R v M, R B
[2020] SADC 173
•18 December 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R B
Criminal Trial by Judge Alone
[2020] SADC 173
Reasons for the Verdicts of His Honour Judge Kimber
18 December 2020
CRIMINAL LAW
Aggravated Indecent Assault (2).
Trial by Judge alone.
Held: The accused is guilty of count 1, but not guilty of count 2.
Criminal law Consolidation Act 1935; Child Safety (Prohibited Persons) Act 2016 s 38; Evidence Act 1929 s 34M, referred to.
R v Haak [2012] SASCFC 19; R v Bakhuis (2012) 112 SASR 536; Melbourne v The Queen (1999) CLR 1; MAK v The Police [2008] SASC 342; R v Trimboli (1979) 21 SASR 577, considered.
R v M, R B
[2020] SADC 173Introduction
M, R B (“the defendant”), is charged with two counts of Aggravated Indecent Assault contrary to section 56 of the Criminal Law Consolidation Act, 1935. The particulars of those offences are:
First Count
RBM between the 1st day of October 2009 and the 28th day of February 2010 at Highbury, indecently assaulted JGM by causing her to touch his penis.
It is further alleged that JGM was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
RBM between the 1st day of October 2010 and the 28th day of February 2011 at Highbury, indecently assault JGM.
It is further alleged that JGM was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
In advance of trial, the defendant elected for trial by judge alone.
These are my reasons for finding the defendant guilty of count 1 but not guilty of count 2.
Elements
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency.
First, the prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. In this case, if the touching the subject of either count took place in the way alleged by the complainant (“JGM”), this first element will be established.
Second, the prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. If the assault the subject of count 1 occurred, there is no dispute it was indecent. There is a dispute with respect to this element in the case of count 2.
The prosecution has charged the aggravated form of the offence in each count on the basis that JGM was under 14 years of age at the time. With respect to both counts, there is no dispute that if the relevant indecent assault is proven, this circumstance of aggravation is also proven.
Background
There is limited dispute about the background evidence.
The complainant was born on 4 September 2003. The defendant is her paternal grandfather. He was born on 4 February 1942. The defendant is married to Mrs JM and lived with her at all relevant times. At the time of the conduct the subject of the two counts, the defendant was living at an address in Highbury. There was a trampoline in the rear yard of that property. The trampoline would not always be in exactly the same spot.
At all relevant times, JGM went to a particular primary school (“the primary school”). She commenced in reception in 2008. She has one sibling, an older brother JMM. JMM is about 18 months older. He was two years ahead of JGM at the primary school.
The conduct the subject of both counts 1 and 2 is alleged to have occurred between 2009 and 2011. In that period, both of JGM’s parents worked full time. The defendant and his wife would assist in caring for JGM and her brother after school and at times during the school holidays. The primary school was about a five-minute walk from the defendant’s home. The defendant, if not also his wife, would collect JGM, and at least on some occasions her brother, from school and care for them until collected by one parent after work. There was some conflict in the evidence as to how often this would occur. More particularly, a conflict as to whether JGM and her brother would be cared for on every school day, or just some days of the school week, with the balance involving after school care. I will return to this.
In 2013, JGM and her family travelled around Australia for almost the whole year. JGM put the period as being from 17 January 2013 to 22 December 2013. JGM says that there was no inappropriate touching of her after the trip around Australia.
JGM and the defendant enjoyed a close relationship. Apart from the times that they would spend together at his home, the defendant took her to the park, the zoo and a swimming centre called “Water World”. JGM had an interest in swimming. It appears that the defendant did not spend quite as much time with JMM as he did with JGM. JMM was a little older, quite sociable, and had friends at school who lived close to the school with whom he could spend time. He also did not attend Water World as much as JGM and the defendant.
In the period of both counts 1 and 2, the defendant’s wife had some mental health issues. She was nonetheless involved in collecting JGM and JMM from the primary school on some occasions. She would be present at the house after school when at least JGM was there, but she tended to stay inside. She did attend Water World on occasions, but not as much as the defendant.
In the period that JGM attended Water World with the defendant, it had three pools. After swimming, JGM would shower and then change. There were two changerooms available to JGM. Either the female changeroom or what was described as the family changeroom of which there were two. When JGM was younger, her preference was to use one of the two family changerooms, if available. Each of the two family changerooms had a lock on the door, a shower with a bench seat, a toilet and a basin.
JGM has suffered from eczema from a young age. She was suffering from eczema at the time of both of the alleged offences.
The conduct the subject of the two counts and uncharged conduct
JGM’s evidence was that on a day after school, and which she thought was late 2009, she was at the defendant’s home.[1] She was outside in the rear yard using the trampoline.[2] While she was on the trampoline, the defendant came outside.[3] He placed a chair near the trampoline, but facing away from it.[4] The defendant sat in that chair, turning to watch JGM on the trampoline.[5] JGM’s evidence in chief was that the following occurred:[6]
My papa came outside with a green chair which was already outside but he, like, picked it up and put it facing the back fence and he was looking at me, like, over his shoulder while I was on the trampoline and he started masturbating and he asked me not in, like, very stern kind of words, just very calm voice 'Come over here'. As I was very young I listened to my parents and I listened to my grandparents. As well, like, they hadn't done anything wrong to me before to make me not listen to them so I followed his instructions and I came over there. And he grabbed my right hand and he made me masturbate him and he held his hand over the top of my right hand basically making me do that for about 30 seconds until he ended up ejaculating on to the grass. Then in a very calm voice he said 'Thank you, I just needed help finishing off'. Then I think I went back inside after that. None of it got on me.
[1] T28.1-2.
[2] T28.17-18; T56.35-36.
[3] T28.25.
[4] T28.25-27; T57.10-12.
[5] T28.26-28; T57.15-17.
[6] T28.25 – 29.3.
It is the placing of JGM’s hand onto the penis of the defendant which is the act the subject of count 1.
In cross examination, JGM said that it was her left hand that the defendant placed on to his penis.[7]
[7] T57.25-38-58.1-17.
JGM’s evidence was that there was no further sexual conduct towards her until the occasion of count 2.[8] JGM placed count 2 in 2010 and when she was seven years of age.[9] JGM’s evidence was that in the period of approximately a year between counts 1 and 2, she continued to have regular contact with the defendant. There is no dispute that there would have been many other opportunities for him to offend in that period, but JGM said that he did not do so.
[8] T31.29-32.
[9] T31.30-32; T41.19-20.
JGM’s evidence was that the conduct the subject of count 2 occurred on the occasion of a visit to Water World[10] and in one of the family changerooms.[11] After swimming, she and the defendant went to one of those changerooms together.[12] JGM described count 2 in the following way:[13]
On this particular day Papa got undressed and started showering and he sat down on the bench and I thought that he had finished showering, so I started to get undressed and I started walking towards the shower and I saw that he was still sitting down, but I was just like that's fine, he's probably just taken a seat 'cos he's a bit old, I guess and he's not like super supported on his legs, I don't know, and I was under the water, under the showerhead and he put his arms around me and guided me onto his left knee so that my legs were in between his legs/feet and my butt was hanging maybe an inch or two over the back of his leg. He then started rubbing my upper back in circlish/up-and-down motions, which these motions then slowly moved down my back to my middle back and then lower to my lower back and then to the upper third of my butt. He didn't put any - like any of his hand in my butt crack, it was just like over the top of my butt, I guess so, and he was rubbing my butt, my upper butt and my lower back in circular motions and up and down motions for about 30 seconds. Then I started to feel uncomfortable so I got up and grabbed my body wash and I started washing my body and when this happened he got up and started drying himself off and getting into his normal clothes and then I dried off and then put my normal clothes on and that was the end of the incident.
[10] T31.26-32.
[11] T34.1-4; T34.32-33.
[12] T34.1-2.
[13] T39.1 – 39.26.
It is the rubbing of the top half of the bottom of JGM which is the act the subject of count 2. JGM said the defendant was naked when the above took place.[14] JGM’s evidence was that this was the first occasion of such conduct.[15]
[14] T39.38-40.1.
[15] T43.13-15.
JGM said that on a further three or four occasions after the occasion the subject of count 2, the defendant did the same thing,[16] but said on those occasions the defendant “would have had underwear or shorts on”.[17]I will refer to these three or four occasions of conduct like count 2 as the “uncharged conduct”.
[16] T43.16-17, 26-27.
[17] T44.12-13.
Given that such conduct is alleged to have occurred more than once, that the occasion which is the subject of count 2 was the first occasion,[18] is a material particular.
[18] T43.13-15.
Directions and legal issues
It is not necessary for me to direct myself in the same way a jury may be directed. However, I direct myself that the onus of proof is at all times on the prosecution and that each and every element of an offence must be proven beyond a reasonable doubt before I can convict. If a defendant puts forward a defence, or an innocent explanation, he does not have to prove it.
The defendant did not give evidence, nor did he call any other evidence. He was not obliged to give evidence, nor call evidence. I have not used the fact that he exercised his right to silence, nor his failure to call other evidence, in any way.
Initial complaint - section 34M of the Evidence Act, 1929 and other “complaints”
Without objection, JGM gave evidence of having spoken to others about the defendant having behaved sexually towards her. For the moment, it is the evidence JGM gave of having spoken to Miss SK and Miss TM which is important.
JGM’s evidence in chief was that the first person she told of her grandfather’s sexual behaviour towards her was a friend Miss SK (“SK”).[19] JGM put her complaint to SK as occurring at the end of 2018 at SK’s home.[20] SK gave evidence. She also put the complaint as occurring at her home at the end of 2018.[21] On the evidence of both JGM and SK, the complaint was about JGM’s grandfather, but was very general in its terms.[22] JGM said that she had been sexually abused by her grandfather when she was young. JGM did not give further detail of the alleged abuse by her grandfather.[23]
[19] T46.20-22; 47.28-30.
[20] T46.31-36; 47.1-2; 63.38-64.1.
[21] T94.5-12.
[22] See, e.g. T47.6-15; T94.15-20.
[23] See, e.g. T47.12-15.
The position of the prosecution is that the conversation between JGM and SK was an “initial complaint” admissible pursuant to s 34M of the Evidence Act, 1929. While I am satisfied that JGM did complain to SK in late 2018 and in doing so alleged that the defendant had behaved sexually towards her, I have not relied upon that as an initial complaint. I have not done so as during cross examination JGM allowed for the possibility that she had complained to another friend before SK, Miss TM (“TM”)[24]. TM did not give evidence. There was no ambiguity in the answer given by JGM in cross examination. It was a concession that the first of the conversations might have been with TM. Because of that concession, and given that JGM said that both conversations were close in time, I remain uncertain as to which conversation was the first in time.
[24] T64.10-17.
I have not relied upon anything said to SK or TM as evidence of the truth, nor have I used what was said as a prior consistent statement to bolster the credibility or reliability of JGM.
JGM’s concession in cross examination that she may have spoken first to TM is inconsistent with JGM’s evidence in chief. The inconsistency will need to be considered by me in assessing the credibility and reliability of the whole of JGM’s evidence.
JGM did not give any detail of what she said to TM. It follows that there is no potential inconsistency between what was said to TM and JGM’s evidence of the defendant’s conduct. The conversation with SK did not involve JGM providing any detail of the defendant’s alleged conduct. JGM was talking to a friend.[25] In that setting there was no need to give the detail of what had occurred such as might later occur in an affidavit to police, or in evidence in court.
[25] T47.1-2, 31-38; 63.28-38; 64.1; 94.15-27.
There was other evidence of conversations JGM had about the conduct of the defendant. This evidence was also led without objection.
JGM told me that in February 2019 she spoke to a friend Ethan about “everything which happened at (Highbury) and the incidents at Water World”.[26] JGM said that she was distressed when she spoke to Ethan.[27] Ethan did not give evidence. JGM also said that she spoke to her parents that same night and that her parents decided that JGM should go to the police.[28]
[26] T48.34-36.
[27] T48.37-49.1-12.
[28] T49.13-31.
I have not used what was said to Ethan, nor what was said to JGM’s parents, in any way. With respect to counsel, I do not believe the evidence was admissible. On the evidence, neither was an elaboration by JGM of what she had earlier said to SK and/or TM. The evidence was not admissible pursuant to s 34M of the Evidence Act, 1929 and has no other use. Whatever JGM said to Ethan and her parents is not evidence of the truth of what she said, nor can it be used as a prior consistent statement to bolster the credibility or reliability of JGM.
I have not used the evidence that JGM was distressed when she spoke to Ethan in any way.
Delay – s 34M of the Evidence Act, 1929
The delay between the conduct the subject of each count and the uncharged conduct on the one hand, and the first complaint to SK or TM and the trial on the other, is lengthy. It is a period of about ten (10) years.
Section 34M(2) of the Evidence Act, 1929 provides:
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
As the above sub-section does not apply to trial by judge alone, I invited submissions on whether the failure to make, or delay in making, a complaint was of probative value in assessing JGM’s credibility or consistency of conduct.
Having considered the submissions, I do not consider the delay is of itself of probative value. In this case, I am satisfied the delay does not weigh for, nor against, JGM’s account of sexual conduct by the defendant being credible. In this case, I do not consider that it shows either consistency, or inconsistency, of conduct.
As to why I do not consider that delay is of itself of probative value, I consider the following to be particularly important. At the time of the charged and uncharged conduct, JGM was very young. While it made her feel uncomfortable, I am satisfied that she did not know that it was inappropriate and something about which she might complain until some much later time. I cannot say precisely when she knew that. The final occasion was before she and her family travelled around Australia for almost a year. After that there was no repeat of like conduct. The charged and uncharged conduct was limited to about five or so incidents in the context of countless other regular, appropriate, and positive interactions over many years.
The explanation for the delay
JGM must have had many opportunities to complain before she did.
JGM gave the following evidence explaining why she had not complained before she spoke to SK:[29]
Q.Why was it that you hadn't told anyone else before that occasion.
A.I didn't want to tell anyone because I didn't want to change their vision on me or split up my family.
Q.That last answer 'split up my family', what do you mean by that.
A.Like my parents not talking to that side of the family, or the rest of the family just shunning us because of this thing which happened, like a very long time ago.
Q.Did you think that might be a consequence of you telling someone from your family.
A.Yes. Yeah, I did.
[29] T48.1 – 48.12.
In my view, the evidence above cannot account for JGM’s failure to complain throughout the whole of the period between the alleged conduct and the conversation with SK or TM. The explanation JGM gave is more likely to explain JGM’s thinking when she was older and understood the seriousness of what she says occurred. I am not satisfied that JGM had such an appreciation at the time of the charged and uncharged conduct. To the contrary, JGM’s evidence was that she did not know what the defendant was doing at the time of count 1.[30] JGM did not say that she thought at the time of count 2, or the uncharged conduct, that it was, or might be sexual. JGM was not asked. This is not to overlook that JGM said at the time of all alleged sexual conduct she had felt at least uncomfortable.[31]
[30] T30.29-30.
[31] T30.17-18, 40.30-41.3, 45.1-45.7.
I am satisfied that JGM’s evidence as to why she did not complain before speaking to SK as extracted above was honest. I am satisfied it was not suggestive of any unreliability on her behalf.
The first question she was asked in the passage extracted was general. It merely directed attention to why she had not complained before speaking to SK. The question would not necessarily have been understood as directing attention to the entire period between the conduct the subject of the charges and the conversation with SK. I am satisfied that it was not understood as directing attention to that entire period. JGM was not asked any further question which might have directed her attention more clearly to whether she was referring to her thinking in the whole period between the charged and uncharged conduct and first telling anyone, or a more limited portion of that time.
Section 12A of the Evidence Act
The defendant submitted I should warn myself that it was unsafe to convict the defendant on the uncorroborated evidence of JGM. He asked that that warning be given pursuant to s 12A of the Evidence Act.
The evidence given by JGM of count 1, count 2 and the uncharged conduct, is uncorroborated. I will not give myself the warning set out in s 12A of the Evidence Act. Section 12A does not apply in trial by judge alone.[32] Even if s 12A did apply, I would not have been satisfied of the necessary condition for the warning (see s 12A(1)(a)).[33]
[32] R v Haak [2012] SASCFC 19 at [38].
[33] See Evidence Act 1929 (SA), s 12A(1)(a).
I will carefully scrutinise the evidence of JGM. In doing that, I must consider all of the criticisms of the evidence made by the defendant.
Admissibility and cross-admissibility – section 34P of the Evidence Act, 1929
The prosecution submitted the conduct the subject of count 1 had more than one permissible use in consideration of count 2. With the consent of the defendant, submissions with respect to admissibility and use were left to closing submissions.
I direct myself in the following way with respect to the conduct the subject of count 1.
First, if I accept that count 1 occurred, (as I ultimately do) then I can consider whether that evidence shows the defendant had a sexual interest in JGM and acted on that interest on that occasion. If I am satisfied of those matters then I can consider whether the sexual interest in JGM still existed at the time of count 2 and/or the uncharged conduct and, if it did, whether the defendant acted on that interest at that time, or times. This potential use is only available if I am satisfied that the probative value of the evidence admitted for this purpose substantially outweighs any prejudicial effect it may have on the defendant. I must also be satisfied that the evidence has strong probative value having regard to the particular issues arising in the trial. Those issues are, with respect to count 2 and the uncharged conduct, whether that conduct occurred and, if it did, whether it was indecent. For reasons which I will later give, although I ultimately found count 1 proved, I did not use count 1 in this way. I was not satisfied that count 1 showed that the defendant had a sexual interest in JGM.
Second, if I accept that count 1 occurred, then I can use that to explain why the defendant might have thought that count 2 and the uncharged conduct, could be committed without protest, or other complaint, by JGM. I am satisfied that use is one which substantially outweighs any prejudicial effect it may have on the defendant. I will refer to this as a “permissible use” of count 1.
Given that I did not ultimately regard the evidence of count 1 as having the potential use identified in [52] above, I direct myself that the permissible use detailed in [53] above is the only permissible use of the evidence the subject of count 1 in evaluating count 2 or the evidence of the uncharged conduct.
I am also satisfied the permissible use which I have identified in [53] above can be kept sufficiently separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. That is, separate from the potential use in [52] above and also separate from me simply reasoning that the defendant was a bad person and for that reason more likely to have committed count 2 or the uncharged conduct. I direct myself not to reason in those ways.
However, as will be seen, I did not ultimately rely on the “permissible use” of count 1. While I found that the both the act the subject of count 2 and the uncharged acts occurred, for reasons which I will later give, I was not satisfied that any of those acts were indecent. It follows that the defendant had no reason to consider whether he could commit count 2, or the uncharged conduct, without protest or other complaint.
As I understand the position of the prosecution, I was not invited by it to use the evidence of count 2 in consideration of count 1, or in consideration of the uncharged conduct, in any way which assisted the prosecution case. I direct myself not to do so. I will not use that evidence to show the defendant had a sexual interest in JGM and a propensity to act on that interest. I also will not use that evidence to reason that the defendant was a bad person and for that reason more likely to commit count 1 or the uncharged conduct. For reasons which I will give, I did not ultimately conclude that the act the subject of count 2 was indecent in any event.
As I understand the position of the prosecution, I was not invited by it to use the evidence of the uncharged conduct in consideration of count 1. I did not do so. For reasons which I will give, were it necessary for me to do so, I would not have concluded that the conduct the subject of the uncharged acts was indecent.
As I understand the position of the prosecution, I was invited to use the uncharged conduct in considering count 2. More particularly, as evidence which “makes him a person who was more likely to have offended with respect to count 2”.[34] I regard that as a use which relies upon a particular propensity or disposition. I did not use the evidence of the uncharged conduct in that way. As will be seen, I was ultimately not satisfied beyond a reasonable doubt that the uncharged conduct was indecent. It follows that the uncharged conduct does not have the strong probative value which must exist to be used in the way urged by the prosecution.
[34] T129.30-31.
I also will not use the evidence of the uncharged conduct to reason the defendant was a bad person and for that reason more likely to commit count 1 or count 2.
The defendant made criticisms of JGM’s evidence of count 1, count 2 and the uncharged conduct. I have considered those criticisms in evaluating the whole of the evidence of JGM.
Forensic disadvantage – section 34CB of the Evidence Act
Section 34CB provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
Section 34CB(2) of the Evidence Act, 1929 does not apply to trial by judge alone.[35] It might follow that any forensic disadvantage due to the delay does not have to result in “significant” forensic disadvantage for me to take delay into account. That is the approach I will take.
[35] R v Bakhuis (2012) 112 SASR 536 at [57].
I find the delay between the conduct the subject of count 1, count 2 and the uncharged conduct on the one hand and the trial on the other, caused forensic disadvantage to the defendant. I have taken that into account when scrutinising the evidence given in the trial and whether counts 1 or 2 have been established beyond a reasonable doubt.
The delay may have had an adverse impact on the defendant’s ability to lead evidence relevant to the issues in the trial and to test the evidence. For example, it may have adversely impacted his ability to lead evidence of: where he was on any relevant occasion; where JGM was; whom else might have been present and the opportunity to offend. Such evidence might have come from the defendant, another witness (including, but not limited to, his wife) as well as documents held by after school care or Water World. Particularly relevant to count 2 and the uncharged conduct is the possibility that the alleged touching might have been due to JGM’s skin condition. Had there not been delay, there might have been evidence of the state of that condition at the time of the conduct alleged.
Given the defendant’s age, there is some risk delay has adversely impacted upon his memory. That, and the inability to speak to potential witnesses, may have had an adverse impact upon the detail of his instructions and the approach to cross examination. The delay may have contributed to some aspects of the prosecution’s evidence lacking detail, particularly JGM’s evidence of the uncharged conduct. It can be difficult to test allegations which lack detail. I bear in mind that, particularly given the age of JGM at the time of counts 1 and 2 and the uncharged conduct, the passage of time might have caused JGM to believe that an innocent event was not innocent and to be convincing in evidence.
Evidence of “good character”
It was an agreed fact that the defendant has no convictions. No other evidence said to demonstrate that the accused is of good character was led.
The defendant submitted his lack of convictions was, on its own, evidence of good character. I doubt that evidence of an absence of prior convictions is, on its own, evidence of good character.[36] In my opinion, the better view is that it is not. In the alternative, the defendant submitted that in the absence of further evidence, I should conclude the defendant was of good character. I reject that submission. It would be inconsistent with what, in my opinion, is the better view.
[36] Melbourne v The Queen (1999) 198 CLR1 at 42; MAK v The Police [2008] SASC 342 at [26]-[29].
However, notwithstanding what I consider to be the better view, out of an abundance of caution, I will treat the absence of prior convictions as some evidence of good character. I will bear that in mind when considering whether I am prepared to draw from the evidence the conclusion of the defendant’s guilt.[37]
[37] R v Trimboli (1979) 21 SASR 577 at 578.
Special arrangements
JGM gave evidence in court with a one-way glass placed between her and the defendant and with a social worker present. In a trial by judge alone, there is no obligation to give any warning about those arrangements. However, I record that I did not draw any inference adverse to the defendant from those arrangements, nor did I allow those arrangements to influence the weight I have given to the evidence in the trial.
Further discussion
JGM’s evidence of count 1, count 2 and the uncharged conduct is not corroborated. I must be satisfied beyond a reasonable doubt of both the truthfulness and reliability of JGM’s evidence with respect to the count I am considering before I can convict of that count. I must be satisfied beyond a reasonable doubt of all elements of a count before I can convict. If I am not satisfied beyond a reasonable doubt of a count, or have a doubt about any other aspect of JGM’s evidence, I must bear that in mind in considering the balance of her evidence. If I am satisfied that a count has been proven beyond a reasonable doubt, that does not mean that I must convict of the other count. I must consider each count separately.
As the prosecution case rises, or falls, on the evidence of JGM, I will commence by making some observations about her evidence.
JGM was a compelling witness. There was nothing in her presentation which caused me to doubt her evidence. She gave evidence in a careful and forthright way. JGM’s evidence of the conduct the subject of both counts and the uncharged conduct had a distinct ring of truth.
JGM’s evidence was detailed with respect to the two charged counts. That detail impressed me. I was left with the distinct impression she was genuinely, and accurately, recalling events which had taken place, albeit a long time ago and when a child. I was not left with any impression that the detail might have been the consequence of reconstruction, mistake, or dishonesty.
The defendant made many submissions as to why the prosecution had not proven all elements of the two offences charged beyond a reasonable doubt. I must evaluate those submissions with the onus of proof squarely in mind. I remind myself that the defendant has no obligation to prove anything. This includes having no obligation to make good any submission.
While it is necessary to deal with aspects of the defendant’s submissions separately, I am mindful of the need to consider the combined force of what the defendant put about the evidence. Some of the matters advanced in submissions have been referred to earlier in these reasons. Although I will not repeat every aspect of those matters in this part of the judgment, I have borne in mind all matters referred to earlier in these reasons. The order in which I deal with the defendant’s submissions does not reflect any view as to their significance.
It was submitted JGM might have exaggerated, or might have been otherwise unreliable with respect to, the number of occasions that she attended Water World. I am satisfied that during her cross examination, she overstated the number of times that occurred. However, I do not regard that overstatement as material in assessing her credibility and reliability with respect to her evidence of count 1, count 2 or the uncharged conduct. The charged and uncharged conduct was of a nature that one might expect to stand out in the mind of JGM. I am satisfied that those occasions did stand out in her mind, albeit that she could not recall all detail of the uncharged occasions. I am satisfied that the number of times that she attended Water World did not stand out in her mind accurately. On the evidence, it was a common occurrence, over a considerable period of time many years ago and when JGM was a child. She did not only attend there only to swim with the defendant, she also attended, at least, for vacation swimming classes. In all of the circumstances, JGM’s over statement of the number of times she attended Water World has not assisted me in determining the credibility and reliability of JGM’s evidence of the charged and uncharged conduct.
The complainant made no reference in her evidence to attending afterschool care while at primary school. That was not the evidence of her mother. I accept the evidence of JGM’s mother where it conflicts with that of JGM. I do not regard JGM’s failure to refer to after school care as undermining her credibility and reliability with respect to counts 1 and 2 or the uncharged conduct. In my view, it is a peripheral matter, not material to JGM’s evidence of the defendant’s alleged sexual conduct towards her. JGM’s evidence was of a single occasion of sexual touching on an occasion after school (i.e. - count 1). Putting aside the defendant’s submission about the risk of detection on the occasion the subject of count 1, a submission I will address below, there was no dispute that there was ample opportunity for count 1 to occur.
As set out above, JGM was inconsistent with respect to which hand touched the defendant’s penis on the occasion of count 1. In her evidence in chief she said it was her right hand. In cross examination, she said it was her left. In addition, there was an inconsistency between her evidence in cross examination and at least one prior statement to the police on that same issue. She told the police that it was her right hand. JGM admitted the inconsistency. She gave the following explanation in cross examination:[38]
Q.I think you said he grabbed your right hand, is that right.
A.Left hand. I get my rights and lefts backwards, sorry. I didn't realise that. Yeah. I didn't realise I did that sorry.
[38] T57.25 – 57.29.
I watched JGM, and listened very carefully, when she gave that answer in cross examination. In assessing evidence, I recognize there can be dangers in attaching significance to the demeanor of a witness. I also recognize there can be dangers in attaching significance to the tone of an answer. Those observations made, I am satisfied that there is some, albeit limited, significance in the fact that I did not form the impression JGM might have been seeking to mislead, or might have been reconstructing, when she gave the above answer.
Putting demeanor and tone aside, I have carefully considered this inconsistency. Which of JGM’s hands touched the defendant’s penis is not a matter the prosecution must prove, but it relates to an important aspect of count 1. That the defendant placed a hand of JGM onto his penis is the act the subject of count 1. The use of a hand is a matter the prosecution must prove beyond a reasonable doubt. JGM struck me as an intelligent person. At times, she expressed herself in a very mature way for a person of her age. The inconsistency cannot be lightly dismissed. I must carefully evaluate whether it might be reflective of an untruthful or unreliable account. Further, JGM’s evidence is only consistent with this incident standing out in her mind. She provided considerable detail as to what occurred. Having carefully considered the inconsistency, it has not caused me to have a reasonable doubt as to the truthfulness and reliability that JGM’s evidence of count 1, count 2 or the uncharged conduct. I accept JGM’s explanation for the inconsistency.
The inconsistency just detailed is not the only inconsistency. There is also the inconsistency as to whether JGM first complained to SK or TM. I regard this as an inconsistency I must weigh in the evaluation of the credibility and reliability of JGM.
However, having carefully considered that inconsistency, I am not of the view it might be indicative of JGM being unreliable or untruthful. On the evidence, the two conversations were separated by only a few weeks. Given that, the significance of an uncertainty as to whom was first told is diminished. In making the concession she did in cross-examination (i.e. – that she might have first told TM and not SK), I believe that JGM was just being careful to ensure that she did not mislead.
It was submitted that the conduct the subject of count 1 was, in particular, brazen and that made the evidence of JGM unlikely.
There are aspects of the conduct alleged in count 1 which might be viewed as brazen and involving considerable risk. On the evidence, count 1 took place in an open area where there might have been a sighting by the defendant’s wife, a neighbour or someone attending the house. Any such sighting could have been by a person coming into the rear yard through the house or the open driveway area. There was also the possibility of a sighting from inside the house, or a property next door. I proceed on the basis that JGM’s grandmother was present at the property. Mindful of those risks, it was submitted the conduct alleged in count 1 might be unlikely.
That count 1 involved the risk of being seen has not caused me to have a reasonable doubt about JGM’s evidence. I accept beyond a reasonable doubt JGM’s evidence the defendant placed the chair on which he was seated facing away from the trampoline and away from the area of the house and driveway. JGM’s evidence of the defendant placing the chair in that position and then turning to JGM and the trampoline as opposed to him positioning the chair to face JGM and the trampoline was a striking aspect of her account. It was not an aspect of her account which I felt might have been invented, reconstructed or otherwise unreliable.
It was put to JGM that she had seen the defendant urinating in the backyard. If that ever happened, I am satisfied that JGM has not, deliberately or inadvertently, substituted an occasion such as that for the conduct the subject of count 1.
The evidence of JGM was that the defendant ejaculated on the occasion of count 1.[39] JGM agreed in cross examination that she was holding his penis at the time of ejaculation.[40] The defendant submitted it was unlikely that the accused ejaculated without any ejaculate coming on to her hand. Even if the complainant was holding the penis of the defendant when he ejaculated, that no ejaculate came to be on her hand does not cause me to doubt the truthfulness and reliability of JGM as to count 1. JGM said that the defendant ejaculated onto the grass.[41] I accept that evidence.
[39] T28.38; 58.9-11.
[40] T58.15-17.
[41] T28.38.
It was submitted that JGM might be unreliable as there was no sexual act prior to the conduct the subject of count 1, nor any other preparatory conduct. If JGM’s evidence is accepted, the defendant could not have known with any real confidence what JGM’s reaction might have been. The defendant was at risk of JGM not submitting and not touching him in the way alleged. The defendant was also at risk of JGM complaining immediately, or at some later time. I proceed on the basis that a person about to act in the way alleged in count 1 will be aware of these risks. I do not doubt JGM’s evidence for these reasons. I am satisfied that JGM’s evidence was a truthful and reliable account of what took place.
I have considered whether JGM might be doubted because the defendant did not tell her after this occasion, nor on any subsequent occasion, that she should not tell anyone what had taken place.
I will deal first with the failure of the defendant to tell JGM not to tell anyone what had occurred after count 2 or the uncharged conduct. For reasons I will later give, while satisfied beyond a reasonable doubt that the acts the subject of count 2 and the uncharged conduct took place, it is a reasonable possibility that none of those acts were indecent. This being so, there was no reason for the defendant to tell JGM not to tell anyone of those acts.
Turning to this issue and count 1, it is the case that immediately after the conduct the subject of count 1, the defendant cannot have known whether JGM might disclose what had occurred. Any confidence the defendant might have gained over time about a lack of disclosure might never have been complete. I do not doubt JGM because the defendant did not tell JGM not to relate what had taken place. At the time of count 1, JGM was only six years of age. On her evidence, JGM did not make any protest, nor resist. If her account is truthful and reliable, and I accept that it is, the defendant would have known that. To tell JGM not to speak to anyone might have alerted her to the fact that what had occurred was something about which she should be concerned and might wish to share.
Further, the significance of the defendant not doing, nor saying, anything immediately, nor at any subsequent time, with a view to limiting the risk of JGM complaining of count 1 falls to be evaluated bearing in mind the significant amount of contact between JGM and the defendant and the nature of their interactions. This includes that, at some point not long after count 1, the defendant likely had some confidence that JGM had not said anything about that conduct. That confidence likely only increased over time.
For reasons which I will later give, it is at least a reasonable possibility that after the occasion the subject of count 1, the defendant never again behaved in a sexual way towards JGM. Having used JGM to assist him in masturbating and there being no complaint, I do not dismiss that one might expect the behaviour the subject of count 1, or some other sexual act, to be committed again. I must consider whether the failure to repeat the conduct the subject of count 1 and the failure to engage in any other sexual conduct with, or in the presence of, JGM might suggest that she was not truthful and reliable.
On the evidence of JGM, after count 1, there were countless opportunities for further offending which were not taken. Given the family relationship, this includes the entire period between count 1 and JGM going to the police. Further, if the account of JGM is reliable, the defendant brought the offending to an end of his own volition.
I do not assume that a person minded to touch his grandchild in a sexual way, or to use a grandchild to touch him in a sexual way, will always take opportunities to do so after having succeeded. Nonetheless, I do not dismiss this in evaluating the credibility and reliability of the evidence of JGM. As a matter of common sense, people who do something which has given them sexual gratification, without complaint or detection, might repeat their conduct. This aspect of the evidence has not caused me to doubt JGM’s credibility or reliability.
While I am satisfied beyond a reasonable doubt that count 1 is proven, for reasons which I will give, I am not satisfied that the act the subject of that charge was committed because the defendant had a sexual interest in JGM. Even if I am wrong about that and the commission of count 1 does show that, at that time, the defendant had a sexual interest in JGM, I am not satisfied that it was a sexual interest which persisted, or if it did, it was one the defendant could not control. In short, the defendant’s failure to repeat count 1, or to commit any other act of a sexual nature after count 1, has not caused me to doubt the credibility and reliability of JGM. I find that JGM gave evidence of acts which occurred.
That JGM continued to prefer using the family changerooms rather than the female changerooms, despite the conduct the subject of count 1, count 2 and the uncharged conduct, is not a matter that caused me to doubt her credibility and reliability. While the charged and uncharged conduct made her at least uncomfortable, she was young and would have had to have gone into the female changerooms alone. I do not regard her preferring not to do so as inconsistent with the occurrence of the conduct the subject of the charges, or uncharged conduct and the way that she felt about that conduct. It is one thing to be uncomfortable when touched in the way alleged on the occasions of the charged and uncharged conduct, it is another to be able to take some step which might have separated JGM from the defendant at the time of showering, even more so given JGM’s age. Also relevant is that JGM would have had to change and shower in changerooms used by women whom she did not know. Further, there was much about JGM’s interactions with the defendant which were positive.
Counts 1 and 2 - conclusions
JGM gave evidence of the events the subject of counts 1 and 2 about ten (10) years after the alleged incidents. She was very young at the time of those alleged incidents. When events happen so long ago, it is necessary to be mindful of the forensic disadvantage to which I have referred earlier in these reasons. It may mean that JGM’s evidence appears more credible and reliable than would have been the case had it been tested contemporaneously.
I must be alive to the risk that events have been recalled inaccurately. I must be alive to the risks that JGM has become convinced that an incident took place which did not, or that an incident which did take place might have been misconstrued. The latter is of real significance with respect to count 2. In evaluating the evidence, I must bear in mind that I have resolved to treat the evidence of an absence of prior convictions in the way set out earlier in these reasons.
Having considered all of the evidence and all matters put about the evidence and having scrutinized JGM’s evidence with care, I find JGM was a compelling witness. I find this to be the case as to the incidents the subject of count 1, count 2 and the uncharged conduct.
The detail JGM gave in her evidence impressed me. I am satisfied beyond a reasonable doubt that detail was because JGM was relating events which occurred. I am satisfied the any absence of detail with respect to the uncharged conduct reflects that similar conduct occurred on more than one occasion. Any absence of detail in the evidence of the uncharged conduct is not because JGM’s evidence might be untruthful or otherwise unreliable.
With respect to count 1, I am satisfied beyond a reasonable doubt that JGM gave accurate evidence of an event which took place. I am satisfied beyond a reasonable doubt that on a single occasion in about late 2009, in the backyard of his home, the defendant placed JGM’s hand on his penis and used that to assist himself in masturbating. I find beyond a reasonable doubt that conduct to have been indecent. I am satisfied beyond a reasonable doubt of all elements of count 1, including the circumstance of aggravation.
I find the defendant guilty of count 1.
As to the act the subject of count 2, I am satisfied beyond a reasonable doubt that on more than one occasion at Water World, the defendant changed in the same change room as JGM and rubbed the upper part of her bottom when she was naked. Despite JGM’s evidence the same act occurred on more than one occasion in the same location (i.e. – in one of the family changerooms, albeit not necessarily the same one on each occasion) I am satisfied beyond a reasonable doubt the complainant could recall the first time such conduct occurred and could separate that occasion from the other occasions on which the same conduct occurred. I find beyond reasonable doubt that when JGM told me in evidence of the first occasion, it was the first occasion.
In finding the act the subject of count 2 occurred, I did not use the evidence of count 1. I also did not use the evidence of the subsequent uncharged conduct.
If I am to find the defendant guilty of count 2, it is not enough that the act the subject of count 2 occurred. I must also be satisfied beyond a reasonable doubt the act was indecent. For the following reasons, I am not satisfied beyond a reasonable doubt of this element.
In considering the element of indecency, that I am satisfied that both JGM were naked, that it was the defendant who caused JGM to move from a shower she had not finished to his knee and that the defendant rubbed the upper part of JGM’s bottom in the way set out in the passage extracted at [21] above are matters, in my view, which are suggestive of an indecent act.
However, unlike on the occasion of count 1, JGM did not give evidence that the defendant was aroused. JGM was young and she had a skin condition which affected almost all her body.[42] JGM allowed for the possibility the defendant assisted her with the application of cream after she was aged five.[43] That evidence demands that I consider the possibility that the defendant was doing so when JGM was two or three years older than five (i.e. – at around the time of the act the subject of count 2). Putting aside the conduct the subject of count 1, the relationship between JGM and the defendant was a close and appropriate one. Given the close familial relationship and the age of JGM, I must exercise caution in reasoning that there was anything unusual in the defendant being present when JGM showered. JGM’s mother was called but gave no evidence about the showering habits of JGM at the relevant time. Further, JGM’s evidence of count 2 included that she undressed and entered the shower while the defendant was still naked. Her evidence was not that she was directed to do this. I also must exclude that the act the subject of count 2 was simply an act of appropriate affection, albeit one which appears suspicious given the context in which it occurred.
[42] T64.23-25.
[43] T64.35-38; 65.1-4.
I have found count 1 proved. As set out earlier in these reasons, I was invited to use the evidence of that count to reason: First, that the defendant had, at that time, a sexual interest in JGM and acted on that interest – and – Second, to use that evidence to reason that the sexual interest still existed at the time of count 2 and that the defendant then acted on that interest in committing the act the subject of count 2.
As to the first of the matters above, in some cases, the commission of count 1 might readily prove both the existence of the relevant sexual interest and that it was acted upon. However, I am not satisfied that the commission of count 1 proves the defendant had a sexual interest in JGM at that time, nor that the defendant acted on that interest at that time. I cannot discount that the conduct at the heart of count 1 (i.e. - the defendant masturbating) commenced without reference to JGM. That is, that the defendant was not masturbating because of JGM, but did so in her presence as he needed to supervise her on the trampoline, initially with the intention that she not be aware of what he was doing. This would explain the defendant placing the chair facing away from JGM. I cannot discount that the act of masturbating which, on the evidence commenced before JGM was alongside the defendant, was conduct which began with no desire to touch JGM, or to be touched by her. I cannot discount the defendant only used JGM in the way which I am satisfied beyond a reasonable doubt occurred when he had not ejaculated. His comment was, “Thank you, I just needed help finishing off”. Also relevant is that the defendant never repeated like conduct after count 1, despite the absence of protest or complaint by JGM. In short, I cannot discount that the conduct of the defendant which is the subject of count 1 was not about some sexual interest in JGM, albeit that he ultimately used JGM to achieve what he had initially set out to do without her assistance (i.e. – to ejaculate).
Even were I satisfied that the commission of count 1 did show that the defendant had a sexual interest in JGM at the time of count 1 and acted on that interest on that occasion, I would not have been satisfied the sexual interest in JGM still existed at the time of count 2. A period of about twelve months had passed between count 1 and the act the subject of count 2. In that period, there were countless opportunities to act on the relevant sexual interest. In this case, that none of those opportunities were taken is inconsistent with any sexual interest persisting.
I am suspicious about the motive of the accused in committing the act the subject of count 2. There are aspects of what occurred on the occasion of count 2 which make me suspect the act was indecent. However, I am unable to exclude as a reasonable possibility the act the subject of count 2 was performed due to JGM’s skin condition, or was an act of affection which was not indecent.
Were it necessary for me to decide, I would not be satisfied beyond a reasonable doubt that any of the uncharged conduct was indecent. My reasons are the same as for count 2.
My failure to find count 2 proven beyond a reasonable doubt does not reflect adversely on the truthfulness and reliability of JGM. The same can be said of the existence of a reasonable possibility that the uncharged conduct was not indecent. As I have said, I am satisfied beyond a reasonable doubt that the act the subject of count 2, and the uncharged conduct, took place in the way set out by JGM in her evidence.
I find the defendant not guilty of count 2.
Conclusion
I find the defendant guilty of count 1.
I find the defendant not guilty of count 2.
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