R v G, Da
[2016] SADC 36
•11 April 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, DA
Criminal Trial by Judge Alone
[2016] SADC 36
Reasons for the Verdict of His Honour Judge Slattery
11 April 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Verdict:
I find the accused guilty of counts 2 and 3 on the Information; I find the accused not guilty of count 1 on the Information.
Juries Act 1927 s7(1) ; Criminal Law Consolidation Act s50; Evidence Act s21, s34M, s34CB, referred to.
R v C, M [2014] SASCFC 116 (Court of Criminal Appeal), applied.
Sabet v The Queen [2011] VSCA 124, discussed.
R v HT (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; R v Landmeter (2015) 121 SASR 522; R v Hollsten [2015] SASCFC 178; R v Finn [2014] SASCFC 46; Crowe v Graham (1968) 121 CLR 375; R v Lees (1968) 52 Cr App R 185; R v Kilbourne (1972) 56 Cr App R 828; R v Court [1989] 1 AC 28; R v Harkin (1989) 38 A Crim R 296; R v Usher (2014) 119 SASR 22; R v Maiolo (No. 3) [2014] SASCFC 89; R v England (2013) 116 SASR 589; R v Hollsten [2015] SASCFC 178; R v Landmeter (2015) 121 SASR 522; BBH v R (2012) 286 ALR 89; 86 ALJR 357, considered.
R v G, DA
[2016] SADC 36Judge Slattery
This is a trial by Judge alone. The accused DAG is charged on Information dated 12 May 2015 with the following offences:-
First Count
Statement of Offence
Persistent Sexual Exploitation. (Section 50 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DAG between the 1st day of January 2007 and the 7th day of July 2012 at Unley and other places, over a period of not less than 3 days, committed more than one act of sexual exploitation of JMG, a child under the prescribed age:
(a)…
(b)by touching her vagina with his fingers.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DAG between the 1st day of January 2012 and the 7th day of July 2012 at Unley, indecently assaulted JMG, a person under the age of 14 years.
It is further alleged that DAG committed the offence knowing that JMG was under the age of 14 years.
Third Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
DAG between the 1st day of January 2012 and the 7th day of July 2012 at Unley, indecently assaulted JMG, a person under the age of 14 years.
It is further alleged that DAG committed the offence knowing that JMG was under the age of 14 years.
The accused pleaded not guilty to the charges. He elected to be tried by a Judge sitting without a jury pursuant to s7(1) of the Juries Act 1927.
Notwithstanding recent decisions of the Court of Criminal Appeal about matters that need to be stated by a Judge sitting without a jury and accepting that it is not necessary for me to set out every obvious and basic direction which might be given to a jury, it remains necessary to record those directions about which I should remind myself. They are as follows:-
1. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2. The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3. The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5. Each of the counts on the Information concerns a separate offence; I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6. The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7. I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected to give evidence. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the ingredients of the charge. The accused elected to give evidence on oath and I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.
In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as it is for any other witness.
8. Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lay in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
I have set out hereunder the basic elements of each of the charges which the prosecution must prove beyond reasonable doubt. The first, second and third counts are alternative counts. This means that if I am not satisfied beyond reasonable doubt that the prosecution has discharged the onus upon it under count one, I may still consider whether the prosecution has proven beyond reasonable doubt each of the elements of the second or third counts on the Information alternatively.
The elements of the offences
The elements of the offences in respect of each count are as follows:-
First count: persistent sexual exploitation (s50 of the Criminal Law Consolidation Act, 1935)[1]
[1] s50 relevantly reads as follows:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3) …
(4)…
(5) …
(6) …
(7) In this section—
prescribed age, in relation to a child, means—
(a) in the case of a person who is in a position of authority in relation to the child—18 years;
(b) in any other case—17 years;
sexual offence means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.
(8) …
The integers of this offence to be proved beyond reasonable doubt, are as follows:-
1. An adult person.
2. Over a period of not less than three days.
3. Committed more than one act of sexual exploitation.
4. Of a child under the prescribed age (17 years: s50(7) Criminal Law Consolidation Act).
An adult commits an act of sexual exploitation of a child if that person commits an act in relation to the child of a kind that could be the subject of a charge of a sexual offence. The sexual offence particularised is that the accused is alleged to have touched the vagina of JMG with his fingers. This alleged activity is a sexual offence within the Criminal Law Consolidation Act (CLCA).
Count two and three: aggravated indecent assault
The integers of this offence to be proved beyond reasonable doubt are as follows:-
1. An assault by the accused person on the complainant. An assault is any application of force. Touching is sufficient. It need not have caused injury.
2. The touching was intentional as distinct from accidental.
3. The touching was without lawful excuse.
4. The touching was in circumstances of indecency – that is, conduct that is unbecoming or offensive to common propriety and that the circumstances have a sexual connotation.
5. An assault which is aggravated namely that the accused is alleged to have committed the offence knowing that JMG was a child under the age of 14 years.
At this juncture it is necessary to identify the issue of indecency mentioned in the fourth integer above. In R v C, M,[2] the Court of Criminal Appeal gave consideration to the question of indecency and the proper directions required when considering that topic. I will deal with that matter later in these reasons.
[2] [2014] SASCFC 116 (Court of Criminal Appeal).
Video link evidence
On the application of the prosecution and by leave of the court, the complainant JMG gave her evidence via video link as did the brothers of JMG namely KAMG and JJG. I do not draw any particular inference adverse to the accused as a result of this process being used nor would I allow any of those arrangements to influence the weight that I have placed upon the evidence of the complainant JMG or the witnesses KAMG and JJG.
Section 21 Evidence Act
Section 21 of the Evidence Act reads as follows:-
21—Competence and compellability of witnesses
(1)A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2)Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3) Where it appears to a court to which an application is made under subsection (2)—
(a) that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
(3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of the opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.
(4) Where a court is constituted of a judge and jury—
(a) an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and
(b) the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.
(5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—
(a) is aware of his or her right to apply for an exemption under this section; or
(b) is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
(6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.
(7) In this section—
close relative of an accused person means a spouse, domestic partner, parent or child.
In relation to the witnesses JMG, KAMG and JJG I formed the view that the accused DAG was a close relative and that they were entitled to ask the Court for an exemption from the obligation to give evidence against the accused in the proceedings. I formed the view that by them giving evidence there would be a substantial risk of serious harm to the relationship between the prospective witnesses and the accused and that having regard to the nature and gravity of the alleged offences there may be insufficient justification for exposing the prospective witness to that risk.
I explained to each of those witnesses, JMG, KAMG and JJG that under s21 of the Evidence Act they may apply for an exemption from the obligation to give evidence against the accused in the proceeding. Although it was not clear whether TAG (the mother of JMG, KAMG and JJG), who was formerly married to the accused may be seen to be a close relative, I also gave the same information to TAG. After each of those persons, JMG, KAMG, JJG and TAG received the relevant information under s21 of the Evidence Act, each of them separately informed me of their willingness to proceed to give evidence and that they would not seek an exemption from the obligation to give evidence from the accused. I was satisfied that each of them understood the information that I was giving them and freely made the decision to proceed to give evidence.
Introduction
The complainant JMG is the daughter of DAG and TAG. JMG was born on 4 June 2001. DAG and TAG have two other children, sons KAMG and JJG both of whom are older than JMG. JJG is one year older than KAMG.
The dates upon which the offences with which the accused is charged are alleged to have occurred vary according to the counts. On the first count, the offences are alleged to have occurred between 1 January 2007 and 7 July 2012. Counts two and three are alleged to have occurred between 1 January 2012 and 7 July 2012. All of the counts are alleged to have occurred at the home of the accused and his family in Unley.
On 1 January 2007 JMG was 5 ½ years old and on 1 January 2012, JMG was between 10 and 11 years old.
Background: the house at Unley
There is only one address with which the charges are concerned. It is the house at Unley. The family of TAG and DAG occupied that house. It was owned by TAG’s father as was the adjoining house occupied by TAG’s brother R. The Unley home which has a street frontage facing north and comprises three bedrooms, a main bedroom and two adjacent bedrooms. It also comprised a separate dining room and lounge with a separate kitchen, separate bathroom and a laundry facility which may be described as a “cupboard laundry”.
A view was taken of the property. The house is still disposed as it was during 2007- 2012. The home was renovated by the accused over a period of time and DAG and his family lived in the home for about 15 years. At the rear of the premises (on the south side) there is a sheltered patio area. It comprises chairs, tables, a barbeque and fridge.
The house is a typical bluestone villa which comprises a central hallway and is of solid stone construction with a corrugated iron roof. The main bedroom sits on the western side of the house and the two other bedrooms on the eastern side of the house. One of the bedrooms on the eastern side, furthest from the front door is occupied by JMG. A second bedroom, adjacent to the front door on the eastern side was at the relevant times occupied by KAMG and JJG. There was a form of double bunk bed arrangements within that room. JJG occupied the upper bunk and KAMG occupied the lower bunk. JMG’s room comprised one single bed. Opposite JMG’s room was the dining room which was adjacent to and south of the main bedroom. Adjacent to the dining room and accessed through a doorway and a small stairway, was the lounge area which comprised two main areas, a television area and a smaller library area. On the southern wall of the lounge were two sliding doors. At the end of the central hallway was a secured rear door on the south end of the house. These doors at the south end of the house opened out into the patio area. South of JMG’s room was the kitchen. Adjacent to the kitchen was the bathroom.
On the outside down the western side of the house there was a narrow walkway. At the end of that space, nearest the northern end of that area was a fixed fence. On the eastern side, it was possible to take access to the front of the house from the rear or southern end of the house through a gateway on the eastern side of the back area. It was possible to walk down the eastern side and around the front of the house.
The door to the bathroom consisted of two panels of mottled glass at the top and one fixed dense wood panel on the bottom. There was a handle on the door which could be locked on the inside. Immediately to the left of that door was a basin and a mirror arrangement. That basin and mirror arrangement was directly opposite the door of the shower alcove. To the east of the basin and mirror was a three quarter sized bath which sat along the northern and eastern wall of the bathroom. Adjacent to the bath was a toilet which faced onto the eastern wall of the shower alcove.
In the shower alcove there was a glass door which was capable of swinging both in towards the shower and out towards the room itself. The width of the shower door was 610mm. The eastern wall of the shower alcove measured 1200mm. The southern wall of the shower alcove measured 1155mm and the northern wall of the shower alcove measured 1090mm. The difference between the eastern and western walls of the shower alcove is accounted for by the fact that the eastern wall was freestanding whereas the western wall formed a t-junction with the northern wall of the shower alcove. The distance between the joinder point of the eastern and northern wall of the shower alcove to the door opening was 540mm. Within the shower alcove western wall was an indented soap receptacle area. It was 1385mm from the ground. It measured 490mm in height by 315mm in width.
On the northern wall of the shower and inside the shower cubicle were two taps. These two taps were in alignment up the wall.[3]
[3] See exhibit D14, D3, P7, D3(a) and D3(b).
The factual allegations
The allegations surrounding count one on the Information are that JMG alleges that on two occasions, the dates of which she cannot recall but she does recall that at the time of the first occasion at least she was being taught by Mr RB who was her year 3 teacher, the accused is alleged to have entered the bathroom while she was having a shower. The evidence of the complainant JMG and the evidence of her mother TAG is that it was the usual practice that when the complainant was having a shower, persons would enter the bathroom to use the toilet. The complainant alleges that the accused on two occasions, entered the bathroom, opened the shower door outwards, knelt on the floor whilst she was under the water of the shower, reached into the soap alcove in the shower wall, pressed soap into his hands, rubbed his hands together and then, using his hands in a vertical motion, rubbed his right hand in the area of her vagina. The complainant recalls that both occasions occurred at night when it was dark outside. The complainant said that at the time she took showers on her own. Her mother TAG said that she sometimes gave the complainant assistance to wash her hair. The complainant did not say anything to her father at the time and she did not recall her father saying anything to her at the time. After her father had acted in this way, the complainant said her father washed his hands under the shower water, dried them and left the bathroom.
The subject of counts two and three concerned an event in 2012. On a night likely to be a Saturday night according to the evidence of TAG, the complainant, her two brothers and TAG were watching a film on the television. The complainant was in her nightie which had no sleeves and she was wearing knickers which were in the nature of netball shorts. The evidence of the complainant was that she fell asleep during the film. She woke to the feeling of someone massaging the area of her vagina outside of her underwear. When she looked she could see that it was her father doing this. He then placed his left hand under her underwear and massaged the area of her vagina. She turned away from her father on the couch. He stopped what he was doing. She then went to her bedroom and spoke with her brother KAMG. She slept in KAMG and JJG’s bedroom that evening. The next morning she told her mother. Some two weeks later the accused left the family home permanently. The accused and TAG are now divorced.
Burden of proof
Although I have earlier set out the direction about which I have reminded myself, it is necessary to expand a number of matters.
The accused is not required to prove anything and no burden falls upon him. He is not required to give evidence and he could choose not to do so. The accused did give evidence. His evidence is entitled to be treated and assessed the same way as any other witness called before the Court but always in the context that he is not required to prove anything. I have proceeded to assess the evidence of the accused in the same way as I have assessed every other witness in the trial.
Complaint – s34M[4]
[4] 34M—Evidence relating to complaint in sexual cases
The allegations in this matter arise from conduct between 2007 and 2012. Evidence was led in relation to the complainant of a complaint made to her brother KAMG and to her mother. I remind myself that, if accepted by me, this evidence is not admitted as evidence to the truth of what was alleged; if it is admitted, then it would only be admitted as evidence that may go to the consistency of the conduct on the part of the complainant and thus tending to enhance her credibility. I also remind myself that if the complaint is inconsistent with the occurrence of the conduct complained of, then, depending on the level of inconsistency, the evidence has the capacity to detract from the complainant’s overall credibility.[5] Evidence of complaint must relate to the conduct on which a charge or charges are based before it can enjoy any potential to enhance the complainant’s credibility. The approach to these matters must not be unduly technical and must be a common sense approach having regard to the fact that this is a matter of fact and degree.[6] If there is more than one aspect of complaint evidence, then a question of elaboration arises.[7]
Forensic disadvantage[8]
[5] R v HT (2010) 108 SASR 86 at [46]-[49] per Gray J.
[6] R v El Rifai [2012] SASCFC 98 at [130]-[133] per Kelly J.
[7] Compare R v Landmeter (2015) 121 SASR 522; R v Hollsten [2015] SASCFC 178.
[8] See the discussion in R v Finn [2014] SASCFC 46 at [17]-[35].
I am of the view that the period of time since the alleged offending and the commencement of trial has resulted in a significant disadvantage to the accused. The accused may, depending upon the issues arising on the individual counts, have been able to have someone vouch for his movements, or provide an alibi, or find forensic evidence which may have been available or not found (which can be equally important). There may have been other issues he may have been able to raise. I must therefore take into account this forensic disadvantage when scrutinising the evidence.
When discussing the whole of the evidence in this matter and when making the findings that I have made about the evidence, I can say that I have done so taking into account the forensic disadvantage suffered by the accused.
I am also required to scrutinise the evidence of the complainant with great care. Because of the effluxion of time, there was no independent support for the evidence of the complainant as it related to the charges concerning the alleged shower events. There is some independent support for the evidence of the complainant in relation to the alleged events in 2012. A Court sitting without a jury is not obliged to give a warning that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim. However in the circumstances of this case, I intend to approach the complainant’s evidence with a measure of caution and to scrutinise it with care.
Prior to s34CB of the Evidence Act 1929 being enacted, a Longman Direction would have been required. It is arguable in my view that s34CB(1) does not totally remove the discretion of a trial Judge to direct a jury by way of a Longman Direction but I do not have to decide that point here. Even if I had directed myself in terms of Longman, it would not have affected my assessment of the complainant nor the conclusions I have drawn from her evidence.
Legal principles
It is necessary to set out the applicable legal principles that guide me in the process of my decision making. They are:-
1. The focus is and remains upon the findings that I make about each of the elements of the offences and whether they have been proved to my satisfaction beyond reasonable doubt;
2. It is not sufficient merely to, for example, reject the version of events of the accused;
3. It is insufficient for me to merely prefer the version of events of the prosecution witnesses;
4. The proper test is whether having regard to the evidence of the prosecution witnesses separately and as a whole, the prosecution has proved each of the elements of the offence beyond reasonable doubt.[9] This requires far more than to conduct an exercise in relative persuasiveness;[10]
5. It is necessary for me to assess the whole of the accused’s evidence and keep constantly in mind that if it raises a reasonable possibility, then it also raises a defence and I could not be satisfied of the guilt of the accused beyond reasonable doubt; and
6. In order to be satisfied of proof beyond reasonable doubt, it is necessary for me to be satisfied that there is sufficient evidence to support a finding by me of guilt beyond reasonable doubt.[11] This will include an assessment of the reliability of the evidence of the prosecution witnesses and whether it establishes the offence sufficiently to satisfy the criminal standard.[12]
That is the way I have proceeded in this matter.
[9] Liberato v The Queen (1985) 159 CLR 507; R v Lavery (2013) 116 SASR 242.
[10] Lavery at [3].
[11] Douglass v The Queen (2012) 86 ALJR 1086.
[12] Ibid at [14].
Evidence: the witnesses - summary
I have now had the opportunity to carefully consider all of the evidence as well as the submissions made in this matter. The complainant was giving evidence of events that occurred between 5 and 6 years ago and from a time when she was about 5 ½ years of age to the time she was about 10 to 11 years of age. In my opinion, some allowance has to be made for those circumstances. I have borne that in mind the age of the complainant when assessing the evidence of the complainant.
For the reasons which I set out later, I have generally found that the complainant JMG to be an excellent witness and I generally accept her evidence beyond a reasonable doubt. I have found her to be a compelling, truthful, reliable and credible witness. I also found the complainant’s mother TAG to be a compelling, truthful, reliable and credible witness. I accept her evidence beyond a reasonable doubt. Minor evidence was given by the brothers of the accused KAMG and JJG. I have found JJG to be a compelling, truthful, reliable and credible witness. I accept his evidence beyond a reasonable doubt.
KAMG suffers from Auditory Processing Disorder.[13] As a result, he has difficulty recalling messages from his brain and writing them on paper. He presented in a slightly unusual way when he gave evidence. Those concerns were allayed slightly by the explanation given by his mother TAG about the Auditory Processing Disorder which he suffers. That said, I have found him to be a compelling, truthful, reliable and credible witness. Subject to some matters upon which I make comment later, I accept his evidence beyond reasonable doubt.
[13] T92.5.
In these reasons I will separately assess the evidence of the accused in detail. However, it is apparent to me that at the time of these alleged offences the accused regularly consumed very large amounts of alcohol (usually nightly). He said to the Police in 2014 that on each night at the relevant time, he consumed very large quantities of beer and spirits and drank himself to the point where he had no recollection of events. He usually drank with his brother-in-law R in R’s house which was the house next door to the Unley home. He told Police at the Police interview (which I will set out in detail later) that he could not say one way or the other what happened on a night in question (during 2012) because he was so affected by alcohol he could not say one way or the other.
However, when he did give evidence, and notwithstanding what he told Police in 2014, he informed the Court that he was able to say with precision what happened at any particular time on the night in 2012. He was adamant that on that night he did not enter the home, sit on the lounge or touch his daughter on the evening of the events which are the subject of the second and third counts. He now has this recall of events because he has thought a lot about the events and could now say what happened notwithstanding that, two years after the events, he could not remember that evening. I am not prepared to accept this version of events: I will explain this finding in detail later in these reasons.
Summary of the facts surrounding the charged offences
JMG gave evidence and said the first occasion which her father touched her, she was in the shower. She said that her father walked in and opened the shower door, knelt down, got some soap from the soap dispenser in the shower recess, put it on his hands, rubbed them together and then rubbed his right hand between her legs on her vagina.[14] JMG did not know how old she was when this occurred but she recalls she was in year three at school. Her memory is that her teacher at the time was Mr B.[15] The incident took place at night time because she recalls she had the light on in the bathroom and she showered at night time. TAG gave evidence that JMG showered either in the morning or at night time.[16] The shower door was clear and not opaque glass and the shower door opened both inwards and outwards and when her father was there, it had opened outwards.[17] The bathroom door was closed but it had not been locked because people come into the bathroom to use the toilet at times when she showered.
[14] T25.36.
[15] T26.11.
[16] T93.7.
[17] T26.26.
JMG said at this time, after her father had put the soap on his hands, he rubbed his hands in a vertical motion on the outside of her vagina and rubbed her about four or five times. One finger on his hand came into contact with her vagina. His hand was in the vertical position.[18] At that time she was standing naked under the shower and does not remember where he was looking at the time. There was no conversation between them and she was unsure how long the whole event took. When he finished, he washed his hands with water from the shower, dried them and walked out and closed the door. As best as she could recall, the bathroom door was closed when this event occurred.[19]
[18] T27.19; T28.32.
[19] T29.16.
JMG gave evidence that a second event occurred. She said her father touched her one more time in the same fashion whilst she was in the shower. The incident took place on another day but she cannot now recall when it was after the first incident.[20] She thinks it might have been more than one day afterwards but she cannot be sure.[21] On the second occasion, her father did the same thing. He came into the bathroom, opened the shower door, put soap on his hands, held his right hand in the same vertical position and rubbed his hands on the outsider of her vagina.[22] JMG said she had a light on in the bathroom at the time she was having a shower and she could see her father’s face. Again there was no conversation between them and again it was over in a short period of time. Similar to the first occasion her father washed his hands, dried them and left the bathroom.[23]
[20] T30.5.
[21] T30.17.
[22] T30.25.
[23] T30.38-T31.16.
In cross examination, JMG confirmed she made a statement to the Police in February 2015. She had made earlier statements to the Police where she said she had not been sexually interfered with by her father apart from another incident that happened in the lounge.[24] She confirmed that her mother TAG was sometimes with her in the bathroom when she had her shower. TAG confirmed that from time to time she washed JMG’s hair while she was in the shower.[25] JMG confirmed her father never did this.[26] JMG also confirmed in cross examination that the accused got the soap from the soap dispenser in the recess and had to reach over to get it.[27] JMG said she was sure the bathroom door was closed at the time of the first incident and the second incident.[28]
[24] T71.2.
[25] T93.4.
[26] T71.32.
[27] T73.4.
[28] T73.16.
JMG confirmed in cross examination that she said nothing to her mother or to her brother about these first two incidents. When it was put to her that the incident never took place she confirmed that it did but she could not recall what time of the year the incident took place and she was not able to identify when the first incident occurred.
JMG was cross examined about the second incident.[29] She confirmed that the second incident in the shower occurred in the same fashion as the first,[30] although she does not remember on this occasion her father reaching across her to get the soap. She thinks the second occasion happened at night but she could not say what day of the week.[31] She recalls that at the time of the second incident her mother and brothers were at home but she does not recall how old she was.
[29] T74.21 et seq.
[30] T75.2.
[31] T75.20.
JMG gave evidence of a third alleged incident.[32] She said she thought she was about 10 or 11 years of age and she thinks she might have been in year 5 at school.[33] The incident took place in the lounge room of the house in Unley. She was sleeping on the lounge. She had been watching a movie with her mother and brothers and she had fallen asleep.[34] When she had woken up in the lounge room her father was there but her mother and brothers were not there.[35] There were no lights on but there was light spilling into the room from lights on the outside of the house.
[32] T31.17 et seq.
[33] T31.19.
[34] T32.2.
[35] T32.11.
JMG knew her father was present in the room when she woke up because she could see his face in the light that was available in the room. At the time she lay down on the couch, she was wearing a nightie with underwear. She was on the long part of the lounge.[36]
[36] See exhibit D3A and exhibit P2.
JMG said she had woken up on the couch because she could feel something touching her vagina.[37] She said she felt someone rubbing a hand on the outside of her underwear on her vagina. It was then she woke up and saw her father sitting next to her on the couch. She was laying fully stretched out on the couch. She had a cushion behind her head. She obtained that cushion from her bedroom earlier in the evening. The accused’s right arm was around the cushion behind her and the other hand, the left hand, was rubbing on her vagina.[38]
[37] T33.7.
[38] T34.5.
JMG said she felt the accused rub her vagina twice on the outside of her underwear. When this occurred JMG did not look at the accused and did not say anything to him. She could see his face clearly.
JMG said once the accused had stopped rubbing her on the outside of her underwear, he put his hand inside her underwear from the waist at the top and rubbed her vagina twice with a finger. He was still using his left hand.[39] It was then that she rolled onto her stomach and told the accused she was going to bed. When she rolled onto her stomach the accused took his hand away. She cannot recall whether she said anything to the accused on this occasion and she confirmed where she was on the couch by reference to exhibit P2.[40]
[39] T34.29.
[40] T36.15.
JMG said when she was going to bed, she went into her brother’s room. She woke her brother KAMG and told him words to the effect “dad touched me” although she cannot remember the exact words.[41] JMG said she did not see her brother JJG in the room at the time but she was sure he was in there and she stayed in her brothers’ room for the whole night.
[41] T38.1.
She recalls when she woke the following morning, she went and spoke to her mother in her parents’ bedroom.[42] Only her mother was present[43] and she told her mother that her father had touched her on the lounge. She thinks she told her mother that her father had touched her on the vagina.[44] She does not recall whether she told her mother that her father had touched her on the inside or the outside of her underwear.
[42] T38.25.
[43] T38.31.
[44] T38.35.
Her best memory is that her father moved out of the house about two weeks after this incident.
JMG recalled that when she was watching the film in the lounge room, her mother and her two brothers were with her[45] and that her father did not come into the room to watch the movie at any time that she was awake.[46] She confirmed she had a pillow with her that came from her bedroom[47] and confirmed that when she first spoke to the Police she told them she got her pillow after the alleged incident. She said that was wrong and she did not go into her room to get the pillow after the incident but in fact before. She was resting on the pillow at the time she fell asleep on the lounge.[48]
[45] T41.11.
[46] T41.20.
[47] T42.4.
[48] T42.17.
JMG confirmed in cross examination that she did not know where her father was on the night, but she thinks the event occurred on the weekend and this was because on the following day she thought the family were going to a birthday party for a friend of the accused. She does not know whose birthday it was but they did not end up going.
JMG confirmed she knew her father drank with her uncle, R next door and that she does not know whether that occurred on this night.[49] JMG said when she woke up, she could not recall smelling alcohol on his breath. She did not know the time when her mother and brothers went to bed. All she can recall was that she thought it was a warmer night[50] but she thinks it happened in July although she is not 100% sure. She has not discussed dates with her mother.[51] She recalls she was wearing a nightie on that evening, it did not have any sleeves and she does recall telling the Police that she was wearing netball shorts style knickers at the time. There was elastic around the waist. They were pink as was her nightie.[52] All she can recall is that she thinks the evening was warm[53] and she thinks that her father was wearing jeans, a shirt and perhaps a leather jacket.[54]
[49] T44.5.
[50] T45.2.
[51] T45.11.
[52] T49.1-12.
[53] T49.24.
[54] T50.2.
In cross examination, JMG said she specifically remembered her father rubbing her vagina twice on the outside of her underwear and twice on the inside of her underwear. In evidence she said she was unsure what finger he was using but she was sure it was his left hand.[55] She confirmed she could not remember if he was rubbing his middle finger over her vagina but she confirmed she told Police in May 2014 that he was using his middle finger.[56] When she was asked whether that was correct or incorrect at the time she told the Police that in May 2014 and she said she could not remember whether it was correct or incorrect.[57] She did not know why it was that she told Police the accused was rubbing his middle finger over her vagina when she spoke to the Police in May 2014.[58] JMG said when the event occurred, she was not covered with a blanket.[59]
[55] T50.26.
[56] T51.14.
[57] T51.18-T51.24.
[58] T51.25.
[59] T52.14.
A suggestion was made in cross examination, that the events took place in April of 2012 but JMG could not confirm one way or the other whether that was correct.[60] She thought that her father had left later in the year because she had a birthday in June and the incident she thinks happened after her birthday in June 2012.
[60] T53.21.
When she spoke to her brother KAMG on that evening, she said to him words to the effect that “dad had touched me”[61] but she does not think that at any time she has told KAMG that her father touched her on the vagina. She confirmed she told Police she told KAMG that her father had touched her on the vagina and she said that this was wrong.[62] JMG also confirmed in cross examination that she had no way of knowing what time of the night this event occurred. She had been asleep and was woken up by the event. She knows the television was off and everyone else had gone to bed.[63] JMG said that she does not know why she did not run into her mother’s room and tell her straight away what had happened and confirmed that her father had never threatened her to not tell her mother. All she could recall was telling her father after the incident that she was going to bed. JMG rejected any suggestion that her father had sat beside her mother and herself and watched the movie with them on the night.[64]
[61] T53.30.
[62] T54.4.
[63] T54.10.
[64] T56.36-T57.14; T57.28.
In cross examination, JMG confirmed that the next morning, she went into her bedroom to speak to her mother and told her that her father had touched her when she was on the lounge last evening. She did not specifically tell her mother that her father had touched her on the vagina.[65] She did not tell her mother that her father was massaging her vagina or that his hand was on top of her underwear or that he put his hand underneath her underwear.[66] She never told her father she was very frightened and did not want to move.
[65] T58.4.
[66] T58.13.
JMG said that after she had spoken to her mother, she can recall a conversation between her mother and her father inside the house. Her recollection was that her mother did not go outside to speak to her father.[67] She recalls being present at a conversation between her parents but she did not know where her brothers were at the time. She does not recall what her mother said[68] and recalls that her mother was upset.[69]
[67] T59.14.
[68] T60.30.
[69] T61.35.
JMG also confirmed in cross examination that she had told Police in May 2014 that she went with her mother to where her father was and remembers her father saying he did not do it in conversations with her mother.[70] She has no recollection of her mother saying to her father in that conversation something to the effect “you obviously did it.”[71]
[70] T62.7.
[71] T62.7-16.
JMG also confirmed in cross examination that when she spoke to the Police in May 2014, she said that there was no other occasion she could remember where her father had touched her on the vagina.[72] In re-examination, JMG was asked to explain why she had said that to the Police and why she had not told the Police about the shower incident when she spoke to them in May 2014. Her answer was she thought she was scared. When asked what she was scared of she was not able to say.[73]
[72] T63.9-14.
[73] T83.24-28.
Finally, JMG was cross examined on the topic of the birthday party the family was to go to on the next morning. JMG thought it was a work colleague of her father, she did not know his name and it may have been a friend of his called J.[74] She recalls there being some conversation relating to it being “J’s birthday”. JMG also confirmed that her father slept outside on the patio area before he left the family home. Also in re-examination, JMG confirmed she did not know at the time, when she was 11 years old, what alcohol smelt like.[75]
[74] T68.15.
[75] T83.36-38.
KAMG gave evidence. He is the brother of JMG and the son of the accused. His mother is TAG.
KAMG recalled a time when the accused was living at the Unley home, his sister came into his room during the night and told him something.[76] He can only recall this happening on one occasion (when he was told something).[77]
[76] T87.14-19.
[77] T87.20.
KAMG has no recollection of what was said to him on that occasion. He was then asked to recall, to the best of his recollection, the nature of what JMG said to him on that one occasion. He said she said something to the effect that she had been touched in an inappropriate way.[78] KAMG said that he could not recall whether she said who had touched her or when she had been touched, or where she had been touched.[79]
[78] T87.30.
[79] T87.30-38.
KAMG recalled that some time after that conversation, his father stopped living with him. He thought it was a couple of years later.[80] KAMG has no recollection of what time of the day or night it was when he was told these things but recalls that JMG was frightened and scared when she spoke to him,[81] he assessed that fear from the look on her face. He thinks it was night time, he thinks there were lights on and he is fairly sure there was enough light to see her face so he thinks it must have been at night time.[82] KAMG then said he told his sister she could sleep in his bed that night. As a result, he thinks the conversation must have occurred at night. He thinks therefore he was asleep before JMG came into his room. He recalls that night when JMG slept in his bed.[83]
[80] T88.10.
[81] T88.21-25.
[82] T88.25-31.
[83] T89.4-21.
TAG gave evidence. She is the mother of JMG and was married to the accused. They were married in 1994 and had three children, JMG, KAMG and JJG.
TAG confirmed that KAMG has Auditory Processing Disorder which makes it difficult for him to recall messages from his brain and to reproduce the information he is receiving from his brain.[84]
[84] T91.
TAG stopped living with the accused in July 2012. They had lived 15 years of their married life at the Unley address. TAG gave a description of the home and in particular the bathroom. She confirmed that there was one bathroom in the house which contained a bath, a shower and a toilet. The shower had a glass door and she confirmed the door opened inwards and outwards. There was a fixed door on the bathroom with a lock.
TAG said when JMG was about 7 or 8 years of age, she would have a shower on her own and sometimes TAG would assist with washing her hair[85] and she thought she would shower 50% in the morning and 50% at nights. Apart from TAG, no one else assisted JMG in the shower. When JMG had a shower, she would usually close the bathroom door but family members would come and go from the bathroom to use the only toilet in the house which was in that bathroom. She saw the accused go into the bathroom when JMG was in the shower on many occasions.[86]
[85] T93.4.
[86] T93.23.
TAG said she used to sleep in the marital bedroom with the accused, JMG had her own bedroom in 2012 and KAMG shared a bedroom with JJG. She said JMG would sleep in the lounge room on the couch from time to time.[87] She usually slept on the couch which was an L-shaped couch in the lounge room.[88] She knew that JMG slept on the couch on more than one occasion.[89]
[87] T94.5.
[88] T94.18.
[89] T94.27.
TAG said that she recalled the last time JMG slept on the couch was the night before she was spoken to by JMG about her father interfering with her and that was the year he moved out of the house.[90] TAG recalled that on this occasion, and this event occurred in the first half of the 2012 year, she saw JMG sleeping on the couch and it was on a weekend. All of the children were home from school and the accused was also at home.[91]
[90] T94.35.
[91] T95.6-12.
TAG has a particular memory of this occasion. She recalls that she and JMG were watching television. JMG had brought her pillow and a blanket into the room to be comfortable. JMG had fallen asleep while they were watching television together. She cannot recall what was being watched.
At about 10.00pm, the accused came in and sat between TAG and JMG. He watched television for a small amount of time.[92]
[92] T95.25-38.
TAG cannot recall if there was anyone else in the lounge room at the time. TAG was sitting on the lounge to the left of JMG. She was sitting on the L-shaped modular lounge and JMG was on her right but was lying down on the lounge on the longer section of that lounge. JMG’s head was right in the corner of the lounge and it was while in that position, whilst lying down that JMG fell asleep.[93]
[93] T96.5-31.
TAG does not know at what time JMG fell asleep but she recalls the accused came into the room at some point.[94] The accused had been outside prior to him coming into the lounge. TAG did not know what he was doing outside because she could not see him but she knew he was out there.[95] When the accused came into the lounge room, TAG noticed that he had been drinking. She observed him to be intoxicated. She had seen him intoxicated on many previous occasions and on this occasion he smelt of alcohol and swayed a bit.[96]
[94] T97.2.
[95] T97.8.
[96] T97.10-18.
TAG thinks the accused came into the room at about 9.30 or 10.00pm and when he came into the room she knew that JMG was asleep on the couch. She recalls turning and looking at her daughter when the accused came into the room and noticed she was asleep.[97]
[97] T97.31-34.
TAG gave evidence that when the accused sat down, he sat between herself and JMG. He leant his head back upright on the couch, closed his eyes and went to sleep. TAG stayed a further half an hour in the lounge and then left to go to bed. When she left the lounge room those present in the lounge room were JMG and the accused. At the time, JMG was lying on the long modular section of the lounge suite and she was asleep. TAG pulled her blanket onto her and tucked it in under the cushion of the couch[98] and then left the room.
[98] T97.38-T98.22.
TAG has no recollection of what the temperature of the night was like, what the temperature in the house was like, whether there was a heater operating in the house or what the conditions were like generally.[99] She recalls that she left the lounge room, went to the bathroom and then came back through the house, switched the lights off and went to bed.[100] TAG said there was a heater in the lounge room but they did not use it very often even in winter; they did use it in winter but she cannot recall whether it was operating on this night.
[99] T98.27-32.
[100] T98.34.
When TAG left the lounge room, the accused was still sitting on the lounge next to JMG and she thought he was asleep. TAG spoke to him and told him he should have a shower before he went to bed. He gave no response.[101] She knows that KAMG and JJG were both in bed at the time as they were not with her in the lounge room. They were in their bedroom which they shared at the time.[102]
[101] T99.15.
[102] T99.17.
That evening and during the night, the accused did not come into the marital bedroom.[103] The next morning that she saw JMG in KAMG’s room and she saw her when she came out of the bedroom which was directly opposite her bedroom.[104]
[103] T100.2.
[104] T100.12.
When she saw JMG that morning, JMG spoke to her and said these words “mummy I need to talk to you.”[105] She had a very unhappy demeanour and when they did speak, JMG told her that she was sleeping on the couch and when she woke up the accused had his hands in her underpants and he was massaging her vagina. She said she was very frightened and she lay still. She was very sad and crying at the time.[106]
[105] T100.21.
[106] T100.21-38.
TAG confirmed that when JMG spoke to her, she told her that the accused had touched her on the inside of her underwear whilst she was lying on the couch where she was the night before.
TAG said she told JMG to wait in her room and she went straight down the hallway to the back door. She knew that the accused was outside and she spoke to him out there. She said to the accused “JMG has said to me that you have touched her vagina and you need to apologise to her”. The accused looked shocked.[107] TAG recalls that the accused said to her words to the effect “I did not do anything. I do not need to apologise for that”. TAG thinks it was a couple of months after that conversation that the accused moved out because she could not get up the nerve to ask him to go.[108]
[107] T101.7-24.
[108] T101.37-T102.4.
In cross examination, TAG recalled that the accused had come into the house through the backdoor and then into the lounge room.[109] She thought he had been outside in the backyard earlier in the evening. She was asked to confirm that when the accused left the house, he must have gone out the front door, but TAG confirmed that there was a gate on the eastern side of the house and the accused could walk down the eastern side of the house and around the front.[110]
[109] T105.12.
[110] T106.25-T107.23.
In cross examination, TAG said she had no memory of the accused being next door drinking with her brother R on that night. She recalled seeing him consume alcohol on that night and that was in the kitchen.[111] She saw him walk outside. On occasions, when the accused lived at Unley, he slept outside.[112] This was in the back garden patio area[113] and he would be there in the morning when TAG came into the kitchen.[114]
[111] T108.1-4.
[112] T109.25.
[113] T109.29.
[114] T109.38-T110.1.
TAG recalled that in 2012, the accused was drinking heavily particularly up until the time when he left home. His consumption of alcohol caused problems in the marriage. The accused had been asked to stop drinking and he refused.[115] TAG had separate concerns about the binge drinking of her brother R.[116]
[115] T110.2-13.
[116] T110.24.
TAG confirmed that she could not recall what JMG was wearing on the night.[117] She said that in summer, JMG would wear short pyjamas or a nightie and in winter she would wear long pyjama pants and a top. She cannot recall what JMG was wearing when she was talking on the bed.[118] She did recall that when the accused came into the house that evening he was wearing jeans but she cannot recall what else. He had a top of some sort on but she cannot recall what it was. She could not recall whether he was wearing a black leather jacket and he possibly may have been.[119] He certainly smelt of alcohol and cigarettes.
[117] T112.24.
[118] T113.30.
[119] T114.1-15.
TAG confirmed she knew that the accused was on medication prior to July 2012. The medication was for a mild form of schizophrenia.[120] TAG was aware that he was consuming a number of different prescription medicines.[121] TAG rejected any suggestion that when he was on prescription medicines, he had a faulty memory[122] and she did not observe the medicines affecting his memory one way or the other.
[120] T115.31-38.
[121] T116.2.
[122] T116.24.
TAG was asked questions about the shower. She was asked the question that if the accused was kneeling down outside the shower on his knees or squatting whether he would be able to reach up and grab something out of the shower alcove area. TAG thought that a person would not be able to reach into that position to grab anything.[123] She did not specifically observe the accused go into the bathroom when JMG was showering and close the door behind him and she could not recall at any time between 2010 and 2012 when the accused may have assisted JMG in the shower.[124] TAG had some memory of when the accused left home after the incident on the couch. She thought it was more than one or two weeks after the conversation with JMG in the bedroom. TAG had been fairly certain that JJG and KAMG were sharing a room at the time. Prior to giving evidence she had turned her attention to that issue and thought there may have been some change. This was because JJG at some point put his mattress into the lounge room. She had a memory on 6 May 2014 when she gave a statement to the Police that KAMG and JJG were both in the same bedroom but on 18 September 2015 she gave another statement to the Police where JJG had moved out of the bedroom. In the end, TAG said she could not recall with any certainty what the position was.
[123] T118.22.
[124] T118.26-T119.12.
JJG gave evidence that he did not move his mattress into the dining room until such time as the accused had left home.[125] JJG had a clear memory of that happening after the accused moved out because he knew that accused would not have agreed with that move and there would have been an argument.[126]
[125] T127.3-5.
[126] T127.8.
In further cross examination, the proposition was put to TAG that on the relevant night in question when she was watching television with JMG, that on no occasion did the accused come in and sit on the sofa or fall asleep.[127] TAG denied this proposition and denied that the accused slept outside in a chair on the patio on that evening.[128] She confirmed that he did not sleep in the bed with her that evening and when she went out to find him, he was sitting outside having a cigarette wearing the same clothes he had on the night before. TAG could not recall that after speaking with JMG and then going to speak with the accused, that she had a conversation with him in the hallway just outside the kitchen area.[129] She recalls going outside and speaking with the accused when he was having a cigarette or he had just been having a cigarette.
[127] T129.13.
[128] T129.19.
[129] T130.21.
TAG also recalls that when she spoke to the accused, she said to him words to the effect that JMG tells me you have touched her vagina.[130] She denied that the accused said to her that he had not touched his daughter and she recalls telling him that he needed to apologise to his daughter.[131] Later he said to her that he did not do it and he did not need to apologise.[132] She denied having a conversation with the accused where she said “did you touch JMG?” and he denied it.[133] She did not think that conversation trailed into the house at any time.[134]
[130] T131.3.
[131] T131.35.
[132] T132.7.
[133] T132.9.
[134] T132.24.
The final witness called in the Prosecution case was Detective Brevet Sergeant Pamela Rogers. Detective Brevet Sergeant Rogers in company with Detective Sergeant David Modra interviewed the accused at 5.02pm on Saturday 28 June 2014 at the Sturt Police Station. The interview concerned only the allegations about the event alleged to have occurred on the couch in the lounge room. I am satisfied that the accused willingly responded to the answers put to him by the Police. I am satisfied that he received all necessary cautions and that he was not acting under any aspect of coercion. He freely and voluntarily gave answers to the questions put to him by the Police. He confirmed the arrangement was made with him to attend the Police Station at about 8.21pm on Friday 27 June 2014, that no questions were put to him during that conversation and that no allegations were put to him concerning the events for which he was about to be questioned.
The questions put to the accused are in a numbered order. After confirming that JMG was his daughter, he was asked this question:-
Q18Okay. JMG made an allegation that she states in June or July she believed it was a year or two ago that she was lying on a couch in the lounge room of the house where you all live together, um she was wearing underwear as it had been a hot day and a t-shirt. She had been watching a movie with her mum and brothers and had fallen asleep on the couch. She states that at that time they were watching the movie you were out, and she remembers waking up and feeling something rubbing on her vagina over the top of her clothing, and that’s what woke her up. She states that she saw there was someone sitting on the couch next to her head, and from the light that was coming through in the house, she identified that person as being you. And that you then put your hand inside her underwear and rubbed your finger over her vagina lightly in an up and down motion.
What do you say about that allegation?
A18 That is the first I have heard that story.
At question 19, the accused was asked whether that happened. His answer was:-
Q19 Did that happen?
A19To my knowledge, no. My wife and I spoke the next day after this, and I was actually next door at the time with her brother drinking and I don’t even remember leaving his place and coming home.
He was then asked to clarify whose brother he was talking about and he confirmed it was his wife’s brother. He was then asked the following question:
Q22 Your wife’s? So when did your wife speak to you about this allegation?
A22 The next day.
Q23 Can you remember what your recollection of the date when this happened?
A23 I’ve got no idea.
Q24 Do you know approximately how long ago?
A24 I have got no idea no sorry.
Q25 And, what was said to you by your wife the next day?
A25She said that JMG came and saw me about something and I said I have got no idea that that’s happened and I can’t believe that that’s even happened.
Q26So are you saying that you can’t remember if it happened or not or…
A26Well, I… I… I…
Q27Or if it didn’t happen.
A27I, me in my right mind would no way do anything like that to her, not only my daughter, anyone’s daughter. And I don’t believe I did it and we had an argument about it, um and I don’t believe that I would have done that and all I do know that when I came back home I was drunk.
The accused was then questioned about what time he came home and he could not recall and nor could he recall where he slept when he came home. After being asked where R lived he said R was living next door and he would go over there most nights and drink with him.
He was then asked to recall when it was that he left home and from that time point, when it would be that these allegations came to light. He said he left home about July 2012, two years earlier and was then asked this question.
Q38 And was that around the time that this allegation came to light?
A38 It was after, it was when I left it was after then.
Q39 Do you know how long after at all?
A39No I can’t remember. What I do remember is basically most nights of the week I would go next door and drink with her brother, excessive amounts of alcohol, every night.
Q40Excessive amounts, how much do you describe as excessive?
A40Um, can’t remember exactly how much, but I know I was drinking a lot of beer at the time. And ah we he’d R would drink spirits and I would have mixed spirits with beer and then I would lose my memory.
Q41And how often did you drink like that, excessively?
A41Um, quite a lot.
Q42And, was it normal for you to not recall things that or periods of time things like that after you had been drinking?
A42I, I, it is happened a lot for me to go, well gee I’d better slow down otherwise I’m not going to even know what I’m doing. Waking up on the lounge sometimes I remember once, waking up and then next morning there was just like there was vomit all over the lounge room floor, I had no idea that I did that, that was just one, one incidence that I can recall because year TAG had a go at me because she had to clean it up.
Q44From what you’re saying that night you had been out next door to your wife’s brother’s place, R. You had been drinking excessively and you can’t remember what happened after that?
A44And that, that was most nights.
Q45So you can’t say that this definitely didn’t occur?
A45 I can’t say that I would do that, no and I can’t say that it didn’t happen. But I, it is not in my right mind to do something like that to my daughter or anyone’s daughter for that matter. I mean, I don’t even look at porn on the internet hardly at all, not compared to a lot of other people that I know. That’s just not my nature.
The evidence of the accused
The accused gave evidence. There were a number of delays between the close of the Prosecution case and the commencement of the evidence given by the accused. These were associated with the physical and mental condition of the accused.
Exhibit D8 was tendered in evidence through the accused. It discloses the outdoor setting at the rear or southern end of the Unley house. It discloses an outdoor setting of table and chairs and a barbeque area. There is also a fridge in that area. The accused also tendered photographs of the television set in the lounge room[135] and a photograph of the western wall of the lounge room.[136] Exhibit D11 is a portion of a photograph showing the dining room and lounge room and a portion of the sofa.
[135] Exhibit D9.
[136] Exhibit D10.
The accused gave evidence of his relationship with his former wife. He said the marriage was strained well before the beginning of 2012[137] and had been under strain since about 2007 or 2008. The accused left the family home in 2010.[138] He finally left the matrimonial home in the middle of 2012.[139] He then moved into a friend’s house in a nearby suburb and then found his own accommodation elsewhere. He thinks he left the matrimonial home in about July 2012. It could have been the start of July or the end of June.[140] Exhibit D12 is a photograph of the accused with friends. It is shown as being taken on 2 July 2012 and the accused asserts that he left home prior to that date. When he left the house in 2010, he was away from the home for about 12 or 14 weeks.[141]
[137] T162.29.
[138] T162.34.
[139] T163.3.
[140] T164.16.
[141] T165.10.
In the period up to June or July 2012, his relationship with his children had diminished quite a lot. He was busy with work and there was strain on the family finances. He had to work after hours to make ends meet.[142] At the time and throughout that period, he was a packet a day smoker of cigarettes.
[142] T165.30.
In the middle of 2012, he was a heavy consumer of alcohol.[143] He said the place he usually had a drink was next door with his brother-in-law R and this was quite regular. He would be at R’s place most nights and he was there if he was not working.[144]
[143] T166.25.
[144] T166.5.
The accused denied ever going into the bathroom and help JMG shower herself. He denied ever having gone into the bathroom and gone to the toilet when JMG was having a shower at any time during 2012.[145] This is in direct contradistinction to the evidence given by TAG. For the reasons which follow, I am not prepared to accept the evidence of the accused on this point. I prefer the evidence of TAG. She was an excellent witness. I accept her evidence beyond a reasonable doubt. I found her to be a compelling, truthful, reliable and credible witness. I was not able to make similar findings in relation to the evidence given by the accused.
[145] T167.22-28.
The accused said that he sometimes slept in the main bedroom which was described as the matrimonial bedroom.[146] He said he slept there sometimes. He said if he did not sleep in that bedroom, he either slept outside or on the lounge.
[146] T170.6.
The accused gave evidence that he has for many years suffered from schizophrenia. He said in September 2013 he had a motor vehicle accident when he was hit as a pedestrian by a taxi. As a result he suffered broken ribs but he also had a flare up in the mental condition which he suffered.[147] He suffered depression as well as schizophrenia and he was taking anti-schizophrenia and anti-paranoia medication. He said his mental state started collapsing in 2014[148] and he was very worried about how he presented to the clients of the business. He found he was not able to function properly or do his job properly. Clients of his business started dropping away and that brought more stress into the whole equation.[149]
[147] T170.18-37.
[148] T171.17.
[149] T171.32.
The accused said in June 2014, his ability to recall past events was affected. He was under the treatment of a psychiatrist, Dr Bem. He said at the time, in June 2014, he was hearing voices, things talking to him and other people’s voices. All of the voices he heard were negative but this had been going on since 1998. It was at that time that he first saw Dr Bem. He said one of the side effects of his condition and his medication was a loss of libido.
The accused denied the allegations made by JMG about the events that were alleged to have occurred on the couch. He said when he was interviewed about those events in June 2014, he was still seeing Dr Bem. He was still being prescribed medication. The accused was asked questions about whether or not he was taking his medication on a regular basis in June 2014. He was unable to answer that question clearly.[150] His answer to the question was “it was as per prescribed. I did it to the best of his abilities.”[151] He was asked a direct question whether he was taking his medication and he could not answer yes or no. He was also not able to say whether or not he had taken his medication on the day he attended the Sturt Police Station on 28 June 2014.[152] His answer was that he tried to recollect by saying that if he knew he did not take the tablets he would be snowballing downhill. Again that is not a direct answer to the question put to him.[153] Rather, it is a summation based upon an assumption. It is also indicative of an absence of memory of the accused. He was then asked whether he had consumed any alcohol prior to the interview. He was not asked whether he had consumed any alcohol on the night before the interview. He denied consuming any alcohol prior to the interview but in the absence of more clarification, the question and answer is meaningless.[154]
[150] T175.26.
[151] T175.29.
[152] T176.22.
[153] T176.32.
[154] T176.33.
He was asked a question about the responses he gave to question 18 from Detective Rogers. He denied in evidence the allegations that were put to him in the questions. In answer to the question, he said at that interview, in 2014, was the first time he had ever heard such allegations. I am unable to accept that evidence. I keep in mind the evidence given by TAG on the topic.[155]
[155] T101.15.
I reject this evidence because I find that it is not compelling, reliable or credible. It is too remarkable a proposition to accept that the accused says that the first time that he heard of this event is some two years later when questioned by Police. In the end, I consider this to be an example, amongst many, of the accused’s lack of memory resulting from a number of circumstances but most prevalent is alcohol consumption and perhaps his mental state.
The accused agreed that he said to the Police that his wife had spoken to him the next day after this. He said he was actually next door at the time with her brother drinking. He agreed he said he did not remember leaving R’s place and coming home. However, in evidence before me, the accused said he now has a clear memory of being over at R’s place, drinking and then coming home. He cannot say at what time he left R’s place but he does know he slept out on the patio on a seat outside in the outdoor furniture.[156] This is a memory which the accused said he now has of what occurred. That is, in 2016, he has a clear memory of what occurred in 2012 notwithstanding that he was unable to inform the Police in 2014 of the same detail. He was also asked whether he specifically recalled locking the backdoor of the house when he went out. His answer was it was a habit. He was then asked whether he could now recall at any time on that night before he was spoken to in the morning on the patio area, taking his keys out, unlocking the backdoor and going into the house at any time.[157] His answer was a clear “no”.[158] I am unable to accept this evidence. The evidence of TAG on the topic was compelling, truthful, reliable and credible but this is not a competition between two versions of events.
[156] T178.10-24.
[157] T178.35.
[158] T179.1.
For the same reasons as described in paragraph [112] hereof, I find that this evidence of the accused is not compelling, reliable or credible. I do not accept that the accused can now remember in 2015/2016 precisely what he did on a particular night in 2012 when he only had a limited memory of the 2012 events when interviewed in 2014.
The accused then said on the morning when TAG spoke to him, he was still wearing his work clothes. He said he had a clear memory that he was wearing his denim jeans, his work shirt and a jacket. On this basis, the accused said it must have been a weekday because he had his work clothes on. This contradicts, in part, the evidence given by TAG who said it was a Saturday night because everybody was at home. She said she knew that accused was outside. She did not know what he was doing outside. It was after he had been outside that he came in and sat down to watch a film. That was about 9.30 to 10.00pm in the evening. The accused now says he has a clear memory that he was wearing his work clothes on this particular day in June 2012. I am not prepared to accept that evidence. I found that this evidence is not compelling, reliable, credible or truthful. It is too incredible to accept that the accused can in 2015/2016 now recall specifically what clothes he was wearing on a particular night in 2012.
The accused denied that when TAG spoke to him, that JMG ever came outside in the area where they were speaking. That accords with the evidence of TAG. He was then asked questions about his recollection of the date when it happened and telling the Police officers that he had no idea. He then explained that at the time, everything was all cloudy from being on medication. He said the medication was helping but his thought processes were not clear at all.[159] He was then asked whether he now has a specific recollection of when the conversation took place. He said it was in the morning before he went to work.[160]
[159] T180.35.
[160] T181.15.
The accused then said he has a clear recollection of what TAG said to him on the morning. He alleged that TAG said something to the effect that he had slept outside again, that he had been late at her brother’s and that JMG had alleged that he had touched her. It was then that he asked questions about what she was talking about.[161]
[161] T181.33.
The accused was then taken through questions asked of him by Detective Rogers at question 27 and following of the Police interview. The questions and answers were repeated to him. He was asked to explain what he meant by the words “me in my right mind”. He was not able to explain what he meant.[162] All he could say was that “it might have meant that I am operating from the right side of my mind”. In light of the evidence before and after this answer, I am of the view that answer is largely meaningless. He was then asked about his answer given to the Police that he did not believe he would do it and that all he knew was that when he came home he was drunk. The evidence of TAG was that when he came into the house he smelt of cigarettes and alcohol and he was noticeably swaying.
[162] Viz T182.7-31.
He was then asked in evidence before me whether on that day, on 5 February 2016 he could then recall how drunk he was when he arrived home from R’s house.[163] His answer was that he could. He said in evidence that the events occurred probably around midweek and therefore he knew that he could not stay over at R’s place for any length of time as he normally would on the weekends as he is more flexible unless he had things to do on the weekends. He said he was frequently out but he would try to get home around a reasonable time so that he could get enough sleep, that is enough time for the alcohol to wear off so he could get up and drive to work in the morning. He then said he would be at R’s place and he would rarely drink more than beer but that would be very rare. That contradicts the answers he gave to the Police that he drank beer and spirits with R. He said in evidence before me on 5 February 2016 that it would be very rare for him to mix his drinks. That also contradicts the earlier evidence he gave to Police.[164]
[163] T182.38.
[164] T183.16.
He was then asked whether or not he passed out on that night when he came home from R’s house because he was so drunk. He said he woke up the next morning in the chair outside that he was sitting in when TAG was talking to him. The evidence of TAG was that when she went outside the accused was having a cigarette whilst sitting at the outside table. He then said that he now recalls seeing beer bottles on the table and it was a six pack with some beers still left in it. There was an opened beer bottle on the table which still contained some beer. He said he now recalls that he put the remnants of the six pack into the fridge. He said it was only from really stretching his recollection so that he could piece the bits and pieces together that he could now say what had happened.
The accused said that as a result of the process of thinking and rethinking all of the events over a long period of time, he now has a memory of events that occurred when he became completely drunk and passed out on a chair at the rear of the premises on this particular day in 2012. He also said to me that he can recall that he worked on the day of the discussion with TAG about the events of the previous evening.[165]
[165] T183.33.
The accused then also gave evidence that he could now recall that he arrived home between 2.30 and 3.00am. He says he knows that time because he knows when he woke up in the morning, he knew he was OK to drive to work. Therefore he must have left R’s home in sufficient time to sleep outside and sober up enough to be able to drive to work.
He was then questioned about telling the Police about his excessive consumption of alcohol. He was asked whether he could say whether there were a number of times when he woke up in the morning after drinking at R’s place where he could not remember what had happened the night before.[166] He said it would only be when “we” meaning he and TAG had people over and they drank excessively or if he woke up at R’s house but he found it very difficult to depict the situation at the time because of the medication he was on and it was tricky for him to put it altogether.[167]
[166] T195.12.
[167] T185.23.
The accused said he now has a clear memory that on the night before he spoke with TAG, he was next door drinking with R. He said he could recall coming home but more vaguely now than before and his memory is from what happened then. He has had that memory come back to him some time over the last six months.[168] He was then asked how it is that his memory has come back. He answered that his memory has come back through his medication and also earnestly searching for the answers to the question.[169] I think this is an accurate portrayal of the position. The accused has earnestly searched for a memory which he now says is his memory of the events.
[168] T186.6-18.
[169] T187.3.
The accused also rejected the assertion that when TAG spoke to him in the morning, that she specifically put allegations that he had touched JMG on the vagina. He also alleged that she specifically did not put to him that he had touched JMG while she was on the sofa; or that he had touched her above or below her underwear. He denied all of these matters.
I find that all of this evidence of the accused is not compelling, reliable, credible or truthful. The accused has in 2015/2016 searched back through the fog of his memory that is affected by alcohol and medicinal substances to grasp what he now says is the memory of the events in 2012. It is too incredible to be able to accept that the accused can now recall the time he returned from drinking with R or that there were a particular number of bottles of beer on a table when he woke up after a night of drinking that ended at about 3.00am. And all of this on a particular day in 2012.
The accused then gave evidence that he did not leave the family home because he was asked to. This is in direct contradiction of the evidence given by TAG. He said he left the family home because “it” clearly was not working. It is unclear what he means by the expression “clearly wasn’t working”. I have accepted that in June or July 2012, an allegation was put to the accused that he had touched his 11 year old daughter on the vagina whilst she was asleep. Ordinarily it might become untenable for the accused to remain in the family home.
The accused next criticised JMG about the fact that in 2014 the complainant only disclosed the events in the lounge room to police. When asked whether there were any other events or any other occasions where the accused had allegedly done anything in a sexual way towards her, she did not disclose the shower events. That is difficult to understand when, in the circumstances in which those questions were asked, JMG was informing police of having been interfered with by her father in 2012. She was several years older than she was when the events she alleged occurred in the shower. Therefore, even though I accept that the failure to raise a complaint about the shower incident at the time they occurred does not detract from the credibility of the evidence given by JMG overall, I am not able to form the same view about why she did not inform police in 2014, when asked, about what had been done to her at that time.
And I think that there are other considerations to be taken into account. In R v C, M,[199] the Court of Criminal Appeal (Peek, Stanley and Blue JJ) considered an appeal from the District Court. The appellant was charged with four counts concerning his activities with one of his female students. The accused was convicted on count 1 and only by a majority after a trial before a Judge and jury. That first count involved allegations that the accused kissed the student, a peck on the lips, whilst at the same time exposing his penis to her. The appeal point was that if in that background the jury had found the accused not guilty on the other three charges which involved the exposure of his penis to the victim, it was possible that the jury were not satisfied under count 1 that the accused had exposed his penis to her. The jury verdict may not reflect a finding beyond reasonable doubt that the act of kissing was an indecent act in the required sense of being an assault with a sexual connotation.
[199] [2014] SASCFC 116.
Peek J wrote the decision of the Court and identified[200] that the directions of the trial Judge included only a reference to the evidence of the complainant that the accused kissed her on the mouth on an occasion in his office. The direction of the trial Judge was in the following terms:-
“She said that there was an instance in the office that is connected to the classroom, the one the stairs lead into. She said that in that office he kissed her, a quick kiss on the lips, that was the first time he kissed her in there and that he also presented his penis to her and asked her to touch it which she did… She said that when he kissed her in the office there, it was on the mouth and she looked down because she was feeling shy and embarrassed and when she looked up again his penis was exposed. It is the Prosecution case that that is an event that she can distinctly remember, over the course of a relationship that included a whole lot of other things…
(The complainant) said at about the time that had happened the touching in the computer room had already started and indeed the touching in the computer room continued on after that incidence. So members of the jury, that kiss is count 1 on the Information. The kiss on the lips by a teacher to a student.
[200] Paragraph [18].
At paragraphs [19] et seq. Peek J considered the question of indecent assault requiring a sexual connotation. Peek J held that “…in the context of the offence of “indecent assault” the word “indecent” does require a sexual connotation…” His Honour then surveyed the relevant authorities on the topic[201] and then discussed in detail the decision of the Victorian Court of Appeal in Sabet v The Queen.[202] The material facts of that matter were that the defendant was a medical practitioner and was charged with five counts of indecent assault and seven counts of rape of two female patients. He was found not guilty of all charges except one count of indecent assault in relation to the second complainant. That offence was said to have occurred in circumstances where the complainant sought medical advice in relation to a possible pregnancy, she alleged that the accused did a number of things which constituted sexual offences and other activities of a sexual nature. He was acquitted of the offences concerning the charged conduct. At the end of the consultation, when the complainant stood up to leave, the accused put his arm around her and kissed her on the right cheek. The subject of the kiss was the basis of the count of indecent assault. The accused appealed the finding of guilt on the question of indecent assault.
[201] Crowe v Graham (1968) 121 CLR 375 at 390 per Wyndeyer J; R v Lees (1968) 52 Cr App R 185 at 187; R v Kilbourne (1972) 56 Cr App R 828 at 838; R v Court [1989] 1 AC 28 at 33-34; R v Harkin (1989) 38 A Crim R 296.
[202] [2011] VSCA 124.
The trial Judge had directed the jury as follows:-
Indecent circumstances… indecent circumstances must have a sexual connotation. You apply your own community values, but indecent must have a sexual connotation.
The decision of the Court of Appeal was written by Lasry AJA who stated:-
[14] In this case, in cross examination on the circumstances surrounding the act in question, that being the applicant’s kiss, the complainant did not identify any feature of the kiss that had a sexual connotation deriving from driving either from the manner of the kiss itself or any associated touching of the complainant’s body by the applicant. In cross examination the complainant noted that she and the applicant were both standing at the time and he kissed her on the cheek. The only other contact was his hand on her back and shoulder.
[15] …
[16] In view of the acquittals on the other counts, my opinion is that there was no evidence that could now properly support a finding that the applicant had the intention of obtaining sexual gratification in kissing the complainant.
The issue in R v C,M was that the Court of Appeal could not be confident that the accused exposed his penis at the time of the kiss. In the background of that doubt, the specific directions of the trial Judge about the kiss aspect came under close scrutiny. The summing up of the trial Judge was only general in nature. The jury may have misunderstood that once they were satisfied of the fact of the “quick peck on the lips” but had not been directed on the question of sexual connotation, that they could convict on count 1. In that context, the reference to contemporary standards may well have led the jury to accept the Prosecution’s submission that the kissing of a female of that age can only be described as indecent. But that was in the background where the trial Judge had not given a direction about “…proof of a sexual connotation…” That of course is a slightly different to the position that pertained in Sabet where the medical practitioner kissed a patient on the right cheek at the end of a consultation (with no intention of obtaining sexual gratification).
R v C,M is not a decision that in any way casts doubt on whether there is any sexual connotation in a kiss, no matter how fleeting the lip contact in the circumstances of, for example, contact between a teacher and a student. It is a decision about the need for a trial Judge to give a direction on the issue of indecent circumstances having a sexual connotation.
In this case, the fact that the complainant JMG could not in 2014 recall the shower incidents when she spoke to the police about the 2012 incident, creates doubt in my mind about the nature at least of those events. They were matters that were only later recalled by JMG in the context of memories that she may have had of contact between herself and her father. In and of itself, that can be a fraught exercise. For example, the contact between any parent and a child bathing does not ordinarily carry with it any sexual connotation. Nor does the simple fact of the involvement of a parent in that bathing activity. Both of these provide a reasonable explanation for the events as they were explained by JMG and also a defence to the accused.
Again, similar to the comments that I have made in relation to the decision in R v C,M, that is not to say that if the events in the shower were proved to my satisfaction beyond reasonable doubt, that they would not constitute offences of indecency with a sexual connotation. That is not my decision here. Rather I have decided that there is sufficient doubt on all of the factual evidence that I have received and upon a consideration of what may be a reasonable explanation for those events which may constitute a defence, that on the first count on the Information, the accused is not guilty.
I have earlier set out in considerable detail the evidence given in relation to the shower incidents. Having heard the evidence and having taken a view of the premises I accept the criticisms of the accused about the plausibility and likelihood of the events as explained by JMG. TAG gave evidence she was aware that from time to time the accused went into the bathroom at times when JMG was having a shower. The accused emphatically denied this occurred. It is clear from the evidence that TAG was aware of the fact that the accused may have been in the bathroom (most likely to use the toilet) when JMG was using the shower. TAG said, when JMG was that age, from time to time she assisted her in washing her hair. There is no evidence whether the accused was aware of this fact.
I accept the submission of the accused that, when proper account is taken of where he is alleged to have knelt down outside of the shower alcove, and then reached into the shower alcove to take access to the soap dispenser there is a degree of unlikelihood that these actions could be achieved by someone without being within the shower alcove itself. I have sufficient doubt that the accused could have carried out these actions without having been affected by the spray of water from the shower.
The accused criticised the evidence of JMG that she thought the bathroom door was closed but not locked. It was asserted that she could not have seen the bathroom door from the inside of the shower. Having made observations of the shower cubicle at the time of the view, in my opinion that criticism is quite misplaced. I am satisfied beyond reasonable doubt that any person standing in the shower alcove could look into the mirror and identify that the bathroom door was closed and that the snib lock on the door was locked or unlocked. The accused also criticises the evidence of JMG that in carrying out his actions in the shower, he must have got wet from the spray from the shower head. There is no evidence he did get wet. I think the criticism of the accused on that topic is correct. Having regard to the whole of the circumstances of the case, if the accused reached into the shower alcove and rubbed the vagina of JMG, it would be impossible for him not to become wet at least on the arm he was using. Also, the evidence of JMG was that at the time, there were three other members of the household present in the house. The evidence of TAG which I accept was that JMG had her showers either in the morning or in the evening. JMG gave evidence that on both occasions, there were other members of the household in the house.
The accused criticised the evidence of JMG about the event in the shower and suggests that the actions of the accused would have been exceptionally excruciating. It can only be assumed that this is in effect upon the complainant JMG. No proposition of that nature was put to JMG. I think that criticism is quite misplaced.
The complainant JMG gave evidence in relation to the second occasion. The doubts I have about the evidence given by the complainant in relation to the events on the first occasion are the same as on the second occasion. In the circumstances, I have sufficient doubt about the events concerning the alleged offences involving the conduct of the accused in the bathroom to form a reasonable doubt, such that I am not satisfied that those matters have been proved beyond reasonable doubt. The doubts I have in relation to the shower events are not sufficient for me to form any view that the whole evidence of JMG is to be rejected. Rather, I have formed the view that upon the basis of the evidence that has been presented to me, and taking into account the criticism of the accused about the evidence led by the prosecution about those events, I have formed a reasonable doubt sufficient to lead me to make a finding of not guilty in relation to count 1 on the Information.
Different from the position pertaining to the shower events, I find that the incident in the lounge in 2012 occurred in the way described by the complainant JMG has been proved to my satisfaction beyond reasonable doubt. It is necessary to identify and address a number of criticisms made by the accused of the evidence of JMG concerning the events of that night. For the reasons set out below those criticisms are misplaced. Moreover, in his submissions, the accused was (in relation to some aspects) prepared to allege that JMG was lying about these events. I consider that such an assertion is demonstrably wrong.
The accused’s contention that when the complainant said that the accused was not present when she was watching the movie does not correlate with the evidence of TAG is incorrect. As I have earlier described, the evidence of TAG was that the family commenced to watch the movie. JMG was lying on the sofa. She noticed that she went to sleep. The accused entered the room. He sat between JMG and TAG. When he did so, TAG looked at JMG and noticed that she was already asleep. The accused then went to sleep. Later TAG covered her daughter JMG with the blanket that she had already brought into the room, TAG then left the room. After using the bathroom, TAG turned the lights of the house off and went to her bedroom.
I accept the evidence of JMG when she said she woke up when she felt a hand on the outside of her underwear. The accused suggested that evidence could not be believed as being accurate or truthful because of the awkwardness of what the defendant would have to do in order to place his hand there. To the contrary, the evidence of JMG was the blanket had been pushed back. There is no evidence the blanket was still tucked in around JMG at the time these events were happening. And there is nothing to suggest the events as they are described by JMG could not have happened irrespective of the type of underwear JMG was wearing at the time.
The accused also criticised the description of the position of JMG at the time of the incident. She said the accused’s right hand was around the cushion and his left hand was rubbing her vagina. It was suggested by the accused that it would be physically impossible to contort from a sitting position to place a hand in the position as described by JMG. I am unable to accept that criticism. It does not have any substance and to the contrary, it is quite easy to imagine how the accused, when sitting up, could when dealing with JMG who was lying down, use his hand in the fashion as described by JMG. The accused also submitted the version of events given by JMG in relation to these matters was made up. I reject that submission. I also accept that JMG rolled over onto her stomach to prevent her father continuing with his activities. I place no weight upon any suggestion that there was no ‘usual things being said’. This means usual things such as threats, promises and the like. I place no importance upon the absence of any evidence on that topic.
The complainant JMG said that after leaving the accused she woke her brother KAMG and told him that dad had touched me. JMG could not remember the precise words she used to KAMG. That is understandable. I consider there is no loss of credibility merely because she could not remember the words that she used when telling KAMG where she had been touched. The accused then asserts that is contrary to the evidence of KAMG. That criticism is wrong. As I have described earlier, the evidence of KAMG was that he could not remember what his sister said to him. All he could recall was that the substance of what he was told was that his sister had been touched inappropriately.
JMG gave evidence that the next morning she told her mother that her father had touched her on the vagina but she could not recall whether she told her mother that her father had touched her on the inside or the outside of her underwear. The accused suggests that this evidence has to be scrutinised very carefully with that of TAG. The evidence of TAG is different from the evidence of JMG. TAG gave evidence first that she saw JMG in KAMG’s room. This is consistent with the version of events given by JMG. It is consistent with the fact that KAMG said after his sister woke him up, she slept in the room. TAG said that she was told by JMG that she was woken by the accused when he had his hands in her underpants and he was massaging her vagina and she was very frightened and lay still. TAG said that JMG told her the hand was on the inside of her underwear. She was lying on the couch where she had been the night before.
I do not accept the criticism of the accused that such inconsistencies could be described as glaring inconsistencies or that it would suggest any unreliability in the evidence of JMG. To the contrary, I am of the opinion that although not completely consistent, it does bolster and corroborate the version of events given by JMG. I reject the version of events given by the accused, that he never came into the house on that evening. The evidence of TAG was that it was a weekend night, that the accused came into the lounge room between 9.30 and 10.00 pm, that he was intoxicated, that he was swaying, that he sat down between TAG and JMG and that he fell asleep. That is where TAG left him. The evidence of TAG is reliable, credible, consistent and is accepted by me.
Criticisms were made by the accused that JMG was certain the particular night in 2012 was a Friday or Saturday evening. She thought the family was going to a friend’s birthday party but she didn’t know who it was. Criticisms were made because it could not have been the birthday of J or RB. JMG did not know whose birthday it was; it may have been J’s but she is not clear about the matter. However, the important point here is that the event occurred on either a Friday or a Saturday evening. That is consistent with the evidence of TAG who thought that the event occurred on a weekend. I accept the evidence of TAG. I also accept the evidence of JMG. I do not accept the criticism of the accused.
In her evidence, the complainant JMG could not recall which finger may have been used when he was rubbing her on the vagina. In May 2014 she told police that he was rubbing with his middle finger. When she was asked in cross examination if that was correct or incorrect, she responded that she could not remember if it was correct or incorrect. She could not tell the court why she thought that in 2014. It was alleged by the accused that she was telling a lie. It was further put that it was a blatant admission that what she was telling police was a lie and was not true.
The criticism of the accused is misconceived and is based upon a logical non-sequitur. When giving evidence, JMG could not remember if what she said to police was correct or incorrect. She gave her evidence that she could not recall which finger the defendant was using. She agreed that in May 2014 she told the police he was using his middle finger. It is completely consistent for her to say that she might have remembered something in 2014 and not be able to remember it now. If she could not remember it now, it is therefore consistent for her to say that she could not remember if it was correct or incorrect. This is neither a blatant admission nor is it a lie because it is not untrue. It is the truth. It bolsters the reliability and credibility of the evidence given by JMG about these events.
Another criticism made by the accused of the evidence of JMG concerned the placement of the blanket upon JMG on the evening in 2012. JMG was asleep. She could not be aware that a blanket had been placed over her because she was asleep. She was awoken by the actions of the accused. There is no inconsistency in her not knowing that she was covered with a blanket. Apart from TAG, the only person who could know she was covered with a blanket was the accused (and he denied ever having been in the room). The evidence of TAG was that she covered the complainant with a blanket before she went to bed. The criticism is misconceived.
The accused then submitted that because JMG did not recall seeing the accused outside smoking or sitting on the sofa at any time of the night, this evidence was completely inconsistent with the evidence given by TAG. This criticism cannot withstand scrutiny. It was suggested there was an inconsistency and it was material. A correct reading of the evidence is that the complainant JMG was asleep at the time that the accused entered the room and when he sat down. The evidence of TAG was that when the accused sat down, she looked at JMG and saw that she was asleep. Very soon afterwards the accused fell asleep himself whilst sitting on the couch. TAG then covered JMG with a blanket. There is no inconsistency.
I have already canvassed the evidence of the various witnesses about the conversations that took place in the morning after the alleged incident. There is a difference between the evidence of TAG and JMG concerning this matter. The evidence of TAG was that she spoke to JMG in the main bedroom and then walked down the hallway to the outside area and spoke to the accused. TAG said that conversation did not spill back into the house. JMG says that the conversation occurred in the hallway near the kitchen. The accused submits this difference means that one version or another is a complete fabrication, a lie, or evidence of a distorted mind. I am unable to accept that criticism. Human experience suggests that if a mother is required to confront her husband about an allegation of their daughter being sexually interfered with by the father/husband, the conversation is very likely not going to be either civil or quiet. It is impossible to conceive that when that conversation occurred, it could not be heard in the house. TAG gave evidence the conversation occurred outside and not inside. I accept that version of events because having regard to sensitivities of all of the members of the household, it is most likely that this conversation occurred outside. I have no difficulty in imagining that TAG wished to spare her family the unhappiness of hearing such a conversation. I also have no difficulty in imagining that once the conversation commenced, it became heated, angry, accusatory and perhaps volatile. It is impossible to imagine that the members of the household present in the house would not have heard that conversation. Therefore, even though I accept the submission of the accused that I may make a finding that the conversation occurred outside, I am satisfied beyond reasonable doubt that the complainant heard the conversation from wherever she was in the house. I also accept as proved beyond reasonable doubt that the complainant JMG did not remain in her mother’s bedroom as she had been instructed. She was a young child. Ordinary human experience dictates that she would have been drawn to the conversation knowing that what she had said to her mother was the genesis of the conversation.
On the question of the memory of the complainant about the relevant weekend, criticisms were made by the accused about any suggestion that there was to be an attendance at a particular birthday party on the following day. It is necessary first to identify that JMG said she did not know the identity of the particular friend whose birthday party it was on the following day. She was not 100 per cent sure. It may have been J. The evidence is that it was not J’s birthday party on that particular weekend however, there can be no suggestion that merely because the complainant recalled that there may have been a birthday party on that weekend calls into doubt anything she said about the events of the previous evening. That is because I am in a position to make a finding that the events occurred on a weekend having regard to my acceptance of the evidence of TAG on the topic and my rejection of the evidence of the accused on that topic.
The important point is that I am satisfied beyond reasonable doubt that the event occurred on a weekend. Whether or not a birthday party occurred on that weekend is not determinative. It was only a means by which the complainant was attempting to recall what day of the week the events may have occurred. She recalled it was a weekend. Her recollection was accurate. I accept that fact as proved beyond reasonable doubt.
In respect of the event in 2012, I accept all of the evidence given to me by JMG, TAG, KAMG and JMG. I found them to be honest, credible and reliable witnesses. I accept their evidence without any hesitation.
Complaint evidence
In my judgment, it has been necessary to make reference on a number of occasions to evidence given by JMG in respect of what she said to KAMG and TAG. This evidence was said to be relevant in relation to the question of the application of s 34M of the Evidence Act. That provision reads as follows:
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 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).
It is necessary for me to keep in mind the distinction between an initial complaint and a complaint.[203] The initial complaint must be referable to the offence charged.[204] As well, there is still a residual discretion to exclude the evidence of complaint. The question of the exercise of that discretion requires a consideration of a broad range of issues in the determination of the interests of justice.[205] The elaboration must be of the initial complaint so that it is not the case that there may be an elaboration by reference to a different matter. It must contain further detail of the initial complaint as the statutory language requires it to be an elaboration of the initial complaint.[206]
[203] Section 34M(6) Evidence Act.
[204] R v Usher (2014) 119 SASR 22; R v Maiolo (No. 3) [2014] SASCFC 89.
[205] R v H, T (2010) 108 SASR 86; R v England (2013) 116 SASR 589.
[206] R v Hollsten [2015] SASCFC 178; R v Landmeter (2015) 121 SASR 522.
The prosecution have conceded before[207] me that in the event that I did not accept the evidence of KAMG on the question of complaint, then the position is reached where the only question is that of the weight of evidence because the complaint to TAG was an elaboration of the initial complaint. Therefore,[208] the complaint by JMG to TAG was not the initial complaint for s34M Evidence Act. For the reasons set out below, I have approached the evidentiary resolution of this matter without the need to give consideration to the question of the application of s34M. I have not rejected the evidence of KAMG but for reasons discussed above, I have sufficient doubt about the circumstances surrounding his evidence that I would not accept it as complaint evidence for the purposes of s34M. The evidence was that JMG slept quite often in the room of her brothers JJG and KAMG. Accepting that to be the case, it does not necessarily mean that if TAG saw JMG in the bedroom of her brothers the next morning, it was the morning after JMG spoke to KAMG. He thought the complaint was made 2 years before July 2012. Apart from that consideration, the evidence of what JMG said to TAG in the morning may be received into evidence as part of the res gestae.[209] That position was not put in contest by the accused.
[207] T270.1.
[208] Contrary to the earlier submissions of the prosecution: see T259 et seq.
[209] BBH v R (2012) 286 ALR 89; 86 ALJR 357.
A number of criticisms have been made by the accused in relation to the content of this evidence. Earlier in these reasons I have set out inconsistencies between the version of events given by each of JMG and TAG in relation to what was said by JMG to TAG on the morning after the events in the lounge room on the previous evening and the inconsistencies between the evidence of TAG and JMG. In the view that I have formed, it is unnecessary for me to resolve the differences in this evidence. I have found that the elements of counts 2 and 3 on the Information have been proved beyond reasonable doubt without regard to the alleged complaint evidence; it is therefore not necessary for me to give consideration to it any further. It is unnecessary for me to make any finding about whether I am satisfied beyond reasonable doubt that any complaint was made by JMG to KAMG. I am satisfied that a conversation occurred between JMG and TAG on the following morning as a result of which TAG confronted the accused. Following that confrontation, and some time later, the accused left the matrimonial home.
Based upon the whole of the evidence, I am satisfied the following elements of the offence under count 2 of the charged offences have been proved beyond reasonable doubt:
1. Between 1 January 2012 and 7 July 2012;
2The accused touched JMG on her underwear outside of her vagina. The conduct of the accused constituted an assault upon JMG.
3.The touching of JMG by the accused was intentional and was not accidental. The rubbing by the accused of JMG’s vagina occurred in circumstances where JMG had been asleep and was awoken by the actions of the accused.
4.The touching was without lawful excuse. At the relevant time, the accused was an adult and JMG was aged between 10 and 11 years.
5.The touching of JMG by the accused was in circumstances of indecency because it was offensive to common propriety and it had a sexual connotation.
Based upon the whole of the evidence I am satisfied of the following elements of the offences charged under count 3 on the Information have been proved beyond reasonable doubt:
1.In the time between 1 January 2012 and 7 July 2012;
2.The accused touched JMG around her vagina and under her underwear. The conduct of the accused constituted an assault upon JMG.
3.The touching of JMG’s vagina by the accused occurred in circumstances where JMG had placed his hands under the underwear of JMG while she was lying on a couch in the lounge room of their home.
4.The touching was without lawful excuse. At the relevant time the accused was an adult and JMG was aged between 10 and 11 years.
5.The touching of JMG by the accused was in circumstances of indecency because it was offensive to common propriety and it had a sexual connotation.
Verdict
I find the accused guilty of counts 2 and 3 on the Information; I find the accused not guilty of count 1 on the Information.
(1)This section abolishes the common law relating to recent complaint in sexual cases.
(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.
(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 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).
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