R v KEYTE
[2018] SADC 22
•14 March 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KEYTE
Criminal Trial by Judge Alone
[2018] SADC 22
Reasons for the Verdict of Her Honour Judge Davison
14 March 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused is charged with one count of maintaining an unlawful sexual relationship with a child. At the time of the alleged offending, the complainant was between the ages of 12 and 15 years old. It is alleged the accused entered the bedroom of the complainant at night, while her mother was showering and touched her on the bottom, breasts and vagina on more than one occasion. He is also alleged to have masturbated in her presence in the bedroom. On one occasion, he was discovered in the complainant's room by her mother. He was masturbating at the time. The prosecution has proved the charge beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 50; Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) s 13A; R v J, JA [2009] SASC 401; R v Dolan (1992) 58 SASR 501, referred to.
R v KEYTE
[2018] SADC 22
The accused is charged with maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935. It is alleged that he committed this offence against his partner’s daughter in the family home, between 1 March 1983 and 1 August 1985, when the complainant was between the ages of 12 and 15 years old. The complainant, ERC, gave evidence in this trial, and the prosecution relies on her evidence and the evidence of the initial complaint given by the mother to prove this case beyond reasonable doubt. The accused denied that he had any inappropriate contact with ERC at any stage.
The accused elected for trial by Judge alone.[1] The application was granted and the trial proceeded before me without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
Preliminary Application
Oral applications were made by the prosecution for special arrangements under s 13A of the Evidence Act 1929 regarding the taking of the complainant’s and her mother’s evidence. Those arrangements were the court being closed, a screen, and court companions. I granted these applications. Accordingly I warn myself that I must not draw any adverse inference against the accused nor should I allow the fact that these arrangements are in place to influence the weight that I give to the witnesses’ evidence.
Charges
The accused is charged with one count of maintaining an unlawful sexual relationship with a child.
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
TDK at Osborne, between the 1st day of March 1983 and the 1st day of August 1985, maintained an unlawful sexual relationship with ERC, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Causing her to touch his penis
(b) Touching her bottom on more than one occasion
(c) Touching her breasts on more than one occasion
(d) Touching her vagina on more than one occasion
(e) Laying on top of her whilst naked
(f) Masturbating in her presence on more than one occasion
The offence of maintaining an unlawful sexual relationship with a child consists of four essential elements, each of which must be proven by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first element is that the accused person was an adult, being a person of or above the age of 18 years, at the relevant time. As the relevant period here is from 1 March 1983 and 1 August 1985, and it was an agreed fact that the accused was born on 19 January 1952, this element is not in issue.
The second element that must be proven is that the complainant was under the age of 17 years during the relevant period. It was an agreed fact that the complainant’s date of birth was 28 June 1970, making her between 12 and 15 years of age during the relevant period.
The third element is that there was an unlawful sexual relationship. This is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period of time. In this case, the unlawful sexual acts are particularised by the prosecution to be that the accused caused the complainant to touch his penis, the accused touched the complainant on the bottom, breasts and vagina on more than one occasion, the accused lay on top of the complainant whilst he was naked, and the accused masturbated in the presence of the complainant on more than one occasion.
Consent has no part to play in relation to this case as at all stages ERC was under the age of consent. It is not necessary for me to find that all the unlawful sexual acts alleged by the prosecution, are made out in order for the offence to be proven beyond reasonable doubt. It is sufficient for me to find that two or more acts were performed on or with the complainant during the relevant period.
The final element of the offence relates to the issue of maintaining an unlawful sexual relationship. The word “maintain” or “maintaining” carries its ordinary meaning; that is, carried on, kept up or continued. The prosecution must prove beyond reasonable doubt that there was an ongoing relationship of a sexual nature between the accused and ERC – that is, proof of continuity of sexual conduct on the part of the accused.
Directions of Law
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word “proved”, “established”, or “satisfied”, I am referring to an extent that excludes reasonable doubt.
The accused is presumed to be innocent of the charges unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt. If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then he remains innocent and I must return a verdict or verdicts of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused or I am unsure of where the truth lies, I must find that the charge has not been proven to the standard required by the law and accordingly, the accused to be not guilty. If I cannot exclude the accused’s evidence as a reasonable possibility, then he is entitled to a verdict of not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’ evidence.
The accused has given evidence. He was not obliged to give evidence, but chose to do so. His evidence must be considered along with the other evidence in this case. In doing so, I have made due allowance for some difficulties that he may have had understanding questions asked of him and articulating his responses both as a result of the effluxion of time and a recent stroke that he has suffered.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice, or fear and not be influenced by public opinion in relation to this matter.
Evidence
The first witness called by the prosecution was ERC. She is 47 years old and grew up in Osborne. Her parents divorced when she was a young child, and her mother remarried another man. They divorced when she was 11 years old. Shortly afterwards, her mother began a casual relationship with the accused. ERC gave evidence that the accused visited her house between two and seven times per week and often stayed the night. She never considered him to be a step-father. ERC described finding the accused nice and fun at the start of his relationship with her mother, and how he would play with her and her siblings. This nature of this play began to change as the accused would push his body into hers, particularly his pelvic area, which made ERC feel uncomfortable and strange.
One night prior to her 13th birthday in early 1983, she described going to sleep in her bedroom (“bedroom one” on the floorplan tendered as P4) and being woken up by someone touching her. She described seeing the accused standing next to her bed, naked. He was touching her bottom on the outside of her pyjamas and doona. He then put her hand on his penis and attempted to force her to masturbate him in that way. She gave evidence that she pulled her hand away and told him to get out. The accused then hushed her, told her not to tell her mother about what had happened and left the room.[2]
[2] Page 15 line 13.
ERC gave evidence that at that time, she would usually go to bed at around 7.30 p.m. Her mother would go to sleep much later, and would usually have a shower at around 11.30 p.m. before she went to bed. The complainant was sharing a room with one of her sisters, either Tammy or Skye, at this time. The girls only had a sheer curtain in the bedroom, so on the occasion she described of the accused coming into the room, it had been illuminated by moonlight which allowed her to make out his outline. She also recognised him by his size and voice. When she awoke at the accused’s touch, she could hear the sound of her mother having a shower elsewhere in the house, so she thought that the incident must have occurred at around 11.30 p.m.
A short time after this incident, the layout of bedroom one changed when bunk beds were installed in the room. When she was sleeping in the bunk bed with one of her sisters, there was an occasion when the accused came into the bedroom during the night and again touched the complainant on the bottom. She could not recall any other details about this incident or whether the accused had said anything to her at that time.
When ERC turned 13 years old, she moved into bedroom three by herself. She gave evidence that “most of the touching happened when I was in bedroom three on my own”.[3] She said that he came into her room between two and five times a week, almost every time he visited the house. He would then touch her on her breasts and vagina, both over her pyjamas and underneath, directly on her skin. She said that where he touched her would depend on where he could gain access through her doona, as she would try to cover herself and hide beneath it. As she hid underneath the doona, she heard him making noises, “moaning and grunting”.[4] She had heard him make similar noises on the first occasion when he had masturbated so she assumed he was masturbating in her room although she could not always see him whilst she hid under the doona. He would say things to her such as “just let me fuck you”, “just let me root you”, “you’ll like it” and “if you let me do it, I’ll tell your mum to let you have a boyfriend”.[5] She would not respond.
[3] Page 21 line 22.
[4] Page 21 line 1.
[5] Page 21 line 12.
She gave evidence that when she turned 15 years old, there was an incident when one night, the accused jumped onto her bed naked. She was wearing pyjamas and was partially covered with the doona; “he put his whole body on me facing down on me and started humping me”.[6] He said “just let me fuck you” to her whilst he did this.[7] She described screaming for help out of fear; “I screamed. He was very heavy on me. I couldn’t breathe. His weight was very heavy on me and I was very scared”.[8] He then got off of her and left the bedroom after telling her to be quiet and not to tell her mother about what had happened. She was sure she was 15 years old when this occurred because she was always sure of which years of high school she was in when she was in each different bedroom, and knew that this incident happened two years after she had moved into bedroom three at the age of 13.
[6] Page 21 line 30.
[7] Page 22 line 1.
[8] Page 22 line 4.
The last incident also occurred in bedroom three. ERC gave evidence that the accused came into the bedroom naked and appeared to be masturbating himself as he was making noises. She said that he was saying words to the effect of “just let me fuck you” and “you’ll like it”.[9] She hid underneath the covers and then heard her mother’s voice saying “Terry, what are you doing?”[10] Shortly after this, the accused and her mother left the bedroom.
[9] Page 23 line 8.
[10] Page 23 line 14.
ERC gave evidence that the incidents always occurred after she and her siblings had gone to bed and when her mother was having her nightly shower, usually at around 11.30pm.
In the kitchen on the day following the last incident, her mother approached her about what had happened in bedroom three and asked ERC how often or how long it had been happening. She told her mother that it had been happening for quite a while but did not go into detail about exactly what occurred. After this time, her mother had a lock installed on ERC’s bedroom door and the accused never came into the room again. She had not told anyone about the incidents prior to this because she was scared of the accused; “…I was very fearful of [the accused] and, you know, and I lived in fear of him. He was a very intimidating man.”[11] She had not told her mother earlier because she did not feel as though they had a close enough relationship for her to confide; “I didn’t feel I could go to her. There was an element of fear I had towards my mum as well…and I didn’t think I would be believed”.[12]
[11] Page 25 line 17.
[12] Page 25 line 23.
ERC described other instances when she was uncomfortable with the accused’s behaviour towards her. She gave evidence of mornings where she would get up early to shower and get ready before her younger siblings woke up so that she would have time to help get them ready for school. When she walked from her bedroom to the shower, she had to walk past the laundry and toilet. She said that the accused would often wait in the toilet, naked, for her to walk past and see him. She also described an incident which occurred on a Saturday when, after taking a shower, she had gone back to her bedroom to get dressed. She did not lock her bedroom door as it was day time and she believed that everyone else was outside. She then heard the door handle turn, and when she looked up, saw a penis being poked through the doorway. When she went over to shut the door, the penis was withdrawn.
In December of 1986 when she was 16 years old, she moved out of the home and moved in with her older sister N.
ERC was cross-examined. She said that she and her siblings who were not his biological children, did not view him as a step-father. She did say that the siblings he did father appeared to have some sort of a relationship with him, “because he was there often and he was a very dominating character and you did what he said you did”.[13]
[13] Page 26 line 20.
She gave evidence that when the bunk beds were installed in bedroom one, the sibling she shared that room with changed but she could not remember who she shared with at the time of the first incident; “it’s hard to remember whether it was Skye or Tammy because we changed rooms quite often”.[14] She described witnessing the accused masturbating during the first incident and that from then on she would hide under the covers to avoid seeing him, but his grunting, moaning noises made it obvious to her that he was masturbating again on the other occasions. She said that there were only a few incidents that occurred in bedroom one before she moved to bedroom three, and that the second incident, which happened in the new bunk bed was very quick.
[14] Page 28 line 18.
She gave evidence that when her mother approached her in the kitchen after the final incident and asked her how long it had been going on for, she was not specific; “I think I said ‘a long time’”.[15] She also gave evidence that the inappropriate play between her and the accused where the accused would press his body against hers had been happening since she was 11 or 12 years old. She gave a statement to police on 9 December 1986 but did not include details of all of the accused’s behaviour towards her because she felt very uncomfortable talking about it; “I didn’t have the vocabulary or the ways to express myself because I was overwhelmed and scared and damaged and I didn’t want to talk about it”.[16] She said that she told her mother she wanted to take a restraining order out against the accused and that her mother warned her against this as she feared what he would do to her. Because of this, ERC moved in with her sister N. It was suggested to her that she had told her mother that if she did not let ERC move in with N, she would make allegations of the accused sexually abusing her. She denied this. It was also put to her that in the 90’s when she was visiting her mother’s home, she admitted to the accused that she used him as a scapegoat during an argument with her mother about moving out. She denied this.
[15] Page 32 line 22.
[16] Page 33 line 5.
The complainant was asked who was in the house on the occasion where someone put their penis through her bedroom door, and she agreed that her brother A had also been home, although she stated that he was 14 years old at that time. It was put to her that she continued to visit her mother and the accused after she moved out and would either confide in the accused or divulge personal information to her mother in the presence of the accused, such as her experiences working as a nanny in England. She denied this, saying “I never confided in him, I would talk to my mother and he would make himself present all the time because he liked to be aware of everything and control everything around him”.[17] It was then suggested that there had been occasions where she had visited and asked the accused if she could borrow $5,000, if he could help her find a car, and if he could help her to get a mechanic to fix the left brake cylinder of her Gemini motor vehicle. She denied each of these suggestions.
[17] Page 39 line 20.
When asked whether she was aware that the accused’s daughter, KL, had died of a drug overdose in 1993, she confirmed that she did know that KL’s death was drug related. She said that she was not aware that the accused had had a falling out with her mother over ERC’s sister N allegedly being the person who supplied KL with drugs. It was put to her that she chose to pursue allegations against the accused because of her own negative feelings towards him in combination with his falling out with her mother over the death of KL. She denied this proposition.
She was re-examined. She gave evidence that she did not have a good relationship with the accused whilst she lived at home because he was controlling and violent towards her mother. She described witnessing domestic violence when she was woken by her mother’s screams on one occasion. She went into her mother’s bedroom and saw her on the bed with the accused standing over her, hitting her. She said at that time, she “ran into the kitchen and got a knife and came back with it and jumped on [the accused’s] back with the knife, begging him to stop hitting [her mother]”.[18] She said that the accused then threw her off of his back and walked out of the bedroom. She then gave evidence that she had seen her mother with a black eye, a broken tooth, and whip marks allegedly from being whipped by a car aerial.
[18] Page 52 line 5.
She gave evidence that during his relationship with her mother, the accused was also engaged in relationships with two other women, W and S. She said that the accused had children with all three women and that he constrained her mother’s social interactions to these two other women.
In December 1986 when she was 16, she applied for a restraining order against the accused after he assaulted her by hitting her over the head. She gave evidence that she did not pursue the sexual allegations at that time because her mother begged her not to. She said that her mother was scared of what the consequences would be for her and her other children. She said that she did not return to the police until 1997, when she came back to Australia from the United Kingdom, and her mother disclosed to her the violence she was experiencing at the hands of the accused. She said that she was unable to progress the matter further at this time because too much time had elapsed. When laws regarding time limits changed in 2015, she made a further statement to police.
Finally, she gave evidence that only a couple of incidents occurred whilst she slept in bedroom one. When she moved to bedroom three, the incidents would occur when the accused stayed over at the house, which could be between two and five nights a week.
The prosecution called LMC. She is currently 66 years old and met the accused when she was pregnant with her son H in around April or May 1982. They had four children together. She gave evidence that the accused would visit her at Barunga Street two or three nights per week, and would come and go generally to the house between five and six times weekly. She said that the accused never stayed there permanently as he would also stay with the two other women S and W. She said that the accused would not allow her to socialize with people other than S and W, so she and her children would often visit them and their families.
She gave evidence that the accused was often violent towards her and caused her to have black eyes, a tooth knocked out, whip marks and bruises. ERC had witnessed these injuries. When asked, she said that ERC had on one occasion when she was 12 or 13 years old, come into her bedroom and seen the accused holding her by the throat on the bed. ERC had then gone to the kitchen to get a knife and jumped on the accused’s back to get him off of her.
She said that she would always have a shower between 11 p.m. and 12 a.m. She described an occasion when, after she had come out of the shower, she could not find the accused. She went looking for him and found him standing in ERC’s bedroom, masturbating and saying “I’d like to fuck you”.[19] She told the accused to get out of the room and then asked him what he was doing there. He took her to her bedroom and threatened her; “he said ‘If you ever tell anybody I’ll shoot your kids’… I believed him, yes”.[20] The next day, she spoke to ERC in the kitchen about what had happened and ERC told her that it had been going on for a long time. As a result of this, she installed locks on the bedroom doors. She described this conversation taking place two or three months before ERC moved out of the Barunga Street house, and estimated that ERC was around 13 or 14 years old.
[19] Page 62 line 4.
[20] Page 62 line 12.
She gave evidence that after ERC moved out, ERC had applied for a restraining order against the accused. She said that she asked ERC to drop the order because she was scared of the accused and she was pregnant with his child at that time. She denied having any conversation with ERC where ERC told her that if she did not let her move in with her sister N, she would make up false allegations about the accused abusing her. She provided her own statement to police in around 1998 regarding her relationship with the accused and contacted ERC about this specifically.
She was cross-examined. She agreed that when she met the accused, it had been a gathering where S was present, although she denied knowing that they were in a relationship at that time. She said that whilst she was not aware of their relationship at first, she knew that the accused was frequenting S’s and W’s houses as their relationship progressed. She agreed that she gave a statement to police on 7 August 1999 stating that her relationship with the accused was casual and that she would see him now and again, however she clarified that this would have been referring to the beginning of their relationship. Later on, he would visit more regularly.
It was put to her that the accused would help her children with homework, watch their sporting matches and would receive Father’s Day cards from them. She denied each of these assertions.
She agreed that after his mother died, the accused moved into a Housing Trust unit, but she denied asking him to move in with her at Barunga Street so that she could have assistance paying her rent. She said that he continued to spend two or three nights a week at her house.
She agreed that the accused’s daughter KL died of a drug overdose and when asked, recalled him confronting her about her daughter N being responsible for KL’s death. It was put to her that he had accused N of supplying KL with drugs, causing her addiction. She agreed that this belief caused tension between herself and the accused, culminating in N being forbidden from coming to Barunga Street. She denied that this tension was the cause of the termination of her relationship with the accused. She said that she decided to end the relationship with the help of ERC and the police.
It was put to her that ERC threatened to make up allegations of sexual assault against the accused if LMC would not let her move in with her sister, and that ERC admitted to the accused in LMC’s presence that she had used him as a scapegoat. She denied both of these assertions. She also denied that ERC would ever confide in the accused about things of a personal nature when ERC visited Barunga Street. She did not witness ERC asking the accused for $5,000 to pay for her holiday, nor was she aware that the accused ever helped ERC to buy a car. She denied speaking with her daughter about the current allegations.
The accused gave evidence. He is 66 years old. He said he met the complainant’s mother at the house of a friend of one of the women he was seeing, S. LMC started talking to him and offered to mend his pants. After he picked up his pants from her house, she kept calling him and asking him to come over. For the first few months of their relationship, he only visited Barunga Street and would not stay overnight. The relationship was casual and he would visit her house once a week at most. He split where he stayed between S’s house, his brother’s, and W’s house. Five of LMC’s children were living with her at this time, and she was pregnant with the sixth. They had four more children together. He denied staying at the Barunga Street house three to five nights a week, stating that he would have stayed there no more than two nights per week.
In around 1980, his mother died and he moved into Barunga Street at LMC’s request so that she could save money. He got his own house in 1993 through the Housing Trust. His daughter KL died that year and this impacted on his relationship with the complainant’s mother. He said he found out that her daughter had been supplying KL with drugs, and this caused a disagreement between himself and LMC.
In 1986, he heard that the complainant had made a statement to police alleging sexual assault. He gave evidence that the complainant’s mother told him that this was because ERC wanted to use him as a scapegoat “because she wanted to get out of the house and her mother wouldn’t let her leave”.[21] He said that later on when she was in her late teens and twenties, ERC would brag about how she got her own way; “she just said that about using me and laughed at her mother and swore at her and said ‘I told you I’d get my own way’”.[22] His relationship with the complainant’s mother ended in the late 1990’s.
[21] Page 83 line 27.
[22] Page 84 line 15.
He gave evidence that in March 1983, he did not know which bedrooms the children slept in. He denied ever touching ERC’s bottom or using her hand to touch or masturbate his penis. He said he never went around the house naked, never went into ERC’s bedroom to touch her breast, bottom or vagina, nor attend naked to masturbate, nor talk dirty to her. He said that he could not remember the complainant ever having friends or a boyfriend “because nobody liked her because she was so nasty and violent to the little ones”.[23] He denied ever assaulting LMC, or threatening to shoot her and her children. He said that he did not monitor LMC’s phone calls or stop her from going out; “[she] did what she wanted. She always has”.[24]
[23] Page 86 line 7.
[24] Page 89 line 36.
After the complainant moved out of the Barunga Street house, he stated that she visited her mother quite often and had conversations with him. She did not appear uncomfortable in his presence.
He gave evidence that after KL’s death, his whole family held N responsible for KL’s addiction to drugs and that there is ongoing tension around this.
He was cross-examined. He agreed that he split his time between the homes of LMC, S and W as well as his mother’s house. He agreed that he spent at least one or two days each week at the complainant’s mother’s house between 1982 and 1986. He said that he would not be there more frequently because he would often go up bush during this period. He said that he moved in with LMC but that this did not increase how much time he spent there; he was still visiting the two other women.
He agreed that he did not have much to do with the complainant after she moved out, and said that he did not have much to do with her prior to that time either. He stated that whilst he had little contact with her from the age of 16, he did fix her car when asked. He denied ever going into any of the children’s bedrooms at Barunga Street when ERC was present. He was unsure of exactly when LMC would shower, except that it would usually be at night.
He was cross-examined about each of the incidents alleged by the complainant in bedrooms one and three. He denied all of them, as well as being caught masturbating in ERC’s bedroom by her mother. He denied ever arguing with the complainant’s mother, or physically abusing her. When asked why his relationship with the complainant’s mother broke down, he said that it was because of drugs; “because of the metho and the drugs”.[25] When asked about whether a lock was placed on the complainant’s bedroom door when she was 15 years old, he said that the only lock he was aware of was the one on her door “to stop the kids coming in when she had the sailors coming over”.[26]
[25] Page 98 line 34.
[26] Page 101 line 6.
When asked whether he was controlling of the complainant’s mother because he had suspicions that she was seeing other people, he said that he did not care; “We had an agreement, what she does and what I do is mine. She already knew about the others”.[27] He was asked whether the complainant took out a restraining order against him. He stated that he heard she had, but he had never seen it nor had he been served with it. He denied ever hitting the complainant, nor any of the children. He could not recall any details about why or how she moved out.
[27] Page 101 line 35.
He was re-examined. He detailed his recent health problems, notably a stroke he experienced in 2015 which has caused his left side to become paralysed. He said that he now has difficulty remembering things and yells at his son more often. Prior to his stroke, he said that he never had a temper or got into fights.
The accused called no other evidence.
Addresses
Mr Fowler-Walker addressed on behalf of the prosecution. He submitted that there are three striking and unusual features in this case that result in it being a particularly compelling prosecution case. These features are that there was a witness to one of the incidents, that there was an immediate complaint to the mother the next day consistent with the allegations given in court by the complainant, and that there was an explanation for why the abuse came to an end when it did and why the complainant’s mother did not take steps with the police when she became aware of what had been happening to her daughter. He described how an initially positive relationship between the complainant and the accused progressed into an uncomfortable and frightening one as games changed and he began to visit her bedroom during her mother’s nightly showers. He submitted that the prosecution case has easily established two or more occasions of sexual abuse as the complainant gave evidence of visits from the accused multiple times each week. He said that the accused’s evidence of going bush often and only visiting the Barunga Street house infrequently was vague and should not cause doubt as to the accuracy of the complainant’s testimony.
Mr Fowler-Walker submitted that whilst the complainant only saw the accused masturbating on the first occasion, the consistency of the noises he was making on the following nights allows for an inference to be drawn that he was also masturbating on those other occasions. The evidence of her mother further corroborates this when she described walking into bedroom three and seeing the accused masturbating. He submitted that the immediate complaint evidence, where the complainant spoke to her mother in the kitchen the following day about what the accused had been doing, is consistent with the allegations and can therefore be used to bolster the complainant’s credibility. When the lock was placed on her door soon after, he said that there was a clear explanation for why the abuse stopped when it did. The uncharged acts following the lock’s installation, being the accused’s nudity in the toilet/laundry and the incident of the penis in the bedroom door, also bolster this explanation. He submitted that the evidence of the complainant and her mother when describing these events are plausible and have the ring of truth.
Mr Fowler-Walker suggested that the accused’s case in response was inconsistent and not compelling. The motive to lie put forward appears to be that for some reason the complainant wanted to leave home, however Mr Fowler-Walker said that no explanation was given as to why she wanted to leave badly enough to use the accused as a scapegoat. He submitted that when the accused attempted to discredit the complainant as “nasty”, this reflected poorly on his own credit. He stated that the evidence of both the complainant and her mother were consistent regarding the number of times the accused had visited the house, and the time LMC would usually take a shower. The accused’s evidence that he was never violent towards the complainant’s mother went against ERC’s evidence that she had witnessed an assault in her mother’s bedroom. In relation to the accused’s claim that the complainant was only pursuing allegations against him because of the tension surrounding KL’s death, Mr Fowler-Walker submitted that this was rebutted by ERC’s statements to police in 1986 and 1998, as well as her evidence that she immediately made another police statement in 2015, when she found out that the time limits on reporting sexual allegations had changed. He suggested that any additional detail in LMC’s later statements to the police could reasonably have come from when she communicated with her daughter about her own earlier trial. Mr Fowler-Walker emphasised that the complainant was credible and restrained during her evidence and cross-examination, and that there were few inconsistencies in her evidence.
Ms Matson addressed on behalf of the accused. She submitted that the accused did not visit the house at Barunga Street as frequently as alleged at any point during his relationship with LMC. She said that the defence case is that the present allegations, including any reference to domestic violence, have arisen as a consequence of the complainant moving out, and the death of the accused’s daughter KL due to a drug overdose. The first, being the complainant’s desire to move in with her sister N, culminated in her threatening that if she didn’t get what she wanted, she would report the accused for sexual assault. The accused gave evidence that the complainant had admitted in his presence that she used him as a scapegoat during this argument, and that he had heard her reference this many times since. Ms Matson then submitted that after KL died of an overdose, the accused confronted LMC about whether her daughter N had been supplying drugs to KL. She said that this caused ongoing tension between LMC and the accused, and that it is the defence case that these bad feelings led to the complainant making another statement to police in 1998.
Ms Matson submitted that the evidence which supports this is the way the complainant continued to visit her mother and the accused at the Barunga Street house after she moved out. She said that the complainant’s evidence that she could not have met her mother alone elsewhere lacked credibility. She also said that the complainant’s willingness to visit at the house suggested that she did not live in fear of the accused. She suggested that this was implausible given the nature of the allegations against him and this also eroded the complainant’s credibility. Instead, it is the defence’s case that the complainant felt comfortable not only to visit the accused, but also to confide personal things in his presence and to seek his help when needing money, advice, and assistance with car troubles. She also stated that LMC’s evidence that she was controlled by the accused was disproved by the accused’s evidence that she could come and go as she pleased as she would catch up with friends, go to the shops, and take the children to school. She said that the complainant’s evidence about who she was sharing bedroom one with was inconsistent, as was how many times she said that the accused would visit the house each week. Ms Matson then went on to say that it was implausible that any of the complainant’s siblings, two of whom she shared a room with during the relevant period, never found out what was allegedly occurring to her at the hands to the accused. There is therefore the possibility that the allegations made by the complainant and her mother stemmed from malice and revenge.
Motive of the Complainant to Lie
In this case, it has been suggested that there is evidence from which I might infer that the complainant has a motive to make false allegations against the accused. The accused gave evidence that the complainant had admitted to using him as a scapegoat in order to convince her mother to let her move in with her sister.
In addition to this, the accused gave evidence that conflict arose between himself and the complainant’s mother after his daughter’s drug overdose in 1993, which still endures today. The complainant’s second statement to police in 1998 was said to be in response to the breakdown of her mother’s relationship with the accused because of this tension.
The two motives were therefore said to be the complainant’s desire to move out of her mother’s house in 1986, and the revenge for the breakdown of her mother’s relationship following the accused’s vocal condemnation of her sister N’s alleged role in the death of his daughter.
In assessing the evidence in this case, I must consider the possibility of a motive for the complainant to lie. If she has fabricated her allegations, for any reason, then this will result in the accused being acquitted. However, even if I reject the alleged motive of the complainant to lie, that does not mean that I would necessarily find that she has been truthful. The absence of a motive does not strengthen the prosecution case; it is neutral. Crucially, it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that the complainant was telling the truth.
Forensic Disadvantage
The events in this case are said to have occurred between 1983 and 1985. At that time, the complainant was 12 to 15 years old. The complainant made a statement to police on 9 December 1986 which gave, although in limited detail, a description of the allegations currently before me. She also submitted during her evidence that she applied for a restraining order against the accused at this time, although this was withdrawn a short time later. The accused gave evidence that he was aware that she had taken steps to obtain a restraining order, although I am not aware of the extent to which he knew of the nature of the allegations against him. I do not believe that this knowledge of the restraining order mitigates the forensic disadvantage of the accused in this matter.
There was also evidence led that in 2015, after he was charged with the current offence, the accused suffered a stroke which caused paralysis to his left side, and memory difficulties. I accept that the personal circumstances of the accused have exacerbated his capacity to recall events that occurred over thirty years ago.
I accept that the significant delay between the alleged offence and the trial make it challenging for the accused to fully respond to allegations made. These challenges take the form of a clear recollection of exactly what occurred during the relevant period, when and how often he would visit the complainant’s mother’s house, an ability to challenge the complainant in respect of her recollections, a loss of the chance to make any defence other than simple denial, and perhaps to call other witnesses who may be able to support his version or discredit the complainant.
When scrutinizing the evidence for the prosecution, I will take into account the forensic disadvantages to the accused. I will also take these disadvantages into account when assessing whether the prosecution have proved its case against the accused.
Initial Complaint
There was evidence led of an initial complaint made by the complainant to her mother shortly after the final alleged incident. I can use this evidence to explain how the offending first came to light. I may also use this evidence to judge whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. Consistency of conduct refers to both consistency in making the complaint when it would be expected to be made, as well as consistency between the wording of the complainant and the conduct alleged.[28] I may not use this evidence to demonstrate the truth of what was reported by the complainant’s mother.
[28] R v J, JA [2009] SASC 401, [95] per Duggan J.
Uncharged Acts
I accept that after the charged acts are alleged to have occurred a lock was placed on the complainant’s bedroom by her mother. The accused never came into ERC’s room again. However there were a number of occasions between then and when the complainant left home, when the accused lay in wait for her in the morning when she got up early to get her siblings ready for school. On these occasions he was naked in the toilet and she had to walk past him.
This evidence is relevant and admissible to show the entire nature of the relationship between the accused and the complainant. If accepted, it has a tendency to reveal the interest that the accused had in the complainant, and the continuing nature of it after he had been discovered in her bedroom and warned off by her mother.[29] It may also reveal that he was a person prepared to take risks in relation to sexualized behaviour towards the complainant.
[29] R v Dolan (1992) 58 SASR 501, [503].
She also described an incident when someone poked his penis into her bedroom though the door. I am not satisfied on the evidence that was presented that this was in fact the accused. The complainant could not see who it was. It is possible that it was another male who did this for any number of reasons. I am not prepared to act on this evidence as if it were the accused.
There was also evidence in this case of violence perpetrated on LMC by the accused that was on one specific occasion witnessed by ERC.
This evidence is relevant and admissible as it explains why ERC did not complain at an earlier time and why LMC did not take more action against the accused upon the discovery of him masturbating in her daughter’s room.
There was also evidence that in 1986 the complainant applied for a restraining order after she was hit over the back of the head. This evidence is before me as it explains the sequence of events that lead to ERC leaving home and her first statement to the police.
These are the only uses that I make of this evidence. I direct myself that this evidence of uncharged conduct cannot be used to conclude that the accused is a person of bad character or that he is the type of person who is likely to commit an offence such as the one he is charged with in this instance.
Findings of Fact
I find ERC a credible and reliable witness. She gave her evidence in a straightforward and convincing manner. She did not hesitate to admit any uncertainty she had. Although she could not remember exact dates, she was very clear about when the events were likely to have occurred between 1983 and 1985, and gave reasonable explanations for why she had estimated those dates. The actions she took after making the initial complaint to her mother were entirely consistent with her version of events, and her reason for not pursing the restraining order or legal action in 1986 was plausible in the circumstances. I accept that the complainant initially liked having the accused around until he started to behave in a sexualised way towards her. I found the description of the events constituting the allegations convincing. Some of the allegations are quite unusual, such as the accused entering her room touching her if he could, masturbating and then leaving without doing more. On other occasions, it is alleged he said things to her about wanting to have sexual intercourse with her but never in fact followed through with that act. ERC’s description of knowing that the accused was masturbating without seeing him do the act was also compelling. I find that she did not embellish her version of events or exaggerate; rather she was simply recounting what she could recall.
I found it entirely plausible that the accused did these acts while the complainant’s mother was showering at night and therefore had less chance of being discovered. At the same time of course the complainant knew that her mother could not come to her rescue at those times. I accept ERC’s evidence of how the accused was discovered by her mother when masturbating in her bedroom.
I accept that the complainant did not complain immediately, as she was frightened of the accused, as she had experienced his violent and controlling behaviour in the household. In addition to this, there was an element of fear in relation to her mother and a concern that she would not be believed.
LMC also gave her evidence in a straightforward and convincing manner. Her evidence in relation to the discovery of the accused in her daughter’s bedroom was consistent with ERC. The events that followed were also supportive of this event occurring including her conversation with her daughter the next morning, and her decision to put a lock on the bedroom door. I reject the accused’s explanation for the lock being put on the door, to stop the other children coming in when the sailors where in either ERC or LMC’s room as untruthful and vindictive.
I do not accept as a reasonable possibility that ERC and LMC colluded to give false evidence in this case in relation to the discovery of the accused in ERC’s bedroom and the conversation they had the following day in relation to the accused. As I have said their evidence was consistent but not identical on these topics. There was not an immediate complaint to the police rather LMC confronted the accused and put a lock on her daughter’s bedroom door. I accept their evidence in relation to this.
I also accept that LMC did no more than put the lock on the door after speaking with the accused because the accused threatened her and the children.
I accept that the complainant spoke to her mother on the day after the discovery of the accused in her bedroom and told her that the accused had been coming into her bedroom for a long-time and that this was a reference to the accused committing sexual acts in her bedroom. This is both consistent with the allegations made and the conduct of the complainant and support her credibility as a witness in this case.
I reject the suggested motives to lie by the complainant as not reasonably possibly true. There was no reason for the complainant to make up false allegations in 1986 and then to perpetuate the same false allegations in 1998 and 2015. The suggested motive is a nonsense and I find concocted by the accused in an effort to discredit the complainant and her mother. I accept that there was bad blood as a result of the accused’s suspicion that ERC’s sister had supplied drugs to the daughter of the accused, who unfortunately passed away but I find that this issue was completely separate from any issue of the sexual assault of ERC by the accused. I find the accused is grasping at straws in attempting to connect these two events.
I do not accept that the accused was made a scapegoat by the complainant in an effort to move out of home. I reject the suggestion that the complainant said or intimated to the accused in later years that this was so.
I do not accept that the complainant and the accused shared a close relationship in the years after she left home. I do not consider the examples that were given, including sharing details of her unhappy experience in the United Kingdom or offers to assist with buying a car as in any way ameliorating the allegations made by the complainant. The fact that the accused behaved in the way alleged does not mean that the complainant would not have come to her own family home to see her mother in the decade that followed. It is alleged the accused committed sexual acts in her bedroom at night. There is no reason to think that ERC considered him a personal threat in the middle of the day when visiting her mother. I do not find the alleged motives to lie even a reasonable possibility nor do I consider that the allegations by the complainant or the evidence of her mother stemmed from malice and revenge, as was suggested.
I found the accused to be an unpleasant, argumentative and vindictive witness. He added unnecessary opinion usually in an effort to discredit the prosecution witnesses. Even allowing for the passage of time and his medical condition, he was vague about details such as, where, when and why he “went bush”, why or how the complainant left home, and his relationship with the complainant. I do not accept his denials of the allegations as being reasonably possibly true.
I do accept that the accused split his time between several different homes and on occasions went “bush”. However, I do not accept that this is significantly inconsistent with the complainant’s account.
I do not accept that he was not controlling of LMC and her family. Indeed, his demeanour in the witness box was of a person seeking to control and undermine the prosecution witness.
I do accept that the accused blamed LMC’s daughter, N, for the death of his own daughter and that this caused tension, and the eventual demise of the relationship between him and LMC. However, I do not accept that this has motivated the complainant or her mother to make false allegations or to perpetuate false allegations.
I am satisfied beyond reasonable doubt that the accused went into the bedroom of ERC and sexually assaulted her by touching her on the bottom, breasts and vagina on multiple occasions as alleged. I am satisfied beyond reasonable doubt that he masturbated in her presence and that on the first occasion he came into her bedroom he put her hand on his penis and tried to get her to masturbate him. Further I am satisfied that there was an occasion when the accused entered her bedroom and lay on top of her whilst he was naked and started “humping her”.
I am satisfied that on one occasion ERC’s mother saw the accused in the complainant’s room masturbating saying “I’d like to fuck you” or something similar and that she told him to get out.
I am satisfied that when the accused came to the complainants family home he routinely went into her bedroom at night while her mother was in the shower and engaged in sexual acts with or towards her when she was aged about 12-15 years old.
I am satisfied that each element of the offence of maintaining an unlawful sexual relationship with a child has been proven beyond reasonable doubt.
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