R v L, A - [2016] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, A
Criminal Trial by Judge Alone
[2016] SADC 78
Reasons for the Verdicts of His Honour Judge Cuthbertson
8 July 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
- PERSISTENT SEXUAL EXPLOITATION - UNLAWFUL SEXUAL INTERCOURSE WITH A PERSON UNDER 14 - AGGRAVATED INDECENT ASSAULT
Defendant charged with sexual offences against two complainants.
Verdict: Acquitted on all counts.
Pfennig v The Queen (1995) 182 CLR 461, considered.

R v L, A
[2016] SADC 78

The L family had, at all relevant times, a friendship with the H family.
The H family comprised parents, N and D, and E, aged 16 years, C, aged 14 years, and AJ, aged 13 years at the time of trial.
The L family comprised husband A (the defendant), wife Y and children, Jo, Da and Ja.
Most of the associations between the families occurred at the defendant’s premises. I infer that the family friendship was principally motivated by a friendship between the mothers N and Y. The children of the two families, being of similar ages, would play together.
The fathers would have less contact in the family get-togethers for two reasons. Firstly, D worked in remote mining areas and was thus home infrequently. Secondly, the defendant worked from about 3 pm till late in a restaurant. He spoke broken English and, while he was home on many of the occasions when the families visited, he did not participate in the social banter between the two wives.
Both C and AJ claim that during the course of the family visits, the defendant would take the opportunity, while the wives were chatting, to sexually assault them.
In respect of C, the defendant is presented on an information alleging two offences.
Firstly, there is a charge of Persistent Sexual Exploitation with a Child, allegedly occurring between 1 January 2006 and 31 January 2014.
The allegations are as follows:
(a)On an occasion when the families were gathered for a barbecue, the defendant invited C into the kitchen. She was aged approximately five or six years. He lifted her up onto a kitchen bench and put his hand down her top and touched her breasts, and then he put his hand down her pants and a finger into her vagina.[1] This stopped when a male, the identity of whom C cannot remember, came into the house to use the toilet.[2]
(b)The first instance of fellatio between C and the defendant occurred in Ja’s bedroom during the playing of a game called the ‘blanket game’. C was aged about nine years.[3]
The blanket game involved the children getting under a blanket and the accused feeling to identify, without seeing, the individuals under the blanket.
(c)An act of fellatio that occurred in the area of a hallway and lounge at the defendant’s home.[4]
(d)An act of fellatio which occurred in front of the roller doors at the front of the defendant’s home.[5]
(e)An act of penile penetration of the vagina of C in a shed at the back of the defendant’s home.[6]
(f)An occasion where the defendant is alleged to have taken C into the shed and asked to have sexual intercourse and proceeded to masturbate to ejaculation when she refused.[7]
(g)An occasion when the families spent a day at Silver Sands Beach, near Aldinga. The defendant is alleged to have touched C on her vagina and breasts while in the water.[8]
(h)An occasion on 22 January 2014 when, in a bedroom at the defendant’s home during the last time they played the blanket game and the defendant touched her, the defendant inserted his finger into her vagina.[9]
[1]    T38.
[2]    T38.
[3]    T17.
[4]    T17.
[5]    T17.
[6]    T17.
[7]    T18.
[8]    T18.
[9]    T19.
Count 2 is a charge of Persistent Sexual Exploitation of a Child involving allegations of sexual assault against C’s younger sister, AJ, between 17 July 2008 and 30 January 2014.
The allegations are as follows.
(a)In the kitchen, when AJ was getting a drink, the defendant put his hand inside her pants and penetrated her vagina with his finger.[10]
(b)An occasion when the defendant touched AJ on the breasts in the backyard. On this occasion the children had been playing on the trampoline in the garden. The defendant asked AJ for a hug. He was sitting on some garden steps and she came up to him, he put his hand down her T-shirt and touched her in the area of the breasts.[11]
[10] T20.
[11] T21.
Count 3 and Count 4 are alternatives to particulars (a) and (b) respectively in Count 2.
It was opened that these offences were against a background of multiple touching of her vaginal area outside her clothing and multiple occasions of the defendant putting his hand down the front of her shirt.[12]
[12] T20.
Having heard the evidence, I find myself in a position where I cannot conscientiously say that I am satisfied beyond reasonable doubt of the allegations made by either C or AJ.
It is difficult to identify accurately the reasons why, in some cases, one is left with a feeling of unease about the evidence of a witness. That is my position having heard all the evidence in this case.
It is not to say that I disbelieve C or AJ. It is just that I have sufficient concern about the truth and accuracy of the things that must be established beyond reasonable doubt that I cannot make a finding of guilt beyond reasonable doubt.
Some, but not all, of the reasons which cause me to be in a state of disquiet about whether the charges have been proved beyond reasonable doubt follow.
1.C undoubtedly had difficult behavioural issues.
It is difficult to be precise as to when they commenced to manifest themselves[13] and when they ceased manifesting themselves. Even when they ceased being manifest, it doesn’t mean that whatever was in her mind that caused the behavioural issues was not still operative at the time she made these allegations.
[13] T224.
There would appear to have been difficulties necessitating the involvement of Families SA. Issues included taking a knife to school and the threatening to harm a child[14] and the stealing of money from the money box in the class room.[15]
[14] T238.
[15] T238.
There would also appear to have been problems with C telling lies[16] and self-harming behaviours.[17]
[16] T221 & T233.
[17] T233.
C herself said ‘I’m a weird kid’.[18]
[18] T119.
In the state of the evidence it is unclear to me whether C’s behavioural problems, which in all probability encompassed, at least in part, the time when the allegations were alleged to have occurred, affected C’s perceptions of reality, her truthfulness and her willingness to abide by societal norms, including the obligation to be truthful in court and when speaking to persons in authority.
2.There is some evidence that C had a propensity to steal money.[19]
[19] T238.
C alleges she was given money by the defendant in return for sexual favours.[20]
[20] T47.
This established propensity reduces the probative value of any supporting evidence that she was seen by independent witnesses in possession of money in circumstances where she might not have been expected to have been in possession of it, which might otherwise support the proposition that the money came from the defendant for sexual favours.
3.As to allegation (a), the kitchen incident, C says this occurred when she was aged five or six.[21] C was sure that this occurred before Ja was born, i.e. 26 December 2007.[22]
[21] T37.
[22] T37.
That this incident occurred so early in the relationship of the two families has an inherent implausibility about it, as one might have expected the defendant to have firstly won the confidence of C by a process of familiarisation.
For a first sexual approach to C to have taken place at C’s home in the kitchen at a barbecue would have been inherently risky. The defendant could not then have known the likely response of C to a sexual approach and the location was one in which the risk of interruption was significant.
C says they were in fact interrupted by someone walking inside from the backyard.[23]
[23] T38 & T42.
4.As to allegation (b), it was opened by the prosecution that this was the first occasion of fellatio and that it occurred in Ja’s bedroom during the playing of the blanket game.[24] Yet the first occasion was described by C as occurring near the front door and the computer in the hallway (see allegation (c)).
[24] T17.
5.As to allegation (c), this is an allegation of fellatio said to have occurred near the computer in the hallway near the front door.[25]
[25] T45.
On this occasion C says that her mother, brother and sister, Y, the defendant and their children were all present in the home.[26] This was an occasion where C is said to have sucked the penis of the accused. It would have been more than a mere fleeting sexual encounter.
[26] T46.
Given the layout of the house, this would have been an extremely dangerous thing to do in that location because anyone could have appeared suddenly and seen it and it would have taken some time for the defendant to pull up his pants to cover his penis. Virtually all rooms in the house open on to this area.[27]
[27] See Exhibit P1.
Some cooperation would have been required from C in order for the two to disengage quickly if caught in flagrante, making it an extremely foolhardy act for the defendant in that location with the number of persons said to have been present.
C described the incident as taking place for as long as two minutes.[28] I accept that a time estimate in those circumstances may be wildly inaccurate. It is difficult to accept, however, given the number of people in the house and the relative smallness of the house, that this highly obvious and difficult to disguise action would take place for a more than momentary interval of time without being discovered.
[28] T46.
C says she was given money by the defendant after the incident.[29]
[29] T47.
6.An incident is described as occurring at Y’s birthday party at the front of the premises (allegation (d)).
All of the guests were apparently inside the premises and the defendant and C were on the street side of the roller door, exposed to passers-by on the street. It is true that C says that it was dark. It is extremely difficult to accept beyond reasonable doubt that the accused would have done this in circumstances where any passer-by or occupant of any motor vehicle passing would have been able to see.
The relative positions of the defendant and C, with C’s head near the defendant’s crotch, would have been difficult to explain innocently to someone who happened upon it.
Clearly, too, there was a possibility that someone at the party might have exited via the front door. The defendant could not be assured that anyone exiting would have done so by opening the roller door.[30] Had someone exited by the front door, he would have quickly come upon the defendant and C without either having an opportunity to disengage from a compromising position.
[30] See Exhibit P2, photograph two.
7.An incident (allegation (e)) that occurred in the shed when C wanted some glass jars. The defendant apparently kept glass jars in the shed.
Although being able to remember that she wanted some jars, C is unable to remember why she wanted them. The failure to remember may be perfectly understandable given the length of time that has passed. On the other hand, it does reduce confidence in the allegation given that, while able to remember that she wanted glass jars, she is unable to recall why she wanted them.
On this occasion both the defendant and C had their pants and underpants down to their ankles in the shed. If someone had walked in suddenly, it would have been difficult for them both to pull up their pants and underpants quickly without raising suspicion. As it happens, Jo is said to have walked in on this occasion.[31]
[31] T61.
While the defendant may conceivably have been ready to pull up his pants and underpants at a moment’s notice if someone came into the shed, it is difficult to envisage how he could have realistically hoped that C would immediately notice someone coming into the shed and would quickly pull up her pants and underpants in sufficient time so as to avoid detection.
If either was seen with clothing disarranged, it would have been extremely compromising. I am not sure that the defendant would have done what is asserted, given the strong risk of detection.
C had previously told police that the defendant took his T-shirt off as well.[32] This would have made it even more difficult to quickly rearrange clothing to avoid detection.
[32] T92.
8.The next allegation, (f), of an incident occurring in the shed is that the defendant masturbated and ejaculated after C had declined his sexual advance.
The shed floor was such that one would not ordinarily expect it to be cleaned regularly, yet testing with a blue light for phosphorescence to indicate the possible presence of semen on the floor detected nothing.
It is true that semen might not have fallen to the floor. It might have been caught by a rag, towel, underpants, trousers, hands etc. It is a further example of the disquiet which I feel in weighing of the question of whether the allegations have been proved beyond reasonable doubt.
9.An incident (allegation (g)) at Silver Sands Beach, near Aldinga, that involved indecent touching when C and the defendant were both in the water. One might have expected corroboration to the extent that both the accused and C were seen in the water together.
N’s evidence is less than convincing: ‘I know [the defendant] got in and out’,[33] ‘I wasn’t paying much attention to him’[34] and she conceded that the defendant may have kept his shirt on at all times that day.[35]
[33] T206.
[34] T207.
[35] T229.
Two witnesses, however, make it unlikely that the defendant was in his bathers on this particular day or that he entered the water.
JH,[36] a long standing friend of N, has no recollection of seeing the defendant in the water.[37]
[36] T255.
[37] T256.
Y was adamant that the defendant did not go into the water on the occasion of the visit to Silver Sands Beach and she gave a cogent, medical reason for it. I have no doubt she was a partisan witness but I have no reason to disbelieve her merely on that account. N, too, was a partisan witness.
I am left in the position where there is a substantial body of evidence that has the tendency to refute the allegation that the defendant, in his bathers, and in the water, sexually assaulted C on the occasion of the family outing at Silver Sands Beach.
Other matters
1.The fact that C knew there was pornography at the L house (either on the computer or on a DVD which may or may not have been played on the computer) does cause me to consider how she could have known about that. The explanation may be that it was discovered while the children were playing. In any event, it is not so significant a factor as to enable me to make the findings on the specific allegations beyond a reasonable doubt.
2.C described a practice whereby the defendant would pick her up, hold her upside down and put his hand on her private part whilst holding her and putting her head close to his penis.
Apart from the strength required in holding someone six or seven years of age upside down by one leg and touching the vaginal area with the free hand, it is remarkable that virtually no one at any stage noticed this practice of the defendant. E did notice it a couple of times but noted nothing untoward in connection with it. It is said to have occurred in the lounge room. N and Y must have been present in the house and it is remarkable they didn’t notice it.
3.C says that she saw the defendant touch her sister AJ on two occasions while playing the blanket game. She noticed that AJ reacted by looking at C in a ‘really confused’ manner.[38]
These occasions are never mentioned by AJ,[39] although AJ agrees that the blanket game was played. In AJ’s account, it related to the defendant finding or feeling for Jo and not C.[40]
C says that while playing the blanket game she would pull her pants down to her ankles, presumably to facilitate the defendant’s touching of her vagina, yet there is no corroboration of this happening from AJ.[41]
4.The last time they played the blanket game was the last time that the defendant touched C.[42]
This was on 22 January 2014, AJ and Ja were present. C had taken down her pants and the defendant touched her clitoris with his thumb for a good two minutes.[43]
The mothers were having a cigarette in the back yard.
Again there is the fact that the incident is not confirmed by AJ. It would be a very dangerous thing to do in the presence of AJ and with the mothers nearby, albeit outside, with C having her pants down.
[38] T66.
[39] T165.
[40] See Exhibit P5.
[41] T66-67.
[42] See allegation (h).
[43] T72.
Case involving AJ
The complaints of AJ are, firstly, that on an occasion in the kitchen when she was getting a drink, the accused put his hand inside her pants and penetrated her vagina with his finger and, secondly, that there was an occasion in the back yard when he touched her on the breasts.
The activity in the kitchen would have been extremely risky for the defendant. Nearly every room in the house opens into the central open space area which contains the dining room and the kitchen area. Someone coming from the lounge room would be able to turn the corner to the kitchen area and appear suddenly[44] without being seen.
[44] See Exhibit P1 - Plan of House.
The second incident, which allegedly occurred in the backyard of the premises on the stairs, would also have been extremely risky, given the large number of people that must have been at the house (the combined two families).
The stairs are depicted in photograph 57[45] on the left-hand end.
[45] See Exhibit P2.
Anyone coming out of the back door or into the back yard would have been in a position to see. The same comment can be said for the stairs depicted in photograph 51. If they are the stairs the witness is referring to, again it would have been an extremely dangerous location from the point of view of the defendant being detected.
In considering the danger of detection, I have considered that not all of the children would have been as astute as an adult in drawing inferences of guilt from the defendant and a child being in a compromising position.
On the other hand, for the defendant in assessing the risk, there would be no guarantee that it would be a child that detected the activity rather than an adult.
Further, as I have observed, there is the fact that there is no mention by AJ of two instances when it is asserted by C that C saw her being indecently touched by the defendant in the course of playing the blanket game and she acknowledged as much by looking at C.
Whilst specifically adverting to the blanket game, AJ asserts that it related to the defendant trying to find, or feeling in order to find, Jo, not C or AJ.[46]
[46] See Exhibit P5.
Collaboration
There is a likelihood that C and AJ discussed certain allegations that were made against the defendant between themselves. I did not find C to be a particularly private child or to be unduly circumspect in what she said.
I am prevented from positively finding that the two children have independently made allegations against the defendant.
For that matter I do not find that the respective allegations are so similar as to be incapable of explanation by coincidence.[47]
[47] Pfennig v The Queen (1995) 182 CLR 461 at 482.

It is of some significance that C’s elder brother, E, did not notice anything untoward during the family visits to the defendant’s residence. He had more reason to notice as he was older, would play about the house and not remain with N and Y, and had been told by C that the defendant was ‘doing things to her’.
He did notice the girls being held upside down by the ankles on a couple of occasions but noticed nothing untoward in that procedure.
Conclusion
At the end of the case I am left in a position where I am unable to say beyond a reasonable doubt that the charges or any of them are made out.
Accordingly, I return verdicts of not guilty.