R v M, B - [2012] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, B
Criminal Trial by Judge Alone
[2012] SADC 97
Reasons for the Verdict of His Honour Judge Millsteed
2 August 2012
CRIMINAL LAW
Trial by judge alone - accused charged with four counts of unlawful sexual intercourse with granddaughter - alleged offences occurred when complainant was aged between about 5 and 12 years - complainant 23 years at time of trial - prosecution cased based entirely on complainant's evidence - inconsistencies between complainant's evidence and medical evidence - inconsistencies - prosecution case based entirely on complainant's evidence and prior statements to police - accused made sworn denials - prosecution failed to prove accused's guilt beyond reasonable doubt - verdicts of not guilty entered.

R v M, B
[2012] SADC 97
INTRODUCTION

The accused is charged on information with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BM] between the 2nd day of November 1998 and the 16th day of August 2000 at [country town] had sexual intercourse with [AM] a person of the age of 10 or 11 years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BM] between the 2^nd day of November 1998 and the 16^th day of August 2000 at [country town], had sexual intercourse with [AM], a person of the age of 10 or 11 years, by inserting his fingers into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BM] between the 16^th day of August 2000 and the 31^st day of December 2001 at [country town] had sexual intercourse with [AM] a person above the age of 12 years and under the age of 17 years, by inserting his fingers into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BM] between the 16^th day of August 2000 and the 31^st day of December 2001 at [country town] had sexual intercourse with [AM] a person above the age of 12 years and under the age of 17 years, by performing an act of cunnilingus upon her.
The accused was first arraigned in this court on 27 June 2011 and pleaded not guilty. He subsequently filed an election for trial by a judge sitting without a jury pursuant to s7 of the Juries Act 1927. The application was granted and the trial commenced before me on 22 March 2012. Mr M Walsh appeared as counsel for the Director of Public Prosecutions (DPP) and Mr C Caldicott appeared as counsel for the accused. The prosecution called the following witnesses: the complainant AM, her mother, JM, and Dr J Tee, a legally qualified medical practitioner and consultant with Child Protection Services, Women’s and Children’s Hospital. The accused gave evidence. No other witnesses were called by the defence. The oral evidence was supplemented by the tender of photographs, other documentary exhibits and a statement of agreed facts. The evidence was completed on 26 March 2012 but for various reasons counsel could not deliver their closing addresses until 4 June 2012.
I then adjourned the trial to consider my verdict. I now deliver my verdict and the reasons for my verdict.
OVERVIEW
AM was born on 17 August 1988. The accused is her paternal grandfather. At the time of the alleged offences AM lived with her parents and sister in a country town where she attended primary school between 1994 and 2001. The accused resided with his wife in the same town. The accused is now almost 80 years of age. He was retired at the time of the alleged offences but led an active life. He was the president of the local rowing club and owned and trained horses stabled on a property on the outskirts of the town.
The prosecution contends that the accused sexually abused AM over a period of about seven years ending some time before she completed primary school at the end of 2001. The abuse comprised the charged offences and similar uncharged sexual acts. The abuse is said to have been perpetrated at AM’s home, the accused’s home, the rowing club and the property upon which the accused’s horses were stabled.
The evidence disclosed that AM first complained about the accused’s alleged misconduct when she was 16 years of age. The complaint was made to her mother on 5 June 2005. On 24 June 2005 AM made a statement to the police and signed it on 30 August 2005.[1] On 15 September 2005 the accused was interviewed by police in relation to AM’s allegations. He denied having engaged in any form of sexual impropriety against AM. He repeated those denials at trial.
[1] The complainant’s statement was taken on 24 June 2005 and was read and signed by her on 30 August 2005. Further signed statements were obtained from the complainant by police on 10 December 2005, 24 October 2008, 25 July 2011 and 20 March 2012.
EVIDENCE
The prosecution’s contention that the accused sexually abused AM is based entirely on her sworn evidence. AM gave evidence of several incidents, comprising charged and uncharged offences, and suggested that there were other instances of sexual abuse which she could not recall in any detail. The following is a summary of the evidence relating to the incidents which AM claims to have been able to recall and the defence case in respect of each of her allegations.
Babysitting
AM gave evidence of occasions when the accused allegedly sexually abused her while babysitting her.
By way of background, there is no dispute that the accused looked after AM and her sister when the girls’ parents were working. He babysat them either at his home or their home. Sometimes this occurred when the accused’s wife (MM) was absent.[2] MM regularly visited one of their sons who spent time in a rehabilitation centre in Adelaide recovering from injuries sustained in an accident.[3] He later moved into his own home but because it was situated a considerable distance from the town in which his parents lived MM sometimes stayed overnight with him.
[2] JM-T 28, 30-31, AM-T 62-63, 79-80.
[3] JM-T30, 31-33, 67, 79.
Alleged incident at accused’s home
AM testified that her earliest memory of being sexually abused related to an occasion when the accused was babysitting her at his home when she was about 4-5 years of age.[4] AM’s allegations about this particular incident are not the subject of any charge.
[4] T 67-77, 149-152, 204-205.
AM said the incident occurred in the accused’s bedroom inside a walk-in robe where he customarily kept a jar of lollies. She could not remember where her sister was at the time. Whilst she was searching for the lollies the accused kissed her on the face. He then undressed her, removed his own clothes, laid her on the floor and inserted his fingers into her vagina. Upon hearing a knock on the back door, the accused got dressed and went to the back door leaving AM on the floor. He returned to the bedroom a short while later and resumed kissing AM and fingering her vagina. The accused then licked her vagina. Upon completing the act of cunnilingus the accused inserted his erect penis into her vagina and proceeded to have sexual intercourse. She could not remember whether he ejaculated and described the acts of digital and penile penetration as “painful”. She could not recall suffering any form of vaginal injury or bleeding.[5]
[5] T 76-77, 152, 205.
The accused denied that any such incident occurred.
The defence further relied upon inconsistencies between AM’s evidence and prior statements made by her to police. The first discrepancy related to the time when the walk-in robe incident is said to have happened. AM stated in her first statement, signed on 30 August 2004, that the incident occurred when she was 6-7 years of age and not 4-5 years of age, as she testified. The assertion that she was 6-7 years of age was not corrected in her any of her subsequent statements to police. I do not consider this to be an important inconsistency. If the complainant had been subjected to numerous acts of sexual abuse over a long period many years ago, it is understandable that she might be uncertain about her age at the time the abuse commenced.
The second discrepancy, which relates to AM’s allegation of vaginal penetration, is of greater significance. In her first four statements to police[6] AM never alleged that the accused subjected her to acts of digital and penile penetration during the walk-in robe incident. The closest AM came to making those allegations was in her fifth and final statement to police, dated 20 March 2012, when she stated:
Generally I can say that the incidents involving my grandfather followed a similar pattern in that the incident generally started with him fondling me by which I mean that he would touch my body all over with his hands.
This then led to him kissing me on the lips, face and neck before removing my clothing.
My grandfather would then fondle my vagina by rubbing the area of my groin with his hand before inserting one (1) or more fingers into my vagina. He would then perform cunnilingus on me.
This was then followed by penis vagina intercourse.
[6] Statements dated 30 August 2005, 10 December 2005, 24 October 2008 and 25 July 2011.
A further difficulty with AM’s testimony lies in the evidence of Dr Tee. She testified that if the complainant had been subjected to penile penetration of the vaginal canal, when aged between 4-6 years, she is likely to have suffered significant tearing of the hymen, rupture of the walls of the vaginal canal and, as a result of the latter, significant blood loss.[7] As earlier stated, AM could not recall experiencing any vaginal injury or blood loss and there is no suggestion that she reported any such injuries to her mother or any other person at the time of the alleged events.
[7] Dr Tee T 225-226, 228-229, 232-233. Dr Tee said that the complainant would not necessarily suffer significant blood loss if only her hymen was torn because the hymen is “not greatly vascular”.
By reason of Dr Tee’s evidence and AM’s prior inconsistent statements I am not satisfied beyond reasonable doubt that the accused inserted his fingers and penis into AM’s vagina during the alleged incident in the walk-in robe. This conclusion is relevant to my assessment of the balance of AM’s allegations in respect of the walk-in robe incident and the other incidents both charged and uncharged. My findings in respect of all of the complainant’s allegations are discussed later.
Alleged incident at complainant’s home
The complainant testified that she was also sexually abused on multiple occasions when the accused was babysitting her at her home.[8] However, the only incident she purported to recall in any detail was one which is said to have occurred in the lounge room. In relation to that incident AM said she could remember “snippets” of the accused kissing her and removing her clothes and then proceeding to subject her to acts of cunnilingus and digital and penile penetration of her vagina. The complainant was unable to recall her age at the time.
[8] T 77-85.
The accused denied that any such incidents occurred at the complainant’s home.
The defence further relied upon inconsistencies between AM’s evidence and her statements to police. In particular, AM failed to allege in her first four statements to police that the accused inserted his penis or fingers into her vagina during the incidents at her home. As with the walk-in robe incident, the closest AM came to making those allegations was in her fifth and final statement in the passage quoted above. By reason of these inconsistent statements I am not satisfied beyond reasonable doubt that the accused inserted his fingers and penis into AM’s vagina during the alleged incident in the lounge room of her home or on any other occasion when he babysat her at those premises. Once again, this conclusion is relevant to my assessment of the balance of AM’s allegations in respect of those incidents and other incidents both charged and uncharged.
Rowing club
As earlier stated, the accused was the president of the local rowing club. AM commenced rowing at the club in 1998,[9] at which time she was in year four at primary school. Before she commenced rowing she accompanied the accused to the rowing club on occasions when he helped train rowers and cleaned and tidied the premises.[10] After she joined the club as a rower the accused took her to training after school.[11]
[9] AM - T 99.
[10] T 88-89, 98, 166 (AM could not remember when she began visiting the clubhouse with the accused - T 88-89).
[11] There is a minor conflict in the evidence as to when training took place. The accused said training occurred between the months of September and March each Monday, Wednesday and Friday afternoon or evening (T 88-89) and that the senior rowers, or at least some of them, trained about the same time as the juniors (T 245). AM testified that junior rowers trained during summer months each Tuesday and Thursday and sometimes on Friday after school before the senior rowers commenced their training (T 109, 166).
AM testified that the accused sexually assaulted her on multiple occasions when they were alone inside the clubhouse. However, there were only two incidents she could specifically remember. The first occurred on a weight lifting bench and the second on a pool table. AM was unable to say whether the incidents occurred before or after she commenced rowing. The sexual acts the accused allegedly performed on the weight lifting bench included an act of penile penetration of the complainant’s vagina, the subject of count 1 on the information, and an act of digital penetration of her vagina, the subject of count 2. The pool table incident is said to have involved the commission of similar uncharged sexual acts.
Before I summarise AM’s allegations in respect of these incidents it is appropriate to explain the lay out of the clubhouse.
The premises were located on the banks of a river. The clubhouse was rectangular and comprised a boat storage area and social room under a common roof. The boat storage area and the social room were separated by an internal wall with a door allowing access between the two areas. The social room contained a bar, tables and chairs and a pool table. Male and female bathrooms were adjacent to the room. The boat storage area contained boats, rowing equipment and a small gym. The clubhouse had two entrances, one on the northern side and the other on the southern side. The northern entrance provided access to the social from the rowing club car park and comprised an external mesh security door and an internal wooden door each of which was fitted with a lock. Senior members of the club were each provided with a set of keys to the doors.[12] The southern entrance consisted of a large sliding door through which boats could be removed from the boat storage area. The sliding door was locked from the inside. It should also be observed that although the social room and boat storage area had windows, it was not possible for anyone to see into them from outside the clubhouse.[13] The social room windows were covered by curtains. Even when the curtains were open it was difficult to see inside because the windows were tinted. The boat storage area had windows on the eastern and western sides of the building. The windows on the eastern side were covered by fly screens and those on the western side were too far above the level of the ground outside to enable anyone to see inside.[14]
[12] The accused testified that each senior member had a set of keys to the doors on the northern side of the club house (T 239). Although this assertion was not put to the complainant during her cross-examination, I am prepared to accept that the accused’s evidence on this topic is possibly true.
[13] T 259-261.
[14] Steps leading down to the river had been cut into the ground on the western side of the building – T 261.
Weight lifting bench incident
This incident is alleged to have occurred while AM and the accused were alone in the clubhouse cleaning the boat storage area. AM could not remember her age at the time but recalled that the incident occurred before her friend JT joined the rowing club in 1999 and either just before or after Christian Brothers College (CBC) had used the clubhouse for a rowing camp.[15] The prosecution and the defence agreed that the financial records of the rowing club established that receipts were issued to CBC for hiring the boat storage area on the following dates: 23 January 1997, 18 January 1998, 14 March 1998 and 23 March 1998. Accordingly, on the prosecution case, the weight lifting bench incident must have occurred some time between about January 1997 (when AM was 10 years of age) and March 1998 (when AM was 11 years of age).
[15] T 99-100.
AM gave evidence[16] that while they were cleaning the boat storage area she sat down on a weight lifting bench. At the time the southern door to the boat storage area was closed and locked and there were no other persons at the club. While she was sitting on the bench the accused kissed her and then knelt down in front of her. He then removed her clothes and fondled her on the outside of her vagina. AM said the accused then inserted his fingers into her vagina (count 2) and performed an act of cunnilingus upon her. Following those acts, he inserted his penis into her vagina and subjected her to sexual intercourse (count 1). It is unclear on the complainant’s account whether the accused removed his trousers and underwear, lowered them or merely unzipped his trousers to enable him to engage in penile/vaginal intercourse. AM described the acts of digital and penile penetration as painful. When the accused eventually removed his penis from her vagina she noticed seminal fluid on the tip of his penis. He told her not to tell anyone and suggested that it was their “little secret”.
[16] T 100-105.
AM said[17] that following the sexual acts the accused drove her to his home where he showered and changed into fresh clothes. He then drove her to the local hotel where he conducted a raffle every Friday night to raise money for the rowing club and, later, drove her home. Upon returning home AM went to the toilet and noticed seminal staining in the crotch of her underwear. She placed her underwear in the laundry basket to be washed. Her mother, JM, gave no evidence of ever having noticed such staining on her AM’s underwear when she was a child.
[17] T 104.
The accused denied AM’s allegations. In examination-in-chief he said that after AM commenced rowing it was his practice to take AM, and several other junior female rowers, to training after school. He suggested that there were always other rowers at the club house when AM trained.[18] The effect of his evidence was that he did not have the opportunity to be alone with AM at the clubhouse and to offend against her, as she alleged. However, in cross examination the accused effectively conceded that there may have been occasions when they were alone together at the clubhouse.[19] I understood his concession to relate to the period before and after AM commenced rowing.
[18] T 237-238, 245.
[19] T 255.
In addition to the accused’s denials the defence relied upon inconsistencies between AM’s evidence and prior statements made by her to police. As I have just pointed out, she testified that she saw seminal fluid on the accused’s penis following intercourse and later in her underwear. However, in her first statement of 30 August 2004 AM made no reference to seeing semen on the accused’s penis or in her underwear. Indeed, she specifically stated that she was unsure whether he ejaculated. Furthermore, AM first mentioned seeing staining in her underwear in her fourth statement of 25 July 2011 and seeing semen on the accused’s penis in her fifth and final statement of 20 March 2012. The complainant also failed to tell the police in her first second and third statements that the accused performed an act of cunnilingus upon her during the incident on the weight lifting bench. That allegation surfaced for the first time in her fourth statement of 25 July 2011. This inconsistency is a matter that I have taken into account in assessing the credibility and reliability of AM’s allegations in respect of this incident and also in relation to her wider allegations.

The defence also argued that AM’s account was inherently implausible. In particular, Mr Caldicott submitted that it was most unlikely the accused would have engaged in sexual activity on the weight lifting bench when member(s) of the club could have turned up at any moment. Although it might be said that the accused’s conduct was somewhat brazen I do not regard AM’s description of the weight lifting incident as inherently implausible. On her account the southern door to the boat storage area was closed and locked. There is no dispute that the door could only be opened from the inside. If the accused was minded to sexually molest the complainant in the gym, he may have felt confident that he would be able to hear members open the northern doors and have sufficient time to desist before they made their way through the social room into the boat storage area. As earlier observed, it was not possible for any person outside the clubhouse to see into the boat storage area through the windows on the western and eastern sides of the building. Furthermore, on the complainant’s account the incident may have occurred on a day or evening when training was not scheduled to take place, thus minimising the risk of rowers turning up.
Although I do not consider AM’s account to be inherently implausible it does not follow, of course, that the prosecution has succeeded in proving the truth of her account beyond reasonable doubt. I will return to this topic later.
Pool table incident
AM testified[20] that the incident in the social room occurred on a Friday after school when she and the accused were alone in the clubhouse. She could not remember whether it happened before or after the incident in the gym.[21] AM said that while they were in the social room the accused kissed her and then listed her onto the edge of the pool table. At the time the curtains inside the social room windows were fully closed.[22] The accused then removed her clothes, touched her vagina, performed cunnilingus upon her and proceeded to have penile vaginal sexual intercourse with her.[23] AM could not remember whether the accused stood or climbed onto the pool table to perform the act of sexual intercourse.[24] When the incident came to an end the accused drove AM to his home where he showered and changed into fresh clothes. They then went to the hotel so that the accused could conduct the raffle.[25]
[20] T 106-107, 109, 199.
[21] T 106.
[22] T 106.
[23] T 106-107.
[24] T 107.
[25] T 200.
Mr Caldicott argued that the complainant’s account of the pool table incident was inherently implausible. Once again he submitted that it was most unlikely that the accused would have engaged in sexual activity with the complainant in the social room when there was a risk that a member of the club could turn up at any moment. I do not believe that AM’s account is necessarily implausible. The complainant said that the curtains on the windows of the social room were closed at the time. It is possible that the accused believed that he would be able to hear cars pull up in the car park, or people approach the clubhouse, and have sufficient time to take corrective action before they unlocked the external and internal doors, which provided access to the social room. More significantly, it is possible on the complainant’s account that the incident happened on a Friday when training was not scheduled to take place.
The defence also relied upon photographs which depict the accused standing next to the pool table with his waist well below the playing surface.[26] It is obvious from the photographs that the accused could not have had penile/vaginal sexual intercourse with the complainant if she was sitting or lying on the playing surface and he was standing in front of the pool table. The prosecution emphasised that the legs of the pool table could be adjusted to lower the height of the table. That is so, but as far as I could determine from the photographs, even if the pool table was fully lowered the accused could not have engaged in the act of sexual intercourse described by AM if he was standing. Nevertheless, I do not believe that this fact necessarily shows that AM gave an untruthful account. As earlier stated, AM could not remember whether the accused stood or climbed on to the pool table to perform the act of sexual intercourse.
[26] Exhibit D 15.
In addition to the matters that I have canvassed, the defence also relied upon inconsistencies between AM’s evidence and prior statements made by her to police in respect of the pool table incident. Significantly, she made no mention of the pool table incident in her first, second and third statements to police. The allegation of having been sexually assaulted on the pool table was first raised in her fourth statement of 25 July 2011. In my view, AM’s failure to mention the pool table incident until then is an omission of some importance to be taken into account in assessing the credibility of her allegations in respect of this incident and generally.
The stables
As earlier stated, the accused owned trained horses which were stabled on a property on the outskirts of town. There is no dispute that the AM sometimes accompanied the accused to the stables to help him feed the horses. This usually occurred after the complainant finished school for the day or rowing training.[27] AM gave evidence of two occasions when the accused allegedly sexually assaulted her at the stables. Both incidents are said to have occurred during a period when the accused owned a particular horse and before she met her friend JT in 1999.[28] There is no dispute that the accused owned the horse in question between 1996 and early 2002. Accordingly, if the complainant’s evidence is true, the incidents must have occurred some time between 1996 and 1999 when she was aged between about 8 and 11 years.
[27] AM - T 120-123.
[28] T 123, 125-126.
AM testified that one of the incidents occurred in a shed on the property where the horses were stabled referred to in the evidence as the “feed and tack shed” and the other in the “hay shed”. The feed and tack shed was a fully enclosed corrugated iron shed, access to which could be gained through a single door. The hay shed was a three-sided iron shed. The northern or open side of the shed faced the back yard of an adjacent residential property. The sexual acts the accused allegedly performed in the feed and tack shed included an act of digital penetration of the complainant’s vagina, the subject of count 3, and an act of cunnilingus, the subject of count 4. The hay shed incident is said to have involved the commission of similar uncharged sexual acts.
Feed and tack shed incident
AM testified[29] that on the relevant occasion the accused kissed and undressed her and then placed her on a work bench inside the shed. AM said that the accused then fondled her, inserted his fingers into her vagina (count 3) and performed cunnilingus upon her (count 4). The sexual acts culminated in the accused inserting his penis into her vagina and subjecting her to intercourse. AM could not say whether he ejaculated and had no memory of the events that transpired at the stables afterwards.
[29] T 123-128.
For his part, the accused denied AM’s allegations and suggested that there was no work bench in the shed as asserted by the complainant. It should be observed that there was no evidence put before me, independent of the complainant and the accused, as to whether or not there was such a bench in the shed at the time.
The defence did not suggest that AM’s account in respect of the feed and tack shed incident was inherently deficient in any significant respect, but emphasised inconsistencies between her evidence and her statements to police about the matter. As I have just outlined, AM asserted that the accused subjected her to an act of penile/ vaginal sexual intercourse in the feed and tack shed. However, in her first statement of 30 August 2004 AM said in relation to that alleged incident: “I don’t think he put his penis inside me that time but I can’t remember really”. The closest AM came to alleging penile penetration on this particular occasion was in her in her fifth and final statement of 20 March 2012 when, as indicated earlier, she asserted that each of the incidents involving the accused followed a similar pattern and included acts of penile penetration. In my view, this is a significant discrepancy. No doubt it was by reason of the complainant’s failure to previously assert that the accused had subjected her to an act of penile/vaginal sexual intercourse that the prosecution decided to lay no charge against the accused in respect of that particular allegation.
Hay shed incident
AM testified[30] that the incident in the hay shed occurred on a day when the weather was stormy and it was raining while they were at the stables. AM said that the accused kissed and fondled her on the outside of the clothes. He then removed her clothes and laid her down on a bale of hay. He then inserted his fingers into her vagina, performed cunnilingus upon her and inserted his penis into her vagina. After he removed his penis she noticed semen on his penis.
[30] T 129-135.
The accused denied AM’s allegations.
The defence argued that it would have been manifestly foolish for the accused to have engaged in sexual activity in a shed that was not fully enclosed as asserted by AM. As I earlier mentioned, the hay shed was a three sided corrugated iron structure the southern side of which faced the backyard of an adjoining residential property. The hay shed was about 20 metres from a corrugated iron fence that separated the stables from the residential property. The accused testified that the adjoining property was occupied by a family with young children. He said that the children often looked over the fence and watched him tending to the horses.[31] Mr Caldicott argued that it was most unlikely that the accused would have subjected the complainant to sexual acts in those circumstances. It should be observed that in cross-examination the complainant agreed that there were people who lived next door to the stables.[32] However, it was never put to her that they included children who were in the habit of looking over the fence. Be that as it may, I do not believe that it can be said that the risk of children looking over the fence would necessarily have deterred the accused. Indeed, it must be remembered that, on the complainant’s account, the hay shed incident occurred on a wet and stormy day. It is feasible that the accused believed there was, by reason of the weather, little chance of children playing, or anyone else being, in the backyard at the time.
[31] T 247.
[32] T 188.
There are, however, important inconsistencies between AM’s evidence and her statements to police in respect of the hay shed incident. As with the feed and tack shed incident, she never alleged in her first four statements that the accused inserted his penis into her vagina. Nor did she specifically assert in her fifth and final statement of 20 March 2012 that he engaged in such conduct. Her final statement merely alluded to each of the incidents involving the accused following a similar pattern which included acts of penile penetration.
Subsequent events
The complainant’s mother and father separated in 2002. Following the separation AM and her sister remained living with their mother and spent considerably less time with the accused and his wife. There is no dispute that when the separation occurred AM was very upset with the accused for assisting her father to move out. Indeed, she agreed that she hated the accused for helping her father in that regard.[33] The defence suggested that the complainant may have fabricated her allegations against the accused for this reason. I am not impressed by this argument. The complainant gave evidence that her upset over the move was short lived.[34] I accept her evidence on this point. Furthermore, those events occurred about three years before she complained about the accused’s alleged misconduct.
[33] T 205-206.
[34] T 206.
I turn to the circumstances of her complaint.
On the evening of Saturday 5 June 2005 AM asked her mother if she could borrow her mother’s car to go to a party with her boyfriend. Her mother refused and a heated argument ensued. The argument culminated in AM telling her that the accused had sexually abused her.[35] As earlier stated, AM’s complaint subsequently resulted in the police interviewing her on 5 June 2005 and the accused being interviewed on 15 September 2005.
[35] T 209-210. AM’s complaint was admissible to explain how her allegations first came to light and to demonstrate consistency of conduct but could not be used as evidence of the truth of what she alleged: s34M(4) Evidence Act 1929.
The defence argued that AM made have made a false complaint of sexual abuse to her mother in order to engender sympathy and obtain a car.[36] It was suggested that once the police got involved she was locked into a lying story. While I acknowledge the possibility of the complainant having been motivated to make up a story for that purpose I do not consider it to be a particularly cogent theory. However, it must be remembered that there is no onus on an accused person to establish a motive for a complainant having fabricated sexual allegations against him or her.
[36] AM’s mother helped her purchase a car on 17 August 2005.
FINDINGS
In relation to each of the charged offences the onus rests on the prosecution to prove the accused’s guilt beyond reasonable doubt. The prosecution case in respect of each of the charged acts is based entirely upon an acceptance of AM’s evidence. Accordingly, in relation to each charge it is necessary for the prosecution to prove beyond reasonable doubt that the complainant gave a truthful and reliable account of the incident upon which the charge is based.
In assessing the strength of the prosecution case I must have regard to the obvious substantial forensic difficulties the accused has encountered by reason of the complainant’s late complaint. I do not suggest that her failure to make an earlier complaint is of itself of probative value in relation to an evaluation of her credibility or consistency of conduct.[37] Indeed, in my view if she was sexually assaulted by the accused it is understandable by reason of her age and her relationship with him that she might be reluctant or unwilling to inform on him. However, it must be acknowledged that by reason of her late complaint and the vagueness of her allegations as to when the various incidents are said to have taken place, that the accused has been prevented from determining where and with whom he may have been at the relevant time. For example, the very general nature of AM’s allegations of the incidents at the rowing club has denied the defence the opportunity of making enquiries as to whether there would have been other rowers in or about the club at the time the offences are said to have been committed. Fairness dictates that the forensic disadvantages suffered by the accused should be taken into account.
[37] See s34M(2) Evidence Act 1929.
AM gave her evidence in a clear, calm, articulate and pleasant manner. I was impressed by her demeanour and apart from her allegation that she was subjected to penile intercourse at the age of about 4-7 years and suffered no vaginal injury or bleeding there was, in my view, nothing inherently implausible about her account. However, that aspect of her evidence and her various prior inconsistent statements to the police have caused me disquiet. Furthermore, there was nothing implausible about the accused’s evidence. He gave his evidence in a straight forward manner and was not shaken in cross-examination. For these reasons, and the forensic disadvantages experienced by the accused, I am not satisfied beyond reasonable doubt that the prosecution has proven the accused’s guilt in respect of any of the offences with which he is charged.
Accordingly, I return verdicts of not guilty in respect of each count in the information.