R v G, LDT - [2010] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, LDT
Criminal Trial by Judge Alone
[2010] SASC 174
Reasons for the Verdicts of The Honourable Justice David
11 June 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN
Trial by judge alone - accused charged with two counts of unlawful sexual intercourse with a person under the age of 12 years - accused alleged to have performed cunnilingus on two separate occasions - whether evidence proves charges beyond reasonable doubt.
Held: Accused not guilty of both counts.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Evidence Act 1929 (SA) s 9, s 34CA, s 34D, s 34L, s 34M, referred to.

R v G, LDT
[2010] SASC 174
Criminal:

DAVID J. The accused was charged on information with two counts of unlawful sexual intercourse with a person under the age of twelve years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). I set out the particulars in relation to those two counts:
First Count
Particulars of Offence
[G, LDT] between the 1^st day of August 2004 and the 31^st day of December 2005 at Nuriootpa, had sexual intercourse with [the alleged victim (“V”)], a person of the age of between 3 and 5 years, by performing an act of cunnilingus upon her.
Second Count
Particulars of Offence
[G, LDT] between the 1^st day of August 2004 and the 31^st day of December 2005 at Nuriootpa, had sexual intercourse with [V], a person of the age of between 3 and 5 years, by performing an act of cunnilingus upon her.
The accused has pleaded not guilty to each of those charges and elected for trial by judge alone.
Before the accused can be found guilty of any of those charges, I must be satisfied beyond reasonable doubt of each of the following elements of the offence:
1.     the accused had sexual intercourse with V during the period charged;
2.     the act of sexual intercourse was deliberate; and
3.     that at the time V was under 12 years of age.
The acts of intercourse which were alleged by the particulars contained in the information in relation to both counts are acts of cunnilingus. By virtue of s 5 of the Act, that alleged behaviour is regarded as an act of sexual intercourse.
The prosecution case
The prosecution called the complainant V, her mother, and police officers Karen Newman and Michael Casey. Ms Newman gave evidence of a recorded interview with the complainant. That recorded interview was tendered in evidence, pursuant to s 34CA of the Evidence Act 1929 (SA) (“the Evidence Act”). Mr Casey gave evidence and tendered a video recording of an interview he had with the accused on 17 March 2008 (exhibit P5).
As V was nine years of age at the time of giving evidence, I undertook an inquiry, pursuant to s 9(1) of the Evidence Act, as to whether she had sufficient understanding of the obligation to be truthful in giving sworn evidence. I was not so satisfied. I therefore inquired, pursuant to s 9(2), as to whether I was satisfied that she understood the difference between the truth and a lie. I was satisfied. She was also told that it was important to tell the truth, and she indicated that she would tell the truth. I therefore ruled that she could give unsworn evidence. Pursuant to s 9(4) of the Evidence Act, I warned myself as judge and jury in this matter that I must act with caution in determining whether to accept her evidence and the weight to be given to it.
Before turning to the prosecution case in more detail, I also ruled, pursuant to s 34CA(1) of the Evidence Act, that the prosecution could present the contents of a video recorded statement made by V to police officer Karen Newman on 17 October 2007 (exhibit P1). I also ruled, pursuant to s 34CA(2) of the Evidence Act, that V was a “protected witness”, being under the age of 12 years, and I gave permission for her to be cross-examined. I direct myself that the statement made in exhibit P1 may be used to prove the truth of the facts asserted.
I turn to the unsworn evidence of V. She told the Court that she is now aged nine years. The accused is her father’s brother. Her father and mother have been separated for some time and were separated at the time of the allegations. V has a brother and a sister. It was established by evidence from V’s mother that the father of V’s sister is not V’s father.
V gave evidence that the accused licked her vagina on two occasions on two different days. She said she was aged five or six when this happened, and it happened at her grandfather and grandmother’s (“pop and nanna’s”) house. They are the parents of her father and the accused.
On the first occasion (the subject of count one), V was at her grandparents’ house for a sleepover. At the time, the accused was staying there and her grandparents were present in the house, as was the accused’s son (whom I will refer to as “E”). V said that E slept in the accused’s room. She said on the first occasion, she was in the accused’s room and E was also in the room playing the X-box, which was on the floor. She said she had been watching E play for some time when the accused starting playing with her, and they rolled on the bed. She said he held her upside down by the ankles and pulled her knickers down to her ankles, and he licked on the inside of her vagina, which she described as her “rude part”. At that time, E was playing the X-box on the ground. She said her grandparents were cleaning outside at the time. After it happened, she pulled up her knickers and went outside and played.
V then told the Court of the second occasion (count two). She said it happened the next day in much the same way as the first occasion. She had stayed at her grandparents’ house for two days in a row, and it happened in the accused’s room, and E was also present playing the X-box. Similar to the first occasion, the accused was playing with her on the bed and he pulled her knickers down and licked inside her vagina. Once again she was upside down when that happened. When he had finished, she pulled up her knickers and went outside and played.
If I accept her evidence beyond reasonable doubt as being reliable and truthful, clearly the two charges are made out.
V told the Court that she told her grandmother about what happened around about three weeks later. She also told the Court that she told her mother about what happened about a week after she had told her grandmother. She told her mother about what had happened because she could not really sleep that well at night, and it made her feel a lot better when she did.
When cross-examined by the accused’s counsel, Mr Algie SC, it was established by reference to the house at which she was living when these alleged events took place that she may have been as young as four or five. That was confirmed by the evidence of her mother.
It was also established that E was older than V, as was her sister, who was two or three years older. It was also emphasised in cross-examination that the details of the two events relating to the two counts were almost identical. Namely, that they took place in the same room, in the presence of E whilst he was playing the X-box, and whilst she and the accused were playing a game on the bed.
In cross-examination V was challenged as to whether it was three weeks after the events that she told her grandmother, and also a week after that that she spoke to her mother. It was put to her that she spoke to her grandmother for the first time about three years after the events concerning the accused, and not three weeks. She was unsure of that. It was also established in cross-examination that when V complained to her grandmother, that she also complained that her grandfather had touched her indecently as well.
V was also cross-examined about the details of her first complaint to her mother. It was put to her that she told her mother that these events happened, at least in relation to one occasion, when she had just got out of the bath. She said she was not sure whether she said that to her mother or not, but she clearly said in cross-examination that if she did say that to her mother, that was not correct. There are other details of the complaint that she had made to her mother with which she disagreed, namely, it was put to her that after the act of cunnilingus had taken place, the accused told her to get some clothes and she got dressed. It was put that she said that to her mother. She denied that.
It was also put that V told her mother that she waited for her grandmother to come home after the act of cunnilingus had taken place, and she denied that. V confirmed in cross-examination that, in fact, her grandmother was home at the time.
Further, it was put in cross-examination that she spoke to a friend of her mother’s (whom I will refer to as “K”), and told her that the accused was mucking around with her, and she went to say goodnight and she sat on his lap when these events took place. She denied telling K that.
It was also put to V in cross-examination, permission having been granted pursuant to s 34L(1)(b) of the Evidence Act, as to complaints she had made of sexual assaults against her in relation to other people; namely a young man called “R”, who is the son of one of her mother’s friends, her grandfather, and E (the son of the accused). She admitted making complaints against those people, and at trial, the matter went no further. The use I can make of such evidence is limited, if not non-existent, but it was allowed on the basis that there might be some confusion between all of these events.
I have indicated that the Crown tendered as evidence, pursuant to s 34CA of the Evidence Act, an interview between a police officer named Karen Newman and V. That interview took place on 17 October 2007. I digress to comment that, in my view, the interview was fairly, properly and sensitively conducted by the police officer. There were no overtly leading questions, and there was certainly no bias involved in the process. During the interview, V told of the two incidents in the same terms as her unsworn evidence before me. There were no marked inconsistencies between her unsworn evidence and that interview.
V’s mother gave evidence. She said that V was born on 25 October 2000, and that the accused is the brother of her estranged partner. She has a son by that union, and another daughter by another partner. Her relationship with V’s father came to an end in December 2006. She maintained custody of the children, although her former partner had rights of access every second weekend. V’s mother gave evidence that for a period of time the accused was living with his parents and E. V would often go and visit E and stay overnight at her grandparents’. E was about a year older than V. She said that the period in which the accused lived with his parents was late 2004 to early 2005, when V would have been four or five years of age. She gave further evidence that in 2007 or 2008, after V had been visiting her father and returned home, V complained for the first time about what happened to her at her grandparents’ house with the accused. She said that V told her that she had come out of the bathroom and the boys were playing the X-box, the accused starting messing around with her and then he licked her “fanny”. She was told by V that this happened in the accused’s bedroom and that when it had finished she felt sick and got dressed. V’s mother also said that it was unclear whether it happened on one occasion or more than one occasion.
V’s mother then gave evidence that she went and saw a friend, namely K, for advice as to what to do. She also said that sometime later, having heard what was being said, the accused phoned her and denied the matter. In denying the matter, she gave evidence that he said that he “always runs around with the kids and bites them on the bum, he couldn’t say that didn’t happen”.
V’s mother then gave evidence that she took V to the doctor, who contacted the police.
When cross-examined, V’s mother agreed that V told her that these things happened when she was four or five. She agreed that V told her it happened on one of the visits to her grandparents’ house when the accused was there, and she had just got out of the bath to go to the spare room to get dressed. V’s mother also agreed that V said to her that after it had happened, she waited for her “nanna” to come home from work, and that she in fact told her nanna what had happened when she came home from work. She said that V told her that her nanna told her not to say anything about it.
The final prosecution witness was a police officer, Michael Casey, who gave evidence of a record of interview with the accused which was videotaped and tendered in evidence (exhibit P5). The interview took place on 17 March 2008. The allegations were properly and carefully put to the accused, who denied them.
The Crown also presented a number of agreed statements. An agreed statement from K was tendered in evidence (exhibit P6). She said that on 8 October 2007 she spoke to V, pursuant to an arrangement with V’s mother. She said in her agreed statement that V said that the accused had “licked her fanny”. She also said that “pop had touched her fanny”. According to K, V then said to her that when the accused licked her fanny, it was when she was with her grandparents, and then gave details of how it happened. According to K, V said, “He picked her up and turned her over so her face was down on the ground and he licked her fanny, she didn’t say if she had knickers on or not. She didn’t say how long it went for but she got up and went and told Nana [sic] what had happened. Nana gave her a cuddle and said OK.”
An agreed statement from the grandmother was also tendered in evidence (exhibit P7). In that statement, by reference to events which are not necessary to set out, it is agreed that the grandmother says that V only spoke to her about the allegations with the accused in late 2007.
The accused did not give or call evidence at trial. I remind myself that there can be no prejudice afforded to him for taking that course.
Conclusion
The way in which V presented in her interview (exhibit P1) was impressive for a child of her age. The way in which she gave her unsworn evidence was clear and impressive for a child of her age. I am mindful of the fact that she made no complaint about these matters for about two years. Nevertheless, pursuant to s 34M(3) of the Evidence Act, evidence of such complaints to her mother, K, and the grandmother are admissible. They are admissible to show consistency of conduct, but not as evidence of the truth. However, as a trier of fact, I am guided by s 34D(1) of the Evidence Act, which says:
In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
What obviously concerns me in estimating the weight to be attached to both exhibit P1 and the evidence of complaint is the lack of contemporaneity. I remind myself that there may be many reasons why a child so young may delay in complaining, especially when there were certain dysfunctional aspects of her family life. However, I am concerned about the inconsistencies combined with the length of time between her evidence of what happened and what she told other people. Once again, I am mindful of the fact that she was, and is, very young, and allowance must be given for that. Those inconsistencies are clearly set out in my summary of the evidence, but in short they are:
(a)the evidence of the mother that V said these events happened after she had got out of the bath – that is clearly inconsistent with her unsworn evidence in court;
(b)she told her mother that after it had happened she waited for her grandmother to come home from work - that is clearly inconsistent with her unsworn evidence that her grandmother was in the house at the time;
(c)she said to her mother that she told her grandmother what had happened when she had come from work - that is inconsistent with both her unsworn evidence and with the statement of the grandmother to the effect that the first time she said anything about the matter was in 2007; and
(d)what she said to K, namely, that when it had finished she told her nanna straightaway - once again, that is inconsistent with what she said in court and the statement of her grandmother.
I realise the potential artificiality of such an analysis of the evidence of a young child, and even if there are inconsistencies in relation to events that took place when she was as young as four or five years, she may be telling the truth. However, I am in the position where as a trier of fact I am of the mind that she could be telling the truth, but I can go no further. The fact of those inconsistencies, combined with the period of time between these allegations and her first recalling her story, and the fact that I am dependent on her statement to the police and her unsworn evidence in this Court without any supporting evidence, leaves me in a position of not being able to find the case proved beyond reasonable doubt.
I therefore find the accused not guilty of both counts.