R v M, Am
[2014] SADC 159
•8 September 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, AM
Criminal Trial by Judge Alone
[2014] SADC 159
Reasons for the Verdicts of His Honour Judge Cuthbertson
8 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Accused charged with two counts of Unlawful Sexual Intercourse and one count of Gross Indecency on daughter of domestic partner.
VERDICT: Accused guilty of all offences.
Criminal Law Consolidation Act 1935 s 49(1) & s 58; Evidence Act 1929 s 34P & s 34M, referred to.
PDI v The Queen (2011) 216 A Crim R 577, considered.
R v M, AM
[2014] SADC 159Introduction
The accused stands charged with two Counts of Unlawful Sexual Intercourse with a Person Under 14 and one Count of Gross Indecency.
The charges are as follows,
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
M, A between the 1st day of January 2008 and the 12th day of September 2008 at Lobethal, had sexual intercourse with T, a person of the age of 9 or 10 years, by inserting his fingers into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Ibid)
Particulars of Offence
M, A between the 1st day of January 2008 and the 12th day of September 2008 at Lobethal, had sexual intercourse with T, a person of the age of 9 or 10 years, by performing cunnilingus upon her.
Third Count
Statement of Offence
Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
M, A between the 1st day of January 2008 and the 12th day of September 2008 at Lobethal, committed an act of gross indecency in the presence of T, a person under the age of 16 years, by masturbating in front of T.
The elements of the charges of Unlawful Sexual Intercourse that must be proved beyond reasonable doubt are as follows,
1 That the defendant had sexual intercourse with the complainant.
The insertion of the finger into the vagina constitutes sexual intercourse as does cunnilingus.
2 That it was a voluntary act.
3 That it was an intentional act.
4 That the complainant was under the age of 14 years at the time of the act.
The elements of the offence of Committing an Act of Gross Indecency that must be proved beyond reasonable doubt are as follows,
1 That the accused committed an act.
2 That it was a voluntary act.
3 That it was an intentional act.
4 That the act (of self masturbation) was an act of gross indecency.
Indecency is to be judged according to what right thinking members of the community would say constitutes indecency and gross indecency means that it must be significantly indecent.
5 That the act occurred in the presence of the complainant.
6 That the complainant was under the age of 16 years at the time.
Onus of proof
There is a presumption of innocence and the defendant is regarded as innocent unless or until his guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies wholly upon the prosecution; the defendant does not have to prove anything.
Separate consideration of counts
The defendant is charged with separate counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other counts.
I am not to reason that because the defendant is guilty of a particular count or it is proved against him that he has committed a particular uncharged act that therefore he has a propensity to commit sexual offences against the complainant and is guilty on that account of any particular offence.
Evidence in relation to one count may, however, assist in the determination of another count by showing the defendant to have a sexual interest in the complainant and by showing the nature of the encounter in the bedroom on the occasion alleged by the complainant and to enable the full nature of the encounter in the bedroom to become apparent.
Complaint evidence
Evidence of various complaints made by the complainant has been admitted in the trial.
I note that such evidence can only be admitted if it is an initial complaint and for the following purposes,
1 To inform me as to how the allegation first came to light.
2 As evidence of the consistency (or otherwise) of the conduct of the alleged complainant.
The evidence is not admitted as evidence of the truth of what is alleged in the complaint.
I will ignore any evidence of complaint which has been led where it is not a first complaint.[1]
[1] See s 34M(3) of the Evidence Act.
Defendant did not give evidence
In this matter the defendant did not give evidence. This is not to be taken as any evidence of guilt. The prosecution must still prove its case beyond reasonable doubt.
Use of screen and court companion
The complainant, when giving evidence, used a one-way screen and had a court companion in court during the time she gave evidence. I am to draw no adverse inference against the defendant by the use of the screen and the court companion.
Forensic disadvantage
In this matter the complainant did not make a timely complaint. The consequence of this is that the police were unable to investigate these offences at the time or shortly after they occurred.
The defendant may well have been disadvantaged by this in that evidence that might have been available e.g. semen or hairs on the sheets, bruising or tenderness to the complainant or the presence of DNA, could not be examined for. If investigated immediately after the incident, lack of any scientific corroborative evidence may have assisted the defendant significantly.
The defendant may well have been disadvantaged in that evidence that might have been available to demonstrate the impossibility or the improbability of the allegations may not now be available due to the effluxion of time.
I take into account in considering the evidence in this matter the possibility that exculpatory evidence may have been denied the defendant on account of the effluxion of time and I must weigh it in the balance when considering whether the charges have been proved beyond reasonable doubt and I must scrutinise the evidence of the complainant with special care for that reason.
Scrutinising of complainants evidence
A further reason why I must scrutinise the evidence of the complainant with especial care is that the sole evidence of guilt comes from the complainant. Her late complaint and the possibility of ulterior motives and conscious or unconscious confabulation, given that the allegations are made in the context of allegations by the complainant’s sister against the defendant, demand close scrutiny of the complainant’s evidence as to its truth and accuracy.
Possible duplicity
On the single occasion in which the complainant alleges the defendant entered her room and had sexual intercourse with her, both by digital penetration and cunnilingus, she alleges that there were a number of acts of penetration by the fingers then withdrawal and a number of acts of cunnilingus during the course of the incident.
At the commencement of the trial I asked counsel whether any issue was being taken on duplicity and whether the prosecution should elect a particular single act to rely on for each Count.
Upon counsel indicating that no point was being taken on the matter I allowed the trial to proceed. Having heard the evidence I observe that a conviction on either of Counts 1 or Count 2 can relate to a number of separate acts of penetration or cunnilingus.
In PDI v The Queen[2] the Court of Appeal of the Supreme Court of Victoria made the following remarks in relation to charges of incest and attempted incest where a number of acts of penetration and attempted penetration were alleged.
We accept the Crown's submissions, which rest upon highly persuasive authority. In each relevant incest count (counts 6, 10, 19 and 24) there are technically two separate acts of penetration due to an intervening moment of physical withdrawal brought about for reasons such as a change in sexual position. The same is also true in relation to the count of attempted incest, but obviously in the sense that the act of penetration was only attempted.
However, in accordance with the views espoused in Walsh v Tattersall and the other cases cited by the Crown, it was permissible to charge the applicant with one count of incest in relation to each of the relevant incest counts (counts 6, 10, 19 and 24) and one count of attempted incest in relation to the relevant attempted incest count (count 1). The technically separate acts of penetration in each count of incest constituted a single episode of incest. Similarly, the technically separate attempts at penetration constituted a single episode of attempted incest. In respect of each of the counts relevant to this ground of appeal, the Crown correctly applied the indicia proposed to sustain a single count by Kirby J in Walsh v Tattersall.
Furthermore, the applicant did not demonstrate how charging the separate acts of penetration under cover of single counts caused any unfairness to the applicant, since for example, the applicant did not proffer any different defences to the technically different acts of penetration. As such, it was open to the Crown to charge the relevant counts of incest and attempted incest under an exception to the general rule against duplicity. Indeed, as the discussion of this ground demonstrates, it may be to the distinct advantage of the accused that the Crown takes this approach.
[2] (2011) 216 A Crim R 577 at [584].
Uncharged acts
I note that if I was to confine Counts 1 and 2 to a single act of penetration or cunnilingus it would follow that all the other acts alleged would constitute discreditable conduct within the meaning of s 34P of the Evidence Act.
I have considered whether by considering Counts 1 and 2 as comprising a number of acts of sexual intercourse the defendant is being prejudiced in his trial.
In my view the evidence of other acts of a sexual nature in the sexual encounter between the accused and the complainant would be admissible.
(i) to show that the nature of the encounter between the complainant and the accused in her bedroom late at night was sexual and that the accused had a sexual interest in the complainant.
(ii) as part of the res gestae in order to put the charged acts in a proper context and to understand the exact nature of the allegations that are the subject of the particular charges and their context within the encounter between the accused and the complainant.
I will not use them against the accused as evidence that he is a bad person and for that reason is likely to have committed sexual acts against the complainant.
It follows that the defendant is in no worse a position by my considering the separate acts to be comprised in Counts 1 and 2 rather than by arbitrarily taking, for example, the first instance of penetration or licking as being the specific particulars in relation to Counts 1 and 2 respectively.
Allegations against defendant by sister of complainant
During the course of the trial it became apparent that at about the time the complainant was making her first complaint against the defendant the younger sister, S, had already made allegations of sexual impropriety against the defendant and that those allegations had led to charges which were then extant against the defendant.
No attempt was made to lead evidence in the trial itself of whether or not the charge or charges led to convictions, nor as to the content of the allegations.
I had already ruled before the commencement of the trial that the prosecution could not lead evidence of the allegations of the complainant’s sister against the defendant in this trial as evidence of guilt, as I ruled that they lacked the probative value required by s 34P of the Evidence Act 1929.
Evidence of the fact of allegations having been made was led, however, by the prosecution indirectly through the witness Pratap in the context of her giving evidence about a complaint made to her by the complainant. It was led without any prior application and was not objected to.
In my view the evidence of the complaint is of high probative value in relation to the issue of the consistency of conduct demonstrated by the complainant’s complaint to Ms Pratap. The fact that a trial of the defendant in relation to allegations of S (the sister) was about to take place explains why the complainant complained at the time she did and the manner in which it was forthcoming shows consistency in that it tends to rebut motives of revenge by the complainant in the making of the complaint and the making of the complaint at the time and in the manner was consistent and to be expected from the complainant.
For the complaint to be led to demonstrate the above required that it be led in its context which required of necessity evidence that it was led in the context of concern about a pending trial involving the complainant’s sister.
In my view the permissible use substantially outweighs any prejudicial effect it may have on the defendant as I will not use the evidence that the complainant’s sister was alleging sexual impropriety by him prejudicially against the defendant.
I am confident that I can keep the permissible use of the evidence sufficiently separate and distinct in my mind from the impermissible use so as to remove any appreciable risk of the evidence being used for an impermissible purpose.
The evidence of the fact of charges in relation to S is admissible, and I so rule as evidence explaining the evidence of complaint of the complainant and the timing of the complaint as to why it was made at that particular time.
The evidence of the fact of allegations by S as against the defendant is not evidence that the defendant committed sexual offences against her. I must not use it to reason that the defendant is a bad person or has a propensity to commit sexual offences on young children. As to whether the defendant did in fact sexually interfere with S, it is entirely hearsay and inadmissible for that purpose.
The fact that S had made a complaint against the accused which was before the complainant complained is relevant and highly probative on questions of the consistency of the complainant’s conduct in complaining when she did and on questions of whether the complainant may have made up or tailored her evidence, influenced by the knowledge that her sister had made a complaint against the accused.
It is also relevant as to whether the complaint demonstrated that the complainant may have had a motive to fabricate allegations about the accused.
Crown allegations
The complainant was 15 years old at trial. She was born on 13 May 1998 and is presently in Year 10. Her sister, S, is younger than her by 14 months.
She met the accused in the year 2007 when she was about 8 years old. At the time she was living at Parafield Gardens with her mother and her sister. The accused commenced a relationship with her mother and the family moved to Mill Road at Lobethal. She commenced attending Lobethal Primary School. After they had been living at Mill Road, two sons of the accused from an earlier relationship came to live at the Mill Road house.
The sleeping arrangements were that the accused and the complainant’s mother would sleep together in one room, the complainant had one room and her younger sister had one room. When the accused’s children moved into the house they moved into the room that the accused and the complainant’s mother had previously used and the latter two moved into the garage down below which had been turned into a bedroom.
On one occasion when they were living in Mill Road, before any of the accused’s children moved in and when the complainant was about 10 years old, she had been asleep in her room when the accused came into the room and woke her up. The accused removed her pyjamas by pulling her pants and her underwear down to her ankles. He asked her to spread her legs and then he commenced rubbing her vagina and then licked it.
He then placed his fingers inside her vagina. He placed his fingers in and out of her vagina and licked her vagina in between doing this.
Count 1 on the Information is the placing of the fingers in the vagina.
The licking of the vagina is Count 2 on the Information.[3] This too occurred several times.[4]
[3] See T33 L23.
[4] See T33 L24.
He was placing his fingers in and out of the complainant’s vagina and licking in between doing this.[5] Then, he unbuttoned her shirt, touched her breasts and kissing her on the mouth.
[5] See T33 L13.
Finally he masturbated himself to ejaculation having asked her if she “wanted to touch it”. This is Count 3 on the Information.
After ejaculation he put his penis back in his pants, told the complainant not to tell anyone and left the room.
The order of events was that the rubbing of the outside of the vagina with two fingers, licking of the vagina and the putting of two fingers into the vagina.
The complainant says these acts occurred at Mill Road before the accused’s son commenced living at the house. She also had placed it at mid to late 2008.
There is evidence the family lived at the address from September 2007 to September 2008. I do not regard the assertion of the complainant that it happened at mid to late 2008 but before the accused’s two children moved in as creating doubt concerning the evidence. It is quite possible that she is incorrect in her assertion as to when the incident took place given that she did not complain about it for some time.
An alternative is that the witness S is mistaken about when it was that the accused’s son came to live at the house.
It is less likely that she is mistaken about whether or not the accused’s son was living at the house. She is certain that just four of them were living at the house at the relevant time.[6]
[6] See T28.
Complaint evidence
About 6 months after the incident the family moved to a house on Mount Torrens Road at Lobethal and it was there that the relationship between the accused and the complainant’s mother ended.
The family moved down to Para Hills in May 2010.
The complainant did not tell anyone for a considerable period of time. She said she did not want to get the defendant into trouble or create an issue or start anything. She was scared it would upset her mother and sister and was concerned that they were all living in a small town.
The common law in relation to complaint in sexual cases has been changed by virtue of s 34M of the Evidence Act.
Section 34M(3) reads as follows,
34M—Evidence relating to complaint in sexual cases
(1)...
(2)...
(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.
Initial complaint is defined in s 34M(6) as follows,
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).
An elaboration, in my view, must be a complaint that bears some relationship to the initial complaint. A second complaint made independently and without any reference explicitly or impliedly to an initial complaint is unlikely to be an elaboration of an initial complaint but must be a second complaint. As such it would not be admissible as it would not pass the test of being an initial complaint or an elaboration of an initial complaint.
The complainant in her evidence asserted that she initially spoke to a girlfriend R whom she told while in Year 6 at Para Hills Primary School in 2010.
The evidence of R, however, is that the conversation took place as a result of the complainant going off to speak to the school counsellor, Ms Pratap (Haddin). She says it was the second time that the complainant went off with the school counsellor and was about one week after the first time.
As there was undoubtedly a complaint made by the complainant to Ms Pratap I am of the view that the probabilities are that the initial complaint was to her and that the complainant is incorrect in saying it was to R.
As there is nothing that has been deposed to that refers the complaint, such as it was, to R back to the original complaint to Ms Pratap I will not allow it as evidence of initial complaint or an elaboration thereof and I will pay no regard to it.
The only evidence available as evidence of complaint is what was said to Ms Pratap. She was a classroom teacher and school counsellor at Para Hills Primary School where she came to know the complainant. On 31 May 2011 she noticed that the complainant appeared in class to be with her head down and appearing nervous and anxious. This prompted her to speak to the complainant who complained of a sore stomach.
On further enquiring she was told by the complainant that she was nervous about going to court. The witness was aware at that time that there was a court case involving S. The complainant said that she was feeling nervous about being a witness for S as she would be under oath, meaning she would be required to tell the truth. She said that she had not told the truth because when her mother had asked her whether the same thing that had happened to S had happened to her she had denied it. In evidence she claims that the denial was false and was made so as not to upset her mother.
I have found that this to be an initial complaint.
I bear in mind that a failure to make or a delay in making a complaint of a sexual offence is not of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.[7]
[7] See s 34M(1) of the Evidence Act.
I direct myself that complaint is admitted,
1 to inform me as to how the allegation first came to light, and
2 as evidence of the consistency of conduct of the alleged victim, (or lack of consistency of conduct as the case may be), and that it is not admitted as evidence of the truth of what was alleged and that there may be varied reasons why a victim of a sexual offence might make a complaint at a particular time or to a particular person.[8]
[8] See s 34M(4) of the Evidence Act.
I further direct myself that it is a matter for me to determine the significance of the complaint having regard to the above matters and the evidence in this case.[9]
[9] See s 34M(4)(c) of the Evidence Act.
In my view it is significant that the complaint was clearly not made in an attempt to punish the accused for what he is alleged to have done to S. There was no element of blame or accusation in the way the allegation was made. It came out, in my view, rather fortuitously in response to an enquiry made due to the complainant appearing distressed.
If revenge was the motive one might have expected the complainant to have informed her mother, rather than to wait for a fortuitous circumstance when the counsellor happened to enquire of her as to whether there was anything wrong, having manufactured an appearance of distress so as to invite the questioning from the counsellor.
I find the complaint was a reference back to her denials to her mother and her distress observed by Pratap was by virtue of the contemplation by the complainant of the fact that she had lied about it and may now be asked questions which might bring these lies into focus at her sister’s trial.
The defence cross examined the complainant to suggest that she might have made up the allegations out of resentment towards the defendant to what he had done to their family, for what he had done to S, and for the fact that he was not working while the complainant’s mother had to work. I was impressed by the measured responses of the complainant. I reject the possibility that these allegations were made up by the complainant out of resentment towards the defendant or a desire to punish him.
As I have previously alluded, the manner in which the complaint arose strongly points against motives of revenge or resentment and indeed, indicates a reluctance to make the allegation and points to the allegation only seeing the light of day due to questioning by the counsellor.
I found the evidence of the complainant compelling that she did not wish to cause her mother more pain. At the time, her mother had to deal with the pain of an allegation that her partner had sexually interfered with S, hence the complainant’s denial that anything had happened to her.
The wish not to harm her mother was a consistent theme in the complainant’s evidence and well explains the failure of the complainant to have made a complaint at an earlier stage and is entirely consistent with the complainant’s distress and her explanation to Pratap.
I have not ignored other issues which arise under the rubric of prior inconsistent statements and to which I shall return shortly.
The accused asserts that the complainant has demonstrated inconsistency as to whether she believed she was a required witness in the trial of the defendant for sexually interfering with S. This, it is said, arises by virtue of the fact that at trial the complainant said that she did not think that she would have to give evidence and thus it is said to cast doubt on the cogency of the evidence of the complainant as to why she complained to Ms Pratap when she did and as to the cause of her distress which Ms Pratap noted.
Given that the complainant was not purporting to be able to give direct evidence of S being sexually assaulted by the defendant it would be extremely difficult for any lay person to know or predict whether a person in the position of the complainant would be a relevant witness in the trial of the defendant in respect of her sister.
It would be even more difficult for a child of the age of the complainant to be able accurately to make that assessment. The issue is circumscribed by rules of evidence and relevance that even lawyers find difficult to apply. It is possible to think of a myriad of reasons why a sister might be a relevant witness to prove peripheral things on a charge involving sexual assault of her sister. On the other hand it would be entirely a matter of conjecture as to whether there were other adult persons and, in particular the complainant’s mother, who would have been in a position to give such evidence and thus to spare a person of tender years from giving evidence.
Further, when the complainant gave her evidence before me she had the benefit of hindsight, namely the knowledge that she was not required to give evidence in her sister’s matter.
It is difficult to conceive of any reason why the complainant should lie about that topic in her evidence.
I remain impressed with the rather matter of fact explanation for her distress, made to Ms Pratap at the time, and the manner in which it was proffered which suggested it was a natural response rather than something contrived to initiate action against the accused.
In my view the complaint, both as to the content and timing, demonstrates some consistency in the complainant’s evidence and boosts her credibility.
I will ignore the other complaint evidence as it is not admissible evidence.
Contamination from the allegations involving S
The complainant was present when her sister, S told their mother allegations that the defendant had sexually assaulted her (S).
It was later in the year of 2010 that this happened. S was visibly upset and crying and that upset the complainant. The complainant does not remember what S said but remembers she said that it did happen more than once
There is no evidence before me in the trial proper from which I can determine whether the allegations made by the complainant have any similarity to the allegations made by S even though I have looked at them for the purpose of a preliminary ruling at the commencement of the trial.
The complainant was aware that S went to the police station as a result of the conversation with her mother to tell the police what happened to her. Subsequently the complainant became aware that Court proceedings were in train and that the matter was listed for trial in July 2011.
The complainant said she went along to Court not with the expectation of giving evidence but for moral support.[10]
[10] See T64.
By the time the complainant was to go to Court in the matter of S, the defendant was going to plead guilty and so, by then at least, there was going to be no need for her to give evidence on any view of the matter.
The complainant lived with S at all relevant times. At the time that she made the complaint which led to the institution of these proceedings to Ms Pratap she was well aware that S had made allegations and that those allegations were the subject of Court proceedings which were going to trial. She must have been aware of that for some time.
The complainant’s evidence is that she did not speak to S to ascertain what allegations S was making, in short that the sisters did not discuss the matter.
I do not think that the complainant was motivated to make false allegations or to tailor her allegations by virtue of the fact that S had made allegations against the defendant. The fact that she denied any interference when spoken to by her mother after S had made her allegations, the fact that she remained silent over the allegations even in the face of the fact that she knew a trial was proceeding involving her sister, the manner in which the disclosure was finally made to Ms Pratap (almost involuntarily as a result of an enquiry about how she was feeling) and her explanation that the distress observed by Ms Pratap was on account of her contemplation that she had made false denials, combine to convince me that her decision to make the accusations did not influence her to falsely accuse the complainant; nor was she infected in her mind in making her allegations by the fact of a knowledge of the details of the allegations of S.
Prior inconsistent statements
The defence point to a number of prior inconsistent statements of the complainant and assert they affect her credibility.
Prior denials that any sexual interference had ever taken place
The defence point to a number of occasions when the complainant denied that any sexual offending had taken place. They assert that the prior denials cast doubt on the testimony of the complainant before the Court that sexual interference by the defendant had taken place.
Firstly there was a denial to her mother when S had complained that there had been any interference.[11] This is consistent with her evidence that at the very time that the sexual interference took place she considered the issue and decided that she did not want to get the defendant into trouble and she was scared that it would upset her mother and her sister “and everyone”.[12]
[11] See T69.
[12] See T39.
She also denied to Detective Schiek that anything had happened as well as to her mother. These are significant denials, say the defence. Her explanation for these denials should not be accepted. In my view her denials to Detective Schiek were entirely consistent with and followed logically from her denials to her mother.
Her inconsistency as to where her mother was sleeping
The complainant told Ms Pratap that at the time this incident occurred her mother was sleeping downstairs on the couch,[13] when she now says the events occurred at a time when her mother and the defendant were sharing the upstairs bedroom.
[13] See T98 L2.
The complainant’s evidence has been that this occurred at a time when the defendant’s children had not arrived to live at the house, it being a common thread in her evidence that prior to the defendant’s children arriving everyone in the house, that is the accused, the complainant’s mother, the complainant and her sister S were all sleeping upstairs.
The defendant makes the point that the so called inconsistent statements (about where mother was sleeping and about how many times sexual interference had occurred) both occurred at a formative stage in the complaint making process.
This does not affect my view on the credibility or accuracy of the complainant. Ms Pratap may be mistaken, she took no notes. The complainant may have been mistaken or used the word “couch” instead of bed in error.
An assertion that the offending occurred upstairs while her mother was sleeping downstairs on the lounge is not clearly an inconsistent statement.
It is, however, prime facie inconsistent with her claim that it had occurred before any of the defendant’s children had moved into the house as it appears to be accepted that when that happened the defendant and the complainant’s mother moved downstairs into the shed which had been converted into a bedroom.
This would appear to be an inconsistency if the evidence of Ms Pratap is to be accepted on this topic[14].
[14] See T98.
This evidence does not shake my confidence in the evidence of the complainant, be it an inconsistency or with its meaning lost in the telling.
Evidence by the complainant that the sexual assault on her occurred more than once
Again this evidence emanates from Ms Pratap. She claims that the complainant had told her that it had occurred more than once,
QIn that first conversation that you’ve just described that you had with E did she say anything to you about how often this had happened or how many times this had happened to her.
AI think she mentioned it twice.
QThat’s in the first conversation.
A
No, sorry, once in the first conversation.
In a following conversation her mum had asked her in the principal’s office and “How many times?” she had said “Twice”.[15]
[15] See T98.
This is a reference to a later conversation after the disclosure to Ms Pratap that is said to have occurred in the principal’s office at the school.
Ms Pratap gave evidence that at the meeting in the counsellor’s office in the presence of the principal the complainant’s mother made a comment like “I was so vigilant and made sure that you girls were okay”. She (Ms Pratap) stated,
A... and I’m pretty sure she said ‘twice’.
QDid she say anything about where it happened?
A
Said that it happened upstairs and mum had said, you know, ‘where was I?’, basically, and she said ‘You were down stairs sleeping on the lounge’.
Much depends on whether “it” is a reference to an occasion i.e. a day or night when it happened or how many times the complainant was sexually interfered with on the one occasion she now alleges.
If it is a reference to a day or a night or an occasion then it is inconsistent with the complainant’s evidence because the complainant in this Court has consistently asserted that there was only one evening when the accused went into her room and sexually interfered with her.
If it is a reference to a particular incident then it is inaccurate if it refers to any particular act of insertion of the fingers into the vagina, or licking of the vagina because there were a number of allegations of insertion of the penis and a number of allegations of licking of the vagina.
If it referred to the number of occasions of sexual assault, in that the allegation was that sexual assault occurred by digital penetration of the vagina and by licking of the vagina then an assertion that it occurred twice may well be accurate.
The third charge in relation to Gross Indecency does not refer at all to a sexual assault as there is nothing in the allegation that asserts an indecent touching of the complainant by the defendant.
I am also aware that no-one made any notes or took down exactly what the complainant said and I thought that Ms Pratap was rather vague in the allegations that she reported as having been made by the complainant.
I am not troubled by this evidence. I do not think it is likely, if it was said, that it was a reference by the complainant to two separate occasions i.e. two separate days on which she was alleging the defendant had sexually interfered with her.
I think that the witness has probably mistaken what was said by the complainant or at least is mistaken in respect of what it was specifically being said by the complainant.
It is suggested that somehow the complainant must have later decided to assert that the incident occurred only once and that it occurred while the complainant and the defendant were in the upstairs bedroom.
There is also the use of the word “would” by Ms Pratap in describing the complaint of the complainant.
In cross-examination the following questions and answers took place,
QDuring the conversation when the mother was present did her mother ask her when it would happen.
AWhen did it happen?
QYes, did her mother S ask E when did the incident happen.
AI think so, yes.
QAnd did E say ‘It was when you were sleeping downstairs he would come into my room and did stuff’.
AYes.
QSo did she say the words ‘He would come into my room’.
AYes.
QSo as if it happened more than once.
AThat’s what she said, so I can’t really –
HIS HONOUR
QYou’re not sure she said ‘It would’ rather than ‘It did”.
AI made those notes there and then, so I have to go with what I’ve written.
QDo you have any recollection as to whether she was saying it happened more than once or happened once.
AI just remember her saying to me once but when she had spoken to mum in the office she said twice.
QDid she specify the two times it happened.
ANo, we are not allowed to have those conversations with her.
QDo you know whether it happened twice on the one occasion or twice on different occasions.
AI would not be able to answer that.
The defence say that this evidence confirms that the complainant at this early stage was saying that the accused had interfered with her on two separate days or occasions and that this is inconsistent with her present testimony which clearly alleges about the incident that it occurred on only one occasion when the accused came into her bedroom.
This evidence does not cause me to be in any doubt about the truth or accuracy of the complainant’s evidence. It demonstrates the problems that can arise if no verbatim record is made of a complainant’s complaint and the questions asked of her to elicit the complaint.
A further inconsistency is said to be that the complainant has given evidence that she was not expected to go to Court to give evidence at the trial of S[16]
[16] See T65 L16.
It is said this is inconsistent with the complainant telling Ms Pratap that she was going to Court to be a witness and that she was nervous about that.
I do not regard this inconsistency; if indeed there was an inconsistency, as being of any great moment. I have already pointed out that it would be extremely difficult for a person of the complainant’s young age, or indeed any lay person, to make a judgment as to whether that person would be an appropriate witness in the circumstances of a trial of the step-father for sexual interference with the sister in circumstances where she did not observe the sexual offending.
Over a period of time the complainant may well have changed her opinion as to whether she was a required witness or not and certainly, after the event of the defendant’s trial for sexual interference with S, it would not be unlikely that the complainant’s opinion would firm that she was not a required witness in the trial of the accused for sexual interference with S.
Again, it does not cause me to have any doubt about the credibility of the complainant in respect of her claims of sexual interference.
It does not follow that because Detective Schiek told the complainant and her mother that she was going to give the statement of the complainant to the DPP to see if it could be used in the trial in relation to S that it makes the evidence of the complainant false when she says she did not think she was going to be giving evidence.
It seems to me that it is totally neutral.
Other issues of credit
The defence also asserts there was embellishment of the complainant’s evidence. I did not detect any signs of embellishment. I thought the evidence was given by the complainant in a rather minimalist fashion with no attempt at exaggeration.
Nor do I think that claims made to Ms Pratap by the complainant when she first complained that she had a “sore tummy” was inconsistent with her saying that she was nervous and anxious about being a witness in Court.
Here there are no allegations of any lead up by the defendant to the sexual interference. On the prosecution’s own allegations the complaint comes out of the blue. It is said this makes the allegations less believable.
If the defendant fell off the bed when masturbating as claimed he would have made a noise which would have been heard in the middle of the night.
It is said his behaviour was risky behaviour due to the risk of detection making it unlikely that it would be true.
Because it was “out of the blue” he would not know how the complainant would react and walking around the house would surely have been heard by the other occupants of the house.
The defence point out that there was a motive to lie. She disliked the defendant. She was angry about what happened with her sister. On her own admission it crossed her mind that he might have abused other children.
Nevertheless I did not ever get the impression that the complainant was vindictive or obsessive in her dislike of the accused.
In my view her anger and dislike of the defendant would be perfectly understandable. She would have been less than frank if she had denied it. Yet her evidence did not disclose any profound anger. I do not accept that she made up the allegations out of anger. Indeed, on the contrary, I think that she kept her anger in check. She did not disclose this interference until the circumstances deposed to by Ms Pratap. It then arose in a very natural and matter of fact manner.
Her claimed concern in those circumstances about what she had previously told the police and her mother about nothing having happened to herself in the light of her possible giving of evidence in the trial of the accused in respect of her sister was entirely understandable.
I accept the evidence of the complainant beyond reasonable doubt.
In my view in relation to the significant matters she is both accurate and truthful.
I find that sometime between 1 January 2008 and 12 January 2008 at the premises at Mill Road, Lobethal the complainant was aged about 10 years and was living at the premises with her sister S and the accused and her mother.
The accused was in loco parentis.
On one occasion he came into her bedroom and placed his fingers inside her vagina taking them out and replacing them on a number of occasions.
All the elements are made out of Unlawful Sexual Intercourse with a Person under 14 in that, by a voluntary and intentional act, he had sexual intercourse with the complainant by inserting his finger into her vagina at a time when the complainant was less than 14 years of age.
In between acts of placing his fingers in vagina he licked her vagina. The act of licking her vagina is an act of sexual intercourse. It was committed voluntarily and intentionally and done at a time that the complainant was under the age of 14 years.
When he had done these things to the complainant, he masturbated himself in her presence whilst down at the end of her bed.
This was an act committed by the defendant both voluntarily and intentionally. It was an act of Gross Indecency in that it was grossly and significantly indecent, judged according to what right thinking members of the community would say constitutes indecency.
The act occurred in the presence of the complainant who was at the time under the age of 16 years.
I make these findings beyond reasonable doubt having directed myself in accordance with these reasons and having given separate consideration to each count and not having used evidence of any other count in considering any particular count except in the manner that I have indicated in these reasons.
Further I indicate that I have scrutinised the evidence of the complainant with care noting that it is the sole evidence relied on by the prosecution to prove guilt beyond reasonable doubt and that the complaint was made late and in the context of allegations of sexual impropriety against the defendant by the complainant’s sister S.
I have not used the evidence of the allegations made by S against the defendant in any way except as relevant to the question of how the complaint initially arose.
The defendant is guilty of the three counts charged.