R v M, R J - [2012] SADC 175

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R J
Criminal Trial by Judge Alone
[2012] SADC 175
Reasons for the Verdict of Her Honour Judge Bampton
7 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Unlawful Sexual Intercourse with a Person Under 12 and one count of Unlawful Sexual Intercourse.
Trial by Judge alone.
VERDICT: Accused found not guilty of count one, count two and count three.

R v M, R J
[2012] SADC 175

J alleges, when she was aged between 10 and 13, the accused had sexual intercourse with her on numerous occasions, by inserting his fingers into her vagina.
This offending is alleged to have occurred between 1994 and 1997. During this period J’s father AS was in a relationship with the accused’s mother JM.
The Accused is charged on the Information dated 20 December 2011 with:
Count One:
Unlawful Sexual Intercourse with a person Under 12 (Section 49(1) of the Criminal Law Consolidation Act 1935) (SA) (“the Act”) with J between 9 December 1994 and 7 December 1996.
Count Two:
Unlawful Sexual Intercourse with a person Under 12 (Section 49(1) of the Act) with J between 25 November 1995 and 25 December 1995.
Count Three:
Unlawful Sexual Intercourse (Section 49(3) of the Act) with J between 9 December 1996 and 31 December 1997.
The accused was born 6 August 1977. As he was aged 17 as at 9 December 1994 proceedings in respect of count one were commenced in the Youth Court. Pursuant to s 17 of Young Offenders Act 1993 (SA) the Youth Court committed the accused to the District Court for trial on that charge together with the other two counts of unlawful sexual intercourse.
The accused pleaded not guilty and elected to have the matter dealt with by trial by Judge alone.
Directions
The accused comes to this court with the presumption of innocence in his favour. He is regarded by law as innocent unless and until I find the charge against him proved.
The onus of proving the charges is on the prosecution. The accused does not have any onus of proof and to the extent that a defence is put forward, he does not have to prove it, the prosecution must disprove it.
The prosecution must prove the charge and every element or ingredient of the charges to my satisfaction beyond reasonable doubt. If after full and careful consideration of each charge, I am unable to decide where the truth lies, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty.
Separate Consideration
I must consider each count separately and I must consider only the evidence that relates to each individual count.
Forensic Disadvantage
There was a period of almost 18 years between the first date specified in the Information and the trial of this matter. The delay in the prosecution of the accused has resulted in a disadvantage to him. As such, s 34 CB of the Evidence Act 1929 (SA) applies. The forensic disadvantages are that if there had been an earlier complaint, the accused would have been in a position to remember back to the relevant time and to remember what, if anything, happened or he might have been in a position to remember who he was with so as to produce evidence discounting the evidence of J. For example, he may have been able to produce sports training schedules, Hungry Jack’s work records, evidence about the time he lived with the family of his friend TR.
There may have been an opportunity for the accused to interview potential witnesses, including J’s father about the times J stayed overnight at his family home and for forensic investigations to be undertaken. Although as I have already directed myself, the accused does not have to prove anything.
I have taken these potentially significant forensic disadvantages into account when scrutinising the evidence relied on by the prosecution.
Assessment of the Witnesses
In approaching the evidence of the witnesses, it is for me to decide whether I believe the whole or any part of the evidence of J, the accused or any witness, whether that witness is honest and whether or not they are reliable. I may accept something a witness says but reject other parts. Just because I reject some part of what a witness says, does not necessarily mean that I reject the whole of what the witness says.
Complaint
Pursuant to s 34M of the Evidence Act 1929 (SA), evidence was led in relation to the initial complaint by J to her friend V when J was about 12 years old. J told V that she had been abused by the accused. J also told V that she was attracted to the accused and wanted to develop a relationship with him.[1]
[1] T31.25-27
J reported these allegations to the police on 2008.
Evidence of complaint is not admitted as to the truth of what was alleged in J’s complaint to V. Rather, it is admitted to inform me as to how the allegations first came to light. That gives me a more complete picture of J’s version of events so that I may judge whether the making of the complaint demonstrates consistency of conduct on her part.
Prior Inconsistent Statements
There is evidence before me that J made statements to the police which are inconsistent with the evidence that she gave in court. What J has said out of court is not evidence in the case. Her prior inconsistent statements go only to the reliability or credibility of her evidence given in the court.
There were a number of asserted inconsistencies put to J.
The proven inconsistencies between J’s evidence and her prior statements are not significant.
Uncharged Acts
J also gave evidence of the charged acts occurring against a background of numerous acts of unlawful sexual intercourse and other inappropriate sexualised behaviour.
J’s evidence of uncharged acts together with evidence directly relevant to the charges may be used by me in determining what, if any, weight I am prepared to place on J’s evidence. That is, hearing the whole of these allegations may better enable me to assess her evidence. The evidence may assist me in two ways. It may assist me in concluding that her evidence is reliable or it may demonstrate inconsistency, unreliability or inherent improbability in her evidence, thereby raising doubt about the facts she alleges.
Evidence of other uncharged acts is given only to assist me in my evaluation of the evidence going directly to the charges.
I must not reason that if I accept the evidence of uncharged acts, that the accused had committed similar offences and that he is the sort of person who might commit the crimes charged and find him guilty on that basis. Propensity reasoning of this sort is not permissible. I may only convict the accused if I am satisfied beyond reasonable doubt that the particular conduct, the subject of the relevant count, has occurred. I must not reason that conduct similar to the charged conduct has occurred and that on that basis I can convict on a particular count.
I remind myself not to act upon such evidence unless I am satisfied that it has been proven to have occurred beyond reasonable doubt.
Prosecution Case
The main witness for the prosecution was J. The prosecution led evidence of complaint made by J to V. Evidence was also called from J’s mother KC.
J’s father AS died a few years prior to trial.
J was 27 years of age at the time of the trial.
J has qualifications in childcare and has worked in childcare. She is currently studying a Bachelor of Social Sciences with a Psychology Major.
The offences are alleged to have occurred from the end of 1994 to 1997, covering a period from when J was 10 years of age up until the age of 13.
J’s Evidence
I have carefully scrutinised J’s evidence. I have kept in mind the directions I must give myself.
J said she was born and raised in South Australia. She has two older brothers, D, who is 34 years of age and, J, who is 31 years old.
J was 10 in 1995 when her parents separated. J said that her father moved out of the marital home and she continued to live with her mother and two older brothers.
J said that during her childhood she attended three different primary schools as “we moved around a little bit”.[2] J said that she began her secondary schooling in South Australia in 1998, and then moved to Victoria with her mother. J left school in year 10 to begin working full-time in childcare.
[2] T18.22
J said that after her parents separated in 1995 her father began a defacto relationship with the accused’s mother, JM. J said that she had known JM for two to three years prior to the relationship commencing.
J said that her father moved into JM’s house at Modbury North in 1995. JM’s three children from a previous relationship lived with her including her daughter and two sons. The accused is JM’s middle child.
J said she visited her father at JM’s house on weekends on a monthly basis for a period of three years. J said she would always sleep over during these visits on a fold out bed in JM’s lounge room. J estimated she would have slept over 20 to 30 times in that three year period.
Count One
J told me that she recalled the first time she was abused by the accused. This first occasion is the alleged offending comprising count one. J described that late one night when she was staying overnight at the Modbury North house, the accused had arrived home late from being out with friends. J said he came into the lounge room and straight over to her fold out bed in the lounge room. J said that the accused took her hand and started to suck and kiss her fingers. He then used his other hand to insert his fingers into her vagina.[3] J said that the accused did not speak at all while he did this.[4]
[3] T24
[4] T25
J said that she also did not say anything as she was too scared. J said:
“I just laid there for a while, scared and shocked and then eventually went to sleep.”[5]
[5] T25.31-32
J’s Evidence of Uncharged Acts
J gave evidence that the sexual abuse of her by the accused occurred “…most times that I went there.”.[6] J said she was not able to remember every occasion the accused abused her as “They were all too similar. It just sort of blurs in together.”.[7]
[6] T26.30
[7] T27.2
J recalled an occasion when the accused came to her bed one morning while his cousin was sitting in front of them watching Video Hits. On this occasion the accused sucked her fingers, didn’t say anything and then walked away.
J recalled an occasion when the accused’s mother was in the kitchen and she was laying on the couch in the lounge room. The accused came in took her hand placed her fingers in his mouth and began to suck them.
J recalled another incident when she was lying on the couch and the accused came in, took her hand and started sucking her fingers. J said she could see the accused’s mother’s reflection on “some sort of entertainment cabinet”.[8]
[8] T29.2
J also gave evidence of the accused exposing himself in front of her and his mother.
Count Two
J gave evidence that count two occurred prior to her 11^th birthday. She said she remembered this occasion of abuse because it occurred prior to her 11^th birthday party that was held at the Modbury North house.[9]
[9] T30.1
J said that it was late at night and she was in her temporary bed. The accused came over to her bed and began sucking her fingers and inserting his fingers into her vagina. J said that the accused stopped, just got up and went to the bathroom and then into his bedroom. J said that she was scared and just remained in her bed.
J said that she told her school friend, V, about the alleged abuse in 1996 or 1997.
J said she had told V at V’s father’s house around the time that they discovered V’s father’s pornography collection. J said she told V that something had happened with the accused, that he had been touching her, and “I actually told her that I wanted things to go further.”.[10]
[10] T31.25-27
Count Three
J described that count three occurred when she was 13 years old after her complaint to V. J told me she remembered she was 13 years old because it was close to the death of Princess Diana.
J said that she was in her temporary bed in the lounge room. The accused’s cousin was also in the room watching late night television.
J said that the accused grabbed her hand and started to suck her fingers. J then took his hand and led him into his brother’s bedroom.
J said that she pulled the accused down onto a temporary bed in that bedroom where they kissed. She then took the accused into his bedroom where J said that the accused began to masturbate her and she masturbated him until he ejaculated. J said that after this the accused left the room.
J is an intelligent, well spoken woman, who gave her evidence in a straight forward manner. She acknowledged that she did not have a perfect memory of all the events she attempted to recall. I did not find J to be untruthful and I do not reject her evidence. However, after hearing the whole of the evidence, I find myself in a position where I do not know where the truth lies.
Complaint Evidence
I heard evidence from V who went to school at Smithfield Plains Primary School with J. V met J through a good friend A, who lived next door to J. V said that J and A were a year below her at school. She said she would have met J in about 1995.
V said she would have been in year six and J would have been in year five. She did not remain in contact with J after she went on to high school in 1997, and she hasn’t had any contact with her since that time, apart from Facebook contact when J congratulated her on her wedding and the birth of her son. V said that she had not had any conversation with J about this case through Facebook or otherwise.
V recalled showing J her father’s pornographic videos. V recalled that J told her there was a boy in her life and that she was interested, but she felt it was bad or wrong. When V questioned her, she discovered the boy was not blood related, so they agreed it was ok.
V said that J told her the boy’s name and that he was “18, 19, 17”. V said that J was very excited about this.
V said that when they watched the pornography J would say “Do you think that would hurt?” or “Should I pursue this?”.[11]
[11] T127.32-33
V said she recalled a conversation about “fingering”. She said that J said something along the lines “He fingered me.”. V said that she and J were around 10 years old at this time.
V said she could also recall how old she was when she started watching the pornography because she had her first orgasm at 10.
V agreed that they were watching overtly sexual images on the videos.[12]
[12] T131
I accept V’s evidence. It supports J’s evidence about viewing the pornography and her evidence of complaint. It does not assist me in determining the truth of the allegations.
J’s Mother
J’s mother KN gave evidence. She said that J was the youngest of her three children and her only daughter.
She said she separated from her husband AS in January 1995.
She said AS started a relationship with the accused’s mother a few months after he left the family home.
She told me that she knew the accused’s mother, as she had been her brother’s girlfriend whilst she was married to AS.
The accused’s mother lived in Modbury. Prior to KC’s separation from AS, her family got together with the accused’s family on four, maybe five social occasions. She said it was rare that the accused and his sister were present at these social occasions because they were “sort of a little bit older, they would be doing their own thing.”.[13]
[13] T140.9
KC said that after her separation from AS, she made an arrangement that AS would take J each weekend. However, sometimes he would come and get her, sometimes he wouldn’t.[14] KC said that J might have gone with her father each weekend for a couple of months and then he would stop coming. KC, would ring him up and say “You’ve got to come and see her. She sits here waiting. She packs her bag to go and you don’t turn up.”.[15]
[14] T140.18
[15] T140.26
KC said that AS had a drinking problem, so there were more times that he didn’t come to collect J than he did.
KC said she couldn’t remember whether one of her sons moved into the accused’s family home at Modbury North.
KC said that J went to Gepps Cross Girls High, but she started to get a ‘little bit ratbaggy.”.[16] As she was hanging around with the wrong crowd, KC and her new husband moved to Melbourne, so that she could do her high schooling there.
[16] T142.4
I accept KC’s evidence, but it is not of assistance in determining the truth of the allegations.
Defence Case
The accused gave evidence on oath denying the allegations. I give him credit for adopting a course that he was not bound or obliged to adopt. I am able, depending on my assessment to accept some of the accused’s evidence and reject other parts.
As the accused has given evidence, I must consider his honesty and reliability. Even if I reject the accused’s evidence that does not mean the charges are proved. The question would remain whether the prosecution has proved its case beyond reasonable doubt.
The accused told me that he was born on 6 August 1977. He turned 18 on 6 August 1995. In 1995, he was at school doing his second year of year 11.
In 1995, he was living at home with his mother at the Modbury North address. He said that he has an older sister and younger brother.
He couldn’t recall specifically when AS moved into his home to commence a defacto relationship with his mother. He said it was at the start of 1995. He said he could recall AS’s son, J’s brother, moving in to live with the family about a month before AS moved in. J’s brother was a good friend of his brother.
The accused said that when J’s brother came to live with them, he had a room inside the house. After a period of time he moved out into the shed, that AS built for him.
The accused said that he could recall that J came over and stayed overnight at the weekends, but he didn’t recall that it was every weekend. He said it wasn’t structured, it would happen on the odd weekend. He said that she slept in the lounge room. He always thought that she had slept on the couch.
He said that in 1995, he was playing a lot of sport, professional netball and social basketball, which involved some interstate travel.
He has no documents or records showing training schedules or when he went on tournaments or camps. The accused said that at that time he was socialising every night of the week, he’d “…go driving, because everyone had their licence at the time.” “…there was always a party or someone’s birthday....”.[17]
[17] T152.14-18
The accused said that he didn’t have any relationship with J. She was his mother’s boyfriend’s child. He was not friends with her. He said that he barely knew her. He did not know how old she was. He knew that she was the youngest of the three children and he rarely spoke to her.
The accused said that after the school term ended in September 1995, he decided not to go back to school and he started work at Hungry Jacks Gilles Plains. He said he generally worked the late shift.
The accused said that in October 1995 he moved to live with his friend TR, as his home was closer to Hungry Jacks.
The accused explained that the photograph Exhibit D3 was taken at TR’s 18^th birthday. He said that he had no idea when that birthday was but he was living with TR’s family at the time the photograph was taken.
The accused said that he was at TR’s house for about 18 months and he returned home to the Modbury North house in May 1997. He said the reason he returned home was that his mother was having problems with AS, so as the man of the house, he went home to make sure that his mother was ok. He said that AS wasn’t a violent drinker, but he did like to drink.

He said that after he returned home and before AS left, he did not ever see J at the house.
He denied the allegations of sexual abuse. He denied that after the death of Princess Di, in 1997, that J took his hand and led him into a bedroom where sexual acts occurred. He denied ever walking into the lounge room and exposing himself to J and his mother.
He said that he was not aware of any sleepover birthday party for J’s 11^th birthday. He said that he had never seen any of J’s friends at the Modbury North house nor had he heard of her friend V.
In cross examination, the accused said that J’s brother permanently lived in his mother’s home and moved out a month before AS moved out.
The accused said that he did not go back to the house from time to time after he moved to live with TR, until he moved out of TR’s house. He clarified this and said that he went back home but he did not ever stay for the weekend or sleepover while he was living with TR.
He said he did not ever see J at the Modbury North house when he went back for a visit, whilst living with TR. He said that he would have gone back during the week for dinner, but he was young and on weekends he would party, so there was no need for him to go on the weekends. He said that it was possible he visited on the weekends every now and then,[18] but he didn’t see J on any occasion during that 18 month period he lived away. He said the last time he had seen her was when he was living at the Modbury North house before he moved out and that would have been a weekend sometime in 1995.
[18] T164
He estimated he and J were in the house at the same time for three to four weekends. He denied seeing the bedding set out for J in the lounge room. He said he might possibly have been in the lounge room at the time her bedding was set out, when he was socialising with the family.
He denied that there was any possibility that he was in the lounge room alone with J.
The accused explained the layout of the lounge room in the house. He denied ever walking into the lounge room where J was sleeping. He said that his bedroom was directly north of the front door and he went straight to it when he came home after being out. He said he could not remember ever being in the lounge room watching TV alone with J. He said that it was possible that he watched the television with his cousin A and J was present.
He said that J did not ever make an advance towards him and did not ever say anything of a sexual nature. He said they rarely spoke. There was no hugging or kissing.
Exhibit D6 is a plan of the Modbury North house. Bedroom number two was identified by the accused as his bedroom. The accused in re-examination, explained to me, the reason why he was so sure about never being in the same room as J watching TV, was that there were a number of TVs in the house and as she was a 10 year old and he was a 17-18 year old, he would not watch what she was watching. The accused marked on exhibit D6, the location of each TV in the house.
The accused was defensive at times during cross examination and denied any opportunity of being alone with J. Whilst I reject his evidence about not ever being alone with J at any time in any part of the Modbury North house, this does not mean I reject the balance of his evidence.
Evidence of CB
The defence called CB who knew the accused because he was friends with her brother during high school and he came to live with her family. She said that the best she can recall is that after her brother TR and the accused finished high school, sometime during the Christmas holiday period from 1995 to 1996, the accused moved to live with her family. The accused and her brother were working together at Hungry Jacks at Gilles Plains.
CB told me that Exhibit D3 is a photograph depicting the accused and her brother TR. The photograph was taken at TR’s 18^th birthday party.
CB said that her brother had two birthday parties. A family birthday party, which is depicted in the photograph D3 and a party for his friends. She recalled that the accused was living with them at the time of her brother’s family 18^th birthday party.
CB said that Exhibit D4, is a photograph that was taken on a family holiday to Wilpena Pound in the 1996 April holidays. At that time, the accused was still living with her family.
CB estimated that the accused was living with her family for a significant amount of time. Her guess was between 6 to 12 months.
CB said that she had not remained in contact with the accused. She may have seen him four years ago when her brother and his wife got married and she may have seen him a few times at her brother’s house.
I accept CB’s evidence but it does not assist me in deciding the truth of the allegations.
Conclusion
I have scrutinised with care the honesty and reliability of J’s and the accused’s evidence. Having considered the evidence as a whole, I find myself in a position where I do not know where the truth lies. It is not a matter of me preferring J’s version of events over the accused’s or the accused’s version over J’s. The question is whether the prosecution has proved the elements of the offences beyond reasonable doubt. The only alternatives available are whether or not I am satisfied or not satisfied beyond reasonable doubt of the guilt of the accused.
I do not find J to be untruthful nor do I reject J’s version of events. Whilst, as I have indicated I reject an aspect of the accused’s evidence I do not reject as a reasonable possibility his version of events with respect to the allegations. I am in the position where I am not satisfied of the reliability of J’s evidence in the sense of its capacity to establish the accused committed the offending beyond reasonable doubt. I am not satisfied, against a background of fractured families, the evidence of the viewing of V’s father’s pornography and J’s age at the time of the alleged offending, that her evidence is capable of supporting a conclusion beyond reasonable doubt that the offending charged occurred.
I make it clear that I do not reject J’s evidence. I also find that I cannot reject the accused’s denial of the offending.
Each count of unlawful sexual intercourse has not been proven.
I therefore find the accused not guilty of counts one, two and three.