R v J - [2010] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v J
Criminal Trial by Judge Alone
[2010] SADC 110
Reasons for the Verdict of His Honour Judge Lovell
23 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused is charged with one count of persistent sexual exploitation of a child.
Verdict: Accused not guilty of the charge.
Criminal Law Consolidation Act 1935 s 50(1), referred to.
R v Byerley [2010] SASCFC 3; R v J, JA (2009) 105 SASR 563, considered.

R v J
[2010] SADC 110
Background

B is the daughter of the accused. B did not live with the accused as he and B’s mother, Ms M, had separated in 2000. Access arrangements enabled the accused to see B and her brother.
B is currently 10 years of age: her brother is 12 years old. She alleges that her father sexually abused her over a number of years between the 28^th May 2004 to the 3^rd February 2008. The accused denies the allegations.
It was common ground that B had not seen her father since 3 February 2008.
The Charge
The accused is charged with one count of Persistent Sexual Exploitation of a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that the accused between the 28^th day of May 2004 and the 3^rd day of February 2008, over a period of not less than three days at Seacliff and other places, committed more than one act of sexual exploitation of B, a person between the ages of four and seven years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)     having unlawful sexual intercourse with B by inserting his fingers into                 her vagina;
(b)    indecently assaulting B by touching her vagina; and
(c)     indecently assaulting B by causing her to touch his penis.
The Law
Burden of proof
The accused has come into this Court with the presumption of innocence operating in his favour. The law regards him as innocent of the charge unless and until his guilt has been proved beyond reasonable doubt.
The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
If, after full and careful consideration I am unable to decide where the truth lies, or who is telling the truth, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict would be not guilty. Where I indicate that I am satisfied about a particular fact or event, I mean satisfied beyond reasonable doubt.
The accused does not have to prove or show anything. The accused was not obliged to give evidence but he chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I approach the task in exactly the same way as with any other witness.
Persistent sexual exploitation of a child
The elements of this offence are:
1.     The accused must be an adult.
2.     The complainant must be under the “prescribed age”. If the accused is                  in a position of authority that age is 18 years. In any other case that                 age is 17 years.
“Position of authority” is defined in the Act (s 50(8)).
3.     The accused must commit more than one act of sexual exploitation of                   the complainant over a period of not less than three days.
An act of sexual exploitation is one where, if the act was properly particularised, it could be the subject of a charge of a “sexual offence”.
A “sexual offence” is defined as:
(a)     an offence against Division II (other than sections 59 and 61) or sections 63B, 66,     69 and 72; or
(b)     an attempt to commit or an assault with intent to commit any of those offences; or
(c)     a substantially similar offence against a previous enactment.
In this particular matter, elements one and two are not in dispute. The accused was an adult at the relevant time. It was not suggested that, at the time of the offending, that the accused was in a position of authority.
The issue in question is whether the DPP have proved beyond reasonable doubt that any sexual offences occurred at all.
The sexual offences as particularised by the DPP are:
(1) Indecent assault; and
(2) Unlawful sexual intercourse.
All of these offences are offences against Division II of the Criminal Law Consolidation Act.
Indecent assault
The five elements or ingredients of indecent assault are:
1.     An application of force to the person of another;
2.     The application of force must be deliberate or intentional;
3.     The application of force must be unlawful; that is, without lawful                 justification or excuse;
4.     The application of force must be without the consent of that other                person; and
5.     The application of force must be accompanied by circumstances of              indecency.
Unlawful sexual intercourse
The offence of unlawful sexual intercourse is committed when a person has sexual intercourse with a person under the age of 14 years.
The definition of unlawful sexual intercourse can be broken down into two ingredients:
1. There must be an intentional act of sexual intercourse.
2. The person with whom the accused had sexual intercourse with was under the age of 14 at the time of the sexual intercourse.
In relation to the offence of unlawful sexual intercourse, the state of mind of the complainant in this case is irrelevant.
It is not a defence to a charge of unlawful sexual intercourse if the complainant consented to the sexual intercourse.
Preliminary matters
The prosecution proposed to lead the evidence of the complainant utilising s 34CA of the Evidence Act. The complainant fell within the definition of a “protected witness” for the purpose of this section.
The complainant had made two statements at the Christies Beach Police Station and those interviews had been recorded on video tape. Thus the prosecution was relying, in part, on the out of court statements of the complainant.
Section 34CA(1)(b)(ii) had to be applied and satisfied before the evidence of the out of court statements could be admitted.[1] There are three “conditions precedent” which must be fulfilled before the statement may be admitted;
(1)    The court must be satisfied that the statement has sufficient probative                   value to justify its admission (s 34CA(1)(a));
(2)    The protected witness must have been called, or be available to be               called, as a witness in the proceedings (s 34CA(1)(b)(i));
(3)    The court must give permission for the protected witness to be cross            examined on matters arising from the evidence.[2]
[1] R v Byerley [2010] SASCFC 3.
[2] R v J, JA (2009) 105 SASR 563.
Ms Powell, counsel for the prosecution, informed the court that B was available and would be called to give evidence.
Ms Molloy, counsel for the accused, conceded, correctly in my view, that the statements had sufficient probative value to justify their admission. She outlined topics she proposed to seek permission to cross examine and I was satisfied that, in principle, the topics of cross examination were “likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence”.[3]
[3] s 34 CA(2).
I satisfied myself that the complainant, despite her age, was capable of giving sworn evidence. I heard evidence from the two interviewing police officers as to the circumstances in which the two statements were made.
Taking into account all those matters and there being no objection raised by the accused I admitted the two statements.[4] Section 34CA(4) allows the court to use the statement of facts asserted in the statement as proof of the truth of that asserted.
[4] Exhibit P1 and Exhibit P3.
B gave evidence on oath and when giving evidence-in-chief elaborated on her earlier out of court statements.[5] She was cross examined by Ms Molloy in line with the topics indicated.
[5] R v J, JA ibid at [62].
Evidence was also led from B, Ms M, her mother and Ms Pengilly, her teacher in accordance with s 34M of the Evidence Act, namely evidence of the initial complaint.
I remind myself that evidence of the initial complaint is admitted to inform me as to how the allegations first came to light and as evidence of the consistency of the conduct of B. It is not admitted as evidence of the truth of what B alleged.
Evidence of the complainant
B is now 10 years of age having been born on 28 May 2000. She gave evidence by means of closed-circuit television and gave her evidence on oath. This evidence was in addition to the tendered taped interviews. She has one brother, K, who is 12 years of age. She is in Year four at school.
B stated that she had not lived with her father but that she used to visit him. She would stay with her father at “Nanna's place”. Later evidence confirmed that this house was at Seacliff. A plan of the layout of this house was tendered[6] as was a bundle of photographs.[7]
[6] Exhibit P5.
[7] Exhibit P6.
B stated that she was in court as daddy had “touched her on the private parts”.
B gave evidence that the accused had touched her on the private part whilst in the back bedroom at Nanna's house. This was the area of the house she and her brother stayed in whilst on access visits. K was in the lounge room at the time watching a DVD. B said that when she got home that day she told her mum what had happened. By inference this act must have occurred around 3 February 2008. By using a box of tissues as a prop, B demonstrated how the touching occurred. She said the touching was on both the inside and outside of her “private part”.[8] She held the box of tissues up with the opening of the tissue box facing towards counsel, placed her fingers into the opening of the tissue box and moved her index finger and middle finger up and down.[9] She said he (the accused) had done that before this occasion but could not give any more details.
[8] T 35.
[9] T 36.
On this particular weekend B agreed, under cross examination, that she had gone to the Marion Swimming Pool with the accused, her brother K and cousins Tamika and Michael. Her Nanna was also there.[10]
[10] T 73.
B agreed that on this day she had become angry with her father as he wouldn’t let her “do anything”. She had wanted to go to the beach and a ride on a scooter. Both requests had been refused. B agreed that she had said to the accused that she wanted to ring her mummy and tell her that “daddy was being mean to her”.[11] She did ring her mother and she and K went home that afternoon to her mother’s place. This was earlier than had been planned.
[11] T 74.
B described a second incident. She said that the accused touched her whilst she was on the lounge at Nanna’s place. He touched her on the top of the clothes. She did not know where K was at the time but Nanna was “at the pokies”.[12] This was a different occasion to the one around 3 February 2008. There were other times where she was touched by the accused in the lounge room but she was unable to remember them.[13]
[12] T 37.
[13] T 38.
A third incident described by B allegedly occurred at Whyalla at the accused’s flat. He was living in Whyalla at that stage. B stated that the accused touched her on the outside of the “private part” whilst they were on his bed.[14] Again B demonstrated the act by using a box of tissues as a prop.[15] B said that the accused told her “not to tell anyone otherwise he’ll get into trouble.”
[14] T 39.
[15] T 39.
B described a fourth incident allegedly occurring on a plane flight from Whyalla. This was at the end of an access visit. She said she was seated by the window and the accused was seated next to her. K was sitting across the aisle on a single seat. B alleged that the accused touched her on the top of the clothes on the private part. Again she demonstrated the motion by using a tissue box as a prop.[16] When she was recalled to give further evidence about that incident she said it occurred on the return flight from Whyalla on the first visit there. This evidence was contradicted by her mother and also the accused.
[16] T 40.
A fifth incident allegedly occurred in the van of the accused. On an occasion when K was asked to go into a shop by himself B alleged that the accused touched her “on the private part”. B used the tissue box to demonstrate the motion.[17] She said that he touched her other times whilst they were in the car but it "only happened a couple of times".[18] This incident was alleged to have occurred on the same weekend when the accused touched her when they were in the back bedroom. However she said that this was not the final weekend after which she did not see her father any more.[19]
[17] T 42.
[18] T 42, T 73.
[19] T 43.
The accused has a stepsister S. She has three children Lee, Luke and Laquisha. B gave evidence that they would go to visit S on some weekends. She alleged that on one occasion the accused touched her on the private parts whilst they were at S's place. The touching occurred in S’s bedroom. The accused touched her on the inside of her clothing. Again she demonstrated how she was touched using the tissue box.[20] S was out with her boyfriend and Laquisha, Lee was in his bedroom and Luke and K were in the lounge room playing a game called Yu-Gi-Oh. On this occasion she thought the accused was wearing jeans and a T-shirt. This was the sixth incident described by B. B’s evidence was contradicted by S when she gave evidence.
[20] T 46.
The seventh incident described by B allegedly occurred at the Whyalla flat of the accused. She said she was in his bedroom and K was in the lounge room watching a movie. Her clothes were partly off and the accused told her to squeeze his “willy” with her hand. She did that until he said stop. B was unable to remember what his “willy” felt like.[21] This occurred on other occasions but she was unable to recall any further details.
[21] T 49.
B described a similar incident occurring at S’s place. This was the eighth incident she mentioned. She thought it might have been a different day to that described in the sixth incident.[22] B could remember that K and Luke were out the front on their bikes. B said that S was never at home when she was touched by the accused.[23] She said that when they went to “Aunty S’s” place they always stayed over and slept in S’s bed.[24] B did not know where Aunty S slept as she would go out with her boyfriend and Laquisha and not come back until the next morning.[25]
[22] T 50.
[23] T 62, T 66.
[24] T 66.
[25] T 66, T 80.
A similar incident allegedly occurred at “Nanna’s” house. This was the ninth incident she mentioned. It allegedly occurred in the back bedroom. K was in the lounge room watching a DVD called “Burn Notice”. B alleged that the accused told her to squeeze his “willy”. The accused had pulled her pants down to her knees. She said that on other occasions the accused would pull her pants down to her ankles or take them off completely.
B said that sometimes the accused touched her and got her to touch him at the same time but she could not remember the details. That had not occurred on any of the incidents she had already mentioned.[26]
[26] T 51.
B said that Nanna was sometimes home when the accused touched her but was often at the “pokies”.[27]
[27] T 62.
B also gave evidence of other matters. She said that the accused played the “happy and sad” game. She alleged that he would “open my private bit and make names for it”.[28] If it was a happy face he would open her private bit and if it was sad he would close it. She again demonstrated using the tissue box as a prop. She knew that he used other words as well but was now unable to remember them. When cross examined B agreed that this game was also played using the cheeks of the accused’s face.[29]
[28] T 52.
[29] T 76.
B also gave evidence of watching “adult” movies with the accused. This occurred in the accused’s room at her Nanna's place. She thought that K at the time was on the top bunk watching a DVD on his laptop computer. He was using ear phones.[30] She thought she had seen three movies and that they had been watched on different nights.[31] Her oral evidence was consistent with what she said in her recorded interview of 23 February 2008.[32]
[30] T 61.
[31] T 44.
[32] Exhibit P1.
When cross examined B agreed that, when she was little, she suffered from nappy rash. She was in “night nappies” until she was about seven years of age. B agreed that both her mother and the accused had to put cream on the rash wherever it was. Sometimes that was on her “private parts”.[33] When she got a bit older she applied the cream herself.
[33] T 78.
B also agreed that on an unidentified occasion the accused had told her “no one is allowed to touch you in the private parts except for mummy or a doctor if mummy is there.” She agreed that she had asked “And Daddy” to which the accused had replied “no, daddies aren’t allowed to touch you there”.[34]
[34] T 75.
The accused gave evidence confirming that this incident had taken place.
B also gave evidence that she had seen Nanna watching an adult movie in her bedroom. She gave some evidence of what she had seen.
Other prosecution witnesses
The prosecution called the two female police officers who had conducted the interviews with the complainant. I accept their evidence.
Mrs M, the complainant’s mother also gave evidence. Her evidence was largely uncontroversial. She confirmed that B was born on 28 May 2000. At that time she and the accused had ended their relationship.
After B was born access arrangements were eventually agreed. They varied to some extent dependant upon the accused’s employment. When B was about four years of age the accused had both the children stay with him from time to time. Mrs M knew that the accused spent, at times, his access visits at his mother’s place at Seacliff. She thought about 50 percent of the access visits were at his sister S’s place. Some access visits occurred at Whyalla.
Ms M became aware of the allegations of sexual abuse on 3 February 2008. She described how B and her brother went to stay with the accused on the Friday and came home on the Saturday. It was an impromptu arrangement, as the accused was supposed to be going away to work but that arrangement changed and so he had rung up and asked if he could have the children for an extra night.[35]
[35] T 90.
B had rung on the Saturday asking to stay for an extra night and Ms M had agreed. However B rang a few hours later wanting to come home “saying that dad was being mean to her”.[36]
[36] T 90.
The children arrived home about 7 pm and B asked Ms M if her partner and his daughter could come and stay the night.
The next morning B got into bed with Ms M and made a disclosure about the sexual abuse by her father. Ms M then rang the sexual abuse hotline.
Later B made allegations of watching adult movies with her father.[37] She also told her mother about the happy/sad game.[38]
[37] T 91, T 93.
[38] T 95.

Ms M confirmed that B had a problem with nappy rash. In relation to plane trips to Whyalla, she confirmed that she flew with them the first time they travelled to Whyalla and that they were fine and “they flew back from that trip on their own.”[39] This contradicted B who had said that the accused flew back with them on this first occasion and it was on that occasion that the accused had “touched her”.
[39] T 100.
Ms M recalled an incident when the accused had told her that B had complained to him that her grandfather had touched her.[40] This had occurred before 2008. The accused, when he gave evidence, said that it was Ms M who had mentioned the incident to him.[41]
[40] T 102.
[41] T 120.
Ms Pengilly, B’s teacher at the time, also gave evidence. On the Monday morning, after the weekend of 3 February 2008, B had written in her journal that she was upset “because she couldn’t see her dad at the moment because he had been touching her”.[42] Ms Pengilly had spoken to her about that and B had told her that her father had been touching her “in the private parts”. He had also shown her rude movies.
[42] T 103.
Ms Pengilly had a “student record book” in which she had written down what B had told her. B had also written her some notes. She did not keep the book or notes as she reported what she knew to the relevant authority and was then, understandably, worried about other people accidentally seeing the book or notes which she considered private.
All of the witnesses called by the prosecution in addition to B were honest and reliable witnesses. I generally accept their evidence.
Defence case
The accused
The accused gave evidence. He acknowledged, in general, the access arrangements. He disagreed with Ms M’s evidence about the number of times he visited S’s place with the children; he said it didn’t occur all that often. That was consistent with B’s own evidence and also S who gave evidence. I find that the evidence given by Mrs M about that was incorrect.
The accused confirmed that most of the access visits were spent at his mother’s house at Seacliff. He said that many people spent time at the house as he has lots of relatives. The accused confirmed that he may have slept over at S’s house with the children but he never slept in S’s bed. She always kept the door to her bedroom locked.
The children were always happy when they were with him. He confirmed that B suffered badly from nappy rash but generally the children were healthy.
The accused agreed that B would play a happy/sad game but she would instigate it and it would be with his face and in particular his cheeks. He denied any game involving B’s genitalia. He denied showing B any “adult” movies. He said that the only time he had an adult movie was when he had found one on a ship he was working on. He had brought the DVD home for about two weeks and left it on a cupboard in his room at Seacliff. At one stage he discovered that B had put the movie on the DVD player and he told her off about that.
As to the events of the last weekend that he saw B, the accused stated that it was a hot Saturday and he had taken the children to the Marion Public Pool where they had spent some time swimming. His mother was with them as were some other children. As they were leaving B wanted to go to “Tamika’s house”. The accused said no. When they got home B wanted to go to the beach and then a “scooter ride”. The accused did not allow those activities. B got cross and said she was going to “ring mum”. The accused gave her the phone and she rang her mum and said she wanted to go back to her place.
The children were taken back to Ms M’s house and the accused has not had access to or seen them since.
The accused denied touching his daughter sexually in any way.
In general terms he agreed under cross examination that he could not deny that he had the “opportunity” to sexually abuse his daughter but he strongly denied any such abuse had taken place.
The accused confirmed that there was a time that his son K had been allowed to go into the shop by himself but denied anything had happened whilst K was absent.
Other defence witnesses
S, the stepsister of the accused, gave evidence. She confirmed that the accused used to bring his children over to see her and that they slept over a couple of times.[43] They always slept in the lounge room on a mattress. S said that on the nights that they slept over she did not go out.
[43] T 141.
S remembered the night her son, Luke, had a twelfth birthday. She said that B and the accused did not stay at the house on that evening. That contradicted the evidence of B.
S said that she kept her bedroom locked and that once she had caught B and her brother in the bedroom when she had left in a hurry and had forgotten to lock it. She had “told them off” for snooping.
I generally accept the evidence of S.
Ms D the mother of the accused also gave evidence. She owned the house at Seacliff and confirmed that the accused slept there and also had access visits with the children at those premises. She described her son as a good father, caring and protective.[44] She also confirmed that she would often go out and “play the pokies”.
[44] T 150.
Ms D gave evidence of the weekend of 3 February 2008. It did not differ in any substantial way from what the accused and B had already said. She confirmed that B had got very cross with the accused that afternoon.
Ms D denied watching any “adult” movie and denied having a television in her room. This latter aspect contradicted the evidence of B.
I accept her evidence although generally it only confirmed what was common ground.
Discussion
B was a good and confident witness. Her evidence-in-chief was consistent with her recorded interviews. If I accept her evidence beyond reasonable doubt then the offences of unlawful sexual intercourse and indecent assault would be made out. The acts would have occurred over a period of not less than three days.
As mentioned I accept the evidence of the other prosecution witnesses.
The accused was not such an impressive witness. Whilst he strongly denied any offending his explanation for his possession of the “adult” DVD was not an explanation I could readily accept. However it was not a totally implausible explanation, but it made me view his evidence with caution.
The defence relied on a number of matters which it was submitted raised at least a reasonable doubt about the evidence of B.
S’s evidence
It was submitted that the evidence of S contradicted the evidence of B in two major respects.
First, on the occasions that B did sleep over at her house she did not go out as B suggested.
Secondly, B could not have slept with the accused in her bed as B alleged, if S’s evidence were to be accepted,
I have already stated that I accept the evidence of S generally about those matters. Whilst it is possible that her bedroom door was not locked as often as she had thought, I accept her evidence that she did not go out for the night when the accused and his children came to stay. B must be wrong about those aspects of her evidence, namely that anything occurred in S’s bedroom and that S was out of the house on those evenings.
When B gave her evidence about those incidents she was very confident in her answers.
Ms M’s evidence
The accused gave evidence that he did not fly on the plane from Whyalla with B and her brother.
Ms M was never asked that direct question. However she did give evidence that on the first access visit the children returned from Whyalla by plane alone. This contradicts the evidence of B.
Ms D’s evidence
Ms D gave evidence that she did not have a television set in her room. Whilst it was not suggested by the prosecution that Ms D had put “on” an adult movie it may well be that a programme containing adult content may well have been on the television when B walked in. However I accept Ms D’s evidence that such an incident could not have occurred in her bedroom.
Other matters
It was also submitted that the evidence about the conversation the accused had with B about who was allowed to touch her “private parts” was inconsistent with abuse occurring. It was common ground that the accused told her that “daddy was not allowed to touch her there”.
It is hard for the prosecution to explain this part of the evidence. The fact that B asked the accused if daddy is allowed to touch her in the private parts, as Ms Powell submitted, may not be inconsistent with abuse having occurred. However it is the response of the accused, if abuse was occurring, that is unusual. It is not easy to explain why he would tell her that “daddy is not allowed to touch you there” or words to that effect if he was indeed doing just that. It was common ground that he gave that response.
Conclusion
As mentioned B was in my view a good witness. For a child of her age she gave evidence in a confident and generally impressive way. However there are some puzzling aspects of her evidence as mentioned above. On some aspects she was wrong.
Due allowance must be made for the age of B when considering the question of alleged inconsistencies and difficulties with her evidence. I remind myself that I can accept part of a witness’s evidence and reject other parts. For the prosecution to succeed on this charge it would not be necessary to prove each specified act (eg the act on the plane) beyond a reasonable doubt. It would only be necessary for the prosecution to establish that the accused committed more than one act of sexual exploitation of the complainant over a period of not less than three days. The issue that faces me is whether, given that B has been shown to be incorrect about some matters, and given there are some puzzling aspects to her evidence, I am able to be satisfied beyond a reasonable doubt that she is a truthful and reliable witness about the other aspects of her evidence.
Generally, as mentioned I accept the evidence given by the witnesses called on behalf of the accused. Thus B’s evidence, at least in some respects, cannot be correct.
The accused also gave evidence denying the offence. I did not find him to be as reliable a witness as B but that does not mean I could reject his evidence out-right. There was no reason to totally reject or disbelieve his account.
Overall I am in the position where, as the trier of fact, I am not satisfied that the prosecution has proved its case beyond reasonable doubt.
In those circumstances the accused is entitled to the benefit of the doubt and I therefore find the accused not guilty of the charge.
The verdict should not be taken by the complainant as a rejection of her account.