R v M, R J
[2014] SADC 117
•1 July 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R J
Criminal Trial by Judge Alone
[2014] SADC 117
Reasons for the Verdict of His Honour Judge Beazley
1 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with six alleged offences against his step-daughter - namely four counts of Aggravated Gross Indecency; one count of Aggravated Indecent Assault; and one count of Unlawful Sexual Intercourse with a person under the age of 14 years; counts 4 and 6 on the Information corroborated to some degree - no corroboration in respect of counts 1, 2, 3 and 5 on the Information - offences allegedly occurred when complainant was aged 9 years - complainant aged 11 years as at the date of trial - prosecution case based entirely upon the acceptance, beyond reasonable doubt, of the truth and reliability of the evidence of the complainant - relevance of prior inconsistent statements of complainant - whether prosecution case proved beyond reasonable doubt.
Verdicts: accused not guilty of all counts.
Criminal Law Consolidation Act 1935, (SA) ss 49(1), 56, 58, 75 and s 281; Evidence Act, 1929, (SA) ss 9, 12, 12A, 13A, 13C, 34L, 34M and 34P; Juries Act 1927, (SA) s 7, referred to.
B C M v R [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; R v Abrahamson (1994) 63 SASR 139; Hargraves v The Queen [2011] HCA 44 at [43-46]; R v Calides (1983) 34 SASR 355; R v C CA [2013] SASCFC 137; R v C G [2013] SASCFC 83; R v C CN [2013] SASCFC 44; R v Lapins [2007] SASC 281; B v The Queen (1992) 175 CLR 599; R v Maiolo (No 2) [2013] SASCFC 36; R v A GP [2012] SASCFC 81; R v Brady [2014] SASCFC 7; R v Smith [2013] SASCFC 128; R v E DJ (2012) 112 SASR 225; R v H T [2010] SASCFC 24; Ayles v The Queen (2008) 232 CLR 410; R v Fowler [2012] Q.C.A. 258; R v Kerin [2013] SASCFC 56; R v Sumner [2013] SASCFC 82 and [2014] HCA Trans 43; R v Radley (1973) 58 Crim App R 394 at 404; Gillard v R [2013] ACTCA 17 at [75] - [77]; Gillard v The Queen [2014] HCA 16; R v M, AS (2013) 118 SASR 160; R v Gavare [2011] SASCFC 38; A, K v State of Western Australia (2008) 232 CLR 438; B, N v R [2011] VSCA 406; R v Lomman [2014] SASCFC 55; R v M J J [2013] SASCFC 51; R v D W D [2013] SASCFC 32, discussed.
R v M, R J
[2014] SADC 117Introduction
R J M (‘the accused’) is charged on Ex Officio Information, dated 2 December 2013, as amended, with four counts of committing an Act of Gross Indecency, with aggravating features, contrary to s 58 of the Criminal Law Consolidation Act, 1935 (SA) (‘the Act’); one count of Aggravated Indecent Assault, contrary to s 56 of the Act; and one count of Unlawful Sexual Intercourse with a person aged under 14 years, contrary to s 49(1) of the Act.
The prosecution alleges that the accused committed the subject six offences, between 1 January 2011 and 24 June 2012 against his stepdaughter ‘N’ (the complainant).
The complainant was born on 2 December 2002, and was accordingly aged between 8 and 9 years at the time of the alleged offences.
Upon arraignment, the accused pleaded not guilty to each of the six counts on the Information. It is convenient to set out the particulars of each of those counts as pleaded in the Information, and as developed in the prosecution opening, as follows:
First Count
Statement of Offence
Aggravated Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
R J M between the 1st day of January 2011 and the 28th day of February 2012 at Unley, committed an act of gross indecency in the presence of N, being a person under the age of 16 years.
It is further alleged that R J M committed the offence knowing that N was, at the time of the offence, under the age of 12 years.
It is further alleged that R J M committed the offence knowing that N was a child of whom the spouse of R J M had custody as a parent.
The prosecution asserts that the accused exposed his penis to the complainant in circumstances of gross indecency.
Second Count
Statement of Offence
Aggravated Gross Indecency. (Ibid).
Particulars of Offence
R J M between the 1st day of January 2011 and the 28th day of February 2012 at Unley, committed an act of gross indecency in the presence of N, being a person under the age of 16 years.
It is further alleged that R J M committed the offence knowing that N was, at the time of the offence, under the age of 12 years.
It is further alleged that R J M committed the offence knowing that N was a child of whom the spouse of R J M had custody as a parent.
The prosecution asserts that the accused exposed his penis to the complainant in circumstances of gross indecency, approximately two months after the act described in count 1.
Third Count
Statement of Offence
Aggravated Gross Indecency. (Ibid).
Particulars of Offence
R J M between the 1st day of February 2012 and the 24th day of June 2012 at Heathfield, committed an act of gross indecency in the presence of N, being a person under the age of 16 years.
It is further alleged that R J M committed the offence knowing that N was, at the time of the offence, under the age of 12 years.
It is further alleged that R J M committed the offence knowing that N was a child of whom the spouse of R J M had custody as a parent.
The prosecution asserts that the accused exposed his penis to the complainant while near a refrigerator in the kitchen, in circumstances of gross indecency, and asked her whether she wanted to touch it.
Fourth Count
Statement of Offence
Aggravated Gross Indecency. (Ibid).
Particulars of Offence
R J M between the 1st day of February 2012 and the 24th day of June 2012 at Heathfield, committed an act of gross indecency in the presence of N, being a person under the age of 16 years.
It is further alleged that R J M committed the offence knowing that N was, at the time of the offence, under the age of 12 years.
It is further alleged that R J M committed the offence knowing that N was a child of whom the spouse of R J M had custody as a parent.
The prosecution asserts that the accused exposed his penis to the complainant in his bedroom and proceeded to masturbate in her presence.
Fifth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
R J M between the 23rd day of April 2012 and the 24th day of June 2012 at Heathfield, indecently assaulted N, a person under the age of 14 years.
It is further alleged that R J M committed the offence knowing that N was, at the time of the offence, under the age of 14 years.
It is further alleged that R J M committed the offence knowing that N was a child of whom the spouse of R J M had custody as a parent.
In his opening address, counsel for the prosecution asserted that the complainant would say that the accused, at Heathfield, had touched the complainant on the outside of her vagina, while her mother was away.[1] (my emphasis)
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
R J M between the 23rd day of April 2012 and the 24th day of June 2012 at Heathfield, had unlawful sexual intercourse with N, a person of the age of 11 years.
In his opening address, counsel for the prosecution asserted that the complainant would say that the accused had inserted his finger into her vagina, in the presence of her mother.[2] (my emphasis)
[1] T. p 45. In xn at T. p 59 the complainant deposed that the accused had touched her on 'her privates'. She deposed that the act in count 5 had occurred about 2 days after the act in count 6. In xxn at T. p 93 it seems that the 'privates' were between the 'cheeks of her bottom'.
[2] T. p 45. In xn at T. p 57 - 58, the complainant deposed that the accused had inserted his finger into her 'privates'. In xxn at T. p 93 she deposed to it being between 'the cheeks of her bottom'. The complainant was then aged 9 years.
Procedural Matters
·Trial by Judge Alone
At the commencement of the trial, the accused elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act, 1927 (SA).
The purported election by the accused, at such a late time, was contrary to Rule 8(1) of the Juries Rules 1996 (SA) (the Rules); and, accordingly the accused made Application for an extension of time for the subject election, pursuant to Rule 16 thereof.
In R v Gavare,[3] the Court of Criminal appeal discussed the demarcation between procedural rules and the substantive law. It held that notwithstanding the strict terms of Rule 8 of the Rules, that circumstances which arise after the expiration of the time fixed for the election, may still provide a basis upon which a refusal to extend time would be unjust.
[3] [2011] SASCFC 38.
There is no need to detail the reasons as to why the application was made late. I was satisfied that there was a proper basis, pursuant to Rule 16 of the Rules to waive compliance with the prescribed time limits. I was satisfied that it would have been unjust, in the circumstances, to refuse the application.
Ultimately, the application for Trial by Judge without a jury was granted, and the trial commenced before me on 4 December 2013.
Mr Trevarrow appeared as counsel for the Director of Public Prosecutions (‘the Prosecution’), and Mrs Shaw QC appeared as counsel for the accused.
·Necessity for Reasons
In a series of recent decisions the High Court of Australia has stressed that sufficient reasons must be given by Trial Judges, and, indeed, Intermediate Courts, which properly explain the verdict.[4] Those reasons must include the principles of law applied by the Judge and the facts as found by the Judge.
[4] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438.
In the subject case, as will appear from the facts in dispute, it will be necessary for these Reasons to include substantial portions of the evidence.
·Preliminary Applications
·The form of the Information
The accused had issued applications, pursuant to the Rules of Court,[5] respectively on 15 November and 29 November 2013, asserting that the Information, as initially laid, was duplicitous in that each count was inadequately particularised.[6]
[5] District Court Criminal Rules 2013 (SA) Rule 15.
[6] B N v R [2011] VSCA 406; and R v Fowler [2012] Q.C.A. 258.
Prior to the commencement of the trial, the Prosecution substituted the subject Ex Officio Information.
Counsel for the accused, Mrs Shaw QC, acknowledged that the Ex Officio Information had adequately addressed the accused’s concerns as to the dearth of adequate particulars.
She submitted however, that the initial expression of each of the charges as ‘aggravated gross indecency’ in Counts 1 to 4 inclusive; ‘aggravated indecent assault’, in Count 5; and ‘aggravated unlawful sexual intercourse’ in Count 6, ‑ were offences not known to the law.[7]
[7] R v Sumner & Fitzgerald [2013] SASCFC 82; and Gillard v R [2014] HCA Trans 43.
There is clearly a distinction between the charge of aggravated indecent assault and the other two types of offence.
The offence of ‘indecent assault’ specifically details an ‘aggravated offence’ and a ‘basic offence’. In light of the majority decision in R v Sumner & Fitzgerald,[8] that charge in Count 5 on the Information is appropriately expressed, as Mrs Shaw properly conceded.[9]
[8] Ibid.
[9] T. p 42.
As to Count 6, the Prosecution applied for and was granted leave to amend that charge, deleting the word ‘aggravated’ so that it proceeded as a charge of ‘unlawful sexual intercourse’ contrary to s 49(1) of the Act.
Mrs Shaw submitted, however, and, in my opinion correctly, that the respective counts 1 to 4 inclusive, ought each be expressed as an ‘act of gross indecency’ with circumstances of ‘aggravation’. The offence under s 58 of the Act does not refer to an ‘aggravated offence’. She did not submit that the wording of the respective counts was fundamentally flawed. In my opinion it is preferable to amend Counts 1 to 4 inclusive to correct the wording of the charges.
It was simply an oversight that the charges were not amended at the time of those submissions.
There can be no prejudice to the accused in the event that each of the charges in Counts 1 to 4 inclusive were amended as indicated herein.
Although it might properly lead to the ‘rhetorical question, so what?’[10] in my opinion the charge ought properly be expressed.
[10] R v Fitzgerald & Sumner [2014] HCA Trans 48.
In the absence of any prejudice to the accused, I amend each of the Counts 1 to 4 inclusive, to substitute the words ‘an act of gross indecency with aggravating circumstances’ for the words ‘aggravated gross indecency’, pursuant to s 281 of the Act. The effect of these amendments is to more properly reflect the charges. They remain charges under s 58 of the Act.
There is accordingly, no need to re-arraign the accused in consequence of the amendments.[11]
·Notice of Intention to Adduce Evidence of Discreditable Conduct
[11] See R v Radley (1973) 58 Crim App R @ p 394 at 404 and Gillard v R [2013] ACTCA 17.
By Notice dated 13 November 2013, the prosecution sought to adduce evidence of alleged discreditable conduct by the accused.[12]
[12] Evidence Act 1929 (SA) s 34P.
This was said to include evidence of alleged incidents of sexual impropriety between the accused and the complainant, whether or not the subject of a specific count on the information; evidence of incidents of ‘rough play’ as between them; and evidence of the alleged use of ‘swear words’ by the accused.
In his opening address, counsel for the prosecution explained that the complainant ‘will give evidence that from January 2011, the accused exposed his penis to her, inviting her to touch it on some occasions … you will hear that there are two specific times, that the accused exposed his penis in the Unley house and two specific times in the Heathfield house. But you will hear that there were numerous other times but the complainant can’t specify the time or the date that that occurred’.[13] (my emphasis)
[13] T. p 45.5 - 46.17.
In R v C, CN,[14] White J expressed the opinion that it was necessary for a trial Judge to consider and apply the provisions of s 34P of the Evidence Act in respect of each charge, and be positively satisfied, that the conditions of admissibility of each item of alleged discreditable conduct had been met before being received by the Court. This was so notwithstanding that there was no objection taken by counsel, in that case.
[14] [2013] SASCFC 44.
Subsequently, however, the Court of Criminal Appeal has, in recent decisions, declined to apply that dicta, stating that:[15]
If the evidence is unchallenged, we do not consider that the Judge has to consider its admissibility under s 34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.
[15] R v C, G [2013] SASCFC 83 at [50]; R v C, CA [2013] SASCFC 137 and R v Maiolo [No 2] [2013] SASCFC 36.
The parties in the subject case submitted that I ought to receive such evidence, if any, of alleged ‘discreditable conduct’, de bene esse, and to rule on its admissibility in due course.
I sit in this trial as Judge without a jury. In Abrahamson v R,[16] the Court of Criminal Appeal noted that the:
Principle that a Judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by Judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force.
[16] (1994) 63 SASR 139 at 143.
I accordingly determined that I would receive such evidence of alleged acts of sexual misconduct and other discreditable conduct including alleged swear words, de bene esse. On the prosecution case such evidence was highly relevant as it could explain that the charged offences did not arise out of the ‘blue’. On the accused case any inconsistency by the complainant in respect of such alleged conduct was highly probative of the complainant’s lack of credit in respect of the charged offences. As it transpired, the complainant deposed that there were no acts of sexual misconduct save for the charged acts.[17]
·Protected communications
[17] T. p 75.
The accused sought access to documents produced to the Court upon subpoenas directed to Families SA and to Uniting Communities.
I refused the application by the accused, as the relevant documents were clearly protected communications as defined in the Evidence Act 1929 (SA),[18] and were accordingly protected by Public Interest Immunity.[19]
·The complainant as a witness
·Sworn Evidence
[18] Communications made in a therapeutic context in sections 67E and 67F of the Evidence Act.
[19] Ruling see T. p 13 - 15.
The complainant gave sworn evidence.
Pursuant to s 9(1) of the Evidence Act 1929 (SA), a person is presumed to be capable of giving sworn evidence unless the Court determines that the complainant does not have sufficient understanding of the obligation to be truthful entailed in giving such evidence.
There was nothing to suggest, in the case of the complainant, that this presumption may be rebutted. At the time of giving her evidence the complainant was aged 11 years. I did not consider that her age, alone, was a sufficient basis to conduct a detailed enquiry.[20]
[20] R v B, RP [2004] SASC 323.
I did however, briefly examine the complainant.[21] Both counsel accepted, that the complainant was capable of giving sworn evidence and that any further enquiry was not necessary, in the circumstances.
[21] T. p 48-50.
The complainant presented as a confident and highly intelligent child.
I had no doubt that the complainant did have sufficient understanding of her obligation to be truthful when giving sworn evidence.[22]
[22] R v Starrett (2002) 82 SASR 115; H, SA v Police [2013] SASCFC 86 and R v French (2012) 114 SASR 287.
There were some difficulties presented by the expression ‘privates’ employed by the complainant and, in particular, whether she had intended the word to mean the ‘cheeks of her bottom’, or alternatively her vagina.
There were also some difficulties caused by the fact that the respective counts were apparently not pleaded in chronological order. Some of those difficulties were highlighted in the cross-examination of the complainant.[23]
·Special arrangements
[23] See footnotes, no 1 and no 2, supra.
Upon the application of the prosecution, and without objection by the accused special arrangements were made, pursuant to ss 4, 12 and 13A of the Evidence Act, for the complainant to give evidence to the Court.
The complainant was permitted to give evidence outside the courtroom, which evidence was transmitted by close circuit television. She was accompanied by a court companion. The Court was closed during her evidence.
I have not drawn any inference adverse to the accused nor have I allowed these special arrangements to influence the weight to be given to that evidence.[24]
·Section 21 of the Evidence Act, 1929 (SA)
[24] Evidence Act, s 13A(12).
The complainant’s mother, ‘M J’, was called as a witness by the prosecution. She is the wife of the accused.
Prior to her giving evidence, I explained her right to make an application to be exempted from giving evidence, pursuant to s 21 of the Evidence Act.
I was satisfied that she was aware of her right to make such an application, and that she had declined to seek such an exemption.
Legal Directions
The Court of Criminal Appeal has recently confirmed that it is not necessary in a trial heard by judge alone, for the court to detail in its Reasons for Verdict, the obvious directions of law in respect of which any trial judge is bound to be aware.[25]
[25] R v R, R & R, LJ [2008] SASC 35 at [42].
I do not propose to restate all of the obvious directions of law.
I do however remind myself of some of the following fundamental directions which apply in every criminal trial:
·The accused comes before this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on the charged offence that I am then considering has been proved by the prosecution beyond a reasonable doubt.
·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 a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[26]
[26] Hargraves v R [2011] HCA 44 at [25].
·The prosecution seeks to satisfy me beyond reasonable doubt upon the evidence of the complainant, as to each of the alleged counts of gross indecency; aggravated indecent assault; and unlawful sexual intercourse. It is for the prosecution to prove beyond reasonable doubt that the complainant is both honest and reliable, and that the accused’s case ought to be rejected beyond reasonable doubt.[27] While I am not obliged by statute to so direct myself,[28] I will approach the evidence of the complainant with caution, for reasons which will become clear, and only rely upon it if I am satisfied beyond reasonable doubt that it is both credible and reliable, in respect of the count which I am then considering.
[27] Douglass v R [2012] HCA 34 at [48].
[28] Evidence Act 1929 (SA) ss 12A, and 34L (5). See also R v Lomman [2014] SASCFC 55. Query whether s 12A applies to trial by Judge Alone R v E, DJ (2012) 112 SASR 225 at [2].
·The accused is charged with six separate offences on the one Information. Each of those counts must be considered separately on its merits. It does not follow that if I am satisfied beyond reasonable doubt of his guilt on one count, that he must be guilty of another count. Counts do not stand or fall together. All of the evidence was admissible on all counts and is available in considering the complainant’s credibility and reliability as a whole.[29]
·I do however direct myself, that as the prosecution case depends entirely upon the evidence of the complainant, where inroads have been made as to her credibility and reliability, any reservations, I may have as to her credibility or reliability, in my assessment of any one count, may be carried over to my assessment of the allegations in respect of the other counts.[30]
·There is some evidence to the effect that the complainant and the accused engaged in ‘play fighting’ and ‘poking’. I must not take a moral or prejudicial view in consequence of such conduct.
·Only proof beyond reasonable doubt by the prosecution, can give rise to a conviction. The prosecution must prove each and every element of the count that I am then considering. If I am unsure as to where the truth lies, or the prosecution does not rebut any reasonable explanation consistent with innocence, then I must have a reasonable doubt as to the guilt of the accused. If I am left with a reasonable doubt as to any element of the charge, I am then considering, I must give the accused the benefit of that doubt and find him not guilty of that charge.
·The accused does not have to prove anything. At trial the accused elected not to give evidence, but to leave it to the prosecution to prove its case beyond reasonable doubt if it were able to do so. That was his right and I have drawn no inference adverse to the accused in consequence of him exercising his right to silence.
·Evidence was received from the complainant, inter alia, as to an initial complaint; as to when it was made by the complainant; and as to why the complainant did not make it at an earlier time.[31] That initial complaint may include a later elaboration of that complaint. I direct myself that evidence of any such complaint is admissible only for the specific purposes in s 34M(4)(a) of the Evidence Act 1929 (SA); namely to inform me as to how the allegations first came to light, and as to the consistency (or otherwise) of the conduct of the complainant. It is not evidence of the truth of what is alleged by her, that any alleged offence had actually occurred.
·The delay in making a complaint is not, of itself, of probative value as to the credibility of the complainant. An initial complaint which is inconsistent with the evidence of the complainant may be used to cast doubt on the case put forward by the complainant. I direct myself that there may be many reasons why the complainant in respect of allegations of sexual offending may make a complaint at a particular time or to a particular person.
·The complainant’s evidence was not corroborated in respect of Counts 1, 2, 3 and 5. Although a Court is no longer obliged to give a warning as to the absence of corroboration,[32] I do direct myself, in the circumstances of this case, that the complainant’s evidence must be scrutinised with particular care.
·There was evidence that the accused has never previously been convicted of a criminal offence. I will bear in mind the accused’s previous good character as a factor affecting the likelihood of the accused having committed the Count that I am then considering.
Elements of the Charged Offences
[29] R v Lapins [2007] SASC 281 at [52].
[30] R v M, AS (2013) 118 SASR 160; R v Liddy (2002) 81 SASR 22 at [181 – 193]; R v Lapins [2007] SASC 281; R v B, P [2006] SASC 229; R v Markuleski (2001) 52 NSWLR 82; R v Brady [2014] SASCFC 7.
[31] Evidence Act 1929 (SA) s 34M.
[32] Evidence Act1929 (SA) s 34L(5).
An Act of Gross Indecency
A person who in public or in private intentionally commits an act of gross indecency with, or in the presence of any person under the age of 16 years is guilty of an offence.
The elements of this offence in counts 1 to 4 inclusive are:
1.That the following acts, allegedly committed by the accused, were performed intentionally by the accused in the presence of the complainant.
The specific acts alleged are:
·In Counts 1 and 2, that the accused exposed his penis to the complainant.
· In Count 3, that the accused exposed his penis to the complainant and asked if she wanted to touch it.
· In Count 4, that the accused exposed his penis to the complainant and masturbated in her presence.
2.That the said act in each Count was grossly indecent having regard to reasonable contemporary standards.
3.That the complainant was under the age of 16 years at the time.[33]
[33] Criminal Law Consolidation Act 1935 (SA) s 58(1)(b).
The pleaded alleged aggravating features, including the knowledge of the accused that the complainant was the child of the accused’s spouse, are not elements of the charges in Counts 1 to 4 inclusive.
·Aggravated Indecent Assault
A person commits the offence of Indecent Assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency.[34] The prosecution must prove each of the following first to fourth elements, inclusive, beyond reasonable doubt to establish the basic offence of indecent assault. It must prove beyond reasonable doubt the fifth element to establish the offence of aggravated indecent assault.
[34] Criminal Law Consolidation Act 1935 (SA) s 56.
The elements of the offence:
1. The accused applied force to the complainant.
A mere touch would constitute sufficient force.
The allegations in respect of Count 5 are that the accused touched outside of the complainant’s vagina, with his finger.
2.The application of such force was deliberate, as opposed to being an accident in the course of play.
3.The accused’s conduct, as described, occurred in circumstances of indecency.
If the prosecution proves elements one and two beyond reasonable doubt, the conduct plainly occurred in circumstances of indecency.
4. The accused’s conduct, as described, was unlawful.
No person aged under 17 years is capable of consenting to an indecent assault. If the prosecution proves elements one, two and three beyond reasonable doubt, then there could be no dispute that the accused’s act was unlawful.
Note: Proof beyond reasonable doubt of each and every element 1 to 4 hereof will satisfy the basic offence of indecent assault.
5. That the offence was in the aggravated form
If the complainant was under the age of 14 years as at the date of the offence, the offence of aggravated indecent assault is proved.
There is no doubt that the complainant was aged under 14 years as at the date of each alleged offence. [35]
·Unlawful Sexual Intercourse
[35] Criminal Law Consolidation Act 1935 (SA) s 56(2).
The offence of unlawful sexual intercourse is committed when an accused person is proved to have intentionally had sexual intercourse with a person under the age of 17 years.[36] A more serious offence is committed when the complainant is under the age of 14 years. The accused is charged with the more serious offence.[37]
[36] Criminal Law Consolidation Act 1935 (SA) s 49(3).
[37] Criminal Law Consolidation Act 1935 (SA) s 49(1).
Sexual intercourse includes, relevantly, the penetration of a person’s vagina, labia majora or anus by any part of the body of the accused person.
The charged offence has three elements, each of which must be proved beyond reasonable doubt, as follows:
1.That the accused had intentional sexual intercourse with the complainant.
The allegation in Count 6 is that the accused intentionally inserted his finger into the complainant’s vagina. This, if proved, would constitute an act of sexual intercourse.
2.That such sexual intercourse was unlawful.
It is unlawful for a person to have sexual intercourse with a person aged under 17 years.
3.That the complainant with whom the accused had sexual intercourse was under the age of 14 years at the time of the sexual intercourse.
The complainant was aged 9 years as at the date of the alleged offence.
Overview
The prosecution called oral evidence from the complainant ‘N’; her father ‘NC’; her mother ‘MJ’, her paternal grandmother ‘RC’ and Detective Brevet Sergeant Karen Brumpton.
With the exception of her mother ‘M J’, who gave direct evidence as to the alleged events in respect of Count 6, and of her conversations with the accused in respect of Counts 4 and 6; the complainant was the only prosecution witness as to the alleged events in respect of each of the counts.
The complainant gave evidence that she told her grandmother of the two alleged events in Counts 5 and 6.
The complainant’s grandmother was called principally to give evidence as to the detail of such an initial complaint. I infer from her evidence that the complainant had referred only to the alleged event in Count 6, in addition to a non-sexual event.
In addition she gave evidence as to the complainant’s wish that she be permitted to spend more time with her father.
The complainant’s father was called to give evidence as to discussions with the complainant on 10 July 2012 which led to an interview with the police on 13 July 2012; and to subsequent conversations on 12 November 2012.
These conversations with the complainant, which, while not constituting an initial complaint, became relevant, on the defence case, to the credibility of the complainant.
The complainant’s mother, in addition, gave evidence as to tensions within the family at the relevant time; the background to play fighting, and the relationships within the family generally.
Detective Sergeant Brumpton was called to give evidence as to the number of occasions when the complainant was interviewed, and when it was that disclosure was made by the complainant in respect of each count.
The accused’s case was a simple denial of the complainant’s allegations. As to Counts 4 and 6 the accused’s case was that events occurred in circumstances which did not involve sexual misconduct by the accused.
The accused exercised his right not to give sworn evidence at the trial. However statutory declarations were tendered in the defence case, by consent, from Stewart Zanotti,[38] and Simon McLoughlin,[39] wherein each deposed to the accused’s previous good character and general reputation.
[38] Exhibit D2, T. p 166.
[39] Exhibit D3, T. p 166
Synopsis of the evidence
·The general background
The complainant was born on 2 December 2002.[40] Her parents, ‘M J’ and ‘N C’ separated in November 2004; subsequently divorced; and have since shared custody of the complainant.
[40] Exhibit P 1.
Initially it was ‘one week on, and one week off,’ however that arrangement was later varied to her mother having custody for 10 days and her father for 4 days, each fortnight.
On 8 August 2008 the complainant’s mother married the accused. They initially resided at Greenwith but moved to a residence in Unley in 2009, and then to Heathfield in February 2012.
The complainant’s father, at all relevant times resided in Goodwood. He remarried and in 2011, his wife delivered a son.
From time to time the complainant’s father was obliged, by work commitments to spend time away from Adelaide, including a 12 month period in Canberra in 2011, and from mid October 2012 to 12 November 2012 in the United States.
The complainant’s grandparents reside in Queensland, and the complainant would on occasions, travel to Queensland to spend school holidays with those grandparents.
Relevantly, on one such occasion, the complainant left Adelaide on 24 June 2012 to spend the holidays with her paternal grandparents at Gympie in Queensland and returned on 10 July 2012.
Prior to travelling to Gympie, the complainant had expressed a desire that the custody arrangements be varied from 10 days per fortnight with her mother, to, at least, one week for fortnight with her father.
The complainant deposed that she wanted to spend more time with her father and ‘wanted to get to know [her] brother more’.[41]
[41] T. p 80.
Following the initial complaint made to her grandmother, the complainant returned to her father’s home in Goodwood on 10 July 2012. He spoke to the police, and the complainant was interviewed on 13 July 2012. The accused was arrested on 8 August 2012.[42]
[42] T. p 163.
The complainant spoke again with her father on 12 November 2012, and made further allegations against the accused. This led to the complainant being again interviewed by the police on 13 November 2012.
·The Complainant’s evidence on each count
I turn to the complainant’s evidence with respect to each of the counts on the information. I repeat that there were some difficulties caused by the fact that, on the complainant’s evidence, the counts on the Information were not pleaded in a chronological order, and her evidence was not led in a chronological order. I will however detail her evidence on each of the counts in the order in which they were pleaded. This does not imply any criticism of the office of the DPP nor the police. It is plain that at all times they have very properly and professionally interviewed the child complainant making sure that she was not led in any way.
Each of the counts must be considered separately on its merits. However, to avoid repetition I will detail some of the cross-examination of the complainant in respect of both Counts 1 and 2 after setting out the, relevant passages of the complainant’s evidence in chief.
·Count 1
The complainant deposed that the alleged offence in count 1 occurred at Unley when the ‘[accused]’ asked me if I’d like to see his privates and I didn’t say anything, and then – then he showed me’.[43] The complainant deposed that the accused was lying down on his bed and was wearing a t-shirt and jocks. The complainant asserts that the accused showed her his penis while she was sitting on the bed. She stayed for about two to three minutes during which time neither said anything.
[43] T. p 68 (xn).
She was then asked:
QAnd when you stayed there in the bedroom, where was [the accused].
AHe was still lying on the bed.
QWhat was he wearing during that 2 or 3 minutes?
AStill jocks and underpants – jocks and a t-shirt, sorry.
QYou said he asked you; is that right?
AYes.
QAnd what happened after he asked you?
AI said nothing and then he pulled down his jocks and showed me his private parts.
QAnd where were his jocks pulled down to?
AHis knees.
QDid he get off the bed?
ANo.
QDid he say anything to you at all when you were in the room after he pulled down his jocks?
ANot that I can recall.
QDo you remember when this happened?
ANo.
QDid you remember what grade you were in at school when it happened?
AI think I was in – I think I was in Year 3, sort of like at the – in the middle of Year 3.
·Count 2
The complainant deposed that on another occasion at Unley she and the accused were in the lounge room. She described it as a sofa with two arm rests. She said that the accused had his foot on the arm rest.
She then deposed that:
A… and then he asked me again ‘would you like to see my private parts?’. And I said – this time I said ‘no’. And then he pulled his pants down and showed me.
QOkay. You say ‘private parts’, is that your word or is that what [the accused] said?
ANo, he – I said ‘private parts’ but he – he said ‘penis’.
QDid he ever refer to his penis as a private part, or not?
ANo, he just called it ‘penis’. I called it ‘private parts’ though.
QCould you help us just in relation to the time between the first occasion and the second occasion, are you able to remember that?
AI think they were a couple of months apart.
QDo you remember if there was anyone else or was there anyone else at home at the time?
ANo. My mum was actually at work. (my emphasis)
QAnd what was he wearing? We are talking about the lounge room, what was he wearing that time?
AStill jocks and a t-shirt.
QAnd what were you doing immediately before that happened?
ABefore that happened I was doing my homework and he – he stood up and then I finished and I went to watch TV and he asked me ‘would you like to see my penis?’, and I said ‘no’.
QWhat happened?
AAnd then –
QWhat happened after you said ‘no’…
AThen he pulled down his pants and showed me.
QHow far did he pull his pants down?
ATo about his knees.
QWhat did you do then?
AThat time I ran out. (my emphasis)
QDid [the accused] say anything to you – I’m talking about the time you were in the lounge – when he did that?
ANo.
QDid you say anything to him?
ANo.[44]
[44] T. p 68 - 71.
The complainant was cross-examined about occasions when, it was suggested, she might have seen the accused naked. She was asked whether she had from time to time been in the spa at their home with her mother and the accused, and that all of them were naked. She initially said that she could not remember, and was reluctant to answer. Ultimately she agreed that it was the case.[45]
[45] T. p 103.
She was then asked whether she had told the police that the accused had brown spots on his penis.
She said that she told the police that in November 2012, and that she drew one in the police officer’s book.
She was then asked:
QYou were spoken to about the spots again in June this year?
AI think so, yep.
QDid anyone tell you that perhaps he didn’t have any spots on his penis?
ANo. I was really worried when I go to sleep and I think about it and I thought, you know, that actually might not be right so I’m going to talk to my dad about it and see if they can actually fix that up and say that I don’t know
·Count 3
The complainant deposed that this Count 3 had occurred at Heathfield while standing in front of a window, but near the refrigerator in the kitchen.
She deposed:
A… and he asked me if I’d like to see his private parts and I said ‘no’, and then he pulled his pants down, and showed me and then he asked me if I wanted to touch it and I said ‘no’.
QWhat was [the accused] wearing when he did that?
AA t-shirt and jocks, that’s what he usually would wear around the house.
QAnd where were you immediately before that happened?
ANear the kitchen bench.
QWas anyone else at that time home?
ANo, there wasn’t.
QCan you tell me, was that before or after the time that he showed you a sperm?
ABefore.
QIf you could just tell me how [the accused] did that at that time?
ASo he asked me if I wanted to see his private parts and I said ‘no’, and then he just pulled his pants down and asked me if I’d like to touch it and I said ‘no’.
QHow far did he pull his pants down?
ATo his ankles.
QDid [the accused] do anything when his pants were down to his ankles?
ANo, he just asked me if I’d like to touch it.
QAnd you said ‘no’, what did you do after that?
AI just turned around and went to watch TV. (my emphasis)
QWhat did [the accused] do?
AHe pulled back his pants and I don’t know what he did after that.[46]
[46] T. p 75.
The complainant was again cross-examined about statements that she had made to the police. She agreed that, after she had made statements to the police about the alleged sexual misconduct of the accused, she was asked by police whether there were any other matters. On each occasion she had said, ‘no that’s it’.[47]
[47] T. p 99 - 100.
She was then asked:
QDo you agree with me that you never told [the police officer Brevet Sgt Karen Brumpton] about anything happening near the fridge?
AI told her.
QWasn’t the first person you told Mr Trevarrow or Rob last Friday about [the accused] showing you his private parts near the fridge?
AYes. (my emphasis)
QIs that because you just thought of it last week?
AYes.
QI suggest that [the accused] didn’t show you his private parts as you have told the court; do you agree with that?
ANo, he has.
QBut you saw them when he got out of the spa, didn’t you?
ASorry? I don’t get the question….
QCan I just ask you this: Did [the accused] have an injury to one of his legs that you knew of?
AI don’t know.
QAre you sure you saw him kneel?
AI don’t know if he did or not.[48]
·Count 4
[48] T. p 108 - 109.
The complainant deposed that the accused had shown her a sperm.
She was asked:
QAnd what house was that?
AThat was at Heathfield.
QDo you remember when it was that he showed you a sperm?
AI think it was maybe a couple of weeks before he put his finger in my private.
QCan you tell me what you were doing immediately before [the accused] showed you a sperm?
AWe were just sitting in the room, talking.
QAnd what happened?
AAnd then he just asked me ‘would you like to see a sperm?’ and I said ‘no’.
QWhat happened after you said ‘no’?
AThen he pulled down his pants and put them on the floor and showed me a sperm.
QCan you tell me what he did, if anything, after he took his pants off and put them on the floor?
AThen he just showed me a sperm after that.
QCan you just describe how he showed you a sperm?
AHe was – he was sort of like rubbing.
QWhat was he rubbing?
AHis private.
QAnd where were you when he was doing that?
AOn the side of – like, sort of like the end of the bed.
QAnd how long did he rub his private for?
AAbout two minutes.
QAnd what’s the next thing you remember, can you tell me?
AThen I ran to my room.
Q… can you tell me how you saw a sperm?
AIt sort of like came out and then I didn’t see what happened afterwards.
QDid you see where it came from?
ANo.
QDid you see what came out?
ANot really.
QCan you describe what you saw that came out?
AIt was sort of like liquid.
QWhat did [the accused] do, if anything after you went to your room?
AI don’t actually know because I shut the door and I got a blanket and I put it over me.
QWhy did you do that?
AThen I waited and he came into my room and said ‘come outside’.
QAnd what, if anything, did [the accused] say when you went outside?
AHe said – I said ‘look you have to tell mum’ and he said ‘no’ and I said ‘well, if you don’t, I will’…
QHow did you feel when you were in [the accused’s] bedroom and he showed you a sperm?
AI felt really disgusted.
QWhen you went outside with [the accused], how long were you outside having a chat to him for?
AProbably 15 to 20 minutes….
She was cross-examined about this alleged event, and asked:
QYou said that you’ve told the court that something happened when your mum was in Perth; is that right?
AYes.
QDid you tell your mum when she came back from Perth? (my emphasis)
ANo.
QWhy not?
ABecause I thought it shouldn’t come out of my mouth because I did nothing wrong.
QDid you ever tell your mum before you went to Queensland?
ANo.
QWhen you say it shouldn’t come out of your mouth, are you referring there to what happened on the lounge or are you referring to the incident with the sperm.
AI am referring to both.
QYou told his Honour or the court, about the sperm, that you said to [the accused] that if you don’t tell mum, I’m telling her didn’t you.
AYep.
QDid you tell mum?
ANo.
QWhy not?
AWell, for the same reason, it wasn’t my mistake.
QNow when you say it’s not your mistake, on the occasion that you saw the sperm, is it true to say that at your house at Heathfield you could walk into the bedroom of your mum and [the accused] at any time?
AYeah.
QThere was not lock on the door, was there?
AYes, there was a lock on the door…
QA latch or a lock.
AA lock.
QWas it ever locked?
ASometimes at night it would be locked.
QBut generally speaking you could walk in at any time; is that right?
AYes, yep.
QDid you walk into your mum’s room and see [the accused] sitting on the bed, when your mum wasn’t there?
AYes.
QAnd was that the occasion when you saw the sperm?
AYes.
QAnd as you walked in did you see the sperm?
ANo.
QAfter you saw the sperm did [the accused] say ‘I’m sorry, I’m sorry’?
AYes.[49]
QAnd what did you say, when he said ‘I’m sorry, I’m sorry straight away, didn’t he.
AYes … I said nothing.
QWell didn’t you say ‘no it is too gross’ or something like that.
ANo.
QYou sure about that.
AYes.
QDidn’t you say ‘what is it’?
ANo.
[49] T. p 71 - 73 and 94 - 96.
The complainant was cross-examined about statements she had made to the police in June 2012. She was asked if she told the police officer that she had said to the accused ‘no it is too gross’. She said that she didn’t really remember.
The complainant conceded that she did not tell the police about this ‘sperm’ incident until some months after being first interviewed by the police.
On that occasion she said that she had spoken to her father ‘because I felt the need to tell someone because I could not hold it in much longer’. She said ‘I need to tell you something else that the [accused] said to me’.
She told her father that this event had occurred before the events in Counts 5 and 6.[50]
[50] T. p 65.
Detective Brevet Sergeant Brumpton deposed that the complainant had raised with her the ‘sperm allegations’ for the first time on 13 November 2012. She said that the complainant had told her that she had seen a sperm. Ms Brumpton had asked her:
‘Now, when that happened did [the accused] say anything’, and the complainant said ‘he just said ‘oh, I’m sorry, I’m sorry’, and she said ‘No, it’s too gross’, then I ran into my room.[51]
[51] T. p 160.
She had told her father that before the two events involving the finger in the private parts there was the event when the accused had asked her ‘would you like to see a sperm’.[52] The allegations were reported to the police in 2013.
·Count 5
[52] T. p 65.
The complainant was asked about whether there was any other occasion that the accused had touched her to make her feel uncomfortable. She said:
AWell this was when my mum was in Perth and we were sitting down on the couch and really he did the same thing, except that he didn’t put me over his shoulders, he just slammed me on the couch and that time he didn’t have a pillow on my back, he was just holding his hand on my back.
QWhat did he do?
AHe did the exact same thing, [as in Count 6] he pulled my pants down and put his finger in my private.
QJust go back a little bit: what were you wearing that time?
AI was wearing the same pyjamas.
QWere you wearing knickers under your pyjamas?
ANo … we were watching the TV and we were watching The Voice and then he put me on the couch with his hand on my back and pulled my pants down.
QHow long after the first time did the second one happen?
AOnly a couple of days…
QWhen that happened did [the accused] say anything to you?
ANo. After that happened I ran out of the room and I just slammed the door on my room, I didn’t really want to come out?
QDid you say anything to [the accused] at the time he did that?
ANo, I said – all I said was ‘stop, stop please’.
QThe second time you’ve described, can you tell me, was that the same or different from the time before when he touched your privates? (my emphasis)
AHe didn’t actually go like right in, he just – like it wasn’t like right in. But they were both different times…
QCan you tell me how the second time that [the accused] touched you differed from the first time?
AHe didn’t put a pillow on my back … I said ‘stop, stop’, I said it three times and then he sort of let go, and then I ran into my room.
QOkay. Thank you for that. Just in particular to [the accused] touching your privates, just on that bit alone, can you tell me, was it the same or different from the time before?
AIt was the same but different … so it didn’t go right in, it only like – yeah didn’t go right in…
QCan you tell me on the second time about when he touched your privates, what he actually did?
AWell, he put – he put his hand on my back and he really did the same, he just pulled my pants down and put his finger in, but it didn’t actually go like right in.
QHow long was his finger on your privates?
AReally the same, one to four seconds… (my emphasis)
QSo the second time, can you tell me where [the accused] was when he did this?
AHe was on the floor.
QWhat position on the couch were you?
AI was on the same position as the first event.
QSo you are on your tummy?
AYep on my stomach.
QHow did you feel when [the accused] did that on that occasion?
AI felt angry and I felt hurt.
QYou went to your room afterwards is that what you said?
AYep.[53]
·Count 6
[53] T. p 59 - 61.
The complainant deposed that on an occasion at Heathfield the accused had touched her in a way that made her feel uncomfortable. She was asked about that and said:[54]
[54] T. p 55 - 58.
AThe first time was at Heathfield and my mum was home and this was a couple of days before my mum went to Perth for work. We were play fighting and my mum was sitting on the couch next to us and the accused got a pillow and actually put it on my back and so I couldn’t move and he pulled my pants down and he put his finger in my private parts.
QWas mum play fighting?
ANo, she was sitting on the couch.
QAnd do you remember what time of night or day it was?
AIt was night time, after school, I think it was maybe 6 or 7; it was dark outside.
QDo you remember what you were wearing at that time?
AI was wearing long pyjamas.
QWas there anyone else at home at that particular time?
ANo, just me, [the accused] and my mum.
QYou said you were play fighting, where were you play fighting?
AJust on the couch…
QHow did you get onto the couch, can you tell me?
AHe actually lifted me up and put me over his shoulders and then he slammed me on the couch and put a pillow on my back.
QWhere was mum at that time?
AShe was sitting on the couch.
QThe same couch that you were put onto?
AYep. So it is sort of like, like of sort of in the shape of an ‘L’…
QWere your feet or your head towards mum?
AMy feet were towards mum.
QWhen you got put on the couch, describe how you landed?
AHe actually slammed me on the couch and he got a pillow from the couch and sort of held it on my back, so I couldn’t move…
QWere you on your tummy or on your back on the couch?
AMy stomach.
QWhere was [the accused] when he did this?
AHe was kneeling down, near the side of the couch.
QHow big is the couch?
AIt’s not very big. It’s just maybe about – I don’t recall exactly how long it was but it was probably my size one way and my size the other way, a little bit longer.
QCan you tell me what happened then?
AAfter he put a cushion on my back, he pulled my pants down and put his finger in my private parts.
QWhen you said your pants were pulled down, how far did they go down?
ARight about to my knees.
QYou said he put his finger into your privates, do you know the name for your privates?
ANo, I just call them ‘privates’.
QWhen he did that, what did you do?
AI screamed, and then my mother jumped up and said ‘stop, that’s not appropriate’.
QAnd what did you do, if anything, then?
AI was sort of kicking and screaming, and then and then after mum said that that is not appropriate he, like, took his finger out and I pulled my pants up and then I left.
QCan you tell me how long he had his finger in your privates for?
AAbout one to three, one to four seconds.
QHow did you feel when [the accused] did that?
AIt real – it really hurt.
QWhat did you do after your mum said that to [the accused]?
AHe pulled his finger out and I pulled my pyjama pants up and I left.
QWere you wearing knickers under your pyjamas that night?
ANo.
QAfter your mum told [the accused] ‘that’s not appropriate’ did he say anything?
ANo. He didn’t say ‘sorry’. He didn’t say anything.
QWhen he put his finger in your privates did he say anything to you?
ANup.
QDo you know what grade in school you were when that happened?
AI was either – it was near year 3 to go into year 4.
When she was cross-examined about this she agreed that the accused had given her a ‘Firemen’s lift and dumped her on the lounge’.[55] She was asked:
[55] T. p 91.
QAnd had you been playing before that with your mother as well?
AI don’t think so.
QAnd you wore underpants under your pyjamas?
ASometimes.
QDidn’t you wear underpants all the time under your pyjamas?
ANot all the time.
QWell when you had this occasion you’ve described where mum was on the couch with you – and [the accused] I think you used the ‘slam’ but do you agree ‘dump’ is a good word too -
AYes.
Qyou were wearing your underpants then, weren’t you, under your pyjamas?
ANo. No, I wasn’t.
QAre you sure about that. Why wouldn’t you be wearing underpants on the night when you might other nights?
AI don’t know…
QYou gave the time of about a week before you went to Q ueensland, is that right?
AYes.
QAre you sure it was only a week, that your mum was sitting on the couch and you brought your guitar home?
AYes.
QIt wasn’t months before that you had this play fight and your mum was sitting on the couch.
ANo…
QAnd is it correct to say that when you spoke to the police you called what [the accused] did ‘a little poke’.
AYes…
QWas that over your undies?
ANo.
QWas in the area of your bottom? (my emphasis)
AYes.
QAnd in terms of you being flat on your back, was it between your cheeks, of your bottom?
AYes.
QAnd your mum was sitting there when [the accused] did that?
AYes.
QDid she tell you both off, both you and [the accused]?
AI think so … well I think she might have told me off before that, when we were play fighting.
QDid she say ‘enough of the poking’, or something like that?
ANo.
QDid the accused say ‘we’re just mucking around’.
AI don’t remember.
QAnd did you then sit down and watch television or watch a movie after that?
AI went to my room and then I came back out.
QDid you sit down and watch movies?
AYes.
QDid you tell [a police officer] that this incident, when you with [the accused], were watching movies with your mother and [the accused] and this incident happened that it was on your last day at home with your mum and [the accused] before you went to your father’s.
AYes…
She was asked whether she had told her grandmother that the accused had told her that her father was a bad father.
AI told my nanna that [the accused] had said that my dad was like, he called my dad bad and he wasn’t a good father.
QWhy did you tell her that?
ABecause-well, I thought nanna should know because that’s her son he was talking about…
QYou said that the accused would walk around with his jocks on, is that right?
AYes.
QWere they loose jocks or tight jocks?
AI don’t know.
QDid they fit around his legs or were they loose around the legs like shorts, can you say?
AI think they were tight. I’m just having a guess but I don’t know.
QYou would pull his jocks down, wouldn’t you?
ANo.
QDidn’t you go up behind him and pull his jocks down and laugh?
ANo.
QDidn’t you do that all the time?
ANo.
QDidn’t you poke him when you had pulled his jocks down?
ANo.
QSorry, did you ever poke him?
ANo.
QDid you ever try and pull your mum’s pants down?
ANo.
QBefore [the accused] dumped you, or slammed was the word you used, on the couch, had you pulled his jocks down?
ANo.
QDid he ever say to you ‘I’ll show you what it feels like, poking’?
AI don’t remember.[56]
[56] T. p 109 - 111.
When she was re-examined the complainant said:
QYou were asked whether you pulled down [the accused’s] jocks. Did you ever do that when you were playing with him?
ANo I don’t – I don’t think so.[57] (my emphasis)
·General cross-examination
[57] T. p 112
When she was cross-examined about the alleged offending generally, the complainant agreed that she loved her young brother and that it was lonely for her at her mother’s place.
She agreed that she had placed on a fridge at the Heathfield property, subsequently, a note to the effect that she loved the accused.
She said that at one stage she did get into trouble with the accused for failing to do her homework but could not remember when that was. She accepted that she had an argument with the accused prior to going to Queensland. After initially suggesting she could not remember the cause of the argument, the complainant conceded that the accused was angry with her because she wouldn’t clean up her room and would not do her homework.[58]
[58] T. p 86.
She said that the accused left the room while she was sitting on the floor screaming and crying. She admitted that she was still upset with the accused for the way in which he had admonished her when she arrived in Queensland and had spoken to her grandmother.
She said that the accused would ‘sort of lift me up and throw me over like the shoulder’. She said that sometimes she’d like that and sometimes it would hurt if he like put me down too hard’.[59]
[59] T. p 91.
She conceded that at that time she would rather had been living with her father than with her mother. She also said that she had been angry as her mother had slapped her across the mouth twice before she had gone to Queensland.
·Discreditable conduct
The prosecution in its opening address had said that the complainant would give evidence that the accused had exposed his penis to her, inviting her to touch it on some occasions.[60] The complainant’s father said that the complainant had told him in November 2014 that the accused had, on multiple occasions had showed her his penis and on occasions had tried to force her to touch his penis.[61]
[60] T. p 45.
[61] T. p 125 - 126.
When the complainant was asked, in chief, whether there had been occasions, other than the charged acts, when the accused had shown her his penis, she deposed that there were no such uncharged acts.[62]
[62] T. p 75.
This was contrary to the prosecution opening, as properly conceded by counsel for the prosecution in his final address.[63]
[63] T. p 167 and 173.
She was then asked if there was anything else that made her uncomfortable. She said that sometimes when the accused would pick her up from school and while they were at Unley, he would ask her ‘Do you like any swear words’?[64] She said it happened many times, with the accused saying ‘I’ll teach you a couple’ and then he said the ‘f’ word and what it meant and the ‘s h’ word. She said this occurred twice or three times in a fortnight.
[64] T. p 75 - 76.
When cross-examined she was asked:[65]
[65] T. p 100.
QIs there any reason why you didn’t say anything about that when you spoke to the police [in 2012]?
AWell, I couldn’t really hold it in any longer, so – and I need to, you know, tell [Ms Brumpton] when she asked me.
QHad you told anyone before you told [Ms Brumpton] about the swear words?
AI told my mum. And that’s all.
QWhen did you tell your mum?
AI think it was a couple of weeks or a couple of months before I told [Ms Brumpton].
QWhy did you think you had to hold in the swear words?
AWell, I just didn’t really want to tell anybody because like, I thought, well, you know it’s not going to really matter or anything, but.
She said that she could not now remember the accused picking her up from [a previous school].
Q… when [the accused] picked you up from [that school], did you ask him what particular words meant, like the ‘f’ word and the ‘s-h’ word.
AI don’t remember.
QAre they the sort of words that you heard in the school yard?
ANo.
QI suggest that you asked [the accused] about swear words and he told you they were bad words, didn’t he.
ANo. I never asked him.
QDid he tell you they were bad words?
AYes.
QDid he tell you that your parents would be very disappointed if they heard you use them?
AI don’t know.
QWell did you ever use them?
ANo.
QIs that because [the accused] told you not to.
AYes.
In my opinion there is no admissible ‘discreditable conduct’. I ignore the evidence called by the prosecution, save for its relevance to the accused’s case that the complainant was neither credible nor reliable as a witness.
Complaint evidence
·The complainant
The complainant deposed that the first person she told about what had happened between the accused and herself was her paternal grandmother ‘R C’ at Gympie in Queensland.[66] She deposed that she was outside on the front porch and said to her grandmother that she’d like to talk to her for a second. She said she ‘told her about the two events that he put his finger in my privates. That’s all I told my nanna’.[67] (my emphasis)
·The complainant’s grandmother ‘R C’
[66] T. p 61.
[67] T. p 63.
The Prosecution called the complainant’s grandmother ‘R C’. She deposed that she sometimes sees the complainant a couple of times per year. She said that the last occasion that she had the complainant stay with her was from about 24 June 2012 for two and half weeks during the school holidays.
She said that she spoke to the complainant in her bedroom. She was asked what the complainant had told her. She said:
AI sat on her bed and she said to me then that [the accused], sometimes they mucked around and they called it rough play, and he would pick her up and throw her on the couch, and the last time that that happened, that he picked her up, threw her on the couch, her face was down, he put a cushion over her head and pulled her pyjama pants down and touched her private parts. (my emphasis)
QDid she say when this happened?
AShe didn’t tell me the date.
QDid she say what she did when that happened?
AShe said she screamed because it hurt.
QDid she say anything about if anyone else was home at the time?
AShe said her mother was in the kitchen. (my emphasis)
QWhen did she leave Queensland?
AOn 10 July 2012 … to go back to Adelaide.
When cross-examined, ‘R C’ was asked about a conversation with the complainant which had occurred a few days after the initial complaint. She was asked whether the complainant had told her what the accused had done while her mother was in Perth for two days.
The complainant had described an incident, however it was plainly not the alleged event the subject of Count 5.
She said the complainant told her that the accused had grabbed her by the pyjama top and lifted her because he wanted her to clean her room and stop crying, and that she had pulled away and fallen against her desk in the bedroom. She said that she had observed a bruise on her arm.
She also said that during that visit, the complainant had mentioned that she wanted to spend more time with her father. She had mentioned a split of six days with her mother and eight days with her father over a fortnight period. ‘R C’ said that she had sent a text to her son indicating that the complainant was unhappy and was crying.
The other witnesses
·The complainant’s father ‘N C’
‘N C’ said that he spoke to the complainant upon her return to Adelaide on 10 July 2012. In consequence of that conversation, which I find was not an elaboration of the initial complaint to ‘R C’, he reported this to the police, and the complainant was interviewed by the police on 13 July 2012. It is trite that the mere report to the police does not demonstrate consistency by the complainant.[68]
[68] R v A, G P [2012] SASCFC 81 at [20] - [23].
He deposed that some months later when he returned from the United States on 12th November 2012, the complainant asked to speak to him. She had told him that the accused had on multiple occasions shown the complainant his penis and on occasions had ‘tried to force the complainant to touch his penis’.[69]
[69] T. p 126.
She had told him that on one of those occasions, the accused had tried to show her his sperm – without saying the word ‘sperm’.
He had reported that to the police and the complainant was re-interviewed on 13 November 2012. When cross-examined, he gave evidence as to the custody arrangements, and the fact that the complainant had expressed a desire to spend more time with him and his family.
·The complainant’s mother ‘M J’
‘M J’ explained that, following the divorce, the custody arrangements for the complainant were flexible but initially involved one week with each parent. She was asked about an event at Heathfield after they moved there in February 2012. She explained that the complainant played the guitar as part of a school subject. She was asked:
QCan I take you back to … an occasion that [the complainant] had played the guitar for you? Can you tell me if anything unusual occurred on that particular occasion?
A[The complaint] played the guitar – I asked her to show us what she had learnt and she played the guitar. We had a play fight and then [the accused] picked up [the complainant] popped her on the lounge and he was on his knees, and then poked her between the buttocks. [The complainant] was upset. She got off the lounge and she went to her room.
QCan I just take you back a bit? Who was home on that particular occasion?
A[The complainant], myself and [the accused].
QWhat time of day was it?
AIt was late in the evening, but I can’t remember the time specifically.
QDo you remember what day of the week it was?
AFriday.
QWhere were you when, did you say the play fight, happened? Where were you when the play fight started?
AI was involved in the play fight initially. (my emphasis)
QHow long did the play fight go on for?
AI don’t know the exact time. Could have been 15, 20 minutes.
QWhere was the play fight?
AIt was in the living area next to the kitchen.
QWas it after dinner, the play fight?
AIt must have been, because we didn’t have dinner afterwards.
QDo you remember what [the complainant] was wearing that night?
AShe was wearing a top, I don’t know whether it was short sleeve or long sleeve, and she was wearing either tracksuit pants or her pyjamas.
QYou said [the complainant] was, did you say, put on the lounge?
AYes.
QCan you describe how that happened?
A[The accused] picked up [the complainant] and put her on the lounge, facedown….
QSo when [the complainant] was put on the lounge facedown was her feet or head closest to you?
AHer feet.
QYou said that [the accused] was kneeling?
AThat’s right.
QCan you just tell me whereabouts he was kneeling in relation to [the complainant]?
AIn the middle of her body, if that makes sense.
QAfter [the accused] put [the complainant] on the lounge facedown what’s the next thing that you remember happening?
AHe poked her.
QAt that stage, can you say anything about what she was wearing?
AHe pulled her pants down.
QAre you able to say how far he pulled her pants down?
AI think it was only a little bit, it wasn’t – I don’t remember it being to her knees or anything like that.
QYou said he poked her; can you just describe exactly what you saw?
AA one finger poke, so it was one finger, it was quick, it was between the cheeks, but I cannot ascertain what force was used. (my emphasis)
QWhat happened, if anything, when he did that?
A[The complainant] got upset, he let go and then she went to her room.
QAfter you saw that happen, did you say anything to [the accused]?
AI think I said ‘I have enough of the poking’ or words to that affect, I was quite cross, and he then said ‘we were just mucking around’ or playing or something like that.
QWhen [the complainant] left the lounge room how was she. How did she appear?
AShe was upset.[70]
[70] T. p 139 - 141.
‘M J’ said that her employment required occasional overnight stays away from home. She explained that she went to Western Australia in the week of the 18th of June 2012, and was away for one night.
When cross-examined, she explained that the accused had been unemployed for certain periods, however he had been employed from about 13 July 2012 until his arrest on 8 August 2012, as well as other periods during 2012 on various projects.
She explained that there were some financial problems and that she wanted a more equal financial input from the complainant’s father. She said that it was getting more and more difficult in 2012, because of the complainant’s extracurricular activities, and the accused being out of work.
She explained that there had been some ‘poking’ going on in the household before they had moved to Heathfield. She did warn the complainant that it was not appropriate behaviour. ‘M J’ said that she was getting quite fed up with it, and didn’t like it being done to herself. She said that she had also told the accused that she didn’t like it being down to herself. She had tried to stop it.
She was asked:
QCan you describe what you’re talking about in relation to the poking, what would happen?
AEither [the complainant] or [the accused] would come up and just quickly poke. I don’t know sort of force was used. To me it was done very quickly, there was no penetration. I just didn’t like it.[71]
[71] T. p 143.
Q
Is it correct to say that [the complainant] would pull [the accused’s] underwear down?
This is the poking that you’d said you had enough of.
AOn occasions.
QIt is the case that [the accused] would walk around the house in his underpants?
AYes.
QAnd she would pull his jocks down from behind and laugh? (my emphasis)
AYes.
QIt would expose his buttocks.
AYes.
QYou had seen her do this on several occasions, is that right?
AYes.
QAnd it had commenced when you were at Unley.
AI don’t know when it commenced. I cannot remember where it all started.
QNo. Is it the case that [the complainant] would do this, for example, when [the accused] was pre-occupied doing something like the dishes?
AYes.
QAnd she would pull down his underpants and poke him in the buttocks area? (my emphasis)
AYes, but it wasn’t a regular occurrence.
QShe would laugh and think it was funny?
AYes.
QYou told her off.
AYes…
Q[The accused] would also tell her not to do it.
AYes.
QWas it the case in relation to your observations you thought it was – I’ll just be clear about that. You’ve described the incident today when [the complainant] was on the couch next to you, correct.
AYes.
QAnd is it the case that at the time you, it appeared to you, that it was playing. (my emphasis)
AYes.
QAnd you didn’t think anything of it as being of a sexual nature.
ANo, that’s right…
QAnd was it some months before you first learned in July 2012 of an allegation by [the complainant].
AYes.
QAnd is it fair to say from your observation, up until [the complainant] went to Queensland, that [the accused] and [the complainant] appeared to have a good relationship.
AThere was a relationship but I wouldn’t say it was good.
QDid she sit on his lap in company?
AYes, she would…
QDid [the accused] give [the complainant] what he would call firemen’s lifts?
AYes…
QAnd dump her on the couch.
AYes.
QDump her on the bed.
AYes.
QAnd would she say to him some nights ‘I won’t go to bed until I get a Fireman’s lift’.
AYes.
QI think that there was a spa at your place, in the bathroom, the ensuite.
AAt Heathfield.
QAt Heathfield.
AYes.
QWould you, [the complainant] and [the accused] have spas together from time to time.
AYes.
QAnd was it the case that it was like a bath in which you would have spa.
AYes.
QSo the three of you would basically have a bath together.
AYes.
QAnd you were all naked in the bath, I take it.
AYes.
QIt is fair to say that you were, you and [the accused] were fairly liberal about nudity in some respects…
ANot with [the complainant] we don’t…
QSo in relation to and as part of that would you get undressed in front of [the complainant] for example?
AI would, yes.
QAnd when you said [the complainant] had either tracksuits or pyjamas on, she would wear underpants under her jammies, usually.
ASometimes yes, sometimes no.
QOn this particular night, from what you could see, she had underpants under her pants.
AYes.
QWhen I say ‘this particular night’ I mean the occasion on the lounge that you told the court about.
AYes.[72]
[72] T. p 145 - 153.
She agreed that if the accused got angry with the complainant he would show her the ‘wooden spoon’ and she would get upset. She found out sometime after returning from Perth that the accused had been angry with the complainant for not doing her homework and refusing to clean her room. ‘M J’ explained that the door to her bedroom was normally left open and the complainant would come in whenever she wished to. She also explained that the accused had told her that the complainant had walked in on him whilst he was masturbating.
·Evidence of Detective Brevet Sergeant Karen Brumpton
This witness was presented by the Prosecution for cross-examination. She confirmed that the accused had no prior convictions for any offending. She had interviewed the complainant on three occasions namely 13 July 2012, 13 November 2012 and 20 June 2013, in addition to two proofings, the last of which occurred on the Friday before trial.
She said that on 13 November 2012, the complainant was asked if the accused had said anything on the occasion when she had seen a ‘sperm’ in the bedroom. She replied that the accused had said:
‘Oh, I’m sorry, I’m sorry’, and I said ‘no, it’s too gross’, and then I ran into my room.[73]
[73] T. p 160.
Ms Brumpton was asked about the complainant’s allegations that the accused had spots on his penis, which were made to her in the interview of 13 November 2012. She conceded that the accused had volunteered to have a medical examination but the Prosecution decided not to go ahead with that examination, and the complainant had later withdrawn the allegation.
The Defence case
·Testimonial evidence
By the consent of the parties’, statutory declarations by Stewart Zanotti[74] and Simon McLoughlin[75] were tendered on the basis that that was the evidence that they would have given, had they been called and had given oral evidence. In their respective statutory declarations, each declared that they had known the accused for a considerable period, that he was of previous good character; and that in his community, he was regarded highly as a person of good character.
·The accused
[74] Exhibit D2
[75] Exhibit D3
The accused elected not to give evidence at the trial. I have drawn no inference adverse to the accused in consequence of him exercising his right to silence.
·Corroboration
It is trite that whether a piece of evidence is capable of amounting to corroboration must be determined having regard to the issues in the trial. In R v E, D J[76] Kourakis J noted that ‘the corroborative nature of an item of evidence is not lost merely because the accused confesses and avoids it.’
[76] [2012] SASCFC 137 at [117]-[120]
However mere presence or opportunity is not, of itself, enough for corroboration. It is, of course unsurprising that many alleged acts of sexual misconduct are not corroborated. It is the nature of such an offence. Generally the absence of corroboration would not lead to any direction. However in the circumstances of this case, as I will explain, I direct myself that I must scrutinise the evidence of the complainant, as to Counts 1, 2, 3 and 5, with particular care.
Submissions of counsel
I have taken into account the whole of the submissions made by both counsel. I do not propose to fully detail each submission, but will merely set out a synopsis of some of the points made by them.
·The Prosecution
Mr Trevarrow, counsel for the prosecution, conceded that there was no evidence from the complainant as to ‘the uncharged acts’ which had been referred to in the opening.[77]
[77] T. p 167.
He turned then to the evidence of the complainant in respect of Counts 5 and 6 on the Information. He submitted that the court ought conclude that the event in Count 5 had occurred on 18 June 2012, as this had been identified as the date that her mother was in Perth. He submitted that the court ought conclude that the event in Count 6 had occurred ‘a couple of days’ before the event in Count 5.[78] He submitted that the court ought accept the complainant’s evidence on Count 6, and find that the accused had placed his finger in ‘her privates’ for one to four seconds, and that it was only after the complainant’s mother had yelled at the accused that he pulled his finger out. He submitted that this was ‘strong evidence’ that there was penetration in relation to the accused’s finger going into the complainant’s vagina. That submission was premised upon a finding that the complainant was referring to her vagina, and not the cheeks of her bottom as she had explained when cross-examined.
[78] T. p 59 and 168.
He conceded that ‘M J’ had described the act as a quick poke with one finger between the cheeks of her buttocks.
He submitted, that if the court was not satisfied that the accused’s finger went into the complainant’s vagina, the court to conclude that the alternative charge of aggravated indecent assault was open pursuant to s 75 of the Criminal Law Consolidation Act 1935.[79]
[79] See R v M, J J and R v C, J N [2013] SASCFC 51
He submitted that the act ought not be treated as ‘non sexual’, and asked rhetorically, that if the accused was just play fighting, why did he pull down her pants. He invited a finding that the accused had a sexual attraction towards the complainant.
He then turned to Count 5 on the Information, and repeated that the court ought to accept that it occurred while the complainant’s mother was in Perth. He submitted that the court ought accept the complainant’s evidence, again premised upon ‘privates’ meaning vagina, and that the accused had touched her on the vagina. Turning to Counts 1 and 2 on the Information, he submitted that the court ought be satisfied that both offences occurred at Unley prior to February 2012.
Mr Trevarrow then turned to the allegations in Count 3 on the Information, namely the ‘fridge incident’ at Heathfield; when the accused had, on this sole occasion, invited the complainant to touch his penis. He referred to the evidence of the complainant’s father to the effect that the complainant had disclosed to him for the first time on 12 November 2012 that the accused had ‘on multiple occasions showed his penis to her and that one occasions had tried to force her to touch it.’
Even though the complainant had not identified the ‘fridge incident’ specifically, in that conversation he submitted that the evidence showed consistency.
I have concluded that that evidence of the complainant’s father was not admissible as ‘an initial’ complaint. The difficulty with the submission of Mr Trevarrow as to Count 3 is that the complainant admitted, under cross-examination that the first occasion that she had told anyone that the incident in Count 3 had occurred near the fridge in the kitchen, was on the Friday before the trial, when she happened to remember it.
Mr Trevarrow then turned finally to Count 4. He submitted that the court ought not accept, as a reasonable possibility, that the accused was simply masturbating at a time when the complainant happened to walk in. He submitted that the accused’s statement to that effect, later made to ‘M J’, was self-serving. He submitted that the court ought to conclude that it was fanciful in light of the complainant’s evidence that the accused had asked her, ‘do you want to see a ‘sperm’, before pulling down his jocks.
He turned to evidence given by the complainant that the accused had taught her swear words. He submitted that this evidence must be weighed together with that of the acts of exposing his penis. He submitted that the accused was grooming the complainant for the more serious offending, in Counts 5 and 6 on the Information.
Mr Trevarrow conceded that there had been some inconsistencies in the complainant’s evidence, particularly as to whether she had poked the accused, or been naked in the spa.
He submitted that the court ought conclude that she was ‘an excellent, honest witness, and considering her age, a most articulate young lady’. He submitted that she had given evidence in a straight forward manner, and was both honest and reliable. He submitted that she didn’t try to bolster her evidence.[80] He conceded that the complainant’s mother, ‘M J’, despite being still married to the accused, had given honest and reliable evidence as to what had occurred in respect of Count 6.
[80] T. p 181.
He submitted that the complainant did not fabricate her evidence nor was it the consequence of any invention so that she could move away from her mother and live with her brother and father. He made that submission[81] in anticipation of such a submission from counsel for the accused.
[81] T. p 182.
He invited the court to return verdicts of guilty on each of the six counts.
·The accused
Counsel for the accused Mrs Shaw, commenced by referring to the recent decision of the High Court of Australia in Douglass v R[82] that the onus of proof upon the Crown of establishing each charge separately beyond reasonable doubt is an exacting standard whether or not the principal prosecution witness is a child or someone of mature age.
[82] (2012) HCA 34.
She referred to the submission by counsel for the prosecution that the complainant had no motive to lie. She submitted that in a trial before a jury, such a submission ought not be entertained. She referred to the case of R v Hewitt.[83]
[83] (1998) 4 VR 862.
The reason why it ought not be made before a jury is that a jury might be distracted from the sole issue of whether the prosecution has proved the charge beyond reasonable doubt. I will not be so distracted.
In her submissions Mrs Shaw referred to various matters which may have provided a motive for the complainant to at least embellish her evidence. In particular, in the very week before she had travelled to Queensland, she had been admonished by the accused; and her mother had not acceded to her wish that she spend more time with her father. These were the principal matters which were raised by her with her grandmother.
A motive to lie is highly relevant to credibility of the complainant, and I will consider the motive suggested by Mrs Shaw.[84]
[84] See R v Sluczanowski (2008) 256 LSJS 277,
However the accused does not have to prove anything.
I remind myself, that it is the prosecution which bears the onus of establishing that the complainant gave a truthful and reliable account of the events.
The accused could not possibly know what was going in the mind of the complainant. The complainant’s evidence gains no credibility from the absence of a proved motive to lie.[85]
[85] R v Smith (2003) SASCFC 128 at paragraphs [10] - [15].
Mrs Shaw submitted that in light of the complainant’s age, the absence of any independent support for her evidence particularly in respect of Counts 1, 2, 3 and 5; the back drop of tension in the family; the complainant’s desire to spend more time with her father; and the conflict between the complainant’s version and that of her mother in respect of Count 6, the court ought scrutinise her evidence with particular care.
Mrs Shaw submitted that the chronology of events alleged by the complainant was telling against her credibility. She submitted that a starting point is to concentrate upon what had occurred during the visit to her grandmother on 24 June 2012. She submitted that her grandmother ought be accepted on her evidence that the only complaint made was that as to the event on Count 6, and not both Counts 5 and 6, as the complainant had deposed. What was significant was that she did tell her grandmother that the accused had chastised her because he wanted her to clean her room and stop crying. She added a new allegation that she had fallen against her desk in the bedroom. On the complainant’s evidence she had still been upset about being chastised.
She had also told her grandmother that the accused had said that the complainant’s father was ‘a bad dad and he wasn’t a good father’.[86] This was clearly designed to put the accused in a bad light unrelated to the alleged event in Count 6. She was also upset because she had wanted to vary the custody arrangements to spend more time with her father and that had not been arranged.
[86] T. p 109.
In the same vein the complainant had ‘blackened’ her mother, by telling her father, when she returned from Queensland, that her mother had ‘smacked’ her across the mouth. She told police that her mother had smacked her across the mouth twice.[87]
[87] T. p 88.
Mrs Shaw submitted that it was significant that the complainant made no mention that the accused had exposed his penis, until some four months later, in November 2012. Of even greater significance was that she did not mention the ‘fridge incident’ until the Friday before the trial.
She turned to Count 6, and the significance of her mother’s direct evidence. ‘M J’ was seated next to the complainant and the accused on the occasion of the event in Count 6. She had described, what was objectively obvious, namely that it was merely playful interaction between the accused and the complainant with no sexual overtone.
She submitted that the evidence of ‘M J’ was critical to the proper determination of the charges. This was a rare case in respect of which an honest witness, as accepted by the prosecution, had observed what had happened. She also stressed the significance of the repeated denials by the complainant that she had pulled down the accused’s underpants and had poked him in the buttocks previously. This evidence, Mrs Shaw submitted, shatters the complainant’s credibility and reliability, as did her reluctance to admit that the accused and her mother had on occasions been naked in her presence.
She submitted, as to Count 5, that it defied belief that the accused would do the same act, as in Count 6 on the one day that the complainant’s mother had left the State. This, after all, was the very period when she was chastised by the accused for not cleaning her room nor doing her homework.
Mrs Shaw turned to Counts 1 and 2, which had allegedly occurred at Unley. She submitted that it was telling that the complainant had not spoken to anyone about those alleged events until she raised it with her father in November 2012. Mrs Shaw referred to the prosecution opening which had referred to other ‘uncharged events’ involving the accused showing his penis to the complainant. Mrs Shaw contrasted that opening and the evidence of her father on that topic, with the complainant’s evidence in court that there were in fact no other occasions when such events were said to have occurred.
To the same effect, Mrs Shaw referred to the evidence that the complainant had suggested and then withdrawn an allegation about alleged identifying features of the accused’s penis.
In respect of Count 3, Mrs Shaw was critical of the evidence of the complainant. Despite her initial evidence that she had told the police officer about that event, she eventually admitted that the first person to whom she’d referred to it as a ‘fridge incident’ was counsel for the prosecution on the Friday before the trial.
She submitted that the evidence of the other counts, with the exception of Count 4, had arisen out of the blue and were somewhat of an afterthought. They are inherently unlikely events.
As to Count 4, Mrs Shaw submitted that it could not be said to be implausible or unreasonable that the accused was in his room masturbating when the complainant attended. She submitted that in light of what had occurred in relation to Count 6, this was another example of the complainant suggesting an intentional act of indecency in circumstances where the event had occurred accidentally. The complainant had simply walked in on the accused who was immediately embarrassed and apologised. It was telling, she submitted, that the complainant had not mentioned that act to her grandmother while in Queensland, nor to her father until 12 November 2012.
Mrs Shaw submitted that despite the complainant’s obvious intelligence the evidence show that she had embellished non-sexual circumstances so that they are imbued with a sexual connotation, including the rather odd reference to ‘her privates’ and the alleged swearing words. It all must be seen in light of the accused’s prior good character and the family relationship.
Accordingly she submitted that the court ought be left with a reasonable doubt as to the honesty and reliability of the complainant’s account in respect of each count.
She invited the court to return verdicts of not guilty in respect of each count.
Assessment of the evidence of witnesses other than the complainant
·The complainant’s mother ‘M J’
‘M J’ was, in my opinion, a patently truthful witness and a reliable historian. She presented as a mother who was obviously concerned about the welfare of her daughter. Despite being married to the accused, she did not exhibit any bias towards him as a witness. I accept her evidence, without any reservation, as to the event the subject of Count 6. Where her evidence conflicts with that of the complainant, I accept the evidence of ‘M J’, rather than the complainant.
·The complainant’s grandmother
I have no doubt that this witness gave an honest and reliable account of the complainant’s discussions with her. She also presented as someone who was concerned about the complainant’s welfare, particularly in light of the tension between the complainant’s mother, and father, the latter being this witness’ son. Where there is any dispute between her version of the discussions and that of the complainant, I accept the evidence of this witness rather than the complainant.
·The complainant’s father
I also have no doubt that this witness was a patently honest. He had obviously been shocked by the allegations, first made by the complainant to his mother in the school holidays which had ended on 10 July 2012.
He was extremely careful when giving evidence not to criticise the complainant’s mother when discussing the disputes as to custody.
He was otherwise not able to assist the court as to any of the alleged events in respect of the counts on the Information, as he was not present on any of those occasions.
I infer that he had not seen anything before 10 July 2012 to indicate any suggestion of sexual abuse. He would have acted immediately if he had thought that there had been any such conduct by the accused.
·Detective Sergeant Brumpton
This witness gave evidence as to her interviews with the complainant. She had, as I have already mentioned, conducted her interviews of the child complainant in a very professional manner. She was clearly both honest and reliable, and I accept her evidence without reservation.
·Assessment of the evidence of the complainant
I observed the manner in which the complainant gave her evidence, and in particular her reactions when cross-examined.
She gave her evidence in a clear, pleasant and mature manner, especially having regard to her age.
On some occasions she was reluctant to admit matters which she undoubtedly thought may have reflected poorly upon her, including the sharing of the spa, and her denial of engaging in ‘poking’ others.
There was no dispute that she was angry with the accused for chastising her in the week leading up to her speaking to her grandmother. There is no doubt that she was angry with her mother at the same time for not acceding to her request that she spend more time with her father.
The defence suggested that the complainant may have fabricated her allegations against the accused for this reason.
I make it plain that I do not accept that the complainant gave a consciously false account of these events. I have no doubt that, at the time she complained to her grandmother, she had not intended to convey any allegation of sexual misconduct.
She was in fact complaining about being punished by the accused, unfairly, and not being allowed to spend more time with her father.
This had however developed a life of its own by the time the matter was referred to the police. The complainant is as I have said, highly intelligent. She would clearly have been alerted to possible sexual overtones. While, as I have directed myself, a delay in making a complaint, is not of itself probative of lack of credibility, it explains why no mention of Counts 1 – 4 inclusive was made until 12 November 2012.
I have no doubt that she has unwittingly embellished her evidence to place some events in a different context. For present purposes it is sufficient to record that I find that, despite her evidence to the contrary, the complainant only mentioned the event the subject of Count 6, in her initial complaint to her grandmother.
Discussion and verdict on each count
I have set out a synopsis of the evidence on each count on the Information.
I have also summarised the main points from the respective submissions of counsel.
I remind myself that the evidence is admissible on all counts, and is available in considering the complainant’s credibility and reliability as a whole.[88]
[88] See R v Lapins [2007] SASC 281 at [52] and R v Brady [2014] SASCFC 7.
I also remind myself that each count must be considered separately on its merits.
I propose to turn first to Count 6 and then Count 4 on the Information. I do so as there was some corroboration for the complainant’s evidence on each of those counts. It is convenient to deal first with Count 6, because that count included the direct evidence of the complainant’s mother; and on my findings, it was the only count mentioned by the complainant in her initial complaint to her grandmother.
·Count 6
There is no doubt that the event, the subject of Count 6 did occur. That much is plain from the evidence of the complainant’s mother.
The prosecution case was opened on the basis that the accused had intentionally engaged in sexual misconduct by deliberately inserting his finger into the complainant’s vagina.
As I have explained I accept without reservation the evidence of the complainant’s mother ‘M J’, wherever it conflicts with that of the complainant.
I have no doubt that the subject act was part of the play fighting between the accused and the complainant, as observed by ‘M J’, who was seated next to them. While I readily accept the submission of counsel for the DPP that it was odd that the accused had pulled down the complainant’s underpants before ‘poking’ her with his finger, it defies belief that the accused would intentionally sexually assault the complainant, in the manner alleged by her, while sitting so close to ‘M J’.
I am left in no doubt that this was not a ‘sex act’. It was a quick ‘poke’ with one finger which was part of a ‘play fight’, and something which had occurred between the two of them on many previous occasions.
It is not for the court to comment on the wisdom of an adult engaging in such conduct. This is not a court of morals. It was best described as ‘highly inappropriate’.
I refer briefly to the allegation that the accused had inserted his finger into her vagina. The complainant referred at all times, including to her grandmother, to the finger being inserted into her ‘privates’. When she was cross-examined, she explained that the finger was inserted into the ‘cheeks of her bottom’.
I find as a positive matter of fact that the accused’s finger was not inserted into the complainant’s vagina.
There is no doubt that the complainant felt pain from the ‘poking’.
When seen in this light there is no practical difference between the evidence of the complainant and her mother.
Further in my opinion, her presentation to her grandmother is consistent with her mother’s evidence. I repeat that the complainant was referring to events in which she had been hurt, – not sexual misconduct. She was complaining about the accused’s conduct in chastising her for not cleaning up her room; for him criticising her father as a ‘bad dad’; for the pain suffered in the poking incident and being ‘thrown’ on the couch.
It is only subsequently that she is asked to reflect upon ‘sexual misconduct’ that she details her account of events alleged to have occurred in Counts 1 to 5 inclusive.
I am not satisfied by the prosecution as to Count 6 on the Information. Indeed, I am satisfied that the offence as charged did not occur. I am satisfied that the accused did ‘poke’ the complainant’s buttocks in the manner described by ‘M J’.
It was part of an ill-advised ‘play fight’.
Accordingly I also find the accused not guilty of the alternative charges of indecent assault, and common assault which may otherwise have been available under s 75 of the Criminal law Consolidation Act.
I will enter a verdict of not guilty to Count 6 and to the respective alternative charges.
·Count 4
There is no doubt that the event, the subject of this count, did occur. The complainant has been corroborated by the self-serving statement of the accused to the complainant’s mother.
At issue in respect of this count is the manner in which the act occurred. It is for the prosecution to satisfy me beyond reasonable doubt that the accused intentionally exposed his penis to the complainant, continued to masturbate, and asked her if she would like to see his ‘sperm’.
The prosecution must rebut any reasonable hypothesis consistent with innocence. Counsel for the accused submitted that the prosecution had failed to rebut such a rational hypothesis – namely that the accused was engaged in masturbating himself in his own room when the complainant entered the room without his knowledge.
She submitted this was a reasonable and rational explanation and was consistent with his immediate response which was to apologise and say that he was sorry.
She submitted that once the police became involved, an event which was innocent, even if again inappropriate, sudden changed its flavour to become an allegation of sexual misconduct. She submitted that it was an example of the complainant reflecting upon any event in the past, in that light, and embellishing the circumstances of the event.
While an accused person does not have to prove anything, in my opinion there was nothing inherently implausible in the hypothesis submitted by Mrs Shaw.
I accept the force of Mrs Shaw’s submissions. In my opinion the complainant had unwittingly embellished this event. I am not satisfied beyond reasonable doubt that the accused is guilty of this Count 4. Accordingly I will return a verdict of not guilty to the Count 4 on the Information.
The consequences of my findings on Counts 4 and 6
On each of these counts the complainant’s evidence had been corroborated to some degree.
I do not accept that merely because of my doubts as to the reliability of the complainant’s evidence on Counts 4 and 6 respectively that I ought conclude that I cannot be satisfied beyond reasonable doubt of any of the remaining four counts.[89]
[89] See R v M A S (2013) 118 SASR 160 at [95] - [106].
I turn now to Counts 1, 2, 3 and 5 on the Information. These counts are more problematic. There was no corroboration for any of these counts. The prosecution relies entirely upon the credibility and reliability of the evidence of the complainant.
·Count 5
I find that the prosecution has not proved this count beyond reasonable doubt.
I have set out at length the complainant’s evidence on this count.
On the complainant’s evidence this was in effect a replay, two days later, of the event in Count 6, save that on this occasion the accused ‘slammed’ her on the couch, and his finger did not go right into her ‘privates’. On the complainant’s evidence, this event occurred while her mother was in Perth, on 18 June 2012.
She described how she felt angry and hurt by this conduct.
I have already found that the complainant did not tell her grandmother about this incident, despite it being the last of the alleged events, occurring shortly before she had complained to her grandmother. By contrast she had told her about the accused chastising her, at or about the same time.
I have scrutinised the complainant’s evidence on this count with particular care, having regard to the inconsistencies in the account to her father as to the number of times the accused had tried to force her to touch his penis, and the curious evidence that she had told the police about the accused’s spots on his penis, only to retract it at a later stage.
I have come to the conclusion that this alleged event in Count 5 did not occur at all, and is an embellishment by the complainant.
There will accordingly be a verdict of not guilty to this Count 5.
·Count 3
I have previously referred to the complainant’s evidence with respect to this count. She had deposed that this was the sole occasion, when the accused had exposed his penis and asked her to touch it.
This was inconsistent with what she had told her father on 12 November 2012, namely that the accused had tried to force her to touch his penis on a number of occasions.
She had only identified this event as having occurred near the fridge in the kitchen on the Friday before the trial.
I am satisfied that the complainant, after speaking to the police, and after the accused was arrested, engaged unwittingly in bolstering her account of the accused’s alleged conduct. She engaged in continuing disclosure – the allegations of swear words; the events in Counts 1, 2, 3 and 4 in November 2012; and identifying Count 3 as having occurred in the kitchen shortly before trial. I simply cannot accept the evidence of the complainant on this count beyond reasonable doubt.
Accordingly I will return a verdict of not guilty to this Count 3.
·Counts 1 and 2
I have considered each of these counts separately. In my opinion the complainant’s evidence on each of these counts suffers from the same difficulties as its reliability as in respect of Counts 3 and 5 on the Information.
It is frankly impossible to determine whether the complainant’s evidence on these count was a true memory, or a reconstruction adversely affected by the police investigation.
In my opinion the reservations which I have expressed as to the reliability of the complainant’s evidence on Counts 3 and 5 respectively, ought carry over to my assessment of these remaining counts.
I am not satisfied as to the guilt of the accused on either of Counts 1 and 2.
I will accordingly return verdicts of not guilty to each of the charges in Counts 1 and 2.
Conclusion
For the reasons that I have explained I record the following verdicts:
Count 1 Not Guilty
Count 2 Not Guilty
Count 3 Not Guilty
Count 4 Not Guilty
Count 5 Not Guilty
Count 6 Not Guilty
0