R v KMP - [2020] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KMP
Criminal Trial by Judge Alone
[2020] SADC 108
Reasons for the Verdicts of Her Honour Judge Tracey
13 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Trial by judge alone - accused charged with unlawful sexual intercourse (3 counts) and aggravated indecent assault - whether complainant gave credible and reliable evidence in relation to each count.
Held: Not guilty verdict on each count.
Criminal Law Consolidation Act 1935 s 49(1), s 56, referred to.

R v KMP
[2020] SADC 108
Introduction

KMP (the accused) is charged with three counts of unlawful sexual intercourse and one count of aggravated indecent assault. He pleaded not guilty to the charges and elected to be tried by judge alone.
It is alleged that KMP committed the subject offences against the complainant, RKG, who is his cousin.
KMP was born on 4 August 1998 and RKG was born on 13 April 2005.
The charges are as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse With a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
KMP between the 26^th day of October 2016 and the 3^rd day of July 2017 at Christies Downs, had sexual intercourse with RKG, a person under the age of 14 years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
KMP between the 26^th day of October 2016 and the 3^rd day of July 2017 at Christies Downs, indecently assaulted RKG by causing RKG to touch KMP’s penis.
It is further alleged that RKG was under the age of 14 years at the time of the offence.
Third Count
Statement of Offence
Unlawful Sexual Intercourse With a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
KMP between the 26^th day of October 2016 and the 3^rd day of July 2017 at Christies Downs, had sexual intercourse with RKG a person under the age of 14 years, by inserting his fingers into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse With a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
KMP between the 26^th day of October 2016 and the 3^rd day of July 2017 at Christies Downs, had sexual intercourse with RKG, a person under the age of 14 years, by inserting his penis into her vagina.
Prosecution case
KMP lived with RKG and her family at all relevant times. He slept in a caravan at the rear of their property but had full access to the facilities in the house. KMP and RKG shared a common interest in Xbox games and would often play such games together in the loungeroom, or watch Netflix.
KMP sexually assaulted RKG in the lounge room on three occasions. She disclosed the offending in May 2018 to a friend, APA, after receiving a text message from KMP. RKG then disclosed the offending to her mother through a series of text messages and a discussion later the same day.
The prosecution called RKG, APA, ELG (RKG’s mother), CAG (RKG’s father), AHG (RKG’s sister) and ECG (RKG’s brother).
Elements of the charged offences
Unlawful sexual intercourse
Counts 1, 3 and 4 concern the offence of unlawful sexual intercourse.
The prosecution must prove beyond reasonable doubt that:
·KMP had sexual intercourse with RKG.
Sexual intercourse includes penetration of the vagina by any part of the body of the accused. Here it is alleged, in relation to count 1 and 4, KMP inserted his penis into RKG’s vagina. In relation to count 3 it is alleged that KMP inserted his fingers into RKG’s vagina.
·At the time RKG was above the age of 12 years and under the age of 17 years.
Aggravated indecent assault
Count 2 concerns the offence of indecent assault, aggravated by the fact that RKG was under the age of 14 years at the time of the offence. The prosecution must prove beyond reasonable doubt that:
·KMP unlawfully assaulted RKG;
·the assault was accompanied by, or occurred in, circumstances of indecency. The indecent circumstances must involve a sexual connotation;
·RKG was under the age of 14 years at the relevant time.
For the purposes of all offences, consent is not relevant.
Agreed facts
The following facts were agreed:
1.The complainant, RKG, was born on 13 April 2005.
2.The accused, KMP, was born on 4 August 1998.
3.The accused resided with RKG’s family from 27 October 2016 until 3 July 2017.
4.The complainant, RKG, attended Seacliff Primary School at the relevant time.
5.School attendance records for RKG from 1 September 2016 to 31 August 2017 show various absences by RKG from school.
6.The matter was reported to police on 23 May 2018.
7.KMP was arrested by police on 11 July 2018.
General directions
KMP is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly on the prosecution. KMP is not obliged to prove that he did not commit the offences charged. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict KMP of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
KMP elected not to give evidence, as was his right. I have not drawn any inference adverse to him because of his exercise of that right. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
I must assess each witness as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
The prosecution led evidence of RKG’s communication with APA as ‘initial complaint’. The complaint to APA was referrable to the alleged offending comprising count 1. Evidence of RKG’s communication with ELG was led as an elaboration of the initial complaint.
The complaint evidence is relevant to how RKG’s allegations first came to light, and as evidence of consistency of conduct by RKG. The evidence is not admitted as evidence of the truth of RKG’s complaints about KMP’s offending.
Oral applications were made by the prosecution for special arrangements pursuant to s 13(1)(a) and (b) of the Evidence Act 1929 (SA) for the taking of the witnesses’ evidence, without objection. Those arrangements were for RKG to give evidence via CCTV, the court to be closed, a court companion and her evidence to be recorded; and for all other witnesses to give evidence via CCTV. I granted the applications.
Evidence of RKG
At the time she gave evidence, RKG was 15 years of age. She said she lived with her parents and siblings. Her father is blind and hearing impaired. Her sister who is 16, has been diagnosed with autism spectrum disorder, and her brother is legally blind and suffers epilepsy.
At the relevant times KMP lived in a caravan in the backyard of the family home.
RKG said that she and KMP became closer while he lived there, spending time together at family dinners and playing Xbox. They would play Xbox together whenever the lounge room was free. The family had Netflix at the time which she and KMP would watch, but not often together.
In the first part of 2017, ELG was not working and would only leave the house to get coffee with friends.[1] CAG went sailing on Wednesdays or Saturday nights but otherwise would be home. AHG was doing school online as opposed to attending school at the time. EDG was not attending school and would spend his time gaming or sleeping. AHG would sometimes play Xbox with RKG and the accused.
[1] T22.
Count 1
RKG said KMP first sexually assaulted her during the day in the lounge room. She could not say whether this was before or after her birthday on 13 April, or whether it was a school day or weekend. She was playing Xbox with KMP in the lounge room but could not recall which game they were playing. EDG and CAG were home at the time. CAG was in the dining room on his computer and EDG was either sleeping or gaming in his bedroom.
RKG was sitting in the corner of the L‑shaped couch and KMP was sitting to her left.[2] She remembered that she was wearing grey sweatpant shorts.[3] KMP started touching her thighs, using his right hand to slide his hand down her inner thigh, on top of her clothing. He was directing her actions in an aggressive manner. She was scared KMP was going to hurt her and she was confused about what was going to happen. He told her to pull down her pants and he tugged at them, helping her to hurry her up.
[2] T25.
[3] T25.
RKG was standing and KMP pushed her over onto the couch so her hands were on the couch and she was bent over. She did not say anything to KMP or do anything in response to him. KMP pulled his penis out of his pants, over his boxer shorts and tracksuit pants. He had his hand on her lower back and put his penis in her vagina, and she felt pain.[4]
[4] T25.
They heard CAG’s chair creak and it sounded like he was going to get up but she did not hear his footsteps. KMP continued to put his penis in her vagina. She told him to stop and tried to push him off her, using her legs to kick. She then pulled her shorts back up and went to her room.
RKG said she was scared that KMP would hurt her because he had been very physically abusive towards ECG and CAG. She described witnessing KMP fighting with ECG and to push CAG into a wall causing him to fall over when he had intervened. She has also heard him be verbally abusive towards her family members. She could not remember a time when KMP had been verbally abusive towards her. He only ever physically hurt her jokingly, when they would wrestle. She also had seen KMP swinging collectible knives around in the backyard.
RKG said she did not tell anybody about what KMP had done as she was too scared of what he might do.
Count 2
RKG said the second incident was maybe a week after the first. It occurred in the loungeroom later in the day.[5] She could not recall if it was a weekday or weekend.[6] She was playing on the Xbox with KMP. She could not recall if anyone else was home at the time. She was sitting in the corner of the L-shaped couch and KMP was sitting to her left.
[5] T33.
[6] T33.
They were sitting playing Xbox, sharing a blanket because it was cold, when KMP started fidgeting. RKG was wearing her dressing gown and KMP was wearing Nike tracksuit pants and the Sons of Anarchy vest which he always wore.[7] He grabbed her left hand and put it over his penis which was still under his pants. KMP told her to move her hand up and down and his hand was guiding her. He then brought his penis over the top of his tracksuit pants and made her continue.[8] She could not say how long she did this for. The blanket was still on. She did not say anything to KMP or try to resist in anyway as she was too scared. She could not recall how the incident came to an end. Again, she did not tell anybody, because she was too scared that if she did, KMP would hurt her.[9]
[7]    T34.
[8]    T35.
[9]    T36.
Counts 3 and 4
A few weeks before KMP moved out,[10] RKG was home from school as she was unwell. She was sitting in the lounge room under a blanket watching Netflix on her iPad. KMP walked in,[11] talking to his girlfriend on the phone via FaceTime. When he hung up the phone he sat down and watched what she was watching for a while and then asked if they could change the show. When she said no, KMP got mad and asked again if they could watch something else. RKG said that she would watch something else in her room and got up to leave with her blanket and iPad. KMP pulled her shirt and pulled her back onto the couch, asking that they watch something together.[12]
[10] T40.
[11] T36.
[12] T37.
They decided on The Simpsons movie which they watched for a while. KMP was again sitting to the left of RKG,[13] lightly sliding his right hand over her clothing,[14] slowly into her inner thigh towards her vagina.[15] He then put his hand under her clothing and started touching her vagina, sticking his fingers inside as his hand moved up and down.[16] Her legs were crossed at this time.[17] Neither she or KMP said anything.
[13] T37.
[14] T37.
[15] T37.
[16] T37.
[17] T37.
RKG said she then grabbed KMP’s hand from under her clothing and pulled it off.[18] She was trying to get up again to go to her room when he dragged her back to the couch.[19] She fell so that her back was on the bottom part of the couch.[20] KMP spread her legs and took her pants off. While standing, he put his hand behind her head onto the couch on the back of the couch, with his knees leaning against the bottom part of the couch and was using his right hand to direct his penis into her vagina.[21]
[18] T38.
[19] T38.
[20] T38.
[21] T38.
The incident ended when AHG, who was home doing her online lessons, opened her bedroom door and went to the toilet.[22] RKG pushed KMP off, grabbed her blanket, iPad and pants, and went back to her room.[23] She was feeling shaken up and scared.[24] At the time, her mother was running errands and her father was out in the shed.[25] Her brother was sleeping in his bedroom.[26]
[22] T39.
[23] T39.
[24] T39.
[25] T39.
[26] T39-40.
She did not tell anybody what KMP had done to her because she was scared.
Uncharged act
RKG described an occasion when she was in bed and heard KMP go to the toilet.[27] She could not remember what time it was.[28] She knew it was KMP because her father did not use that bathroom and she would have heard her brother’s door creak. She fell back to sleep but then felt her bed shake and she felt something hard behind her.[29] She thought that someone was behind her but did not know who it was.[30]
[27] T40.
[28] T40.
[29] T41.
[30] T41.
Complaint evidence
RKG said she did not tell anyone about what KMP had done to her because she was scared. The first person she told about the offending was her best friend, APA, a year after KMP moved out.[31] A few months beforehand, there had been a lot of talk about KMP amongst the family and a few weeks beforehand he texted her that he saw her father in the city, which worried her.[32]
[31] T41.
[32] T42.
She told APA about what KMP had done via text message. Screenshots of the messages are shown in Exhibit P3. RKG said she did not recall any responses that APA gave or sent her.[33]
[33] T44.
RKG told ELG via text message not long after telling APA, and included screenshots of the messages she had sent to APA.[34]
[34] T86.
She also spoke to ELG in person when she got home.[35] She could not recall what she told ELG, but said she did not tell her everything that KMP did. She only told ELG about the first incident because she was scared ELG would not believe her.[36]
[35] T46.
[36] T46.
Cross-examination
In cross-examination, RKG said that in relation to the events that concern count 1, CAG was at his computer, ECG was in his bedroom and AHG and ELG were out.[37] She could not recall how long she and KMP were playing Xbox before the inappropriate touching started.[38]
[37] T53.
[38] T53.
KMP started touching her left thigh with his right hand. Her pants came off when he told her to get up and asked her to pull down her pants and he helped her tug them down.[39] She agreed that in her first statement to police dated 11 June 2018, she said that KMP took her pants off.[40] She could not say why she had given a different account.[41]
[39] T54.
[40] T55.
[41] T55.
She recalled she was wearing grey sweatpant shorts, but agreed that she told police on 5 July 2019, in her third interview, that she could not recall what she was wearing.[42]
[42] T56.
RKG agreed that she could not recall the exact date or month that the incident occurred, but had told police in her first interview that she thought it was in June or July because at that time it was really cold weather.[43] She said KMP moved out in July 2017 and that the first incident occurred three months before that. She agreed she told police in her interview on 5 July 2019, that the first incident happened about four or five weeks before he left. She could not explain this difference. She agreed she was confused about these incidents and not sure what incidents occurred at what time.[44] She disagreed that she had jumbled the incidents up into one at one point and denied telling ELG on 6 May 2019 that she had done so.
[43] T57.
[44] T58.
RKG said that there had been no inappropriate behaviour by KMP towards her before the first incident, but then agreed that she had told ELG of an incident where she was wrestling with him and he pushed his hard penis against her.[45] She said she remembered telling ELG about that incident but could not remember why she had done so.
[45] T61.
RKG agreed that in her first police interview she did not tell police she told KMP to stop.
RKG could not explain why her evidence was that KMP had used his right hand to touch her left thigh, whereas she had told police he used the fingers of his left hand to lightly touch her inner upper right thigh. RKG agreed it was her evidence that KMP had not said anything to her about the incident afterwards, and that she did not speak to him. In her first interview with police she had said he told her ‘I’ll do something, he didn’t say exactly what’. When asked about the difference, she said she had forgotten to say it.[46]
[46] T65.
RKG agreed she had described ‘putting up a fight’ when she spoke to police and had described slapping and pushing KMP. She said she did not yell out during the incident. If she had yelled from the loungeroom, CAG would be able to hear her, but only if he did not have his computer headphones on. ECG would have been able to hear her with his hearing aids in.[47]
[47] T69.
RKG said she could not remember why there were differing accounts as to how the first incident ended. She agreed it could have been because she was confused about the incidents.[48]
[48] T70.
RKG agreed that she did not always say that there were three incidents, and that when she first spoke with ELG she only described the first incident. She again denied that she jumbled them up.
In her first interview with police, RKG described the first incident and the uncharged act. She agreed that she gave as much information to police as possible. She said she decided to provide police with the detail of the person in her bedroom even though she could not remember much about it, because she knew it was important to disclose. RKG agreed that she was quite adamant when she told police that there was only one incident apart from the uncharged act.
She said she had not told police about the other assaults because she was not sure anyone would believe her that it happened more than once. She told APA about one incident because she did not think APA ‘could handle’ all the other ones, or believe her. She accepted she had told police ‘I got scared to tell you that there was more because I didn’t have as much information as the first time it happened, so it sort of just got to me and I got a little freaked out about how I would explain that.’[49]
[49] T79.
In relation to count 2, RKG agreed that during her third interview with police on 5 July 2019, she did not tell police anything about those events. She said she could not remember why she did not tell police, but denied it was because it did not happen.

She agreed that on 28 August 2019, she told police that she had been watching Netflix immediately prior to the second incident, rather than playing Xbox.
She agreed she had told police that KMP was sitting to her right and grabbed her right hand with his left hand and put it on his penis over his pants.[50]
[50] T77.
In relation to counts 3 and 4, RKG agreed her evidence was that KMP had inserted his fingers in her vagina then she grabbed his hand and pulled away, standing to go to her room when he pulled her down and then he spread her legs and took off her pants. She said she could not remember why she told police on 28 August 2019 that she was sitting next to him with her legs spread when he told her to stand up and he pulled down her pants and knickers.[51] She agreed she was not sure about the third incident, but maintained that it had happened.
[51] T80.
RKG denied that she spoke to APA after sending her the messages, or that she told APA that the incident had occurred in the bedroom.
RKG agreed that there were two times when KMP inserted his penis, the first was when he inserted his penis from behind her and the second incident where he faced her. She agreed that in May 2019, she had told ELG that both incidents happened in the same way, that is, face to face.[52] She could not explain this difference. She disagreed that it was because she was confusing the events in her mind. What she told ELG was incorrect. She said that she could not remember why she told her the wrong thing.
[52] T60.
RKG agreed that when KMP moved in, he became like an older brother and that they got on pretty well.[53] She generally enjoyed his company. She did not have memory of chatting with him on Facebook Messenger.[54] She would text him to see what he was up to and text him from inside the house to see if he was in the caravan.
[53] T51.
[54] T51.
RKG denied KMP sent her a photo of CAG on a bus shortly before she complained to APA.[55] She agreed that KMP sent her a message saying that he had seen CAG, but was sure he had not sent a photo. KMP also rang her a week after moving out.
[55] T81.
In her affidavit of 28 August 2019, RKG stated that she remembered a phone call after KMP moved out which was the last conversation she had with him. She ‘blocked him’ after that because her family no longer had contact with him and she was scared of him. She blocked him on all communication formats.[56]
[56] T82.
RKG was shown copies of text messages sent between herself and KMP on 24 January 2018. She said she could not remember the communications. The messages recommenced again on the evening of 26 January 2018 and then on 15 February 2018, 16 February, 22 March, 23 April and 24 April 2018. On 4 May 2018, KMP sent a message that he had seen CAG five minutes ago and sent a photo of him sitting on a bus.
Evidence of APA
APA described herself as RKG’s best friend. In 2018, she received text messages from RKG through Instagram disclosing that she had been touched in an inappropriate way, showed her ‘his thing’ and made me ‘do it’, had asked him to stop ‘but he wouldn’t’ and was scared her mother would not believe her.[57]
[57] Exhibit P5.
APA said she recalled telling RKG to speak with ELG. That was all she remembered. APA said she was pretty sure RKG told her it was KMP, but she did not remember when. She did not think that RKG had told her how many times it had happened. She said that she was pretty sure RKG had told her it had occurred in her room.[58]
[58] T93.
In cross-examination, APA agreed that the day after she received those messages, or shortly thereafter, she had a conversation in person with RKG. They discussed what RKG had put in the text messages. During that conversation RKG told her that the offending had occurred in the bedroom.[59]
[59] T93.
Evidence of ELG
ELG said that RKG has learning difficulties, particularly around language and comprehension and struggles to follow written text and needs support at school.[60] She said her son, ECG, has Stickler syndrome, which is a connective tissue disorder. He has a moderate to severe hearing impairment and is legally blind. He is achromatic, meaning that he sees only one colour, and has very limited vision in the corner of one eye. He fatigues quickly, has epilepsy and occasional vocal cord paralysis. Her daughter, AHG, has autism spectrum disorder.[61] ELG herself has a partial hearing impairment.[62]
[60] T96-97.
[61] T97.
[62] T98.
She said that at the time KMP was living with her family, he was 18 years of age. He was involved in a Flexible Learning Options program. KMP had full access to the house facilities and had all meals provided.[63] He stayed with the family until early July 2017, and was asked to leave for reasons unrelated to this matter. She described KMP as verbally aggressive on occasion. She described it as swearing and verbally yelling. He would be aggressive usually towards inanimate objects.[64] She described the relationship between RKG and KMP as being like any sibling relationship, in that there were fights and there were good times. She regularly saw them playing Xbox together in the loungeroom.[65]
[63] T99.
[64] T102.
[65] T103.
ELG said that RKG texted her one evening when ELG was waiting at a train station. Initially RKG shared the text that had been sent to APA.[66] When she returned home she had a conversation with RKG. She said that RKG spoke in very vague, naïve sort of language. ELG said she was very careful not to ask RKG anything leading, and just asked her what had happened, wanting to gauge whether to go to the police.[67] RKG told her basically that ‘the pants had come down’, and he had ‘put it inside her’. She said that the ‘leggings have been pulled down’. ELG said that she was trying to recall from which conversation the information came from, because there were several conversations. In the first conversation, RKG said it had occurred in the loungeroom. They were gaming. She described what had happened in a naïve and generic way. She did not specifically use any language concerning genitalia. She just said things like ‘he made me put my hand on it and it was hard’.[68] She described RKG as very quiet and teary and thinking that she was in trouble. The following day they went to Sturt police station.[69]
[66] T106.
[67] T108-109.
[68] T109.
[69] T110.
In cross-examination, ELG agreed that she had a number of conversations with RKG about what she disclosed in the text messages. In the first conversation, RKG had only mentioned an incident where he inserted his penis and when she had woken up in her bed and KMP was in bed with her.[70]
[70] T110.
While walking together on 6 May 2019, RKG told her that there were a number of occasions that were all jumbled up.[71] She agreed RKG had said to her words to the effect that she got all the bits and made it into one because that would be easier for the detective. ELG said that she was not sure whether RKG was referring to her own memories being jumbled up, or whether she jumbled the stories up. She agreed however that RKG told her that she had got all of the bits and made it into one, to make it easier.[72]
[71] T111.
[72] T112.
In re-examination, ELG was asked whether the word ‘jumbled’ was a word that RKG used. ELG said that she quoted RKG in the email to the detective, so that if she had put it in quotes, then yes, that was the word she used, otherwise she could not say.[73]
[73] T113.
Evidence of CAG
CAG said he is totally blind. He also has a hearing impairment and relies on hearing aids.[74] CAG described KMP’s collection of knives and swords.
[74] T116.
He said he was aware of an altercation between his son, ECG, and KMP. He was not in the room when it started but came in to tell them to stop. It occurred in ECG’s room and RKG was not present.[75]
[75] T118.
He said that RKG did a lot of gaming with KMP. RKG and KMP had a good relationship. KMP was one of those people who got on well with a lot of people.[76]
[76] T119.
CAG said that with his headphones on while he is using his computer, he may hear some background noise, but generally would not be able to hear what is going on in the house.[77]
[77] T120.
In cross-examination CAG said that during the incident involving an argument between ECG and KMP, KMP did not push him. He said that he has never experienced any violence or anything like that from KMP.[78] He said that he could probably not hear someone yelling from the loungeroom while music was playing, but when there were pauses in the audio, he could hear more.[79]
[78] T120-121.
[79] T121.
Evidence of AHG
AHG said that in the first half of 2017 she was not at school and spent most of her time in her room. She stopped going to school about halfway into Term 1 and resumed after KMP moved out of the home. She described the relationship between KMP and RKG as a bit rocky and that they did not seem to get along. She said that sometimes KMP annoyed RKG and sometimes she annoyed him.[80] KMP and RKG did not spend a lot of time together and when they did, they were hanging out in the loungeroom talking and RKG may have occasionally played Xbox with him.[81]
[80] T124.
[81] T124.
In cross-examination AHG agreed that sometimes she might spend time with KMP and RKG playing Xbox. She would not spend all of her time in her bedroom. She has a slight hearing impairment but generally can hear quite well and has full sight.[82]
[82] T124-125.
Evidence of ECG
ECG is the older brother of RKG. He is legally blind and requires hearing aids. He said that hearing aids can make situations better or worse.[83] He described KMP as one minute being incredibly generous and kind, and the next very cruel and mean to RKG. He said that RKG quite often spent time with KMP and they would be in the loungeroom playing Xbox together.[84]
[83] T128.
[84] T129.
ECG said that he would spend the majority of time in his room playing video games or sleeping due to his sleeping disorder. When he played video games he would use a headset designed for deaf people. When he had his headset on he was not able to hear what was going on in the rest of the house. He said that he has never been involved in any fights with KMP at his house.[85]
[85] T130.
In cross-examination, ECG said his hearing has deteriorated over time. It was better in 2017 than it is currently. His eyesight has remained the same. He agreed that he would occasionally play Xbox with KMP. Only very occasionally did he leave his room.[86]
[86] T129-130.
Submissions
The prosecution submitted that each of the described sexual acts are admissible in proof in relation to each other to explain how the offending commenced; the context in which it occurred; why KMP was emboldened to continue the offending; and, why RKG submitted to the offending. The probative value of such evidence used in this way substantially outweighed any prejudicial effect. Further, each sexual act described by RKG was admissible in proof of other described sexual acts as evidence of KMP’s sexual interest in her and of his tendency to act upon such interest. Again, it had strong probative value substantially outweighing any prejudicial effect. Evidence of KMP’s aggression could be used to explain the dynamics of the relationship and the context in which the alleged offending occurred; why RKG might have complied; why she may not have complained; and, in turn, why KMP might have gone on to offend.
There was clearly opportunity for KMP to offend and while members of the family may have been home at that time, CAG is hearing impaired and when on the computer with the headphones, would not necessarily hear what was happening in another room. ECG had sleep issues, spent much of the time in his room, was hearing impaired and spent a lot of time on the computer. Similarly, AHG, who was suffering from mental health issues at the time, spent the majority of the time in her bedroom.
The prosecution submitted that RKG was clearly a truthful witness and there was a ‘ring of truth’ in her account of the separate events. The prosecution acknowledged however, that it was harder to assess whether her evidence was reliable.
As to the messages between herself and KMP, it was submitted that RKG had not been caught out in any lie. She simply had no memory of them. Plainly her evidence that she had blocked KMP on social media was incorrect even on her own evidence, as she had said that she received a text message from him about seeing CAG. Her evidence was that she received a text message a couple of weeks before making the complaint to APA was plainly correct. At most, it would appear RKG might be wrong about when she blocked KMP. The prosecutor submitted that the messages between KMP and RKG did not demonstrate that she was not scared of him. She could not remember them, and was at a disadvantage of explaining what her thoughts were at the time. The messages might show she was struggling with mixed emotions at the time she sent them.
While there were some inconsistencies as to the extent of the aggression shown by KMP that she had witnessed, the fact that there were episodes of verbal abuse or physical abuse that she had witnessed explained why she complied with him.
The inconsistencies as to what RKG had told police were, the prosecution submitted, relatively minor and it was unsurprising that she gave a more detailed account in her interview with police two years ago and then forgot some of that detail two years later.
It was reasonable to accept RKG’s reasons for only reporting one occasion of abuse because no one would believe her, and not surprising that she thought her 12-year-old friend would not be able understand that it happened more than once.
The prosecution submitted that the decision to report one incident to police to make it easier for them did not present any difficulty in making findings in relation to each charge. ELG’s interpretation that RKG had jumbled them up, did not mean RKG had actually done so.
Defence submissions
The primary submission of defence was that the evidence of RKG could not be accepted beyond a reasonable doubt, having regard to the various inconsistent statements and the inconsistency of conduct in RKG’s complaint.
The only consistency in the complaint evidence given by RKG, was that KMP had contacted her via text message in May 2018. Clearly the text messages between RKG and KMP showed she was not fearful of him.
While each count should be considered separately, any doubt with respect to one aspect of RKG’s evidence ought to be considered when assessing her overall credibility. Flaws in the prosecution case cannot be quarantined to the individual counts.
It was clear from ELG’s evidence that RKG had described having ‘jumbled’ her accounts. Plainly from what followed, ELG was sufficiently concerned about what RKG had said to disclose it to police. Defence counsel noted that when RKG was asked in cross-examination whether she was confused about the incidents, there was a long pause and when the question was repeated, RKG, although not accepting she had jumbled events, acknowledged she was confused.
RKG’s conversation on 6 May with ELG must cast doubt on RKG’s evidence, particularly as to counts 3 and 4 in that RKG accepted that she had told ELG that the intercourse always happened from behind. APA said she had been told the offending occurred in the bedroom, and RKG denied there was any conversation with APA over and above the text messages.
RKG’s explanation as to her failure to tell anyone about any further offending until May 2019, made no sense particularly when she had told police at her initial interview about the uncharged act.
While RKG gave the most consistent account regarding count 1, there were still significant inconsistencies as to which hand was used to commence the inappropriate touching, how her pants were taken off, what pants she was wearing and the accounts she had given of being fearful as opposed to confused and her initial report to police of in effect, fighting for her life, slapping and kicking KMP.
Discussion
To find KMP guilty of any charge, I must accept RKG as both a truthful and reliable witness and must be satisfied beyond reasonable doubt of her evidence.
There were many inconsistencies between RKG’s evidence in court and what she had told police. I accept that allowances must be made for RKG’s age at the time the offending is alleged to have occurred and for the various difficulties described by ELG. RKG was however not a very young child at the time, and the events were not so long ago. RKG struggled at times to give any explanation for the differences in her descriptions of the events and resorted to an inability to remember when questioned quite fairly and relatively gently by the cross‑examiner, about differences in the accounts she had given.
While some inconsistencies were not of any meaningful significance, such as which hand was used or how RKG’s pants came to be down or removed, others were more concerning. For example, the different versions of how the acts of penetration occurred, RKG having accepted that she had told ELG that the two acts of penetration had occurred from behind. RKG had also agreed she had told ELG of an incident where KMP was wrestling her and pushed his hard penis against her, whereas in her evidence she described the first inappropriate conduct as the incident she described in count 1. I have also found it difficult, given my assessment of APA as a truthful and reliable witness, to accept RKG’s evidence that following the messages to APA, there was no discussion between them.
That RKG chose to portray KMP as a man who she had witnessed be physically violent to her father I regard as an embellishment, which has had a negative impact on my assessment of her evidence more generally.
I did not find it difficult to accept that a complainant of RKG’s age may not, at least initially, disclose more than one occasion when KMP offended against her. She may well have been concerned that APA would not believe that KMP had offended against her more than once and felt embarrassed that she had made no complaint after the first occasion. When she came to discuss the matter with ELG and police however, particularly in the face of specific questioning, her rationale of it being easier for police, is more difficult to accept.
RKG’s parents were both genuine and impressive witnesses. Neither sought to embellish details or to tailor their evidence to reflect poorly on the accused.
I am in no doubt about ELG’s evidence, that RKG had told her that she had jumbled the events. Clearly ELG appreciated the significance of what RKG had told her and was sufficiently concerned to quickly bring the issue to the attention of the investigating officer. While RKG did not accept she had jumbled the events, she did accept she had some confusion, and this was plainly so.
RKG gave a relatively consistent account in relation to the allegations that concern count 1, however her description at least to police, of slapping and pushing KMP is not entirely consistent with the fear she said she felt towards him. Similarly, her contact with KMP after he had left the home is inconsistent with the fear she expressed having continued to experience, and which she gave as the reason for not having made a complaint earlier. Certainly, by January 2018 at least, she did not appear to be frightened of KMP. The messages had been initiated by RKG and can be described as chatty and friendly, and their tone does not sit comfortably with her explanation for having complied with him or delaying her complaint because she feared him. I cannot accept that the messages arise from RKG’s mixed emotions.
There is no doubt that RKG is an intelligent young woman and there were aspects of her evidence which, as the prosecution submitted, had a ring of truth. While I do not go so far as to say that the alleged offending in counts 2, 3 and 4 were concocted as an afterthought in RKG’s mind, I am left with the uncertainty and confusion she expressed about the circumstances of the offending and numerous inconsistencies in her accounts, making it difficult overall to be satisfied that I have heard an accurate version of the events relevant to each charge. In those circumstances, as I cannot be satisfied to the requisite standard that KMP offended as alleged, I must find him not guilty of all charges.