R v Gam No. DCCRM-03-1015

R v GAM
[2004] SADC 76
Judge Kelly
Criminal

The accused GAM is charged with one count of Unlawful Sexual Intercourse with a child under the age of 12 contrary to section 49 (1) of the Criminal Law Consolidation Act and two counts of Indecent Assault contrary to section 56 of the Criminal Law Consolidation Act.
The accused pleaded not guilty and elected for trial by Judge Alone. Before he can be found guilty of any of the offences charged I must be satisfied beyond reasonable doubt of each of the following matters:-
In relation to the offence of unlawful sexual intercourse with a child under the age of 12:-
·That the accused had sexual intercourse with C.
·That the act of sexual intercourse was intentional.
·That at the time when the accused had sexual intercourse with C she was a child under the age of 12.
The act of intercourse alleged is an act of digital penetration of the vagina. By virtue of section 5 of the Criminal Law Consolidation Act, penetration of the vagina by a finger or any other object is regarded as an act of sexual intercourse for the purpose of the present offence.
In relation to the offence of indecent assault I must be satisfied beyond reasonable doubt of the following matters in relation to each of those two offences:-
That the accused assaulted C. That is that the accused intentionally and unlawfully applied force to C.
·That the assault occurred in circumstances of indecency. Whether or not an assault is indecent is a matter for the trier of fact to determine by reference to reasonable contemporary standards of behaviour.
·The prosecution case was based on the evidence of one witness namely the complainant C. C was born on the 29^th January 1986 and was aged 18 at the date of giving evidence. She gave evidence of two episodes when the accused sexually interfered with her.
I remind myself that the onus of proof is proof beyond reasonable doubt. The accused does not bear any onus.
On the first occasion she was 9 years old and on the second occasion she was 15 years old. At the date of giving her evidence she was 18 years old.
C did not complain to anyone in the case of the first alleged episode for many years until after the incident and in the case of the second alleged interference for many months. The first person to whom she complained was her boyfriend and it is apparent that the complaint was not made until many months after the incident.
The prosecution case against the accused depends on the evidence of C. I have formed the view that there is no evidence which is capable of corroborating her testimony.
In these circumstances, it is essential that I scrutinise her testimony with extra care and that I remind myself and in effect give myself a warning that it would be dangerous to convict the accused on C ’s uncorroborated testimony.
There is little doubt in this case that if the allegations had been made much earlier the accused would have been able to explore them in much more detail than possible having regard to the lapse of time between when the incidents are said to have happened and the time when the complainant first went to the police. There may, for example, have been an opportunity to explore alibi witnesses, or the availability of other forensic evidence. No doubt Mrs M.M’s memory about the circumstances in which the accused and the complainant came to live in their home and their sleeping arrangements in the early period of that time would have been much fresher in her memory. I must therefore assess C’s evidence with extra care and I cannot be satisfied beyond reasonable doubt in relation to any of the charges unless in all of the circumstances I am satisfied at the end of my evaluation that C’s evidence is both truthful and accurate.
The prosecution case was that in 1995 when C was 9 years old her parents separated. After C’s mother announced that she was leaving the marriage the children were given a choice as to whether they went with their mother or remained with their father. C chose to remain with her father as did her younger brother D.
Initially they moved to the home of the accused’s brother and his wife T and M M.
Mrs M gave evidence at the trial that her brother in law and his children were accommodated in their home for a period of some months in 1995. She agreed that it was about April 1995 when the accused and his children moved into her house. They remained at the house for several months, left the home when the accused went to Scotland for two months in July and returned for several weeks after the accused’s return from Scotland in September 1995.
Mrs M gave evidence of the sleeping arrangements in the house when the accused and his children moved in. Her evidence generally supported that of the accused who said that he slept in the middle bedroom of the house, whilst the two children slept in a third bedroom. Initially the children were sleeping on mattresses on the floor but after a short period of time Mrs MM’s mother loaned two single beds to them and the children slept on these beds.
The evidence of the accused and Mrs M was generally in accordance concerning the sleeping arrangements for the accused and the children. It was not consistent with the evidence of C whose memory of the sleeping arrangements appeared to be somewhat hazy. Her evidence was that at least in the initial stages her father slept on a mattress on the floor with her and her brother. In cross examination she conceded in answer to a direct question about that that her father did sleep in the middle room on his own later on however she did not remember how long he ended up staying in that room. She was adamant that when they first arrived they shared one bedroom.
The recollections of all of the witnesses as to the surrounding details was understandably hazy given the lapse of time between then and now.
It is not in dispute that at some stage after the break up with his wife T the accused started taking drugs, more specifically amphetamine which he and his new partner B injected intravenously. It is apparent from the undisputed evidence that the children of the accused were subjected to many moves in the years between 1995 and 2001, caused mainly by their father’s drug habit and the shortage of money.
C told the court that when she was about 14 the family moved to a house on the Esplanade at Aldinga. She was not happy about that move and the bedroom that she had in that house was part of a rumpus room converted into a bedroom for her. It was separated from the rest of that room by a curtain which was erected for her.
It was whilst living in the house at Aldinga that the complainant said a second incident of sexual interference occurred. This incident occurred when C was 15 and occurred on an occasion one night when either the accused or B had brought a bottle of champagne into the house. C had been given a glass to drink and gave evidence that in fact she drank a second one with orange juice in it as well. When she was feeling unwell she went to bed. After that her father came into the room, lay down beside her and rubbed his hand outside her panties on top of her vagina in a circular motion. The incident finished when the accused’s partner B came into the room, opened the curtains and made a comment to the effect of “Oh how cute, father and daughter laying in bed together”.
The accused in evidence told the Court although he and his partner B had split up for a period of time they had reconciled and at the date of the trial were again living together. Neither the prosecution or the defence called Ms P as a witness. In the end I have only the complainant’s evidence and the accused’s evidence about the second incident.
C’s memory of the second incident was much clearer than the first and her evidence of the surrounding circumstances was quite detailed and specific, in particular, her account of the way in which the incident ended. She was not shaken in cross examination. Generally, I was impressed with C as a witness. Notwithstanding that her evidence is uncorroborated I have formed the view that C was a truthful witness who did her best to recount to the court what happened within the limits of her memory.
The accused in evidence denied any such incident occurring or that in fact he had ever drank champagne at home either alone or with his daughter. He said that he and his partner did not like champagne.
There was a great deal of evidence about the circumstances in which C finally left the accused’s home and went to live with the family of her boyfriend V.W. It is obvious that C is disappointed in her father and angry with him. Some of the reasons for her attitude to her father were explored in evidence before me. There seems little doubt that the accused’s sexually inappropriate behaviour towards his daughter is but one of the factors which have formed her current attitude towards him.
I have reminded myself and in effect given myself a warning given the inconsistencies between the evidence of C and the evidence of Mrs M as to the sleeping arrangements, the context in which the first incident is alleged to have occurred, the delay of over 7 years between the first incident and the making of a complaint that C’s evidence requires careful scrutiny. Furthermore, recollection of childhood events are inherently susceptible to error. As a matter of common human experience, the effect of emotion, prejudice and suggestion, and the fact that on any view of the matter C and her brother D experienced a turbulent and troubled childhood, that the recollection of C as to the first incident may be imperfect. Longman v The Queen [168 CLR 79]. R v Pahuja 1987 49 SASR 191
I bear in mind that the reasons for delay on the part of a young girl in making a complaint of sexually inappropriate behaviour on the part of her father might include shame, embarrassment, fear about being disbelieved or the effect of a complaint on her relationship with the accused and his partner B. I do not necessarily believe that the failure to complain means that the allegations are false. There may well have been good reasons for C failing to complain about these incidents. On any view of it they were two isolated incidents. There is no suggestion that there was any on going course of conduct involved.
Having taken all of these matters into account, I remain in some doubt about the circumstances in which the first incident is alleged to have occurred. Although, I accept that C is a witness of truth, given the circumstances I have referred to in relation to the first incident and bearing in mind the onus of proof in a criminal trial I am not satisfied beyond reasonable doubt as to the first and second counts on the Information.
In relation to the second incident however, in all of the circumstances I am satisfied beyond reasonable doubt that an incident between the accused and C did occur in the circumstances recounted by C whilst she was living at the house at Aldinga. Notwithstanding the lack of corroboration and bearing in mind all of the warnings I am satisfied beyond reasonable doubt in relation to the third count.
In view of my findings herein the accused is acquitted in relation to counts 1 and 2. A verdict of guilty is entered in relation to count 3.

[2004] SADC 76

19 May 2004