R v KELLY - [2018] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KELLY
[2018] SADC 1
Reasons for the Verdict of His Honour Judge Rice (ex tempore)
14 December 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused is charged with one count of Indecent Assault and two counts of Unlawful Sexual Intercourse.
The accused was charged with three sexual offences against the complainant that were alleged to have occurred during one short car trip. It was not suggested that the accused had previously shown any interest in the complainant or had anything to do with her.
Verdicts: Not Guilty

R v KELLY
[2018] SADC 1

The accused is charged with three offences: an indecent assault and two counts of unlawful sexual intercourse. The allegations arise from a short car trip when the accused and the complainant were said to be alone.
The allegations are from about 20 years ago when the complainant was in year 2 or year 3 at school. The complainant's family and the accused's family knew each other because their children attended the same school.
On occasions, the complainant would accompany her mother when the mother visited the accused's then wife. Sometimes the accused would be present in the house if he was not working.
On the occasion in question, it is alleged that the accused said he was going to the shops and asked if the complainant wanted to go for a drive with him. She had not been on a drive with him previously. The complainant asked her mother whether she could go with him and she said yes.
The complainant said she got into the car and the alleged criminal conduct occurred between an area near to or in the driveway and a park a short distance down the road. No complaint was made for at least a couple of years.
The prosecution called the complainant, her sister to whom the complaint was made, her mother, the accused's former wife and the investigating police officer. The accused was spoken to by the police and denied any offending. The accused gave evidence at the trial before me and maintained his denial.
Before embarking upon a consideration of the facts of the case or some of the facts of the case, I provide myself with a reminder about some relevant legal principles.
Obviously the presumption of innocence is first and foremost. The burden of proof lies on the prosecution. No burden lies upon the accused and the standard of proof is one of proof beyond reasonable doubt.
I note the accused was not obliged to answer police questions or give evidence or expose himself to the scrutiny of cross-examination. He is to be given credit for adopting both courses.
I note, when spoken to by the police, he seemed genuinely shocked by the allegations and was rendered speechless. I note that unless I am in a position to reject the accused's denials beyond reasonable doubt, I cannot convict him.
Even if I was to reject his denials beyond reasonable doubt, that does not mean that he is to be found guilty. It would be necessary to go back to the content of the prosecution case and see whether that amounts to proof beyond reasonable doubt of the charges.
I also note that the delay in reporting this matter to the police and the delay between that and the trial before me has resulted in significant forensic disadvantage to the accused. I take that into account and I will return to that topic later.
I also take the view that this is a case where I need to scrutinise the complainant's evidence with special care. I will say a little bit about the complainant's manner of giving evidence. She appeared to be a forthright witness, mainly consistent, did not seem to be embellishing her account at all and gave a compelling presentation and demeanour.
One of the relevant questions for me is to ask whether her evidence made sense. The answer to that question is that the progression of her allegations did make sense. However, a separate question to be asked is: does the alleged conduct by this accused make sense in light of what she said?
I use this as a measure of whether there is proof beyond reasonable doubt. A number of features of the case give me cause for doubt. The main ones are these: first, there is no background of this accused showing any interest in this complainant, let alone a sexual interest. There are no uncharged acts or even conduct by this accused whereby he previously played with her or spent time with her or seemed to enjoy her company.
To use the expression that is often used in this area, his alleged conduct is truly unexplained and out of the blue. It is not as if it could be said that he was emboldened by an earlier failure by her to complain.
Secondly, in the situation just described, assuming the accused was in the car alone with the complainant and I am not wholly convinced about that, it is bordering on unbelievable that the accused would initiate sexual discussion and then conduct before they left the driveway or as he had just driven off.
Third, a similar observation can be made about the allegation that there was so much sexual activity within a short distance and time from leaving, particularly involving a child who says she was both unknowing and reluctant.
Fourthly, how could the accused be confident that the complainant would not complain immediately upon returning to her mother at Goddard Drive or to put it another way, is to ask this question: could she be trusted to remain silent?
There being no history between the accused and the complainant, he had no reason to be confident she would not complain immediately. The risk of discovery was great.
Next, bearing in mind the complainant's evidence that the accused had his seatbelt on as they drove away from the Goddard Drive address, her description of him unzipping his pants and exposing himself was not convincing.
Next, the terms of complaint to the sister and what the sister says was said were not entirely consistent, although I do not make too much of that.
Next, the suggested complaint to the mother was denied by the mother and that, in my view, reflects significantly upon the complainant.
Putting those matters to one side, I am not prepared to disbelieve the accused. Although he was nervous giving evidence, he gave his evidence well and was not shaken in cross-examination.
I also factor in his prior good character. It was not suggested that he had convictions for anything other than perhaps speeding or been charged with anything or even about the subject of investigation.
Prior good character has a number of uses in favour of an accused person. It is a relevant consideration as to whether he would commit the offence charged and it is a relevant consideration as to the accused's credibility when giving evidence.
In making these comments, I am conscious of the fact that there was no positive evidence of good character and that fairly obviously people who are of previous good character may commit an offence for the first time.
As I mentioned earlier, the accused is subject to a significant forensic disadvantage caused by the long delay in this matter being reported and coming to trial and there are a number of aspects of that forensic disadvantage and I touch upon a number of them.
The complainant's account could not be properly tested because she could not remember surrounding events. Next, if there had been a timely complaint, the accused may have been able to remember what he was doing on a particular day, especially if he was aided by work rosters or perhaps pay slips.
Finally, there being a significant delay, the lack of forensic evidence has operated against him. Although Mr Deegan characterised this case as oath against oath, which it is in one sense, the onus of proof rests on the prosecution from beginning to end.
I am not satisfied beyond reasonable doubt about his guilt. I certainly entertain a reasonable doubt and I record verdicts of not guilty.