R v M, LRP - [2017] SADC 6

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, LRP
Criminal Trial by Judge Alone
[2017] SADC 6
Reasons for the Verdict of His Honour Judge Costello
19 January 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Accused charged with Persistent Sexual Exploitation of a Child - complainant's evidence in the form of an audio visual record admitted - applications to further examine, cross-examine and re-examine complainant granted - prosecution case based largely complainant's evidence.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 s 50(1); Juries Act 1927 s 7(1); Evidence Act 1929 s 13, referred to.

R v M, LRP
[2017] SADC 6
Introduction

This is a trial by judge alone. The accused M is charged with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[M] between the 31st day of January 2012 and the 1st day of July 2012 at Salisbury East, over a period of not less than three days, committed more than one act of sexual exploitation of [JJC], a person under the age of 17 years, by touching her breasts on multiple occasions, touching her vagina on multiple occasions, touching her bottom on multiple occasions, licking her feet on multiple occasions, kissing her body on multiple occasions, exposing his penis to her on multiple occasions and rubbing his penis on her body on multiple occasions.
M pleaded not guilty to the charge. He elected to be tried by a judge sitting without a jury pursuant to the provisions of s 7(1) of the Juries Act 1927. He was represented by Ms Burgess. Ms Holt appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary in a trial heard by a judge sitting without a jury that the court should detail every obvious and basic direction which might be given to a jury. I do, nevertheless, remind myself of the following:
1.     An accused person is presumed innocent of the charge unless and until guilt of the charge has been proved beyond reasonable doubt.
2.     The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence.
3.     The accused does not carry any onus of proof, and to the extent that he might put forward a defence, he does not have to prove it.
4.     It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction.   If I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty.
5.     I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case the accused elected not to give evidence and he remained silent. The accused was not bound to give evidence and he had the right to decline to give evidence. Because that is his legal right, I am not permitted to draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. I have not done so. The accused's silence in court is not evidence against him, it does not constitute an admission by him, it may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a 'makeweight' in assessing whether the prosecution has proved its case beyond reasonable doubt.
6.     In assessing the evidence of the witnesses, I am entitled to accept the evidence of any witness in whole, in part or not at all. Even if I were to find that either witness in this trial may be unreliable about some part of her evidence, it does not follow that I must not accept other parts of that evidence. Despite the fact that I am not obliged by statute to do so, I intend to approach the evidence of the complainant with caution and only rely upon it where I am satisfied beyond reasonable doubt that it is both credible and reliable.
7.     Finally, I remind myself that I must determine whether or not the prosecution has proved the elements of the charge beyond reasonable doubt. If I am unable to say where the truth lays in respect of the charge, or any element of the charge, then it necessarily means that the prosecution has failed to prove the offence.
I now set out the elements of the charge which the prosecution must prove beyond reasonable doubt.
Persistent Sexual Exploitation of a Child
The elements of this offence are that:
·     The accused is an adult person;
·     The accused committed more than one act of sexual exploitation. An act of exploitation is an act which, if it were to be properly particularised, could be the subject of a charge of a sexual offence. The alleged acts of sexual exploitation are those which are particularised on the Information;
·     The acts of sexual exploitation must have been committed over a period of not less than three days; and
·     The acts must have been committed in respect of a child who was under the prescribed age.
I pause to observe that I am satisfied that at the time of the alleged offending, the complainant was under the prescribed age, being seven years old.
Preliminary Issues
The evidence in this trial was given in a narrow compass. The prosecution called only two witnesses, being the complainant JJC and her mother Mrs D. As I have already indicated, the accused did not give evidence and did not call other evidence, although he did apply to tender certain documentary evidence. I refused that application for reasons which it is unnecessary to revisit at this time.
At the time of the alleged offence, JJC was, as I have said, seven years of age. In 2014, when she was nine years of age, she made a complaint with respect to the alleged offending to her mother, Mrs D, as a result of which Mrs D reported the matter to the police.
In September of that year, when JJC, as I have said, was still nine years old, she was interviewed by the police. This interview was recorded by the police.
At the commencement of the trial, the DPP applied to have the recording of that evidence admitted pursuant to the provisions of s 13BA of the Evidence Act 1929 (‘the Act’). After viewing the recorded interview, I ruled that I was satisfied that JJC had the capacity to give unsworn evidence at the time the recording was made and that the record of interview should be admitted as evidence in the prosecution case.
I also made orders, pursuant to the provisions of ss 13 and 13A respectively of the Act, making arrangements for the giving of evidence by Mrs D and JJC, including an arrangement that they each be permitted to give their evidence from outside the courtroom.
Consequent upon my ruling admitting the audio visual record of JJC, the DPP also applied, pursuant to s 13BA of the Act, for permission to further examine JJC. Ms Holt outlined the specific topics upon which she proposed to further examine JJC. I ruled that she be allowed to undertake further examination on those specific topics. I also ruled that Ms Burgess be permitted to cross-examine JJC on specific topics identified by her which topics largely arose out of the aforementioned audio visual record and the further examination by the DPP.[1]
[1] After the cross-examination was completed I also ruled that the DPP be permitted to re-examine JJC.
The Prosecution Case in Overview
The prosecution case may be shortly stated as follows.
In or about February 2012, the accused, M came to live at JJC's home. He lived there from February of 2012 until approximately July of that year.
During the time the accused was living at her home, JJC's parents, LC and Mrs D, and her sisters A and B, also lived there. In the case of B, she lived there intermittently. She was about 21 years old during the first half of 2012 and, for the majority of the time (perhaps five days per week), she lived away from the home.
For all but perhaps a few days of this period, the accused slept in a shed at the back of the house. However, he needed to enter the house on a regular basis in order to access the kitchen and bathroom. It is the prosecution's case that during the period February to July 2012, the accused entered the bedroom of JJC, at night, at times when her sister B was not at home and on many occasions, perhaps as few as 50 but perhaps as many as 100 or more, touched her breasts, vagina and bottom, and licked her feet, kissed her body, exposed his penis to her and rubbed his penis on her, and that he did each of these acts on more than one occasion.
The Evidence
The principal witness for the prosecution was the complainant. In addition to her evidence, the prosecution called her mother and tendered some agreed facts. It is readily apparent that the prosecution case rests, for practical purposes, entirely on the complainant's evidence.
There was, as occurs in many such cases, no independent corroboration of her evidence. For that reason, together with the fact that she was asked to recount events which are alleged to have occurred some four to five years ago at a time when she was only seven years old, I intend to scrutinise her evidence carefully.
Save and except for one aspect of her evidence, I found JJC to be an impressive witness who gave her evidence in a straightforward manner. However, the one aspect of her evidence which gives me cause for doubt relates to the crucial question of the identity of the person who is alleged to have committed this offence. On many occasions throughout the course of her testimony, JJC appeared to unequivocally identify the accused as the person who committed the offence. However, towards the end of her evidence, the following exchange took place in the course of her cross-examination:
QWe are almost finished. I just want to be clear; what I'm suggesting to you is that the times when you say you saw someone in your room was only a brief look, is that right.
AYeah.
QAnd what I'm suggesting is that even though you are sitting there trying, doing your best to tell us the truth about what happened to you, I suggest to you that it wasn't M who abused you. Is that possible that it was someone else.
ANo.
QAnd I'm suggesting to you that the reason, or the reason why I'm suggesting that is because it was a very long time ago. You would agree with that.
AYep.
QAnd you were very much younger than you are now; you would agree with that.
AYep.
QAnd you told us earlier today that there were times when you had your face covered; that's right, isn't it.
AYep.
QAnd there were times when you could only go by feel really, like you could only feel what was going on, you couldn't see. You would agree with that.
AYep.
QAnd there were times when you would be asleep and so you wouldn't know who it was. You would agree with that.
AYep.
QAnd some of the times when you looked was only very, very brief, as you described earlier.
AYep.
QI think you used the word ‘millisecond’.
AMillisecond, yep.
QSo what I'm suggesting is that it is at least possible that you are wrong when you are saying that it's [M, LRP] who did this.
AI know it was him.
QIs it possible that it wasn't him and it could have been one of your sister B's friends when they were staying at the house.
AI don't know, maybe.
QIs it possible that it could have been, as hard as this may be to get your head around, but is it possible it was your dad.
ANo.
QBecause I suggest to you that those other two things are possible.
ACould be, maybe.
(my emphasis)
I then asked the following questions:
HIS HONOUR
QI just need to be clear about what you are saying, JJC, because, as I understand it, the thrust of your evidence has been, and correct me if I am wrong, that these things happened when your big sister B was not there; is that right.
AYep.
QAnd am I also right in understanding that B's boyfriends didn't - and be they her girlfriends or boyfriends - didn't come to the house unless B was there, at least sleep over or stay the night unless B was there; is that right.
AYep.
QSo I'm just trying to understand why you say that it might have been one of B's boyfriends who did this, why you say that's possible, when you've told us that these things only happened when B wasn't there. Do you understand what I'm saying.
AYep.
QSo is it possible that these things happened or that the person who did these things to you was one of B's boyfriends.
ANo.
After this evidence was given, and bearing in mind that JJC had been giving evidence for over an hour, I acceded to what I regarded as a very reasonable application by the DPP, namely to adjourn the trial until the following morning to give JJC a necessary break.
I pause to observe that at this point in the trial, despite her answers to my questions, I was left with some misgivings as to the true import of her evidence on the question of who may have assaulted her. I say this not only because of her answers but because of the extended pauses she made prior to answering the questions as to whether one of her sister's boyfriends may have been the perpetrator. These extended pauses were uncharacteristic of much of the balance of her evidence.
When the trial resumed the following morning, and over the objection of Ms Burgess, I permitted Ms Holt to re-examine JJC with respect to a number of topics, one of which included the identity of the person who may have assaulted her. Ms Holt asked JJC the following questions:
QAt the very end of yesterday, Ms Burgess asked a few questions and I just want to read some of that out to you and can you tell me whether it's right or wrong.
AYep.
QI'll just start off with something actually the judge asked you about yesterday, okay, and it was probably one of the last things we talked about.
AYep.
QSo the judge said to you ‘These things happened when your sister B was not there, is that right’, and you said ‘Yes’. Now, is that correct.
AYes.
QThe judge said to you ‘Am I also right in understanding that B's friends, whether they are boys or girls, didn't sleep over unless B was there’; is that right.
AYes.
QAnd you said ‘Yes’; is that correct.
AYes.
QIt is really important you listen to the very end of what I'm saying, okay, J.
AYep.
QEven though you might know the answer beforehand. The judge then said ‘So is it possible the person who did these things to you was one of B's boyfriends’ and you said ‘No’, is that correct.
AYep.
QMs Burgess also, and this is a bit of another topic, she also asked you ‘Is it possible it could have been your dad that did these things’ and you said ‘No’; is that correct.
AYes.
QNow, it was then further suggested to you that this might have been possible and your answer was ‘Could be, maybe’. Were you talking about whether it could have been your dad then.
AYes, maybe.
QCan you tell us why your first answer about whether it might be your dad was ‘No’ but your second answer was ‘Could be, maybe’.
ACan you read that one again?
QYes.
ASorry.
QNo, no, that's okay. So there were questions yesterday when M's lawyer said to you ‘Is it possible it was your dad’ and you said ‘No’; is that correct.
AYes.
QThen she again asked you ‘Is it possible it could be your dad or B's boyfriend’ and you said ‘Could be, maybe’; is that right.
AYes.
QI just want to be very, very sure about this, J, so I just want you to listen to my question very carefully.
AOkay.
QIs your evidence - is what you say that it's possible it was your dad who did these things to you.
ANo.
QMy next question: is it possible it was one of B's boyfriends who did these things to you.
ANo.
QAnd are you able to say why there are a few different answers that you gave yesterday about that.
ANo.
A little later she was asked the following further question:
QI'll just ask you a fresh question, okay.
AYes.
QSo we're talking about some of the different answers that you gave to the same sort of questions at the end of yesterday. Can you help us as to why you may have given those different answers.
AConfusion maybe, I think.
Whilst it is apparent that JJC ultimately said that it was not possible that either her father or one of B's boyfriends was the perpetrator, her answers to these questions were again accompanied, at least with respect to some of the answers, with the same, somewhat uncharacteristic, extended pause.
As I have said, the prosecution's case rests, for all intents and purposes, on the evidence of JJC. Whilst I accept that in other areas she gave her evidence in an open and candid manner, arguably a mature manner for one of such tender years, on the crucial issue of who committed these assaults, I was left with a residual nagging doubt. Ultimately it is a doubt which I have been unable to resolve and one which must, in turn, in such circumstances, weigh in favour of the accused.
Verdict
In the circumstances, I am not satisfied beyond a reasonable doubt that the prosecution has proved its case. I find M not guilty and, therefore, acquit him of the charge.