R v IDH - [2020] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v IDH
Criminal Trial by Judge Alone
[2020] SADC 139
Reasons for the Verdict of His Honour Judge Muscat
30 September 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Defendant biological father of the complainant - offending alleged to have occurred between 1975 and possibly into early 1977 - complainant aged seven to nine years - significant forensic disadvantage to the accused - no independent support for the complainant's evidence - defendant gave evidence denying the charge and called evidence of good character.
Verdict: Not Guilty

R v IDH
[2020] SADC 139
Introduction

IDH (‘the defendant’) is charged on an Information dated 4 February 2020 with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
IDH between the 27th day of September 1974 and the 28th day of September 1980 at Bellevue Heights, maintained an unlawful sexual relationship with A, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, namely:
(a)pushing his penis against her genital area on one or more occasions;
(b)performing an act of cunnilingus upon her on more than one occasion;
(c)inserting one or more fingers into her vagina on more than one occasion;
(d)touching her vagina on more than one occasion; and
(e)pushing his penis against her mouth on one or more occasions.
It is alleged that the defendant committed the offence against his biological daughter during periods of fortnightly parental access, following the breakdown of his marriage. The sexual abuse is alleged to have occurred at the defendant’s home, the former matrimonial home.
The prosecution relied solely on the evidence of A to prove the offence against the defendant.
On the evidence of A, over the period of time she alleged she was being sexually abused, the defendant was aged 38 to 40 years and she was aged seven and eight and even possibly nine years old.
Application for trial by judge alone
The defendant was originally tried before a jury in February 2020 and again in August 2020. On each occasion, I was the trial judge and on each occasion the jury had to be discharged.[1]
[1] It is unnecessary to detail the nature of the reasons behind the discharge of each jury.
Following the most recent discharge of the jury on 20 August 2020, the defendant brought an application for trial by judge alone. As all of the evidence had been presented and the closing addresses completed before the jury was discharged on 20 August 2020, it was requested that I should decide the verdict. The application and such course was not opposed by the prosecution.
I allowed the defendant’s application for trial by judge alone and also agreed that I would decide the verdict.
All of the evidence and the exhibits from the second trial were tendered into evidence in the trial by judge alone, including A’s recorded evidence.[2] Neither side requested to adduce further evidence nor to make any further closing submissions, with each counsel content to rely entirely on what had been presented to the jury.
[2] A’s evidence at the second trial was recorded pursuant to s13C of the Evidence Act 1929.
For the sake of clarity, I indicate that I have had no regard to any of the evidence presented at the first trial nor have I had any regard to how A presented as a witness at that first trial in February 2020.
Central issue at trial
There was no dispute that the unlawful sexual acts, as particularised, amounted to sexual offences at the relevant time;[3] nor that the defendant was an adult[4] and that A was a child during the period alleged.[5]
[3]    It is agreed that the alleged sexual acts amounted to offences of indecent assault.
[4]    The defendant was born on 23 June 1936.
[5]    A was born on 28 September 1967.
There was also no dispute that if A’s evidence of a prolonged course of sexual abuse was accepted beyond a reasonable doubt then the defendant had knowingly maintained an unlawful sexual relationship with A during the period alleged in the particulars.[6]
[6] The sexual abuse alleged by A in her evidence was much more confined than the particularized dates in the charge (approximately two years rather than six years).
The sole issue that was in dispute was whether the alleged unlawful sexual acts,[7] which comprised the alleged unlawful sexual relationship, had been established beyond a reasonable doubt by the prosecution.
[7] More specifically, at least two unlawful sexual acts as particularised, having occurred on separate occasions during the period alleged in the particulars.
This meant that the entire prosecution case depended entirely upon the court being satisfied beyond a reasonable doubt the unlawful sexual acts occurred,[8] based solely upon the evidence of A.
[8] More accurately, that at least two of the sexual acts occurred on separate occasions.
The alleged unlawful sexual relationship
At the time of giving evidence at the second trial A was aged 52 years. She alleged that when she was aged from seven and eight, and possibly nine years of age, her father would regularly sexually abuse her when she would go to his bed in the morning. She also recalled one instance of being sexually abused in her own bed. That would place the alleged sexual abuse as having occurred between 1975 and possibly into 1977.
A recalled that her parents separated towards the end of 1974 when she was aged seven years and her brother B was aged about four and a half years.[9]
[9] B was born on 19 February 1970.
She described feeling lost and that her ‘whole world had just turned upside down’.[10] She said she felt scared and uncertain not knowing what to expect, as everything in her life had suddenly changed, which would be the natural feelings of a child her age whose parents had just separated.
[10] T45.
A said her mother moved out of the family home and that she and her brother B lived with their mother, while their father remained living in the former family home.
By early 1975, A said there was an arrangement whereby she and B would stay overnight with their father on alternate weekends. Her father would pick them up after he finished work on a Friday night and then return them to their mother late Sunday afternoon. A said that she and her brother slept in their former bedrooms.
B confirmed those arrangements and he also described the sorts of things he and A would do as children to entertain themselves while at their father’s house, including watching television, exploring the trees and creek on the large house block, and of B helping his father work on the car.
A described being sexually abused by her father during some of those weekend stayovers in early 1975, when she was aged seven years, which continued into 1976 when she was aged eight years, and possibly even into early 1977 when she was nine years old.
Although A said she had been sexually abused multiple times by her father, there were six separate occasions that she was able to specifically recall.
First incident
A said she would wear a nightie to bed and no underwear. A described the first occasion during which she recalled being sexually abused by her father as follows:[11]
It was one of the weekend mornings, either a Saturday or a Sunday, would have been fairly early, I tended to wake up a little bit early and I got up and went down the stairs and hopped into bed with my dad, he was if not asleep sort of drowsy, lying on his right-hand side in his bed closer to the doorway side of the bed and I hopped into bed and lay with my back towards him, facing the window and just lay there and rested. I'd - yeah - just lonely - I wanted some company and after about 20 minutes of just lying still in the bed beside each other on this occasion he rolled over onto his left side facing towards me so that we were sort of tucked a bit more together I guess reference like spoons tucked together and then he would have used his right hand and he put it over sort of my waist and down between my legs and started caressing my vagina and what I later found out to be my clitoris, and my legs were pulled up, my tummy went really tight and I guess you could say I was in a state of shock because this had never happened to me before and I didn't know what to do, to say, how to handle it, and my body reacted with I guess like little electric shocks my body jumping and this went on for perhaps five minutes and then stopped and I can't say I recall any conversation, I didn't know what to say.
[11] T57-58.
Later in her evidence she added:[12]
[12] T60-61.
QWhen your father touched that part of your body what, if anything, happened to your body.
AAs I said earlier, it gave me a feeling like an electric shock and my body jumped and spasmed.
QApart from touching the outside of your vagina on your clitoris as you have described, did your father touch your vagina in any other way on this occasion.
AYes, he rubbed up and down the whole area sort of inside the labia majora up and down and there was a sensation as though he put his fingers inside but it may not have been, it may just have been inside the initial entrance area.
QWithout trying to sound crude at all what do you mean when you say labia majora.
A The outer lips of the vagina.
QApart from touching as you have said the outer lips and the clitoris, did your father touch any other part of your vagina with his finger or fingers.
AJust sort of up and down over the entrance.
QDid he touch inside the vagina at all.
AIt felt that way, yes.
…….
ASo I could feel the skin contact on my back and his arm over my waist and then his arm and hand down across my body onto my vagina (INDICATES).
QIn what position was your nightie when you could feel that skin contact on those parts of your body.
AThe nightie had ridden up.
HIS HONOUR
QHow far had the nightie ridden up.
AThe nightie had ridden up my body above my waist so that I could feel his body against mine.
A said that it was around 6.30 – 7.00 am when she went downstairs and hopped into her father’s bed and that B was not yet awake.
She believed this first episode of sexual abuse occurred sometime early in 1975 because of her recollection that she was wearing her short white nightie. She also said that she never slept with any knickers on. She did not know what brought this incident to an end, saying, ‘I think he just stopped’.[13]
[13] T62.
She said that after this sexual abuse occurred, she did not tell anyone what happened because she did not know what to do, and so decided to ‘just keep quiet’.[14]
[14] T64.
Second incident
A then described a second incident she could specifically recall, which she said occurred about one month after the first incident.[15]
There's another occasion that I recall, again morning time, lights off, curtains drawn but light enough to see light around the curtains. Again, I was in bed with my father, sort of similar incidence. He reached over, I think on this occasion I think I was lying on my back, and he again I think with his right hand reached over and was caressing me and then my brother came, he got up and came down and hopped into bed as well and he was on - he, like myself, came around on the window side of the bed and hopped in on that side. And my dad sort of reached over and scooped me up from beside him (INDICATES) and had me laying on top of him so that we were - he was lying on his back and I was lying face down on top of him (INDICATES). And at that time he sort of - he held his arm around me as if to sort of hold me in place (INDICATES) and that - I was uncomfortable because sort of my brother had hopped into the bed and because of what my father had been doing I was feeling uncomfortable but also I actually needed to go to the loo and he was holding me against his body, I could feel what I know was his erect penis sort of pushing against my sort of lower abdomen and that was particularly uncomfortable and I wanted to get off and go to the toilet but he was holding me quite firmly and I was at that stage not able to do so. I can't really say if there was any conversation happening, I'm quite sure that there was, but my attention was focused on the fact that I really wanted to go to the toilet and I really didn't want to wet the bed because I was aware that if I peed then I was going to pee all over my dad and I knew that would not really be received well at all. And so that was my - my consciousness, my focus at that time was trying to hold myself in so that I could go to the loo and just feeling that, the pressure of his penis against my sort of vaginal lower abdomen area.
[15] T64-65.
A's evidence continued:[16]
QCan you tell the ladies and gentlemen of the jury as best as you can remember exactly how your dad was touching your vagina.
AIn - in the same way that I described in the previous incident. So with his hand between my legs on my vagina moving up and down, you know, across the whole area of the, you know, vaginal area and the clitoris, top to bottom.
[16] T66.
A said she was in bed with her father for about five or 10 minutes before B came into the bedroom and got into bed with them.
A then explained how this incident ended:[17]
QHow did that incident come to an end.
ASo we were lying there and I could feel that, like it was quite hot, wet and sticky, now, as I said, his penis was still erect so I'm not clear whether it was semen or perspiration but it was yeah, quite hot and sticky and in the end I just said 'I have to go to the toilet' and I sort of squiggled out of his arms and left and went to the toilet and didn't come back to bed on that occasion.
[17] T68.
A said in between these two incidents there were other similar sexual acts she could no longer specifically remember the details of. A said, however, that she thought that her father had touched her vagina on more than 10 occasions.[18]
[18] T83.
Third incident
A then described a third occasion when she was sexually abused by her father:[19]
There - another incident where I was - again he was lying on the right-hand side of the bed sort of closer to the door, on his back, and I was lying sort of beside him, closer to the window, also on my back, and he, sort of under the covers but like, sort of rolled over and then kind of slid down between my legs and pushed my legs open with his knees or hand and he had no moustache but a beard and his beard prickled my stomach and then my thighs and he then used his tongue to rub up and down over my vagina and my clitoris as well and that went on for a period of time and that sent increasing sort of shock waves through me and was increasingly daunting, scary and my body reacted much, much more intensely to that and I remember feeling really betrayed by my body because I didn't want it - I didn't want myself to respond to him and I tried holding my breath and tried tensing my body and nothing that I was able to do would stop my body from responding to him. And I felt really quite uncomfortable on that occasion or after a similar event when he rolled off me this time rather than rolling onto the side closest to the door, which is where - most common for him, he came off and was lying on my left side closer to the - close to the window and this is the first time I sort of have a recollection of him saying something to me and he said either, you know, words very similar to 'You know this is wrong and you mustn't tell anybody because if you say something, you could - I could, you know, get in trouble, I could go to gaol for this and that would be all your fault'. And I just remember my whole body just really clenching, thinking okay, so he actually knows that this is wrong and he's the one, you know, effectively laying the guilt trip on me, saying that if I say anything it will be my fault if he gets into trouble. And that was a pretty - it was a real - it was a real shock for me because I'd had no prior experience of what was happening and was shocked, embarrassed, frightened of the way that my body responded to him and yeah, it was - it was a really uncomfortable situation.
[19] T68-69.
Both this incident and the next incident A went on to describe occurred in 1975, closer to when she was aged eight years.
A went on to describe another specific occasion when her father licked her vagina, which she said occurred in her bedroom and that I will detail shortly.
A said there were other occasions when her father had licked her vagina, although apart from the two specific occasions she recounted in her evidence, she could not provide any detail of the other occasions that type of sexual abuse occurred.
Fourth incident
A’s evidence of a fourth specific occasion is as follows:[20]
On another occasion again - morning time, again - his bed, he - both of us began in the bed, sort of me on the window side him on the door side. On one occasion he sort of climbed up on top of me and used his erect penis to try and push inside my vaginal opening. He didn't push hard, but he was very definitely pushing and that was pretty terrifying and he said to me you know 'You're going to have to - you'll have to grow bigger than this'. Something to the effect of 'You're too small, you're going to have to get bigger' and I just remember feeling really terrified, like 'No, I don't want to get any bigger, what can I do to stop growing', what would happen if I did get bigger and he was able to push inside of me.
[20] T71.
A said that she thought this type of sexual abuse occurred on more than one occasion, although she added that the incident she recounted in evidence was the only clear memory she had of that happening.
Fifth incident
A then recalled another specific occasion of sexual abuse as follows:[21]
There was an incident that occurred again in his bed when he was on the - again, sort of middle to right side of the bed and he sort of pulled me over on top of him and pushed me sort of like on the shoulders down under the covers and also sort of like one hand, sort of like an arm across my shoulders and one on my head and pushed my head sort of in line with his penis as though he was trying to get me to take his penis in my mouth and I gritted my teeth together and closed my lips and refused to let that happen.
In relation to this form of sexual abuse A said that she was not certain if that happened more than once, as that was the only occasion she had a very clear memory of.
[21] T73.
Sixth incident
The final specific occasion A recalled in her evidence was being sexually abused by her father when she was in her own bed. She recalled this occasion happening when she was aged eight years and believed it was in the summer of 1976. She said that the incident occurred around 7.30 pm, as that was the usual time she went to bed at that age.
There was one specific time that I can recall in my own bed and I felt like - I feel like as though time had passed, so just in terms of my own age and thinking about how I felt and I was aware of sort of when I wasn't there the change in classroom situations and teachers, which is what makes me feel like it was the following year, was in my own bed my father had - my brother and I had brushed our teeth and got ready for bed. My father had gone into my brother's bedroom and tucked him into bed and I believe that this was a Saturday night, because at that stage we were staying Friday, Saturday night and I had a very well-loved black and white panda bear that I slept with and I couldn't find my panda and it had got pushed down under the covers and so I - the covers were all tucked in, so I went head-first down under the covers to retrieve the panda and while I was head-first down under the covers with my legs sticking out my dad came into the bedroom. He'd finished putting my brother to bed and I heard his footsteps and I felt quite scared because I was under the covers with my legs and bottom half of me up out of the covers and so I was in a pretty vulnerable situation and my dad made a comment about 'We'll get a pair of pliers and rip it out' and my sense was, you know, he was talking about, you know, my clitoris, my vagina, ripping something out and I clamped my legs together and my dad laughed at me and said 'Oh no, we won't do that' and then he, while I was face down under the covers, he pushed my legs apart and again sort of - I presume he bent down or knelt down on the ground and proceeded to lick my vagina while I was down under the covers. This went on for a little bit of time and then he just got up and walked out of the room. I grabbed my panda and just turned my body around and came up and, you know, and got properly the right side of the bed and just - I just remember lying there and crying myself to sleep.[22]
[22] T74-75.

A said that because of the ongoing sexual abuse she did not want to go and stay with her father as she was frightened, so she would beg her mother not to make her go. A went on to explain that there were times she would be clinging to her mother when she was required to go and stay with her father and her mother would have to ‘prise [her] off her finger by finger’.[23]
[23] T84.
A said she believed the sexual abuse ended when she was aged around nine years old. She put this down to the time her mother had purchased a house in Florence Street, Fullarton. It is an agreed fact that A’s mother purchased that house on 23 November 1976. A also said she was no longer being sexually abused by her father after his partner, JE, moved in to live with him. On the evidence given by the defendant, which I accept, JE moved in with him in the first half of 1978.[24]
[24] T196.
A said she stopped staying at her father’s house when she was around 16 years old.
Complaint evidence
A said the first person she disclosed her father’s sexual abuse to, was her friend CG (now known as CM).
A said she told CM about the sexual abuse when she was aged about 15 years. A said she was at CM’s flat when she told her of her father’s sexual abuse. She recounted the disclosure as follows:[25]
AI think I just simply said to her that, that my father was sexually abusive with me and had touched me and made me feel really uncomfortable and that I - and I think I said to her that I had wanted to tell my mother but I just had been unable to.
QDid you tell [CM] any of the specific details about how your father had done that.
ANot that I recall, just simply that it had occurred.
[25] T91-92.
A explained she disclosed the sexual abuse to CM because CM was the only young adult she had a connection to at the time, and she felt she needed to tell someone about the abuse. A said that she was unable to tell her mother of the sexual abuse and when she tried to ‘the words got stuck in [her] throat [she] just couldn’t get them out’.[26] She also knew disclosing the abuse would hurt her mother. A said she ‘had it bottled up within [her] for so long’[27] and she could see the hurt she was inflicting on her mother and brother, and so she felt she needed to tell someone about the abuse. She said that CM, who was closer to her own age, was the person she decided to tell as she felt she would listen.
[26] T92.
[27] T92.
CM said in her evidence that she was friends with and later became involved in a relationship with A’s mother. She said she moved from her home in Goodwood to a flat only about 500 metres from where A’s mother was living, so as to be closer to the family.[28]
[28] CM said she lived at this flat between about April 1981 and August 1982.
CM said on an occasion when A was about 14 years old and CM was 23 years old, she was with A on the pavement outside of A’s home when A told her that she was being sexually abused and that she was not safe during access visits with her father.
This evidence was admitted pursuant to s 34M(3) of the Evidence Act 1929 and I direct myself in accordance with subsection (4) as to the use of this evidence.
Alleged admission by the defendant to A
A said that when she was about 27 years old and living in a flat in Glenside, she invited her father over for lunch. A said that her father’s wife, J, was overseas visiting family at the time and during her absence her dog had died. A said that she and her father were discussing whether to inform J about the death of her dog.
A said that after lunch, she brought up the topic of her father’s sexual abuse of her:[29]
The conversation got around to the fact that he'd sexually abused me as a child and he - and I said, you know, what an impact it had had and he said 'I did always wonder why your first marriage broke down and why you'd never been able to hold down a relationship' and he said 'I wondered whether what I'd done to you as a child had had an impact on your life in that respect' and I said 'Hell yes, it did'. And I said to him, because of the impact on me, I said as an adult during, you know, sexual relations with any of my partners, as an adult I'd one orgasm in my life and he was sort of a bit dismissive about this and he said 'Oh, well, my wife's never had any', and I felt pretty sad for her but angry that he was quite dismissive of it and didn't see it as an issue and didn't seem to understand the implications of what that meant for human relationships.
The evidence given by A about this conversation does not amount to independent evidence that supports her evidence regarding the alleged sexual abuse as, like that evidence, it comes from herself. As such, the same criticisms which were made regarding A’s honesty and reliability, apply equally to this alleged conversation.
[29] T94.
Defendant’s evidence
The defendant gave evidence. In evaluating or assessing what he said in his evidence I have approached that task in the same way as the evidence given by the other witnesses.
The defendant is now aged 84 years. He trained as a fitter and turner later working as a technical officer in the Horticultural Division of the CSIRO for almost 40 years. He said has never been in trouble with the police.
He agreed that after he and his wife, J, separated in late 1974, he remained living in the family home, which they had built together, and that the children lived with their mother.
He said that early in the following year there had been a mutual arrangement between he and his former wife that the children could stay with him every second weekend.
He described himself as being ‘not [a] terribly affectionate father’.[30] He said that he did not kiss or hug his children and that they made their own way to bed at night. He would check on them later, but would not tuck them in.
[30] T180.
He described the usual things children do of playing in the yard and watching television. He also said they would go on trips together, including a few camping trips, and so on, again the sorts of ordinary things families with young children do.
He described a morning routine, which was practiced when he was married to his wife, of the children coming down from their bedrooms and climbing into bed with him for about 10-15 minutes, after which they got up, had breakfast and went about for the day as they did.
He denied his daughter’s assertion that he slept naked, describing the suggestion as ‘ridiculous’.[31]
[31] T181.
He said that he slept in long bottom and long top pyjamas of the sort that are depicted in the photographs,[32] describing the material as either light for summer or thicker during winter. He said he also occasionally wore short pants and short shirt pyjamas in the hotter months during summer.
[32] Exhibit D7.
His evidence about the pyjamas was supported by the evidence given by his son B and his former wife J, who were both called by the prosecution and who said that he wore pyjamas to bed.
He denied sexually abusing his daughter.
He also denied his daughter’s evidence that when she was aged 27 years, she raised with him his sexual abuse of her following a lunch at her home. While he recalled the lunch with his daughter, he denied outright that she spoke with him about being sexually abused by him when she was a child. He said such a conversation simply never happened. As he recalled the discussion between he and his daughter at that lunch, he said that as there had not been much contact between them over the years, he told A that he was upset he had not been able to spend as much time with her as a father should and, as such, he was not able to help her with her life decisions.
Good character
The defendant called evidence from two witnesses, MB and RL as to his good character and reputation. Each witness was aware of the nature of the allegations made against the defendant by his daughter.
MB has known the defendant since 2013, through their association as volunteers. He said the defendant is well-liked and appreciated by those who know him and that his reputation for honesty and diligence was faultless.
RL said she worked with the defendant from 1964 until her retirement in 1993 and has remained in contact with him since. She said he has a reputation for being a hardworking, kind and helpful man as well as a reputation for being an honest man.
The evidence of the defendant’s good character is relevant for the following purposes:
First, when assessing the credibility or truthfulness of the defendant’s evidence. A person of good character is generally considered to be less likely to lie or to give a false account of themselves when giving evidence, and as such, this is a consideration when deciding whether to accept the prosecution’s evidence. Secondly, it is evidence that can be used in determining the likelihood that the defendant committed the offence. This is because it is generally considered that a person of good character is less likely to commit a criminal offence and, in this way, is a consideration when deciding whether to accept the prosecution’s allegations that he committed the offence.
However, it is to be noted the mere fact that someone is of good character cannot alter proven facts. It is only one of the many factors that the court can take into account in determining whether it is satisfied beyond reasonable doubt of the guilt of the defendant.
Forensic disadvantage
Due to the very lengthy passage of time which has elapsed since these allegations are said to have taken place, being in the order of 45 years, the defendant is now at a significant disadvantage in challenging or responding to these very serious allegations made against him by his daughter.[33]
[33] Section 34CB of the Evidence Act.
Those disadvantages are, first, in a general sense, the obvious and real difficulty in conducting a proper cross-examination of his daughter after the passage of 45 years. That lengthy passage of time may have distorted A’s recollection of the alleged sexual abuse; or, over time she may have come to believe certain things happened when they did not. It can therefore be very difficult to test her evidence in the absence of surrounding details, which she would have remembered if the matter was reported to the police at the time.
Memories naturally fade over such a long period of time, and as such some of the detail is lacking that would have existed had the trial been held within a time more proximate to the conduct alleged. It is now very difficult for the defendant to properly test or meet what is being alleged against him in those circumstances, especially in the absence of known or undisputed facts.
Secondly, it is difficult for the defendant to recall, with precision, events during the time he is alleged to have sexually abused his daughter.
Thirdly, some witnesses are no longer available, either because they have since passed away, such as JE, or because they could not be located, such as FM and JB, who were all at one time involved in a relationship with the defendant before he married his second wife, J. Those witnesses could possibly have assisted in contradicting some of the things A said or supported the defendant’s evidence in some way.
In every criminal trial, the court is, by necessity of the serious nature of the proceedings, required to scrutinise the evidence presented to it, and that is especially so when the entire prosecution case depends upon the credibility and reliability of a single witness and there is no independent evidence in support of the allegations.
Given the significant disadvantages the defendant now faces in defending himself against these serious allegations over 45 years later, it is important that the court scrutinise A’s evidence with even greater care.[34]
[34] Ibid.
Consideration
The defendant’s counsel was critical of A’s evidence and pointed to some inconsistencies and omission of detail to submit that A was neither a credible nor reliable witness. It was also submitted that A’s evidence involved a reconstruction of what she alleges occurred, rather than a true recollection.
Some examples of inconsistencies in A’s evidence highlighted by the defendant’s counsel include A’s evidence given at the first trial when she said that her mother had purchased a house in 1979, while at this trial she said the house was purchased in 1976.[35] A explained that she had confused the purchase of the house with the purchase of a car, both being significant purchases by her mother in A’s childhood. A said that she was simply mistaken between the years of the purchase of the house and car.
[35] Indeed, it became an agreed fact in the trial that A’s mother purchased the house on 23 November 1976 – Exhibit P4.
A also agreed that in a statement she made to the police on 31 January 2020, she stated that she believed the sexual abuse may have continued beyond the age of nine years, although she believed it had ended by the time her father was involved in a relationship with JM. A said that whilst she was unsure of her age she may have been 11 or 12 years old. This was different to her evidence that the sexual abuse occurred when she was aged between seven and eight years and possibly nine years old.
A also accepted that at the first trial she failed to give evidence of her father attempting to place his penis into her vagina (the fourth incident) and mouth (the fifth incident). I consider that A provided a plausible explanation for those omissions, stating in her evidence that she was trying her best to remember and that she had simply forgot to mention those two incidents when giving evidence at the first trial as she found the experience of giving evidence ‘a little overwhelming’.[36] A also added that when she did remember those incidents at the first trial, ‘it was too late to provide them in evidence’.[37] In my view, it is not surprising given the stress involved in giving evidence and trying to recall details while under pressure, particularly as the incidents were said to have occurred some 45 years ago. Furthermore, A had clearly mentioned the two incidents in her police statement dated 15 December 2017.
[36] T121.
[37] Ibid.
A also agreed that she had not mentioned the sixth incident to the police when providing her first statement in December 2017.
The inconsistencies and omissions identified by the defendant’s counsel have not undermined my view of A’s credibility or reliability.
Nor do I accept the submission that A was prone to embellishment. Indeed, the detail she provided involving the alleged sexual abuse was significant and had there be an absence of such detail, no doubt that would have been the subject of a contrary submission.
It was also submitted by the defendant’s counsel that rather than demonstrating consistency of account, A’s complaint to CM is suggestive of A having stated she was still being sexually abused by her father at that time, contrary to her own evidence that the alleged abuse had ended by the time she was aged nine years. This was said to be based upon CM’s recollection of A having told her that she was still being abused by her father. I am not prepared to make this finding given that CM was recollecting a conversation said to have occurred 40 years ago. CM was not purporting to be recounting precisely what A had told her and it would be surprising if she did. I am satisfied that A did make a complaint of having been sexually abused by her father and that she was not telling CM that the abuse was still occurring.
During her evidence, A said that on some occasions when she was being sexually abused, her father was naked. She also said when describing one of the sexual acts she was specifically able to recall that her father was ‘either not wearing pyjamas or the pyjamas were open so that [she] could feel the skin-to-skin contact’.[38]
[38] T122.
An inconsistency in this evidence was raised during cross-examination when a passage of A’s police statement of 15 December 2017, was put to her which was read aloud as follows:[39]
I remember he always slept naked when he and Mum were together and he would still be naked when my brother and I would climb into his bed in the morning.[40]
[39] T123.
[40] Ibid.
A accepted the implications of this passage of her statement. When asked whether it was her evidence that her father always slept naked, she responded that he was naked in bed ‘the times that [she] saw him’.[41] She then went onto say her recollection was of ‘him … naked in bed’.[42] She said there was a ‘possibility that there [were] times he could have also had pyjamas on and that the skin-to-skin contact [she] felt was if the pyjamas were open’, but her recollection was ‘dominantly that he was naked in bed’ and that both her parents ‘slept naked’.[43]
[41] Ibid.
[42] Ibid.
[43] Ibid.
A's evidence that her father slept naked was inconsistent with the evidence of the defendant’s former wife, J, and that of his son, B, both of whom gave evidence that they recalled the defendant wearing pyjamas to bed.
A also gave evidence that during the period of the alleged sexual abuse, whenever she would have to attend her father’s house every second weekend, she was ‘frightened and … begged and pleaded [with her] mother to not make [her] go’.[44] She described that when she was required to go to her father’s house, she would ‘cling to her [mother] strongly’[45] and that her mother would have to ‘prise’ her off ‘finger by finger’.[46]
[44] T84.
[45] Ibid.
[46] Ibid.
In cross-examination, A said that ‘certainly when [she] was young’,[47] she felt ‘threatened’[48] and would not want to go to her father’s house. She also agreed she felt ‘uncomfortable, frightened, daunted [and] scared’,[49] with the ‘fear of being sexually assaulted by [her] father’.[50]
[47] T139.
[48] Ibid.
[49] Ibid.
[50] Ibid.
It was against this background that the defendant’s counsel submitted that this scenario was not supported by the evidence given by B, who said that he would wake early and go and ‘watch the television and watch Saturday morning cartoons’.[51] In cross-examination, B confirmed that watching television was something that he would do, explaining that he would ‘wake before anyone else and [he would] go downstairs and watch the television quietly’.[52]
[51] T163.
[52] T165.
The defendant’s counsel contrasted B’s evidence with the evidence given by A. In relation to the first occasion of sexual abuse, A had said that she woke ‘fairly early’ and went ‘down the stairs and hopped into bed’[53] with her father and that her ‘brother wasn’t awake at this stage’.[54] Another instance of alleged sexual abuse was later described in evidence, where again A said she walked into her father’s bedroom and was ‘first’ to ‘get into the bed … with [her] father’.[55]
[53] T57.
[54] T58.
[55] T69.
In cross-examination, A explained that sometimes her brother was ‘still asleep when [she] got up’.[56] She said she used to ‘wake up consistently earlier’.[57] A agreed to the suggested background that on a Saturday or Sunday morning, she ‘would get up … walk past [her] brother’s open bedroom door … walk by [herself] down into [her] dad’s bedroom and climb into bed with him by [herself] with him naked’.[58] When asked if she ‘left [her] little brother sleeping and took [herself] down to be in the situation where [she] was in constant fear of being sexually assaulted, being frightened, daunted or scared’,[59] A responded by saying that she ‘wasn’t going to wake up [her] brother’.[60] She disagreed with the suggestion that she and her brother would nearly always go into their father’s bed together, earlier stating that ‘being younger, [her brother] slept longer, so he wasn’t always climbing into bed’.[61]
[56] T135.
[57] Ibid.
[58] T139.
[59] Ibid.
[60] Ibid.
[61] T135.
I have had difficulty reconciling A’s strong reluctance to go and stay with her father, with her daily morning routine of waking, walking past her brother sleeping in his bedroom and down to her father’s bedroom and into his bed, only to be sexually abused by him.

Not only is this account inconsistent with B’s evidence, but it is also contradictory to her stated fear of going to stay with her father as she described in her own evidence.
This is also inconsistent with the photographic evidence, which depicts A appearing to enjoy a normal parental relationship with her father[62] and the e-mail that A sent to her father expressing her concern for his health and wellbeing,[63] and of her visiting him in hospital following a fall from a ladder that resulted in him fracturing his hip. I note that A provided her statement to the police only a day after the e-mail correspondence ended.[64]
[62] See Exhibit D1.
[63] Exhibit D6.
[64] The initial e-mail sent by A to the defendant and his wife, J, was dated 1 October 2017 and the last e‑mail correspondence sent by A responding to J telling her that the defendant read A’s e-mail was dated 16 October 2017 at 9.38 pm.
I have been troubled by this evidence and the earlier evidence relating to A’s assertion that her father slept naked. These matters impact upon A’s credibility and reliability.
Moreover, I have found it somewhat unusual that despite the defendant having the opportunity to sexually abuse A in her bedroom as often as he wanted, A has only alleged being sexually abused by him in her bedroom on one occasion.
The defendant gave his evidence in a simple and straightforward manner. He was not prone to exaggeration or embellishment. He remained unshaken in his evidence during cross-examination.
It is trite to observe that when deciding whether an offence has been proved beyond a reasonable doubt, that does not involve having to choose between the different versions given by the witnesses. It is certainly not a case of preferring one witness's evidence over that of another. In this sense, it is not a contest as such between the witnesses. The question to be answered in a criminal trial is always a fundamental one and remains throughout - whether, on all of the evidence, the prosecution has proved the offence charged against the defendant beyond a reasonable doubt.
Having regard to the inconsistencies in A’s evidence which undermined her credibility and reliability as identified and taking into account the defendant’s denials and good character, the forensic disadvantage he faces in defending such serious allegations that are said to have occurred 45 years ago, and noting that there is no independent support for what A has alleged, I am not satisfied beyond reasonable doubt the defendant committed any of of the sexual acts alleged by A.
Moreover, I have also found myself unable to reject the defendant’s denials and evidence as a reasonable possibility, which, in turn, means that the prosecution has failed to prove the commission of any of the sexual acts alleged by A.
Verdict
For the above reasons, I find the defendant not guilty.