R v G, AP
[2013] SADC 90
•5 July 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, AP
Criminal Trial by Judge Alone
[2013] SADC 90
Reasons for the Verdict of Her Honour Judge Davison
5 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
Accused charged with one count of persistent sexual exploitation of his biological daughter.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 58; Evidence Act 1929 (SA) s 9, s 34CA, s 34CA(3), s 34D, s 34M, s 34P, referred to.
Douglass v R [2012] HCA 34, considered.
R v G, AP
[2013] SADC 90Background
The accused is charged with one count of persistent sexual exploitation of a child. The child in question is his natural daughter EG. She was born to MC and AG on the 21 June 2002. When she was born they lived in a house at North Haven. On the 14 February 2011 the family moved to Victor Harbor where they resided together until 21 April 2012. The sexual activity that is the subject of the charge is alleged to have commenced whilst they were living at North Haven and then continued when they moved to Victor Harbor.
The Charge
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AG over a period of not less than three days between the 3rd day of August 2010 and the 22nd day of April 2012 at North Haven and Victor Harbor, committed more than one act of sexual exploitation of EG, a child under the age of 17 years by touching EG’s breasts, touching EG’s vagina, causing EG to touch his penis, causing EG to lick his penis, licking EG’s vagina, showing EG pornography, attempting to insert his penis into EG’s vagina, and causing EG to punch his testicles and touching his penis in her presence.
The Trial
The trial proceeded as trial by judge alone. The prosecution presented a notice pursuant to s34P of the Evidence Act 1929. I was asked to rule in relation to the leading of evidence from a witness named HC. I permitted the prosecution to lead the evidence and delivered reasons for that decision. I will address that evidence in the course of these reasons.
General Directions
The accused comes into this Court with a presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proven beyond reasonable doubt. The prosecution bears the burden of proof. The charge must be proven beyond reasonable doubt. The accused does not carry any onus of proof and to the extent that he did put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show a suspicion of guilt or event to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence I must give the benefit of that doubt to the accused and find him not guilty of the charge. If after full and careful consideration I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty. In these reasons where I indicate that I am satisfied about a particular fact or event I mean satisfied beyond reasonable doubt.
The accused was not obliged to give evidence but he chose to do so. His evidence is to be considered along with the other evidence in the case. He cannot be found guilty unless I find his evidence is not reasonably possibly true.[1]
[1] Douglass v The Queen [2012] HCA 34
During the course of the accused’s evidence he gave evidence that he has not previously had any trouble with the police.[2] No evidence was led to the contrary by the prosecution. Nor was any evidence led with the express purpose to rebut this assertion of good character. The evidence that was led from HC in relation to the accused’s behaviour towards her had only been led in relation to the context of the alleged admission that had been made by the accused. It was never suggested by the prosecution that I could in fact use that evidence as evidence that rebutted the assertion made by the accused of his previous good character.
[2] TT 185
As I have said elsewhere in these reasons, I did not find the evidence of HC to be compelling in any event. I have therefore determined that I should give consideration to the previous good character of the accused in assessing the credibility of the explanations given by him, his credibility as a witness, and the likelihood that he would have committed the offence.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear, and not be influenced by public opinion in relation to the matter. I must not draw any adverse inference against the accused that there had been special arrangements for taking the evidence of witnesses nor allow the special arrangements to influence the weight that I give their evidence.
Elements of the offence
The elements of the offence of persistent sexual exploitation of a child are as follows:
1AG was an adult at the time of the alleged offending;
2EG was under the age of 17 years at the time;
3AG committed more than one act of sexual exploitation against EG;
4the acts were committed over a period of not less than three days.
In relation to the first element the accused gave evidence that he is presently 41 years old. The allegations are that these acts were committed between 2010 and 2012. I find that he was an adult at that time.
The second element is that the child EG was under the age of 17 years. There is evidence in this matter that she was born in 2002. I find that EG was under 17 years at the relevant time.
The third element is the element that is substantially in dispute in this trial. That is that he committed the particular acts against EG. I will return to that in greater detail.
The fourth element is that the acts were committed over a period of not less than three days. The evidence is that the first offence occurred whilst MC was working at the Queen Elizabeth Hospital which was between August 2010 and February 2011. The most recent event occurred within a week of EG speaking with the police in 2012. If I am satisfied that the acts, the subject of the charge, have occurred, then I will have little difficulty with this element.
Prosecution case
In this matter the Crown alleged that the accused sexually assaulted his daughter in numerous ways over a period of about 18 months.
It is alleged that the allegations came to light when the complainant spoke to her mother and described something “rude” being on her IPod. Shortly after that her mother’s sister and her husband came to the house. They and the accused were sitting at the dining room table. The mother’s brother in law had a look at the IPod and did some searches on it. When he did so the term “pussy licking” came up on the IPod. He became excitable at that point. The complainant was sitting in the lounge room and overheard this. She came into the room and said that she had not put that, [the term “pussy licking”] on there. She then whispered to her mother that her father had put it on the IPod. Later that night the mother confronted the accused and said “so you wrote it” in reference to the words “pussy licking” and he said “yes, I wrote it out there” pointing to the back garden where the “man shed” was.[3] Shortly after that the mother spoke to the complainant. In that conversation the complainant confirmed that her father had been touching her. The mother then left the house with the complainant and her younger sister.
[3] TT 131
Defence case
The accused admits that he did a search on the complainant’s IPod using the words “pussy licking”. He said that that occurred in slightly different circumstances to that attested to by the complainant. He denies that there has been any sexual contact between he and the complainant. The defence case is that the complainant has been unreliable in a number of aspects and that the act that she describes of the accused placing a rubber band around his penis and inviting her to punch him in that area and then laughing as a result of this is unbelievable.
Section 34CA Evidence Act 1929 SA
An application was made pursuant to section 34CA of the Evidence Act 1929 to admit evidence of the nature and contents of the statements of the complainant made outside the court. I ruled that having regard to the circumstances in which the statements were made I was satisfied that the statements had sufficient probative value to justify their admission. The protected witness, being the complainant, was available to be called and I gave permission for her to be cross-examined on matters arising from the evidence. I conducted a hearing in relation to the matters upon which the accused wished to cross-examine the protected witness. I determined that some of those matters were likely to elicit material of substantial probative value or material that would substantially reduce the credibility of her evidence and permitted cross-examination on them.
Prosecution evidence
There was evidence led from a police officer Senior Constable Hodder. She interviewed the complainant on 22 April 2012 and 21 September 2012. The first interview took place the day after the discovery of the word “pussy licking” on the complainant’s IPod. The following morning the mother contacted the police and arranged for the complainant to attend. It was in those circumstances that the complainant was interviewed on 22 April 2012. That interview was recorded on DVD and has been tendered.[4] A transcript of the interview has also been tendered as aide memoire to the DVD.[5] An additional conversation with the complainant conducted by the police on 21 September 2012 was tendered.[6] The transcript of the interview was tendered as an aide memoire being exhibit P4. Both DVDs were played in the court.
[4] P1
[5] P2
[6] P3
The complainant was called to give evidence. Her evidence in chief supplemented the statements that had been made outside the courtroom. She was also cross-examined. The statements made and admitted pursuant to section 34CA in this trial may be used by me to prove the truth of the facts asserted in those statements.[7] In considering the weight, if any, to be attached to those statements I have had regard to all of the circumstances from which any inference can reasonably be drawn as to their accuracy or otherwise of the statements. I have also had regard to the question as to whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated and the question of whether or not the maker of the statement, in this case, the protected witness, had any incentive to conceal or misrepresent the facts.[8]
[7] Evidence Act 1929 (SA) s 34CA(3)
[8] Evidence Act 1929 (SA) s 34D
Statements and evidence of EG
During the interview that was conducted on 22 April 2012 the complainant said that her father had told her that he had been touching her while she was asleep. She said she could not remember him doing that. She went on to say that her father had told her that she was not allowed to tell anybody and if she did, he would say that she was lying. She was asked whether she remembered a time that these events had occurred when she was awake. She went on to recount[9]
[9] P2 page 5, 6
Q.Oh okay, so you do remember a time when you were awake.
A.Yeah.
Q.Yeah, can you tell me about that time.
A.Well he would make me like lick his thingy and then lick mine, and I was like “Stop it, it’s not funny”, but he would always like touch me and all that stuff.
Q.Do you remember where you were when that happened.
A.Mostly in my bedroom.
Q.In Victor Harbor or in Adelaide.
A.Victor.
Q.In Victor Harbor, okay. Can you think when was the last – Do you remember when the last time was that that might’ve happened.
A.Um, well I think on the Thursday in his “man shed”, like in his shed, um, he um touched me and I didn’t like it and then he, um, on the Friday my mum found out that on my IPod and he never did it again.
The complainant then went on to describe that he sometimes touched her on her “boobs” but mostly “down below”. At that time she indicated to the lower part of her body and upon being asked what part of her body she was indicating she said her “vagina”.[10]
[10] P2 page 7
The complainant then went on to describe having touched the penis of the accused, licking his penis and him licking her vagina.[11]
[11] P2 page 8, 9
Q.Mm hm, okay. Do you remember any particulars about his penis, and does anything happen with it.
A.Mm, I don’t think so.
Q.Mm hm.
A. No, I don’t think so. He would like make me touch his penis and stuff, but I think that’s it.
Q.How, tell me more about how he would make you do that.
A.Um, like he would make me put my hands in pants and then just grab it and stuff.
Q.Grab your hand when it’s in his pants.
A.Yeah.
Q.And what would he do with it then.
A.Um, he would just, like sometimes he would get his penis out and tell me that I had to grab it.
Q.Mm hm.
A.And stuff like that.
Q.Mm hm.
A.And yeah, well sometimes he made me lick his penis.
Q.Mm hm.
A.And then he would lick my vagina.
Q.Mm hm.
A.And it was fairly annoying.
Q.Mm hm.
A.And I didn’t really like it and I was starting to get really really scared of him.
The complainant then went on to speak about rude movies that she watched with the accused on his computer that included girls naked and boys pulling on their penises and strippers walking around. She said that she last watched one of these movies about a month before the interview.
The complainant described an incident in which the accused had tried to put his penis into her vagina but had not pushed it in and was just trying to. She went on to say that she was wearing a Betty Boop T-shirt and her Betty Boop cargo pants and that this incident had occurred in “mum and dad’s room” when he made her lie on the bed and “just started doing it”.[12] She gave particular detail about the way that her clothing was removed. She said that this incident had occurred while her sister P was sleeping in her bedroom and her mother had gone to work.
[12] P2 page 15
During the course of the discussion the complainant also described her father’s penis and when asked about the touching incidents made the following statements.[13]
[13] P2 page 19
Q.… How long do you, when you touch it, how long do you touch it for.
A.Um, as long as he, until he says that it’s okay to let go.
Q.Mm, hm.
A.Which is usually about five minutes later or four.
Q.Mm hm. How come he tells you to let go.
A.Oh, he um, I usually just let go by myself and then he’ll just grab my hand again and put it there, and then he’ll must sort of like move his body which he says it means like I can let go now.
Q.Oh, how does he move his body.
A.Like, he just sort of moves over.
Q.Oh okay.
A.So that my hand falls away.
Q.Yeah.
A.So I really just take my hand away after that.
Q.Mm hm.
A.And then after um, when he hears mum come, he quickly takes it away.
Further in the statement the complainant described occasions upon which the accused touched her vagina. She was asked[14]
[14] P2 page 21
Q.… Before, you told me that he touches your vagina. Can you think about one of those times when that’s happened and tell me how and what happens and how it feels.
A.Um, he um just puts his hands in my pants and puts his finger up there and he tickles it and um, he says um, “if it feels good” but it feels ticklish but it also feels really annoying and I don’t like it.
Q. What do you mean “he puts it up there”.
A.Well he puts his finger like in the middle.
Q.Mm hm.
A.And just like puts his finger around it and all that stuff.
Q.When was the last time that happened.
A.Mm, I think around last weekend probably.
Q.Where, whereabouts were you.
A.In my room.
The complainant later described what appears to be ejaculation. She describes it in this way. She said that “like just sort of drips of water”[15] come out of daddy’s penis. That it feels “all wet and sticky” and “it’s gross”.[16] She said he used his shorts to wipe it off. She said that it is white, she sometimes gets it on her hands and when that happens she generally wiped her hands on her dad’s T-shirt and once she tried to wipe it off on her pants. When asked what it felt like she said:[17]
[15] P2 page 24
[16] P2 page 24
[17] P2 page 26
Q.What’s it feel like.
A.Um, it feels sort of grippy.
Q.Mm hm.
A.And um, all soft and yuck.
Q.Yeah, what, what temperature is it.
A.Um, mostly warmish.
Q.Does it have a smell or like anything.
A.No, I don’t think so.
Q.Have you ever had to taste it.
A.Um, sometimes I think I have when um he made me lick his penis, I think some got in my mouth.
She then went on to describe the taste after she had licked the accused’s penis:[18]
Q.Mm hm. What did it taste like.
A.It tastes really gross. And then I would just sort of um, get my bottle of water ‘cos I always keep a bottle of water next to my bed.
Q.Mm hm.
A. Just kept drinking it but it wouldn’t, the taste wouldn’t go away.
[18] P2 page 27
In the later interview of 21 September 2012 the complainant described to the police officer an event where her father had put a rubber band around his testicles and he required her to punch his genitals. When that he happened she said that he laughed. She said that made her feel a bit uncomfortable. She said this occurred sometimes in her room but mainly in the shed and that she did not count the number of times that it had happened.
The complainant was then called to give evidence. I gave consideration to section 9 of the Evidence Act 1929. Having seen the recorded interviews with the complainant I considered that she was capable of giving sworn evidence and the presumption in section 9(1) of the Evidence Act 1929 was not displaced. She therefore gave sworn evidence.
I was also asked to consider section 21 of the Evidence Act 1929. The complainant is a close relative of the accused. There was evidence that the accused is her father. I considered that pursuant to section 21(5) the complainant was by reason of her age unable to understand her right to apply for an exemption under this section in the circumstances.
The evidence in chief of the complainant commenced with her going through photographs that had been tendered and identifying various places in the house where different things had occurred. She then went on to describe how her father would come in to her bedroom at the North Haven property after her mother had gone to work and would shake her to wake her up. After he woke her up he said to her “mum’s gone to work, now come in my bed”.[19] She gave evidence that her father would require her to touch his penis and that had happened in Adelaide and at the Victor Harbor property. She said it happened more than once and on these occasions he would grab her hand and put it inside his pants. She said this happened in her bedroom; he would make her pull his penis until he said “that’s enough”.[20]
[19] TT 39
[20] TT 40
She was asked some questions in relation to licking her father’s penis and said that this had happened at the house at Victor Harbor, on more than one occasion, in her bedroom.[21] She said he would pull his pants down a little bit and he would make her lick his penis. She also gave evidence in relation to her father licking her vagina. She said that this had happened in Victor Harbor on one occasion in her bedroom. She said she was lying on her back and that her father was lying on his stomach. She was wearing pants and he pulled them down and then he licked her vagina. She said it had occurred in the afternoon. She thought her mother was at home watching television at the time and her sister was playing in her bedroom.
[21] TT 41
In relation to her father touching her on the breasts, she said that that had happened once at the Victor Harbor house in the “man shed”. (That was the family name for the area that the accused occupied in the shed at the rear of the house). On that occasion the accused put his hand up her top, touched one of her breasts and sort of squeezed it a bit. She gave evidence that her father had touched her on the vagina. She gave evidence that this occurred in his bedroom on more than one occasion. She said when he touched her vagina he put his hand inside her pants, put his fingers in her vagina and sort of wriggled them around. These events occurred at both the Adelaide property where they lived and also at Victor Harbor. She thought that it had occurred in her bedroom on more than one occasion and had occurred on one occasion in the “man shed”.
She also described again the incident in which the accused had tried to put his penis into her vagina. She provided more detail in her evidence in chief including that her mother was at work, that it had occurred in her father’s room, that he pulled her pants down and pulled his pants down a tiny bit and that she was laying on her back on the bed. She said that this incident made her feel upset and annoyed and that after he had tried to insert his penis he went to the toilet. She tried to get under the covers and pretend that she was asleep. She said that when he returned from the toilet he started to touch her again and put his fingers in her vagina and tickled.
She also gave evidence that she had watched rude movies with her father. This occurred when he sat her on the bed and put movies onto his laptop. She said that people in the movies were having sex and that she watched these movies after her mother and her sister had gone out.
She also described a game that she would play with her father, where on one occasion with her sister they had a pretend gun and a person would pretend to shoot them and whilst they were pretending to be dead the accused would touch her and put his fingers into her vagina.
The complainant gave evidence that there was an occasion when her mother and her sister had gone shopping and she was playing on the Play Station. The accused asked her to go upstairs with him and she said she did not want to. He went alone. A little while later she went to the toilet and when she did that she saw the accused at his desk whilst on the computer in the bedroom. He was touching his penis.[22]
QDid you go into the room with him.
AYes, because he kept staring at me with sad eyes and he just kept saying ‘just come in’ and I was scared to say no, because I was really scared of him, so I said yes.
QWhat did he do when you went in.
AI just sat there really quietly near the end of the bed so he couldn’t touch me so I was just sort of sitting at the back of the bed watching.
QWhat did he do.
AHe kept touching himself and – yeah.
The complainant gave evidence that there was an occasion when she was in the bedroom at the Victor Harbor house. The accused came in and sat on the bed next to her and asked her if there was anything on TV. He then asked for her IPod. She gave it to him. When she gave him the IPod she said that he went on You Tube. She said to him that they were not allowed to go on You Tube. She then saw him write the words “pussy licking” on the IPod. The accused then flicked on one of the videos and she saw a picture of a woman sitting in bed. She could only see her face but the complainant did not think she had clothes on. The complainant gave evidence that the screen froze at that point and the accused said that it would not work and he turned off the IPod and put it back on to the cupboard. [23]
[23] TT 51, 52
The complainant was cross-examined. It was suggested to her that the incident in which the words “pussy licking” were put on the IPod occurred in the “man shed” with her father. She was asked whether she had told her father that she had seen rude stuff, people having sex on her IPod.[24] She replied “Yes”. She confirmed that the incident in relation to the IPod had occurred about two weeks before it was discovered by her uncle on the IPod.
[24] TT 73
The complainant was cross-examined further about activities that had occurred in the “man shed”. In cross-examination she agreed that it was about six weeks before her uncle found the words “pussy licking” on her IPod that the “man shed” had been set up and she had had access to it.
The complainant was cross-examined about a suggested prior inconsistent statement. That inconsistency related to two aspects of the allegation in relation to her father touching her on the breasts. In evidence and in her statement the complainant said that she had been touched while she was in the “man shed”. This “man shed” is at the Victor Harbor residence. In a statement that she had made to the police shortly before the trial she said that her father had touched her once on the breasts and that was in the bedroom whilst they were living in Adelaide. That statement it seems was generated after a proofing session held at the DPP. The other inconsistency related to the statement that she had made on 22 April 2012 to the police wherein she had said:[25]
Q.Yeah, sometimes I’ll write stuff down ‘cos it’s sometimes it’s stuff that I have to remember to think about later on, ‘cos – Okay, and when you talked about going in dad’s “man shed” and playing with your IPod touch, you’ve said dad touched you. Whereabouts.
A.My um, sometimes where my boobs are, but mostly down below. (indicates)
Q.M hm, what do you call that part of your body.
A.Oh um, vagina.
[25] P2 page 7
The portion of the tape was played to the complainant. She agreed that she said those words but maintained that her father had only touched her on the breasts once.
The complainant was also cross-examined about what was suggested to be inconsistencies in relation to the incident she had described with her father putting rubber bands on his genitals. It was suggested to her that she had said in the interview on 21 September 2012 that these incidents had happened “sometimes in my room but mainly in the shed”. In evidence the complainant denied that she had said this. Those words are, however, contained within the DVD P3. In evidence the complainant maintained that she could only remember them happening in the “man shed”.[26] It was also suggested to her that in her statement to the police she had said that these incidents happened a lot. In her evidence she said that the incidents had occurred once or maybe two times and said she could remember it happening twice.[27]
[26] TT 85
[27] TT 85
She was cross-examined about her father’s reaction to her punching him in the genitals. She maintained that when she punched him she would punch him a number of times with both hands and when she did that he laughed.
The complainant was also cross-examined about an occasion when it was said that there was conversation about dogs having their tails docked. It was suggested to her that during these conversations the issue of using rubber bands on the dog’s tail was raised. The complainant denied that this had been a part of the conversation.
It was further suggested to the complainant that there were occasions when her mum had gone to work whilst the family were living in Adelaide when she went into her father’s bed without him inviting her in there. The complainant was uncertain in relation to this. She said “it could be but I don’t remember”. [28]
[28] TT 95:5
It was put to her that she asked her father if he would wake her up so that she could go and sleep in his bed after her mother had gone to work. She denied that had ever happened.
The complainant was cross-examined in relation to dreams that she had had. She denied that she had ever told her father about her dreams. She denied that she had ever told him about dreams that related to sexual matters. She agreed she had had dreams like that and that she had told her mother about it after they moved out of the house with her father. The complainant denied she had made up the allegations.
In respect of the prior inconsistent statements that were suggested by Ms Stokes to the complainant there were two relevant agreed facts:[29]
9.EG met with the prosecutor at the Office of the Director of Public Prosecutions on Friday 17 May 2013. The prosecutor took handwritten notes during the proofing and in those handwritten notes recorded that E stated she was touched once on the boobs in her bedroom at Victor Harbor. The prosecutor then typed up those proofing notes. In the typed version the prosecutor recorded that E was touched once on the boobs in her bedroom in Adelaide, which was contrary to her handwritten notes. The typed notes were then forwarded to the Investigating Officer with a request that he obtain a typed statement.
10.In the statement of EG signed 19/05/13 on the topic of touching of her boobs she said at page 3 “I think Dad only touched me on the boobs once and that was in my bedroom when we were living in Adelaide”.
Complaint – section 34M of the Evidence Act 1929 (SA)
[29] P8
No evidence in chief was lead from EG in relation to her initial complaint. However, in the statement that she made on 22 April 2012 that has been admitted pursuant to section 34CA of the Evidence Act 1929 she makes reference to speaking to her mother. She speaks of it in these terms.[30]
[30] P2 page 2
Q. Yeah, okay. Today, we’ve come to your nanna’s house, yeah. Can you, would you tell me a little bit about what’s happened last night.
A.Um, well last night my aunty came over.
Q.Mm hm.
A.‘Cos I was at my friend’s house and my friend dropped me off home and then like when I came in my aunty was over.
Q.Mm hm.
A.And then mum was talking about how um, and there was some like YouTube’s really bad on my IPod, and then she went on YouTube and it said something very rude.
Q.Mm hm.
A.And she asked me who wrote it, and then um she asked if any of my friends did it and I said no, and she said, “Who did it?” and I said, “Dad did it” and then um, when dad fell asleep mum came in, ‘cos me and P were playing together, and mum came in and asked me these questions.
Q.Mm hm.
A.And then once she found out, then she um said that we had to go downstairs and pretend to be giving out IPods and she would pretend to get the coffee.
Q.Mm hm.
A.And then we quickly went outside and drove to nan’s house.
Again, further on in the statement she makes reference about speaking to her mother.[31]
[31] P2 page 4
Q.Okay, all right, and previous to that time, was there anything that you talked to your mum about that had happened, when your mum was asking you questions.
A.Oh, she asked when it all happened-
Q.Mm hm.
A.And stuff like that, and then she asked a few questions, like “Where does he do it?” and all that stuff.
Q.Okay, what was your response to the questions that she asked you.
A.Well when she said, “When has, when did it all start?”, I said, in Adelaide when she got that job, at 4 o’clock in the morning, dad said that I could sleep with him then. He just started it all, and then-
Q.What do you mean by “it all”.
A.Like just started touching me and making me touch him and all that stuff.
Q.Mm hm.
A.And then she said, “Where does he do it?” and I said “Anywhere he can do it where there’s nobody around” and he likes tries to make sure nobody’s looking ‘cos he like tickles P, and when he tickles P, P always like puts her head on the ground because she’s trying to get him off, but she’s laughing, and then he just tries to touch me, but I try to get him off.
She was not cross-examined in relation to her initial complaint.
In relation to her allegation that the accused had put a rubber band around his testicles and asked her to punch him in the penis there was no evidence lead from her in relation to that complaint. She was however cross-examined about it.[32]
[32] TT 88:23 – 89:16
Q.Did you tell anybody else before you spoke to Alicia Hodder in September last year.
A.I think I told my mum.
Q.Was it mum’s idea that you needed to go to the police about that or someone else’s.
A.I think it was mum’s.
Q.But you hadn’t remembered that when you spoke to Constable Alicia Hodder back in April.
A.No.
HER HONOUR
Q.Where were you when you told mum.
A.I think I was in the car.
Q. What did you tell mum.
A.I can’t really remember, something like, I think, I remember him tying his balls up with a rubber band or something.
Q.Why did you tell mum that at that time.
A.Because I couldn’t remember when I was seeing Alicia and for some reason I just remembered it, so I just told mum. Then she said that I should tell Alicia about that next time I see her, whatever, when I see her.
Q.Do you remember where you were when you first remembered that your dad had done those things.
A.No.
Q.Was it when you were in the car with mum or was it before that.
A.In the car.
Q.What was happening in the car when you remembered.
A.Well, mum was listening to the radio and I was just looking out the window and then for some reason it just came into my head and I remember it and then I just told mum.
Evidence was led from MC. She is the mother of EG and the wife of the accused. The mother gave evidence that after the incident had occurred at the table in which her brother in law located the words “pussy licking” on the complainant’s IPod she spoke to the accused and the accused made admissions to having written it. She then waited until the accused had gone to bed. She went to their bedroom as well, put on her pyjamas and sat on the edge of the bed. She then went and spoke to the complainant. At that time the complainant was in her bedroom with her sister P. The mother said to the complainant “has dad ever touched you” and the complainant shook her head implying yes. She gave evidence that at that time the complainant was “pretty terrified”.[33] She tried to keep the girls quiet and they then left the house and went to the grandmother’s house. By the time the children got to her mother’s house they were “pretty hysterical” and after the complainant calmed down a little bit the mother asked her some questions.[34]
A… I asked had he ever put his fingers inside her and she said ‘Yes’. I said ‘Have you ever touched him?’ and she said ‘Yes, he makes me do that’. My mum asked if he had put his penis inside of her and she said ‘He tried once and got a little bit in and it was there for about a second’ and she pushed him off. I asked her where that happened. She said ‘It was back when we were living in Adelaide’. And I said ‘Has he ever tried that again?’ she said ‘No’. It was very late so we put them in bed. And later that night, probably about 15 minutes later, she came out and she said ‘He also licks down there and makes me lick him and he shows me lots of videos of people’.
[33] TT 132
[34] TT 132: 35 - 133: 10
The complainant’s mother went on to clarify that when the complainant had referred to watching videos she had said that she watched rude movies on his computer. During this conversation the complainant also said that these incidents had happened in her bedroom and sometimes in the “man shed”.[35] Her mother questioned her as to when it all started and the complainant said that it started when she had worked early mornings at the hospital and the accused would go into her room and say “you can come and sleep with me” and she would go back to his bed.
[35] TT 133
In relation to the later allegations the mother gave evidence that there was another occasion when she had been going to the doctors with the complainant and in the car on the way to the doctors the complainant had the following conversation with her.[36]
Q.I won’t ask you any more about that topic. Where were you when you spoke to her again.
A.In the car on the way to the doctor’s.
Q.What was said.
A.She said to me ‘Do you know what he also made me do?’ and I said ‘What?’ and she said ‘He used to tie his balls up with a rubber band and make me punch them’.
Q.When did that conversation take place as best you can remember.
A.As best I can remember, it would have been late May-ish around there, yeah.
[36] TT 134:23-32
LC was also called. She is the grandmother of the complainant. She gave evidence in relation to the occasion when her daughter and the complainant had come to her house at night. She said a conversation occurred in the back garden and that the complainant had told her that he [the accused] had not put his penis in her but he had tried and it hurt and he stopped. In response to the question about how long this had been happening the complainant said that it was when “mummy was working at the hospital”. The complainant went inside and a short time later she came out and she said “I remember one more thing”. The complainant then volunteered “he asked me to lick him and he licked me down there”. These conversations were lead as an elaboration of the initial complaint that had been made.
It is not plain from the evidence whether the mother and the grandmother are in fact recounting the same conversation or not but in any event it appears that the complainant has made a complaint in very general terms at first and then more specifically in relation to a series of sexual acts that she alleges the accused performed upon her or caused her to perform upon him. Each of the components of the complaint is admissible in relation to the substantive charge of persistent sexual exploitation and in a number of respects mirrors the particulars that have been provided in relation to that charge.
In spite of the fact that these statements were made with some degree of detail the prosecution has not sought to lead them pursuant to section 34CA of the Evidence Act 1929. They have been lead by the prosecution as initial complaint or an elaboration of that complaint. There is an air of artificiality in relation to this approach. I can use the evidence of complaint not for the truth of the facts asserted but to inform me as to how the allegations first came to light and to buttress the credit of the complainant if I find that there is consistency of conduct. On the other hand, I have material in the form of statement that the complainant made the following day that I am entitled to rely upon for the truth of the assertions made as admitted pursuant to section 34CA of the Evidence Act1929. It is most unlikely that this is in fact the way that Parliament intended the scheme of this legislation to work. Nevertheless, I will proceed in that way in this matter.
I find that the manner in which the complaint was made had a degree of spontaneity in respect of it and that the allegations that were made by the complainant thereafter are consistent with her account both in the statement of 22 April 2012 and in court, with the exception of the allegations in relation to the rubber band and the testicle punching. The complainant in relation to the rubber band evidence was made at a later time and is an elaboration of the initial complaint. This is consistent with her statement of 21 September 2012 and her evidence in court. I have used this evidence to explain how the complaint came about and to buttress the credit of the complainant’s evidence in court.
Evidence of HC
[22] TT 49:37 – 50:8
The Crown called HC. This was the evidence that related to section 34P notice. HC is now 17 years old. She gave evidence that the accused is her Aunty MC’s husband. MC is the mother of the complainant. HC said that she had “a fair bit” of interaction with the accused and his wife while she was growing up. She would see them on a weekly basis. When she was about 12 the accused started making comments to her in relation to the clothing that she was wearing and would say things like “you’re wearing a nice low top”. She gave evidence that she and the accused communicated by text message about three or four times a week.[37] In the course of those text messages he asked her to send photographs. HC then became quite upset whilst giving her evidence. I made an order that the court be closed while she gave her evidence and a screen placed between her and the accused. While she does not strictly fall within the vulnerable witness provisions of the Evidence Act 1929 I considered that the nature of the evidence that she was giving and her age warranted these steps being taken. The accused had no opposition to the screen being put in place. He did however have an objection to the court being closed. Pursuant to section 69 of the Evidence Act 1929 I have the power to order that persons other than those specified absent themselves from the courtroom during a part of the proceedings. I can make this order, in the administration of justice, to prevent hardship or embarrassment to any person. I considered that there had been and would continue to be embarrassment to HC in giving her evidence. I therefore closed the court.
[37] TT 103
HC continued her evidence. She said that she and the accused had communicated on Facebook and that this usually occurred on a Friday or Saturday night and that the texting occurred on a daily basis. She gave evidence that the accused had been on a walk with her family and he had made personal comments in relation to her. She also said that he would touch her by touching her on the arm or on the bottom.[38] It was in this context that she said that in early 2009 she was speaking to the accused and she told him she felt uncomfortable and she wanted it to stop. His response to that was to step forward grab her arm and say “look, you just have to deal with it, if it’s not you it’s EG and she is your baby cousin, you are supposed to look after her, you don’t want that”.[39] She said that his voice was very harsh, very mad and that she told him to stop.
[38] TT 108
[39] TT 109
HC was cross-examined. It was suggested to her that her evidence was a fabrication. She agreed that she had not said anything to EG’s mother about the statement made by the accused. She gave evidence that she had told her grandmother that the accused has threatened her and that she needed to keep a close eye on EG. She agreed in cross-examination that she had not told her grandmother what it was all about. She said she was scared.[40] It was put to HC that there was conflict within the family and various allegations were being made. HC denied that she had any knowledge of such allegations.
[40] TT 110
HC gave evidence that she tried to keep an eye on EG.
The Crown elicited the evidence of the statement made by the accused to HC suggesting that the uses that were being made of it were that it was highly probative of a sexual attraction to the complainant and a motive for the offending against the complainant in the way that had been alleged in this matter. It was said that the conduct of the accused in relation to HC put in context the statement that was made.
When the accused gave evidence he denied that he had made this statement at all.
The making of this statement is not supported by any other evidence. I need to be satisfied that this statement was made before I can use it in the way that is suggested by the prosecution. The evidence given by HC about the circumstances in which this statement was made was not supported in any way. There was no evidence other than her own to suggest that there had been such a relationship between her and the accused. There was no evidence elicited that supported her evidence that she had in fact communicated with the accused via Facebook and text in the way that she suggested. I did not find her to be a compelling witness.
I am not satisfied that the statement that HC attributed to the accused was in fact made by him. I do not intend to rely upon it in determining my verdict in respect of this matter – nor do I have regard to the evidence in respect of the nature of the relationship alleged between HC and the accused in any way.
Defence Case
The accused gave evidence in his defence. As I observed earlier he was not required to give evidence. In assessing his evidence I have taken into account his previous good character.[41]
[41] See paragraph 5
The accused gave evidence that he is now 41 years old. He described his relationship with the complainant as being very good. She has always been for daddy and her sister he says has always been more for mummy. He emphatically denied any sexual offending against the complainant. In relation to the incident in which her brother in law had looked at the IPod the accused gave evidence that he, his brother in law and their two wives were sitting at the table in his home. They were having a few drinks. They came to the topic of EG’s IPod and someone, he thought probably EG, brought it into the room. The brother in law picked up the IPod and his wife asked him to have a look at it. As he was going through it he found a search menu and found the words “pussy licking”. The accused gave evidence that he put those words on to the IPod earlier in that week. The accused said that when his brother in law found those words on the IPod he became excited about it and said the words several times. Almost immediately EG started crying and she yelled out and said that she did not write it. He said there was discussion in relation to deleting it from the IPod and he said once to his brother in law “delete it”. After the visitors had left the accused had a conversation with his wife. She asked him whether he put the words on the IPod and he said “yes EG did not do it”. He said that he said to his wife “I intended on telling you but I didn’t want to tell you in front of K and T”.[42]
[42] TT 172
The accused gave evidence about how he put that term onto the IPod.[43]
[43] TT 172:27 – 173:9
QCan you explain to her Honour how the term came to be on the phone in the first place? Rather than me interrupting you, if you could explain what happened. Why was that term there.
AE came into the shed. I was working on one of my models, I believe she was playing a game and she wanted a game downloaded. Then she said that she had been watching people having sex on her iPod. I said ‘Yes, I know your mum told me’. She had the iPod in her hand, I asked to see it and, basically, the first thing that popped in my mind was ‘pussy licking’. I wrote that in just to see what sort of contact would come up.
QLike some blokes I understand, you agree, that you’ve had pornography on your computer.
AYes.
QAdult pornography.
AYes.
QWas the term ‘pussy licking’ one that you knew or thought of in the spur of the moment? Did it have any connection with anything on your computer.
ANo, spur of the moment.
The accused gave evidence that when he put that term onto the IPod a picture of a woman in lingerie on her hands and knees licking her lips came up. When that happened the accused said he tilted his hand and asked EG is that what she saw and she said yes and other stuff. The accused gave evidence that he had not told his wife about that conversation. The accused admitted that he had adult pornography on his computer. He denied that he had ever shown that pornography to EG. He said however that she had seen it when she was sitting on the bed with her mother and the computer was on a table to the side of the bed. There had been an occasion when he was looking through his picture folder of cars and there were also some naked pictures in that folder.[44] As I said earlier the accused gave evidence that he had a good relationship with his daughter. He said she had not shown any signs of not wanting him around and that she had given him Father’s Day gifts. Two of these gifts were tendered.[45] These two gifts had been made at school by EG for him.
[44] TT 174
[45] D7
The accused gave evidence that he had a shed at the Victor Harbor property. He agreed that it was referred to as the “man shed”. He had had access to that shed since January or February 2012. He said that he spent quite a lot of time in the “man shed”. He went out probably every night for a couple of hours. There were occasions when his daughters went out there with him. It was usually EG but sometimes they would both go. When they were in the “man shed” EG would often read a book or play on her IPod. He also played games with them out in the shed. He described a particular game that they played with a plastic gun.[46]
[46] TT 178
The accused gave evidence that there were occasions when he gave his daughters “horsey rides”. He gave evidence that he had slept in EG’s bed overnight and also in her younger sister PG’s bed overnight.
In relation to the incident that was said to have occurred with a rubber band and his genitalia he gave evidence that that did not happen. He gave evidence that he was not interested in that type of activity and that he had personal experience of blows to the genitalia and he has “hit the ground pretty hard” when that has occurred.[47]
[47] TT 180
He went on to say that there had been a discussion in about 2012 in the house in relation to tail docking and that it arose when they were watching a program on television called “Everyone Loves Raymond”. He said that EG was present for that conversation that had occurred in the lounge room of the house at Victor Harbor.
He gave evidence that EG has spoken to him about her dreams. He said that she had told him that she had had sexual dreams and the first time she told him about that was when they were living in Adelaide. During those conversations she said that they were both in the dreams. He was only able to recall two conversations in which the dreams were mentioned; the last of those conversations was probably as late as February or early March 2012. The accused gave evidence that EG was very affectionate towards him. She would kiss and cuddle him more than once every day and tell him that she loved him.
The accused gave evidence in relation to HC. He denied that he had had inappropriate conversations with her although he had had some conversations in which had wanted to pay her compliment. She denied any sexual interest in her at all. He said that he had asked for photographs of her but they were family photographs.
The accused gave evidence that he had never been in trouble with the police.[48]
[48] TT 185
He was cross-examined. He was asked about the choice of the word “pussy licking” and putting that on to his 10 year old daughter’s IPod. He agreed at the time he had put that word on to the IPod she was standing beside him. He put the word on IPod in the knowledge that an image would come up but he did not know what image. He knew that the term “pussy licking” was a term for cunnilingus and even so he was prepared to put that word into the IPod whilst his daughter was standing next to him.[49] The accused denied that he had ever been watching pornography and touching himself in the presence of EG.[50] He denied that he had ever shown her pornography.
[49] TT 187, 188
[50] TT 189
The accused was cross-examined about the circumstances in which his wife had started working at the Queen Elizabeth Hospital. He agreed that she had started doing the early shift in about August 2008 and she would leave home between 4.30am and 5.00am. He said she would wake up about 4.00am get ready and then leave and she would wake him up because she was pretty noisy getting ready for work. He would then go back to sleep, after she had left, until about 7.30am. He was cross-examined about the time when he had played the “shooting game” with EG and her sister. He agreed that one of them would pretend to die in the game and on one occasion PG had pretended to die. He said there was only one occasion when PG had in fact played the game.
In relation to the dreams he said that EG had told him about the dreams that she thought had sex in them and that they had both been in the dreams. However, he did nothing about this, he did not speak to her mother about it, and his response to EG was that she should keep those dreams to herself.
In all he denied any inappropriate touching of EG. The accused also denied having worn some pants that EG had described in her statement.
Prior inconsistent statements
As I have already referred to, the complainant was cross-examined about some statements that had been made prior to her giving evidence. It was suggested that these were prior inconsistent statements. One of these statements related to touching on the breast in the “man shed”. There is certainly an inconsistency between what the complainant said in court and what she had said in the statement that she made shortly before trial. However, the complainant maintained that what she had said in court and what she had said on other occasions prior to the statement she made shortly before the trial was the correct statement. I accept that the issue in relation to the inconsistency in the statement prior to trial is explained in the Agreed Facts that I have referred to. It was an error made by the prosecutor when she typed up the proofing notes. It would appear that the distinction in whether the offence occurred in Victor Harbor or in Adelaide was lost on the complainant.
A further inconsistency is said to have occurred in relation to how many times the incidents happened. Her explanation was that they occurred once maybe two times, she could only remember them occurring twice.
A further inconsistency was put to her in relation to the incidents related to the rubber bands. In her interview on 21 September 2012, which was the first time she had spoken at length in relation to these alleged events, she said that it sometimes occurred in her room but mainly in the shed. In evidence she said she could only remember it happening in the “man shed”. There was also an inconsistency in relation to how often it occurred.
I have considered all of these inconsistencies. I do not consider that any of them are so significantly different from the statements that were made on earlier occasions as to cause me concern in relation to the credibility and reliability of the complainant in respect of the substantive allegations.
Discussion
The evidence in relation to the allegations in this matter comes primarily from two sources. One is the statements that were admitted pursuant to section 34CA of the Evidence Act 1929 and the second is the evidence of the complainant in court.
The complainant has made a statement that provides evidence in respect of each of the particulars on the charge. Each of those particulars must of course constitute a sexual offence a defined within section 50(7) of the Criminal Law Consolidation Act 1935.
In respect of the particular, that is “showing EG pornography”, I raised with counsel the issue of what sexual offences referred to in that section related to this conduct. I was told that the Crown relied upon section 58 of the Criminal Law Consolidation Act 1935 being an act of gross indecency.
The question of what constitutes the offence of committing an act of gross indecency in the presence of a person under the age of 16 years is to be considered having regard to Parliament’s intention that section 58 has a wide operation to ensure the protection of children.[51] The physical touching of the child is not required.
[51] R v AWL [2003] SASC 416.
In the circumstances, playing a film that shows pornographic material in the presence of a child under the age of 16 could constitute an act of gross indecency. On the prosecution case, the playing of the pornographic material was a deliberate act that occurred in the presence of the complainant. On the defence case it was an accidental act that occurred whilst the accused was looking through a folder containing photos of cars that also contained some pornographic material. I am satisfied that it has been established that the accused deliberately played material of a pornographic nature on his laptop computer and that he did so knowing that the complainant, who was under the age of 16 at the time, was watching it with him. Indeed, it was his intention that she be watching this material at the time he was playing it. I find that this conduct constitutes the offence of gross indecency.
There was material presented to me in the form of section 34CA statements and evidence in the courtroom that there had been digital penetration of the vagina of the complainant. This conduct is not one of the particularised acts of sexual exploitation on the Information. I have therefore used this conduct in the form of uncharged conduct. I was not presented with a section 34P Notice in respect of it. However, I find that it is admissible evidence. I use this evidence to put in context the other conduct that was particularised on the Information. I do not use it as propensity type reasoning.
I have scrutinised the complainant’s evidence with care. I have watched and listened to the material that is contained within the statements that were admitted pursuant to section 34CA of the Evidence Act 1929. I also observed her giving evidence in the courtroom. Whilst she is young, her explanations in relation to activities that occurred between her and the accused are compelling. Her explanations for how the accused committed the offences and what it felt like were also compelling. I found her explanation of ejaculate fluid to be accurate. It was an explanation that could not have been given in my view simply by having been told about such matters or even having seen such matters on pornographic material.
The complainant was generally consistent in all relevant matters.
The complainant complained in a spontaneous manner. Her complaint was fulsome. It contained many of the details that she then provided a statement to the police about. Her initial complaint and statement to the police did not contain any detail in relation to the accused having asked her to punch his testicles whilst he had a rubber band tied around his genitals. Her explanation in relation to not having immediately spoken about those matters was that she did not immediately remember those matters when she was first spoken to by the police. She said that she was in the car listening to the radio looking out the window and for some reason it just came into her head and she told her mum.[52] I accept that that was the case.
[52] TT 89
The nature of this activity is significantly different to the other sexual activity that she says has occurred between her and her father. It would be difficult for a child to identify all different types of sexual activity that may have occurred between her and her father especially when it has occurred in the course of an activity that was seen as a game rather than an adult may characterise it.
A submission was made by the accused that the version given by the complainant in relation to the tying up of the genitals was such as to be unbelievable. It was suggested that no person would in fact engage in such an activity in this way. It was suggested that it would cause so much pain to punch a man in the genitals that it would be most unlikely that he would laugh as a result of this being done. It was suggested that I should reject the complainant’s version of this activity.
I accept that this behaviour is not an activity that is commonly engaged in. However, it is well known that people do engage in sexual activity that causes pain or discomfort to them. It is also well known that some people get sexual gratification from engaging in such activities. The complainant gave significant detail in relation to this activity. She was largely consistent in relation to her account of it. I reject that it was made up by her after there had been a conversation about docking of dogs’ tails in the family. I accept that whilst it is unusual behaviour, it is behaviour that the accused did in fact engage in.
In this matter evidence was lead in relation to the term “pussy licking” having been placed on the IPod of the complainant by the accused. This evidence explains how these matters came to light and what occurred after that. However, I make it plain that I have not used that evidence to conclude that the accused had a sexual interest or an attraction towards the complainant. Nor have I used it to conclude that he has a propensity to behave in a sexual manner towards the complainant. I have as I said used it in the sense that it explains the context in which this offending first came to light.
The accused gave evidence in this matter. I have considered his evidence. I do not consider that his evidence in relation to his denials of the sexual activity between he and the complainant is reasonably possibly true.
The accused gave evidence that he had a close relationship with the complainant. I find it concerning that he did not speak with his wife concerning the issue of the pornographic material on the IPod after he had entered the words “pussy licking” and had shown the complainant the material that had come up on the IPod. I also find it concerning that despite the fact he says the complainant discussed dreams of a sexual nature when she was about the age of 10 he did not discuss this with her mother.
When an issue arose in relation to inappropriate sexual activity between the complainant and her cousin, who was about the same age as EG, he did not mention that to her mother either. The explanation that the accused proffers in respect of the incident with her cousin is that he basically just forgot about it, he had no proof, so he just forgot about it.[53] In relation to not having spoken to his wife about the pornographic material on the IPod, he said he did not know what was said to her in relation to it and when asked “did you tell [M] that you had that conversation” the answer was “no”.
[53] TT 175
In relation to the dreams, he said that he had not spoken to anyone in the family about that topic.[54] He was re-examined in relation to this matter.[55]
[54] TT 195
[55] TT 200:32 – 201:7
QSecondly, her Honour asked about having dreams involving sex and her father. Did she say that you were both in the dreams, that’s the first thing. She said that you were both in the dreams.
ABoth in the dreams, yes.
QDid she say that it involved some sort of sexual contact with you.
AShe didn’t describe anything like that.
QDo you know what I mean by making a mountain out of a molehill.
AYes.
QDid that have any application to your decision not to visit that topic further at the time.
APretty much.
I find that these explanations for his behaviour lack credibility. I also find that his explanation for why he entered the term “pussy licking” on the IPod is untrue.
I have taken into account the material that was tendered by the accused in relation to the schoolwork that demonstrates that the complainant held him in high regard.
I do not find that evidence convincing in relation to a good relationship having occurred between he and the complainant such that he had not been committing sexual offences against her. Those exhibits needs to be seen in light of the fact that they were both prepared in the classroom setting as a father’s day gift for the accused. There can be no doubt however that the complainant described that she had a very close relationship with her father and I can see no reason why she would not have prepared both of those gifts in the spirit that they were intended. It does not create a doubt in relation to the complainant’s evidence.
I did not find the accused to be a credible witness. I reject his version that he had not had sexual activity with the complainant. I do not find that it is reasonably possible. I reject the submission that the complainant may have dreamt or imagined the sexual acts.
The complainant gave a compelling account in court and in section 34CA statements. She was credible. She was reliable. She complained in a manner that was consistent with the activity that had occurred as she alleged in her evidence in court.
I find beyond reasonable doubt that the accused was an adult between the dates of 3 August 2010 and 22 April 2012. I find beyond reasonable doubt that during that time the complainant was a child under the age of 17 years. I find beyond reasonable doubt that the accused touched her breasts, that he touched her on the vagina, that he caused her to touch his penis, that he caused her to lick his penis, that he licked her vagina, that he showed her pornography, that he attempted to insert his penis into her vagina, that he caused her to punch his testicles and he touched his penis in her presence. I find that each of these acts is a ‘sexual offence’ as defined by section 50(7) of the Criminal Law Consolidation Act 1935. I find that the sexual activities commenced whilst the family were living at North Haven after her mother had commenced work at the Queen Elizabeth Hospital and that they continued when the family moved to Victor Harbor.
I therefore find beyond reasonable doubt that APG committed more than one act of sexual exploitation of the complainant and that these acts occurred over a period of not less than three days.
I find APG guilty of the offence of Persistent Sexual Exploitation as charged.