R v M, GJ - [2018] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, GJ
Criminal Trial by Judge Alone
[2018] SADC 57
Reasons for the Verdict of His Honour Judge Chivell
1 June 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Charge of unlawful sexual intercourse with a person under 14 – complainant aged six at time of alleged offence, aged eight when giving evidence – alleged digital penetration by accused, who was then in a relationship with complainant’s mother – allegations arose in context of bitter relationship breakdown between accused and complainant’s mother.
Verdict: Not guilty
Evidence Act 1929 (SA) s 9, s 13BA, s 34BA, s 34D, s 34M; R v Cheng [2015] SASCFC 189; R v Trimboli (1979) 21 SASR 577; R v Edwards [2009] SASC 233; R v C, CA [2013] SASCFC 137; Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086, referred to.

R v M, GJ
[2018] SADC 57

M is charged with unlawful sexual intercourse with a person under 14 years. He pleaded not guilty and elected to be tried by a judge sitting without a jury. He was represented by Mr Gaite. Ms Barnes appeared for the Director of Public Prosecutions.
The offence is alleged to have occurred between 3 May 2015 and 3 May 2016. The complainant, C, was living with her mother, A.
M is 35 years old and has a visual impairment called cone dystrophy. He is considered legally blind. He came to know the complainant and her mother through the gymnastics scene. He has been a gymnastics teacher for many years.
M was in a relationship with A for about two years until about the end of June 2015. He often stayed at A’s house overnight. He had his own house in another suburb.
The alleged offence was reported to the police in July 2016. M was arrested on 1 November 2016 and charged with the offence.
C’s Interview with the Police
C was interviewed by the police on 5 July 2016. The disc containing a record of the interview is Exhibit P1. The transcript, admitted as an aide mémoire, is Exhibit P1A. They were tendered, without objection, pursuant to s 13BA of the Evidence Act 1929.
At the time the recording was made, C was seven years old. She was eight, almost nine, at the time of trial.
Evidence Act 1929, s 9
After speaking with C, I determined that she did not have sufficient understanding of the obligation to tell the truth, and of the importance of giving sworn evidence. I permitted C to give unsworn evidence. I was satisfied that C understood the difference between the truth and a lie.[1] She said she understood that she had to tell the truth because it was in a court. I was satisfied that the requirements of s 9 had been met.
[1] T 11-12.
I remind myself of the need for caution in determining whether to accept C’s unsworn evidence, and the weight to be given to it.
I indicate that I will assess the credibility and the reliability of the prosecution evidence having regard to s 34D(1) of the Evidence Act 1929. This section provides:
In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
In considering the provisions of s 34D, I have regard to the judgment of the Court of Criminal Appeal in R v Cheng,[2] in particular the judgment of Sulan and Peek JJ. It is on this basis I remind myself of the following directions when considering the evidence adduced:
·I must specifically consider all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statements made by C in this matter as required by s 34D(1), in particular the contemporaneity or otherwise of the statements, whether there is evidence in the interview about the level of the cognitive development of C as adduced by the interviewer, and any change in the level of the child’s cognitive development between the giving of the interview and giving of evidence in cross-examination in April 2018;
·any relevant circumstances deriving from the circumstances of the interview, and in particular the qualifications of the interviewer, the nature of the questions asked and the extent to which they were leading questions, and whether the circumstances of the interview pressed upon C the importance of being precise and truthful, having regard to the seriousness of the subject matter;
·whether C was aware of the significance of the interview and the necessity to be truthful or whether the interview setting reduced her appreciation of the importance of being strictly accurate and the important effect that mistakes, exaggeration or falsehood may have had;
·the fact that C appeared to have sufficient understanding of the obligation to be truthful in giving evidence, and whether at the time of interview she had understanding of the importance of telling the truth;
·on the basis of these considerations, does the evidence of C provide a sufficiently firm basis for a finding of guilt beyond reasonable doubt?
[2] [2015] SASCFC 189.
General Directions
I remind myself of the following fundamental principles:
·M is entitled to the presumption of innocence. He is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not proved, the appropriate verdict is not guilty.
·The burden of proving guilt rests on the prosecution. There is no onus on M to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of M.
·M elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to cross-examination by Ms Barnes. He denied the charge, and answered questions about the alleged offending.[3]
·M’s evidence should be assessed in the same way as the evidence of any other witness. In particular, it should not be given less weight because he is the accused in this trial.
·Even if I reject M’s denials beyond reasonable doubt, that does not strengthen the prosecution case. To convict M, I have to be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Proof beyond reasonable doubt means what it says, and needs no further elaboration. A person must not be convicted on doubtful, insufficient or unreliable evidence. A suspicion of guilt is simply inadequate. Nothing short of proof beyond reasonable doubt is sufficient.
[3] T 110.
Elements of the Offence
The prosecution must prove each of the elements of the offence of unlawful sexual intercourse with a person under 14 years beyond reasonable doubt:
(1)The accused had sexual intercourse with the complainant. The legal definition of sexual intercourse includes inserting a finger into the vagina of another person.
(2)The complainant was under the age of 14 years at the time the act of sexual intercourse took place.
Prosecution Evidence
Evidence of C
The prosecution tendered Exhibit P1, the recorded interview of C, as her evidence-in-chief. The interview was conducted by Detective Sergeant Sheldon. C was seven years old at the time of the interview in July 2016.
After some introductory questions, and after establishing that C knew the difference between the truth and a lie, Detective Sergeant Sheldon asked C what she had come to see her about.
C said that she came to talk about ‘when we were living with someone um, he used to do the wrong thing’.[4] She said that on a weekend between 3 May 2015 (her sixth birthday) and the end of June 2015, M and C were in the lounge room of his house, sitting on a beanbag watching a Pokémon movie. It was night-time. She was dressed in her ‘Minnie Mouse’ pyjamas. Nobody else was home except for M’s daughter, S, who was asleep in another room. M touched C’s ‘rude bits’[5] on her ‘front bit’[6] by way of rubbing his fingers against it. C drew a picture at the request of Detective Sergeant Sheldon to demonstrate where she was touched.[7] C said that the touching occurred on top of her skin and by M sliding his hand under her pyjamas. C says that the rubbing was ‘in’[8] her rude bit, as opposed to ‘on’. She explained she knew the difference between in and on by identifying the action that Detective Sergeant Sheldon was demonstrating using a tissue box.[9]
[4]    Exhibit P1A, item 32.
[5]    Ibid, item 42.
[6]    Ibid, item 78.
[7]    Exhibit P2.
[8]    Exhibit P1A, item 160.
[9]    T 30-31.
C said she told M to ‘stop’ but he did not. After the touching, he yelled at her to get into bed.[10]
[10] Exhibit P1A, item 132.
C was cross-examined by Mr Gaite. He asked her some general questions, which she was forthright in answering. She agreed that he was a friend of her mother, and that he was her brother B’s gymnastics coach, and he was blind.[11]
[11] T 16.
Mr Gaite then began questioning C about the interview she had with the police a few years ago. C remembered this happening.[12] She said she watched the video about two weeks ago, and this was the only time she watched it.[13]
[12] T 19.
[13] T 20.
C told Mr Gaite that she did not remember the things she told the police about. She said:[14]
[14] T 20.
Q.You have seen a video of you talking to the police.
A.Yes.
Q.I think you had some fluffy toys with you.
A.Yes.
Q.Do you remember the things that you were talking about.
A.No.
Q.When you spoke to the police when it was filmed, I think you were seven years old, would that be right.
A.No.
Q.How old were you.
A.I was six.
Q.Were you in grade 2 when that video happened.
A.Yes.
Q.The police were asking you some questions and I think you said you don't remember what you were talking about, is that right.
A. Yes.
It is noteworthy that C remembered the occasion when she spoke to the police, and remembered that she was six years old at the time.
The next day, cross-examination resumed. C again confirmed that she remembered the occasion of the police interview.[15] She repeated that she did not remember the events she described to the police:[16]
[15] T 24.
[16] T 24-26.
Q.I think you said yesterday you don't remember what you were talking about. The reason that you were talking to the police; is that right.
A.Yes.
Q.So is it right and is it true that you don't remember the things that you were talking to the police about. Is that true or false.
A.True.
Q.And when his Honour, the judge, was asking you questions he asked you if you understood that you were here in the court to tell the court about what had happened, about what you were speaking to the police lady about. Do you remember that.
A.Yes.
Q.And you understand that that's why you are here; to tell the court about what might have happened.
A.Yes.
Q.Is it true that you don't remember what happened.
HIS HONOUR: When?
XXN
Q.When the police were talking to you they were asking you questions about [M]; is that right.
A.Yes.
Q.And do you agree that that was why the police were talking to you, about [M].
A.Yes.
Q.When you said yesterday that - I asked you 'Do you remember the things that were talking about' and you said 'No'. Do you remember that, saying that.
A.Yes.
Q.And that was true.
A.Yes.
Q.And is it the case that you don't remember the things that you were talking about about [M].
HIS HONOUR: I'm not going to allow you to ask repetitive questions because it confuses any witness but particularly young witnesses.
MR GAITE:Okay, thank you.
XXN
Q.Do you remember the things about [M].
A.No.
Q.And those were the things that you were talking about with the police.
A.Yes.
Ms Barnes then re-examined C. She also asked C if she could remember any of the things that she spoke to Detective Sheldon about. C said that she ‘can’t remember any of the things that I’ve talked about’.[17]
[17] T 28.
Initial Complaint – Evidence Act 1929, s 34M
It is alleged that C made her initial complaint about the offence to her mother, A, in July 2016, just over a year after the alleged incident.
A gave evidence that she was disclosing to C and her brother that M was the father of her youngest child, E, when C volunteered:[18]
Q. When you had that conversation did [C] tell you anything during that conversation about [M].
A. She did, she said 'well, while we're being honest mum there is something I need to tell you' and she was speaking to me and she goes 'when you were allowed out of the house, [M] would come into the bedroom and touch my private parts'.
[18] T 42-43.
A said that C gave her no further details of when or where this event, or these events, took place.
A said that she told C she needed to speak to somebody else about this. The following morning she had a meeting with the leadership team at C’s school, and then went to the police station to make a report.[19]
[19] Ibid.
This evidence was led without objection.
The evidence is admissible pursuant to s 34M(4) as it shows ‘how the allegation first came to light’[20] and as ‘evidence of the degree of consistency of conduct of the alleged victim’.[21] It is not admitted as evidence of the truth of C’s allegation.
[20] Evidence Act 1929, s 34M(4)(a)(i).
[21] Evidence Act 1929, s 34M(4)(a)(ii).
Section 34M(4) provides that ‘it is a matter for the jury’ (or, in this case, for me) ‘to determine the significance (if any) of the evidence in the circumstances of the particular case’.[22]
[22] Evidence Act 1929, s 34M(4).
The evidence of A as to what C told her is consistent only to a minimal extent with C’s allegations in the interview on 5 July 2016. C’s statements are completely lacking in detail. It is inconsistent with C’s version in that it suggests that C was telling A that the offence occurred in A’s house rather than M’s house, as she told the police.[23]
[23] See Exhibit P1A, item 44.
As a result of the conversation between C and her mother, C then spoke with D, a teacher at her school. D gave evidence as to this conversation as follows:[24]
Q.What did [C] tell you when you were in the meeting room.
A.She said to me that she had told her mum the night before that [M], a man that was living with them, had touched her in the rude bits, so I asked her to elaborate a little bit and she said that he had touched her - rubbed his fingers against her rude bits.
Q.Did she tell you anything more about that touching.
A.No, she didn't elaborate any further on that.
[24] T 64.
D said that she questioned C in an attempt to elicit more information about the alleged touching. C told D that the touching was ‘under her knickers’.[25]
[25] T 65.
C also told D that she told M to stop, but he did not stop. She said that the touching occurred in the lounge room.[26] C provided no other details.
[26] Ibid.
Again, D’s evidence of C’s complaint is that it was lacking in detail, and so is consistent only to a minimal degree with her allegation to the police. It is inconsistent with her statements to the police in that she implied that the incident occurred at A’s house, when M was staying there, rather than at his house, as she told the police.
The Defence Evidence
M gave sworn evidence. He said that throughout the course of his relationship with A, he would stay at both of their homes.[27] He said that C never came to his house after he and A ended their relationship in July 2015.[28] He said that there was one occasion when he was alone with C at his house. He denied that any improper touching occurred then, or at any other time.[29]
[27] T 82.
[28] T 89.
[29] T 90.
M was forthcoming with his responses and was able to recall with some detail the events of the weekends surrounding the timeline of the alleged offence. There was some alibi evidence as to his attendance at a gymnastics competition in Port Lincoln over the June long weekend in 2015.[30]
[30] T 89.
M was not shaken in cross-examination, His answers gave me no grounds to doubt the truthfulness or reliability of his denials.
M gave evidence that he found out about A’s pregnancy with E indirectly.[31] He said that A prevented him from contacting or seeing the child.[32] He described the actions he took to establish a legal relationship with E.[33] He was taking action in the Family Court with the help of ‘legal aid’ to gain access to E when he was arrested on this charge on 1 November 2016.
[31] T 91.
[32] T 92.
[33] T 92-97.
A was cross-examined about these events. She said that she prevented M from having access to E ‘(for) the safety of all three of my children’.[34]
[34] T 50.
There is no evidence that A has pressured C, or colluded with her or otherwise influenced her to make these allegations against M, but it is always a concern when such allegations come to light in the context of a bitter relationship dispute such as this. Even if there has been no undue influence, a young child may feel obliged to act in this way, perhaps out of a feeling of insecurity caused by the conflict. There is no way of knowing whether that is the case here, but the circumstances do suggest that C’s allegations need to be examined with special care.
Character Evidence
Two witnesses gave evidence of M’s good character. Both knew him through gymnastics, as well as through personal dealings with him. Both gave evidence of his good reputation among people who know him. They spoke of him as a trustworthy and respected person.
While it is true that much sexual crime is committed by people who are regarded as having a good character, the law is that character evidence is a relevant consideration in an assessment of the likelihood that M committed the crime alleged, and is also relevant to the credibility of his denials.[35]
[35] R v Trimboli (1979) 21 SASR 577, R v Edwards [2009] SASC 233, R v C, CA [2013] SASCFC 137.
Consideration
I accept that C gave a clear and forthright account to Detective Sergeant Sheldon in the interview on 5 July 2016. However, the evidence which arises from the interview must be viewed in light of the following factors:
·it was not sworn – I must therefore exercise caution in assessing it;
·it was given about a year after the events, which is a substantial delay for a six-year-old child;
·the interview was conducted in a professional manner, and there were no leading questions;
·C displayed an appreciation of the importance of what she was saying;
·when giving evidence, C said she had no memory of the events which involved M that she described in the interview;
·the evidence in the interview was inconsistent with C’s complaints to A and D in the sense that she said to Detective Sergeant Sheldon that the events occurred at M’s house, and to A and D she implied that they occurred at A’s house;
·the complaints to A and D were vague and lacking in detail;
·C’s allegations are not supported by any other evidence;
·the allegations in the interview occurred in the context of a bitter relationship dispute between C’s mother and M.

When C’s evidence is weighed with all these factors in mind, I find that I am not satisfied beyond reasonable doubt that M committed an act of sexual intercourse on C as alleged.
Further to that, I find that even if I was satisfied with C’s evidence, I am unable to reject M’s denials beyond reasonable doubt.[36]
[36] See Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086.
I find that the first element of the crime of unlawful sexual intercourse with a person under 14 is not proved beyond reasonable doubt. My verdict is therefore ‘not guilty’.