R v M - [2018] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M
Criminal Trial by Judge Alone
[2018] SADC 39
Reasons for the Verdict of Her Honour Judge Chapman
30 April 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is charged with one count of unlawful sexual intercourse. It is alleged he offended on one occasion against his younger cousin by digitally penetrating her vagina. Complainant gave evidence the alleged offence occurred when she was asleep.
Verdict: Not Guilty.

R v M
[2018] SADC 39

The accused is charged with one count of Unlawful Sexual Intercourse with a person under 14 years. The particulars of the offence are that on 29 September 2016, at Plympton Park, the accused had sexual intercourse with the complainant, a person under the age of 14 years by penetrating her labia majora with his finger. In the alternative, the accused is charged with Aggravated Indecent Assault.
The accused has pleaded not guilty to both counts.
I will refer to the complainant as C.
The background facts to this allegation are not in dispute. The accused and C are cousins. Their mothers are sisters. At the time of these allegations, the accused was 18 years of age and living with his mother and maternal grandmother at Plympton Park. C was 12 years old and living with her mother interstate.
In September 2016, C and her mother travelled to South Australia to visit family. They stayed for a brief time in Robe and then drove to Adelaide, arriving at the accused’s home in Plympton Park in the afternoon of 29 September 2016. When they arrived, the accused was home with his mother, grandmother, an auntie and a male cousin.
At some stage later that afternoon, or early evening, the accused and C were alone together in the accused’s bedroom. C alleges that whilst they were both lying on the bed, the accused touched her breasts and then her vaginal area. She alleges the accused put his finger in her vagina.
The accused does not dispute that he was alone in the bedroom with C and they were both lying on his bed. The defence case is that no touching of a sexual nature occurred. He did not touch C’s breasts or genital area or digitally penetrate her vagina.
There is no dispute that later that evening at the house, C made a complaint to her mother. As a result of that complaint, C and her mother left the house and went to stay with another relative who lived close by. The next day C visited the Women’s and Children’s Hospital and the allegation was reported to the police. C was interviewed by the police on 7 October 2016 after she had returned home interstate.
The issue is whether I can be satisfied beyond reasonable doubt that the touching alleged by C in fact occurred and, in particular, whether the accused digitally penetrated C’s vagina (count 1) or, in the alternative, touched her vaginal area (count 2). If I am satisfied to the necessary standard that the touching as alleged by C did in fact occur, then the elements of count 1, or at least count 2, would have been established.
The prosecution case regarding the charged conduct rests entirely upon the evidence of C. The prosecution also called (i) C’s mother in regard to observations she made when she looked into the bedroom at one stage as well as the complaint made by C that evening; and (ii) C’s maternal grandfather in regard to observations he made of C and the accused in the grandmother’s bedroom and then the accused’s bedroom. In his defence, the accused gave evidence and called one of his aunties to give evidence of his good character.
The evidence
C’s evidence‑in‑chief comprised the audio/visual record of her interview conducted by a police officer interstate on 7 October 2016. The audio/visual record was admitted without objection as C’s evidence‑in‑chief pursuant to s 13BA of the Evidence Act. I was satisfied that the requirements of s 13BA(3) were met. C was made available at trial for cross‑examination and was cross‑examined by the accused’s counsel.
In summary, C’s evidence was that all of the sexual touching of her vaginal area occurred when she was asleep on the accused’s bed.
How C and the accused came to be in the bedroom
C gave evidence she went into the accused’s bedroom because the dog was attacking the cat. She and the accused took the cat into his bedroom and she decided to stay and help.
The accused’s evidence on this topic was similar, but more detailed. He said that at some time after C and her mother arrived he was in the lounge room reading a book. C was poking him with a pen so he went to his grandmother’s room to continue reading. C then came into the room and tried to take the book off him. His evidence on this aspect is supported by the evidence of his maternal grandfather who saw the accused and C in the grandmother’s bedroom ‘wrestling for a book or something’[1]. C’s evidence was that she did not remember being in the grandmother’s bedroom with the accused.
[1] Transcript p30
The accused’s evidence was that at that point someone opened the back door resulting in the dog coming into the house and starting to bark at the cat. That caused the accused to take his book and the cat into his bedroom. He closed the door behind him and was in the bedroom by himself for a while. C then came into the room and closed the door behind her. Because of the recent storm in Adelaide, the light in his room had blown and the lamp was not working. C came and sat on the bed. He put his book down and said that he was going to sleep. He did that to get her to leave because she had been annoying him. He thought that if he laid down and pretended he had gone to sleep then she would get bored and leave.
The alleged sexual assault
C gave evidence that she started getting sleepy from the travelling and the storm and the accused was tired also. She described what happened when they were both lying on the accused’s bed:
… we cuddled like normal cousins and I turned around and first he started rubbing my back and then he started rubbing other things and I was starting to fall deeper and deeper asleep. It was only like I’m not sure how, I’m not sure if I like, only like couple of minutes in a deep sleep sort of a short deep sleep. I did feel him put his hands down where he shouldn’t have and I was sleeping and I didn’t know what to do and it was like evening/night time. I woke up and literally freaked out and I was frozen in fear and I couldn’t move and I knew what he did to me but I was, had a lot of questions running through my mind, and he got up and asked me if I wanted a cuddle cause he said he was sorry, sorry numerous of times so I gave him a cuddle and then I couldn’t like couldn’t even look at him and I had to move away so I walked out of the room and I was so, I was so stressed and anxious and scared.[2]
[2] Exhibit P3; Exhibit P6, paragraph 28.
She later expanded on the alleged sexual assault. She was lying on the bed on her side facing to the left and the accused was lying behind her, also facing to the left, holding her. She fell into a deep sleep. She was asked what happened when she woke and she gave the following answer:
Because I felt it I think during my sleep. I don’t know why I listened to him but it made me feel a bit guilty. He started rubbing here (indicates to breasts) and he started rubbing my bottom and then he told me to lift my leg up in a position where he puts his hands down my genitals and started rubbing it.[3]
[3] Exhibit P3; Exhibit P6, paragraph 138.
She said that she lifted her leg and the accused was rubbing her genitals on top of her clothing and underneath her clothing. She said he told her to move her position, then he got up. She said ‘I don’t know what he was gonna do. I think he was gonna do more if I was still asleep’[4]. She said no, but in a ‘very, very sleepy way’[5]. He said only hugs and she said ‘yeah’. He started cuddling and touching her breasts and her bottom again. She was then asked what happened next and her response was ‘I woke up. I felt really weird down there’[6] and pointed to her genital area.
[4] Exhibit P3; Exhibit P6, paragraph 152.
[5] Exhibit P3; Exhibit P6, paragraph 154.
[6] Exhibit P3; Exhibit P6, paragraph 162.
She said the accused touched her breasts before she fell asleep and then she fell into a deep sleep. He was touching her whilst she was sleeping. She described it as one of those sleeps when you deep sleep then you wake up a little bit and then you deep sleep again. He touched her on the genitals both over her clothing and underneath her clothing while she was asleep. He was rubbing her on the ‘front bit where it’s a little bit flabby’ and it felt ‘really, really weird’[7]. It was slightly on top of the area ‘where I go to the toilet’ and do ‘wees’. It was ‘on the inside and outside, I think’[8]. She was wearing leggings.
[7] Exhibit P3; Exhibit P6, paragraph 289.
[8] Exhibit P3; Exhibit P6, paragraph 295 – 299.
She was asked whether the touching of her genitals happened again after she woke up. She gave the following answer:
After I woke up I actually I woke up on that side and I felt him still hugging me and then I got up and started, I started crying and he was telling me to shush. Then I gave him a hug cause all these flashes, all these flashbacks were coming back and I just felt so, so uncomfortable and yep.[9]
[9] Exhibit P3; Exhibit P6, paragraph 194.
She later said that when she turned to lie on her side into a sleeping position, he started touching her breasts. She was asked whether that was also when he touched her bottom. She gave the following response:
Yeah and I guess when I fell a bit more deeper asleep but I was, I was like sleepy and I just didn’t know, I just didn’t know like what he was doing or what I was doing but then I knew straight away when I woke up.[10]
[10] Exhibit P3; Exhibit P6, paragraph 281.
She said the following about what happened when she woke up:
When I fully woke up he stopped but he stopped like two minutes before I woke up and yeah it was like two minutes before I woke up. [11]
[11] Exhibit P3; Exhibit P6, paragraph 319.
In cross‑examination, the totality of the evidence given by C regarding the allegation was as follows[12]:
[12] Transcript p17
Q.When the touching happened in the area that you wee, you were asleep at the time that happened.
A.Yes.
Q.Since you were asleep when that was happening, you didn’t know what [accused] was actually doing until you woke up.
A.Yeah, it’s kind of blurry, what happened, so.
Q.When you woke up, you felt weird in the area that –
A.Yep.
Q.- you wee. Was it because of how you felt, then you woke up, that you thought [accused] had done something in that area while you were asleep.
A.Yep.
The accused gave evidence denying touching C on the breasts or vaginal area. He was lying on his back, not his side. C sat there for a short time and then lay down next to him. She was facing him at first, but then she was facing the opposite way. C was holding on to his arm and there was physical contact in the sense that they were both lying together on a single bed. He believed that C fell asleep. He lay there awake for about five to ten minutes. He got up off the bed to let the cat out and at that stage C had woken up.
After C woke up
C gave evidence she woke up and started crying. The accused told the cat, which was in the bedroom, to be quiet. Her grandfather came in. The room was really dark, and her grandfather asked why the light was not working. The accused left the room briefly and then came back. He asked her for a hug and she agreed. He said he was sorry and ‘why didn’t you stop me?’. She said ‘that made me feel really guilty that I did want him to stop but it was I was just so tired, I had like a headache and I couldn’t deal with anything, couldn’t deal with any problems’[13]. She said the accused was saying he was depressed. She told him that she was depressed and that she had cut her arm. He said he cut his arm. He also gave her three options as to what could happen next. Number one was that she could tell everyone and she could hate him. Number two was that they could keep it to themselves and pretend like nothing happened and number three was similar.
[13] Exhibit P3; Exhibit P6, paragraph 345.
The accused gave evidence that after C woke up and he had let the cat out, he sat down on the bed and they started talking. At one point in the conversation C started crying. She had started talking about school saying there were a few people there that she did not like or get along with. He said it was alright, school was not really such a great place for many people and not to worry about it. She then started talking about harming herself. She mentioned grabbing her mother’s knife and that she cut herself. She liked the way it felt. He said to her that a lot of people go through things and there were people she could talk to and it was going to be alright. C said that she hated herself and that was why she was doing it. C told him not to tell anyone and he said that he would not.
The accused gave evidence that at some point whilst they were talking, C’s mother popped her head in the room and asked why the lights were so low and what was going on. She also asked C if she was alright and C answered yes. This was supported to some extent by C’s mother who gave evidence that she opened the bedroom door and tried to turn on the light because it was pitch black in the room. However, she ‘could hear that they were in there’[14]. She said the accused explained the lights were not working. She left the door ajar and went back to the living room. In her evidence, C said that her mother never put her head into the bedroom.
[14] Transcript p24
The accused gave evidence that a few minutes later, the accused’s grandfather put his head in the room and flicked the light switch. The accused told him the lights and lamp were not working. This was because of the recent storm in Adelaide. The grandfather’s evidence was that he flipped the light switch and it did not work. He did not go into the room or see or talk to anyone in the bedroom.
After C and the accused left the bedroom
C gave evidence that she left the bedroom and sat on the couch next to her mother. She said everything was fine because she did not know what the accused was going to do if she actually did tell someone. When her grandmother called everyone to eat dinner, her mum got angry and impatient because C was not hungry. After a while the accused came with his laptop and his music and pretended like nothing ever happened. She told her mum that she needed to tell her something. They went to another room. She started crying. She told her mother that she was ‘sexually harassed’[15] by the accused and that he touched her, indicating her breasts and her genital area. She told her mother it was very uncomfortable and she was really scared and upset. Her mum gave her a hug and then they left the house.
[15] Exhibit P3; Exhibit P6, paragraph 353
C’s mother gave evidence they were called to dinner at about 7.45pm or 8.00pm. The accused came to sit at the table, but C would not. C’s mother was wondering why C would not come and eat because they were having one of her favourite foods for dinner. C poked her head around from the living room into the kitchen a couple of times where they were eating. When the accused left the kitchen C raced around and nestled into her mother’s left side and was shaking and crying and did not want to eat. C said she had something to tell her. They went into C’s mother’s bedroom and closed the door. C told her mother that the accused had touched her. Her mother asked where. C pointed to her breasts and her genitals. Her mother asked her if that was just on top of the clothes and C said no. Her mother asked if it was on top of her clothes and underneath and C nodded yes. Her evidence was that C did not say she had been ‘sexually harassed’ by the accused.
The accused gave evidence that shortly after his grandfather put his head in the room, the accused left the room because they were called to dinner. He said C stayed alone in his room for about another five minutes. After he had eaten he went back to his room to get his laptop and then went into the lounge room. C was sitting here. He felt that C was glaring at him so he left and went outside for a smoke. Whilst outside he could see C talking with her mother in the kitchen and indicating points on her body: one at chest level and one at her groin area. He confirms C and her mother left the house that evening.
Assessment of the evidence
The prosecution has the onus of proving the offence. The standard of proof is beyond reasonable doubt. The accused is presumed innocent unless and until the prosecution proves his guilt beyond reasonable doubt. The accused bears no onus of proof at all. He elected to give evidence and call evidence, but does not thereby assume any onus of proof. It is not a matter of deciding which version I prefer. The onus of proof remains on the prosecution at all times. As the accused has elected to give evidence, I will assess his evidence in the same way as the evidence of any other witness whilst bearing in mind that he has no onus of proof.
During the interview and the evidence she gave at trial, C presented as an honest young person who was doing her best to recall an upsetting occasion. She listened to questions carefully and gave considered answers. I do not agree with the defence submission that there was an element of performance in her presentation. Bearing in mind her age, she gave evidence in a straightforward and careful manner.
There is some difference between the evidence of C and the accused as to how they came to be in the accused’s bedroom, however, nothing really turns on that difference in terms of the assessment of C’s credibility. I do note that the evidence of the grandfather that he saw C and the accused wrestling for a book in the grandmother’s bedroom supports the accused’s account. I do not consider C’s credibility is affected by her inability to recall that now.
Two important aspects to the assessment of the evidence of any witness is their credibility and their reliability. Based on her demeanour and the substance of her evidence, I consider that C was describing what she honestly believes happened on the bed in the bedroom. However, I have significant concerns about the reliability of her account. Her evidence was that she was sleeping when the accused was touching her vaginal area. Indeed, on several occasions she described it as a deep sleep. At one stage she said it was a deep sleep, then waking up ‘a little bit’ and then the deep sleep again.
The prosecution submitted that the level of detail would be improbable for a child of her age unless the conduct in fact occurred. That submission does not address the evidence that she was sleeping at the time of the charged conduct. I consider the level of detail as described by C in her examination‑in‑chief (the interview) does not fit with her described state of sleep. It is not clear whether she is saying that the touching of her vaginal area was something she was aware of at the time it was happening or something that she recalled after she woke up. If it is the former, I find that to be inconsistent with her described state of sleep. It is not common experience that someone in a deep sleep, even if waking up ‘a little bit’ and then going back to a deep sleep, is aware when they are in a deep sleep of what is happening in their surroundings or to them. If it is the latter, which I suspect is the case on the balance of her evidence, then I have concerns about the reliability of her recall when she woke up of events which are said to have happened when she was in a deep sleep.

In cross-examination at trial, C described what happened during her sleep as being ‘kind of blurry’. That may be because of the passage of time since the events (approximately 18 months). Alternatively, it goes closer to the type of description that might be more expected if a person was thinking that something might have happened to them when they were asleep. However, that type of description militates against reliability of recall. The prosecution submitted that C’s evidence of the charged offending should be considered bearing in mind a suggested common experience of ‘dozing and being alert to things that are going on’. I am sceptical about that concept but, nevertheless, that was not the overall effect of C’s evidence. She repeatedly described her sleep as a deep sleep, not dozing.
In assessing C’s evidence, I have also noted that C described the accused touching her breasts before she fell into her deep sleep. That does not in any way remedy the concern I have about the reliability of her account of what she says happened when she was asleep. I am unable to discount the reasonable possibility that her belief about the occurrence of that touching of her breasts has been influenced by her belief about what happened when she was asleep.
In assessing C’s evidence, I have taken into account the evidence of her complaint to her mother that evening. That evidence is not admitted as evidence of the truth of what was alleged by C during that conversation. It is admissible to inform me as to how the allegation from C first came to light. It is also admissible as evidence of the degree of consistency of C’s conduct. I find that the evidence of the complaint by C to her mother supports her credibility both in terms of the timing of the complaint (it was made shortly after the alleged events) and the content of the complaint was largely consistent with what C alleges happened to her in the accused’s bedroom.
There is some inconsistency between C and her mother about C telling her mother she had been ‘sexually harassed’ by the accused. I prefer the evidence of C’s mother to the evidence of C on this topic. I do not consider that would have been a term that C would have used when she made the complaint to her mother. I think it more likely it is a term that C has become familiar with since she made the allegations. I do not consider this inconsistency is a matter which affects C’s credibility to any meaningful extent, if at all.
I have considered the evidence of the accused who is now 19 years of age. He has no criminal convictions and has never been in trouble with the police before these allegations were made. Two witnesses for the prosecution gave evidence of his good character. His grandfather and one of his aunties testified that his reputation is one of an honest and trustworthy person. He called another of his aunties who gave similar evidence in regard to his reputation amongst family and family friends. I have taken that evidence into account when assessing his credibility as well as keeping it in mind as a factor affecting the likelihood of whether he committed this offence.
The accused was a quiet young man who gave his evidence without embellishment. He gave a straightforward and believable account of the events of that afternoon and evening. His evidence regarding his contact with C in the grandmother’s bedroom is supported by the evidence of his grandfather. His evidence that C’s mother and the grandfather separately looked in to the bedroom whilst he was in there with C is supported by the evidence of C’s mother and the grandfather.
His evidence about seeing C indicate her breast area and groin area to her mother is contrary to the evidence of C and C’s mother that the complaint was made by C when C was in the grandmother’s bedroom. I prefer the evidence of C and her mother on this topic because it is more likely that C waited until she was alone in a room with her mother before giving her mother an indication of what was wrong. I do not consider this aspect of the accused’s evidence impacts adversely upon the assessment of his credibility.
The prosecution has not presented evidence which would cause me to reject the accused’s evidence, including his denials of this offence, as a reasonable possibility. The accused presented as an honest and reliable witness. The content of his account is plausible.
On behalf of the accused, Mr Coates submitted that there was a possible motive on the part of C to lie. The accused gave evidence that C became upset in the bedroom when she started discussing problems at school, self‑harming and hating herself. C agreed that problems at school and her self‑harm was a topic of conversation. C’s mother gave evidence that there was a time when C self‑harmed, but it was in March 2015. It is not clear on C’s evidence whether she was talking to the accused about that occasion or more recent actions or intentions of self‑harm. She agreed that she was upset and worried that the accused might tell the family about her self-harm. She denied making up these allegations to cover for being upset. Mr Coates submitted it was a possible reason, ‘perhaps to get in first with something else upon leaving that bedroom’[16].
[16] Transcript p76
I have considered and reject the possibility of such a motive on C’s part to lie. My general assessment of C is that she is a witness of truth. At the time, she was a young person who was tired from the travelling, very troubled about school to the extent she was sharing information about self‑harm with her older cousin and had been in a deep sleep. I do not consider she has deliberately made these allegations up, but rather I think she honestly believes the touching on the bed occurred.
Although I accept C as an honest witness, for the reasons stated, I am unable to accept and act upon her account regarding these allegations as a reliable one. Further, I do not reject the evidence of the accused, including his denials, as a reasonable possibility. Accordingly, I am not satisfied that C’s allegations of a sexual nature in fact occurred. The prosecution has not proved the offence to the necessary standard of beyond reasonable doubt. I find the accused not guilty of count 1 and count 2.