R v HAAK - [2011] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAAK
Criminal Trial by Judge Alone
[2011] SADC 135
Reasons for the Verdicts of His Honour Judge Stretton
31 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The defendant, an adult family friend, was alleged to have had unlawful sexual intercourse with 5 year old C, during a sleepover. It was alleged that while drunk he entered her bedroom during the night and digitally penetrated her vagina and anus. C complained to her mother. Two videoed statements by C to a child psychologist were tendered per section 34CA of the evidence Act. In one of the statements C omitted reference to the allegations concerning her anus. C, now aged 6, gave unsworn evidence. The accused gave evidence denying the offences.
Held: Convicted of the allegation of vaginal penetration. A reasonable doubt remains concerning the allegation of anal penetration by reason of its omission from one of the section 34CA statements.
Criminal Law Consolidation Act 1932 s 49; Evidence Act 1929 s 12A, s 34CA, s 34D, referred to.
R v J, JA (2009) 105 SASR 563; R v Starrett (2002) 82 SASR 115, applied.

R v HAAK
[2011] SADC 135
Introduction

The accused is charged with two counts of unlawful sexual intercourse. It is alleged that the accused inserted his finger into the vagina and anus of his friend’s five year old daughter on the Saturday night of the 2010 June long weekend[1].
[1] The information alleges the accused had unlawful sexual intercourse with the complainant between 11 and 14 June 2010. It was an agreed fact that Monday 14 June 2010 was the Queen’s birthday public holiday.
I will refer to the complainant as C. C’s father and the accused had been childhood friends, but had lost touch over time. They became reacquainted shortly before the night when it is alleged the crime took place.
At the time the accused was separated from his partner but living under the same roof as her and members of her extended family at Mansfield Park, with their two young boys aged two and four.
C’s father was separated from C’s mother. C lived with her mother but would visit her father regularly, including every second weekend. C’s father lived at Huntfield Heights with his girlfriend S and her two children aged approximately 14 and 10.
C was on a regular visit over the 2010 June long weekend. C’s father invited the accused and the accused’s two boys over for a BBQ on the Saturday and to stay the night.
The accused and his children travelled by public transport from their house, and C’s father picked them up from Noarlunga train station at about 3pm on the Saturday. The plan was that the children would meet and get to know each other, and that there would be a BBQ and sleepover for all concerned. It is common ground that all that proceeded as planned. The adults stayed up and the accused and C’s father drank as the evening progressed.
The accused and his two young sons slept on a mattress in the family room to the rear of the house. C’s bedroom was off that room.
On Sunday everyone woke and had breakfast. C’s father dropped the accused and his boys back at Noarlunga train station. On Monday C returned to her mother, and that evening told her mother that the accused had put his finger in her fanny and her bum and wiggled it. C’s father rang the accused, who denied the allegations.
The charges
There are two charges, and each must be considered separately. The Crown alleges that the accused entered C’s bedroom during the night and twice had unlawful sexual intercourse with her. It alleges that he committed the offences by inserting his finger into her vagina, and by inserting his finger into her anus.
Unlawful sexual intercourse[2]
[2] Section 49(1) of the Criminal Law Consolidation Act 1935. Section 5 defines sexual intercourse.
To convict the accused of the offence the Crown must prove beyond reasonable doubt firstly that the accused put his finger into C’s vagina[3], and into her anus[4]. Secondly it must prove beyond reasonable doubt that in each case C was under the age of 14. Consent is irrelevant[5].
[3] Count 1.
[4] Count 2.
[5] Section 49(7) of the Criminal Law Consolidation Act 1935.
Special evidential features and considerations in this case
C was five years old when the offences were alleged to have been committed, and six years old when she gave evidence at the trial.
The court held that C did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence[6]. In those circumstances C can give unsworn evidence, but only if the court is satisfied that she understands the difference between the truth and a lie, is told that it is important to tell the truth, and she indicates she will tell the truth[7]. The court held a preliminary enquiry and was satisfied that she was able to give unsworn evidence[8].
[6] An enquiry was held. Counsel for the Crown conveyed to the court her view that the complainant did not have sufficient understanding within the meaning of section 9, and she conveyed the investigations she had conducted to form that view. Defence counsel agreed that the court inform itself that way and supported such a finding. After consideration of the material and cited authorities the court found that she did not have sufficient relevant understanding per section 9 to give evidence on oath. See transcript pp 31-34.
[7] Section 9 of the Evidence Act 1929.
[8] At a preliminary hearing C told the court she understood the difference between the truth and a lie, told the court what the truth was and what a lie was, and that she knew she was not allowed to lie or make anything up in court. She was told that it was important to tell the truth, and she told the court that she promised to tell the truth and would not tell the court anything that didn’t happen. The court carefully examined her answers, particularly when she appeared not to understand the word “accurate”, and a question with several elements to it. In the end the court was of the view that she clearly understood the difference between the truth and a lie.
Where unsworn evidence is given, the law says the court should be aware of the need for caution in deciding whether to accept the evidence, and the weight to be given to it[9].
[9] Section 9(4) of the Evidence Act 1929.
The Crown led evidence of C’s initial complaint to her mother. The law says that whilst such material cannot be evidence of the truth of the complaint, it is relevant to show how the allegations first came to light, it can be evidence of the consistency of conduct of C, and it may have other significance depending on the circumstances of the case[10]. In particular, “consistency” includes both the consistency in making the complaint when it would be expected to be made, and consistency between the wording of the complaint and the conduct alleged at trial[11].
[10] Section 34M of the Evidence Act 1929.
[11] R v J, JA (2009) 105 SASR 563 per Duggan J at 583.
The Crown led two statements that C had given to a child psychologist. Such statements can be led as evidence where a witness is under 12 and certain other conditions are satisfied[12]. The court was satisfied those conditions were met[13].
[12] Section 34CA of the Evidence Act 1929.
[13] Ex tempore reasons for ruling were delivered on 10 August 2010.
Where such statements are led the law requires the court to have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular as to whether the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts[14]. It cannot be treated as corroboration of evidence given by the maker of the statement.
[14] Section 34D of the Evidence Act 1929.
C was also called to give unsworn evidence and was cross-examined[15].
[15] Leave was granted pursuant to the Evidence Act for C to be cross examined on the 5 topics pursued by defence counsel, see Transcript pp 90-91.
The law also says that it is not unsafe to convict on a child’s uncorroborated evidence unless there are cogent reasons in the circumstances of the case, apart from the fact that the witness is a child, to doubt the reliability of the child’s evidence[16]. The law also provides that a court should not regard the evidence of children as inherently less credible or reliable, or requiring more careful scrutiny, than the evidence of adults[17].
[16] Section 12A(1) of the Evidence Act 1929.
[17] Section 12A(2) of the Evidence Act 1929.
Having said that, the Crown bears the onus of proving the case beyond reasonable doubt. Further, the court should always give the fullest weight to any circumstances relevant to whether there is a reasonable doubt, and must always bear in mind the need for caution if there is a perceptible risk of miscarriage of justice arising from the circumstances of a case[18].
[18] R v Starrett (2002) 82 SASR 115, per Doyle CJ at 124.
The issue is: did it happen?
There is no dispute, and I find proven beyond reasonable doubt, that C was five years old at the time of the alleged offences. Consent is irrelevant to the charges, as a five year old child cannot consent to sexual intercourse.
Therefore the only issues are whether the accused did insert his finger into C’s vagina and anus as C says he did. The accused gave evidence denying that he did so.
The prosecution case
On Monday14 June[19], after she got home, C complained to her mother that the accused had placed his finger into her fanny and her bum.
[19] The Monday of the 2010 June long weekend was 14 June, see statement of agreed facts, paragraph 2.
She gave two statements on video to a child psychologist, describing the events. The first statement was given the next day, on 15 July 2010. The second statement was given on 25 January 2011.
In the first statement C was reminded that the doctor had looked at her fanny, and was told that she was being asked about what she had said to her mother about her fanny. C said that the accused came into her room when she was asleep. She said he told her he wanted to sleep with her. She said the accused was on his knees beside her. She said he put his finger under her pyjamas inside her fanny and wiggled it with his finger. She said it felt like something was biting her. She said she told him to stop but he did not stop, and that he wiggled it “heaps”. She said she tried to call out to her father. She was asked whether the accused had done anything else to her and she shook her head, indicating no.
The audio of the statement is clear. Unfortunately, the camera recording the statement was behind C for most of the statement, and so her face was not visible for much of it. A spontaneous quality is nonetheless apparent from the voice and the video, the answers appearing unrehearsed and matter-of-fact, as she played with a teddy bear for much of the time.
In the second statement C said she had come back to tell what the accused did. She said he “wiggled my fanny and then my bum”. She repeated that he was beside her, and that she told him to stop. She said that she was wearing clothes, not pyjamas, but that she now couldn’t remember what she was wearing.
C also gave unsworn evidence against the accused, repeating in cross examination that the accused had indeed placed his finger in her fanny and in her bum. She was asked why she had not mentioned the accused wiggling his finger in her bum in the first statement, and she replied it was because she was a little bit scared and was younger than six at the time. She denied suggestions made to her by defence counsel that it never happened, perhaps it was a dream, perhaps she had made it up or perhaps it was someone else. She said that although there was no light in the room she could see in the dark, saw the accused, looked at his face and recognized him.
I asked her a series of questions, essentially about whether she was sure it was the accused. C repeated that she did see the accused in her room and that it was the accused rather than anyone else who did what she had said happened to her.
C gave evidence well and in a matter of fact way. Her demeanor was good. I could not perceive any evasiveness or any apparent inclination to lie or motive for her to lie.
I note her explanation for why she did not mention the count 2 allegations in the first interview. In that regard I also observe that the first statement was introduced to her by the child psychologist as being about her fanny rather than her bum. It is clear that is what she thought the discussion was about. On the other hand, near the end of the first statement a picture was drawn of body parts including a part called her bum, and when she was asked if he touched her anywhere else she shook her head.
With the exception of that matter, her evidence was broadly consistent over time, and the inconsistencies otherwise raised with her were what one might expect with a young person being asked to recall details over an extended period of time. I find her evidence overall about the lighting to mean that there was no light on in her room, and that she could not remember light coming into the room, but that there was enough indirect light in the room for her to see the person she said was with her.
In all, she gave evidence very well for a person of her age.
C’s mother confirmed the ongoing access arrangement whereby C would visit her father every second weekend. She said the arrangement had worked well for some years, and that she never had any concerns about it. She described how she picked C up from access on the Monday of the 2010 June long weekend. After dinner she was putting C in the shower when C told her in a “matter of fact” way that a man stayed over at her father’s house, put his hand down her pants and touched her bottom and then her fanny. She said C demonstrated how he wiggled his finger in her fanny. C told her that “Matt” did it.
C’s mother said she rang C’s father who wasn’t happy that his friend was being accused, but that after he spoke to C for himself, they took her to the hospital and to police.
C’s mother said that C knew what a fanny was, meaning her vagina. C’s mother said that C complained of soreness in the days to follow.
C’s mother also said that a couple of weeks after the event she took C to a counsellor for “emotional field therapy’, a process whereby pressure points are tapped to drain away the pain or trauma of an event. That had particular relevance in light of an agreed fact that when C was being spoken to by prosecution lawyers on 9 November 2010 she said she did not remember the alleged offending at all, and that “Jen” (the counsellor) was helping her to forget.
I formed the provisional view that C’s mother was an honest and straightforward witness who gave evidence well.
C’s father also gave evidence that the access arrangements were working well. He said that C got on very well with his partner’s children, aged about 14 and 10 at the time. The elder child lived in a caravan on the property but was staying elsewhere with friends on the night in question.
C’s father described the events of the evening. He said that the accused and his two boys aged about 2 and 4 were to sleep in the lounge next to C’s room. He said that the accused drank well over a bottle of bourbon in the course of the evening, and was drunk. He said he put C to bed at about 10pm, leaving her door slightly ajar as she was scared of the dark. He said he went to bed at about midnight, putting a DVD on the 80cm TV in the lounge for the accused and his children. He said the lights were on in the lounge until midnight when he turned them off. He said he got up at 2am and checked C, and at that time the accused was asleep and he turned the TV off.
I formed the provisional view that C’s father was also an honest and straightforward witness who gave evidence well.
C’s father’s evidence is particularly relevant in two ways. Firstly, as to the light conditions in C’s room. C was put to bed at 10pm, with the door ajar. Light would have entered the room from the lounge lights until midnight. After midnight there would have still been some light from the 80cm TV. Further, although it was not specifically dealt with by counsel, C’s room had an external window, although it was not clear to what degree light could enter by it[20]. If his evidence is accurate, then there was at least some indirect light entering C’s bedroom from 10pm when she was put to bed through to 2am when the large television in the adjacent lounge was turned off.
[20] See exhibit P6, the plan of the house.
His evidence is also particularly relevant to the amount of alcohol the accused drank. If C’s father’s evidence is accurate, the accused drank a large amount of alcohol prior to the alleged event, which might provide a context for the commission of such an offence. The accused denied drinking anything like that amount, so if I find it proven that the accused deliberately lied about that, it potentially affects his credit.
C’s father’s partner also gave evidence. She also gave evidence that her elder child was away staying at a friend’s house that night. Her recollection of bedtime differed from C’s father. She said they went to bed at around 10.30pm, with the accused in the family room with his children and the TV on at that stage. She gave qualified support to C’s father’s evidence that C’s bedroom door would be ajar at night.
Dr Lawrence, a paediatric specialist, examined C on 15 June 2010. At that time C did not appear to be injured. Dr Lawrence said that such a finding neither confirms nor negates digital penetration of a vagina or anus, as you wouldn’t necessarily expect a visible injury from such action. She said that even if there was an injury you would expect it to have healed given the time between the alleged event and the medical assessment. In cross examination Dr Lawrence said that a five year old child talking about “inside” their vagina commonly means inside their labia and that girls understand quite well about their genitalia. On the other hand she said it could be harder to distinguish pressure from penetration of the anus.
It was agreed that Monday 14 June 2010 was the Queen’s Birthday Public Holiday and that the accused was arrested by police on 8 July 2010.
The defence case
The accused gave evidence on oath in his own defence[21].
[21] The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to prove the case. The law requires that the court recognize that he took a course he was not obliged to take, and that he is entitled to credit for doing so. His evidence is to be assessed in the same manner as any other witness who gives evidence on oath.
The accused agreed with much of the Crown evidence. He agreed that he and his two young boys went to C’s house on the Saturday of the 2010 June long weekend for a BBQ and a sleepover. He agreed they slept in the lounge adjacent C’s room.
The accused said that shortly after he arrived his younger son was tugging on his pants to get his attention, whereupon C “dakked me”, meaning pulled his pants down past his jocks. He said that he pulled his pants up and C’s father told C off, telling her “don’t do that, it’s rude”[22].
[22] Transcript pp191-192.

Regrettably this had not been put to C at all, and not put accurately to C’s father. C’s father had been asked in cross-examination whether when the accused’s son had been pulling at the accused’s trousers C as a joke “gave him a tug as well” and C’s father said “don’t do that …(C)…”. C’s father had said that he could not recall that happening.
The accused said that the adults drank into the evening, although he denied that he drank as much as C’s father said he did. He said he was “fairly merry but I wasn’t uncontrollable”[23].
[23] Transcript p 185.
The accused said he remained outside to finish his smoke and drink for about 10 minutes or so after C’s father retired. He then went to bed in the family room with his boys, turning off the DVD that was playing, but leaving the TV on.
The accused denied entering C’s room and denied the allegations that he penetrated C’s vagina and anus. He repeatedly denied going into any of the bedrooms at any time during the visit[24].
[24] Transcript pp 184, 186 and 188.
In the morning he and his boys woke up, got up, had breakfast, and left around 10.30. He said that C seemed happy, and that he played with her with a toy she had.
He said that C’s father rang him on the Monday night and asked if he had touched his daughter. He said he was shocked and replied “what are you going on about”.
In cross examination the accused agreed he was told where C’s bedroom was, would have checked on his sons when they were in her room and saw his younger son dancing in her room. He agreed he was told at some stage that C had been put to bed, and that he would have had the opportunity to enter her room while she was sleeping.
Are the charges proven beyond reasonable doubt?
The prosecution case rests almost entirely on the statements and evidence given by C. She told her mother, the psychologist who took her two statements, and the court in unsworn evidence, that the accused put his finger into her fanny and her bum and wiggled her fanny and her bum.
C’s initial complaint was made at a time when one might expect it to be made, when she returned home from access to her mother, and was first undressed and naked ready to get into the shower. One can well imagine that would be a time when a child might first say what had happened to her fanny and her bum when she was away.
One can well imagine that C would likely have been loath to complain to her father about a person who seemed to be a close friend of her father. C’s initial complaint was also generally consistent with the evidence she gave at trial, although her mother recalls that C said that first contact was with her bum rather than her fanny, whereas at trial she described the wiggling of her fanny before the wiggling of her bum[25].
[25] Neither C nor her mother was cross examined about this, and nothing was made of it at trial.
I find that the initial complaint is consistent with how one would expect such a complaint to be made in the circumstances of this case, and broadly consistent with the conduct alleged at trial. Whilst this is not evidence of the truth of such complaint, it’s consistency with how you would expect a complaint to be made, and with C’s subsequent evidence of the offence at trial, supports C’s credibility[26].
[26] R v J, JA (2009) 105 SASR 563 per Duggan J at 583.
C’s two tendered statements were clear and relatively straightforward.
The first statement in particular appeared spontaneous and matter of fact. It had the sound and appearance of credibility about it. It is clear and direct evidence that the accused penetrated the accused’s vagina or labia, constituting sexual intercourse as defined by the law, and alleged in count 1. The way she expressed what she said was done, how she “feeled it” when it happened, what it actually felt like, and how she reacted, had the distinct ring of truth.
As the law specifically requires[27], I have closely examined all the circumstances from which any inference can be reasonably be drawn as to the accuracy or otherwise of the statement, in particular whether or not the statement was made contemporaneously with events, and whether C had any incentive to conceal or misrepresent facts. The statement was made very contemporaneously with events, being only a few days after the night the alleged offence occurred. I also find that C had absolutely no incentive to conceal or misrepresent facts. The access arrangements with her father had operated well and successfully for a long time, all the evidence shows she was happy to go on access to her father’s house, got on very well with her father, his partner and his partner’s children. She had no incentive whatsoever to invent allegations against someone who appeared to be a good friend of her father, who she had otherwise got on well with and whose own children it appears she had played with and got along well with on the night concerned.
[27] Section 34D of the Evidence Act 1929.
C did not however mention in the first statement the anal contact that forms the basis of count 2. C explained this when she gave evidence, saying she was scared and under 6 at the time. Also, it is plain that the first statement had been introduced by the interviewer as being about her fanny. In those circumstances, one or both of these reasons may be why the complainant did not mention the anal contact in the first statement. She mentioned it consistently in her initial complaint, in her second statement and at trial. In the final analysis I do not find its omission from the first statement a matter which throws any doubt over the accuracy of the remaining contents of that statement.
I find that the first statement is compelling evidence of the matters contained therein.
It was agreed that at a DPP proofing on 9 November 2010 C indicated that she did not remember the alleged offending at all, saying that “Jen” was helping her forget, with C’s parents advising that Jen was a counsellor[28].
[28] Statement of agreed facts, paragraph 3.
I scrutinized the second statement particularly carefully, as it came about some time later, after proofing by the DPP, when C was returned to the psychologist to make a second statement to clarify the allegations[29]. Whilst there was no suggestion by the defence that C had been coached, or that anything suggestive or untoward arose in the proofing session, nonetheless close scrutiny is appropriate in such situations.
[29] Transcript p 63.
The second statement opens with small-talk, no doubt intended to establish rapport and put C at ease. C is then asked why she has come back, and she responds “Because I’m telling you about what Matt did”. The psychologist then told C that she (the psychologist) had got a bit muddled up about what he had done and there might have been things she didn’t ask about, and that they could talk about it again and that C could tell her everything about what happened.
The psychologist told the court that she said those things so that C did not feel that she had said anything wrong in the first statement, and that the psychologist was taking responsibility for the fact that C was being interviewed again[30]. C then said that the accused looked at her first, then wiggled her fanny and her bum, then she shouted out “stop it”, then a little while later he was gone. She said that when it happened he was next to her, she was in bed and that he wiggled her fanny and her bum with his finger.
[30] Transcript pp 64-65.
The second statement remains consistent on the core topics of the accused coming into C’s room, being beside her, and using his finger to wiggle her fanny, C telling him to stop what he was doing, then him leaving the room. She remained consistent that the wiggling was inside her fanny[31]. There are some inconsistencies with the first statement, most notably the wiggling of the bum, but also to a lesser degree in relation to whether she was wearing pyjamas, and some other matters such as the look on the accused’s face at particular times and at what stage the accused was on his own mattress and went home. As mentioned earlier, it is likely that C was given the impression that the first statement was to be about her fanny rather than her bum, although as mentioned, she was specifically asked with reference to a diagram that had bum marked on it whether the accused had touched her anywhere else, and she shook her head indicating no.
[31] Second statement 25 January 2011, “He did the same as my fanny, like wiggled inside it”.
As the law specifically requires[32], I have also closely examined all the circumstances from which any inference can be reasonably be drawn as to the accuracy or otherwise of the second statement, in particular whether or not the statement was made contemporaneously with events, and whether C had any incentive to conceal or misrepresent facts. Plainly the second statement was not made contemporaneously with events, but many months later. Further, whilst there was still no obvious incentive to conceal or misrepresent facts, nor is there any suggestion that anyone reminded her to mention the allegation re her bum, there had been a number of intervening events prior to the second statement. She had seen a counsellor for therapy about the events, she had been proofed by the DPP and told them she couldn’t remember events and the counsellor was helping her to forget, and some words must have been spoken to her to foreshadow her return for the purposes of the second statement. For all of those reasons, together with her age, and in all the circumstances, I can place less reliance on the second statement.
[32] Section 34D of the Evidence Act 1929.
I have also considered C’s statement to the DPP on 9 November 2010. That was inconsistent with her subsequent statement and with her evidence to this court that she could recall events. In all the circumstances I find that C said that because she thought, as a result of her contact with the counsellor, that she was meant to forget. I find that it does not reflect adversely on her evidence given in this court, where in a very formal context she was repeatedly told to tell the truth, promised to tell the truth, and gave evidence in the way that she did.
C gave evidence well in this court. As it was unsworn I approach it with the required caution. It was straightforward and matter of fact. Whilst she was consistent as to the central issues, she said she could not remember details that I would expect a child of her age to forget. Her demeanour and presentation were good. Her responses were appropriate and spontaneous. There was also nothing implausible about her account of events. Overall, after careful scrutiny, I formed the provisional view that her evidence both was truthful and accurate.
I do not regard any of C’s complaints, statements or evidence to this court as corroborative of each other. I simply assess the weight and significance of each, as the law in each case requires.
I found C’s father, his partner and C’s mother to be honest and accurate witnesses. I found Dr Lawrence an honest and accurate witness.
The accused gave evidence on oath denying the allegations. His evidence was straightforward. His demeanour was straightforward, if a little monotone, in giving evidence. He agreed with most of the crown case with the main exceptions being the amount he drank and whether he entered C’s room and committed the offences. I found his evidence much less convincing than C’s evidence.
In the final analysis I accept C’s father over the accused as to the amount the accused drank on the night in question. He was a better witness, and his description of the accused’s drinking pattern I find more convincing. I find proven that the accused had well over a full bottle of bourbon over the period in question, and was obviously drunk, as observed by C’s father. I find that he deliberately minimized this in his evidence. I do not find that this is itself probative of guilt, however I do find it affected his credibility as a witness.
I reaching these conclusions I have carefully considered all the matters raised by defence counsel in his recent address, and I have indeed approached the matter with the caution that he has suggested. I do not regard it as a reasonable possibility that the accused dreamed the events or that the perpetrator was misidentified or someone else, as he submitted. Counsel referred to a number of other comments C made which he submitted affected her reliability and credibility, such as what she said about the accused living at the train station, the time she was asleep, whether the accused also hit her as she said may have happened when she was asleep per her first statement, and other matters. I consider all of those things were a young person trying to honestly answer, and where inaccurate were honest mistakes or misrecollection, which I find do not affect the truthfulness or reliability of her other evidence to which I have referred.
Findings
The crown must of course prove every element of the charges beyond reasonable doubt, and the accused bears no onus whatsoever.
In the final analysis I find proven beyond reasonable doubt that the accused did enter C’s room and insert his finger into her vagina. C has been consistent about that in her complaint, in her two statements and in her evidence to this court. She has no motive or incentive to conceal or misrepresent that fact in her statements, and no motive whatsoever to fabricate her allegation. She was spontaneous and convincing in her first statement about that, and convincing in her unsworn evidence to this court. I find there was adequate indirect light in her bedroom to recognize the accused as the person who committed the offence, and that she did recognize him as such. The inconsistencies in her account over time are what you would expect of a young person and the passage of time, rather than indicative of untruth or inaccuracy about count 1.
Overall the statements and evidence of C as to count 1 were credible and compelling. I find that she was both truthful and accurate. I find that she was five years of age at the time.
I do not believe the accused’s evidence that he did not enter C’s room and insert his finger into her vagina, nor does his evidence raise a reasonable doubt concerning count 1.
I find that between 11 June 2010 and 14 June 2010 the accused had unlawful sexual intercourse with C, a person aged 5, by inserting his finger into her vagina. I therefore find count one proved beyond reasonable doubt.
Whilst I find it probable, I do not find proven beyond reasonable doubt that the accused inserted his finger into C’s anus, or had contact with her anus. Whilst C complained about this to her mother, and described it in her second statement, and gave apparently credible evidence to the court that it occurred, I can only be satisfied that it probably happened, in light of her first statement. In that statement she did not mention it, and did not identify any contact with her “bum” even when such a place was identified to her on a diagram. In my view she probably did not mention the allegations concerning count 2 for some combination of the reasons she gave in evidence and the fact that the statement was firmly directed towards whether something had occurred in relation to her “fanny”. Probabilities of guilt are however insufficient, and primarily because of its omission from C’s initial statement, in the final analysis there is a doubt in my mind as to whether there was contact between the accused and C’s anus.
I should say that I have also carefully considered whether this factual conclusion raises any doubt as to the court’s conclusions concerning count 1. It does not.
I therefore find count 2 not proven beyond reasonable doubt.
Verdict
Count 1: Convicted
Count 2: Acquitted