R v H, RJ - [2012] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, RJ
[2012] SADC 30
Reasons for the Verdict of His Honour Judge Brebner
15 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused was charged with one count of indecent assault said to have been committed about 40 years ago against the background of numerous other indecencies - residual doubt about the reliability of the complainant in the essential aspects of her evidence - verdict of not guilty accordingly.
Evidence Act 1929 s 34CB, referred to.
Azzopardi v The Queen (2001) 201 CLR 50 at [51}; R v Neiterink (1999) 76 SASR 56 at [75]-[78]; Driscoll v The Queen (1977) 137 CLR 517 at 586-587; R v Seigneur (2009) 103 SASR 107 ; The Queen v Etherington (1982) 32 SASR 230 at 235; R V S, DD (2001) 109 SASR 46, considered.

R v H, RJ
[2012] SADC 30

The accused is charged with one count of indecent assault. He elected for trial by judge alone. The charge alleges that between 31^st December 1968, and 1^st January 1972, at Wangary, he indecently assaulted the female named in the particulars of the charge.
Evidence
The complainant was born in June 1959. She was thus aged between about 9 and a half and 12 and a half years of age during the period particularised in the charge. The accused was born in 1945 and he was thus aged between about 23 and 26 during the relevant period.
At all relevant times the complainant lived with her parents and her siblings on the family farming property near Wangary on Eyre Peninsula. Her father is now 76 years of age. Her older brother A was born in 1958, her younger brother was born in 1965 and her sister was born in about 1964. A is almost exactly 12 months older than the complainant.
It is common ground that the accused lived and worked on the property for a period of time. The evidence about precisely when he commenced living and working on the property is, in some respects, vague and at variance.
In essence it is the prosecution case that the accused indecently handled the complainant on a regular basis while he was living on the property and that as part of this overall course of conduct he subjected the complainant to an identifiable indecency on which the charge is based.
Wangary is a country town some 50 km west of Pt Lincoln. The property was situated on the main road connecting Wangary and Pt Lincoln some five or six kilometres from Wangary itself.
The property was some 200 acres in size. A specific area of the property faced the main road. One of the witnesses referred to this area as “the home block” and for convenience I will adopt this description. There were a number of buildings on the home block. Closest to the road was a large shed which was from time to time referred to as the large work shed. There were a number of other sheds and structures behind the large work shed and further away from the road. Still deeper into the home block was the house in which the family lived. When one looks onto the property from the road, the family home is directly in line with the large work shed and some distance from it. Estimates of the distance separating the large work shed and the family home varied. A second house was eventually built some distance immediately to the right of the family house, again as one looks at the property from the road.
The complainant’s father farmed the land and operated a panel beating business in the large work shed.
The accused was married in 1968. His wife had a daughter from an earlier relationship. The accused and his wife then had a son of their own who was born in August 1969. The accused and his wife are now divorced.
The accused and his wife eventually became acquainted with the complainant’s parents. This in turn led to the complainant’s father offering the accused a job on the property.
In consequence of this, the accused, his wife, their son and his wife’s daughter went to live on the property. Initially they lived in caravans until they eventually moved into the second house. This second house, as I will call it, was built by the complainant’s father and at some time after the accused took up residence on the property.
The complainant said that she was about nine or 10 and that she was still in primary school when the accused and his family came to live on the property. If her recollection is correct, the accused would have commenced living on the property in or about 1969.
According to the complainant, gatherings were held on the property at least every second weekend. Those attending these gatherings included the complainant, her parents, her siblings, the accused, his wife and children and, at times, other friends or neighbours. She said that a man named C and his family would attend these gatherings. She said that to the best of her recollection she was about nine or 10 when C and his family first began visiting the property but she does not discount the possibility that she could have been 11.
According to the complainant, the accused would pick her up and sit her on his lap during these gatherings and touch her on her breasts and between her legs. She said he would hold her sides a little below her breasts and that he would tickle her while he was bouncing her up and down on his knees. She said he would slide one of his hands over her leg and between her legs and then remove it again. She said he would also move his hands upwards and momentarily touch her on the breasts and then lower his hands again. She said that this was all part of the bouncing and tickling and that he camouflaged what he was doing by the bouncing and tickling. She said that she was about nine or 10 when the accused subjected her to these indecencies. If her recollection is correct, then these indecencies would have occurred in or about 1969.
Also according to the complainant, there was a roofless ruined cottage more or less in the middle of the home block adjacent to a well which she referred to as “the sandstone house”. She said that the accused subjected her to two separate indecencies in the sandstone house. She said that on the first of these occasions the accused called her into the sandstone house. She said that he pulled her pants down and then rubbed her vagina with his index finger while his own shorts were down and his penis was exposed. She said that the accused replicated this conduct in the sandstone house on a second occasion. She said that he placed her hand on his penis during the second of these indecencies. She said that the accused simply left the sandstone house after each of these incidents had come to an end. She said that she was getting towards ten years of age at the time, or that she was around ten years of age when these two indecencies occurred. Again, if her recollection is correct, then these indecencies would have occurred in 1969.
There were trees growing between the family house and the large work shed. Further, and again according to the complainant, the accused would sometimes materialise when she was walking from the house to the shed. She said that he would always stand with his back to the kitchen window of the house. She said that he would then grab at her breasts or her vagina with one of his hands. She said that she did not experience any physical sensations as a result of his actions and that she simply pulled away from him and ran. Again she said that she was about nine or 10 when these indecencies occurred, which would again make it in or about 1969.
There was a maintenance pit in what was effectively an annexe to the large work shed. The pit was for the purpose of work on the underside of motor vehicles. Access was via a staircase at one end of the pit. Motor vehicles could be driven over the pit and parked in a position which still allowed access to the stairs. A person could then descend into the pit and work on the underside of the vehicle. Illumination was by means of an electric lamp of some kind connected by an extension cord to a power point somewhere in the shed.
The charge is based on an indecency which is said to have occurred in the pit. According to the complainant, she went to the shed one day looking for her father or her brother. She said she entered the shed to find the accused and her elder brother A working on a car which was parked over the pit. She said that the accused was in the pit itself with the light and that A was leaning over the side of the engine bay of the vehicle and apparently working on the engine.
The complainant said that the accused called her down into the pit and that she complied with his request. She said that after she had descended into the pit she saw that his shorts were down around his ankles and that his erect penis was exposed. She said that she was wearing a skirt and that he pulled her pants down. She said that he then lifted her up and placed her over his penis in such a way that the upper surface of his penis was in contact with her vagina and that he then rubbed his penis against her vagina by thrusting it back and forth beneath her. She said that it seemed to go on “forever”, but that in reality it must have only been for some two or three minutes. She said she did not know if he ejaculated and she said that he eventually put her down whereupon she simply left the shed. She said that the accused had his back to where her brother was standing while this indecency was taking place. As to her age at the time this incident took place, she said she was “Still around the same age. Could have been a little bit older but it’s all around – end of nine years old, 10, 11”. Again, if her recollection is correct, this would make it around 1969 or 1970.
The complainant said that the accused would collect her and her brothers from school from time to time. She said that he tried to grab her and tickle her in a car on one such occasion after she had started high school.
The complainant said that the accused and his family eventually left the property. She said that this was unexpected. She said that they had lived on the property “I’m positive probably about two years I can – over 12 months, two years, getting on around that time”. She said that she continued to live on the property until she went to Adelaide to work when she was about 14 and a half, which would have been sometime in late 1973 or early 1974. She said that she only ever visited the property once again after that and that by the time she did so the family home had burnt down. The relevance of this will become apparent later in these reasons.
The complainant did not complain about her mistreatment at the hands of the accused until she told her drug and alcohol counsellor some time in 1988 or 1989.
In addition to the complaint, the prosecution called the accused’s former wife. She gave evidence about when it was that the accused was living on the property. It will be more convenient to deal with her evidence later in these reasons. The prosecution also called a man I shall call B. In addition statements provided by the investigating police officer, the complainant’s father and her brother A were tendered. The accused’s counsel did not require the father, the brother or the investigating officer to attend for the purposes of cross-examination.
Neither the complainant’s father nor A say that they saw the accused behaving in an untoward manner towards the complainant. In particular, A does not say that he saw the accused indecently handling the complainant in the pit in the manner that she described, or at all. He has no recollection of ever seeing the complainant or any of his other siblings in the shed.
B was a friend of the complainant’s brother. He was born in 1961. He visited the property with his parents on a regular basis. He was familiar with both the complainant and the accused. He said that he saw the accused grab the complainant on the breasts or on the vagina on many occasions. He said that there was an occasion in about 1972 when he saw the complainant and the accused on the ground. He said that the accused grabbed the complainant on the breasts and tried to remove her slacks. He said that this occurred in the vicinity of a burnt out house and some 30 metres from a fig tree which was near the large work shed. He said that the incident came to an end when the complainant slapped the accused. He said that he comforted the complainant after this incident. He said that he was probably 15 when he last saw the accused interfering with the complainant.
The complainant said that she had known B from her childhood days. She said she could not remember whether or not he had ever been present on any of the occasions when the accused had molested her.
The complainant did not say anything by way of complaint about her treatment by the accused until she told a counsellor in about 1988 or 1989.
The accused was ultimately arrested in April 2010.
The accused did not give evidence. It was apparent from his counsel’s cross-examination of the complainant, and for that matter of B, that it was his case that none of the alleged improprieties had ever taken place and, in particular, that the indecency which was said to have occurred in the pit did not take place.
The accused’s counsel called a man I shall call C who gave evidence about when he said that various innocent events took place. Again, it will be more convenient to deal with his evidence later.
Fundamental issue
If the incident which is said to have occurred in the pit did in fact take place in the manner the complainant described, then there can be no doubt that the accused did in fact assault the complainant by touching and handling her, and that the circumstances in which he did so were, when objectively viewed, and bearing in mind the complainant’s age at the time and the disparity between their respective ages, offensive to both prevailing and current community standards of decency and propriety, and thus indecent. The issue is thus whether the prosecution has satisfied me beyond reasonable doubt that the complainant is both truthful and reliable in the essential aspects of her evidence about what she says the accused did her in the maintenance pit.
Relevant principles
The accused is presumed to be innocent and he assumes no onus. It was his right not to give evidence and his election not to do so has no capacity to further the prosecution case or to detract from his: Azzopardi v The Queen (2001) 201 CLR 50 at [51]. The prosecution must prove each element of the charge beyond reasonable doubt. Whenever I use words such as “proved” or “satisfied”, or other expressions of that kind in these reasons, I will always be meaning proof or satisfaction beyond reasonable doubt. I can accept and reject different parts of the same witness’s evidence. Corroboration is not required either as a matter of law or practise. Even if I am satisfied that the accused subjected the complainant to other indecencies of the kind she described, it does not necessarily follow that the prosecution have proved the charged indecency and I must not engage in any kind of propensity reasoning. If I am satisfied that some other indecencies did in fact take place, the use to which such a finding can be put is confined to any capacity it might have to demonstrate that the accused was sexually attracted to the complainant to provide the context in which to consider the complainant’s evidence about the occurrence of the indecency which is said to have taken place in the pit and to explain why she continued to submit to the accused’s indecencies without complaint: R v Neiterink (1999) 76 SASR 56 at [75]-[78].
Any inconsistencies between the complainant’s evidence and her statements go to her credibility and thus to her reliability, and the significance which is to be attached to any inconsistency, or combination of inconsistencies, is essentially a matter of fact and degree: Driscoll v The Queen (1977) 137 CLR 517 at 586-587.
As the information was filed after 23^rd November 2008, s 34M of the Evidence Act 1929 applies: R v Seigneur (2009) 103 SASR 107. Pursuant to that section, evidence of the making of an initial complaint is admitted in order to inform the tribunal of fact about how the complaint first came to light and as evidence which may have the capacity to demonstrate relevant consistency of conduct on the part of the complainant. It is not admitted as evidence of the truth of what is alleged and it must be borne in mind that there may be various reasons why the complaint was made when and to whom it was. It is for the tribunal of fact to determine the significance, if any, which is to be attached to evidence of complaint in the circumstances of the case. A complaint must be directly referable to a charged incident before it can enjoy any capacity to demonstrate relevant consistency on the part of the complainant and the circumstances may be such that the complaint demonstrates inconsistency of conduct on the part of the complainant: R v S, DD (2011) 109 SASR 46.
Section 34CB of the Evidence Act provides that if the court is of the opinion that the accused is at a significant forensic disadvantage due to delay, the forensic disadvantage, once isolated and identified, must be taken into account when scrutinising the evidence.
Analysis and further evidence
It will be convenient to deal first with the complaint which was made to the counsellor in 1988.
As can be seen, the complaint was in general terms and, in all the circumstances, it does not by necessary implication include a complaint that an indecency occurred in the pit. The complaint thus lacks any capacity to demonstrate relevant consistency on the part of the complainant. Indeed counsel for the prosecution, Ms Luu quite properly did not contend otherwise.
It will also be convenient to next deal with B and his evidence.
If B is both truthful and reliable his evidence would plainly have the capacity to provide support for the generality of the complainant’s evidence about abuse at the hands of the accused.
B was adamant that the specific incident that he says he observed did in fact take place and he is also adamant that he observed many other incidents of the kind that he described.
Having seen him in the witness box I have no doubt that he genuinely believes that he saw what he described. Whether he is relevantly reliable is an entirely separate question.
B says that he was himself subjected to abuse by the accused when he was a child. I say at once that this is totally irrelevant to proof of the current charge and that I have not taken it into account for that purpose.
B provided statements to police on 9^th September 2004, 15^th October 2004, 3^rd February 2006, 11^th March 2006 and 13^th April 2011. He eventually agreed that he had not mentioned anything about observing the accused sexually abusing the complainant in any of those statements. His explanation was that what was in the various statements was about him and not her and that the statements were about his case and not hers. It was then suggested to him that he had said in at least some of those statements that he had observed the accused sexually abusing a number of other children and again he eventually agreed that he had and he also agreed that one of the other children he had mentioned was his own sister. He was asked why he had not mentioned the complainant if he had mentioned these other children. His explanation was again that it was about him and not her. When pressed further on this topic he simply said that he did not know why he had not mentioned the complainant in any of these statements.

B provided a further statement to the investigating officer on the day that he gave evidence. It emerged that he had told the investigating officer that he had not mentioned the complainant in any of his earlier statements because he did not know that the police would have wanted to speak to him about her and that he had also told this officer that he had wanted to report what had happened to the complainant but that he did not know how to go about it. He was asked how, and given that he had mentioned the various other children in his earlier statements, it was that he did not know how to report what he had seen the accused doing to the complainant. His answers in this regard were unresponsive and inwardly focused.
B said that he was about eight and a half or nine when the accused started to abuse him and that he first observed the accused abusing the complainant some eight to 12 months later.
B’s hatred of the accused was palpable. He agreed that one of his goals in life was to see predators like the accused stopped and that he would “do (his) damnedest to do so”. While under cross-examination he became bellicose and, like his answers about why he said he did not know how to report what the accused had done to the complainant, many of his answers were unresponsive and inwardly focused. While all of these things may be explicable on the basis of his understandable pre-occupation with what the accused had done to him and the effects that it has had on his life, they nonetheless do not inspire confidence in his reliability.
In the light of B’s assertions in his statements that the accused had molested a number of other children, including his own sister, his failure to mention the complainant is, particularly when viewed in the light of his assertions that he had observed the accused interfering with her on many occasions, an omission of considerable significance and his inability to provide a cogent explanation why it was that he did not know how to go about reporting what he had seen is, in all the circumstances, also of considerable significance. His failures in these regards cause me to experience concerns about his reliability.
Counsel for the prosecution, Ms Luu, conceded that B’s reliability was questionable. Her concession was rightly and properly made, and for the reasons I have set out above, I simply cannot be satisfied that B is reliable in the essential aspects of his evidence.
The charge thus rises or falls in the evidence of the complainant standing alone. In all the circumstances I must scrutinize her evidence with very special care and it will only be open to me to convict if, after subjecting her evidence to scrutiny of this kind, I am satisfied that she is both truthful and reliable in the essential aspects of her evidence about what she said that the accused had done to her in the pit.
The complainant gave her evidence in chief in an entirely unremarkable way. She was matter of fact in her delivery, nothing in either her demeanour or her answers suggested that she was either embellishing or prevaricating and she gave the appearance of complete and utter honesty. Under cross-examination her demeanour changed somewhat and at times she became flustered, emotionally fragile, and inclined not to address the point of some of counsel’s questions.
I ultimately concluded that the change in her demeanour was largely attributable to her becoming affronted by the challenges which were being made to her credibility about events which she genuinely believed had in fact taken place. In the main her change in demeanour thus caused me no concerns. However, her occasional failure to address the point of questions was somewhat disturbing.
Part of the attack on the complainant’s overall credibility and reliability focused on discrepancies between her evidence and the evidence of others about precisely when the accused and his family went to live on the property and how long they remained there.
The accused’s wife said that their son was born on 13^th August 1969. She said that they went to live on the property in 1970 and that they lived there for about 12 months. She fixes the year as 1970 because their son had his first birthday while they were living on the property. She said they left the property around Christmas of 1970. She said that the family home was still intact and undamaged by fire when they left the property. She said that at some time after they had left she learned that the family home had burned down.
The complainant’s father has no recollection whatsoever about how he met the accused. He said they met when he was about 37 years of age. He turned 37 in January 1973. He says that he was building the second house when the accused arrived on the property and that the accused and his family eventually moved into the second house. He says that the he cannot remember precisely how long they lived on the property, but it is his recollection that it was probably for about 12 months. He says the family home was burned down in 1975 and that the accused and his family were “well gone” by then. He says that the two families did not often socialise. He says that he knows C but that he cannot now remember when they first met and he says that he has not seen C “for ages”.
As can be seen, the complainant’s father has but a vague recollection for precisely when various events occurred.
The complainant’s brother A has a recollection of the accused and his family living in the second house on the property. He thought that they lived on the property for about a year. He has no recollection of the accused and his family moving on to the property. He recalls playing with the accused’s children. He does not remember precisely when the accused and his family left the property however, he says that he thinks it was after he had commenced his apprenticeship at the age of 15 which would make it 1973 at the earliest and he is certain that the accused had left the property before the family home burnt down.
The accused’s counsel called C. C was a builder. He said that he met the complainant’s father in the mid 1970’s. He said that he poured a concrete floor in the large work shed in 1975 or 1976 and that he adapted a shed on the home block to residential purposes. He said that he poured the floor in the shed before the family house burnt down and that he performed the adaptations after the house burnt down. He said that he had no records of when he poured the floor but “it would have been ’70, ‘75” or “sometime in the ’70’s at the earliest”. By reference to a sketch of the premises he identified the second house as the structure he adapted after the family house burnt down. He said that he attended social events at the property but with less frequency than the complainant asserted. He was asked if there was a sandstone house on the property and he said “not as far as I remember, no”.
The complainant provided a number of statements to the investigating police officer. She gave the first of these statements in November 2004. She gave a second statement in August 2008.
As set out above, the complainant said that that she was about nine or 10 and that she was still in primary school when the accused and his family commenced living on the property. She agreed that she had said in her first statement that she was certain “that they were there from the time I was nine years old in 1968 and they were still there when I started in high school. I started in high school when I was 12 or 13 which was in 1971 – 1972”.
In her first statement the complainant said that the incidents of indecency which originated in tickling only occurred when there were no adults present and in her second statement she said that this was incorrect and that these indecencies occurred when adults were in fact present.
As set out above, the complainant said that these indecencies occurred when she was about nine or ten and that they continued up until about the time she commenced high school. Ordinarily, children commence high school the year after their twelfth birthdays. She said that she commenced high school when she was 12 although she could have been 13, and she said that she did not really know. If it was the former, then in the ordinary course of events, she would have commenced high school in 1972 when she was about 12 and a half. If it was the latter then it would have been 1973. She was unable to remember which year it was that the indecencies came to an end.
As far as the incident which was said to have occurred in the pit is concerned, and as also set out above, the complainant said she “(c)ould have been a little bit older but its all around – end of nine years old, 10, 11” when this particular indecency took place. She was cross-examined so as to suggest that that in her statement of August 2008 she had said that she thought that she had just started high school when this incident took place. She did not admit that she said this to the police and it was not otherwise proved that she did. Under further cross-examination she said that by reference to what she was wearing at the time and by her height relative to the accused she would still have been in primary school. She said that her evidence in this regard was not a reconstruction.
Counsel for the accused, Mr Jolly, submitted that the complainant’s evidence about when the accused and his family lived on the property, about how old she was when they were living on the property and whether she was in primary school or high school when the indecencies occurred was so vague, internally inconsistent and also so inconsistent with the evidence of the accused’s wife and C that her overall reliability was demonstrably questionable.
In considering this submission, it must be recognised that the complainant, the accused’s wife and C were all giving evidence about a period of time 40 or more years ago and that they were doing so without reference to any contemporaneous records. In such circumstances a certain degree of vagueness and internal and external inconsistency will be inevitable and a certain degree of margin for error must be allowed for in evaluating evidence such as this. Whether any vagueness or inconsistency in the complainant’s account and whether any discrepancies between her evidence and that of the accused’s wife and C and, for that matter, her father, has the capacity to call her reliability into question to the extent that I could not properly be satisfied that she is reliable in the essential aspects of her evidence is another matter. At the end of the day it is all very much a matter of fact and degree.
Some dates and events are beyond doubt or are not really disputed. It will assist if I repeat them. The complainant was born in June 1959. The accused’s son was born in August 1969. The complainant left home in what must have been late 1973 or early 1974 when she was 14 and a half. The accused and his family had left the property before the complainant left home. The family home burned down in 1975. Both the accused and his family and the complainant had left the property before the house burned down. These dates and events provide a convenient framework within which to consider Mr Jolly’s first attack on the complainant’s reliability.
I will assume for the purposes of Mr Jolly’s submission that it is a reasonable possibility that the accused’s wife is reliable when she says that her son turned one when they were living on the property. However, her reliability in this regard cannot of necessity lead to a further finding that it is a reasonable possibility that she is reliable in all other respects, including her evidence that she and the accused left the property around Christmas of 1970.
If the accused and his family arrived at the property in early 1970, as his wife says, the complainant would have been 10 at the time of their arrival. She would have been 11 years and two months when the accused’s son had his first birthday in August of that year. In the ordinary course of events she would have started high school in 1972. As there seems to be no particular reason for the accused’s wife to remember precisely when it was that they arrived on the property and precisely when they left, and as she does not relate either their arrival or their departure to any other event which can be fixed in point of time, or to any record of any kind, I am thus satisfied that it is quite possible that they in fact arrived a few months before the accused’s wife said that they did and that they might have remained on the property for longer than she now remembers. If this is so, then the complainant would have been closer to 10 than 11 at the time of their arrival and she would have been completing her primary education or indeed commencing high school when they departed. In this regard it must be remembered that the complainant said that the accused probably lived on the property for about two years.
As mentioned, the complainant said that she was about nine or ten when the indecencies commenced and that they continued up until about the time she commenced high school. Her recollection is thus not inconsistent with the first indecency actually occurring when she was 10 and both the last indecency and the charged act actually occurring soon after she had commenced high school. I have already found that it is legitimately open to me to allow for the possibility that the accused lived on the property for longer than his wife now remembers. If the accused in fact lived on the property for about two years, as the complainant suggests, then he and his family could well have left the property at about the time that the complainant started high school. The complainant’s evidence is thus not necessarily inconsistent with that of the accused’s wife and the conclusion that Mr Jolly contends for does not necessarily follow.
As is obvious from the summary of C’s evidence which is set out above, C was very vague and imprecise about when things occurred. By reference to the various sketch maps which were tendered, the structure he says he adapted to residential purposes must have been the second house. If I again accept the possibility the accused’s wife is reliable about her son turning one while they were living on the property, then C must be mistaken about when he says that the relevant work on that structure was in fact performed. On this basis I am thus satisfied that C’s evidence in this regard lacks any capacity to undermine the complainant’s reliability as to when the relevant events are said to have occurred. While he was giving evidence C gave the impression that he was experiencing difficulty in remembering when various events occurred and that he was generally vague. After hearing his evidence I am satisfied that C was simply too vague overall for his evidence in this regard to have any capacity to undermine the complainant’s reliability.
As part of his submission with regard to C, Mr Jolly pointed to C’s evidence that he did not know the accused. In this regard C was asked “Do you know a person by the name of (the accused’s christian name and surname)” to which he replied “No, I don’t” and there the matter rested.
In all the circumstances, particularly given the passage of time and C’s apparent vagueness, I am satisfied that it is possible that he has simply forgotten the accused or that he never knew his surname in the first place. Again, his evidence in this regard lacks any capacity to undermine the complainant’s reliability.
There were a number of minor discrepancies between the complainant and the accused’s wife and B and C about the precise layout of the home block, exactly what was built on it and where, exactly where various objects might have been placed and exactly where cars connected with the complainant’s father’s business might have been parked. This was not surprising and, in all the circumstances, particularly bearing in mind the period of time which has elapsed and the complainant’s greater familiarity with the property, these discrepancies are, in my view, inconsequential.
Mr Jolly submitted that the evidence of the accused’s wife and C about the existence or otherwise of the sandstone house must cause me to doubt the complainant’s reliability. As has been mentioned, the complainant said that two specific indecencies occurred in the sandstone house. As has also been mentioned, C said that to the best of his recollection, there was no sandstone house on the property. Given C’s overall vagueness, and given the complainant’s greater familiarity with the property, it is inherently more probable that the complainant would be correct. As far as the accused’s wife is concerned, she was not specifically asked whether there was a sandstone ruin on the property and I take Mr Jolly’s submission to be based on the fact that she made no mention of it when she was asked questions, with reference to one of the sketch plans, about what structures existed on the property. Again, it is inherently more probable that the complainant would be correct. In any event, the existence or otherwise of the sandstone house is put beyond doubt by A, who relevantly stated as follows: “There was an old house near the shed, a half built old sandstone house. We all used to play in it when we were younger”.
Mr Jolly submitted that the complainant’s evidence that the indecency in the pit occurred when A was only a matter of a metre or so away and standing virtually on top of what was occurring is inherently improbable. Mr Jolly is on stronger ground with this submission.
As set out above, the complainant said that the accused was in the pit and that A was leaning into the engine bay of the car which was over the pit when she entered the shed. Under cross-examination she said that the underside of the car was about a foot above floor level and that the first she saw of A was when she noticed his lower legs after she descended into the pit and she simply assumed that he was working on the engine. This was contrary to the clear impression which her evidence-in-chief created. She said that there were gaps in the engine bays of some cars such that if they were parked over the pit it would be possible to see into the pit through the engine bay. She could not say whether the car which was parked over the pit on the day in question was such a vehicle. She said that when the accused lifted her up her head would probably have risen to just above floor level.
The complainant said that she complied with the accused’s request for her to descend into the pit. She does not say that she offered any physical resistance to what he then did. She does not say that she called out to her brother when she noticed his legs alongside the car. If the accused had in fact molested the complainant on a regular basis, then her compliance with his request that she enter the pit, her failure to offer any form of physical resistance and her failure to call out to her brother is explicable on the basis that she was accustomed to being subjected to indecencies by the accused and that he had thus “acquired a species of influence” (The Queen v Etherington (1982) 32 SASR 230 at 235 Walters J) over her which enabled him to continue his overall course of conduct on this occasion confident that she would not call out to her brother.
The same cannot be said of A. There is no evidence that A was in any way subject to the accused’s influence to the extent that he might have allowed the accused to interfere with his sister without enquiry or that he would not have reported what had happened. There is thus no evidence that the accused might have had the confidence to do what he is said to have done while A was in such close proximity.
If the accused knew that A was in shed at the time that he is said to have called the complainant into the pit then, in the absence of any evidence which has the capacity to give rise to an inference he had acquired some species of influence over A, it is highly improbable that he would have called the complainant into the pit in the first place, let alone done what he is said to have done. If A was not in the shed when the accused called the complainant down, then he must have made his way to the side of the vehicle very quickly and the possibility that the accused would have heard him approach cannot be disregarded. If the accused had heard some unknown person approaching, then it is probable that he would have desisted. Even if the accused had, from his position in the pit, seen A approach, then again, and again in the absence of any evidence that he held some kind of influence over A, it is likely that he would have desisted.

Even if the accused had not seen A in the shed, or if he had not seen or heard him approach, A was nonetheless very close to where the complainant said the indecency was taking place. The possibility that A would have heard something, perhaps something inconsistent with someone working on a car, and become curious cannot be disregarded.
There are thus, in my view, and even assuming that at least some of the other uncharged indecencies did in fact take place, too many possibilities which are inherently inconsistent with the incident in the pit having occurred, and in the circumstances in which it is said to have occurred, for me to be satisfied beyond reasonable doubt that it did in fact occur.
That said, and without making any definite finding, I think that it is highly probable that other indecencies of the kind the complainant described did in fact take place and indeed I am suspicious that the incident in the pit also took place however, suspicion is not enough and the accused must be acquitted.
In view of the conclusion I have reached, it is not necessary to consider Mr Jolly’s submission that the accused was at a significant forensic disadvantage due to the passage of time.
I record a verdict of not guilty accordingly.