R v K, NW
[2013] SADC 136
•16 October 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K, NW
Criminal Trial by Judge Alone
[2013] SADC 136
Reasons for the Verdicts of His Honour Judge David Smith
16 October 2013
CRIMINAL LAW
Accused charged with two counts of unlawful sexual intercourse with a child aged between eight and nine years - offences alleged to have been committed between November 1978 and November 1980 - complaint made to mother in 1986 - allegations not reported to Police until 2010.
Consideration of onus of proof, complaint evidence and the forensic disadvantage suffered by the accused by reason of the late emergence of the complaint.
Consideration also of whether a previous inconsistent statement of the complainant, proved in evidence by the Defence, for the purposes of impugning credibility of her sworn testimony, can also be relied upon by the Prosecution to bolster it.
Consideration of jurisdiction of the District Court and Youth Court where there is a contention by the accused that at the time of the alleged offending he was a youth.
Verdicts: Accused guilty of both Counts.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Evidence Act 1929 (SA) ss 28,29, s 34CB(2), s 34M; Young Offenders Act 1993 (SA) ss 6,16,17,17A; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5, referred to.
Douglass v R (2012) 290 ALR 699; Palmer v The Queen (1998) 193 CLR 1; R v Abdulla (2010) 200 A Crim R 365; Driscoll v The Queen (1977) 137 CLR 517; Urbano v R (1983) 9 A Crim R 170; R v England [2013] SASCFC 79; R v Titijewski (1970) VR 371; Sarret v Police [2012] SASC 37; Hargraves v The Queen (2011) 85 ALJR 1254; R v Fraser (1995) 65 SASR 260; R v Karapanzk [2008] SASC 126; R v Connolly (No 2) [1991] 2 Qd R 171, considered.
R v K, NW
[2013] SADC 136Introduction
The Accused is charged on Information with:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
NWK between the 14th day of November 1978 and the 13th day of November 1980 at ……… had sexual intercourse with CLK, a person of the age of eight or nine years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
NWK between the 14th day of November 1978 and the 13th day of November 1980 at ………. had sexual intercourse with CLK, a person of the age of eight or nine years, by causing her to perform an act of fellatio on him.
In the text which follows:
-NWK is the Accused and uncle of the Complainant
-CWK is the Co-Accused who is being dealt with in the Youth Court and is the cousin of the Accused
-CLK is the Complainant
-MYK is the Complainant’s mother
-CK is the Complainant’s deceased father
-RK is the Complainant’s deceased brother
-RMK is the Complainant’s sister
-R is the Complainant’s sister
The Accused NWK pleaded not guilty and elected for trial by Judge without a Jury.
The Prosecution case is that the Accused who is the Complainant’s uncle, committed the offences with his cousin CWK. They are alleged to have lured the eight or nine year old Complainant CLK, to a place behind a shed in her home where, in return for a promise of lollies, each of them had penile sexual intercourse with her and caused her to perform fellatio on them.
As can be seen the offences are alleged to have been committed between 14 November 1978 and 13 November 1980. CLK did not report the matter to the Police until as recently as 2010. Accordingly in excess of 30 years have elapsed since these crimes are alleged to have occurred.
The Accused NWK was born on 12 January 1960 (see Exhibit P5, 217) and so, was between the ages of 18 years and 10 months and 20 years and 10 months, in the span of time in which the offences are alleged to have been committed. Apparently, because of the potential that CWK was a youth, at the time of the alleged offending, he was charged in the Youth Court. On 18 January 2013, the Prosecution applied to that Court to have him committed to the District Court to be tried jointly with the Accused. The application was refused, despite the obvious wisdom of avoiding two trials and the other mischiefs which might result, such as conflicting outcomes. So, CWK, who is now over 50 years old, is to be separately tried in the Youth Court in the coming months, for alleged offences against the now 43 year old Complainant.
The Defence case is that no such offending occurred and that the allegations are a fabrication.
Evidence
I turn to the evidence.
The Prosecution called evidence from:
·CLK – Complainant
·RMK – Complainant’s sister
·Senior Constable Lisa Jane Winslade
The Complainant’s mother, MYK was presented for cross-examination by the Prosecution on the basis that the Prosecution did not regard her as a reliable witness (148, 257).
Further, in the Prosecution case, I received agreed evidence including three declarations, portion of a psychologist’s report, and there were a number of facts agreed.
Background Circumstances
The following background circumstances are uncontentious and so constitute concluded findings.
The Complainant was born to MYK and the late CK (11) on 14 November 1970 at a south eastern country hospital (Exhibit P6 (11)). Until about the age of 13, when the family moved to the Riverland, she grew up in a south eastern country town with her parents and four of her siblings (11-12, 71). She was ‘the second youngest’ (11). She and her siblings attended the local area school (16).
At the time of this alleged offending, the Complainant knew the Accused. He is her uncle - the brother of her late father (10). She referred to him throughout her evidence by his first given name ‘N’. He and other relatives of the Complainant’s family then lived in the surrounding area (16). In particular, the Accused lived with his father and his brother on the Coorong which is some distance out from the Complainant’s home (17, 68-69). He visited the Complainant’s home – she said ‘… quite often …’ (17), and the Accused said ‘… sometimes …’ (214-15). At the time of the alleged offending the Complainant also knew CWK. He is a cousin of her late father and is about the same age as the Accused. She knew him then as ‘B’ (17-18). He also visited the Complainant’s family home (18). He later became a minister of a church in the said town, which was frequented by the Complainant and her family (18).
I now turn to the more contentious evidence as to the alleged offending and start with the Prosecution evidence.
Prosecution Evidence
The Complainant said that, though both the Accused and CWK were visitors to her home, there was only one occasion when they visited together (18), and that was when they committed the offences the subject of the charges. She said she was then eight or nine years old (19). She fixed the time by reference to her height against the kitchen sink, and also to the time when building works at her school were carried out. She said, that was when she was eight or nine years old, in years four or five because she then remembered ‘… transferring into the new building of the school …’ (40-41, 88-90, 122).
The Complainant’s evidence of what then happened was as follows:
·she was playing on the swings in the backyard of the home when the Accused approached and asked ‘… do you want some lollies …’ (20). She replied ‘Yes’ (20). The Accused then asked her to come over behind the shed. She did so. CWK was present behind the shed (20, 21);
·the Accused lay on the grass ‘… unzipped his pants, his zip and button …’ (21), pulled out his penis, took her knickers off, placed her astride him facing him and, with a firm grip on her waist, put his penis in her vagina moving up and down and side to side (21-22);
·the Accused then removed her, and with both himself and her standing (24), placed his penis in her mouth, and holding his hand at the back of her head (24), moved it around several times (22-24) during which time he said ‘… finish it off …’ (24);
·the Accused then ‘… moved her over to CWK (22), who also had his button and zip undone with his penis out and CWK did the same, namely, with her astride and facing him, he put his penis into her vagina and ‘… did more or less the same movement …’ (22);
·then in response to the Accused saying ‘… do to him what you did to me …’ (22), CWK placed his penis in her mouth and ‘… just moved it around …’ (22);
·when CWK stopped, the Accused with his hands wiped from her legs, what she now knew to be, seminal fluid, which had been ‘coming down …’ her legs (22);
·in the course of these encounters, with both the Accused and CWK, she noticed that the exposed penises of both were erect but that CWK’s was ‘crooked’ (23-24). She said that in each instance there was penetration of her vagina (51). She said she felt pressure and force and agreed that it hurt (51);
·at the end of the encounters she asked about the promised lollies and in response the Accused seemed to become angry (22); and
·the Accused and CWK left the property via the driveway (23).
The Complainant said that she then went inside the house. Her mother and her late brother RK were in the kitchen. Upon asking her mother for a drink of water her mother said ‘… have you finished sucking those fellas’ cocks …’? (26). She said that at the time she had no idea what her mother was talking about, (45, 126), and ‘… didn’t know what was happening at the time …’ (50).
The Complainant said that she did not then complain to anyone about what had happened (26-28).
At the time of the alleged offending the Complainant said she was unsure about what to do and felt intimidated by the Accused’s apparent anger and change of body language as he left the backyard (26-27, 90, 125). She said that shortly after the events behind the shed, when the Accused was again at the house, he threatened her by saying privately to her that if she said anything about what had happened it would cause an argument between her parents, which would result in her father leaving home, so that she would be unprotected and liable to be killed by him (28, 92-93). She recounted an occasion when he, whilst warning her ‘… to keep her mouth shut … ’, pushed her up against the house grabbing her by the throat whilst doing so (92-94, 96-97). She added there were other occasions at her home when the Accused would demonstrate a cutting of the throat by passing a finger across his throat (28, 92). In the result the Complainant said she was too scared to say anything out of fear (28). She described two further incidents at her home when the Accused was said to have been an uninvited intruder (29). These incidents she said reinforced her fear of complaining (29).
She said she was also afraid of CWK and recounted an occasion when he arrived at the house when she was home alone. He was apparently looking for her and she hid from him in the roof space (30-33).
The Complainant did eventually complain. She said that when she was about 15½ or 16 ‘… it was just all getting too much for me and not saying anything …’ (34). She said that in the course of an argument with her mother and in the presence of her family, namely mum, dad, sisters and brother, she said ‘… people want to know what’s wrong with me, this is what happened … N and B raped me …’ (34). She said that as a result her mother enquired of her sisters RMK and R if anything like that had happened to them (35-36).
Nothing further happened until the Complainant herself reported the matter to the Police in April 2010.
In explanation for her delayed complaint the Complainant said:
‘… I think over the years, having my own family and – I wanted some kind of justice and I wanted for it somehow to be resolved myself and so going through all different scenarios, I thought coming to Court – reporting it and hopefully coming to Court would give me justice.’
(37)
The Complainant was cross examined about, inter alia, statements made out of court to Police which were said to be inconsistent with each other and with her testimony in Court (67-87) and statements made to her sister RMK, about the Accused’s threatening behaviour (96). Further she was cross examined about two items of history attributed to her in the body of an Alice Springs psychologist’s report dated 4 February 1998, which records that she reported to the psychologist that the sexual assaults, which were plainly those, the subject of these charges, occurred when she was six or seven years old, and that she was hospitalised as a result (109-19). The psychologist’s report came into being because, in about 1998 when the Complainant was working as a Care Assistant in a Nursing Home in Alice Springs, she was assaulted by one of two intruders and was required to consult a psychologist as part of her treatment (120-21). Finally, there were a series of questions of the Complainant by Defence Counsel Mr Bastick, about whether she, as an alleged victim of crime, had applied for Criminal Injuries Compensation. The Complainant said that she had not made any claim for compensation (119-20). The not so veiled suggestion was that the Complainant was prosecuting recently fabricated allegations against the Accused for the purposes of financial gain (128-29, 246). The plain intent of these questions was made clear by Defence Counsel in his final address (246).
The Complainant’s older sister RMK, confirmed in her evidence, that the Accused visited their home ‘… a few times …’ (134). She remembered that CWK too was a regular visitor to the house (136). Finally, she recalled an occasion when the family were resident in the Riverland, when her sister CLK, in the course of a disagreement with their mother, emotionally announced ‘… that’s why I’m spastic because I was interfered with from N and B …’ (139). RMK said that upon that being said she turned to her father who was present and said ‘… what are you going to do about it?’ and her father’s response was ‘what can I do? I’ve got to pay – I’ve got to answer for enough on judgment day …’ (139). In cross examination, RMK said that after the revelation by the Complainant, the Complainant told her that the Accused would, amongst other things, grab her by the throat ‘… a lot …’ (144-45). This evidence was permitted for the purpose of proving an out of court inconsistent statement by the Complainant.
MYK, the mother of the Complainant, was presented by the Prosecution for cross examination by the Defence.
She said that when the family were living in the Riverland, her daughter CLK had complained to her in the presence of other family members, that she was raped by the Accused and CWK (148, 150). She said that in response to that revelation:
… I looked to her father, seeing that N was the brother, and I said what are you going to do about it and he said ‘what can I do about it?’
(151)
She denied that after the disclosure by the Complainant she inquired of her other daughters whether anything like that had happened to them (152).
She had no memory of the Accused and CWK coming to her home when the Complainant was between six and nine years old and them going behind the shed (150). She denied saying the words ‘so have you finished sucking those fellas’ cocks’ to her daughter (150).
Senior Constable Lisa Jane Winslade said in her evidence that following the report to the police by the Complainant in April, 2010, she contacted the Accused and interviewed him on the 2 July 2011 (155-56). The interview was recorded. The Accused denied the allegations (see Exhibit P5). The Accused was then arrested and charged (158).
She also gave evidence of her unsuccessful attempts to procure school records from her school pertaining to the Complainant (209).
Before the closing of the Prosecution Case the following was agreed and adduced in evidence:
·first a declaration of Senior Constable Jane Winslade attached to which were medical and hospital records showing that the Complainant was admitted to the Hospital in her home town, in 1973 for bronchiolitis and in 1975 for a tooth extraction (Exhibit P3, 170).
·second, a declaration of Elizabeth Jean Watson of the Elizabeth Family Violence Intervention Section of Crown Solicitor’s Office, who dealt with all applications for compensation for Victims of Crime, to the effect that, as at 3 September 2013, there was no record of a claim by CLK for compensation (Exhibit P7).
·third, portion of a report of Michael Tyrrell, psychologist dated 4 February 1998 which was tendered, by consent, on the basis that what was recorded is what Mr Tyrrell, if called, would have said that the Complainant told him. The said tendered portion records as follows:
Relevant Background
Ms K is a 27 year old Aboriginal woman from the Coorong; she was one of the youngest of seven children.
She is married with two children.
She reported that at the age of six or seven years she had been sexually assaulted by two men – one a priest and the other a relative – in her family home with her mother also in the house.
She stated that she was admitted to … Hospital for two weeks after the assault.
This assault rates as ‘severe’ sexual abuse on currently accepted criteria. It reportedly involved men she could reasonably be able to hold in total trust, their complete overpowering of her, given her young age and the presence of the two men, ongoing demands to keep the assault secret on the promise of dire consequence if she did not, while physically threatening her whenever they came to the house, and involving physically highly invasive acts including genital penetration.
She stated that she had reported this matter to her parents when she was 15 years old but recalls that her mother took it as a joke and ‘Dad went downhill … and passed away; he just got sicker and sicker … I shouldn’t have told him …’
She says she had thought about the sexual assault ‘every day’ since it occurred and had developed some compulsive symptoms such as midnight house cleaning, but had learned to live with that.
Apart from this incident and the incident in question, she reported no significant history of trauma.
(Exhibit P8, see also 166)
·fourth, a declaration of Noel Carthew, an archival project officer of the Department of Education, concerning the timing of building developments at the Complainant’s school from 1975 to 1979 (see Exhibits P9 and P10), in conjunction to which there were explanatory agreed facts namely,
1that as far as Departmental records show the only newly constructed buildings at the school between 1975 and 1979 were the buildings referred to as the DEMAC buildings in Exhibit P9 which were built sometime between January and December 1979;
2that in respect of the plan, Exhibit P10, it was agreed that:
·the newly constructed DEMAC buildings were those marked with diagonal lines and described as Administration, Primary, Resource, Activity, Drama, Canteen, Secondary: and
·the pre-existing buildings were those cross-hatched and marked ‘Existing’.
Such was the Prosecution Case.
The psychologist’s report or rather the portion of it setting out ‘Relevant Background’ was tendered by the Prosecution, with the consent of and for the benefit of the Defence, to prove two previous inconsistent statements, the first as to when the alleged sexual offending occurred and second, as to hospitalisation being required because of it. What also came into evidence, in that portion of the report, was a narrative of the alleged sexual offending.
Defence Evidence
The Accused gave evidence on oath. He denied the allegations and adopted what he said in the recorded police interview of 2 July 2011. In cross examination, while he agreed with much of the evidence relating to the background circumstances, he maintained his denial of any sexual offending. For instance he agreed that when he was 17, 18, 19 and 20 he would visit the home of his brother CK from time to time (217). He agreed that it could have been once a week (218). He agreed that he knew and often met with his cousin, CWK around about that time and that CWK sometimes visited the house with him (219). Further, he agreed that, on one occasion, when he was making a nuisance of himself, his brother hit him over the head with some plates (219, 221-22).
He acknowledged knowing the children at the house and in particular the Complainant, whom he said was a spoilt child (220). As the allegations of sexual misbehaviour were put to him, point by point, by Prosecuting Counsel, Mr Powell, he maintained a steadfast denial of each allegation and of any inappropriate behaviour.
The Accused also tendered, by consent, two declarations of the Complainant made on 22 May 2010 and on 26 August 2013 (see Exhibit D1). They were tendered for the purpose of proving prior inconsistent statements.
Such was the evidence from both sides.
I now turn to some matters of law.
Matters of Law
I direct myself as to the elements of the two offences. The acts which the Complainant has described constitute offences of Unlawful Sexual Intercourse. The only issues are whether the Prosecution has proved beyond reasonable doubt that the acts occurred, and that the Accused was the perpetrator.
The charges must be separately considered.
Further, I direct myself as to the onus of proof. I remind myself that this is not an exercise of choosing between the Prosecution and Defence versions of events. Rather, in order to convict, I must be satisfied, on all the evidence, that the elements of the offences have been proved beyond reasonable doubt and that in particular, the Accused’s evidence could not be – to use a particularly awkward phrase – reasonably possibly true (see Douglass v R (2012) 290 ALR 699 at [8]). I would prefer to say that to convict, I would need to be satisfied that in the context of the evidence as a whole, that it was not reasonably possible that the Accused’s sworn denials were true.
Although the Accused has suggested that the Complainant has fabricated the allegations for the purposes of financial gain, namely, Criminal Injuries Compensation, he bears no obligation to prove any such reason or motive for the Complainant to fabricate false allegations against him (see Palmer v The Queen (1998) 193 CLR 1; Hargraves v The Queen (2011) 85 ALJR 1254). The Prosecution must negative that as not being a reasonable possibility.
I acknowledge and have regard to the fact that the Accused elected to give evidence on oath and thereby subjected himself to the test of cross-examination. Further, I take into account, in conjunction with his testimony his exculpatory responses when interviewed by Senior Constable Winslade on 2 July 2011.
Over 30 years have elapsed since the alleged offending. Though no forensic disadvantage has been either claimed or articulated, I am of the opinion that such a delay has caused significant forensic disadvantage to the defendant (s 34CB (2) of the Evidence Act 1929). Other than in general terms, identifying that disadvantage is difficult and is more particularly so in this case because of the breadth of the charge period. Nonetheless, I am satisfied that following the emergence of these allegations in 2011, the Accused would have had some considerable difficulty working out where he was or what he was doing, in the time between November 1978 and November 1979. Therefore I will take into account that disadvantage when scrutinising the evidence and in particular when assessing the cogency of the Accused’s bare denial. In addition to the dictates of s 34CB (2) of the said Act, the evidence of the Complainant requires careful scrutiny. She is recounting events which took place over 30 years ago when she was a very young child. Her evidence is the only evidence of the alleged offending.
CLK said she complained of the alleged offending to her mother in the presence of other family members when she was 15½ or 16 (ie in 1986 or 1987), in their home in the Riverland. The evidence of that complaint was admitted without objection. Whether objected to or not, it was admissible for the limited purposes provided for in s 34M of the Evidence Act, 1929. In particular, I regarded it capable of supporting the credibility of her testimony about what happened. There was no controversy about this evidence. No further elaboration is required.
The Complainant was not precise about when the alleged offending occurred, and consequently the charge period is very broad. However, she sufficiently identified the single occasion of the alleged offending and what she alleged was referrable to the charges (see S v The Queen (1989) 168 CLR 266 per Dawson J at 273-75). There was no issue as to that topic, namely the sufficiency or integrity of the charges but, as will be seen, the Complainant’s evidence about the timing of the offending, featured prominently in the submissions as to inconsistency and jurisdiction.
There were other matters of law which were woven into the arguments of both the Prosecution and Defence. I will address those in the context of my findings and reasons for verdicts.
The Respective Cases
The Prosecution case in summary is that the Complainant’s evidence, supported by the other Prosecution evidence, proves beyond reasonable doubt the commission of the offences by the Accused and necessarily excludes as a reasonable possibility that the Accused’s sworn denials are true.
The Prosecution further contends, on the issue of jurisdiction, that it has proved on the balance of probabilities that at the time of the offending the Accused was an adult and that accordingly this Court has jurisdiction to try the Accused (see R v Abdulla (2010) A Crim R 365 at [26]-[39]).
The Defence case is that the Complainant’s evidence was unreliable and incredible by reason of it being vague, implausible and in particular, inconsistent not only with other evidence but also with out of court statements made by her.
In the result it is submitted by Defence that the Prosecution has not proved the elements of the offences beyond reasonable doubt and has not excluded, as a reasonable possibility, that the Accused’s sworn denial could not be true.
Further, as indicated, the Defence contend that the Complainant has fabricated the accusation against the Accused for the purpose of obtaining compensation.
Finally, the Defence contend that the Court could not conclude, on the balance of probabilities, that the Accused was an adult at the time of the offending, and that therefore the Court has no jurisdiction to deal with the prosecution and is obliged to remit it to the Youth Court for determination.
Arguments
I have considered the evidence and arguments of counsel on both sides.
In the analysis which follows I bring to bear all the directions I have alluded to.
As indicated the Complainant’s evidence is pivotal. Accordingly her credibility and reliability is crucial. If the Prosecution fails to establish that she has given a truthful and reliable account of what she alleges happened, the case against the Accused must fail.
I turn then to the Defence contentions as to unsatisfactory aspects of the Prosecution case. The order with which I deal with these, is my own.
First Defence contended that the lack of early complaint by CLK reflected adversely on her credibility. Certainly CLK agreed that she did not complain to such people as her parents, her siblings, or her teachers, until, in 1986 or 1987, when she was 15½ or 16 years old and living in the Riverland she complained to her mother in the presence of some family members. She sought to explain her lack of complaint in the following terms:
A… because I was unsure of what happened after the incident and then, with his body language, showing, like his appearance changed (indicates), then there was times that N would come over to the house and I was just unsure to approach or do whatever.
(27)
QThis incident as you have described it sounds pretty horrific, pretty traumatic. Would you say it was a traumatic experience in your life.
AYes.
QYou found it to be traumatic at the time, is that right. It’s something that upset you and worried you.
AAs I got older.
QBut at the time.
AAt the time, yes, it was horrific.
QDid you realise at the time that what NWK and CWK had done to you was not right.
ANo, I didn’t know – I didn’t know anything.
QDid you think it was a normal sort of behaviour to happen.
ANo, I don’t think it was normal at all.
QI’m asking about what you thought at the time. I’m trying to understand what your reaction was at the time.
AI didn’t know what was happening at the time.
QWhat do you mean you didn’t know what was happening.
AAs a kid, I just followed instructions, just followed what I was told or shown or – I had no knowledge of what was going on or –
(50, 51)
QAnd you said that there was something wrong when they left, referring to him and CWK, by his body language and you said ‘I was just unsure’. Do you remember giving that evidence this morning.
AYes.
QWhat did you mean by that. What did you detect about the body language.
AWell, when N approached me from when I was at the swings and asking, you know, if I wanted any lollies, he seemed more – more friendlier and calmer. But then when he was leaving, he – to me he looked angry.
QHow did that make you feel.
AI asked – you know, I said ‘Where’s my lollies?’ So I was just waiting for the lollies and when they walked away, like the friendliness left, you know, it wasn’t there. It wasn’t – you know, just like dismissed, you know like I was just left there.
HIS HONOUR
QAnd the question was, how did that make you feel.
AI was – I was just waiting for the lollies and, yeah, I was just unsure of the behaviour change, you know, from just walking away and leaving me there.
QYou do realise at that time that what they did to you, on your evidence, was an outrage, that they shouldn’t have done that, did you? Perhaps I should take the word ‘outrage’ out of that. Did you realise what they had done to you was wrong.
ANo, no, I didn’t.
QDidn’t you.
AI didn’t understand what was going on. I didn’t.
QAt that stage had you had any instructions from your mum and dad about that sort of thing or from school. If you can’t remember, say so.
ANo, not that I recall, no, I don’t remember.
QSo tell me again, I think we have canvassed this before, when you went inside, you told us what your mum said to you at one stage when you asked for a drink of water. Why didn’t you tell your mum what had happened behind the shed. What was it that stopped you doing that, if anything did.
ABecause I didn’t really know or understand what happened.
QAnything to do with the attitude of these two men when they left.
AWhen they – I don’t know, when they left maybe because I was unsure what just took place, and then going in and asking for a drink of water and then, with what mum said, you know, I didn’t know what she was talking about. So, yeah.
(125, 126)
So the Complainant’s evidence was that after some initial understandable confusion and reticence, she did not thereafter complain until 1986 or 1987, because the Accused repeatedly threatened to harm her if she did, and she was afraid (28-29, 33-34). She also recounted a frightening visit to her home by CWK when she was home alone and hid from him in the roof space (30-31).
Accordingly I would not conclude from the mere lack of complaint, both immediately and in the ensuing years, that the allegations were untrue. The Complainant’s evidence, as quoted above, if accepted offers convincing reasons why a person, particularly a young child, would refrain from reporting the matter.
Second, Defence Counsel contended that the vagueness and imprecision of the Complainant’s allegations of what happened on the day of the alleged offences, impact adversely on her believability. He criticised her evidence as failing to detail such matters as:
·the day of the week when it happened and whether it was a week day, a school day or a weekend;
·the time of day;
·the whereabouts of other family members; and
·what she was wearing.
I consider that the lack of detail about such matters is understandable and even reassuring given the passage of time and the need for the Complainant to draw upon childhood memories. Of course this is a question of degree and there must be limits, but contrary to counsel’s submission, the Complainant’s evidence in general, was rich in material detail.
The third argument concerned the Complainant’s evidence that immediately following the commission of the offences and the departure of the Accused and CWK from the property, she entered the kitchen and upon asking her mother for a glass of water, her mother according to her said: ‘ … have you finished sucking those fellas’ cocks …’ (26). Defence Counsel submitted that such an allegation clearly implied that the Complainant’s mother knew something of what had happened, but did nothing about it. It is arguably worse than that – it suggests that the Complainant’s mother condoned the sexual abuse of her daughter. Defence Counsel submitted that such an outrageous comment would not possibly have been made, and to use his words ‘… it beggars belief that any mother of any child would be aware of such an incident happening and not do anything about it …’ (243). I note the Complainant’s mother denied being aware of her daughter being abused at that time (149), and of saying any such thing (150).
I am not prepared to regard that allegation by the Complainant as so intrinsically unlikely, that it alone undermines her credibility and reliability. It is a serious accusation to level at one’s mother and there is other evidence of the Complainant in which she voices disapproval of her mother (36). The allegation needs to be weighed up in the context of the evidence as a whole. In particular, I will have regard to it in the course of carefully scrutinising the Complainant’s evidence. There is considerable force in the response of Prosecuting Counsel Mr Powell, that when the Complainant’s parents did learn of her allegations in 1986 or 1987 they did nothing about it (36, 139-40, 151).
Fourth, the Defence contended that if the Complainant’s allegations were true, it was wholly implausible that she would continue to socialise with the Accused and CWK and, in particular, attend the church where later CWK acted as a minister. Certainly the uncontested evidence was that after the alleged offending the Accused continued to visit the Complainant’s house (98), and also the family regularly attended the church after the time of CWK’s becoming a minister there (99). The Complainant protested in her evidence that she was a young child, and, though she was resistant, she ultimately had no choice about who came to the house and whether she would go to church with the family (99 101, 126-27).
There is nothing in this point. The Complainant’s explanation is self evident.
Fifth, Counsel for the Accused submitted that the evidence of the Complainant was incredible and unreliable, because there were material inconsistencies, between her evidence on oath, and previous statements made by her out of court.
The inconsistencies were articulated as follows:
The Complainant in her evidence insisted that the offending occurred when she was eight or nine years old and as I have pointed out she fixed it by reference to her height against the kitchen sink and then to when building renovations were carried out at the school and she moved into a new building. However, in his report dated 4 February 1998, (Exhibit P8), the Alice Springs psychologist Mr Michael Tyrrell reported that the Complainant told him that it occurred ‘… at the age of six or seven years …’
Further, in her evidence the Complainant denied going to the hospital as a consequence of the offending (121), and yet the psychologist, Mr Tyrrell indicated that she told him ‘… that she was admitted to the … hospital for two weeks after the assault …’ (Exhibit P8).
Finally, the Complainant’s evidence was that the Accused had penile sexual intercourse with her and then caused her to perform fellatio upon him and then the same happened with the man CWK. However, in her first statement to police of 22 May 2010 the Complainant related that she first had penile vaginal sexual intercourse with both the Accused and then CWK and then performed fellatio upon each of them (Exhibit D1).
The contention here is twofold, namely, that in respect of the order in which the acts of sexual intercourse took place the first statement is inconsistent with the second made on 26 August 2013 (Exhibit D1) and is also inconsistent with the Complainant’s sworn testimony.
This topic of inconsistency was dealt with by Defence Counsel in a confused way. Accordingly, I draw attention to some basic principles. There are two primary questions which arise when a witness, such as the Complainant, is shown to have made a previous statement inconsistent with her sworn evidence. As to these two questions Gibbs J in Driscoll v The Queen [1977] 137 CLR 517 at 536 and 537 said:
The first is as to the use to which the statement previously made out of court may be put, and the second is as to the effect of the previous statement on the value of the testimony given by the witness in court. As to the first of these questions it is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it: Taylor v. The King; Deacon v The King; and Reg. v Pearson. Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge. As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning should be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable.
(footnotes omitted)
The important point is that unless the witness adopts the previous inconsistent statement, that is, unequivocally accepts that it was said by him or her, and ‘I do not remember’ is not sufficient, then that previous statement is not evidence of the truth of the matters set out in it. Rather, once proved, the statement can be used only in assessing the credibility and reliability of the witness’s sworn testimony in Court. If the witness admits the prior inconsistent statement, it becomes his or her evidence, and in that event, it is neither necessary nor permissible to put the contradictory statement into evidence (see ss 28, 29 of the Evidence Act and see also Sarret v Police [2012] SASC 37). If there is an inconsistent prior statement established and proved, the trier of fact is entitled, but not compelled, to reject the sworn testimony (see Urbano v R (1983) 9 A Crim R 170 per Burt CJ at 173 and 174). In particular, it is for the trier of fact to decide, if there is an inconsistency, whether and to what extent it impairs the credibility (ie truthfulness) and/or the reliability (ie correctness or accuracy), of the witness’s sworn testimony. In carrying out such an exercise the finder of fact will take into account such matters as the witness’s explanation and the materiality of the claims of inconsistency.
The cross examination of a witness, as to a prior inconsistent statement, is regulated in this State by ss 28 and 29 of the Evidence Act. Those sections are declaratory of the common law. Section 28 deals with oral statements and s 29 with written statements. In this case the report of the psychologist, under the heading ‘Relevant Background,’ which sets out what the Complainant told him, is an oral statement by the Complainant. The two declarations of the Complainant made to the police are, of course, written statements, and are thereby captured by s 29.
Despite the fact that the Complainant was not shown the relevant portions of the psychologist’s report or either of her police declarations, I am satisfied that it was proper to receive those documents in evidence.
I now turn to the contentions on this topic.
I deal first with the inconsistency relating to the timing of the offending. The Complainant maintained throughout her testimony that the offending occurred when she was about eight or nine years of age. As I have indicated, she fixed that time by reference to, in particular, when she moved into a newly constructed classroom at her school. The agreed evidence of Mr Noel Carthew, an officer from the Department of Education and Child Development, was that the only new constructions at the Complainant’s school between 1975 and 1979 occurred between January and December 1979 and those included classrooms (Exhibits P9 and P10). The Complainant was throughout most of that year nine years old (Exhibit P6). When informed by cross examining Counsel that the psychologist Michael Tyrrell reported that she had told him that she was six or seven years old at the time of the offending, the Complainant’s response was ‘ … what I remember saying to Mike Tyrrell was that I was young … I don’t recall saying age …’ (113, 122). Mr Tyrrell did not give evidence and the agreed basis for the tendering of his report was that if called he would say that the Complainant told him what is reported by him under the heading ‘Relevant Background’.
Accepting the evidence as it stands, the Complainant has made a previous inconsistent statement. However, the inconsistency is explicable. The background reported by the psychologist was just that – background. It was not the focus of either his or the Complainant’s attention at the time. The Complainant said she was not expecting to discuss the incident involving the Accused (122-23), and moreover, she said she was not comfortable ‘bringing a lot of stuff up ... and didn’t see it was necessary …’ (124). I accept therefore that she was not prepared for a detailed analysis of the sexual abuse of about 20 years earlier. Referring to the therapy sessions with Mr Tyrrell she said ‘… I just wanted to get those sessions that was required over …’ (113). On the other hand, her testimony in this matter convinces me that she gave considered attention to the timing of this offending. It was not a vague recollection. She related it to, inter alia, the time when she moved into a new classroom. Her evidence in this respect fits in with other acceptable evidence namely the agreed evidence of Noel Carthew that new classrooms were constructed, in the Complainant’s school, in the course of 1979.
Accordingly, I do not regard the Complainant’s previous inconsistent statement to Mr Tyrrell as undermining her credit.
Similarly the Complainant has made it clear in her testimony that she was not admitted to hospital for any effects of the sexual assault (121). Whilst, on its face, the inconsistent statement attributed to the Complainant in the report of Mr Tyrrell suggests she was admitted for the effects of the assault, it lacks specificity. Again the Prosecution obtained and put into evidence Hospital records which, in the relevant period, disclosed two admissions for completely unrelated matters (Exhibit P3). There were no records of any Hospital admission relating to a sexual assault. One would have thought that any such admission would not only have been recorded but also would have lead to the matter coming to the attention of the authorities. In any event, I consider that the Complainant’s evidence as to this remains credible and reliable. Again the Complainant’s evidence has indirect support in other acceptable evidence namely the Hospital records.
Before leaving the matter of the psychologist’s report (Exhibit P8), I note that the narrative of the sexual assault, reported by Mr Tyrrell, as having been recounted to him by the Complainant, reinforces and confirms, in considerable detail, the Complainant’s testimony in Court as to what happened to her. This prior statement of the Complainant, as recounted by Mr Tyrrell in his redacted report, was tendered for the purpose of proving two prior inconsistent statements, the first as to the timing of the offending and the second as to whether a hospital admission occurred. Ordinarily a previous consistent statement cannot be introduced into evidence to bolster the credit of a witness (see R v Connolly (No 2) [1991] 2 Qd R 171 at 173 per Thomas J; R v Fraser (1995) 65 SASR 260 per Doyle CJ at [268]-[270]). However, once admitted into evidence, it became relevant to the Complainant’s credit generally and therefore, insofar as it contained material, such as an account of what happened, which is consistent with the Complainant’s sworn testimony, it could be relied upon by the Prosecution for that purpose (see R v Fraser (supra) at [268] - [269]; R v Titijewski (1970) VR 371 per Winneke CJ at pp 374-76) and Sarret v Police (supra) at [14] and [15]).
As to the Complainant’s alleged inconsistent statement to the Police on 20 May 2010, as to the order of the sexual offending, the Complainant said:
AThe order is that they had first sexual intercourse, then oral sex, sexual intercourse and oral sex.
QSorry, can you say that again.
AFirst with N it was intercourse, then oral sex, then intercourse and oral sex. That’s what I meant within the statement.
QIs that what you now say in fact occurred, the order you remember it actually occurring in.
AThat’s what I meant from the beginning.
QSo what do you say about what you’ve put in your second statement of 26 August. You say that you were confused or that you were mistaken about what you told the police on that occasion.
AIn the statement, that’s what I mean.
(82)
I accept that as a reasonable explanation of the apparently inconsistent previous statement of 22 May 2010. Clearly, in the course of preparing for trial it became obvious to the Complainant that her first statement did not record precisely what she meant and accordingly she made the declaration of 26 August 2013 which is consistent with her evidence.
There were other claims of inconsistency raised by Defence Counsel. I have had due regard to them. They do not call for any elaboration.
Finally, Defence Counsel submitted, that the Complainant had falsely fabricated the allegations against the Accused and for that matter, CWK, for the purpose of obtaining Criminal Injuries Compensation. In particular, the contention was that in about 1998, when she was resident in Alice Springs, she was the victim of an assault and obtained compensation for the trauma it caused her. Counsel submitted that it was ‘… not beyond the realms of possibility …’ (246), that learning from that experience, she made up false allegations against the Accused and CWK.
The Complainant acknowledged that she did receive compensation for the assault upon her in Alice Springs (120-21). She also acknowledged that upon reporting the offending, the subject of this matter, in 2010, she had been advised in writing of her entitlement to claim compensation but she had not done so (119). She denied fabricating these allegations (121).
The Prosecution, by consent, adduced evidence which confirmed that the Complainant had not made any claim in respect of the allegations the subject of this matter (see Exhibit P7).
In dealing with this matter I again record that I bear in mind that the Accused bears no onus to point to any such motivation. It is for the Prosecution to negative the reasonable possibility of any such allegation upon it emerging. Beyond the suggestion from the Bar table, there is nothing in the evidence which would raise this as a reasonable possibility. Defence Counsel himself accepted it was ‘speculative’ (246). Indeed, if such was the Complainant’s motivation, she has certainly taken her time about it.
I reject this contention.
Further, I consider it arguable that the Complainant’s complaint to her mother in 1986 and the recounting by her of the allegations to the psychologist in 1998, though self-serving, are admissible to rebut the contention that the 2010 allegations to the police are recent inventions (see R v Fraser (supra) at [263]-[264]; see also R v Karapanzk [2008] SASC 126 per Doyle CJ at [55] - [70]. However, I do not need to explore whether or not the Doctrine of Recent Invention applies here because, as will be seen, I wholly accept the Complainant’s denial of fabricating the allegations.
Findings – Reasons for Verdicts
I now turn to my findings on all of the evidence.
Further to the contentions which I have just dealt with, the Defence contends that the Complainant’s evidence generally is not sufficiently cogent to prove the elements of the two offences beyond reasonable doubt. Also the Defence contends that the Prosecution have not excluded as a reasonable possibility, the Accused’s sworn denial.
I do not agree.
I find that the Complainant’s evidence, considered in isolation, was both credible and reliable. In particular I find that the narrative of events as testified to by the Complainant and summarised in paragraphs [16] to [24] above, is coherent, consistent and has more than a ring of truth about it. It is wholly plausible and convincing.
Further, the Complainant’s evidence fits in with, or is consistent with, other acceptable evidence in the Prosecution case. I adopt here my detailed findings as to the inconsistency arguments mounted by the Defence. I find that none of the out of court prior inconsistent statements has undermined the Complainant’s overall credibility and reliability.
Finally, I indicate that I agree with Prosecuting Counsel’s submissions about the Complainant’s demeanour. Conscious of the fragility of such a signpost, I note that over a period of three days the Complainant calmly and resolutely testified about what I am satisfied was an unhappy episode in her life. She patiently dealt with repetitive questioning and appeared, at all times, to seriously consider what was put to her. In a convincing way she was not deflected from any material portion of her evidence. She presented as a thoughtful and intelligent woman who was free of any sign of bias or scheming. After being let down by her parents in 1986, she decided finally in 2010 to report her allegations to the police.
Necessarily I am satisfied that there is no reasonable possibility that the Accused’s denial is true. I accept that after the lapse of such an inordinate period of time, an accused person who was innocent, would be driven to make a generalised bare denial as the Accused did here. However, whilst acknowledging that, and heeding the directions I have alerted myself to, I am satisfied upon consideration of all the evidence that there is no such reasonable possibility. In all, I do not believe the Accused.
Accordingly, on all the evidence, I find that the Prosecution has proved beyond reasonable doubt the elements of each of the two charged offences considered separately. In particular, I find it proven beyond reasonable doubt, that the two acts of sexual intercourse alleged by the Complainant occurred and, that the Accused NWK committed those acts against her.
Jurisdiction
Before entering the verdicts I turn to the argument about jurisdiction.
The Defence argued that the Complainant’s evidence that she was eight or nine at the time of the offending and therefore, that the Accused was over 18 years old, should not be regarded as credible because of the inconsistent statement on that topic to the psychologist. Consequently, as the argument goes, the Court is not in a position to be satisfied, on the balance of probabilities, that the Accused was over 18 years old at the time of offending as it must, in order to found jurisdiction (see R v Abdulla (supra) per Bleby J at [26] - [39]).
I have effectively disposed of this argument in the course of dealing with the contentions about inconsistency. I adopt my previous findings as to the effect of the previous inconsistent statement to the psychologist on the topic of timing (see [80] - [84]).
I accept the Complainant’s evidence that she was about eight or nine at the time of the offending. However, the timing of the offending can be fixed with more precision. The Complainant said that the offending took place at a time when she moved into her new classroom (90). I accept that. I also accept the unchallenged evidence that the new classrooms were constructed between January and December 1979. The Complainant was eight years old for almost the entirety of 1979. She turned nine on 14 November 1979 (Exhibit P6). On 12 January 1979 the Accused turned 19 years of age (217, Exhibit P5). Therefore, I am satisfied, at least on the balance of probabilities, that at the time of committing these offences, the Accused was over 18 years of age. Accordingly this Court had jurisdiction to try the Accused.
Verdicts
The final verdicts are:
·Count 1) – Guilty.
·Count 2) – Guilty.
Some further comments about the provisions of the Young Offenders Act 1993
Although my task is over I take this opportunity to comment on two difficulties which arose in this case, each of which related to the respective jurisdictions of the Youth Court on the one hand and the District and Supreme Courts on the other. The first concerns, what I would suggest, is an unnecessarily confined discretion in the Youth Court to commit a youth for trial in either the District or Supreme Courts (see s 17 of the Young Offenders Act 1993 (SA) ‘the said Act’). The second concerns the lack of jurisdiction of both the District and Supreme Courts to further deal with an accused person once it becomes clear in proceedings that he or she is not an adult but a youth (see R v Abdulla (supra).
This case illustrates both difficulties as I will now spell out.
The accused NWK was an adult at the time of the alleged offending particularised in the charges. The co-accused CWK was considered to be a youth. Apparently he was therefore charged in the Youth Court (see ss 5, 16, 17 and 17A of the said Act).
On 18 January 2013 the Prosecution sensibly applied, pursuant to s 17 of the said Act, to have the co-accused CWK committed to the District Court for trial together with the accused in this matter. Section 17 relevantly provides:
17 – Proceedings on charge laid before Youth Court
…
(3) If –
…
(c) the Court or the Supreme Court determines, on the application of the DPP or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending.
the Court will conduct a preliminary examination of the charge, and may commit the youth for trial or sentence (as the case requires) to the Supreme Court or the District Court.
(the italics are mine).
The ground relied upon by the Prosecution was ‘the gravity of the offences’. The application was refused. The Youth Court Judge did not regard the offending as ‘grave’ despite, the age of the Complainant at the time of offending, the disparity of the ages between her and her alleged assailants, the predatory nature of the conduct alleged, the breach of trust involved, the threats and the wider circumstances such as the fact that both accused were facing possible incarceration in respect of 30 year old allegations. In His Honour’s ex tempore reasons, he alluded to the desirability of having only one trial, but felt confined by the restrictive considerations in s 17. Certainly the section appears to confine the discretionary considerations upon which the Court can commit to an adult court to either:
·the gravity of the offence or;
·that the offence is part of a pattern of repeated offending.
In the result, the co-accused CWK, who is now over 50 years of age, is to be separately tried in the Youth Court, for offences alleged against him by the now 43 year old Complainant. Apart from the Complainant and a number of other witnesses being required to give evidence twice, there is the potential mischief of inconsistent results and the sense of grievance which might arise. I would suggest that the statutory policies evident in the said Act, and identified by a number of authorities over the years, would not have envisaged such an outcome.
In all, I accept that the Youth Court Judge, having decided that the offending was not ‘grave’ was then unable to commit the co-accused CWK for trial with the Accused in this Court. I would suggest that the discretion to commit, in s 17 of the said Act, should be widened to include any other case where the interests of justice so demand. In that way the Youth Court Judge would be armed to accommodate the inevitable unpredictable circumstance which I suggest was this case.
I am not here addressing anything to do with the sentencing process. If CWK were committed for trial in this Court, and found guilty, on the face of it he would be sentenced as a youth.
I turn to the second difficulty.
In this case the Complainant’s evidence was that she was eight or nine years old on the occasion of the offending. When she was that age the Accused was an adult. However, there was evidence, in the form of a previous inconsistent statement, made by the Complainant to the Alice Springs psychologist, that she was six or seven years old at the time. If that were the case, then of course, the Accused was a youth at the time of the offending. Of course the Complainant’s inconsistent statement was not admitted in evidence, for the truth of its contents, but the fact of it fuelled the jurisdiction argument made in this case. As I have indicated, the argument was that the Court could not be satisfied that the offending occurred when the Accused was an adult and so the District Court had no jurisdiction to deal with him, but rather should remit him to the Youth Court.
This is not a novel problem. The same circumstances arose in the case of Abdulla (supra). In Abdulla the Accused was charged with rape. He pleaded not guilty before a Judge and Jury in the District Court. As the case progressed, a question arose about whether the Accused was an adult or a youth at the time of the offending. Of course, if the Accused was a youth, the District Court would have had no jurisdiction to persist in hearing the matter (see ss 6, 16 and 17 of the said Act). Soulio DCJ refused to remit the Prosecution to the Youth Court but rather continued with the trial and sought the following verdicts from the jury:
1whether they were convinced beyond reasonable doubt that the rape alleged occurred;
2if ‘Yes’ to (1) above, whether they were convinced on the balance of probabilities that at the time of the rape the Accused was over 18 years of age; and
3if ‘Yes’ to (2) whether the Accused was the person who committed the rape of the Complainant.
The answer to all three verdicts by the Jury was ‘Yes’. The approach taken by the trial Judge, Soulio DCJ, was approved by a majority of the Court of Criminal Appeal (see R v Abdulla (supra)). If the answer by the Jury to question 2 above had been ‘No’ then the trial would have been stayed and the matter remitted to the Youth Court. Similarly, in this case, I found it proved beyond reasonable doubt that the two acts of unlawful sexual intercourse occurred, as alleged, and that at the time the Accused was over 18 years old.
However, such a state of affairs is both unnecessary and unsatisfactory. Apart from the duplicity of process, there is a prospect that upon remission and a trial in the Youth Court, there could be inconsistent decisions about whether the act, the subject of the charges, took place. In my view the District Court, and for that matter the Supreme Court, should have the power to sit as the Youth Court in such a situation and complete the trial.
In making the above comments I have had regard to the provisions of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 and in particular s 5. I do not regard those provisions as addressing the second problem.
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