R v Galliford - [2005] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GALLIFORD
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Chivell
26 October 2005
CRIMINAL LAW
PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of Indecent Assault.
Trial by Judge without Jury - consideration of permissible use of uncharged conduct - consideration of use of complaint evidence - evidence of distress - verdict guilty.
Juries Act 1927 (SA) s7; Criminal Law Consolidation Act 1935 s57(2); Evidence Act 1929 s9(1), s12A, s71A(4), s34I(5), referred to.
R v IK (2004) 89 SASR 406; R v Nieterink (1999) 76 SASR 56; Longman v R (1989) 168 CLR 79; Question of Law No 1 (1993) 59 SASR 214, considered.

R v GALLIFORD
[2005] SADC 149
Introduction

The accused is charged on Information with indecent assault. The charge reads as follows:
Mark Galliford on the 10 February 2004 at West Richmond, indecently assaulted [T], a person of the age of 11 years.
He pleaded not guilty.
The accused elected to be tried by judge sitting without a jury (Juries Act 1927, s 7).
Rule 9 Application
Before the trial commenced, there was an application by the defence pursuant to Rule 9 of the District Court Criminal Rules, that certain evidence be excluded. Ms Boord, counsel for the Director of Public Prosecution, conceded that the majority of the items referred to in the application should not be led. As to the balance, the issue of previous uncharged sexual misconduct by the accused towards the alleged victim was ruled admissible (see Reasons for Ruling given on 18 October 2005).
Preliminary Directions
I direct myself that the elements of the offence of indecent assault are that:
·there must be an intentional touching of the alleged victim by the accused.
·the touching must occur in circumstances of indecency.
Each of these elements must be proved beyond reasonable doubt. There is no requirement that the touching need be hostile or cause pain or harm to the alleged victim.
“Indecency” is conduct that is unbecoming and offensive to common propriety (R v Drago (1992) 63 ACrimR 59, according to “right thinking members of the community” (R v Court [1989] AC 28)). There was no suggestion in this case that the alleged victim’s allegations, if proved, did not amount to an indecent assault.
The fact that the prosecution alleges that the alleged victim was a person of the age of 11 years is a material particular in the charge, but is not an element of the offence (R v Baxter [1999] SASC 403 (CCA)).
Because the alleged victim was under the age of 18 years, she was not capable of consenting to an indecent assault (Criminal Law Consolidation Act 1935 (SA), s 57(2)). There is no issue of consent in this case, in any event.
Case for the Prosecution
Having regard to s 71A(4) of the Evidence Act 1929 (SA), the identity of the alleged victim in this matter should not be revealed. I will refer to her as “T”. Her mother, S, told me that T was born on 5 September 1992. I accept that evidence. I am satisfied that on 10 February 2004, T was aged 11 years and five months.
T gave sworn evidence. She is now 13 years old. Section 9(1) of the Evidence Act 1929 provides that she is presumed to be capable of giving sworn evidence, unless I determine that she does not have sufficient understanding of the obligation to be truthful. There was no such suggestion in this case. She gave evidence in a clear, logical and sensible manner. There are no grounds for thinking that the administration of the oath was not appropriate.
T gave evidence by means of closed circuit television from a position outside the courtroom (see Evidence Act 1929, s 13(1)). This was done without objection from the defence. Section 13(7) provides that in a trial by jury, it is necessary to warn the jury in these circumstances that they should not draw any inference adverse to the defendant by virtue of the fact that these special arrangements have been made, nor should they allow these arrangements to influence the weight to be given to the evidence. Since this case is being tried without a jury, I give myself a similar warning.
Evidence of the Alleged Victim
T said that at one stage she lived with her grandmother, F. She became friendly with the children of Elizabeth Wojciak, to whom I will refer as “A”, a boy then aged 10 years, and “B”, a girl then aged nine years. They lived nearby. When she went to visit these children, the accused was often there (T26). From time to time, the accused would play with the children and, as part of the play, would tickle B. He also tickled T sometimes, but she did not like it and would run away (T38-39).
On the day in question, and there is no doubt that it was 10 February 2004, T went to A’s house to play with him. When she knocked on the door, the accused answered. He told her that A and B were not home. T said she would go and play at another child’s house nearby, and return later.
About 15 to 20 minutes later, T returned to the house. She said:
AI knocked on the door and Mark opened it again and he just said ‘Come in’, and he grabbed my wrists and he pulled me into the house and pushed me onto the lounge, and he was sitting on my upper legs squeezing my stomach with his legs and saying ‘Kiss me’ and I put my hands over my mouth and he kissed my hands.
QWhat were you wearing that day.
AMy school top and shorts.
QDid anything happen after he kissed you.
AYes.
QWhat.
AHe pulled my shorts down with my knickers and used his hand to tap my bottom.
QUsed his hand to tap your bottom.
AYes.
QHow far down your legs did your shorts and knickers go.
AJust under my bum.
QUnder your bottom.
AYes.
QHow were you felling when that was happening.
AUncomfortable.
QDid you say anything when that was happening.
ANo.
QOther than Mark asking you to kiss him, did he say anything to you.
ANot that I know of.
QWhat happened after that.
AHe pushed me onto the floor and then I was laying on my back on the floor and I was trying to get up and then I, like, hit his face where his nose is, and I got up and pulled my pants up and ran outside and then he called out ‘stop’ when I was just at the end of the driveway near the road and he said ‘Don’t you want a nice cold glass of water?’ and I just ran home.
(T27-28)
T said that she was sitting on the couch when the accused pulled her shorts and knickers down and touched her on the bottom. She said he touched her on “the side of my bottom cheek” (T38). She denied that the accused was tickling her, playing with her, trying to be nice. She said, “He wasn’t playing” (T50).
The First Complaint
T said that when she got back to her grandmother’s house, her mother answered the door and she said that she told her what had happened. She said she was “crying and really upset”, that she told her mother the “short story of what happened”, in that “I went to visit A and Mark pulled me into the house and had pulled my pants down and I got away and came home”. She said her grandmother was also present at the time. (T28)
T said that she demonstrated to her mother how far the accused pulled her pants down by pulling down her shorts. She did not pull down her knickers as “I didn’t want her to see my private part” (T40). In the context of what she alleged happened, and taking into account that she was an 11 year old girl, I do not find this at all surprising.
T’s mother, S, confirmed that when T returned to the house after being away for about an hour, she was:
Hysterical. Red, sweaty, crying, yelling, sort of hugging me, just hugging me.
(T61).
S confirmed that T told her that the man at A’s house had put her on the lounge, and had his legs around her, squashing her with his legs, that he had pulled her pants down, that she had demonstrated that by pulling her school shorts down, that he had asked her to kiss him (T63-64).
T’s grandmother also gave evidence, and she confirmed that when T came home at around 6.00 pm she was “really scared”. She also related what T told them.
Although there are some discrepancies between the three versions of this conversation, the substance is basically the same, and there is no reason apparent on the evidence, either in-chief or in cross-examination, which causes me to doubt the veracity of S’s testimony.
In cross-examination, Mr D’Angelo, counsel for the accused, put it to T that “the first person you told about all of this was actually your teacher” (T45). She denied this, saying
I told my Mum as soon as I got to the door, to my house door.
Mr D’Angelo also suggested that T made this story up because she was worried that she had not done her homework that night (T48-49). She denied this, saying “I have always had trouble with homework, not just that night” (T49).
For the reasons I will outline shortly, I am satisfied that T complained to her mother and grandmother at the first available opportunity in the terms outlined above.
Visiting the Doctor
In re-examination, Ms Boord sought to lead evidence of the fact that after these events, T saw blood in the toilet bowl, and so her mother took her to see a doctor later that evening. Ms Boord had earlier agreed not to lead that evidence, because it was not the contention of the prosecution that there had been penetration, or that any injury had been caused to T, and to have led it in-chief might have been prejudicial.
Mr D’Angelo cross-examined T on the basis that the first person she told about the incident was her school teacher the next day (T45). This was clearly to support his proposition that T had made up this story because she was worried about not having done her homework. I ruled the evidence admissible because I am of the view that it rebuts a suggestion of recent invention (R v Ugolini (1989) 51 SASR 303). I have regard to it for that very limited purpose, and not as evidence of the truth of what occurred.
T’s mother said that she took her to the doctor because she was concerned about whether T had been injured, or whether penetration had taken place (T63-64).
T’s grandmother gave similar evidence, saying that although she thought T might have been getting her period, she was also concerned that the blood may have been associated with the events of that day (T78).
I agree with the submission of Ms Boord that the visit to the doctor is more consistent with the complaint having been made during the evening of 10 February 2004, since if T’s mother and grandmother had known nothing of her allegations, they would have been much more likely to have attributed the presence of the blood to a benign cause.
S was asked about why she did not raise the allegation with the doctor. She said:
Because both of us felt uncomfortable with the situation and if he – or I thought if the doctor had have checked he would have triggered on something, if it had have been penetration.
(T64)
She was also questioned about why she did not report the matter to the police that night. She said:
Just didn’t know what to do at the time.
(T64)
T’s school teacher also gave evidence after Mr D’Angelo put the complaint in issue. She said that after T had disclosed this incident to her on 11 February 2004, the next day, it was clear that T had already told her mother about it the previous day. She said:
No, because I spoke to [T] about it. I said ‘Has your mother called the police, have you told your mother, has your mother call the police?’ and, because I said ‘This is serious and the police do need to know’, she explained to me that her mother, because she was a friend of the lady who I think was living, or a girlfriend of the man involved, I don’t know the man’s name. She said her mother wants to talk to Deborah first before she calls the police.
(T72-73)
It is clear on the evidence that Ms Walker’s reference to “Deborah” was a reference to Elizabeth Wojciak.
I must say that the mother’s behaviour is somewhat confusing. I fail to understand why she would take her daughter to the doctor because she was concerned that she might have been sexually penetrated, and then not raise the issue with the doctor. Whether she was reluctant for another reason, namely that she wanted to discuss the matter with Ms Wojciak, with whom she had been on friendly terms, is not clear, since she was not questioned about that.
I have no reason to doubt S’s evidence. Certainly nothing was elicited in cross-examination which caused me to have any hesitation in accepting her as an honest witness. The fact that she might have been confused and not thinking clearly on the night does not detract from her veracity, or that of T.
As I have already mentioned, T’s school teacher, Ms Sabrina Walker, gave evidence. She said that during the morning of 11 February 2004, before class started, T approached her and showed her the note in her diary.
The evidence of what T told Ms Walker was not led in detail. In R v Corkin (1989) 50 SASR 580 at 581, King CJ pointed out that it is only complaint made at the first reasonable opportunity which is admissible. Ms Walker said that as a result of what T told her, she had the conversation with T which I related earlier, in particular why her mother had not reported it to the police the night before, and that she then telephoned the Child Abuse Hotline that morning, in compliance with her obligations as a “mandated notifier”, and notified the police of these allegations. I therefore admitted the evidence of the conversation between T and Ms Walker for that limited purpose.
“Free to Leave”
In cross-examination, the following question and answer appears:
QWe are also saying you could have left at any time you wanted to, the house, would you agree with that.
AYes.
(T50)
I do not think that T’s answer should be taken literally to mean that she withdrew any allegation of restraint or compulsion or fear of the accused. The answer indicated to me that T was saying that the accused did not try to prevent her from leaving. Contrary to Mr D’Angelo’s argument, the answer does not detract, in my opinion, from the veracity of her earlier evidence.
Uncharged Conduct
T also alleged that, on two occasions prior to 10 February 2004, the first about a year before, and the second about a month before, the accused had come up behind her and cupped his hands around her breasts. She said that A and B had been present at the time, but she did not know if they had seen what had happened (T37). There is no evidence about this from either of them, and I do not speculate about why this might be so. There are too many possible reasons for this, so no inferences either way are open.
T said that she did not tell her mother about either of these events. She was unable to explain why, although when asked whether, back then, she knew what it was that he was doing, she said “not really” (T30). I draw no inference adverse to T in relation to this. It is not surprising that a 10 or 11 year old girl might not have reported such behaviour.
This was clearly denied by the accused (T92 and T99). However, like many of the issues in this trial, the issue was not confronted head on. There was very little cross-examination of T on the subject (see T37, lines 1 to 14). The accused’s denial in examination-in-chief was completely unadorned:
QDo you recall ever touching [T] on the breasts.
ANo.
QDo you think it never happened.
ADo I think it never happened?
QYes.
AIt never happened.
(T92)
Defence Case
The accused gave evidence in his defence. He told me that he is now 43 years old. He was 41 on 10 February 2004. He lived at Middleton, but stayed quite often at Ms Wojciak’s house when he was in Adelaide. He and Ms Wojciak previously had an intimate relationship, but at that time were “just very good friends” (T92).
He said that T often came around to play with Elizabeth’s children, A and B. He said he would often play with them. He said:
I wouldn’t be playing with her independently, it would be with all the kids. Very much sort of like a stirrer, teaser, I like to tease, just rough and tumble, tickling, chasing that sort of thing.
He said he would have played with the children, including T, on four or five or six occasions (T84). He said he had never noticed T becoming uncomfortable or unhappy with that sort of play.
As to the events of 10 February 2004, the accused agreed that after T came looking for A initially:
AShe returned probably 20 minutes later. Once again, I said ‘Look, they are going to be home at any moment. Do you want to come in, just wait here, watch some TV or something?’
QDid anything else happen.
A[T] just stood there then her mobile phone went off, she pulled it out of her pocket. I noticed it was the same phone that I have got. I was saying ‘I have got the same phone’ blah, blah, blah, just chitchat. Then I just basically said ‘Well, you might as well hang around because they are expected at any moment’.
QWhat did she do.
AShe just stood there.
QDid she say anything.
ANo, she was just sort of, I don’t know, just standing there kind of not really knowing what to do, I suppose.
QHow long had she been standing there without saying anything.
AA minute, less than a minute.
QDid you do anything after that.
AYes, I just thought, you know, there is no point in just waiting out in the heat. I said ‘Come in’. I picked her up, took her into the lounge and put her on the lounge.
QYou picked her up.
AYes.
QWhere was she when you made the motion to pick her up.
AShe was standing outside the front door.
…
ATook her in, put her on the lounge, the TV is opposite the lounge. I thought ‘She can watch some TV’.
…
AYes, I sat down next to her. I was teasing her, tickling her. I have this silly thing like with B and all her friends ‘give us a kiss, give us a kiss’, it’s mucking around, you know. There is no insidious intention or anything it’s just – just teasing.
QWhat was she doing while you were doing that.
AWell, she put her hands over her face like that (INDICATES).
QWhat did you do next, if anything.
AI just pecked her on her hand like that (INDICATES).
QDid she seem upset in any way at that point.
ANo.
QDid she say anything to you.
ANo.
…
AI think, once again, I sort of offered her a drink of water, said ‘Do you want to watch TV?’. I mean Elizabeth was expected at any moment, of course. She said no, she didn’t want a drink of water. I was just tickling her a bit.
QI don’t think I asked you whether there was anyone else at the home at the time at Elizabeth’s house. Was there anyone else there.
ANo, no-one.
…
AShe just seemed very quiet. I thought she doesn’t probably – she wasn’t kind of responding the way she would have in usual play in the past.
QDo you mean that you thought she was unhappy.
ANo, not unhappy, just sort of reserved, I suppose.
QWhat, if anything, did you do after that.
AWell, I thought, you know, my next level of teasing would be I sort of pulled her by the ankles, that is a game most the kids enjoyed playing, pulling along a bit by the ankles.
QWas she still on the couch at this point.
AShe had come off the couch.
QHow did that happen.
AI was pulling her very gently of course and she just sort of come off the couch like that and I was like pulling her off that. I thought that might sort of make her feel a bit more at ease, a bit of a play, you know what I mean.
QWhat part of her body did you pull her, as you called.
AJust by her ankles.
…
QDid she fall, in any way, as a result of you doing that.
ANo.
QCan you describe to us physically where she ended up as a result of you pulling her ankles.
APulling her ankles, off the couch, okay, like she’s sitting down, I just picked her up pulled her down. Obviously she used her hands to sort of get down on to the floor.
…
AYes, I just stopped. I realised she wasn’t engaging in the play as she would normally. Once again, I just said ‘Look, Elizabeth will be home any minute. Do you want to watch TV’. I was trying to put her at ease basically with the horse play sort of thing. She said, ‘No, I will wait at my friend’s place’.
QAfter she said ‘I will wait at my friend’s place’, what, if anything, did she do then.
AShe left.
(T85-89)

In summary, the accused specifically denied that he grabbed T by the wrists, rather, he said he picked her up. He admitted sitting down next to her, he admitted asking her for a kiss, that she put her hands over her face and that he “pecked her” on the hands. He specifically denied pulling her shorts or knickers down or touching her on the bottom in any way. He denied that she hit him in the face. He denied that at any stage she gave the appearance of looking concerned or apprehensive or afraid. He denied that she ran away, he said that he observed her walk down the driveway (T91).
As to the allegations of past misconduct, he denied ever having touched T on the breasts (T92, 99).
When giving his version of the events, the accused did seem oblivious to the question of how inappropriate his behaviour was. In cross-examination, Ms Boord highlighted the fact that he was alone in the house with an 11 year old girl who did not live there, and whom he had bodily picked up and taken inside. He kept insisting that his behaviour was mere harmless playfulness. For example, he said:
QHad you ever kissed her before.
AIn play.
QTalk to us about that. How do you kiss a child that is not yours in play.
AI find with T and all her friends, especially girls, that they seem to enjoy that kind of playfulness.
QKissing.
AYes. It’s not the kissing that, you know, there is no sexual intention to the kissing. It’s like teasing, pecking, pretending, you know.
QDo you mostly do that with the girls.
ANo, not all the time.
QDo you do it with the boys.
ANo, I don’t kiss the boys.
(T95)
When asked whether he and Ms Wojciak had discussed the matter, the accused said that he had given her his version of the events. In cross-examination, he admitted that he had told Ms Wojciak that he had “flicked” the waistband of T’s shorts. This issue was conspicuously absent from his evidence in-chief. He explained this on the basis that he did not think it was “such a big deal” (T101).
When Ms Wojciak gave evidence, she confirmed the accused told her that he had flicked the waistband of T’s pants. He denied pulling them down (T110).
Ms Wojciak’s evidence then became rather confused, and it was clearly apparent that she was conscious that her answers might be harming the accused’s cause, so she began modifying them. She initially said that the accused did not tell her that he had kissed T (T110). She then began withdrawing, suggesting that she might not be able to remember (T112), and when it was put to her that she made no mention of kissing in her statement she explained that she was in “shock” at that stage (T114). Ms Wojciak then volunteered that the accused told her later that he had kissed T’s hands (T114).
The veracity of Ms Wojciak’s evidence on these issues was very much damaged by this passage. She demonstrated a clear partiality for the accused’s cause, and was clearly willing to modify her evidence if she thought it might help him. I am satisfied that he did not tell her that he had kissed T.
Ms Wojciak gave evidence about the accused playing with her children and with T and other children, and that she never had any concern about the appropriateness of his behaviour (T108). As I said, I do not think Ms Wojciak was being honest about these issues, and I am of the view that she would modify her evidence if she thought it would help the accused.
Ms Wojciak’s evidence in this regard flies in the face of how inappropriate the behaviour of the accused was, even on his own version of the events. He was alone in the house with an 11 year old girl, whom he knew only slightly. She had not accepted his invitation to come in. He had picked her up bodily and taken her inside and placed her on the couch. He had engaged in conduct which was overtly sexual, including an attempt to kiss and flicking the waistband of her shorts. He had pulled her onto the floor by the legs. Ms Wojciak seemed anxious to avoid an honest appraisal of the seriousness of this conduct. The most she would say was that if the accused had flicked her daughter’s shorts in her presence (he clearly had not), she would have told him not to (T112).
Later Discussion with T’s Mother
Ms Wojciak gave evidence that T’s mother told her in a telephone conversation about two days after the police came:
… She said ‘Oh, I don’t know what happened’. I told her ‘You know the police came over to our house’ and she said, ‘Well, that day she came a little bit upset but she doesn’t say anything and I don’t know anything about it. School is dealing with it’. She didn’t want to talk about it at all.
(T122)
Having regard to my unfavourable view of Ms Wojciak, it was clear that she was again consciously underplaying the seriousness of the incident. About the only thing I am prepared to accept arising out of this telephone conversation is that S did not want to discuss the issue with Ms Wojciak at all, and one could hardly blame her.
Issues arising from the Crown Case
Uncharged Conduct
As I mentioned earlier, T alleged that on two previous occasions, the first about a year before 10 February 2004, and the second about a month before that day, the accused came up behind her while she was playing on B’s bed and cupped his hands around her breasts (T29).
I direct myself that I should not act upon this evidence unless I am satisfied of its truth. I remind myself of the comments of Doyle CJ in R v IK (2004) 89 SASR 406:
… in the end, the case law reflects four basic propositions. The first is that it is the charge, and not the surrounding facts and circumstances, that must be proved beyond reasonable doubt. The second is that sometimes a fact or circumstance may be of such significance in the process of reasoning to a finding of guilt that it must be proved beyond reasonable doubt. The third is that particular care is called for if the evidence is to be, or might be, used to support a form of propensity or tendency reasoning. The fourth is that trial judges should avoid confusing juries by introducing reference to differing standards of proof. In the end, subject to observing the requirement that the judge adequately direct the jury about how evidence of uncharged acts can be used and cannot be used (and again, the nature of direction will depend upon the nature of the case), is ultimately a matter of applying these basic principles to the circumstances of the particular case.
(See also R v Gray [2004] SASC 394.)
Since I am sitting without a jury in this case, a closer analysis of the standard of proof required of this evidence is called for.
In R v Nieterink (1999) 76 SASR 56, Doyle CJ said at [83]:
The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R’s conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt: cf R v Ball and Gipp (at 133-134) per McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have been told not to act upon the evidence of uncharged acts unless satisfied that those acts were proved, even though, in the light of the judge’s general directions to the jury, that would convey to the jury that what was required was proof beyond reasonable doubt.
In R v IK (supra), Doyle CJ said that the requirement that uncharged acts must be proved beyond reasonable doubt will be the exception. His Honour referred to R v Ball [1911] AC 47. That was an unusual case involving a charge of incest. Vanstone J in R v IK described Ball at [141] as follows:
… There the prosecution adduced no direct evidence to prove the charges of incest. Only by reasoning from a finding that the defendants had previously had a child together (at a time when incest was not unlawful) coupled with the fact that they were occupying the same bed, could the jury infer that they were engaged in sexual relationship. Thus the evidence tending to prove a sexual relationship at an earlier time could be seen as an indispensable link in the chain of reasoning leading to guilt, or as an intermediate fact necessarily requiring proof beyond reasonable doubt. (See Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J, with whom Toohey and Gaudron JJ agreed).
In my view, the evidence in question here is not (to use a term deprecated by Doyle CJ in Nieterink (supra)), evidence of a relationship between the accused and the alleged victim. Nor does it show a “lead up” to the incident in question, or explain the reaction of T to the alleged behaviour of the accused. It does however, explain the confidence that the accused might have had in repeating his conduct on 10 February 2004, in view of a lack of reaction from T on the two previous occasions. It is also evidence of a sexual attraction by the accused towards T.
In those circumstances, this is not a case which is in any way comparable with R v Ball (supra). It is not evidence which is an “indispensable link in the chain of reasoning leading to guilt”, and therefore need not be proved beyond reasonable doubt.
Taking the above principles into account, I am satisfied that the two previous incidents referred by T occurred. I will consider those incidents, together with the other evidence, in deciding whether it has been proved that the accused is guilty or not guilty beyond reasonable doubt (see Edwards v R (1993) 178 CLR 193, referred to by Vanstone J in R v IK (supra)).
Distress
In considering the evidence of T, her mother and grandmother, of her condition when she returned to the grandmother’s house on 10 February 2004 I am satisfied that she was seriously distressed. I remind myself that there can be many explanations for distress, not all of which are necessarily consistent with the guilt of the accused. I should consider whether there is any other reasonable explanation for her distress before taking it into account as evidence against the accused.
One explanation advanced by the defence, and I remind myself that the defence bears no onus of proof in this regard, is that T might have been distressed because she did not have her homework done that night. As I have already discussed, there is no evidence of that, the accused admitted that he had no knowledge one way or the other about the matter (T99), and T denied that it was a relevant consideration (T49).
There is no other reasonable explanation for T’s distress which is apparent to me. I take into account the possibility that T might have been distressed for a reason which has not become clear during the trial. That does not appear a reasonable possibility in the circumstances, and no such other reason was explored to the extend that it could become more than a fanciful suggestion.
I take into account that T’s distress was apparent to the mother and grandmother within a matter of minutes of the alleged event, that T was only 11 years old at the time and it would be extraordinary if she was able to sustain a pretence of such intensity and magnitude. I find that I am satisfied that she was distressed at the relevant time and the distress arose from her dealings with the accused. It is, therefore, another piece of evidence which I will take into account when assessing whether or not the guilt of the accused has or has not been established beyond reasonable doubt.
Since it comes from T, evidence of distress does not amount to independent corroboration of her allegations, however, but shows consistency of conduct and is relevant to T’s credibility.
Recent Complaint
The evidence is clear that T complained of the accused’s actions at the first available opportunity, spontaneously and without prompting, to her mother and grandmother. I reject the defence suggestion to the contrary. Within a matter of minutes of the events involving the accused, T reported the basic facts of the alleged indecent assault. For that reason, the evidence is admissible to show consistency in the behaviour of the alleged victim.
I am completely satisfied that the complaint was made, in the terms outlined by T and by the mother, S, and grandmother, F. Of course, this is not evidence of the offence charged, but is evidence of the consistency of T’s conduct and is relevant to her credibility.
Since it comes from T, the complaint is not corroboration of her allegations from an independent source.
Corroboration
The concept of corroboration of evidence in sexual cases involves a consideration of whether there is evidence from a source independent of the alleged victim, which tends to provide support for her evidence.
The issue of corroboration arises in two ways.
Firstly, this is a case in which the accused is charged with a sexual offence. Section 34I(5) of the Evidence Act 1929 provides:
In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
Secondly, the alleged victim of the offence in this case is a “child” within the meaning of s 4 of the Evidence Act 1929, in that she is under the age of 18 years. Section 12A of that Act provides:
There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if a child gave sworn evidence.
In Longman v R (1989) 168 CLR 79, the High Court gave s 34I(5) a narrow interpretation, and held that it referred to the “special rule” requiring corroboration in sexual cases, and added:
Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. (168 CLR 85FF)
Since s 12A is expressed in the same terms, I assume it should be interpreted in the same way.
I also take into account the remarks of King CJ in Question of Law No 1 (1993) 59 SASR 214 at 218 as follows:
It is proper where an accused person has given evidence in denial of the charge and there is no convincing corroboration of the alleged victim’s allegation, to remind the jury that the case is, or may be if they find the supporting evidence unconvincing, a case of oath against oath and of the difficulty in such circumstances of arriving at a conclusion of guilt beyond reasonable doubt. Where that course is taken, the jury should also be told that there are cases in which an alleged victim’s evidence is so convincing and the accused’s denials so incredible that it is possible to reach that state of mind, but that caution is indicated. It is proper to refer to aspects of human nature and behaviour such as those mentioned in the above passages from Pahuja’s case which are relevant to the facts of the case. In discussing the evaluation of witnesses, reference to the possibility of hidden motives for giving false evidence or making a false allegation is permissible if that appears to the judge to be desirable having regard to the circumstances of the case.
It is a matter for my discretion to consider whether the age of the alleged victim in this case is such that her comprehension of events, or ability of expression may be sufficiently imperfect to require a warning that it is unsafe to convict on her uncorroborated evidence.
There is no fixed rule as to the age at which such a warning ceases to be necessary. Where there is a substantial delay between the alleged assault and the report, the need for a warning is greater (Longman v R (supra)). This is particularly the case where the accused has lost the means of testing the complainant’s allegations by the effluxion of time. See also Hickman v R (1993) 60 SASR 415.
It is the age of the alleged victim at the time of the offending, rather than at the time of giving evidence, which is relevant (see Hickman v R (supra)).
In all the circumstances, it seems to me that it is appropriate to direct myself as follows:
·The evidence of T is uncorroborated.
·There is no rule of law or practice which requires a warning that it is dangerous to convict the accused on the uncorroborated evidence of T.
·Where the situation is that it is the case of “oath against oath”, a conclusion that the guilt of the accused is proved beyond reasonable doubt is difficult and should be approached with caution.
Issues Arising from the Defence Case
I direct myself as follows:
·Nothing adverse is to be inferred against the accused because he declined to answer questions of the police when interviewed;
·The accused was not obliged to answer the charges by giving sworn evidence, but he has done so thereby exposing himself to cross-examination. His evidence is to be considered by me on the same basis as the other evidence given in the trial;
·My task is not to evaluate competing versions of these events. Even if I do not accept the evidence given by the accused, I must still separately evaluate the Crown case to determine whether or not the guilt of the accused has been established beyond reasonable doubt.
Reasons for Verdict
I have paid close attention to the submissions of Mr D’Angelo, counsel for the accused. Without repeating all of them, I mention and comment upon the following:
·the allegation that the accused pulled T’s shorts and knickers down while she was sitting on the couch is inherently improbable – the issue was explored only slightly (see T38), and I do not find any difficulty understanding how this might have happened;
·it is improbable that T would have felt uncomfortable throughout the incident, and yet voiced no objection – again, I have no difficulty with the idea that an 11 year old girl, alone in a house with a 41 year old male, might not voice an objection to behaviour she found shocking or surprising;
·it is odd that the accused might have offered her a glass of water after she hit him on the nose – this was not explored at all in cross-examination, but it seems obvious to me that by that stage the accused realised that he might be in trouble and tried to mollify T by offering her a drink;
·T’s comments that she did not like his moustache (T49) indicated that she bore him ill will, and might have motivated her to fabricate a story about him – this is a futile attempt to make an issue out of nothing, it seems to me;
·it is strange that T did not report the “uncharged conduct”, the two previous incidents when he allegedly touched her breasts – again I see nothing odd about that – a 10-11 year old child does not necessarily have the understanding or presence of mind to act in the same way as an adult might in the same situation;
·T’s homework was a “festering issue” for her – again, as I outlined earlier in these reasons, there is nothing in this homework issue on the evidence;
·the evidence of the accused had the “ring of truth” about it – on the contrary, I found the evidence of the accused quite incredible – it was facile and disingenuous, and I unhesitatingly reject it.
Conclusion
Taking all these matters into account, I find that I am satisfied beyond reasonable doubt that T was telling the truth when she described the events at Elizabeth Wojciak’s house on 10 February 2004. Her general demeanour when giving evidence, the consistency of her evidence with the known facts of her visit that afternoon, indeed the consistency of her evidence with the admissions made by the accused with the exception of the evidence of the offence itself which is factually of very narrow compass, all compel me to that conclusion.

T’s credibility is also bolstered by the consistency of her behaviour when she returned to her Grandmother’s house in a distressed condition, and by the detailed complaint she made at the earliest available opportunity.
However, T’s evidence is uncorroborated.
I reject the evidence of the accused beyond reasonable doubt. I found his evidence facile and unconvincing. Even on his own version of these events, he admitted inappropriate and overtly sexual conduct towards T, even though he denied that was his intention, in circumstances where he, a 41 year old adult, had bodily lifted T into the house, where they were alone, where T showed not the slightest inclination to want to “play” with him, and from where she escaped at the first opportunity.
I find that the accused was not helped by Elizabeth Wojciak’s evidence of his “playfulness” towards children in general and T in particular. She was clearly partial in his cause, and willing to tailor her evidence where she thought it might help him.
I remind myself that the accused bears no onus of proving anything in this trial. In particular, it is not incumbent on him to show that T is lying or that she has a motive for making a false allegation against him. Even if I completely reject his evidence, as I do, a finding that the charge is proved does not automatically follow.
T’s evidence is uncorroborated. I should adopt a cautious approach before accepting her evidence beyond reasonable doubt. I am reminded that such an allegation is easy to make and difficult to refute. However, to use the words of King CJ in Question of Law No 1 (supra), I find T’s evidence so convincing, and the accused’s denials so incredible, that I am satisfied of his guilt beyond reasonable doubt.
I am satisfied beyond reasonable doubt that each of the elements of the crime of indecent assault have been proved.
Accordingly, my verdict is that the accused is guilty of indecent assault.