R v Kupfer - [2021] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KUPFER
Criminal Trial by Judge Alone
[2021] SADC 40
Reasons for the Verdict of his Honour Judge Kimber
15 April 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCE AGAINST THE PERSON
The accused was charged with one count of Aggravated Indecent Assault.
Trial by Judge Alone
Verdict: Not Guilty
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) s 13BA(3), s 13BA(5), s 34M, referred to.

R v KUPFER
[2021] SADC 40

Introduction

Arthur Kupfer (‘the defendant’) is charged with the offence of Aggravated Indecent Assault contrary to section 56 of the Criminal Law Consolidation Act, 1935 (‘CLCA’). The particulars of that offence are that between 1 January 2018 and 1 July 2018 at Seaford Meadows, he indecently assaulted CH. It is further alleged that CH was under the age of fourteen years at the time of the offence.
The defendant elected for trial by judge alone pursuant to s 7(1)(a) of the Juries Act, 1927.
These are my reasons for finding the defendant not guilty.
The elements of the offence and issue in the trial
The offence of Aggravated Indecent Assault (‘the offence’) has three elements, each of which the prosecution must prove beyond a reasonable doubt:
1. That the defendant assaulted CH (‘the first element’).
An assault is the deliberate application of force.
2.That CH was under the age of 14 years at the time of the assault (‘the second element’).
3. That the assault was indecent (‘the third element’).
To be indecent, the assault must have had a sexual connotation.
There is no dispute that at the time of the alleged assault the subject of the offence, CH was under the age of 14 years. Her date of birth is 26 July 2007. There is also no dispute that, if the conduct the subject of the charge took place, it was indecent.
The real issue in the trial is the ‘first element’. More particularly, whether the defendant committed the conduct the subject of the charge.
Some legal directions
As this is trial by judge alone, it is not necessary for me to direct myself in the way that I would direct a jury. However, it is appropriate to record some matters.
The onus of proof is upon the prosecution. That onus is beyond a reasonable doubt.
The defendant was interviewed by the police on 13 September 2019. That interview was tendered during the prosecution case (Exhibit P8). In that interview, the defendant denied committing the conduct the subject of the charge and provided some possible motives for CH to have made a false allegation. There is no onus upon the defendant to prove anything that he said in that interview.
The defendant gave evidence in the trial. His evidence also included a denial of the conduct the subject of the charge and the provision of possible motives for CH to have made a false allegation. There is no onus upon the defendant to prove anything he said in his evidence.
In his evidence, the defendant admitted using methylamphetamine during his relationship with CH’s mother. That aspect of his evidence is only relevant to explain an aspect of what was happening in his relationship at the time. More particularly, how he knew that GK was using drugs, what prompted him to tell others of that and to inform why he, at one point, took his four sons to Queensland. That the defendant used drugs has no other use.
The form of aspects of the evidence
The evidence in the trial took more than one form. Pursuant to s 13BA(3) of the Evidence Act, 1929 (‘EA’), I admitted two interviews of CH conducted on 8 October 2018 (Exhibit P1) and 5 December 2019 (Exhibit P3). The transcripts of those interviews were tendered, but only as aide memoires. It is the interviews which are the evidence. CH also gave sworn evidence. I permitted examination in chief and cross examination pursuant to s 13BA(5) of the EA.
Pursuant to s 13BA(3) of the EA, I also admitted an interview conducted with PH on 24 November 2018 (Exhibit P5). A transcript of that interview was tendered, but only an aide memoire. It is the interview which is the evidence. PH is CH’s older brother. He was born on 19 July 2005. PH also gave sworn evidence. I permitted cross examination and re-examination of him pursuant to s 13BA(5) of the EA.
The other witnesses in the prosecution case were: CH’s mother, GK, who is the estranged wife of the defendant and the investigating officer, Detective Brevet Sergeant Klose. As set out above, the prosecution tendered a video interview which was conducted with the accused on 13 September 2019 (Exhibit P8). The transcript of that interview was tendered, again only as an aide memoire.
As set out above, the defendant gave evidence. He did not call any other evidence.
Background
Before turning to CH’s evidence of the conduct the subject of the charge, it is helpful to set out some background.
As set out above, GK is CH’s mother. She is also the mother of PH. CH and PH share the same father. That man is not the defendant. The defendant and CH married on 19 April 2012. They have four children of their own, all boys.
In about 2016, the defendant, GK and those of the four boys born at that time commenced living at an address at Seaford Meadows. Certainly by about late 2017, and quite possibly before, although nothing turns on it, CH and PH were attending at the Seaford Meadows address regularly. They were attending approximately every second weekend and a week of each school holidays.[1]
[1] T87, line 9
One of the activities which occurred when CH and PH would attend the Seaford Meadows address were ‘movie nights’. On more than one weekend, a mattress would be placed on the floor of the loungeroom, immediately adjacent to an L‑shaped couch and in front of the television. Movies would be watched by the defendant, GK, CH, PH and other children old enough to follow the relevant movie. Children and both adults would, at least on occasions, sleep on the mattress and the couch in that loungeroom. It was on one such occasion in early 2018 that CH says that the defendant committed the alleged offence.
In about March 2018, after the alleged offence, the defendant, GK and their four children moved to an address at Hope Valley.[2] It appears that CH and PH visited that address for a time, but stopped doing so in about June or July 2018.[3] On the evidence, CH and PH stopped doing so, at least in part, because of GK’s drug use and the defendant having reported that to other members of GK’s family.[4] As set out above, the defendant was also using drugs, in particular methylamphetamine, at least at Hope Valley.[5]
[2] T87, line 22
[3] T87, line 16
[4] T96, line 24
[5] T118 line 33
GK and the defendant separated in about early September 2018. At that time, the defendant took the four boys of whom he was the father to Queensland. He did so without notice to GK.[6] He returned a few weeks later, in part because he had a reconciliation in mind.[7] If there was any meaningful reconciliation after the return to South Australia, it was brief. In about late September 2018, the defendant again went to Queensland, this time on his own.[8] GK and the defendant have been permanently separated since then, but remain married.
[6] T116, lines 19-29
[7] T97, line 19; T117, lines 7-13
[8] T117, lines 17-23
The alleged indecent assault
The evidence of the conduct the subject of the charge is in CH’s interview of 8 October 2018.
CH said that in about February 2018, there was a movie night at Seaford Meadows. CH said that there was at least a point in time on the night in question when the defendant was on the couch and she was on the edge of the mattress on the floor. CH said that she was ‘next’ to the defendant, albeit that he was on the couch. CH said that she had fallen asleep but she was woken by being touched by the defendant. CH said that when she woke, the defendant was touching the top of her shorts. The defendant then touched her underwear and then down to her ‘privates’. In response, CH moved away and closer to her mother who was also on the mattress. CH said that the defendant started touching her again. CH said that the defendant tried to widen her legs, but she did not permit that. CH said that ‘afterwards’ the defendant placed his fingers into her underwear and touched her on the vagina. She said that she froze.
There is no evidence of other inappropriate conduct before the occasion the subject of the charge, nor after.
Initial complaint
In her interview on 8 October 2018, CH spoke of telling a number of different people what she said had happened. She referred to more than one friend, a teacher, her mother and her brother PH. In that interview, CH was not expressly asked whom she had first told.
CH was interviewed for a second time on 5 December 2019. In that interview, CH said that the ‘very first person’ she told was PH and that she had done so a ‘couple of weeks’ after what had occurred. CH said that she told PH the defendant had ‘touched me on my thing and that’s about it’.
In his interview on 24 November 2018, PH said there was an occasion on which CH seemed sad and he asked her what was wrong. Aspects of what PH said he was told were that CH said:
‘on Friday um, when we were watching a movie ah, when we were sleeping to go to sleep yeah um, she ah, she said um, she said our stepdad was touching her inappropriately when he thought she was sleeping ….
(the defendant) was touching me when, when he thought I was sleeping and um, every time mum turned around he, he stopped like, and then started again’.
At one point in his interview, PH said that he was unsure if CH has used the word, ‘inappropriately’ when speaking of having been touched as described by the defendant.
The defendant submitted that what was said to PH should not be admitted as an ‘initial complaint’ pursuant to s 34M of the EA. Among the reasons the defendant gave were that I should not be satisfied the first person CH told was PH. At least in part, this submission was based upon the fact that, in her first interview, the order in which CH named the people whom she had told did not commence with PH and that it was open to see the interview as consistent with having told friends, and/or the mother, before telling PH.
Despite the absence of clarity in CH’s first interview as to whom she first told of the alleged conduct of the defendant, I accept the evidence given by CH in her second interview that the first person she told was her brother.
I am satisfied that what was said to PH was an ‘initial complaint’ as defined in s 34M of the EA. Although s 34M(4) does not apply in trial by judge alone, I direct myself that the initial complaint was admitted to inform me as to how the allegation the subject of the charge first came to light and as evidence of the degree of consistency of conduct of CH. I further direct myself that it is not admitted as evidence of the truth of what CH said and there may be varied reasons why CH made a complaint of the alleged offence at the time that she did. It is otherwise a matter for me to determine the significance (if any) of the initial complaint in the circumstances of this particular case.
As set out above, there is evidence within CH’s two interviews about her having told persons other than PH about the defendant’s alleged conduct. The only way in which that evidence can be used is to shed light on whether CH told PH first, or not.
Some observations about CH’s evidence
I watched and listened carefully to CH’s two interviews and when she gave sworn evidence. There was nothing in what she said, nor in the way that she said it, which caused me to doubt her honesty and reliability. Based upon her interviews and sworn evidence alone, I formed the impression that she was being honest and that what she told me about the conduct the subject of the charge was reliable. This included there being nothing in her cross examination which made me consider that she might have had some motive to make a false allegation. To the contrary, I was impressed with the genuineness of her responses in cross examination.
Some observations about the defendant’s interview and his evidence
I watched and listened carefully to both the defendant’s interview and his evidence.
The defendant’s interview is not evidence on oath and, obviously enough, was not subject to cross examination. By the time of the interview, the defendant had known for some time that CH had made some allegation of a sexual nature against him. The defendant had first heard of that from GK after he had returned to Queensland for the final time. Further, before the interview, he had been extradited from Queensland and knew why. Notwithstanding these matters, based on the interview alone, there was nothing which caused me to doubt the defendant’s denial of having committed the conduct the subject of the charge. To the contrary, the way that the defendant responded to the allegations in the interview impressed me. His denials were no less compelling than the evidence of CH.
As for the defendant’s evidence, based on his evidence alone, I formed the same view as that formed of his interview.
Among the reasons the prosecution asked me to reject the defendant’s denials was because it was said the defendant had not been truthful about having never slept on the couch. As set out above, it was a key aspect of CH’s account of the alleged offence that the defendant was on the couch and that she was on the edge of the mattress. In contrast, the evidence of the defendant was that on movie nights he either slept on the mattress on the floor or returned to his own bed, particularly if he had to work the following day.[9] The prosecution referred to other evidence in asking me to doubt the honesty and reliability of the defendant on this topic. Among that evidence was the evidence of GK to the effect that it was ‘possible’ that the defendant slept on the couch on at least one occasion of a movie night[10] and PH appearing to state in his interview that on the movie night which he recalled, the defendant had slept on the couch.[11] I am not satisfied that GK’s evidence of a ‘possibility’ undermines the defendant’s evidence on this topic.
[9] T119, line 26
[10] T89, lines 6-16
[11] Exhibit P6 - page 9, line 417
I accept that the evidence of CH about the defendant sleeping on the couch gains some support from PH’s interview. However, having considered the whole of the evidence, I remain uncertain as to whether the defendant deliberately misled me on this topic. While the defendant’s presence on the couch is very important to CH’s account of the conduct the subject of the offence, it is not a matter which the prosecution must prove beyond a reasonable doubt. If I was satisfied beyond a reasonable doubt that CH was touched in the way she has alleged, I would still find the defendant guilty.
The prosecution asked me to doubt an aspect of what the defendant said in his interview about being told by GK of having observed potentially inappropriate conduct by PH and/or CH. GK gave evidence that she observed potentially sexualised behaviour which caused her concern and that she then spoke to the defendant about what she had seen.[12] As to what the defendant said on this topic in his interview[13], I do not consider that he deliberately misled the police. It is common ground that GK told him something about the behaviour of the two children. Rather than being a sign of a lack of credibility, the relevant answer given by the defendant in his interview impressed me. He had the opportunity to criticise PH and/or CH, but did not do so. I formed the impression that when giving the answer relied upon by the prosecution as being deliberately misleading, the defendant was anxious to emphasise that he had not seen any conduct of concern himself and that the police should speak to GK.
[12] T91, lines 18-19
[13] Exhibit P9 - pages 10-11
The prosecution also asked me to doubt the credibility and reliability of the defendant because he gave evidence of having to sometimes discipline CH, refusing her requests to do certain things and then speculated that one or more of those things might have been a motive for her to make a false allegation. The prosecution asked me to contrast what he said in his interview, and in his evidence, on those issues with the evidence of CH when cross examined. She denied all relevant matters which were put to her.[14] It is appropriate to record at this point that in both his interview and evidence the defendant was asked to speculate about possible motives for CH making a false allegation. The defendant does not have to prove that CH was so motivated, nor the background which might have prompted a false allegation.
[14] T68-69
CH’s denials of the background proffered by the defendant for a false allegation, and of having made a false allegation, were compelling. At the same time, I am not satisfied that the defendant misled me when describing his interactions with CH which he then speculated might have been the foundation for a false allegation. It would not be surprising if CH and the defendant recalled matters of background differently given CH’s age, the different positions of CH and the defendant in the family and given that the defendant was asked to speculate as to possible motives for a false allegation. When called upon to speculate, past events might assume more significance than they deserve. This is not to say that I am satisfied that CH’s evidence as to these matters might have been deliberately false.
Conclusion
My task is to decide whether the prosecution has proven the defendant’s guilt based upon the whole of the evidence.
As set out above, the interviews and sworn evidence of CH impressed me. Her complaint to PH shows consistency of conduct, even more so as I am satisfied that the complaint was made relatively soon after the alleged conduct. CH’s evidence receives some support in so far as there were movie nights and, for that reason, opportunity. As set out above, PH’s evidence provides some support for the defendant sleeping on the couch.
The defendant was asked in his interview by the police - ‘… why would (CH) tell us this though. Why do you think she would say that this has happened?’.[15] There was no objection to that aspect of the interview being led. As I have said, the defendant relied upon the possible motives he raised in that interview after that question, and to answers on that topic given in his evidence, in submitting that I might doubt that the prosecution had proved the charge beyond a reasonable doubt. It is not for the defendant to establish that CH might have been motivated to lie. However, as set out above, having carefully considered that aspect of the evidence, including the cross examination of CH, I very much doubt that CH made a false allegation for any of the reasons raised by the defendant in his interview, his evidence, or which were put to CH in cross examination.
[15] Exhibit P9 - page 11, line 488
The whole of the evidence includes the defendant’s interview and his evidence.
Despite being impressed by the evidence of CH, having carefully considered the defendant’s interview and evidence, I am unable to reject his denial of having committed the conduct the subject of the offence.
It follows that I am not satisfied beyond a reasonable doubt that the defendant committed the offence.
I find the defendant not guilty.