knowing TS had not believed SS before.
3.As to the accused’s credit. It was submitted that faced with this shocking allegation it was implausible that the accused had then said nothing to SS about it, rather than taking positive steps to find out from her why she had made the story up, if in fact, it was untrue.[155]
[155] See submissions generally at T 184.26-34; T 185.17-38.
In her closing address, counsel for the accused submitted that she had not understood the prosecution was intending to lead ‘evidence of a first complaint’, that there were other possible uses for the evidence as put by the prosecutor save that she disagreed with any suggestion the evidence could be used with respect to the accused’s credibility. She submitted that the accused’s reasons for not raising the issue with SS were entirely credible and consistent with what may have been expected with someone in his situation.[156]
[156] See submissions at T 202.1-24.
Albeit not articulated during the accused’s counsel’s closing address, the manner in which the complainant was cross-examined had, as a focus, an attempt to discredit the complainant by virtue of the fact that the complaints made by SS to her mother about the accused’s alleged conduct made no reference to the specific acts alleged in Counts 2, 3 and 4.
In R v P, S[157] the Court of Criminal Appeal summarised the general principles relating to complaint evidence.
[157] [2016] SASCFC 97.
Nicholson and Lovell JJ (with whom Parker J agreed) said:[158]
Section 34M(3) is directed to the making of an initial complaint. The question of whether evidence can be admitted as an “initial complaint” depends on a close examination of the facts involved. It is fundamental to the determination of admissibility to ascertain to whom the complainant spoke, when the conversation occurred and, as precisely as possible, what was said during the conversation.
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”. However, what was said must encompass generally the conduct alleged in a particular count. In rare cases, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to only the conduct charged.
Section 34M(6) contemplates that an “elaboration” of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any “elaboration” of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.
[Footnotes omitted; My emphasis]
[158] [2016] SASCFC 97 at [22]-[24].
The Court in R v Jones observed as follows:[159]
While s 34M renders admissible evidence of complaint, it is only the “initial” complaint that is rendered admissible. In one sense, there can only be one initial complaint; however the section also permits evidence to be adduced of a later complaint provided that it is “by way of elaboration” of the earlier complaint. Accordingly, unless a later complaint is an elaboration of the initial complaint, evidence can only be led of one complaint and that complaint must be the complaint first in time. An initial “complaint of an alleged sexual offence” must be referable to the offence but need not necessarily refer to the details of the occasion charged in the count under consideration. It is sufficient if it is relatively general provided that it encompasses, and in that sense, is referable to, the charged offence.
[159] [2018] SASCFC 80 at [68].
For the evidence (of either alleged conversation between SS and her mother as to the accused’s conduct towards her) to be admissible pursuant to s 34M, it must be capable of demonstrating consistency of conduct on the part of the complainant and of informing the jury (or trier of fact) as to how the allegation first came to light.[160]
[160] R v S, DD (2010) 109 SASR 46.
For complaint evidence to be capable of establishing consistency in relation to an offence charged in a particular count, it must be referable to that offence.[161]
[161] R v Maiolo (No 2) [2013] SASCFC 36, per Peek J (with whom Kourakis CJ and Stanley J agreed).
SS gave evidence that the acts that she had described were the ‘sum total’ of what she recalled in terms of the accused’s alleged sexual offending against her, in other words, she had no recollection of any other acts of alleged abuse.[162]
[162] T 84.13-18.
The first incident of alleged abuse that she could recall, being an uncharged act, was the incident in the main bedroom at Queenstown when on SS’s version, the accused made her touch her vagina. The next alleged incident comprised Counts 2 and 3, being the allegations of cunnilingus and fellatio which occurred in the lounge room at Queenstown.
As such, if there was any complaint made by SS to TS in Craigmore (as described both by TS and the accused, albeit in very different terms), being where the family lived prior to moving to Queenstown, such complaint could not, on any interpretation, be referable to a charge on the Information.
If, as SS claims, this conversation occurred in Queenstown, SS said she told her mother that the accused had been making her touch him and she said she had pointed to her crotch area to indicate where. TS recalled SS telling her the accused was ‘hurting’ and ‘touching’ her, although she did not say (or insinuate by any hand gestures as to where).
SS’s description of the first uncharged act contains no reference to her being made to touch the accused in any way, or of the accused touching her, rather it referred to an occasion where she alleged he made her touch her vagina. Neither of Counts 2 or 3 involve only ‘touching’ of the accused by the complainant (or vice versa), rather they involve much more serious allegations. However, the extent to which this may be relevant when considering how or in what terms a young child (of around five or six) may describe or interpret certain conduct can also not be overlooked.
A further complication is that TS gave evidence that after asking SS over a period of ‘a few days afterwards if what she had said was true’, SS had told her that she had made it up and it wasn’t true.[163]
[163] T 101.12-19.
Despite the prosecutor opening on the version to be proffered by TS, the complainant was not asked during her evidence, whether at any time she had told her mother that she had made up this allegation and if so, why she had told her that.
Given the inconsistencies in the evidence of this conversation as described by SS and TS, I cannot be satisfied that a conversation occurred between them (at either Queenstown or Craigmore) of a type which is admissible as an ‘initial complaint’ pursuant to s 34M of the Evidence Act.
As to any later ‘complaint’ made by SS to her mother, the evidence SS gave during cross-examination as outlined at paragraph 150 can only relate to that second alleged conversation.
SS said that she had not said anything specific as to the accused’s conduct at this time, only that ‘he had tried to touch my vagina region’.[164] During re-examination TS said, as to the content of this later conversation, that SS had said the accused had touched her inappropriately, in her private area.
[164] T 72.1-2.
The effect of the evidence given by SS (and, to a certain extent, by TS) was that this conversation occurred after all of the alleged offending.
Insofar as it may be suggested this was an ‘initial complaint’, again the issue is whether its content is referable to a count on the Information. The same difficulties arise having regard to the nature of the conduct alleged in Counts 2, 3 and 4 when compared to the evidence as to what was said during this conversation (on either version).
Further, insofar as there was any earlier ‘complaint’ (either at Queenstown or Craigmore), this second conversation could only be categorised as an ‘elaboration’ of that earlier ‘complaint’, if the details as to what was said during this conversation went beyond, or were in addition, to that as communicated by SS to her mother on the first occasion. Given the inconsistencies in the evidence of SS and TS as to what was said during each conversation, I cannot be satisfied that this second conversation is an ‘initial complaint’ within the meaning of s 34M of the Evidence Act such that it is admissible on that basis.
The evidence of the first and second conversations was adduced by the prosecutor during examination-in-chief of the complainant. It is arguable that such evidence was not admissible at that time, it not being complaint evidence pursuant to s 34M. Although not expressly stated as such, the evidence was sought to be used in cross-examination to discredit the complainant in terms of the consistency of her accounts (namely, why was it that these conversations did not include the details of either the first uncharged act or the charged counts). The evidence can be used for that purpose and to explain why SS did not report the details of the alleged offending until many years later, namely that she did not think she would be believed.
Further, having regard to the accused’s evidence that he knew SS had complained to TS and that TS did not believe her (and/or that SS had reneged on what she had said), the evidence of the first conversation is admissible as a possible explanation as to why the alleged offending occurred thereafter – namely the accused knew that TS did not believe SS and would not otherwise act on her allegations.
The evidence of the second conversation can also be used to provide an explanation as to why any alleged offending was reported to police in or about 2009.
I pause to note there is no evidence as to what SS in fact reported to the police in 2009.
Closing addresses of counsel
The prosecutor acknowledged that this was effectively an ‘oath against oath’ case, although it was submitted that the evidence of JS corroborated that of SS as to the first uncharged act, in the sense that it was consistent with there being an occasion (or occasions) when the accused was alone with SS and T on the bed in the main bedroom of the Queenstown house, something categorically denied by the accused.
The prosecutor submitted that SS presented as an intelligent, articulate witness, someone who was quick to correct any errors in her evidence and who did not seek to embellish her evidence. In this respect he emphasised that SS had fairly acknowledged the accused’s contributions to the running of the household and had not sought to over-emphasize the frequency with which she was disciplined by the accused or the manner of that discipline.
He highlighted how the three counts as described by SS, and the first uncharged act, contained peculiar details, that her recollection of each was distinct, graphic and detailed. He submitted that this was not a case where SS may be mistaken about the allegations, rather it was a case about the complainant’s honesty, as it was inconceivable she could be mistaken as to the allegations. He submitted that when her evidence was viewed as a whole, she had presented as an honest and sincere witness, whose allegations contained ‘a ring of truth’.
He submitted there was the opportunity for the offending to have occurred in the manner as described by SS, noting that there was evidence (even on the accused’s account) that the three children (including SS) were alone with the accused at times during TS’s admission to hospital for TT’s birth. There were occasions when the accused was home alone with SS (or with the other children) when the family lived at Queenstown and TS went out to do some shopping.
Further it was submitted that the fact SS had told her mother about the accused’s behaviour towards her, and SS knew she had not been believed, nor was anything done in response, explained why she had not then complained to TS of the specific counts. Further, it was submitted that this, in combination with the fact that SS was scared of the accused as he would smack her on occasions when she had misbehaved, or had not done what her mother had told her, provided an explanation as to why SS submitted to the alleged offending and may also explain why the accused continued to offend in a brazen manner.
The prosecutor submitted that it was implausible that the accused, knowing of what SS had told her mother about him, had not raised this at all at any time thereafter. He referred to the accused’s description of SS, namely that when she was ‘real little she was just the sweetest little kid’[165] who ‘was a good kid’, and was often picked on, called names and had her hair pulled by her older siblings.[166] The accused had said he would yell at the older children and tell them to stop picking on her.[167] He submitted that the accused knew SS was vulnerable, he knew her mother had done nothing in response to her complaint about his behaviour and that she was the ideal target for his abuse.
[165] T 155.6-7.
[166] T 153.25-32.
[167] T 154.28-30.
It was submitted that although the accused had made some concessions about certain times when TS had entrusted him with the care of the children, when his evidence was carefully scrutinised, the accused had tried to minimise those occasions, particularly in terms of the time he was alone with the children at and immediately after TT’s birth.
Two particular aspects of his evidence were highlighted. The first related to the accused’s evidence about the times he may have been alone with SS and T in the main bedroom at the Queenstown house – namely his denial that there had ever been any such occasion and a later concession that he had in fact been alone with them in that room playing on the computer. It was suggested that the reason the accused gave for this apparent change in his evidence, namely that he had not properly understood the question, was ‘poor and lazy at best’ and that the fact that he had changed his evidence from an adamant denial to something completely different, meant I should have serious concerns as to his credibility.
The second aspect of the accused’s evidence highlighted by the prosecutor was that with respect to the air conditioning vent and specifically the evidence given by him as to why it was that he never sat on it. The prosecutor described this evidence as ‘bizarre’.
The prosecutor also criticised the accused’s evidence as to the manner in which he would check on SS in the bath at Elizabeth Downs and noted this to be another example of where the accused’s evidence changed as it developed.
Counsel for the accused emphasised that SS had a recollection of only four incidents involving the accused – noting that Counts 2 and 3 effectively related to the one incident, and disregarding the incident when she had thought the accused may have been trying to grab her bottom. Importantly there were no incidents recalled by her at Craigmore – yet both TS and the accused said that the occasion when SS first complained to TS about the accused’s behaviour towards her was at Craigmore.
It was submitted that one of the reasons advanced by the prosecution as to why SS submitted to the alleged offending, namely the fact the accused had disciplined her, had no real basis, when in fact all three siblings were disciplined in the same manner, which was by smacking only, and only when they had misbehaved. If the accused was the predator as described by SS, why, given his many years as her step-father and multiple opportunities for offending, were there ‘only’ these four incidents?
As to the first uncharged act – it was submitted that if in fact JS had walked into the room, on SS’s version, it must have been before the accused asked her to go to the end of the bed and touch her vagina, as he said he had seen SS, T and the accused lying on the bed together. She submitted that the accused must therefore have been acutely aware of the possibility that JS would enter the room, without knocking, being inconsistent with the accused then taking the risk and behaving in the manner as alleged.
As to Counts 2 and 3, it was suggested that if SS had been uncomfortable after the bedroom incident and scared of the accused, why then did she go into the lounge room and sit next to him on the couch when she was home alone with him, and she noted that SS was unable to say why she had done so. Further she submitted that the fact the accused said nothing to her when the incident stopped due to TS’s arrival home - not, ‘keep this to yourself’ or ‘don’t be naughty and tell mummy, you might get a smack’ was inconsistent when viewed against the manner in which the prosecution case had been pitched.
Counsel for the accused noted that during cross-examination SS had agreed with the proposition that had she told her mother about the offending she would have, or might have put a stop to it, but nevertheless she had not told her.[168] It was submitted that this made no sense, even though TS had not believed SS in the past and thus reflected poorly on SS’s credibility.
[168] T 85.8-17.
With respect to the alleged incident in the bathroom at Elizabeth Downs, it was submitted that the evidence established that SS usually had her bath at a time when her mother was home and was cooking or otherwise occupied. As such, the accused had plenty of opportunity to prey on SS in this manner – but there was only one such incident alleged (and recalled). Given SS’s age it was non-sensical that she would not have told her mother about this because she was scared of the accused.
Further, it was submitted that the circumstances of Count 4, it having allegedly occurred at a time when TS was at home, in an area just outside a kitchen window, and in a location adjacent to the back verandah where the couple usually smoked (and therefore often frequented), made the alleged offending not only brazen, but ‘suicidal’, such that SS simply could not be believed.
Assessment of the Witnesses/Analysis
The complainant’s evidence (SS)
I have carefully scrutinised the evidence of the complainant, paying particular regard to those aspects of her evidence which may potentially give rise to a doubt as to her credibility or reliability. Her evidence is critical to my findings, noting the time that has passed since the alleged offending and the forensic disadvantage suffered by the accused in this respect.
SS gave her evidence in a sincere, calm, quiet and steady manner, and at times during cross-examination became quite distressed, particularly during questioning on the issue as to why it was that she had not told her mother about the specific details of the offending.
She appeared to be doing her best to provide an accurate recollection of events to the Court and she corrected herself on occasions when she realised she had made an error. She did not seek to paint the accused as ‘a monster’, instead giving him credit for his contribution towards the household chores and describing his disciplining of her as no worse than that of her siblings and as a response to her poor behaviour.
SS recalled peculiar details associated with the alleged offending. Her recollection of the air conditioning vent in a location albeit not identical to, but consistent with that as acknowledged by the accused, at a house she had lived in for several years only as a child aged under 12, was unusual. On all of the evidence, the air conditioning vent was in an area which was infrequently utilised by the family, generally when the family had visitors over. Her ability to remember the air conditioning vent at all in the circumstances supports a conclusion that something of note occurred, that has stuck in her memory, at, near or concerning that air conditioning vent.
Similarly, SS’s recollection of the accused closing the lounge room door immediately prior to the incident the subject of Counts 2 and 3, her description of how she and the accused were positioned on the couch and her recollection of him pulling down her pants (rather than taking them completely off) was quite compelling.
This was not a case where extensive evidence was called from SS to corroborate circumstances surrounding the alleged offending.
However, SS related the first uncharged act to the time at or immediately after TT was born, being a time when the accused was looking after her and her older siblings. There was evidence to support a finding that there was the opportunity for this act to have occurred, as the accused by his own admission, looked after the children for two nights when TS was in hospital.
As to the circumstances of Counts 2 and 3, SS recalled the accused watching sports on television. The accused gave evidence that he was interested in sport and enjoyed watching sport on television.
As to Count 4, there was no dispute that there was an air conditioning vent in the general area where SS described it was and there was no dispute that the accused was a smoker.
SS was asked to describe the furniture within certain rooms of the Queenstown and Elizabeth Downs homes, and both TS and JS said that her recollection in this respect was consistent with theirs, save that TS did not recall there being a television in the main bedroom of the Queenstown house (nor did the accused), and JS was only asked about the furniture in the main bedroom at Queenstown.[169]
[169] T 92.20-93.38; T 115.3-9.
SS said she was six and at school when Counts 2 and 3 occurred. Although she gave evidence as to the schools she had attended, she was not asked to elaborate as to which school she was attending at the time of Counts 2 and 3 or how otherwise she pinpointed the offending to the stated timeframe.
SS was not asked which school she was attending at the time of Count 4, nor was she asked to better identify its timing by reference to any particular event such as when they moved to Elizabeth Downs, its proximity in time to the bathroom incident or, for example, how old C may have been.
That being said, there was an internal inconsistency in SS’s evidence as to when Count 4 occurred. As to the bathroom incident, SS described this as occurring ‘only a few months’ after the family had moved into the Elizabeth Downs house. She did not say precisely when Count 4 had occurred, save for it being at the Elizabeth Downs house. During examination-in-chief SS said she ‘wasn’t far from being eight years old’ when they moved from Queenstown to Elizabeth Downs.[170] However, in cross-examination SS was asked how old she was at the time of Count 4 and stated: ‘I was six at the time, between six and eight years old’.[171]
[170] T 54.14.
[171] T 71.19-20.
On the Information, Count 4 is particularised as having occurred between 30 April 2007 and 1 June 2007, namely when SS was aged 10.
SS may now be mistaken as to her age at the time, or confused, having regard to the passage of time.
Although SS was questioned as to her recollection of the layout of the Queenstown and Elizabeth Downs homes, this was done by reference to the plans that had been prepared by TS.
SS had no recollection of there being a window in the kitchen of the Elizabeth Downs home, facing the road and therefore overlooking the air conditioning vent, as described by both TS and the accused. This was something put to SS during cross-examination, thus supporting the inference that this was always the accused’s recollection (rather, than, for example, the accused simply having heard TS’s evidence on this issue and adopting it, as it assisted his defence).
SS had very little memory of what work the accused had engaged in from time to time, however this is explicable due to her relatively young age at the time. In this respect I note that TS only had a very general recollection of the accused’s employment during the relevant period.
SS could not recall any conversations with the accused during or immediately after the alleged offending, or precisely what he or she was wearing or the precise time of day these incidents occurred. It is understandable that SS may have no memory of the latter two matters, being seemingly unimportant and ancillary. However, the fact SS cannot recall the accused ever saying anything to her at the time of or immediately after any of the alleged offending is unusual. Even if the accused was emboldened to offend thinking TS would not believe SS if she complained, one may think it likely he would have said something like, ‘you’ll get a smack if you don’t do what I say’ or ‘there’s no point in complaining to mum, she won’t believe you’ or similar, having regard to the manner in which the prosecution case was couched.
It was suggested to SS in cross-examination that she had ‘revisited’ the matter as a means of getting compensation. Her initial response was that yes she had had counselling and antidepressants for this. However, when the question was rephrased, namely to suggest that she wanted financial compensation, SS responded immediately and in my view most genuinely, that no, that was not the case. She said ‘That hasn’t even crossed my mind, to be honest’.[172]
[172] T 81.13-23.
I reject any suggestion that SS has a motive to lie about the offending, namely as a means to obtain financial compensation. I remind myself that the absence of a motive to lie does not make the prosecution case any stronger.
Cross-examination of SS was not directed towards an attempt to discredit SS by reference to evidence that contradicted her account or inconsistencies in her evidence, whether they be internal inconsistencies or by reference to out of court statements made by her.
The only occasion during cross-examination when there was a reference made to a (potentially) prior inconsistent statement was a proposition put to SS in cross-examination that she had told the police that the accused had sexually abused her before the incident in the bedroom at Queenstown. She was asked:[173]
QBut you remember that you told police and the authorities originally that he had touched you sexually before he got you to do that.
AI can’t remember now, my memory is not so clear.
QPerhaps you don’t remember because none of that ever happened.
AI know that it did.
[173] T 73.2-8.
By the complainant’s response, it is uncertain whether she meant to convey that she could not remember having told the police what it was suggested she had told them, or whether she could not now recall whether the accused had touched her sexually before the bedroom incident. This was not pursued further in cross-examination and was not clarified in re-examination.
SS gave evidence that she knew her mother had not believed her when she first told her about the accused’s behaviour towards her.[174] She said that her mother ‘said to leave it with her and that she would deal with it’.[175] She explained that the reason she had not told her mother about the incident at the air conditioning vent was because ‘I was more scared to tell her than anything because nothing got done about it the first time’.[176]
[174] T 62.21-23.
[175] T 63.9-10.
[176] T 72.12-13.
I am satisfied that SS knew that her mother had not believed her when she first told her about the accused’s behaviour towards her and that, in SS’s mind, TS had not done anything to properly deal with what she had told her.
SS was asked in examination-in-chief what prompted the second conversation she had with her mother about the accused and said that this conversation had occurred ‘after the air vent incident, it was I think a week later’.[177] In re-examination she stated that the police became involved ‘within that week’ after this second conversation.[178] SS was asked in cross-examination when it was that she had first told her mother that the accused had touched or tried to touch her and said that it was ‘at least a year or two earlier’ before she first opened her case with the police in either 2009 or 2010.[179]
[177] T 64.24-26.
[178] T 86.12-16.
[179] T 71.1-4.
However, during examination-in-chief SS was asked how long it was after the first such conversation that the second conversation with her mother had occurred. She stated:[180]
ANot very long, I believe it was a month or two. We had moved into Elizabeth Downs by then.
QSo it was a while away.
AYes.
[180] T 63.14-17.
This was the first time during the evidence that SS was asked about the timing of the two conversations with TS complaining about the accused’s behaviour. Although SS may have been mistaken in relation to this, her initial response, it was markedly inconsistent with her subsequent agreement with the prosecutor’s suggestion that the second conversation was ‘a while later’ and the evidence she gave in cross-examination on this issue (outlined at paragraph 148) above.
I note that given the passage of time and SS’s young age, it is understandable that SS may now be unable to remember the precise timing of these conversations, or indeed of the alleged offending, however the discrepancy in this evidence is one of (potentially) several years.
SS gave evidence on numerous occasions both during examination-in-chief and cross-examination that she had not complained to her mother about the specific offending because she was too scared, both in the context of her mother not believing her and because she was frightened of the accused. She said she was frightened of the accused both because of the sexual abuse and because he would physically discipline her and her siblings. When doing so she used the terminology that the accused was ‘aggressive’.
The accused admitted he would smack the children, including SS, using an open hand and JS gave similar evidence.
Careful scrutiny of the evidence does not support a finding that the accused was ever overly ‘aggressive’ in his behaviour towards SS, in the sense of him being violent or destructive. However, viewed through her then eyes as a young child, SS’s description of the accused as ‘aggressive’ is not so much at odds with what she otherwise described as his behaviour towards her, on its own, to cause me to have any reasonable doubts about her credibility or reliability.
Much of cross-examination was dedicated to the complainant’s failure to complain to her mother of the acts comprising the charged counts, being allegations going beyond indecent ‘touching’, either of her by the accused, or of the accused by her.
I note what was said in R v Jones,[181] namely that the wording of s 34M of the Evidence Act does not prohibit a jury (and therefore a trier of fact) from taking into account the delay in making a complaint when assessing a complainant’s credibility.
[181] [2018] SASCFC 80 at [117]-[129].
There may be many reasons why a victim of sexual abuse does not complain about the abuse until after a period of delay, and then only complains at a particular time or to a particular person. There is no formulaic response that necessarily applies to a victim of sexual abuse.
Of course, there were obvious and critical differences in the timing and content of the first of these two conversations as described by SS and TS.
As discussed earlier, the cross-examination of SS on the subject of these conversations was conducted in a very general and imprecise manner. SS was not cross-examined as to whether in fact this first such conversation occurred in the Craigmore home, or if she had told her mother she had lied about what she had said, and if so, why.
TS was never asked if she had told the accused about the first conversation she had with SS about the alleged abuse, or why she had any distinct recollection of being at the Craigmore house, rather than Queenstown, at the time of this conversation.
SS agreed with a proposition put to her in cross-examination that ‘some years before’ she had told her mother that the accused had touched her and had tried to touch her.[182] She was not specifically cross-examined as to the location of, timing of and content of the first conversation she had with her mother about the accused’s alleged behaviour towards her.
[182] T 70.30-38.
The accused’s evidence was that TS had told him at the Craigmore home of the conversation with SS and that she had said that SS had told her that he had ‘got her to touch his penis’. In this respect the content of the conversation (albeit not the timing of it) as described by the accused is inconsistent with that described by TS and similar in effect, but not identical to, that as described by SS.
It is impossible to reconcile the differences in the evidence of SS and TS as to what was said during the first alleged conversation between them about the accused’s behaviour and where that conversation took place.
The mother’s evidence (TS)
TS presented as a modest and unassuming witness, who had a general, rather than detailed recollection of events. She corroborated aspects of the accused’s evidence, namely as to the existence of a window in the kitchen facing the road at the Elizabeth Downs house and the relatively limited occasions the accused was alone with T, SS and JS. She said she trusted the accused with her children.
However, contrary to the accused’s evidence she gave evidence that she had told the accused it was her responsibility to discipline the children and that she had never seen the accused smack her children.
I note that SS said she did not believe her mother was in the room when the accused smacked her, but that she was in the house.[183] JS was not asked if the accused would smack them in their mother’s presence. If TS’s recollection in this respect is reliable, this supports a conclusion that the accused elected only to discipline the children in this way at times when she was not home, which on all of the evidence was not often, or when she was elsewhere in the house.
[183] T 45.7-11.
My overall impression of TS was that she was a somewhat vague historian.
She had a limited and very general recollection of the accused’s employment during the (approximately) seven years of their relationship.
In cross-examination she agreed with a proposition that the accused went with her every day she visited TT in hospital and said that they always visited as a family.[184] She gave evidence during examination-in-chief that she thought there was one occasion when she went to visit TT by herself and the accused looked after the children.[185]
[184] T 107.36-108.9.
[185] T 98.37-99.4.
Further, during examination-in-chief she gave the following apparently inconsistent evidence, the intended meaning of which was not clarified:[186]
QDid you and (the accused) smoke together.
ASometimes.
QAnd were there occasions where you didn’t smoke together.
ANo.
[186] T 100.6-10.
TS could not recall the accused being responsible for any home duties, being inconsistent with the evidence of SS.
TS could not recall the presence of an air conditioning vent in the area outside and adjacent to the kitchen/lounge rooms of the Elizabeth Downs home.
TS was not cross-examined as to whether she had ever asked the accused to check on any of the children when they were bathing (and if so, in what circumstances). She was not asked about whether there was a computer in the main bedroom at the Queenstown home. She was not asked if SS had a penchant for ‘making up stories’ or if she was bullied by her older siblings (albeit she agreed that T and SS would have arguments when they were younger). She was not sure if the accused ever intervened in such arguments.[187]
[187] T 106.24-33.
Importantly, as previously advised, she was never asked if she told the accused about the first conversation she had with SS as to the accused’s behaviour, nor the basis for her memory as to this conversation having occurred at Craigmore.
As to the content of the two conversations SS had with her about the accused’s behaviour, TS initially described the first conversation as comprising a complaint by SS that the accused had hurt her. It was only when she was asked to elaborate that she said SS had also said that he had touched her, but that SS did not elaborate as to where. I found her description of this conversation to be unusual, imprecise and lacking in expected detail, given the very nature of that conversation. One would have expected TS to immediately recall that the allegation made was one of sexual impropriety and further, if, as she said, SS had told her the accused ‘had touched her’ she may have questioned her, not only as to whether what she was saying was true, but where she said he had touched her (and when etc) and how he was hurting her.
Although I consider TS was trying her best to give an honest recollection of events to the court, given the limited nature of her evidence, it was difficult to make findings as to the reliability of her evidence.
The brother’s evidence (JS)
JS gave his evidence in a very forthright and abrupt manner, and presented as a person harbouring significant anger.
He gave very limited evidence, directed at corroborating the evidence of SS as to the opportunity for the first uncharged act to have arisen, namely that there was at least a prior occasion of the accused being in the main bedroom of the Queenstown house, alone with T and SS and on the bed with them.
SS made no reference to JS walking into the room at any time during the occasion of the first uncharged act. As submitted by counsel for the accused, if in fact JS and SS were relaying to the Court their memory of the same incident it raises an obvious question, namely why would the accused request SS to act in the manner as claimed by her, knowing there was every possibility that JS would again enter the room? Having said that, the incident is said to have occurred in T’s presence in any event.
There was obvious acrimony displayed by JS towards the accused.
JS gave evidence that at the time of making this observation, he had no reason to be alarmed by it and he did not discuss what he saw with his mother or ask his sisters why they had looked shocked. The impression JS sought to convey from his evidence was that he did not appreciate at the time, due to his age, that what he saw may have been indicative of something inappropriate occurring of a sexual nature as between the accused and his sisters. However, had his sisters in fact appeared ‘shocked out of their mind’ then this is something one may expect him to have been alarmed by, or to have thought to discuss with them or his mother, not because he perceived what he had seen to have a ‘sexual’ implication, but because he had seen his sisters in such shock.
The observation was made over 13 years ago, at a time when TS described himself as being 10.[188] In all of the circumstances, I cannot now be satisfied, this many years after the event, as to the reliability of JS’s memory as to these claimed observations. While it is possible that he does have a memory of seeing the accused, T and SS on the bed in the main bedroom at Queenstown, I simply cannot be satisfied as to the reliability of his observations of the occasion as described by him.
[188] T 115.30.
The accused’s mother’s evidence (KS)
KS gave evidence to support the evidence of the accused that T, JS and SS spent the day with her and her husband when TS went into labour with TT. I accept that evidence and note this was consistent with that of TS. I note that her evidence did not go further – namely that the children ever stayed overnight with her during the time TS was in hospital, being something which was suggested to SS in cross-examination and of which she had no memory.
KS gave evidence about her general observations of the relationship T, JS and SS had with the accused, which observations were unremarkable and necessarily confined to the limited occasions she was with them, noting that she worked at the time as a nurse.
I accept her evidence as being reliable and credible, but it was of limited assistance in determining the matters in dispute.
The accused’s evidence
The accused was not obliged to give evidence. As I have said, the accused is not required to prove anything or rebut anything. In giving evidence he exposed himself to cross-examination and should be given credit for doing so.
The accused presented as a very confident witness, however, my impression was that much of his evidence was self-serving and manufactured to minimise the potential opportunity for the alleged offending and to over-explain why it could not have occurred.
However, the accused made certain concessions that were adverse to his interests – namely he admitted to having smacked the children, including SS, on occasions causing SS to bruise. He admitted being home alone with T, JS and SS for two nights when TS was in hospital having TT. He admitted that there were occasions when he was alone with the children (or a child, such as SS) for up to an hour, when TS went shopping. He admitted to occasionally going into the bathroom at the Elizabeth Downs home when SS was having a bath to check on her hair. He agreed there was an air conditioning vent in the area between the kitchen and the lounge room at the Elizabeth Downs home and that he occasionally smoked in that area, albeit only when friends were over.
On many of these matters his evidence was the only evidence that effectively corroborated that of the complainant.
However, I consider the accused’s categorical denial of ever being alone on the main bed at Queenstown with T and SS to be unsustainable, having regard to the children’s young age during the time the family lived at Queenstown and the very real possibility of there being an occasion of this type during the years they lived there. At the very least one would have expected the accused to acknowledge this as a possibility.
When giving evidence as to the occasions he went to check on SS in the bath, the accused’s evidence as to why it was necessary for him to enter the room to ask her about her hair was questionable and my impression of it was that it was designed to over-explain and justify that entry. I reject his suggestion that upon entering the bathroom he could only see SS’s naked body from the waist up, because of the ‘high bath’, bearing in mind the accused’s height and the fact that this was a shower-bath, presumably designed for relatively easy access.
The evidence given by the accused as to why he claimed to have never sat on the air conditioning unit when considered having regard to his detailed evidence of that unit was very difficult to believe. He stated he would need to push himself up to sit on it and that it was uncomfortable to sit on, being a cold metal surface with fins. The impression I gained hearing that evidence was that the accused was remembering the sensations associated with, in fact, sitting on the unit, being something he denied he had ever done.
Further, the accused’s evidence pertaining to the sharing of cigarettes with TS concerned me. The accused said during examination-in-chief he almost always smoked with TS as they shared a pack of cigarettes and together they smoked a pack a day. That pack was kept somewhere in the house or in TS’s handbag and he said if TS went out she would leave him a couple of cigarettes. However, the accused also gave evidence that he was working almost consistently throughout his relationship and marriage with TS and he described very long working days. It seems inconceivable that he did not have access to his own pack of cigarettes while at work and therefore while at home.
This evidence was relevant to the circumstances surrounding Count 4, namely did the accused smoke alone, or usually in TS’s presence. My impression of the accused’s evidence on this topic was that again his evidence was tailored so as to minimise the potential opportunity for the offending to have occurred in the circumstances as described by SS.
Although I have some concerns as to the reliability of TS’ evidence, I accept her evidence that she made it known to the accused that she was responsible for the disciplining of her three older children and that she had never seen him smack those children. This is inconsistent with the accused’s evidence on this topic.
For all of these reasons, I have general concerns as to the accused’s reliability and credibility, despite the concessions he made, which I have mentioned earlier.
However, even if I was to completely discount or disregard the accused’s evidence that does not in any way bolster the Crown case.
It remains for the Crown to prove each element of the offences as charged, beyond reasonable doubt and if there remains a reasonable doubt as to any elements of a charge after my assessment of all of the evidence, I must acquit the accused of the charge or charges.
Consideration of the charges
The complainant made it clear that she only remembered the occasions of abuse by the accused as described by her.
The offending she described – both charged and uncharged – was that of an opportunistic predator, conducted in a brazen manner, with the very real possibility of detection.
Due to the inconsistencies in the evidence of SS and TS as to what was said by SS, and in which house they were at the time of the first conversation about the accused’s behaviour towards SS, I cannot be satisfied either as to the content or the timing of this conversation. If in fact the conversation occurred at Craigmore then it must have been before any of the alleged offending (and before any alleged uncharged acts). Notwithstanding SS’s very young age at that time, this raises the obvious issue of – why would she say such things to her mother then and should there therefore be very real doubts as to her reliability now? In this respect the accused said SS was prone to making up stories, however TS was never asked about any such tendency.
I am satisfied that when SS was a very young child, aged either four or five, she did disclose to her mother that the accused had behaved in an inappropriate way towards her and that from what she said her mother understood that she was alleging the accused had behaved in an indecent manner towards her. I am further satisfied that TS did not believe the allegations made by SS, that SS knew her mother did not believe her and that TS did nothing, following that conversation, to restrict the opportunity for any such behaviour to occur.
As submitted by the prosecutor, this may provide an explanation as to why SS did not complain to her mother about the incidents being the subject of the charges against the accused.
If, as the accused said in cross-examination, TS told him about this conversation, and that TS had told him SS had admitted she had made up the allegations, this may also explain why the accused felt empowered to offend in the brazen manner claimed.
As previously stated, TS was never asked whether she told the accused about the fact of this conversation and if so, what she told him. SS was never asked if she told her mother she was lying about the accused’s behaviour and if so, why. There was a critical lack of evidence on this topic which if led may have helped me reach a more informed view of the evidence.
As to Counts 2 and 3, there were occasions when the accused was home alone with SS (or alone with her and the other children) while TS left the home for short periods to go shopping, although having regard to the evidence of both TS and the accused this did not happen often. There was a couch and a television in the lounge room at the Queenstown home and the accused liked to watch sport on television. However, those matters of themselves are not uncommon.
On SS’s account this incident occurred for not very long and was interrupted by her mother’s arrival home, suggesting either that TS had only briefly left the home, or had been gone for such a period of time that her arrival home was imminent, at the time of this offending.
As to Count 4, the accused agreed there was an air conditioning vent in the area at the Elizabeth Downs home as generally described by SS and that he was a smoker. However, SS’s belief was that her mother was home at the time. Both TS and the accused described there being a kitchen window that looked onto the area adjacent to the air conditioning vent. As such, not only was there the possibility of the offending being seen through that window but there was also a very real likelihood that TS may come outside and/or look to join the accused for a cigarette given their acknowledged tendency to smoke together.
A careful scrutiny of SS’s evidence on Count 4 reveals that SS only assumed that it was her mother who she heard opening the door, being the precipitant for the offending to cease. Further, there was no evidence as to how big the kitchen window was, whether there were blinds or curtains on the window or whether there were any plants or other objects which may have obscured the view from that window towards the air conditioning vent. TS described there being a ‘fairly high tin fence’ around the whole of the property, meaning it is possible the area of the alleged offending could not be viewed from the road. Although SS referred to a big tree in that yard, its proximity to the air conditioning vent was not explored. These were all matters where additional evidence may have assisted in terms of my overall assessment of SS’s evidence.
The manner in which SS described the offending was detailed and unusual, suggesting it is more likely to be true, rather than not. Further, it fit the pattern of what one may expect to be the offending of an opportunistic, audacious sexual predator, being consistent with the incidents occurring in circumstances where time was limited and allowing for the opportunity for the offending to end quickly should the need arise.
However, this was not a case, as in Hughes v The Queen,[189] where there was evidence led to establish the accused had a proven tendency to engage in sexually predatory conduct with his step-children irrespective of there being a high risk of detection. Such proof was capable of removing a doubt which the brazenness of the accused’s alleged conduct may otherwise raise.
[189] (2017) 92 ALJR 92 at [59].
I am mindful that this is a case where there is no independent evidence tending to support SS’s version. The accused has steadfastly denied the charges and despite my concerns as to his veracity he did make concessions, particularly with respect to the existence and location of the air conditioning vent, which were contrary to his interests.
There is no complaint evidence specifically referable to the charges and there is no reliable corroboration. There is a degree of forensic disadvantage in as much as these events are said to have occurred as long as 16 years ago, with no evidence relating to any contemporaneous police investigation.
As outlined above in my assessment of SS’s evidence, there are aspects of her evidence where there were some inaccuracies and inconsistencies, as to when events were said to have happened (namely Count 4, and the second conversation with her mother). There are aspects of her accounts which seem almost incredible having regard to the circumstances of the alleged offending being confined only to a small number of occasions where in each instance there was a very real likelihood of his offending being ‘caught out’.
Although the fact SS was not believed by her mother may explain why she did not complain to her about the specific offending, the fact is, she did have a second conversation with her mother about the accused’s behaviour and there was a report made to the police shortly thereafter. The fact SS did not tell her mother at that stage of the circumstances of this serious offending, having had the courage to again bring the matter up with her, and in circumstances where her mother did in fact act in response to what she told her, is somewhat surprising.
As such, while SS appeared to be an honest witness, genuinely recounting what had happened to her, this is not a case where her evidence is so convincing as to the circumstances of each count and the accused’s denial(s) so incredible that it is possible to reach a conclusion beyond reasonable doubt.
Simply put, despite my misgivings as to aspects of the accused’s evidence, it is not possible to reject his denials as ‘not reasonably possibly true’, such that the prosecution has negatived the accused’s innocence on each count as a reasonable possibility.
Despite my impression that what SS told the Court as to the offending was likely to be true, that is not the test.
Having carefully scrutinised all of the evidence I am left in the situation where I cannot be satisfied, beyond reasonable doubt, of the elements of Counts 2, 3 and 4.
Conclusion
I find the accused not guilty on all counts.
0
8
1