R v H, R C - [2012] SADC 182

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, R C
Criminal Trial by Judge Alone
[2012] SADC 182
Reasons for the Verdict of His Honour Judge Beazley
17 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused is charged with one count of persistent sexual exploitation of a child - Trial by Judge Alone - Complainant aged between 7 and 15 years when sexual offences constituting the charge allegedly occurred - Nature of the charged offence - accused admitted certain allegations of gross indecency; indecent assault and cunnilingus, sufficient to establish the charged offence; but denies the frequency of those acts; and denies entirely any act or acts of fellatio; penile/vaginal sexual intercourse or penile/anal sexual intercourse - accused gave evidence on oath denying frequency of otherwise admitted sexual acts, and denying other alleged sexual offences - whether complainant's evidence truthful and reliable; whether accused's evidence rejected beyond reasonable doubt - whether prosecution case proved beyond reasonable doubt - discussion of the acts alleged to constitute the charged offence - discussion as to whether Trial or Disputed Facts Hearing - clearly preferable in the case of Trial by Judge Alone for the Court to specify the acts of sexual exploitation proved beyond reasonable doubt.
Verdict: Accused guilty of charged offence, upon factual basis as found beyond reasonable doubt.
Criminal Law Consolidation Act (1935) s49, 50(1), 56 and 58; Evidence Act (1929) s34, 34CB, 34M; Juries Act (1927) s7, referred to.
Douglass v R [2012] HCA 34; R v M, B J [2011] SASCFC 50; R v Botterill [2010] SASCFC 31; R v N, S H [2010] SASFC 74; R v Keyte (2000) 78 SASR 68; Thorne v R [2007] NSWCCA 10 at [24]; R v RTB [2002] NSWCCA 104; R v Dann [2000] NSWCCA 185; R v Livingstone [2011] SASCFC 28; R v R, R & R, L J [2008] SASC 35 at [42]; Palmer v R (1998) 193 CLR 1 at [9]; R v Abrahamson (1994) 63 SASR 139; Hargraves v R [2011] HCA 44 at [43-46]; Murray v R [2002] 211 CLR 193 at 213; R v Calides (1983) 34 SASR 355, considered.

R v H, R C
[2012] SADC 182
Criminal Trial by Judge Alone
Introduction

The accused is charged on information, dated 10 April 2012, with one count of Persistent Sexual Exploitation of a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (“the Act”). It is alleged that the offence was committed against his wife’s granddaughter, the complainant “EM”.
The particulars alleged are that the accused, between 6 September 2003 and 1 July 2011, over a period of not less than three days at Happy Valley and other specified places, committed more than one act of sexual exploitation of “EM”, a person between the ages of 7 and 15 years.
It is further alleged that the ongoing acts of sexual exploitation, involved:
·Procuring a child to commit an act of indecency by causing “EM” to touch his penis,
·Indecently assaulting “EM” by touching her breasts,
·Committing unlawful sexual intercourse upon “EM” by
-Penile/anal sexual intercourse
-Penile/vaginal sexual intercourse
-Performing cunnilingus upon “EM”
-Causing “EM” to perform an act of fellatio upon him.
Procedural Matters
·Trial by Judge Alone
Upon his initial arraignment in the Court, the accused pleaded not guilty to the charged offence. He elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act 1927.
The trial was listed to be heard by me on 8 October 2012. Dr P Salu appeared as counsel for the Director of Public Prosecutions, and Ms K Molloy appeared as counsel for the accused.
Trial or Disputed Facts Hearing
At the commencement of the trial, the accused, through his counsel, intimated that he would plead guilty to the charged offence upon the basis that he had committed only three types of acts of sexual exploitation against the complainant. Specifically, in his presence, the accused’s counsel intimated that the accused admitting having committed three acts of gross indecency involving the complainant touching his penis; numerous acts of indecent assault involving the accused touching the breasts of the complainant; and two acts only of unlawful sexual intercourse involving the accused performing cunnilingus upon the complainant.[1]
[1] T. p 5 and T.p 105
Pursuant to s 34 of the Evidence Act (1929) such admissions “shall be sufficient proof of the fact without other evidence”. In any event I am satisfied that in making those admissions the accused was truthful and accurate as to those sexual acts which he admitted, and that he is accordingly guilty of the charged offence. See Burns v R.[2]
[2] (1975) 132 CLR 258
The Prosecution case was that the accused had committed the three admitted types of acts of sexual exploitation on many more occasions than conceded by the accused; and that he had committed other types of acts of sexual exploitation, namely alleged sexual acts of penile/anal sexual intercourse; penile/vaginal sexual intercourse; and sexual intercourse by fellatio.
Counsel submitted that the accused ought plead guilty to the charged offence, with the dispute as to the frequency of the admitted types of sexual acts, and as to the other denied types of sexual acts, being heard by the Court as a disputed facts hearing.
I concluded, albeit that it may be of little practical difference, that the “factual dispute” ought be determined at a trial rather than as a disputed facts hearing.
As a matter of general principle a charge of a criminal offence brought against an accused must relate to a single identifiable criminal act.
Section 50(1) of the Act, which creates the offence of Persistent Sexual Exploitation of a Child, is a somewhat difficult provision. It was enacted by Parliament because it was considered that children who had been subjected to long term abuse may not always be able to provide sufficient detail as to, inter alia, the time and place at which the individual sexual acts had occurred. Accordingly some alleged acts may be capable of being adequately particularised, but others may not be so capable. See R v Livingstone.[3]
[3] [2011] SASCFC 28
The difficulties with respect to the charged offence have been the subject of considerable dicta in recent decisions of the Court of Criminal Appeal. See R v M, BJ[4]; R v N, SH[5] and R v Botterill[6].
[4] [2011] SASCFC 50.
[5] [2010] SASCFC 74.
[6] [2010] SASCFC 31.

In R v M, BJ the Court stated:
… it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting.
It is trite that it is not necessary for the prosecution to prove that the accused committed all of the alleged acts of sexual exploitation as particularised in the information. It is sufficient if the prosecution proves that the accused committed no less than two alleged acts of sexual exploitation over a period of not less than 3 days.
Had the issues in dispute been limited to the frequency of the acts admitted by the accused, I would have ordered it to proceed by way of a disputed facts hearing. The difficulty in the subject case is that the allegations of sexual exploitation raise, in addition, an alleged act of fellatio, and alleged acts of penile/anal and penile/vaginal unlawful sexual intercourse, all of which are denied by the accused.
In R v N, SH, supra, the Court of Criminal Appeal considered whether it was appropriate for a trial judge to require special verdicts of a jury in respect of each particular of the charged offences. The Court concluded that it was unnecessary for the Judge to take verdicts in that way, indeed stating that:
It was unwise, because of the possibility of the jury’s responses to the specific questions being unclear, and does not allow for the fact that there possibly may have been various views of the evidence in relation to each particular. Even allowing for a difference of views for specific particulars, the charge could still be made out. To ask a jury to refine their thought processes as to how they reached their ultimate decision could in no way be helpful.
That dicta was considered subsequently by the Court of Criminal Appeal in R v M, BJ, supra, wherein, at [72], Vanstone J., with whom Sulan and White J.J., agreed, said:
On one view of these statements it might be thought that the Court contemplated that different jurors could reach their conclusion as to the proof of an offence on the basis of satisfaction of different particulars, that is, that not all jurors need be satisfied of the same two or more acts. If that was the Court’s meaning then I respectfully disagree. Be that as it may, any such opinion did not form part of the ratio decidendi of the case, since the special verdicts taken from the jury demonstrated that a majority of jurors found proved two particularised acts of sexual exploitation. The observations made by the Court were really directed to explaining why it was undesirable to take special verdicts in trials concerned with offences against s 50. However, any perceived need for so doing could be obviated by simply directing the jury that, although it need not be satisfied of the commission of all the pleaded acts, a majority of jurors were required to find the same two or more acts proved.
I note that in any event where the trial proceeds before a Judge alone, the difficulties in determining the true basis for a verdict from a jury, and identified in N, SH, supra, do not arise.
In my opinion, it is preferable for a trial Judge, sitting alone without a jury, to specify the acts of sexual exploitation have been proved beyond reasonable doubt.[7]
[7] A K v The State of Western Australia (2008) 232 CLR 438 at [107]-[108].
The accused entered a plea of guilty to the charged offence upon a basis which was not accepted by the DPP, and the matter proceeded to trial.[8]
·Necessity for Reasons
[8] T. P 6.
While the Court of Criminal Appeal has recently confirmed that it is not necessary in a trial heard by Judge Alone for the Court to detail in its Reasons for Verdict the obvious directions of law in respect of which any trial Judge is bound to be aware;[9] it is by contrast, essential that sufficient reasons be given to explain the verdict.[10]
·The Record of Interview
[9] R v R, R & R, LJ [2008] SASC 35 at [42]
[10] Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68.
No Rule 9 Notice was filed seeking the exclusion of any proposed evidence in the exercise of the Court’s general discretion. In R v Abrahamson,[11] it was held that in a trial by Judge alone, it is unnecessary to formally order the exclusion of such evidence, as it will be properly ignored by the Trial Judge. It was conceded by counsel for the prosecution that the Record of Interview conducted with the accused, by Detective Senior Constable Baker and Senior Constable McLean on 14 September 2011, contained a number of questions and answers which ought otherwise be excluded.
[11] (1994) 63 SASR 139
Most of those questions improperly invited the accused to give some explanation as to why the complainant would make up such a story. Such questions are improper as an accused person could not possibly know what could motivate a complainant to make up a false account. There are many reasons why a person may indeed make up a false account including some, which would not be apparent any other person. See Palmer v R.[12]
[12] (1998) 193 CLR 1 at [9].
It is for the Prosecution to prove the charge against the accused beyond reasonable doubt. It is for the Prosecution to prove beyond reasonable doubt that the complainant is both an honest and reliable witness; and that the evidence, on oath, of the accused ought be rejected beyond reasonable doubt. See Douglass v R.[13]
[13] [2012] HCA 34 at [48].
I have accordingly ignored the impugned questions and answers so identified by the parties.
·Special arrangements
The complainant was aged 16 years at the time she gave evidence to the Court. She had been born on 7 September 1996. I permitted the complainant to give evidence in a closed court; with a one-way glass screen placed to obscure her view of the accused; and that she be accompanied by a court companion, sitting in the body of the Court.[14] I have not drawn any inference adverse to the accused nor have I allowed these special arrangements to influence the weight to be given to the evidence.
[14] Evidence Act, 1929 SA ss 13 and 13A.
Legal Directions
I do not propose to detail all of the obvious directions of law.
I do however remind myself of the following fundamental directions which apply in every criminal trial:
·The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on the charged offence has been proved beyond reasonable doubt. In the context of this case the accused is innocent of any specific act of sexual exploitation unless the prosecution has satisfied me of his guilt of it beyond reasonable doubt.
·In assessing the evidence of witnesses I am entitled to accept the evidence of a witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some of the evidence it does not follow that I must not accept other parts of that witness’ evidence.[15]
[15] Hargraves v R [2011] HCA 44 at [25]
·The subject charge involves proof by the prosecution, beyond reasonable doubt, that the accused, over a period of not less than three days, committed more than one act of sexual exploitation, as defined, of the complainant who was under the prescribed age.[16]
[16] S 50(1) Criminal Law Consolidation Act, 1935.
·I repeat that the accused has admitted certain acts of sexual exploitation, but has denied the frequency of them as asserted by the complainant. The accused also denies other types of acts of sexual exploitation asserted by the complainant. I direct myself that in considering the subject charge, I must consider each act of alleged sexual exploitation separately.
·The prosecution seeks to satisfy me as to the alleged acts of sexual exploitation almost entirely upon the evidence of the complainant. I must approach the evidence of the complainant with caution and only rely upon it if I am satisfied beyond a reasonable doubt that it is both credible and reliable.
·I further direct myself that as the prosecution case depends almost entirely upon the complainant, where there have been inroads into her credibility and reliability, any reservations in my assessment of any one alleged act of sexual exploitation may apply to the other alleged acts.
·The burden of proving the charged offence beyond reasonable doubt lies wholly upon the Prosecution. The accused does not have to prove anything. The accused was not obliged to give evidence. In the subject case the accused elected to give evidence on oath and to call a witness. In so doing he did not assume any onus to prove or explain anything. The onus of proof beyond reasonable doubt remains at all times upon the Prosecution. The evidence of the accused and his witness must be taken into account and assessed in the same manner as that of any other witness.[17]
·The accused and the complainant have each given evidence on oath. As to the issues in dispute namely the frequency of certain types of conduct otherwise admitted by the accused, and other types of alleged sexual offending, their respective evidence is in direct conflict with each other. It is not a question of preferring a version. The question is whether the Prosecution has proved its case to my satisfaction beyond reasonable doubt.[18] In Murray v R,[19] the High Court explained that:
The choice … was not to prefer one version of events over another. The question was whether the prosecution has proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the accused.
·Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
·In the subject case while the accused has admitted some acts of sexual exploitation sufficient to satisfy me of his guilt beyond reasonable doubt as to the charged offence, I must be satisfied beyond reasonable doubt as to the nature and duration of each of the acts of sexual exploitation. It would be wrong to conclude that because the accused had admitted some acts of sexual exploitation, that he must therefore have committed the other alleged acts.
·If I am unsure of where the truth lies with respect to any of the asserted acts of sexual exploitation or the prosecution does not rebut any explanation consistent with innocence of an alleged sexual act, then I must find that the prosecution has not satisfied me beyond reasonable doubt as to the alleged act.
·Evidence may be given, inter alia, as to when an initial complaint was made by the complainant and why the complainant did not make it at an earlier time pursuant to s 34M of the Evidence Act (1929). The complainant had informed the police on 13 September 2011. She explained that she had not complained at an earlier time because the accused had told her that he would be put in gaol and that she thought that she would not be believed. I direct myself that evidence of any complaint is admissible only for the specific purposes in s 34M(4)(a) of the Act; and is not admissible as evidence of the truth of what was said. In the event there was no detail in the evidence as to “a complaint”.[20]
·I direct myself that if I were satisfied that the accused was significantly forensically disadvantaged by the delay of nine years between the first date specified in the particulars to the Information and the trial, that it must be taken into account pursuant to s 34CB of the Evidence Act (1929). It was not suggested that there was any forensic disadvantage to the accused at all, let alone a significant forensic disadvantage. Nonetheless, in light of the fact that the prosecution case relies almost entirely upon the evidence of the complainant, I approach the complainant’s evidence with caution and will scrutinize it with great care.
[17] See Hargraves v R [2011] HCA 44 at [43 - 46]
[18] R v Calides (1983) 34 SASR 355
[19] [2002] 211 CLR 193 at 213
[20] See R v El Rifai [2012] SASCFC 98; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJS 571
Elements of the charged offence
· Persistent sexual exploitation of a child
This offence contains five elements, each of which must be proved by the prosecution beyond reasonable doubt. They are respectively that:
1.     The accused was an “adult” at the time.
There was no dispute about this element.
2.     The accused committed sexual acts against a “particular child”.
The Prosecution case “asserts” alleged acts against E.M. alone. The accused admitted that some sexual acts were committed by him against the complainant. What was in dispute was the frequency of those sexual acts admitted by the accused; and various other alleged sexual acts which were denied by him.
3.     “The child” was under the prescribed age.
If the accused was in a “position of authority”, which is defined in the Act (s 50(8)), the prescribed age is 18 years. In any other case the prescribed age is 17 years. There was no dispute about this element. At the time of each alleged act the complainant was aged between 7 and 15 years.
4.     The accused committed more than one act of sexual exploitation of the complainant.
An act of sexual exploitation is one where, if the act was properly particularised, it could have been the subject of a charge of a “sexual offence”, which is relevantly defined as, inter alia, an offence against Division II (other than ss 59 and 61) of the Act.
In the subject case the prosecution alleges that the accused committed six types of acts of sexual exploitation against the complainant that relevantly amounted to sexual offences under the law. They are that the accused:
·Procured or permitted the complainant to touch his penis with her hand.
·Caused the complainant to perform fellatio upon him.
·Performed cunnilingus upon the complainant.
·Touched the complainant’s breasts in circumstances of indecency.
·Inserted his penis into the complainant’s vagina.
·Inserted his penis into the complainant’s anus
These types of alleged acts fall within the relevant offences prescribed in Division II of the Act.
In order to prove this fourth element it is not necessary for the prosecution to prove that the accused committed all of the alleged acts of sexual exploitation. It is sufficient if the prosecution proves, that the accused committed no less than two of the alleged acts of sexual exploitation, and that the proved acts each amounted to an offence of unlawful sexual intercourse, indecent assault or procuring a child to commit an indecent act. Proof that the accused committed at least two acts is sufficient for this element, whether they involved the same or different types of acts of sexual exploitation.
5.     The proved acts of “sexual exploitation” were committed over a period of not less than three days.
It is not sufficient for this fifth element that the accused committed more than one act of sexual exploitation. It must be proved, by the prosecution, that he committed two or more acts of sexual exploitation over a period of not less than three days.

I turn briefly to the elements of each of the three relevant offences prescribed in Division II of the Act, upon which the Prosecution relies as “acts of sexual exploitation”.
· Indecent Assault
A person commits an indecent assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency. The prosecution must prove in such a case the following elements, namely that:
1.     The accused intentionally applied force against the complainant.
A mere touch would constitute sufficient force. Here the accused admits touching the complainant’s breast intentionally on various occasions.
2.     The accused’s touching of the complainant’s breasts occurred in circumstances of indecency.
In the subject case there can be no doubt as to this element. Indeed the accused admits that it occurred in circumstances of indecency.
3.     The accused’s acts were unlawful.
As no person aged under 17 years is capable of consenting to an indecent assault, there is no doubt that the accused’s acts of touching the complainant’s breasts were unlawful.
4.     It is the aggravated form of the offence if the complainant was aged under 14 years at the time of the offence.
·    Unlawful sexual intercourse
The more serious offence of unlawful sexual intercourse is committed when an accused person is proved to have had sexual intercourse with a person under the age of 14 years.[21]
[21] s 49(1) of the CLCA
·    This more serious offence of unlawful sexual intercourse has three elements, each of which must be proved, as follows:
1.     That the accused had intentional sexual intercourse with the complainant. The accused admits having performed two acts only of cunnilingus upon the complainant. He denies the frequency of other acts of cunnilingus alleged by the Prosecution and denies any acts of penile/vaginal intercourse, penile/anal sexual intercourse or fellatio as alleged.
2.     That such sexual intercourse was unlawful. If such acts of sexual intercourse did occur they were clearly unlawful.
3.      The complainant with whom the accused had sexual intercourse was under the age of 14 years at the time of the sexual intercourse.
·    A lesser offence of unlawful sexual intercourse is committed when a person has sexual intercourse with a person, aged of or above the age of 14 years but under the age of 17 years.[22]
·    Act of gross indecency contrary to s 58 of the Act
[22] s 49(3) CLCA
The elements of this offence in terms of this case are:
1.     That the act of touching the accused’s penis was performed by the complainant.
2.     That the said act was grossly indecent having regard to reasonable contemporary standards.
3.     That the accused incited or caused the complainant to touch his penis.
4.     That the complainant was under the age of 16 years at the time.
·    The Evidence
The prosecution case
The prosecution called four witnesses to give oral evidence. They were respectively the complainant EM; the complainant’s mother DM; a police officer, Detective Brevet Sergeant Marc Baker; and a medical practitioner Dr Deepa Jeyaseelan. In addition the prosecution tendered, by consent, a statement of Noula Contreras;[23] and a statement of R. H.,[24] in each case on the basis that it would have been the evidence of the particular witness had each been called to give oral evidence.
[23] Ex P5, dated 24/9/12
[24] Ex P6, dated 14/5/12
Various medical reports were tendered by consent.
Prosecution evidence
· Dr Jeyaseelan
It is convenient to turn first to the evidence of the medical practitioner Dr Jeyaseelan. She was appropriately qualified to give an expert opinion as to trauma in the genitalia, perianal and anal regions. She had undertaken an examination of the complainant on 10 October 2011. She described the procedures involved in the physical examination,[25] and in particular the use of a video colposcope to confirm direct observations of the genitalia, perianal and anal regions. She deposed that the examination had revealed that EM had mature pubertal genitalia. There was no evidence of injury in the genitalia, the hymen or hymen tissue, nor in the perianal nor anal tissues.
[25] T. p 48
She explained that in the normal course, in the absence of what she described as “major trauma” she would not expect to see evidence of any abrasions or tears nine months after alleged sexual activity. She deposed that the fact that the complainant had an intact hymen did not exclude penile/vaginal sexual intercourse. She expressed the opinion that the absence of any findings did not exclude or support allegations of repeated child sexual abuse.
When cross-examined Dr Jeyaseelan stated that injuries to the perianal or anal area can heal within days or weeks. She explained that in using the expression “major trauma”, she was referring to trauma which caused severe lacerations or fissures. She did however express the opinion that even in such a case of major trauma the severe lacerations or fissures may well heal without leaving any scar tissue. She deposed that if the complainant had suffered pain and bleeding, this would indicate major trauma because there would be a breach of the tissue. However, Dr Jeyaseelan repeated that even in such a case the breach in the tissue would be expected to heal.
While I accept the evidence of Dr Jeyaseelan without reservation, her evidence is neutral in either establishing or excluding the commission of any of the alleged acts of sexual exploitation.
I remind myself that such evidence should not be treated in any way as bolstering the evidence of the complainant. R v Dann[26]
[26] [2000] NSWCCA 185
Indeed the case law suggests that it is unnecessary for the prosecution to call “neutral” medical evidence when an event is alleged to have occurred many months before.[27] It remains for the prosecution to satisfy me beyond reasonable doubt that the alleged acts of sexual exploitation were committed by the accused. While the evidence of Dr Jeyaseelan is neutral, I note that it is consistent with the accused’s case.
· The Complainant “EM”
[27] Thorne v R [2007] NSWCCA 10 at [24]; and R v RTB [2002] NSWCCA 104
EM was born on 7 September 1996. She explained that she would accompany her mother, DM, to the home of her grandmother and the accused once a week.
She deposed that when she was aged about 7 years, the accused would hug and kiss her, and give her lollies, and, subsequently, some jewellery.
She explained that the sexual acts developed over time, starting with “hugs and kisses”, then “hand jobs”, then “lick me out”, then “anal penetration”. She further explained that these sexual acts occurred mainly in the woolshed at the rear of the house, but some of the acts occurred in her bedroom at the accused’s home. In addition there was one sexual act at Wirrina, and one at “Uncle Nev’s”.[28]
[28] T. p11-12, 19 and 30-32.
I turn to her evidence as to the types of sexual acts allegedly perpetrated upon her by the accused.
· Procuring a child to commit a grossly indecent act by touching the accused’s penis
EM said that when she was aged about 9 years, in the wood shed, at the rear of the house, “the accused had placed her hand upon his penis, and pulled the skin back and forth”.[29]
[29] T. p 8-9.
She deposed that from the ages of 9-10 years, the “hand jobs occurred every time I was there”.[30] She initially said that on only one occasion did the accused ejaculate during a “hand job”, however subsequently said that it occurred more than once.[31] She deposed that the accused did not exhibit any difficulty in achieving an erection.[32] On one of various occasions that they went to Wirrina for fishing, she deposed that the accused had requested, and she gave him a “hand job”. She remembered the occasion because she had been sunburnt.[33] When cross examined to the effect that the “hand jobs” had occurred on only “a couple of times”, she repeated that it had occurred “every time from nine onwards, I remember having to give him multiple hand jobs”.[34] She said it had continued from the age of 9 years until a few months before she turned 15 years. She recalled a specific occasion at her “Uncle Nev’s” house where she gave the accused a “hand job”.
· Fellatio
[30] T. p 13.
[31] T. p 13, contrast T. p 15.
[32] T. p 13 and 22.
[33] T. p 30.
[34] T. p 35.
EM said that it was only on one occasion that the accused had placed his penis into her mouth. She was then aged 11 or 12 years. She said that the accused asked her if she had even given “a head job” before. She explained that she “got down on my knees and put his penis in my mouth but I didn’t like it and I stopped”.[35]
[35] T. p 16.
When cross examined she said “I remember having to go down on him once because I remember it was disgusting and I never want to do it again. Even with boyfriends today I don’t do it”.[36]
· Indecent assault
[36] T. p 36.
EM said that from about the age of 10 years the accused would play with her breasts and sometimes suck on her nipples. She said that he had told her that if she told anyone that he would be placed in gaol.
When cross examined she said that the sucking of the nipples occurred on only a “couple of occasions”, but that the playing with her breasts occurred more often from the age of 10 years.[37]
[37] T. p 17 and 33.
She said that she remembered an occasion at “Uncle Nev’s” house when the accused took her to the bedroom and “he had dry sex with me”; which involved the accused rubbing his body back and forth on her body.[38]
· Penile/vaginal sexual intercourse
[38] T. p 19.
EM deposed that when she was aged 13 or 14 years the accused had penile/vaginal sexual intercourse with her on one occasion only. It had occurred in the wood shed. He had asked her if she was “ready to have sex” and he placed a condom on his penis and entered her vagina.[39]
[39] T. p 16-17 (XN); and T. p 37 (XXN).
When cross examined to the effect that the accused’s penis was never hard enough to be inside her vagina, EM said that she remembered his penis as being “really hard”.
· Cunnilingus
EM deposed that when she was aged about 11 years the accused would go onto his knees, put his head between her legs and “lick her clitoris”.[40]
[40] T. p 11 (XN); and T. p 35 (XXN).
She said that “normally I would be sitting down on the chair in the wood shed and spread my legs. Sometimes he thought it would be good if I put my legs on his shoulders”.[41] While this usually occurred on a regular basis in the wood shed it had also occurred on about four or five occasions in “her bedroom” at the accused’s house. When cross examined to the effect that the “lick out” only occurred a couple of times, EM denied this, saying that it “happened so many times and I remember it because its like trauma, I don’t know how to get rid of it”.[42]
· Penile/anal sexual intercourse
[41] T. p 15.
[42] T. p 35-36.
EM deposed that when she attained the age of “11 and 12 and 13” the accused would bend her over in the wood shed and put his penis in her anus. It would follow the pattern of “kisses, hugs and then a hand job, lick out and then anal”.[43] It was a regular occurrence for more than two years. She said the accused started to use a condom at that time when inserting his penis into her anus. When cross examined EM said that “it hurt a lot and caused her to bleed sometimes”.[44] She said that this penile/anal sexual intercourse had occurred most weeks, and it hurt most times until she got older. She described it as “a burning sensation – a stabbing pain”. She denied that she was embellishing. She said that she had not made up her evidence. She conceded that she had been untruthful on one occasion when she told the accused that she had a boyfriend. She did not have a boyfriend but explained that she lied to get him to stop. She conceded also that she had been bullied at school because of her hair colour, but denied that this had in any way impacted upon her evidence.[45]
· The complainant’s mother “DM”
[43] T. p 12-14.
[44] T. p 29-30.
[45] T. p 43-46.
DM explained that she was a single parent of four children of whom EM was the youngest. She deposed that the accused had been in a relationship with her mother for about 20 years. DM and EM would visit her mother and the accused once a week, and occasionally they would pick up EM from school, to save her having to do so.
She said that on most occasions EM and the accused would go to the computer room or the wood shed while she spoke with her mother. You could not see into the wood shed very easily because of a “lot of messy bushes”.
DM said that from time to time she complained that the computer door was shut when EM and the accused were there together.
She deposed to an occasion in early 2011 when she arrived at her mother’s house to find that EM and the accused had gone to “Nev’s house”, and were late in coming back.[46] When she did return about 15 minutes later, EM said that she wanted to go home and was agitated.
[46] T. p 61.
When cross examined DM said that she would arrive at her mother’s house at about 6.30pm and leave at about 9.00pm. She conceded that in June 2010, EM had travelled with the accused and her grandmother to Queensland for a week.[47] She also conceded that in winter it was dark quite early, and EM had spent most of the time in the house.
· Noula Contreras
[47] T. p 69.
In her statement dated 24 September 2012, Ms Contreras, an employee of Ansell Limited, deposed to the model of condoms located by the police at the accused’s home on 14 September 2011[48]. From the lot number and product code, she was able to identify it as one which came from a relatively recent box of 12 condoms.
· RH
[48] Ex. P5.
In his statement dated 14 May 2012[49], RH described residing at the accused’s house in about 2004. He deposed to leaving some of his belongings at that house. In an old bathroom cabinet he had left “some expired Liaison condoms”. They were old, and would have expired about 20 years previously.
· Detective Brevet Sgt. Marc Baker
[49] Ex. P6.
He had interviewed the accused at his home on 14 September 2011, which interview was recorded on video.[50]
[50] Ex. P7.
He had conducted a search at the wood shed and located nine condoms in their sealed condition and one empty wrapper.
I do not intend to set out in detail the interview. Relevantly in that interview, the accused deposed to having been born on 4 February 1937 and having married the complainant’s grandmother on 1 June 1991.
The accused admitted to the police that, following a request from EM when she was aged about 12 years, he had permitted her to hold his penis, and that this had occurred on “two or three occasions”. He denied that his penis had been erect, and said that he was unable to get an erection. He said the last time it happened was three years previously. He denied any alleged act of penile/vaginal sexual intercourse, penile/anal sexual intercourse, or fellatio.
He conceded that he had touched the complainant’s breast. He said that if there were condoms in the wood shed they could have been left by RH. Subsequently he “suddenly realised that I did go into a chemist down at Woodcroft and buy a strip of, you know, a packet of condoms because I was gonna post, send one in a birthday card to a friend of mine”.
He later said that he did not in fact send a condom to that friend.
Detective Baker gave evidence that there were a large number of photographs of the complainant taken by the accused, and also a DVD which exclusively contained pictures of the complainant. In cross examination he conceded that the Police had only looked for photographs of the complainant and not the other grandchildren.
· Defence case
The accused elected to give evidence and to call MH as a witness.
· Defence witnesses
· The accused
The accused said that he would see EM about once a week and would never hurt her. He would cook the meal for his wife, DM and EM. On occasions the accused and his wife would pick up EM from school at about 3:30 pm, take her to the local shopping centre and arrive home at about 5:00 pm. DM would arrive at about 6:30 pm. On other occasions DM would pick up EM from school and arrive at 7:00 pm.
He said it was only when EM turned 12 ½ years of age that she became interested in the computer.
When she was about 12 years old, he said that EM told him that she wanted to see his penis. He said he told her that he could not show it to her, and that it was the complainant who unzipped his trousers.[51]
[51] T.p 96.
He said that this occurred “on a couple of times – mostly over the clothes”.[52]
[52] T.p 97
The accused denied that he took any prurient interest in the complainant. He said that he allowed her to take his penis out of his clothes “on a couple of occasions – just to make her happy, because it wasn’t really doing anything for me”.[53]
[53] T.p 97
He said that he would not get an erection and would “have to go halfway”. He said that he had declined a doctor’s suggestion of using Viagra – “so it is a hundred – per – cent kiss and cuddles”.
He conceded that when he would rub her back in the computer room “he used to sort of just fondle her breasts”. When asked, in chief, why he did so, he said “Devilment I suppose”.
The accused said that it was the complainant who has asked him if she could suck his penis, and he had told her that she could not. He had, instead, bent down and “just sort of ran my chin or something over her vagina – but she had her clothes on”.[54] He said that later she asked him to do it “properly”, and “stupidly I sort of did, but only for a few seconds because I couldn’t bend down”.
[54] T.p 98
He explained that he took photographs of the complainant to improve her self esteem, and had made the DVD to record her life.
He said that he admitted acts of touching his penis; rubbing her breasts, and cunnilingus occurred when the complainant was “13, 14, probably 13”.
When cross examined the accused said that he thought it was appropriate that he provided instruction on sexual matters to the complainant.
He conceded that on the second and third occasions the complainant had unzipped him, and had pulled the foreskin back and forth. He said that the third occasion has probably occurred in the shed.
As to touching the complainant’s breasts, he said it occurred “five times at the most”, but he didn’t think it was wrong at the time.
He repeated that there were only two occasions when he bent down to the complainant’s vagina, and that it was only the second occasion when he had licked her vagina. This took only about 3 seconds, while they were in the studio.
He said that he had stopped having erections for at least 10 years. He was cross examined about a note from his doctor in July 1996 which read as “a decrease in libido, able to achieve erection but not often, plus ejaculation”.[55]
[55] Medical records Ex Dio were tendered by consent.
He denied the suggestion that he had ever used a condom upon the complainant, and denied any other allegation of sexual acts.
He conceded that he had ejaculated, “dribbled”, on two occasions when the complainant touched his penis. He was asked whether he was sexually aroused, and said “yes, well, in that sense, yes – but nothing like I used to be 20, 30 years ago”.[56]
[56] T.p 125
In answer to a question as to alleged ongoing abuse the accused said:[57]
“I’m sorry, your thoughts and mine are completely different. I worshipped that girl, it was literally to a stage where I – it was like a second wife”.
·The accused’s wife MH
[57] T.p 129
MH confirmed the arrangements whereby EM and DM would attend at her house once a week. On occasions the accused and EM would go to the back area, however generally EM would go to the computer room or “her bedroom”.
She said that the accused had been a photographer for many years and EM would always ask him to take photographs of her.
When asked, in chief, whether she and the accused had an active sex life, she explained that it had not been so for the “last 18 months to 2 years”.[58]
[58] T.p 139

She had not noticed any difference in EM over the years.
When cross examined she said that she doubted that the accused would have been alone with EM in the wood shed or studio from 15 minutes to 30 minutes on occasions, because she would often go outside for one reason or another.
Submissions
Dr Salu, counsel for the prosecution, submitted that the complainant ought to be accepted beyond reasonable doubt as a witness of truth and one who gave a reliable account of the alleged acts of sexual exploitation. He was highly critical of the evidence of the accused who he submitted had embarked upon a deliberate course of minimizing his conduct. He correctly submitted that it as not a question of which version I should prefer, but rather that I must be satisfied by the prosecution beyond reasonable doubt as to the credibility and reliability of the evidence of the complainant, and that I must reject the defence case before I could find the alleged acts of sexual exploitation had occurred. He pointed to the accused’s “shifting story” as to the condoms, and as to whether the accused could have any erection at all.
Ms Molloy, counsel for the accused, submitted that the accused had immediately admitted sexual conduct had occurred which would establish the charged offence. She pointed to what she described, as at the least, embellishment by the complainant. She submitted that I could not accept the evidence of the complainant that the “hand job, lick out and anal penetration had occurred every week in the shed for 3, 5 or even 7 years”.[59]
[59] T.p 156
She submitted that her evidence was inconsistent with that of her mother DM and her grandmother MH, who had given evidence to the effect that the majority of time was spent in the computer room. In any event she was not in the shed during winter.
Ms Molloy referred to the evidence of MH that she would have occasion to go outside, and it renders it “impossible that this behaviour could have been occurring”.[60]
[60] T.p 158
She further submitted that the complainant’s apparent change of attitude to the accused, is inconsistent with the timing of the holiday to Queensland, to visit his son.
She submitted that the complainant may have dwelled on the events or had had dreams and has convinced herself, wrongly, that the denied acts had occurred.
Consideration
It was suggested that in light of the evidence I ought infer that the complainant had wrongly, if not falsely, made up her account of the regularity of the otherwise admitted sexual acts, and the acts which were denied by the accused.
I have considered the possibility of a motive to lie or alternatively to have convinced herself wrongly about those allegations, as I am obliged to do.[61]
[61] R v Sluczanowsli [2008] SASC 185
I remind myself that even if I reject the alleged motive or basis for giving an untrue account asserted by the accused, it does not mean that I ought find the complainant to be truthful and reliable. In the event, for the reasons which follow, I have rejected the alleged motive or basis for an untrue account as asserted by the accused.
The absence of evidence for the complainant to give a false account does not bolster the prosecution case. It is not for the accused to provide a reason for the complainant to give a false account. It is for the prosecution to prove the charge and the alleged acts of sexual exploitation beyond reasonable doubt. The accused does not have to prove anything. He could not know what may have motivated the complainant.
In approaching my findings I turn to my impressions of the witnesses.
I have already addressed the evidence of Dr Jeyaseelan. I accept generally the evidence of the other witnesses, in particular DM and MH. I have no doubt that in respect of the latter two witnesses however, that they were shocked by the allegations made against the accused. In my opinion both have unwittingly coloured some of their evidence because of their respective loyalties. They have used hindsight to reflect on events which at the time had not made any impact upon them.
I turn next to the accused. While I readily accept that he made early admissions of some sexual acts, when he was not obliged to do so, I have concluded that he was a most unimpressive witness. I have no doubt that he attempted to minimise his criminal conduct both as to the frequency of the sexual acts admitted by him, and the denial of other acts. At all times he suggested that he had no sexual attraction to the complainant, and until pressed in cross examination, was not sexually aroused during the complainant’s touching of his penis. At all times he had attempted, falsely, to quarantine the wood shed, initially denying any sexual act ever occurred there.
I have no doubt that he was sexually attracted to the complainant and that his suggestion that he was simply giving her sex instruction is a nonsense. I repeat his reference to the complainant, in a different context, as “his second wife”. I do not believe his account of what had occurred between them. When ever he was caught out, and in particular I refer to his account that the condoms were those of RH – and of necessity 20 years old – he changed his version.
I remind myself of my earlier direction that the rejection of the evidence of the accused does not mean that I must accept the evidence of the complainant. I repeat that I must be satisfied beyond reasonable doubt that the complainant’s evidence is credible and reliable, before I could find that the accused committed the asserted acts of sexual exploitation.
The complainant was clearly a most compelling witness – indeed this much was properly conceded by counsel for the accused.[62]
[62] T.p 157
She was in the stressful position of giving evidence against her grandmother’s husband on the distasteful topic of the accused’s sexual conduct with her. She did not exhibit any particular ill will towards the accused, but simply presented as a person who had been groomed by him, and had the realisation as she grew older that their relationship was wrong. Somewhat tellingly, she deposed to her concern as to the effect that her evidence would have upon her relationship with her grandmother. In my opinion it was precisely because of that relationship that the accused could confidently take opportunities which would otherwise be fraught with danger of his sexual acts being exposed. The complainant did not tell her mother.
When she could, she gave evidence of specific occasions that she could remember. She spoke of one occasion only of a “hand job” at Wirrina, despite numerous trips there. She spoke of the occasion at Uncle Nev’s house. She referred to the event as “dry sex”. She deposed to one only act of penile/vaginal sexual intercourse; and one only act of fellatio. These difficulties of specificity are the very reason why Parliament enacted s 50(1) of the Act.
In my opinion she did not embellish on any of this evidence. It was given in a matter of fact manner. I have no doubt that she told the truth in respect of each of those matters.
I have reflected upon her evidence as to the alleged anal penetration. I accept the force of the submissions of counsel for the accused that taken literally, the accused could not have engaged in “hand jobs, cunnilingus and penile anal penetration” on every occasion she attended at the accused’s house.
In my opinion however, and despite answers to quite specific questions as to those events having occurred each week for years, I conclude that the complainant was doing her best to recall that something sexual had occurred regularly over that time. Indeed she referred to the period being 7 years. It was not suggested by her that the anal penetration had started before she was 12 or 13 years of age.
It was apparent from a proper reading of her evidence that these events of cunnilingus, hand jobs and penile/anal penetration had each occurred on numerous occasions, such that she was unable to remember or specifically identify the occasions or the number of them.
In my opinion at its highest the complainant deposed to only those occasion when they were both in the wood shed, and therefore was not intending to convey that they or any of them had occurred in winter or on other occasions that they were not in the wood shed.
I do not accept that I ought find her evidence unreliable so that I cannot be satisfied beyond reasonable doubt that any act or acts of fellatio; penile/vaginal nor penile anal sexual intercourse had occurred.
Conclusion
I have accepted the evidence of the complainant beyond reasonable doubt as to the types of sexual acts perpetrated upon her by the accused. Indeed, I have found her evidence as to the types of acts so compelling that I am in no doubt that they did occur. I find that the complainant was both a credible and a reliable witness as to the sexual acts perpetrated upon her by the accused. I have rejected entirely the evidence of the accused as to the types of sexual acts even as a reasonable possibility, whenever it conflicts with the complainant. In this respect I note the admissions of the accused as to some only of the types of sexual acts.[63] I repeat that in making admissions that he had committed three acts of gross indecency involving the complainant touching his penis; numerous acts of indecent assault by touching the complainant’s breasts in circumstances of indecency; and two acts of cunnilingus upon the complainant, the accused had done so truthfully and accurately at least in so far as those sexual acts were concerned. Those admissions of themselves satisfy beyond reasonable doubt each of the elements of the charged offence as having been committed over a period of not less than three days.
[63] See also T.p 105
I make the following other findings beyond reasonable doubt:
·The accused initially permitted the complainant to touch his penis. Thereafter he engaged in multiple such acts of gross indecency with the complainant since she was aged 9 years. These “hand jobs” as she described occurred over the years until just before her 15^th birthday. I cannot, on the evidence be satisfied as to the number of occasions. I am not satisfied that this type of act occurred on every occasion at the house. I find beyond reasonable doubt the acts occurred in the wood shed regularly on the occasions both were in that wood shed, and on one occasion at Wirrina, and one occasion at “Uncle Nev’s” house.
·The accused engaged in fellatio on one occasion only as deposed to by her. I reject entirely the evidence of the accused that the complainant had asked him, and he refused to engage in that act. I am satisfied that it occurred when the complainant was aged 13 years.
·The accused engaged in penile/vaginal sexual intercourse with the complainant on the one occasion identified by the complainant when she was aged 13 years.
·The accused engaged in cunnilingus with the complainant on numerous occasions since she was aged about 11 years. These acts had generally occurred in the wood shed, although on 4 occasions it occurred in her bedroom in the accused’s house.
·The accused engaged in penile/anal sexual intercourse with the complainant on some occasions since she was aged 13 years. I have no doubt that this type of act occurred in the wood shed only. I cannot, on the evidence, be satisfied as to the regularity of that type of act, but I am satisfied beyond reasonable doubt that it occurred on more than one occasion.
·The accused engaged in rubbing or “playing with” the complainant’s breasts, in the computer room and the bedroom on a number of occasions. I find that on two of those occasions the accused had sucked on her nipples.
Verdict
It was admitted by the accused that he was guilty of the charged offence of Persistent Sexual Exploitation of a Child. I am satisfied beyond reasonable doubt that the prosecution has proved each and every element of the charged offence.
Accordingly I return my verdict of guilty to the charged offence.
I will hear sentencing submissions upon the facts as I have found established beyond reasonable doubt.