R v L, B
[2020] SADC 8
•6 February 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, B
Criminal Trial by Judge Alone
[2020] SADC 8
Reasons for the Verdict of His Honour Judge Soulio
6 February 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with a single count of indecent assault, namely touching the complainant on the vagina while she was clothed, during the course of a tickling game, said to have been committed between 1 January 1995 and 31 December 2001.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34CB, 34M, 34P; Children’s Protection Act 1993 (SA) s 11, referred to.
R v Gardi [2015] SASC 186; R v Dickson [2019] SADC 4; R v Court [1989] AC 28; R v Harkin (1989) 38 A Crim R 296; Drago v The Queen (1992) 8 WAR 488; R v C, M (2014) 246 A Crim R 21; R v J, J A (2009) 105 SASR 563; R v Nieterink (1999) 76 SASR 56; R v M J J and C J N (2013) 117 SASR 81; McPhillamy v The Queen [2018] HCA 52; R v C, CA [2013] SASCFC 137; Abrahamson v The Queen (1994) 63 SASR 139; R v Bolte [2010] SASC 112; R v Sexton [2016] SADC 155; Pfennig v The Queen (1995) 182 CLR 461; R v Maiolo (No. 2) (2013) 117 SASR 1; R v Gardiner [2012] SASC 160; Mule v R (2005) 221 ALR 85; Spence v Demasi (1988) 48 SASR 536; R v Finn (2014) 119 SASR 207; IMM v R (2016) 330 ALR 382, considered.
R v L, B
[2020] SADC 8Introduction
The accused is charged with a single count of indecent assault, pursuant to s 56 Criminal Law Consolidation Act 1935 (‘CLCA’).[1] The complainant, TL, was the accused’s stepdaughter. The indecent assault involved an allegation that during the course of tickling each other in a game, the accused touched the complainant on her vagina, over her clothing. The accused elected to be tried by a judge sitting alone without a jury.[2]
[1] As it stood during the period in which the offence is alleged to have occurred.
[2] Juries Act 1927 (SA) s 7(1)(a).
Although I suspect that the accused may be guilty, I cannot find the charge proved beyond reasonable doubt. I set out my reasons for verdict.
The Charge
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BL] between the 1st day of January 1995 and the 31st day of December 2001 at Flagstaff Hill, indecently assaulted T L by touching her vagina.
General Directions
General Legal Directions
The general directions were conveniently summarised by Lovell J in R v Gardi as follows:[3]
·As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
·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 offence as charged.
·The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
·The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
·I must determine whether (each of) the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
·If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
·I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
[3] R v Gardi [2015] SASC 186 at [9]-[15].
Elements of the Offence
Section 56 CLCA provided:
A person who indecently assaults another shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of 12 years, for a term not exceeding ten years.[4]
[4] As the Act stood at the time of the alleged offending.
Accordingly, in order to establish that the accused committed an offence of indecent assault against TL, the prosecution needed to prove the following elements:
1That the accused applied force (directly or indirectly) to TL by touching her vagina.
2That the force was applied intentionally.
3That the force was accompanied by circumstances of indecency.
4That TL was under the age of 17 years, rendering consent irrelevant.[5]
[5] CLCA s 57(2) as it then stood provided: Subject to subsection (3), no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault. (ss 3 is not relevant here).
I bear I mind that in relation to the requirement of indecency,[6] it is for the trier of fact to ‘decide whether right minded persons would consider the act indecent or not … whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent’.[7] Put another way, it must be determined whether the act is ‘contrary to the ordinary standards of morality of respectable people within the community’.[8] Furthermore, the element of ‘indecency’ must have a sexual connotation.[9] In other words, it requires an element of ‘sexual lewdness’.[10] Indecency means conduct that right thinking people will consider an affront to the sexual modesty of a person.[11]
[6] See R v Dickson [2019] SADC 4 at [89] per Millsteed DCJ.
[7] R v Court [1989] AC 28 at [42] per Lord Ackner.
[8] R v Harkin (1989) 38 A Crim R 296 pp 299-301 per Lee J.
[9] R v Court [1989] AC 28 at [42] per Lord Ackner; R v Harkin (1989) 38 A Crim R 296 pp 301 per Lee CJ; Drago v The Queen (1992) 8 WAR 488 pp 497-8 per Nicholson J.
[10] R v C, M (2014) 246 A Crim R 21 at [19] per Peek J.
[11] R v Court [1989] AC 28 at [34] per Lord Griffiths; R v Harkin (1989) 38 A Crim R 296 pp 299-300 per Lee CJ.
Where an accused’s alleged conduct is unequivocally indecent it is not necessary for the prosecution to prove that the accused had a sexual intention or motive. However, where the accused’s conduct is equivocal (consistent with both an innocent and indecent interpretation) the accused’s motive is relevant to the question of whether right minded people would regard his conduct as indecent.[12]
[12] Where an act is not in itself indecent, and is not committed in indecent circumstances, secret sexual gratification cannot convert the act into one of indecent assault. For example, in R v George [1956] Crim LR 52 the fact that the accused secretly obtained sexual gratification from merely removing a woman’s shoes did not make his conduct indecent.
The issue of consent to any of the unlawful sexual acts is irrelevant, given that it is common ground that at all relevant times the complainant was under the age of 17 years.[13]
[13] CLCA s 50. Although the particulars allege that the offence was committed between 1 January 1995 and 31 December 2001, on the evidence the offence was between 10 March 1995 and 13 November 1996 when the complainant was either 12 or 13 years old.
Here, where the allegation is that the assault occurred when the accused and the complainant were tickling each other, the issue of whether the touching was intentional, and whether the touching involved a sexual intention or motive assume considerable importance.
Pre-Trial Issues
Two matters fell for consideration. First the issue of complaint evidence. Counsel for the DPP opened on the basis that the complainant had first told a school friend, ST, about the assault and about a number of other alleged actions on the part of the accused.
Counsel for the DPP submitted that the complainant would say she had told friends, including in particular ST, about a number of things, ‘one possibly or one being this tickling, or the charged conduct, but not to any particularity other than the fact that it was a tickling.’ The complaint thus described, was in very general terms. So was the evidence intended to be led from the recipient.
Further, counsel submitted that the complainant’s position was that she had attended upon and told a school counsellor about some events. The investigating officer had identified and located only one counsellor. That counsellor had no recollection whatsoever of such attendance.
None of the complainant’s potential evidence as to complaint to ST had, as I understand it, been contained in any declaration, and had apparently only emerged during proofing on the weekend prior to the trial. Similarly, ST had apparently only provided a note which referred in general terms to “some talk of a tickling incident”.
Counsel for the accused objected to the evidence being led. Ultimately, over that objection, I elected to receive the complainant’s evidence on that topic de bene esse. After hearing the complainant’s evidence on that topic, I determined to exclude the evidence for reasons I refer to later.
In doing so I bear in mind that s 34M Evidence Act 1929 relevantly provides:
…
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
·when the complaint was made and to whom;
·the content of the complaint;
·how the complaint was solicited;
·why the complaint was made to a particular person at a particular time;
·why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Complaint evidence must relate to the alleged offences. A complaint does not necessarily have to refer to the details, but where a general complaint of sexual abuse is led in evidence for the purpose of establishing consistency of conduct, it must be established that what was said encompasses the charged count.
Evidence of a complaint is admissible pursuant to s 34M Evidence Act, to inform the court as to how the complainant’s allegations first came to light, and as evidence of the degree of consistency, or inconsistency, of a complainant’s conduct. The expression “consistency of conduct” includes both the consistency in making the complaint when it would be expected to be made, and consistency between the wording of the complaint and the conduct alleged.[14] It is not evidence of the truth of what a complainant has alleged.
Discreditable Conduct
[14] R v J, J A (2009) 105 SASR 563 at [95] per Duggan J.
The second pre-trial issue related to discreditable conduct alleged against the accused. That conduct was said to post-date the charged act. Counsel for the accused objected to the eliciting of that evidence. Ultimately, I received the evidence de bene esse.
The Discreditable Conduct Notice particularised the alleged discreditable conduct as follows:
A.1.The nature of the discreditable conduct is:
Evidence of uncharged inappropriate conduct of a sexual nature by the accused toward the complainant including:
(a) Commenting on the complainant’s breasts to the complainant;
(b) Talking to the complainant about sexual matters; and
(c) Walking in on the complainant while she was naked.
A.2.The witnesses from whom the evidence is to be led, whether in examination-in-chief or in cross-examination, are:
T.A.L.
A.3.The uses of the evidence said to be permissible under section 34P(2)(b) in respect of count 1 is:
To establish the Defendant’s sexual interest in the complainant and a willingness to act on that interest. Such evidence makes it more likely that, if the Defendant is found to have touched the complainant’s vagina during a tickling game, he did so deliberately rather than accidentally or innocently and, therefore, it was an indecent act.
During submissions counsel for the DPP sought to expand upon the alleged discreditable conduct so as to include allegations that the accused:
·suggested that the complainant should masturbate to go to sleep;
·left sanitary pads under her pillow;
·offered to show her how to use a tampon; and
·pulled her dressing gown open to reveal her body.
Having received the evidence de bene esse, I determined to exclude the evidence as being of little probative value, insufficient to outweigh the prejudicial effect on the accused. In doing so I had in mind that the use of such evidence is governed by s 34P Evidence Act which relevantly provides:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if -
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue - the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
If challenged, as here, evidence of discreditable conduct not the subject of a charge, is inadmissible unless it satisfies one of the two permissible uses identified in s 34P(2),[15] being a permissible use that does not rely on the propensity or disposition of the defendant as circumstantial evidence of a fact in issue;[16] or a permissible use that does rely on the propensity or disposition of the accused as circumstantial evidence of a fact in issue.[17]
[15] R v M J J and C J N (2013) 117 SASR 81 at [241].
[16] Evidence Act 1929 s 34P(2)(a).
[17] Evidence Act 1929 s 34P(2)(b).
As can be seen from the section, the criteria for admissibility for each category of permissible use relate to the relevance and strength of the evidence in question. Pursuant to s 34P(2)(a) the permissible use must ‘substantially outweigh any prejudicial effect’; and pursuant to s 34P(2)(b) Evidence Act the evidence must have ‘strong probative value’ having regard to the issues at trial.
The section operates conditionally as to the admission of evidence of discreditable conduct for a propensity purpose. If the probative value of the impugned evidence does not meet the threshold requirement for admissibility, such evidence cannot be admitted. The issue as to whether the evidence is admissible is not concerned with discretionary considerations,[18] it is an evaluative judgment as a matter of law.[19]
[18] McPhillamy v The Queen [2018] HCA 52 at [16] in relation to cognate legislation in NSW.
[19] R v C, CA [2013] SASCFC 137 at [82].
It is trite to say that each case must be considered on its own facts. An assessment of the probative value of propensity evidence requires a determination as to the extent to which the evidence is capable of proving the propensity alleged by the prosecution. If such evidence has the capacity to do so, there must be an assessment of the extent to which proof of the propensity increased the likelihood of the commission of the offence in question.
Given the provisions of s 34P(2)(b) Evidence Act the evidence in question must be strongly probative, rather than merely relevant.
In R v M J J and C J N,[20] the steps involved in applying s 34P Evidence Act were set out as being:
(i) Identifying the uses by assessing the probative value;
(ii) Making an assessment of the prejudicial effect of the evidence;
(iii)Applying the tests set out in s 34P and weighing the probative value and the prejudicial effect, the weighing of which is a “qualitative requirement”[21]
[20] R v M J J and C J N (2013) 117 SASR 81 at [149] per Gray J.
[21] R v M J J and C J N (2013) 117 SASR 81 at [243] per Vanstone J.
Step (i) involves first identifying the particular fact in issue; and second, identifying the use by “determining how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact.”[22] The reasoning may depend upon a particular propensity or disposition of the accused, or may merely tend to reveal but not depend upon such propensity or disposition.[23]
[22] R v M J J and C J N (2013) 117 SASR 81 at [19] per Kourakis CJ.
[23] R v C, C A [2013] SASCFC 137 at [57]-[68] per Kourakis CJ.
Step (ii) assessing the prejudicial effect of the evidence, involves estimating the risk of the trier of fact engaging in impermissible reasoning, or using the evidence for the “impermissible use” that being “the drawing of an inference of guilt from the fact that the defendant has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable … [that is that the defendant has a] ‘mere’ or ‘general’ propensity.”[24]
[24] R v M J J and C J N (2013) 117 SASR 81 at [18] per Kourakis CJ.
There is support for the proposition that the test for admissibility is dependent upon whether a trial is to be conducted before a judge and jury, or a judge sitting without a jury. In a trial by judge alone, there may be little scope for arguing that relevant evidence should be excluded by reason of prejudicial content, the argument being that the principle that there should be exclusion of evidence, the prejudicial effect of which outweighs its probative force, could have very little part to play in a trial by judge alone, given that the rule was designed to protect juries from exposure to prejudicial material which had little probative force.[25]
[25] Abrahamson v The Queen (1994) 63 SASR 139 p 143 per King CJ; R v Bolte [2010] SASC 112 at [7] per Gray J; and see R v Sexton [2016] SADC 155 at [32] per Davison DCJ.
However, in R v C, C A,[26] the Chief Justice held that s 34P Evidence Act imposed a test for admissibility which involved an evaluative judgment as a matter of law, and not the exercise of a discretion, after having expressed the view that he would not be inclined to attribute to Parliament an intention to prescribe a test for the admissibility of evidence which would be applied differently depending on the mode of trial. The Chief Justice observed that it would be very difficult, for a judge or jury, to put evidence of a particular witness completely to one side, given the evidence had the capacity to prejudice the evaluation of the evidence of other witnesses for propensity purposes, because of what he described as the strong human tendency to reason retrospectively to the effect that the conduct against a particular witness was a manifestation of the tendency suggested by the conduct against the complainants. The Chief Justice observed that:[27]
Consciously or subconsciously, the evidence of the offending against SG will then be used to reinforce the inference of a particular propensity arising out of the evidence of MG and MA. Fallacious retrospective reasoning of that kind is common to trained and lay minds alike. The evidence of SG, for that purpose, is not strongly probative and easily conflated with “bad person” reasoning.
[26] R v C, C A [2013] SASCFC 137 at [82], [87] per Kourakis CJ.
[27] R v C, C A [2013] SASCFC 137 at [87] per Kourakis CJ.
In R v M J J and C J N,[28] Kourakis CJ said as to the admissibility of evidence of uncharged counts:
It is a fundamental human instinct of parents to protect and nurture their children. If the evidence on a charge of assault brought against a parent with respect to his or her child was limited to the direct evidence of the assault itself, the tribunal of fact would be entitled to weigh that evidence against the improbability, drawn from an understanding of the human characteristic to which I have just referred, that a parent would so act.
[28] R v M J J and C J N (2013) 117 SASR 81 at [35] per Kourakis CJ.
The discreditable conduct provisions are not a complete code, but only prevail over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.[29] Accordingly, the distinction between the two categories of permissible use, and the substance of each category, are to be found in the common law authorities. Therefore, determining the admissibility of discreditable conduct evidence requires an analysis of the use to be made of the evidence; the cogency of the evidence; and the possible prejudicial effect of the evidence. The concept of prejudice contained within s 34P Evidence Act does not refer to simple prejudice to the accused, but rather the risk of an unfair trial and wrongful conviction. When evaluating that prejudice, consideration should be given to the direction regarding the permissible use to be made of the evidence.[30]
[29] R v M J J and C J N (2013) 117 SASR 81 at [13].
[30] Pfennig v The Queen (1995) 182 CLR 461 pp 528-529 per McHugh J.
Discreditable conduct evidence that comes within s 34P(2)(a) Evidence Act is evidence adduced for other than a particular propensity purpose. It generally refers to evidence of uncharged acts, or background or relationship evidence, but is not restricted to those categories of evidence. The provisions of s 34P(2)(a) Evidence Act are consistent with the standard of admissibility in R v Nieterink,[31] and are not confined to uncharged acts in sexual cases, but rather apply to any type of evidence that is not being used as circumstantial evidence for a particular propensity purpose.[32] For such evidence to be admissible, the permissible use must substantially outweigh any prejudicial effect it may have on the accused.[33]
[31] R v Nieterink (1999) 76 SASR 56.
[32] R v Maiolo (No. 2) (2013) 117 SASR 1 at [50]-[57].
[33] See for example R v Gardiner [2012] SASC 160 at [82]-[100] at first instance, and not criticised on this point upon appeal.
Section 34P(3) Evidence Act requires a consideration as to whether the permissible use of the evidence can be kept sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose. In that way s 34P(3) Evidence Act reflects the concern of the common law, regarding the use of discreditable conduct evidence for non-propensity purposes.
In R v M J J and C J N, Vanstone J summarised the changes effected by the discreditable conduct provisions as being:[34]
1.The test for admissibility established in Hoch that propensity evidence, if accepted, bears no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);
2.The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion – see s 34S(b);
3.The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a).
For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4.The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).
[34] R v M J J and C J N (2013) 117 SASR 81 at [244] per Vanstone J.
Finally, as Kourakis CJ observed in R v M J J and C J N:[35]
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact.
[35] R v M J J and C J N (2013) 117 SASR 81 at [19].
Course of Trial
TL gave evidence at trial with the benefit of a screen and a court companion. I do not draw any inference adverse to the accused, nor do I allow the fact that a screen and a court companion were used for the benefit of the complainant to influence the weight to be given to her evidence.
The complainant’s mother Ms T also gave evidence, as did the investigating officer, Ms Corfield.
The accused did not give evidence nor lead any evidence as part of the defence case. I bear in mind that the accused was entitled to give evidence in his defence, or to refrain from giving evidence. The choice was his. As I have said, the accused elected not to give evidence. That was his legal right, and I draw no inference adverse to the accused from the exercise of that right. There may have been various reasons why he did not give evidence, and I do not speculate on those reasons. I bear in mind that the prosecution must prove its case beyond reasonable doubt.
The Evidence
The Complainant
The complainant was born on 13 November 1983 and was 36 years of age at trial. Her parents separated when she was nine years old in 1993. The accused was her stepfather. Her mother married the accused on 10 March 1995.[36]
[36] Exhibit P2 marriage certificate.
The complainant attended Clapham Primary School, and the Lindisfarne Primary School. She went to Mitcham Girls High School commencing in 1997 and finishing in 2001. She lived with her mother and the accused from the time they married when she was 11 years old until she moved out when she was 20 years old, in about 2004.
The complainant’s older sister lived in that house until she moved out when the complainant was about 14 years old and in year nine at high school.
The complainant said that her mother had been working in the insurance industry, and the accused was her employer.
She said that during her very early years in high school, her mother “ended up having jobs as a cleaner and in a bakery working early hours”. That evidence assumes considerable importance in establishing the chronology of events as it appears that the discreditable conduct of which the complainant gave evidence is alleged to have occurred “during that time”.
The complainant said the accused was her main carer. She said her mother, even if present, was not very emotionally engaged. She said the accused was her companion, that they played games together, and that he looked after her material needs. The accused employed her to do filing from when she was about 13 years old. T L gave evidence that she perceived that from late primary school the accused’s relationship with her “veered into the inappropriate” all the way up until she was about 17 or 18 years of age. She said from the age of 15 he even bought her sanitary products. She said she matured late and commenced puberty after turning 13 years of age and commenced menstruating at 15 years of age. That evidence is again relevant to the chronology of events.
She said the first thing she remembered as untoward was during a game of what she called “tickling fighting”. She said either she or the accused instigated the game on that occasion. She said they often played games, including, as I understand it, that game. She said on that particular occasion, the charged occasion, the accused tickled her in between her legs on top of her clothing. She said the tickling incident was before she turned 14, which was on 13 November 1997. She was unable to be more precise.
She said that occurred in the living room when they were sitting on a sofa, she on the left and he on the right. She said they were tickling and “he took it too far” and tickled her between her legs. She said her legs were down. The contact was very quick. She said she moved away, and was shocked, and the tickling game was over. He had started tickling her under the arms, and moved down to between her legs, touching her on the genitals.
She said that she recalled that it was daylight, and she believed that it was a weekend. She said there was no conversation and that she was shocked. She said that she felt responsible as she had possibly instigated the game on that occasion.
Uncharged Acts
The complainant gave evidence that, in addition to that charged act, the accused would:
·Walk in on her after her shower but before she could have gotten dressed;
·Pull her bedding off and drag her out of bed if she was late, causing her bed clothes to become skewed;
·At around that time comment that her chest was developing;
·When in year eight in response to her questions about sex, bought her an age appropriate book but also talked about sexual matters including that she should masturbate to get to sleep and suggested she use a candle to assist.
She said that she was in about year nine when that happened. She thought it was 1998 and she was 14 years old.
As I have said, she said she thought her breast development started when she was 13, and that she commenced menstruating at 15, in year 10 at school. She said the accused purchased sanitary pads for her, and that on one occasion she asked if the sanitary pad was visible through her school clothing. She said the accused responded saying that if that bothered her he could show her how to put a tampon in.
She described another occasion when she was late, getting ready. She was wearing a dressing gown, and was in the living room. She said the accused “ripped (her) dressing gown open”. She said that occurred in 2000.
She said that at the age of 15, when in year 10, she was sitting with ST, and another girl, AK. She said she told ST about the tampon incident. She said “I can’t recall whether I told her about the tickling, I believe I did.” She became upset during the conversation. She said ST and AK took her to see Ms Djurasevic, a school counsellor and she spoke to the counsellor about what had been happening. She said she believed she told Ms Djurasevic about the tickling, but definitely told her about the tampon and about the accused walking in on her. She said she believed Ms Djurasevic took notes.
She was asked in examination-in-chief whether she could expand on what she meant in saying she believed she spoke about the tickling and said “all I can say is I know that I was very upset and spoke to her about a number of things that happened growing up that were sexually inappropriate but I couldn’t narrow down exactly what I spoke to her about …”.
She said the only subsequent contact she had with the counsellor was when the counsellor came into class to speak to her, took her outside and handed her a careers guide relating to being a psychologist. That was in 1999 when she was in year 10.
She said that she moved out of the accused’s house when she was 20 years old in 2003 when she was studying psychology and childhood trauma at Flinders University. She said that she had had a disagreement with the defendant, became upset, and told her mother what had happened to her – she particularly remembered telling her mother about the tampon incident. She said her mother responded merely saying “well, if that’s true, then you’d better leave …”.
The complainant said that in May 2017 while undertaking child safe environment training during her work as a librarian, she decided to report the incident to police.
Cross-examination
The complainant agreed that at the time she was entering puberty her older sister was still living at the house but moved out when the complainant was 14 years of age. That, on the complainant’s evidence, was after the charged act.
She said that she did not ask her mother questions about sexual matters as her mother was either physically or emotionally absent. She said that when she commenced menstruating the accused offered to buy her sanitary pads and would put them under her pillow. She said her mother never asked her about her need for such products. I bear in mind that on the complainant’s evidence, that occurred when she was 15 years old, and in 1998, at least one year, and potentially more, after the charged incident.
The complainant said the accused also met her needs such as driving her to school, and making sure she had warm clothes.
She said:
Q.When did you start working for [the accused] in his business.
A.Yep, so I believe I was 13 when I did, up until the age of about 14 potentially. I got a job as a shelver in a library when I was 15.
Q.So how long was it that you actually worked for him.
A.Yeah, a couple of years that I recall.
Q.This is after what we'll describe as the tickling incident.
A.Yes.
Q.You had no problems working for him, did you.
A.Having studied psychology, I would actually describe it as cognitive dissonance where if someone's been horrible to you, you push that aside because you still rely and need that person.
She said that her relationship with her biological father was very close. She stayed with him, and slept in her old bedroom three weekends out of four.
Given that she had said the charged incident occurred on a weekend, she agreed that that incident must have occurred on a weekend that was the only one each month not spent at her father’s house. She agreed that each fourth weekend was to be spent with her mother, and that it was possible her mother was home, albeit not in the room.
She agreed that she and the accused had engaged in roughhouse playing and tickling before. She said that the tickling game on this occasion started with her and the accused facing forward. They turned towards one another. They were tickling each other. She was tickling the accused under his arms. She said there was a degree of wriggling and struggling. She agreed that she was perhaps moving towards and away from the accused during the tickling game.
She said when the accused touched her she was shocked and she recoiled. She said that in her mind there was no possibility of the touching having been accidental – the touch “wasn’t a brush, it was a tickle.” She denied the possibility that the accused may have been trying to tickle her stomach. She agreed that the accused had never touched her in that area at any time before or after that occasion.
Turning to the discreditable conduct, the complainant said the occasion she alleges the accused had opened her dressing gown was when she was very ill with the flu. She had had a shower. The accused seemed angry that she was late. She said “he physically tore it off me to the point that I was exposed naked.” She agreed that the gown was tied at the waist. She said the cord remained tied but the gown was opened by the accused grabbing the lapels. She agreed that the accused was telling her to get ready for school, and that the accused was both responsible for getting her to school and getting to his own job. The complainant maintained that the accused often walked in on her without knocking, and when she was naked.
She was asked why she didn’t leave the house and return to her father’s house. She said the accused provided for her needs, and when she discussed with her mother the idea of leaving her mother burst into tears and said “don’t leave me.” She said at the time she was 15 or 16 years old.
Complainant’s Mother
AT said that she worked in the insurance industry (for QBE) from 1993 until the beginning of 1996. That was an office hours job. She said that later she worked in a bakery, and other jobs before starting work with a market research company in 2003. She said that she was at the bakery for three years and was still there in 2001. She remembered being there as at 11 September 2001 by reference to the Twin Towers attack. I infer that she must have started at the bakery after September 1998, when the complainant was at least 14 and possibly 15 years old. When at the bakery she worked from 5am until 8 or 8.30am on weekdays and on occasional Saturdays.
Cross-examination of Complainant’s Mother
It seemed that AT had a rather limited recollection of family arrangements and dynamics during the relevant period. She agreed that at certain times the accused took on the primary responsibility of taking care of the children. She agreed that the complainant’s physical development occurred late, and that was a concern at the time.
AT agreed that when she was working at QBE everyone would be getting ready for work and for school and that the accused had to hurry the complainant up. She said her older daughter was more of a self-starter. She recalled one occasion where there was an argument when the complainant was not ready and the accused needed to leave.
Regarding the chronology of employment, she said that she was at QBE from 1993 until the end of 1995 or beginning of 1996. She was then not employed for a period before starting at the bakery in what must have been 1998. She may have done some cleaning work in between but that was from 10am to 4pm.
Ms Corfield
Ms Corfield is a detective brevet sergeant in the police force. She interviewed the accused. She tried to locate the relevant school counsellor. She spoke to a Ms Ward. No relevant information was available. She did not seek to locate Ms Djurasevic, and her notes made no mention of that counsellor.
The Accused’s Interview by Police
I bear in mind that I may accept or reject any statement the accused made in his police interview, whether it be inculpatory or exculpatory, either in whole or in part. I may place more weight on any statements I find to be incriminating.[37]
[37] Mule v R (2005) 221 ALR 85 at [20]-[25]; Spence v Demasi (1988) 48 SASR 536.
I also bear in mind that even if I reject the account of events that the accused gave to police, it does not follow in any way that the accused should be convicted on that basis. Even if I reject the accused’s account, the task is nonetheless to consider whether or not the prosecution evidence satisfies me beyond reasonable doubt that the charges have been proved.
Counsel for the DPP tendered an audio recording of the accused’s interview with police.[38] The accused sounded calm during the interview. I bear in mind of course that the allegations being made against him were not recent, but rather were said to relate to incidents or behaviour over 20 years ago. The accused denied any offending, and denied aspects of the discreditable conduct put against him.
[38] Exhibit P4.
Consideration
In considering my verdict, I accept that the prosecution case relied solely on the credibility and reliability of the complainant, and that there was no medical, forensic or crime scene evidence to confirm that the alleged sexual touching occurred.
I bear in mind that the accused, when interviewed by police, denied that he had deliberately touched the complainant in a sexual manner.
Motive to Lie
I bear in mind that the absence of evidence of a motive to lie does not strengthen the prosecution case and that it would be wrong to conclude that, because there was no apparent reason to lie, the complainant must be telling the truth. I bear in mind that lies can be told for no apparent reason. I also bear in mind that it is not for the accused to provide a motive for the complainant to lie, and that the prosecution bears the onus of proof beyond reasonable doubt, including the onus of satisfying me beyond reasonable doubt that the complainant was telling the truth.
Assessment of Witnesses
I accept that TL gave her evidence in a way that was generally direct, and without guile. I accept that the complainant was doing her best to tell the truth albeit in respect of matters which are said to have occurred at least 20 years ago.
Forensic Disadvantage
In accordance with s 34CB Evidence Act, I accept and bear in mind that the accused has suffered a forensic disadvantage in meeting the case against him, due to the effluxion of time. I bear in mind that the period during which the charged offences are said to have occurred was between 1995 and 2001, now between almost 19 and 25 years ago. I accept that there has been a deterioration in the memory and recall of witnesses on topics that may have assisted the accused.[39] Such disadvantage may manifest itself in a variety of ways. I accept and bear in mind that the accused may have been deprived of the ability to obtain evidence that may have assisted him, including as to his whereabouts on dates and times alleged by the complainant. The accused has also been deprived an ability to marshal other evidence in support of his defence. I bear that in mind in scrutinising the prosecution case.
[39] See R v Finn (2014) 119 SASR 207 (and the cases referred to therein).
As to the complaint evidence, as I have said, the complainant said only that she may have, or believed she had, mentioned tickling to ST. ST ultimately was not called on the basis that it was submitted that she could only recall something being said about tickling. I intimated at that stage that I did not consider that the evidence fell within the purview of s 34M of the Evidence Act. I excluded the evidence.
As to the discreditable conduct evidence, the evidence generally was that the alleged acts occurred after the charged act, and perhaps considerably later. The charged act, on the complainant’s evidence occurred when she was 12 or 13 years old. On the complainant’s evidence the acts of discreditable conduct were committed in general terms after the complainant’s sister left the house when the complainant was 14 years old, or after the complainant commenced menstruating, which occurred in 1995 when she was 15 years old, or when her mother was working at the bakery, which commenced in late 1998, again when the complainant was 15 years old.
As counsel for the DPP properly conceded:[40]
The problem for the prosecution is that that appears now in the evidence to have occurred over a number of years and a lot of it seems to have occurred after her menstrual period began which was when she was 15, so quite some years after. Having heard the evidence and considering that, to be frank with your Honour, it is difficult to push that as being sexual when it occurred over a long period of time. The other issues are the acts that Ms Lee described, the uncharged acts are not similar. There could be other explanations for some of it. For example, the dressing gown incident, she gave evidence that before it was pulled apart, it was fully closed on her which would suggest that a person, [the accused] doing that, even if that occurred, may not have known that she was naked.
[40] T 66 L 22-36.
Given the lack of contemporaneity, the fact that the alleged acts post-dated the charged act, and the consequent limited probative value of the evidence, I excluded that evidence.[41]
[41] See IMM v R (2016) 330 ALR 382.
I bear in mind the submissions of counsel for the DPP that the complainant was a credible witness. I accept that. She was doing her best to describe events, albeit, that it may be that her perception of events was coloured by subsequent events.
I also bear in mind however, her evidence that although she said she felt hypervigilant because of the accused often entering her bedroom suddenly when she was naked, in the evenings she continued to sit next to him on the two seat sofa rather than using the available single lounge chair.
As to the issue of reliability, the complainant gave evidence that she told a particular counsellor about at least the tampon incident. The investigating officer was not provided with that counsellor’s name. There were mandatory reporting requirements in place in 1995 which would have applied to Ms Djuravesic,[42] and yet there was no evidence of a report to authorities or to police at that time. Indeed the only action according to the complainant was Ms Djuravesic providing the complainant with a careers pamphlet.
[42] Children’s Protection Act 1993 s 11.
Ultimately, as counsel for the accused submitted, on the evidence the complainant was participating in a roughhouse tickling game that had been played in the past and, for a matter of seconds, in the context of people moving about on a couch, trying to tickle each other, the fleeting episode of touching on the vagina is said to have occurred. On the evidence, the complainant and the accused had played that game before. There had never before been any suggestion of inappropriate touching, and no suggestion of any such touching ever again. Again, as counsel put it, I would have to rule out, as a reasonable possibility, that the touch was accidental. That is, I would have to find, beyond reasonable doubt, that the touch was not accidental.
Whilst it may well be that the accused did deliberately touch the complainant on her vagina, on the evidence before me I could not find beyond reasonable doubt that he did so, that is, I cannot exclude the reasonable possibility that the touch was accidental.
Conclusion
Accordingly, in relation to the alleged offending I am not satisfied beyond reasonable doubt on the basis of the evidence that the accused is guilty.
0
19
1