R v M, RS (No 2) - [2017] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, RS (No 2)
Criminal Trial by Judge Alone
[2017] SADC 23
Reasons for Decision of His Honour Judge Slattery
17 March 2017
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
At the close of the case for the prosecution and before the accused elected whether to give evidence or to lead any evidence, the accused revived his R 49 application seeking an order that the court invite the prosecution to call in evidence, PMM, the mother of the complainant. The accused relied upon grounds, all of which the accused alleged arose out of the evidence led by the prosecution from the complainant, her half-sister LID and the exhibits before the court.
Although the arguments raised by the accused canvassed areas and arguments already considered in the determination of the first R 49 application, no submission was made by the prosecution that the court had already heard and refused such application or any part of it.
Held:
Application refused.
The evidence led by the prosecution confirms both the creditworthiness, reliability and compellability of the prosecution witnesses and also the implausibility of the version of facts given by PMM in her statement to police.
The evidence of PMM properly considered places her in the camp of the accused and when considered in the light of the prosecution evidence, casts sufficient doubt on the creditworthiness of PMM such that the court would not invite the prosecution to call PMM in evidence in its case.
District Court (Criminal) Rules R 49, referred to.

R v M, RS (No 2)
[2017] SADC 23

At the close of the case for the prosecution, the accused renewed his R 49 application. He asked me to “…reconsider the application to invite the prosecution to call the witness PMM…” This application is made before the accused made his election to give or lead any evidence.
As judgment No 1 in this matter discloses, I made and announced to the parties the reasons for my decision to refuse the first R 49 application by the accused. It is arguable that at least to the extent that I had made my decision I had already heard and determined any application brought on the basis then before me. Even so, I can see no reason why the accused could not renew his application on any basis. This view is obviously informed by the grounds that pertain to both this and the first application. The renewal of the application has occurred after the complainant and the other prosecution witness had given their evidence and been cross examined. The prosecution did not submit to me that I should not proceed to hear this renewed application. I am satisfied that I may dispose of this further application upon the bases put by the accused. I maintain that view even though I think it is necessary to recanvas some matters that arose in the earlier application for the sake of completeness. This is because it may also be the case that the accused now wishes to contend that some other basis may have arisen that differently informs the issue that has not changed: whether I should invite the prosecution to call in evidence PMM who is the mother of the complainant. As a matter of fairness to the accused I think that he should be able to put any ground to me on this renewed application before he makes his election to give or lead any evidence. This is because the bases now put by the accused arise out of the viva voce evidence and exhibits that are considered in the background of the witness statement of PMM. The evidence of the prosecution witnesses was available in their depositions. The further matters arising relate to the content of the cross examination and the exhibits. This is how this argument has developed and as a matter of fairness to the accused I think that he should be permitted to put to me any ground as he so chooses. I have proceeded on that basis.
I am therefore prepared to fully consider this application, completely familiar as I am with the evidence of the prosecution witnesses. It has become necessary to recanvas material that I considered in the first application as the grounds of this renewed application now make clear. The result of this application must now also be influenced by the impressions that I formed of the evidence of the prosecution witnesses when they gave their evidence. It would be artificial to suggest otherwise and in part the accused relies upon my assessment of that evidence in this application. Insofar as I express any views on the evidence that I have heard and seen in court, I do so without being aware of whether the accused intends to give evidence or to lead any evidence.
A number of issues arise in light of those comments. The first is that I would not separate my impressions of the evidence of the prosecution witnesses from what the accused now contends ought to be the result of his application. The second is that I have now heard in evidence the responses of the complainant to the propositions put to her about what the accused and her mother, PMM says occurred. This includes the viva voce evidence about the accused’s denial that any complaint was made to her mother by the complainant. I have very clear impressions from statements and the viva voce evidence of what the complainant says and her responses to the version put to her in cross examination. This version was informed in large part by the statement of PMM of denials (put to the complainant in cross examination) of specific events as alleged; these denials may logically also be assumed to be informed by the position of the accused. It is in that background that I consider this further application.
The accused submitted that in light of the prosecution evidence and cross examination, the assertion by the prosecution that PMM will not give evidence of truth falls away. The accused contends that on the evidence there was no complaint by the complainant to her mother and no sequelae involving the complainant, her mother or the accused. The accused also contends that there is no significant or independent support for the complainant’s evidence from the complainant’s own entries in Exhibit D3. The accused finally contends that the handwriting of the complainant on one page of the book “The Incest Survivor’s Handbook” (Exhibit D6) suggests that no complaints were made to the mother as alleged by her.
It is necessary briefly to explain the background to these contentions. The complainant gave evidence that on two occasions she made complaints to her mother about sexual conduct perpetrated by the accused. The first complaint was made about a year after the occurrence of the first particular of the charge. The evidence of the complainant was that having complained to her mother, the accused and the mother had a discussion, the mother said that the accused apologised and she was assured that it would never happen again. The abuse allegedly continued and about a year later, the complainant again complained to her mother about the continued sexual abuse perpetrated against her. The same result followed and similarly, the abuse did not cease.
Exhibit D3 was a daily diary kept by the complainant of a trip which she took with the mother, the accused and her half-sister around Australia in 1986 and 1987. The complainant was cross examined about why she did not record in the diary of the alleged sexual assaults committed upon her by the accused. The explanation given by the complainant was that, in the then family dynamic, she knew that if the diary had been read and she had recorded what was occurring it would be too powerful and would wreck the family unit. That was not something that she was then prepared to do as a 13 year old girl who had already been through a family breakup of her natural parents.
In relation to Exhibit D6, there is handwriting on a page of Exhibit D6 where, after reflecting upon the content of the page, the complainant writes on the top of the page these words:
“I always wanted to tell her but I didn’t want to break her heart so instead my childhood was taken away from me.”
The words in the text of the page to which this comment applies reads:-
“As much as I think I might have wanted to tell her, I knew I couldn’t because I didn’t think she could handle it. I felt very protective of her.”
These words in the text were written by an incest survivor. The words to which reference was made by the complainant are words of reflection by a survivor. The complainant explained that the words that she wrote are words of her own reflections when she read the book. They are not some form of historical narrative. The evidence of the complainant has satisfied me that having made two complaints when she was a child, she found that as time passed, she could not inform her mother of what had happened to her because of all of the circumstances of her mother’s relationship with her step-father, the family dynamic and the perception of the complainant of her own mother. Exhibit D6 and the evidence surrounding it referred to by the accused does not support any suggestion that no complaints were made to the mother by the complainant as alleged.
I consider that this ground cannot be sustained. I formed a very clear impression of the truthfulness and reliability of the evidence of the complainant. She was not shaken at all in cross examination. She is a highly intelligent, articulate and educated woman. In the end the accused described her evidence “resorting to jargon”. A better description is that she was untroubled by cross examination. I formed the clear impression that the evidence of the complainant on the entries in her daily diary of a family caravan trip around Australia (Exhibit D3) was reliable. She cogently explained why she did not record in Exhibit D3 the events of which she now complains.
I also consider that it makes logical sense for a person such as the complainant to read and then reflect on other people’s experiences as they are recorded in a book, a portion of which is copied in Exhibit D6. Such a process has little to do with any retrospective challenge to the credit of the reader and it has everything to do with the reader reflecting in the moment as thoughts occur to the reader. I consider that the argument of the accused elevating that process of reading, thought and reflection to some higher historical narrative is not open nor is it maintainable as a matter of ordinary common sense.
In judgment No. 1 I refused the initial application by the accused to invite the prosecution to call the mother of the complainant in evidence. I did so on a number of bases including that there was sufficient doubt about the credibility of the version given by the complainant’s mother in her statement to police. As a result of the evidence given by the complainant and her sister and following their cross examination, a number of the matters that I touched upon on the first judgment as the basis for my refusal of that application have been embellished in a number of ways that require discussion. That discussion is set out hereunder.
In my first judgment I said that the prosecution had decided not to call the mother of the complainant in evidence as part of its case. The attitude of the prosecution was that it is entirely within its discretion about who it calls in evidence as part of the prosecution case. The prosecution maintains that apart from any evidence given by the mother about complaints made to her by the complainant, and their sequelae, where her evidence is at odds with the evidence of the complainant there is no collateral challenge by the prosecution to the credit of the mother. The challenge would be to the version of events given by her only in that limited sense.
At the outset, it was not completely clear to me what the prosecution meant by this submission. It appears that the prosecution may be saying that except where the mother disagrees with the evidence of the complainant, then the prosecution make no attack upon her credit. In the application of general principle, I consider that if this was the prosecution’s approach it would not be an appropriate ground for the prosecution to fail to call the mother. The reason is self-evident: it will rarely be the case that two witnesses could (or should) give the same version of facts and there will be differences often significant in the evidence they give. This is to be expected and this difference will often involve evidence about the same event. The issue is whether there is a sufficient basis for the prosecution to challenge the credit-worthiness of the mother’s evidence.
Because of the vagueness of this submission of the prosecution, I put it to one side and assessed the application according to settled authority. I will take the same approach in this application. That approach sits in the background that the proper question for my consideration is always whether the version of events given by the mother is so lacking in credit-worthiness that the prosecution ought not be invited to call the mother in evidence. I have discussed the applicable authorities in my first judgment.
The accused submitted that there was nothing to suggest that the mother is in any way “delusional” or has exhibited any intention to mislead the court. I understood that this submission was put as an anticipatory counterweight to a submission that may be put about the reliability of the evidence of the mother. I was informed by the prosecution that the mother has openly suggested that the complainant is so delusional as to have made up her story or that her story is a product of her imagination because she may have dreamed those events. These are strikingly strident criticisms for a mother to make of her adult daughter.
These criticisms by the mother of her daughter are more than a disagreement of memory; they are a suggestion by her that her own daughter is delusional and is unable to separate objective fact from her own imagination. I consider this to be a very troubling assertion by a mother against her adult daughter. It suggests that the mother has placed herself very firmly in the camp of the accused and would reject everything said by the complainant about the accused as a product of her imagination or a dream. There is no basis disclosed on the face of the mother’s statement to police that in a way explains how she reached this conclusion. She does not say how her experience of her life with her daughter in any way informs this view. She only mentions what later became difficulties with making arrangements to meet with the complainant and her children but they are not sufficient.
As I said in the first judgment, the general thrust of the case for the accused is that in a statement given to police by PMM, when she was asked questions about some of the factual matters raised by the complainant which involved her, she contradicted the evidence given by the complainant in a number of material respects. That is said to be apparent from a witness statement given by the mother to police on 11 May 2015, which was enlarged to an extent on 13 May 2015.
Having now had the opportunity to reflect on the evidence, there are a number of other features of these statements that I have found very troubling. In her statement to police on the topic of the first particular of the alleged offence, the complainant said that she climbed into bed with her mother and step-father looking for a cuddle from her mother. Separately and in relation to the second particular the complainant said that on occasion when she had a nightmare that often developed into a stomach ache she went into her mother’s bedroom to seek assistance and consolation. On this occasion the mother allegedly asked the accused to put the complainant back to bed.
The complainant at the time of the alleged first particular of conduct in the bed was 8 years of age or thereabouts. She was a young child and her situation was that in about 1975 her parents had separated, she had moved with her mother back to Adelaide from Mount Gambier and her mother had married the accused. Her age at the time of the second particular of alleged conduct was 9 or 10 years. The complainant told the police that after the first occasion and before the second she had suffered groping behaviour of the accused. She told police that she had twice complained to her mother about the conduct but apart from her mother speaking to the accused, nothing had changed. The mother denies that such complaints were made by the complainant.
In her statement to the police the mother says that the complainant never came into her bedroom and lay in bed with she and the accused. She then denied that any complaints were made to her by the complainant about the conduct of the accused. She also denies any occasion on which the accused may have returned the complainant as a child to bed after she had come into their room seeking comfort.
I consider that it is at least intuitively implausible to suggest that a young female child of 8 years of age would never come into her mother’s bedroom and spend time in bed with her. Life’s experiences make plain that children of that age entering parents’ bedroom space, especially in the morning, occurs so often that it may be described as regular. On first impression, I considered that the mother’s statement on this topic is intuitively implausible. It would be unusual, perhaps abnormal, for an only child of that age not to seek out a parent or parents in their bedroom and be in that bed with her parents particularly on weekends or on holidays. It may be that parents set rules about such conduct but to say that it never occurs is so obviously intuitively implausible that it is, without more, very difficult to accept. I was not prepared to accept the credit-worthiness of this version of fact given by the mother. That assessment and view is now even more pronounced having seen and heard the complainant and her half-sister give evidence and be cross examined. I consider that they both gave their evidence in a frank, forthright and honest way. They both impressed me as witnesses of truth who were reliable and credible.
Also, but to a slightly lesser extent, is it intuitively implausible and incorrect to say that the accused, as step-father would not have put the complainant back to bed after she came to them complaining of a nightmare event and a stomach ache. It is known that the complainant’s sister is 10 years younger than her and so the mother’s period of gestation of the sister with all of its complications, demands and effects would have commenced when the complainant was between 9 and 10 years of age. This is about the time when the conduct of the second alleged particular occurred.
To accept the mother’s version that the accused never put the complainant back to bed is also to accept that despite whatever fatigue the mother may have been feeling, for example in the last trimester of pregnancy, post partem or for any reason then applicable, she would never have requested or agreed to the accused putting the complainant back to bed. This is as troubling to me because it is as intuitively implausible and incorrect as the previous assertion. And for the same reasons as I expressed about the first particular of conduct of the alleged offence, my assessment of the lack of credit-worthiness of the mother’s version is even more pronounced having heard the evidence given by the complainant and her half-sister and having heard their cross examination.
Those doubts in my mind are only compounded when regard is had to the content of the statement given by the complainant’s half-sister LID to the police and her evidence. She recalls times when she and the complainant were both in the parent’s bed and when the accused put her to bed and also took care of her on occasions when she was sick. Those tasks were mainly done by her mother, but not exclusively so. I consider that the statements and evidence of LID conforms with plain common sense and they are intuitively and actually accurate. For a parent to dismiss some event out of hand despite a child’s clear memory is fraught for two reasons. The parent is relying upon a memory that when dealing with young children is generally adversely affected by the typical day to day high level of exhaustion of simply being a parent. And the parent would then seek to prefer her own general memory to that of her own child who has a very specific and less affected memory.

I consider that all of these matters have a compounding effect that I may take into account in making my assessments in this matter. In undertaking that exercise, I have come to some clear conclusions about the efficacy and reliability of the content of the statement given by the mother. It is replete with absolutes (denials) and I consider that such absolute position taking is generally implausible and has less to do with the truth and more to do with the mother putting herself in the camp of the accused. I will discuss later what I consider to be the consequences.
In making a decision whether some good reason exists for the prosecution not to call the mother in evidence, it is necessary to point to some identifiable factors justifying the decision not to call the mother. That said, it is not necessary for the prosecution to form the view that the mother is being positively dishonest. In light of the materials available, I cannot see how such a view could be formed.
I consider that there were and continue to be identifiable circumstances casting significant doubt on the mother’s evidence. The first is the inherent implausibility and improbability and the lack of the reliability of her denial that a young 8 year old female child never ever got into her bed with she and the accused at any time. This denial is self-evidently made as a bulwark to any assertion by the complainant about an occasion when that child remained in that marital bed and may have been sexually assaulted by the accused. It may be argued that the mother’s evidence purports to be a complete answer to that aspect of the charge. I consider that as a matter of plain ordinary common sense and experience it is unable to withstand scrutiny. And, it is not supported by evidence given by the mother’s other daughter LID. I would not assess it as credit-worthy.
The second denial of the mother is again to be considered as self-evidently a bulwark to the evidence of the complainant about the second event, in the complainant’s bedroom. The mother denies that the accused ever responded to the complainant as a young child when she had a nightmare developing into a stomach ache. It may be argued that this evidence purports to be a complete answer to that aspect of the charge against the accused. In the circumstances as they pertained at the time, I also consider that as a matter of ordinary common sense and experience, this evidence is unreliable and cannot withstand scrutiny. Also, it is indirectly contradicted by the evidence of her other daughter LID. I accept that the relationship between the accused and LID is different because he is the biological father of LID. However I consider that the inference plainly arises from what LID said that when necessary, or requested, or the opportunity arose, the accused did that which the mother said only she did. The mother’s statement on this topic is not credit-worthy.
I also consider that in light of the mother’s attack on her own daughter (where she suggested that her story has been made up (as she is delusional) or it was a dream) this lack of reliability of the mother’s evidence on these essential topics permeates the whole of her evidence. It compounds her lack of reliability. Although these matters were mentioned by me in my first judgment only in a summary form, based on the evidence now before the court and my preliminary impressions of the witnesses, I consider that these matters are significant. I have taken them all into account in confirming my view that the version of events given by the mother PMM is so lacking in credit-worthiness that the prosecution ought not be invited to call the mother in evidence.
The second ground submitted by the accused concerns PMM saying that nothing of moment occurred on the caravan trip and that view is now confirmed by the diary, Exhibit D3. Thus it is said, the diary obviates any possibility that the version given by PMM is untruthful so that any such concerns held by the prosecution are completely assuaged. I consider that there is a logical non sequitur in this submission. The evidence of the complainant is that the diary was kept by her in a fashion that if it was ever read by another family member it would not, because of content, lead to the disintegration of the family unit that she thought was so important. I consider that the evidence of the complainant on this topic was truthful, reliable, cogent and compelling; her evidence on this topic was not shaken in cross examination. The complainant gave evidence that she did not speak to her mother about the issues that occurred during the time the diary Exhibit D3 was kept because her earlier complaints had not met with any changed behaviour on the part of the accused. I consider that the complainant’s evidence on this topic was truthful, reliable and compelling.
This submission raises again the difficulty with the position of the accused and the complaint evidence. I consider that in giving her evidence about the complaint to her mother, the complainant was truthful, reliable and compelling. This brings into immediate focus the truthfulness and cogency of the evidence of PMM. The accused attempts to bolster the credibility of the assertion of PMM by reference to the content of the diary Exhibit D3 as he would submit it should be understood. This approach fails to take account of the whole of the relevant evidence that has been canvassed and assessed for its truthfulness, reliability and accuracy as I have done.
The third ground raised by the accused concerns the evidence given by LID, the half-sister of the complainant and the daughter of the accused. The accused sought to bolster the evidence of PMM through this evidence. I formed the very clear impression that not only did this evidence not assist the accused, it directly and indirectly contradicted the emphatic denials and positive propositions put by PMM. For example LID disagreed with the assertion of PMM that the complainant never came into the bedroom of she and the accused. LID was very clear that on special days the children of the family including the complainant gathered in that bed and on occasions had breakfast in bed. And I consider it to be intuitively implausible to suggest as PMM does that a young female child would never seek the comfort of her mother in bed with her.
It was then submitted that the most important part of LID’s evidence was that she thought that she lived in a normal family. It is not at all clear to me how it may be said that this impression in the mind of LID in any way bolsters the view that I may form of the credit-worthiness of the content of the witness statement of PMM. The view of LID could only have relevantly been formed up to the time that she was 8 or 9 years old, which was her age when the complainant left home. This was very soon before the family moved to Queensland and the complainant remained in Adelaide.
These memories of LID were formed in the period of up to the same age as the complainant was in 1981 or thereabouts. The evidence of LID was directly and indirectly supportive of the complainant’s version. This included being put back to bed by the accused after a nightmare or a malady. LID did not agree with the proposition put by the accused in cross examination that it was always her mother who attended to her on these occasions. I consider that evidence given by LID was truthful, reliable and compelling.
As a result none of these further grounds raised by the accused in this fresh R 49 application in any way cause me to change the views formed by me and announced in my decision on the first R 49 application. I consider that the evidence that I have heard in the prosecution case further weakens the diminished credit-worthiness of the denials and assertions of PMM. None of that evidence or the accused’s further submissions leads me to change the views that I formed and expressed about the first R 49 application. My views are confirmed and strengthened by the evidence that I have heard.
I dismiss the application.