R v J, P J - [2014] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v J, P J
Criminal Trial by Judge Alone
[2014] SADC 22
Judgment of His Honour Judge Boylan
3 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of aggravated indecent assault. Trial by judge alone - charge not made out by prosecution.
Verdict: Not guilty
Evidence Act 1929 s 34CA, referred to.

R v J, P J
[2014] SADC 22
VERDICT

J, P J is charged with one count of aggravated indecent assault. He elected for trial by judge alone. I heard the trial and now give my reasons for finding him not guilty.
Overview and prosecution case
On Saturday night 11 August 2012, M, the complainant, who was then nearly eight years old went with her mother to a family barbecue which was held at the house of the accused’s brother, D. Towards midnight, as the party was breaking up, M was sitting on the floor in the kitchen. The accused sat down next to her and began rubbing her stomach before putting his hand inside her underpants and rubbing her outer vaginal area. He stopped when M heard her mother coming towards the kitchen. Shortly afterwards M’s mother, ‘R’, drove M home. M first complained three months later. Two days after complaining to her mother and aunt, M was interviewed by a police officer. The interview was recorded on film and a transcript of what was said was made.
Pre-trial matters
Before the trial proper began, counsel for the Director asked me to admit the interview pursuant to s.34CA of the Evidence Act. Mr Redford, counsel for the accused, opposed that application and submitted that I should receive the evidence of an expert psychologist about the allegedly flawed process which the interviewing officer had followed. I received the evidence of the witness, Professor Ian Coyle de bene esse, but refused to admit it. I gave brief reasons at the time.
Next, I had to determine whether or not M should be permitted to give evidence on oath, as the prosecution proposed calling her. I determined that she did not understand the obligation entailed in taking an oath but that she clearly understood the difference between lying and telling the truth. I ruled that she could give unsworn evidence and that I would admit the out-of-court statement.
The view
I viewed the premises where the offence is alleged to have occurred. The house is not large. At the back, there is a veranda, where the barbecue was held. The kitchen window looks onto the veranda area but, from the outside, the window is so high that only a very tall person could look in. The kitchen itself is extremely small. On the side of the kitchen opposite the window there is a small breakfast bar and to one side of that breakfast bar, a refrigerator. The breakfast bar divides the kitchen from a dining and living area. At the refrigerator end of the breakfast bar is a doorway into a laundry which, in turn, has a doorway opening into the veranda area. Standing at the end of the kitchen area away from the refrigerator, one can look straight up a short passage to one of the bedrooms in the house, the bedroom which was being used by K. On the dining room side, the breakfast bar is about chest high.
Some undisputed matters
For some time before August 2012, R and the accused’s brother, D had been living together. They lived at the house with M and, when they were not with their own mother, with D’s two young children. The accused and his wife were regular visitors at the house and the accused was well liked by M and D’s children.
Some months before the night in question, R and D’s relationship had begun to break down. R moved out of the house to another house in a nearby suburb where she lived with M and with M’s aunt. But R and D continued to see each other on occasions and R continued to attend celebrations with D’s family.
By August 2012, D was living in the house as was K, an old friend of D’s who was a boarder there. On the weekend of 11 and 12 August D’s young children were staying there.
The barbecue began at about seven o’clock and the last guests left at about midnight. During the evening the adults present were drinking alcohol.
The evidence
M went to the barbecue with her mother. She denied that they took their dog with them. M gave a general description of the night’s events and went on to say that, some time after the other children had been put to bed, her mother went to the doorway of K’s bedroom and began to speak with K. K was upset about something and M’s mother wanted to have a private conversation with her. Accordingly, M went to the kitchen where she sat on the floor on the side of the kitchen under the window. The refrigerator was on the opposite side of the kitchen and to M’s left. From that position, she could see her mother in the doorway to K’s bedroom at the end of the short passage way. Her mother had her back to M. While M was sitting in that position, the accused sat next to her on her left. He started rubbing her stomach and, as he did so he said, apparently referring to M’s mother, “she’ll be out soon”. He then put his hand inside M’s tights and knickers and began rubbing her vaginal area. As he did so M said that she told him to “stop” five times. The accused eventually stopped when M could hear her mother walking along the passageway towards the kitchen. After her mother came into the kitchen M and she left the house. M said that they were driven home in a car driven by the accused’s wife in which the accused was a front seat passenger and she and her mother back-seat passengers. In cross-examination, after being pressed on the issue, M conceded that her mother may have driven her home in her mother’s car.
R’s evidence generally accorded with M’s. R denied that she had had so much to drink that she was not fit to drive home. She, too, denied that she and M had taken their dog to the barbecue. R insisted that she had a conversation with K in K’s bedroom at the end of the night shortly before she and M left to go home. R agreed with all of the witnesses for the defence that she drove home in her own car with M but that, in doing so, she followed a car driven by the accused’s wife in which the accused was a passenger.
M first complained to her mother some three months later, on 3 November 2012. R was at her desk in her house when M’s aunt came in and there was some conversation between them which included mention of the accused’s name. Hearing his name mentioned, M said “Oh, I don’t like J”. When R asked M why she did not like J, M said that it was “too rude to say” and said she would write it down. M then wrote something on a piece of paper which she handed to her mother, it read:
First he was rubbing my tummy that isn’t the bad part.
Then he put his hand down my pants and put his hand in my knickers and rubbed my privates.
At the foot of the writing, M drew what is usually called a “sad face”. R reported the matter to the police on the following Monday, the day on which M was interviewed.
I pause here to note that I draw no inference adverse to M because she did not complain for some time.
M’s aunt gave evidence only about the occasion of the complaint. Her evidence was slightly different from R. M’s aunt’s evidence was that M said that she did not like J and was then asked why she did not like him. M said that she did not want to say and M’s mother then handed her a piece of paper and a pen and asked her to write down the reason why she did not like J.
The defence witnesses
The accused gave evidence. He denied that he had touched M in any way at all. He called his wife, D, K and two of his friends who are brothers. The brothers gave evidence that M had been present on occasions when the accused had also been present between the date of the barbecue in August and the time at which M complained to her mother. On no occasion did either of the brothers notice anything untoward in M’s general behaviour when in the accused’s presence.
The accused and those of his witnesses who were present at the barbecue gave varying accounts of the night’s activities. There is nothing surprising about that. During the night, everybody was drinking. The accused’s evidence was that had had about five standard drinks, scotch and lemonade. D said that he was drinking beer and, while not drinking heavily, he was “not exactly too sober”. The evidence of the accused’s wife was that she had only one drink. The defence witnesses gave evidence that, in their view, R was so intoxicated that she was unfit to drive. They all said that they tried to persuade her not to drive home but she insisted on doing so. There was also evidence from defence witnesses that R and M had taken their dog to the barbecue with them.
K’s evidence on one topic is very important. K had received some very upsetting news concerning her daughter earlier on Saturday 11 August 2012. K arrived back at the house at about 6.30 pm and wanted to be alone. R arrived with M at about 7.00 pm. Shortly thereafter, K and R had a conversation which began in K’s bedroom but moved quickly to an area outside where K could smoke. K denied that she had any conversation with R in K’s bedroom shortly before R and M left the house. Other defence witnesses agreed with K’s evidence on that topic.
K’s evidence about the times and places of her conversations with R make the evidence about the presence of the dog important. The accused’s brother gave evidence that R brought her dog to the house but that it was terrorising K’s cat. Accordingly, the cat was put into K’s bedroom and secured there throughout the evening. The effect of the evidence about the cat is that K’s bedroom door would have been closed for nearly all of the time during the barbecue.
Directions
I have directed myself that the accused is presumed innocent unless and until the prosecution has proved each element of the offence charged beyond reasonable doubt. He does not have to say, do or prove anything. Even my rejection of the accused’s evidence and that of his witnesses is not a basis for finding him guilty. The onus remains always upon the prosecution.
The prosecution case rests, of course, upon the evidence of M. Before I could convict the accused, I would have to be satisfied that M was a credible, accurate and reliable witness. I cannot be so satisfied. There are aspects of her evidence which cause me much unease. Some of the matters are peripheral. For example, M was at first adamant that the accused’s wife had driven her and her mother home. She must have been wrong about that. More importantly, she changed her evidence about her position on the kitchen floor. Initially, she said that she was sitting in a position from which she could see her mother in the doorway of K’s bedroom. I find it implausible, even if the accused had had a significant amount to drink, that he would risk touching M as he is alleged to have done when her mother was in plain sight of M. When M was pressed in cross-examination about her position on the kitchen floor, she said that, at some stage before the alleged touching began, she had moved further to her left. She gave no reason for having done so. That, in my view, is a significant change in her evidence. It troubles me. Further, the evidence of the defence witnesses about the timing of the conversation between R and K is at odds with M’s.
I have no reason to think that M has lied to me but the standard of proof is a very high one. Even at the time of her complaint, M was giving an account of events that had happened three months earlier. She was a young girl who had stayed up late into the night and must have been very tired.
In the end, having considered all of the evidence, I am not satisfied beyond reasonable doubt that the charge has been made out and I enter a verdict of “not guilty”.