R v L, K G
[2015] SADC 134
•14 October 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, K G
Criminal Trial by Judge Alone
[2015] SADC 134
Reasons for the Verdict of His Honour Judge Beazley
14 October 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone - accused charged with one count of Persistent Sexual Exploitation of a Child - offence allegedly occurred when the complainant was aged between 6 years and 13 years - complainant aged 28 years, and accused aged 41 years as at the date of trial - prosecution case based entirely upon acceptance beyond reasonable doubt of the truth and reliability of the evidence of the complainant, and the rejection of the defence case - relevance of prior inconsistent statements of the complainant - substantial forensic disadvantage to the accused by the delay - whether prosecution case proved beyond reasonable doubt.
Verdict: Accused not guilty of the charged offence.
Criminal Law Consolidation Act (1935) s 49(1), s 50(1) and s 56; Evidence Act (1929) s 34CB, s 34L(5), s 34M s 34P and s 71A(4); Juries Act (1927) s 7, referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Little [2015] SASCFC 118; R v M, BJ [2011] SASCFC 50; R v Liddy (2002) 81 SASR 22; R v Keyte (2000) 78 SASR 68; Thorne v The Queen [2007] NSWCCA 10; R v R, TB [2002] NSWCCA 104; R v Dann [2000] NSWCCA 185; R v Livingstone [2011] SASCFC 28; R v T, WA (2014) 118 SASR 382; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; Palmer v The Queen (1998) 193 CLR 1; Abrahamson v The Queen (1994) 63 SASR 139; Hargraves v The Queen [2011] HCA 44; Murray v The Queen (2002) 211 CLR 193; R v El Rifai [2012] SASCFC 98; R v ATM [2002] NSWCCA 475; WFS v The Queen [2011] VSCA 347; R v BFB (2003) 87 SASR 278; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJS 571; R v Lapins [2007] SASC 281; R v Maiolo (No 2) [2013] SASCFC 36; R v A, GP [2012] SASCFC 81; R v Brady [2014] SASCFC 7; R v Smith [2013] SASCFC 128; R v E, DJ (2012) 112 SASR 225; R v Kerin [2013] SASCFC 56; R v Gavare [2011] SASCFC 38; R v Lomman [2014] SASCFC 55; R v M, JJ [2013] SASCFC 51; R v D, WD [2013] SASCFC 32; R v C, CA [2015] SASCFC 143; R v N, RC (2012) 112 SASR 399; R v Chiro [2015] SASFC 142, considered.
R v L, K G
[2015] SADC 134Criminal Trial by Judge Alone
Introduction
I will employ pseudonyms when referring to the complainant, the accused and some other witnesses, so as to ensure that there is no inadvertent breach of s 71A(4) of the Evidence Act, 1929 (SA).
‘K L’ (‘the accused’) is charged on Information, dated 25 August 2014, with one count of Persistent Sexual Exploitation of a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’).
It is alleged that the accused committed the subject offence against ‘T G’, (‘the complainant’), who was the youngest sister of his then neighbour.
Upon arraignment, the accused pleaded not guilty to the alleged offence. It is convenient to set out the particulars as pleaded in the Information as follows:
Particulars of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Statement of Offence
“K.L.” between the 1st day of January 1994 to the 31st day of December 2000 at Coonalpyn, Murray Bridge and other places, committed more than one act of sexual exploitation of “T.G.”, a person under the age of 17 years, over a period of not less than 3 days.
It is alleged the conduct comprising the ongoing acts of sexual exploitation was:-
(a) touching “T.G.” on the vagina on more than one occasion;
(b) performing cunnilingus on “T.G.” on more than one occasion.Some of the background matters, and, in particular, the respective ages of the complainant and the accused at relevant times were either agreed or alternatively not in dispute. The complainant was born on 7 June 1987, and was accordingly aged between 6 and 13 years at the time of the alleged sexual events. The complainant was aged 28 years as at the date of trial. The accused was born on 25 January 1974 and was accordingly aged 41 years as at the date of trial.
Outline of the Prosecution Case
In his opening address at the trial, counsel for the Prosecution asserted that in or about 1994, the complainant and her family were living in Coonalpyn. It was anticipated that the complainant would say that together with her mother and one sister, she had moved into the home occupied by her older sister, ‘S G’, when the first two alleged sexual acts occurred. ‘S G’’s home abutted the accused’s house.
Counsel asserted that on this first occasion, when she was aged about 6 years, the complainant had visited the accused’s house, and was watching cartoons on television, when the accused pulled the complainant on to his lap, and rubbed her clitoris under her clothing. Later, on the same day, while walking with her, the accused had pulled down her pants, and ‘tickled her on the vagina’ before forcing her legs apart, slapping and pinching her, and then licking her clitoris and vagina.[1]
[1] T. p3.
He said that the complainant would say that the accused had read ‘bedtime stories using pornography’, to the complainant.
Counsel asserted that the accused took the complainant to a shed in 1996, where he had threatened to shoot her with a sawn off shotgun before performing cunnilingus upon her.[2] He asserted that thereafter the accused would perform cunnilingus upon the complainant on a number of occasions, when the complainant was either naked or only partially clothed.
[2] T. p 4.
He asserted that in 1999 or 2000, when the complainant was aged 13 years, she moved to Murray Bridge with her family. On one occasion the accused drove her across the river where he performed cunnilingus upon her in the back seat of the motor vehicle.
He asserted that the complainant initially complained to her sister ‘A G’ in about 2000 in a letter, which now could not be found. She allegedly made another ‘initial complaint’ to her mother and her sister ‘S G’ at that time. The allegations, however, were not brought to the attention of the police until about 8 February 2014.
The nature of the charged offence
As a matter of general principle, a charge of a criminal offence brought against an accused must relate to a single identifiable criminal act.
Section 50(1) of the Act, which creates the offence of Persistent Sexual Exploitation of a Child, is a somewhat difficult provision. It was enacted by Parliament because it was considered that children, who had been subjected to long term abuse, may not always be able to provide sufficient detail as to, inter alia, the time and place at which the individual sexual acts had occurred. Accordingly while some alleged acts may be capable of being adequately particularised, others may not be so capable. See R v Livingstone.[3]
[3] [2011] SASCFC 28
The difficulties with respect to the charged offence have been the subject of considerable dicta in recent decisions of the Court of Criminal Appeal. See R v M, BJ[4]; R v N, SH[5], R v Botterill[6], R v Little[7] and R v Chiro[8].
[4] [2011] SASCFC 50.
[5] [2010] SASCFC 74.
[6] [2010] SASCFC 31.
[7] [2015] SASCFC 118.
[8] [2015] SASCFC 142.
It is trite that it is not necessary for the prosecution to prove that the accused committed all of the alleged acts of sexual exploitation as particularised in the information. It is sufficient if the prosecution proves that the accused committed no less than two alleged acts of sexual exploitation over a period of not less than 3 days.
In R v M, BJ the Court stated:
… it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting.
In R v N, SH, supra, the Court of Criminal Appeal considered whether it was appropriate for a trial judge to require special verdicts of a jury in respect of each particular of the charged offences. The court concluded that it was unnecessary for the Judge to take verdicts in that way, indeed stating that:
It was unwise, because of the possibility of the jury’s responses to the specific questions being unclear, and does not allow for the fact that there possibly may have been various views of the evidence in relation to each particular. Even allowing for a difference of views for specific particulars, the charge could still be made out. To ask a jury to refine their thought processes as to how they reached their ultimate decision could in no way be helpful.
In R v Chiro[9]the Court of Criminal Appeal explained that while there was no need for special verdicts to be taken, it was necessary for the two same acts of sexual exploitation to be proved.
[9] [2015] SASCFC 142.
It affirmed the dicta of the court in R v M, BJ, supra, in which Vanstone J., with whom Sulan and White J.J. agreed, said at [72][10]:
On one view of these statements it might be thought that the Court contemplated that different jurors could reach their conclusion as to the proof of an offence on the basis of satisfaction of different particulars, that is, that not all jurors need be satisfied of the same two or more acts. If that was the Court’s meaning then I respectfully disagree. Be that as it may, any such opinion did not form part of the ratio decidendi of the case, since the special verdicts taken from the jury demonstrated that a majority of jurors found proved two particularised acts of sexual exploitation. The observations made by the Court were really directed to explaining why it was undesirable to take special verdicts in trials concerned with offences against s 50. However, any perceived need for so doing could be obviated by simply directing the jury that, although it need not be satisfied of the commission of all the pleaded acts, a majority of jurors were required to find the same two or more acts proved.
[10] [2011] SASCFC 50.
In R v Little, supra, a five member coram of the Court of Criminal Appeal approved the reasons of the court in R v M, BJ.
I note that in any event where the trial proceeds before a Judge alone, the difficulties in determining the true basis for a verdict from a jury, and identified in N, SH, supra, do not arise.
In my opinion, it is preferable for a trial Judge, sitting alone without a jury, to specify the acts of sexual exploitation which have been proved beyond reasonable doubt.[11]
[11] A K v The State of Western Australia (2008) 232 CLR 438 at [107]-[108].
Procedural Matters
·Trial by Judge Alone
The accused elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act 1927 (SA). The application was granted and the trial commenced before me on 23 September 2015. Mr N Healey appeared as counsel for the Prosecution, and Mrs J Powell appeared as counsel for the accused.
·Necessity for Reasons
In a series of recent decisions, the High Court of Australia has stressed that sufficient reasons must be given by Trial Judges, and indeed, Intermediate Courts, which properly explain the verdict.[12]
[12] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 6; AK v Western Australia (2008) 232 CLR 438.
Those reasons must include the principles of law applied by the Judge, and the facts as found by the Judge. A Trial Judge sitting alone is not however obliged to ‘express all the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of law’.[13]
·Intention to adduce Evidence of Discreditable Conduct
[13] Markov v R [2012] NSWCCA 64 at [19]; R v R, RLJ [2008] SASC 35 and R v T, WA [2-14] 118 SASR 382.
Counsel for the Prosecution indicated his intention to call evidence from the complainant as to the alleged use by the accused of pornographic material.
In R v C, CN,[14] White J. expressed the opinion that notwithstanding that no objection was taken by counsel, it was still necessary for a trial judge to consider and apply the provisions of s 34P of the Evidence Act, and be positively satisfied that the conditions for admissibility of each item of alleged discreditable conduct had been met, before being received by the court. Subsequently, however, the Court of Criminal Appeal has consistently declined to apply that dicta, stating that:[15]
If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under s34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.
[14] [2013] SASCFC 44.
[15] R v CG [2013] SASCFC 83 at [50]; R v C, CA [2013] SASCFC 137 and R v Maiolo (No 2) [2013] SASCFC 36.
In addition, I sit in this trial as Judge without a jury. In R v Abrahamson,[16] the Court of Criminal Appeal noted the ‘principle that a Trial Judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force’.
[16] (1994) 63 SASR 139 at 143.
Both counsel requested that I ought receive the evidence of the alleged discreditable conduct, de bene esse.
In any event it was, in my opinion, appropriate to receive that evidence.
On the Prosecution case the alleged discreditable conduct was relevant and probative for non propensity reasons, namely to show an escalation of sexual impropriety.
On the accused’s case, it is in the interest of justice for the court to hear, in greater detail, the alleged interaction between the accused and the complainant, notwithstanding any forensic disadvantage to the accused, as it provides a better opportunity for the court to assess the complainant’s alleged truthfulness and reliability in respect of the charged offence.
The Prosecution case depends entirely upon the honesty and reliability of the evidence of the complainant. Insofar as the Prosecution fails to establish the allegation of discreditable conduct this may be used in my assessment of the evidence of the complainant in respect of the charged offence.
·Special Arrangements
The Prosecution made an oral application pursuant to s 13 of the Evidence Act for special arrangements to be made for the complainant while she was giving her evidence.
Because of the nature of the charge and the likelihood of embarrassing matters being aired, I permitted the complainant to give evidence in a closed court, with a one-way glass screen placed to obscure her view of the accused in the dock. Those arrangements were made with the consent of the accused.
The Record of Interview
No Rule 49 Notice was filed seeking the exclusion of any part of the police interview of the accused which had occurred on 8 February 2014.
I have no criticism, at all, of the questions directed to the accused, but he obviously thought that he was being invited to give an explanation as to why the complainant would make up such a story.
I remind myself that an accused person could not possibly know what could motivate a complainant to make up a false account. There are many reasons why a person may indeed make up a false account including some, which would not be apparent to another person. See Palmer v R.[17]
[17] (1998) 193 CLR 1 at [9].
It is for the Prosecution to prove the charge against the accused beyond reasonable doubt. I repeat that it is for the Prosecution to prove beyond reasonable doubt that the complainant is both an honest and reliable witness; and that the defence case ought be rejected beyond reasonable doubt. See Douglass v R.[18]
[18] [2012] HCA 34 at [48].
Legal Directions
I do not propose to detail all of the obvious directions of law.
I do however remind myself of the following fundamental directions which apply in every criminal trial:
·The accused comes before this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on the charged offence has been proved beyond reasonable doubt. In the context of this case the accused is innocent of any specific act of sexual exploitation unless the prosecution has satisfied me of his guilt of it beyond reasonable doubt.
·In assessing the evidence of witnesses I am entitled to accept the evidence of a witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some of the evidence it does not follow that I must not accept other parts of that witness’ evidence.[19]
[19] Hargraves v R [2011] HCA 44 at [25]
·The subject charge involves proof by the prosecution, beyond reasonable doubt, that the accused, over a period of not less than three days, committed more than one act of sexual exploitation, as defined, of the complainant who was under the prescribed age.[20]
[20] S 50(1) Criminal Law Consolidation Act, 1935.
·The accused denies all allegations of acts of sexual exploitation asserted by the complainant. I direct myself that in considering the subject charge, I must consider each act of alleged sexual exploitation separately.
·The prosecution seeks to satisfy me as to the alleged acts of sexual exploitation entirely upon the evidence of the complainant. While I am not obliged by statute[21] to so direct myself, I will approach the evidence of the complainant with caution and only rely upon it if I am satisfied beyond a reasonable doubt that it is both credible and reliable.
[21] Evidence Act (1929) SA, s34L(5).
·I further direct myself that as the prosecution case depends almost entirely upon the complainant, where there have been inroads into her credibility and reliability, any reservations in my assessment of any one alleged act of sexual exploitation may apply to the other alleged acts.
·The burden of proving the charged offence beyond reasonable doubt lies wholly upon the Prosecution. The accused does not have to prove anything. The accused was not obliged to give evidence. In the subject case the accused elected not to give evidence on oath but to leave it to the Prosecution to prove its case beyond reasonable doubt if it were able to do so. I have drawn no inference adverse to the accused in consequence of him expressing his right to silence. The police interview of the accused is evidence in the trial and must be considered by me along with all the other evidence. I will give his answers such weight as I deem fit bearing in mind the interview was not on oath nor was the accused subjected to cross-examination.
·Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
·In Murray v R,[22] the High Court explained that:
[22] [2002] 211 CLR 193 at 213
The choice … was not to prefer one version of events over another. The question was whether the prosecution has proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the accused.
·If I am unsure of where the truth lies with respect to any of the asserted acts of sexual exploitation or the prosecution does not rebut any explanation consistent with innocence, then I must find that the prosecution has not satisfied me beyond reasonable doubt as to the alleged act.
·Evidence may be given, inter alia, as to when an initial complaint was made by the complainant and why the complainant did not make it at an earlier time pursuant to s 34M of the Evidence Act (1929). I direct myself that evidence of any complaint is admissible only for the specific purposes in s 34M(4)(a) of the Act; and is not admissible as evidence of the truth of what was said. In the event there was little detail in the evidence as to “a complaint”.[23] The first time that the complainant told anyone about the alleged events, the subject of the charged offence, was by letter to her sister, ‘A G’, in 2000. She then spoke to her mother, and, mother’s sister ‘S G’, at or about the same time. I note that s 34M(2) of the Evidence Act (1929) provides:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury and 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. (my emphasis)
·I direct myself that if the accused was significantly forensically disadvantaged by the delay of twenty years between the first date specified in the particulars to the Information and the trial, that it must be taken into account pursuant to s34CB of the Evidence Act (1929).
·The complainant’s evidence was not corroborated. Mere presence or opportunity is not, of itself, enough for corroboration. Although a court is no longer obliged to give a warning as to the absence of corroboration,[24] I direct myself in the circumstances of this case that the complainant’s evidence must be approached with caution and scrutinised with great care.
[23] See R v El Rifai [2012] SASCFC 98; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJS 571
[24] Evidence Act (1929) SA, s34L(5).
Elements of the charged offence
· Persistent sexual exploitation of a child
This offence contains five elements, each of which must be proved by the prosecution beyond reasonable doubt. They are respectively that:
1. The accused was an ‘adult’ at the time.
There was no dispute about this element.
The accused was born on 25 January 1974, and therefore would have been aged 20 years in 1994.
2. The accused committed sexual acts against a ‘particular child’.
The Prosecution case ‘asserts’ alleged acts against the complainant alone. Whether any alleged sexual acts took place at all was the principal issue in the trial. The accused denies that any such acts occurred at all.
3. ‘The child’ was under the prescribed age.
In the subject case the prescribed age is 17 years. There was no dispute about this element. The complainant was born on 7 June 1987, and on the Prosecution case, was aged 6 to 13 years at the times of the alleged acts of sexual exploitation.
4. The accused committed more than one act of sexual exploitation of the complainant.
An act of sexual exploitation is one where, if the act was properly particularised, it could have been the subject of a charge of a ‘sexual offence’, which is relevantly defined as, inter alia, an offence against Division II (other than ss 59 and 61) of the Act.
In the subject case the prosecution alleges that the accused committed two types of acts of sexual exploitation against the complainant that relevantly amounted to sexual offences under the law. They are that the accused:
·Indecently assaulted the complainant by touching her on the vagina on more than one occasion; or
·Committed unlawful sexual intercourse upon the complainant by performing cunnilingus upon her on more than one occasion.
These types of alleged acts fall within the relevant offences prescribed in Division II of the Act.
In order to prove this fourth element it is not necessary for the prosecution to prove that the accused committed all of the alleged acts of sexual exploitation. It is sufficient if the prosecution proves, that the accused committed no less than two of the alleged acts of sexual exploitation, and that the proved acts each amounted to an offence of unlawful sexual intercourse or indecent assault. Proof that the accused committed at least two acts is sufficient for this element, whether they involved the same or different types of acts of sexual exploitation.
5. The proved acts of ‘sexual exploitation’ were committed over a period of not less than three days.
It is not sufficient for this fifth element that the accused committed more than one act of sexual exploitation. It must be proved, by the prosecution, that he committed two or more acts of sexual exploitation over a period of not less than three days.
I turn briefly to the elements of the two relevant offences upon which the Prosecution relies as ‘acts of sexual exploitation’.
·Indecent Assault[25]
[25] S 56 Criminal Law Consolidation Act, 1935.
A person commits an indecent assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency. The Prosecution must prove in such a case the following elements:
(a)The accused intentionally applied force against the complainant. A mere touch would constitute sufficient force.
(b)The application of force was deliberate – that is not accidental.
(c)The accused’s conduct, as described, occurred in circumstances of indecency, and involved a sexual connotation.
(d)The accused’s conduct, as described, was unlawful. No person aged under 17 years is capable of consenting to an indecent assault.
·Unlawful Sexual Intercourse[26]
[26] S 49(1) Criminal Law Consolidation Act, 1935.
A more serious offence of unlawful sexual intercourse is committed when an accused person is proved to have had sexual intercourse with a person under the age of 14 years.
The Prosecution must prove the following elements:
(a) That the accused had intentional sexual intercourse with the complainant. ‘Sexual intercourse’ includes an act of cunnilingus.
(b) That the sexual intercourse was unlawful. A child under the age of 17 years cannot consent to sexual intercourse.
(c) That the complainant with whom the accused had sexual intercourse with was aged under 14 years at the time of the sexual intercourse.
The evidence
·The Prosecution Case
The Prosecution called five witnesses to give oral evidence. They were respectively the complainant; the complainant’s mother, ‘B G’, the complainant’s sister, ‘S G’; the accused’s former wife, ‘B L’; and a police officer, Detective Brevet Sergeant James Clegg.
Two other persons were identified by the complainant as relevant persons. They were her sister ‘A G’, who may have been expected to give evidence as to an ‘initial complaint’, and as to the use of alleged pornography. Her absence was explained by the fact that she resided in the United States of America.
The second was the accused’s father, who, it was asserted was at the accused’s home on the occasion of the first sexual act. The prosecution did not call either ‘witness’. I direct myself not to speculate as to why they were not called, nor what they may have said had they been called.
·Synopsis of the evidence of the complainant
The complainant was the youngest of the five children of her parents, who had separated, interstate, when she was aged about two years. She thought that she was aged about five years when her mother ‘B G’, and siblings, ‘S G’, ‘J G’ and ‘A G’ moved to South Australia.
She said that her sister, ‘S G’, who was approximately 13 years older had moved into a house in Coonalpyn, which abutted the house occupied by the accused and his wife, ‘B L’, in 1994. She deposed that the accused and ‘B L’ had two young children at that time.
The complainant deposed, in examination-in-chief, that she was in grade II or III at school when the first alleged sexual events happened. She could not remember how old she was at the time but said that it occurred when she went to the accused’s residence to watch television. She asserted that the accused was at home, but neither ‘B L’ nor their older son ‘Z L’ were at home. She said that the accused’s baby, ‘S L’, was at home asleep in his cot. She was asked about these alleged events in examination in chief:
QWhat actually happened.
AI was watching cartoons and he sat me on his lap and put his hand down my pants.
QDo you remember what you were wearing at the time.
AIt’s hard to remember because it was so long ago but I think I was wearing pants.
QWhereabouts were you. Were you at his house or your house.
AHis house.
QDo you remember why you were at his house.
ANo
QHow old was the other child of the accused, Z.L., about the time.
AHe was more the same age as my niece. I think he was maybe five.
QSo he asked you to sit on his lap.
AYep.
QAt the same time he grabbed you and put you on his lap is that what you’re saying
AYes.
QDo you remember what he was wearing.
ANot exactly.
QDo you remember what was on the television.
AIt was Looney Tunes, cartoons.
QYou actually have a recollection of it being cartoons on the television.
AYep.
QYou were sitting on the accused’s lap. What happened then.
AHe put his hands down my pants.
QThe front or the back of your pants.
AThe front.
QSo you think you were wearing pants.
AYes. It’s hard to remember because it was so long ago.
QWhere did he put his hand.
AOn my vagina.
QWas it underneath your underpants.
AYes it was.
QWhat could you actually feel.
AHis hand on my vagina and he was rubbing the inside of my vagina.
QHe was rubbing inside.
AYes.
QDid he insert a finger into your vagina.
ANo. He was just – not into it.
QDo you know where the accused’s wife, B.L., was at the time.
AI think she was at work or somewhere.
QWhat did she do, do you know.
AI think she was working at the road house or something. I’m not sure.
QWhat happened once he got into the bedroom.
AHe then continued doing what he was doing.
QWhen you say continued what he was doing, you have to actually give the evidence.
ASo he was grabbing me and I remember giggling because he was sort of tickling me. I remember giggling and things like that.
QThis is in the bedroom.
AIn the bedroom.
QHe was tickling you, did you have your clothes on at that stage.
AYes.
QWhat did he have on.
AHe had his clothes on. He then kept trying to go down on my vagina though I kept closing my legs. He said to stop being silly and then licked my vagina.
QWhen he licked your vagina were you lying down or were you standing up or what.
AI was lying down on the spare bed, there was a spare bed in the bedroom – it was a sort of junk room but there was a single bed in the junk room.
QAnd what did he do.
AHe licked my vagina.
QHow long did that go on for.
AI’m not sure.
QCan you roughly estimate.
AFive minutes, 10 minutes I don’t remember.
QHow did it come to an end.
AWe then had to go for a walk – we were rabbitting – he wanted me to go home – I can’t remember how that came about – but then we went for a walk to go rabbitting.
She then said that on the walk the accused again tickled her and took her pants completely off.
QWhat happened then.
AHe then kissed my vagina.
QWhen you say kissed it what did he actually do.
AHe then licked my vagina.
QHow long did he lick your vagina for.
AI’m not sure.
QWas he fully dressed at this stage or not.
AI think he had his pants undone and afterwards he said that he didn’t even have to touch himself, that he came. I was a child I didn’t know or understand what that meant.
QHe said to you he didn’t have to touch himself but he came, is that right.
AYes.
QDid you see his penis at all on that occasion.
ANot that I can remember. After that then he just said not to tell anybody and that if I told anybody I would go to gaol, no-one would believe me and I would go to gaol if I told anybody.
She said that on one occasion, having gone on a walk with the accused she came across strangers in a utility, but did not go in the vehicle with them. She then deposed that on one other occasion, the accused had taken her to a shed in the back yard of his house. She said that he pointed a sawn off shotgun to her head saying that if she told anyone about him he would shoot her. She said that she remembered a bat coming into the shed, and that the accused caught the bat.
She was asked about the regularity of the sexual activity and said:
QHow often.
AIt would happen as often as I saw him, which I saw him nearly every day. (my emphasis)
QAnd where would it happen.
AEither at his house if his wife was not home or it would be down the road.
QI just want you to give the evidence as to anything you saw or heard. In between the first time something happened and this incident with the gun, how frequently was something sexual happening between yourself and the accused.
AAlmost every day.
QAlmost every day.
AYes.
QWould you see the accused almost every day.
AYes.
QYou described the first time something happened when’s the next thing you remember that something happened.
ASo there was other times, there was the time at the rubbish dump where he tried to do something but I argued back and I kicked the dashboard of his vehicle.
QJust focus on the road for the moment how many times do you say that something sexual happened between you and the accused on the road.
ANearly every day. (my emphasis)
QEvery day, every day you would go for a walk down the road, what time of day typically would you go.
AI’m not quite sure.
QWell you were at school was it before school or after school or was it on the weekend.
AI didn’t always go to school so.
QSo pretty much every day from the age of around about grade II or III how long did that go on for, the road incidents.
AUntil we moved I think I was 10. (my emphasis)
QWould it always be the same, he would lick your vagina.
AYes.
QDid it ever progress further than that.
AOne time he tried to get me to suck his penis.
QWhen was that.
AThere was one time we were going out to the rubbish dump and he pulled his penis out and told me to suck his penis and he tried to say he would give me $10.
QDid you suck his penis.
ANo.
QHow old do you think you were when that happened.
AI’m not sure, I was in grade III or IV.
She said that she moved with her family to Murray Bridge when she was aged about 10 or 11.
She said that the accused and her sister, ‘S G’, started living together at Murray Bridge when she was aged 11 years. She was asked:
QDid anything ever happen between you and the accused when you were living in Murray Bridge before or after he had moved in with your sister.
AYes.
QWhat happened.
AThe same things that happened in the past in his car.
QSorry.
AThe same things that happened in the past he would take me out in his car. One time he took me in his car and we went across the bridge and parked somewhere along by the river.
QWhat happened.
AHe pulled me into his back seat and took my clothes off and he took some of his clothes off, and he licked my vagina and was rubbing himself on me.
QDid you see his penis at all.
ANot that I can remember.
QWhat did he actually do.
AHe licked my vagina.
QWas this the only time this happened after he moved to Murray Bridge.
AI can’t remember.
QYou can’t remember whether this was the only time.
AI can’t remember if that was the last time or not.
·Discreditable conduct
The complainant deposed that when she went to the accused’s house he would read cartoon books, story books and eventually read pornography books. She described this as being a ‘girl sucking the man’s penis and other pictures of men and women having sex’. She said that she was only shown pornography on the one occasion.
She deposed that she was in Grade 3 or 4 at the time. She said that the accused had told her to look at the ‘pornographic’ image, as it was what he wanted her to do to him. She then recalled that this incident ‘had occurred in the car park’, and was observed by her sister ‘A G’. The latter was clearly hearsay, and I have ignored it.
·Complaint evidence
She was asked about the note that she wrote to her sister, ‘A G’, but said she couldn’t remember what she actually wrote because it was when she was a child. She said her sister gave the letter to her mother, and subsequently she had a conversation with her mother, and her oldest sister ‘S G’. She said she couldn’t remember exactly what she told her mother nor what she had written down in the letter.
She explained that after her confrontation with her sisters ‘A G’ and ‘S G’, she had told her mother that she wanted to go and live with her father. She moved to Victoria with her father for between six and 12 months.
·General Cross-Examination
She was cross examined about how it was that she came to go on walks with the accused. In answer to a specific allegation that she only accompanied the accused so that she could walk the dogs, she denied knowing anything about dog walking and repeated that on a couple of occasions.[27]
[27] T. p 40.
She was asked to describe the accused’s house at Coonalpyn and referred to the spare room as being a storage room not set up as a bedroom. She was asked specifically about how often she was present at the accused’s house. She said it was quite often, because her sister’s house was next door. She was specifically asked about how often she was inside the house as opposed to being outside. She conceded that she was mostly outside, out the front, but ‘sometimes in the house’ (my emphasis). She agreed that she probably spent more time outside rather than inside.
She was asked about how many times she had watched cartoons at his house and said she couldn’t remember. She conceded that she did not know where her own mother was nor where the accused’s wife was at the time these alleged events were taking place. She said that, occasionally, she would spend half a day or the whole day with the accused. She said she couldn’t remember whether the accused was employed at or about that time.
She denied having said to the police that she began to play up as a result of her dog’s death and started to get into trouble. She was shown a statement made by her on 27 February 2014, and finally conceded that she had said that to the police.[28] She denied that she refused to go to school suggesting that ‘I loved school. My mother didn’t have enough money to send me to school’.
[28] T. p 51.
She was asked again about her statement to the police in which she had said that she had been wearing a dress in the lounge room. She admitted having made that statement but said she couldn’t remember the exact things that she was wearing on the day. She admitted that she didn’t know how long she had been watching the cartoons and it could have been for hours. She didn’t know where the other members of her family were.
She asserted that on the day of the first incident the accused took his shotgun with him on the walk. It was suggested to her that the road upon which she said they walked was about seven kilometres in length. She suggested that the accused had left his child, ‘S L’, in his cot by himself and that they did not return for hours.
It was suggested to her that she was being untruthful about all of those matters and a later suggestion that the accused had driven her from Coonalpyn to the Coorong.
She conceded that she did not have a good memory as to when the alleged incident at Murray Bridge had occurred. She conceded that after her sister, ‘A G’, had handed her note to her mother, she got upset, ‘trashed’ her room, and barricaded herself in her room. She made an assertion that when she was aged 11 years she had observed her young niece, naked under the blankets with the accused. She said that she was in the presence of her mother ‘B G’. She denied that she had falsely accused another person of molesting two other nieces. She denied having accused her mother’s ex-partner of tying her up and having poured acid down her back. She denied having asserted that her sister’s friend had been ‘perving on her’.
She admitted having accused a man who was in a relationship with her sister ‘S G’, of abusing her sister’s children. She said the allegations ‘were not false but simply not proven’. She acknowledged that she had sent a message to a police officer in August of 2015 to the effect that she had tried to shoot herself but couldn’t get the bolt into the gun. She had also asserted that someone was trying to kidnap her.
The other witnesses
·The complainant’s sister, ‘S G’
‘S G’ deposed that she had been in a relationship with the accused for about 15 years until the relationship came to an end in April 2015. She said that she and her former partner had lived next door to the accused in Coonalpyn. She had three children.
She explained that the complainant and their mother had stayed with her at her house for a little while. They, however, had also spent time in the caravan park at Coonalpyn, and for a short time, in a caravan placed at the back of the adjoining properties of the accused and herself. She explained that the complainant occasionally spent some time with the accused taking the dog for a walk. She explained that the complainant and their mother would come to her house ‘pretty much every day’. ‘S G’ did not work but stayed at home to look after her first child. She further explained:
QHow did it come about the complainant would go walking with the accused.
ASometimes when he’d come home from work she’d ask if they could walk the dog and they would just take the dog for a walk because, by law, anyone under the age of 18 can’t take the dog for a walk by themselves and she has had to have an adult with her, and none of us wanted to take the dog for a walk, so he used to on occasion. I am pretty sure a couple of times my daughter went with them as well.
‘S G’ was asked about the start of her relationship with the accused.
She thought it was about 1996 that the accused and his then wife, ‘B L’, had moved next door to her residence in Coonalpyn. She explained that not only did she spend almost all of her time at home, the accused’s then wife, ‘B L’, did not work and she spent her time at home looking after her two children.
She deposed that the complainant, her mother and her other sister ‘A M’ had only stayed at her house for two months. They then stayed in the caravan at the back of the house for about one or two months.
When asked about her relationship with the complainant she said ‘she’s just always a difficult child. If she didn’t want to do something, she didn’t want to do it, she’d make things rather impossible so, yeh, mum struggled a fair bit with getting her to cooperate with things.’
When asked about how long the complainant would go on walks with the accused, she said that it was something that occurred just every now and then, and it normally involved ‘going around the block’, but certainly never for half a day. She said that on one occasion the complainant had been out all day and her mother had a big argument with the complainant. She had the complainant had taken a ride with others, not the accused, in their ute with their dog.
She explained that the accused had been working steadily while in Coonalpyn. She said that during the long time she had known the accused he had never had possession of a firearm.
She was asked about her knowledge of the complainant’s allegations:
QDid you become aware at some stage about these allegations, the allegations that the complainant had made.
AYes.
QHow did you become aware of them.
AWe had a sort of like a family dispute one day of something she – we were going out as a family event, she wanted to come and we wouldn’t let her come. The very next day mum called me up and said she needed to talk to me. I went and spoke to mum and she told me what the complainant had said –
QDid you have a temporary separation from the accused at that point.
AYes yes.
QHow long were you separated for.
AI think it was about a week, maybe two weeks or something. I asked him to go stay at his parents until the air cooled down because it was pretty hectic with all the family and everything and I said “it would be best if you went and stayed away” until we worked out what was going on.
She explained that she had seen a letter written by the complainant to their sister, ‘A G’, in which there was an allegation that the accused had placed his hand down her underpants.
She said that she asked the complainant whether anything else happened, and the complainant had said that nothing further had happened.
When asked about the background to the letter, she said that ‘there was a brief argument that we had, because we were going out with the kids, and she used to get jealous over my kids if I bought my kids something and didn’t buy her something. She’d get jealous and she’d break whatever I bought for them and she would upset them, take things from them and they’d all fight’.
She deposed that ‘we were going on a family thing one day and I said to her, ‘I just want to go out with my kids’, and she got really upset, because I guess, as usual, she got jealous of me doing something with my kids and the letter happened the very next day’.
She said that subsequently the police had questioned her daughter about false allegations made by the complainant that the accused had molested her daughter when she was young. She deposed that her daughter had denied to the police that anything had happened as alleged, and that this allegation by the complainant had caused her to become upset.
·The complainant’s mother, ‘B G’
She explained that, in fact, she and her children had stayed in Glenelg after moving from Victoria, and they did not move to Coonalpyn until the complainant was aged about seven and a half to nearly eight years of age. She was asked, in chief, about whether the complainant had ever gone to the accused’s house and said ‘not by herself, no’.
She was then asked whether she had ever seen the complainant go inside the accused’s house when they were living in the caravan at the back yard of that house. She said, ‘well if she had to go to the toilet, yes, but mainly we’d go back to my daughter’s house for showers and stuff’. She explained that the accused would take the complainant for a walk, but just to walk the dogs.
She said she became aware of a letter written by the complainant when she was aged about 13 years. She said that her daughter, ‘A G’, had brought it to her. It was written in a form of scribble, and she couldn’t read it properly. She said that when she had asked the complainant about what had happened, the complainant told her that the accused had been touching her ‘down below’. ‘B G’ said that she recalled that the complainant was very angry at ‘A G’ for giving her the letter. ‘B G’ said that the complainant reacted by cutting the cord to the vacuum cleaner, throwing her roller skates at ‘A G’, and ‘trashing’ her room.
When cross-examined, she said that the complainant had always appeared calm and happy when returning from walking the dogs with the accused.
‘B G’ explained that she was not employed but remained at home. The complainant was with her as the youngest child. She did not know of any occasion where the complainant had travelled with the accused to the Coorong or Meningie nor had she been aware of any occasion where the complainant had been gone for more than three hours.
She confirmed that the complainant had made accusations of sexual impropriety against other family members including ‘B G’’s former partner, and her other daughter’s new partner. She said that the complainant had also accused another former partner of pouring acid down her back. That accusation was objectively patently false.
She explained that the complainant had also alleged that both the accused, and another friend of ‘S G’ had engaged in sexual impropriety with ‘S G’’s children. It was plain that she did not accept the complainant’s allegations against those persons.
‘B G’ denied that the complainant’s non-attendance at school had anything to do with ‘B G’s financial circumstances. She said that the complainant simply refused to go.
·The accused’s former wife, ‘B L’
She explained that in 1995, she and the accused had resided at Coonalpyn. The accused had worked for a bee keeper and for the local council. She explained that she did not work at all, but remained at home caring for her children. She plainly disputed any suggestion that the complainant would attend her house on a regular basis. She said that the complainant would only enter her house occasionally to go to the toilet or while her mother was cooking something. ‘B L’ denied that the complainant had spent a great deal of time inside the house. ‘B L’ stressed that the complainant simply did not watch television in their house.
She said that the accused, at no stage, possessed a firearm. She said that she spent most of her time inside her house with her small children, and that there was never an occasion where her son was left alone in a cot with no-one at home.
·Detective Brevet Sergeant Clegg
He said that he conducted a search of the accused’s house at Murray Bridge on 8 February 2014 but that no firearms were located. He conducted an interview with the accused.[29] He explained that the accused denied each of the allegations put forward by the complainant. He was also permitted to say that another police officer had spoken to ‘S G’s daughter when allegations were put to her about what had been said by the complainant. She said that ‘S G’s daughter denied those allegations.
·Agreed facts
[29] Exhibit P4.
A number of agreed facts were read onto the transcript.[30] They included the respective dates of birth of the complainant, and the accused. The records of the complainant’s involvement at various schools were also tendered. It was an agreed fact that those records established that her attendance at those schools was ‘appalling’.
·The defence case
[30] T. p 139 - 141.
The accused exercised his right to silence. I draw no inference adverse to him exercising that legal right. I did however observe him during the police interview. I have no doubt that he was enraged by the allegations, and denied them unequivocally.
Submissions of counsel
I have taken into account the whole of the submissions made by each counsel respectively.
I do not propose to detail each submission but will set out a synopsis of only some of the main points made by them.
The Prosecution
Mr Healy, counsel for the prosecution, detailed each of the allegations made by the complainant.
He accepted that the effect of the complainant’s evidence was that ‘something sexual had occurred nearly every day’ from when the complainant had been in Grade 2 and Grade 3 until she was aged about 10 years, and her family had moved from Coonalpyn.
He submitted that if the court did accept the evidence of the complainant beyond reasonable doubt then the court ought be satisfied that more than one sexual event had occurred over a period of not less than 3 days.
He referred to the alleged event at Murray Bridge on the other side of the river, to which the complainant had deposed. He referred to the detail of that event in which the accused had licked the complainant’s vagina in the back seat of his vehicle.
He submitted that the court ought to accept the complainant’s evidence, in particular, because it was consistent as to important details including the number of times she had gone on walks with the accused. He submitted that the court ought to give scant regard to inconsistencies in her evidence given her age at the time and that the events themselves had occurred over a long period of time.
He submitted that while there were a number of inconsistencies in the complainant’s evidence, there was nothing to suggest that she had taken the opportunity to exaggerate her evidence.
Mr Healy very properly conceded that there was nothing to suggest that the complainant’s mother, the complainant’s sister ‘S G’ and the accused’s former wife had any reason to support the accused. Each of them had made it clear that the version put forward by the complainant could simply never have occurred given the fact that none of them were working and indeed they were all at their respective homes at the relevant times.
Mr Healy, notwithstanding the evidence of those individuals, submitted that the complainant had given compelling evidence and invited the court to return a verdict of guilty to the charged offence.
The accused
Counsel for the accused, Mrs Powell, submitted that the evidence of the complainant was unsatisfactory in every material particular. She described it as ‘rife with inconsistencies’, and indeed at times ‘incredible’. She submitted that in many ways this was a most unusual case in that not only has there been no other evidence adduced by the prosecution to corroborate the complainant’s evidence, the bulk of the prosecution evidence undermined the evidence of the complainant.
She said that it defied belief that the alleged sexual conduct could have occurred at all, let alone in the manner deposed to by the complainant.
She submitted that it was extraordinary that the complainant had no memory of living in a caravan on the accused property, and had clearly exaggerated the period of time that she ‘associated’ with the accused while at Coonalpyn. It is plain that, at its highest, the complainant lived at her sister, SG’s house for only a few months and in the caravan for one month or two.
She submitted that when considering the effect of the complainant’s evidence that she had associated with the accused for a number of years and had become inseparable, the court ought contrast the balance of the prosecution evidence from the complainant’s mother, the complainant’s sister and the accused’s former wife.
She submitted that the complainant’s evidence as to sexual conduct occurring every day for years is not merely embellishment, but patently false.
It is plain from each of the other witnesses that they had no reason to favour the accused but each consistently gave evidence that the complainant was never alone with the accused, for long periods of time.
She further submitted that the complainant’s evidence as to the alleged sexual conduct was unsatisfactory because of its lack of detail.
She submitted that there may be many reasons why the complainant may give an erroneous account of events which allegedly occurred so many years ago, notwithstanding that she has convinced herself that her account is correct. She submitted that it may reflect the state of her mental health at the time. She submitted that the complainant was picking out certain memories from her life then recasting them to include the accused albeit that it bears no relationship to the truth.
She referred to the occasion when the complainant had found herself in trouble after travelling in a utility with a stranger. She was given a lecture by her mother about travelling with strangers. That, she submitted, was curiously similar to the allegation which she had made against the accused.
She referred to the complainant’s denial that the dogs were the true reason for any walks. She pointed out that the complainant had downplayed the relevance of dogs going on the walk and that this was in total contrast to the evidence of all of the other witnesses.
She referred to the alleged complaint, submitting that the contents of the letter fell far short of the allegations raised orally by her in court.
Mrs Powell submitted that the court ought to accept the evidence of her sister ‘S G’ as to the complainant’s jealousy. She submitted that the complainant’s evidence is ‘more than just fanciful, it is ludicrous’. She referred to the complainant’s evidence that she did not understand the consequences of a gun shot wound to the head. This evidence was a nonsense.
Finally she referred to the unsatisfactory nature of the complainant’s propensity to make accusations of a similar kind against other males who are close to her family. Mrs Powell very properly submitted that there is no duty upon an accused to prove anything let alone provide some explanation as to why the complainant would lie about these events.
She submitted that the inconsistencies in the complainant’s evidence, the erosion of her evidence by the prosecution’s own witnesses, the inherent implausibility of her allegations and her propensity to fabricate allegations against others are all individually insurmountable hurdles to the prosecution proving its case beyond reasonable doubt.
She invited the court to return a verdict of not guilty to the charged offence on the Information.
Discussion
Before turning to my findings it is appropriate to discuss the effect of the complaint evidence and any forensic disadvantage to the accused, by the delay.
The complaint
Pursuant to s 34M(2) of the Evidence Act, evidence relating to the making of an ‘initial complaint’ is admissible at trial in respect of a charge of a sexual offence. An initial complaint includes an elaboration of the initial complaint.
It is only relevant for the two purposes set out in s 34M(4)(a) and (b) of the Act, and is not evidence of the truth of what the complainant alleged. Despite its vague nature I received the evidence of the complainant’s complaint to her mother about the complainant being ‘touched down below’.
However the evidence of the complainant’s odd reaction to her sister providing the letter to her mother, when added to other inconsistencies and embellishments in her evidence, lead inevitably to me placing little or no weight upon it. In the event I do not need to dwell upon the complaint evidence.
·Forensic disadvantage
In assessing the strength of the prosecution case I must have regard to the obvious and significant disadvantage encountered by the accused by the 20 year delay, between the first date particularised in the charged offence and the date that the complainant brought these matters to the attention of the police.
Although no submission was made to the court in respect of the same, it is plain that the accused would have lost the opportunity to make enquiries as to the dates of his employment, and his whereabouts from time to time, had there been a prompt complaint. Indeed the complainant’s own memory of the events was adversely affected by the delay, leading to numerous answers of ‘I can’t remember’, about events which ought to have been significant to her. I do not need to repeat the inconsistencies in the complainant’s evidence which were highlighted by Ms Powell.
Accordingly I have approached the complainant’s evidence with caution and have scrutinised it with great care.
Assessment of the evidence of the prosecution witnesses other than the complainant
None of these witnesses had any reason to protect the accused. I was impressed by each of them as witnesses.
In my opinion, the complainant’s mother BG was a patently honest witness and reliable despite the long delay. In my opinion she fairly recounted her memory of these events so long ago. Where her evidence conflicts with that of the complainant, I prefer her evidence.
I also have no doubt that the complainant’s sister, ‘S G’, gave an honest and reliable account of the events the subject of the charged offence, and as to the relationship between the complainant and the wider members of their family.
Finally, I accept entirely the evidence given by the accused’s former wife, ‘B L’. She was also a patently honest witness and reliable in the matters to which she deposed. I accept her evidence that the complainant only occasionally attended at her house over that relatively short period of 4 to 5 months, when the complainant had stayed with her sister ‘S G’ and in the caravan.
Assessment of the evidence of the complainant
I observed the manner in which the complainant gave her evidence, and, in particular, her reactions when cross examined. The demeanour of a witness, so long after an alleged event, is often of little assistance. In the subject case however, my impression of the complainant is that of an extremely intense person who had convinced herself that otherwise normal events had sinister overtones. With the exception of her evidence as to alleged pornography, I do not find that she was deliberately untruthful as a witness. Indeed I have no doubt that she genuinely believes that she was sexually abused by the accused. I have concluded, however, that she has convinced herself over the long period which has elapsed since she was a child, of the truth of what I find were objectively false allegations.
I have no doubt that she has harboured resentment against her mother and her sisters for many years. Whether this was the consequence of jealously or other factors is of no moment.
It is consistent with the objective facts, that she felt some rejection when the accused commenced a relationship with the complainant’s sister ‘S G’.
I also have no doubt that the complainant has suffered from emotional difficulties for much of her life. It was plain to her sister ‘S G’, and I accept, that her jealousy was the driving factor for the complaint which was provided in a letter to ‘A G’. The fact that the letter was provided one day after a family dispute had arisen, coupled with her odd response to the disclosure of the letter by ‘A G’ confirms my adverse view of the reliability of the complainant’s evidence.
The suggestion of the complainant that sexual acts had occurred nearly every day until she turned 10 years of age, is frankly incredible.
While I do not need to directly determine the allegation of discreditable conduct, namely the alleged use of pornographic material by the accused, I make it plain that I do not accept the evidence of the complainant in that respect at all. I have no doubt that the complainant consciously embellished this evidence to place the accused in a poor light.
Before I could convict the accused of the charged offence, the prosecution must satisfy the court beyond reasonable doubt that the complainant was both a truthful and a reliable witness and that the defence case should be rejected.
I cannot be satisfied as to the truth and reliability of the complainant’s evidence on any matter which is not supported by evidence of the other witnesses.
I do not propose to repeat the various inconsistencies in her evidence, nor the very proper criticisms of her evidence by Mrs Powell.
I repeat that the complainant’s version that the accused had engaged in sexual misconduct with her on almost every day is not merely improbable in light of the evidence given by each of the other prosecution witnesses, but is simply too unreliable and too inconsistent to be accepted beyond reasonable doubt.
Conclusion
I cannot therefore be satisfied as to the guilt of the accused of the charged offence beyond reasonable doubt. Accordingly I return a verdict of not guilty to the charged offence.
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