R v M, RS (No 3)
[2017] SADC 24
•17 March 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, RS (No 3)
Criminal Trial by Judge Alone
[2017] SADC 24
Reasons for the Verdict of His Honour Judge Slattery
17 March 2017
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused was charged with one count of persistent sexual exploitation of a child.
Verdict: Guilty.
Criminal Law Consolidation Act s 49, s 50(1), s 50(7), s 50(8)(b); Juries Act s 7; Evidence Act s 34M; District Court (Criminal) Rules R 49; Cross on Evidence 8th Australian Ed, the Honourable J.D. Heydon, referred to.
R v Landmeter (2015) 121 SASR 522; R v Chiro (2015) 123 SASR 583; Cheung v R (2001) 209 CLR 1; R v Isaacs (1997) 41 NSWLR 374; Jones v Dunkel (1958) 101 CLR 298, discussed.
R v Little (2015) 123 SASR 414; R v Hamra [2016] SASCFC 130; R v N, SH [2010] SASCFC 74; R v Livingstone (2011) 109 SASR 380; R v C, G (2013) 117 SASR 162; Brandi v Mingot (1976) 12 ALR 551, considered.
R v M, RS (No 3)
[2017] SADC 24
The accused is charged on Information for arraignment of 21 July 2014 with the following offence:-
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RSM, between the 25th day of September 1981 and the 31st day of December 1991 at Modbury Heights and other places, over a period of not less than three days, committed more than one act of sexual exploitation of JLM, a person under the age of 18 years, whilst he was in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a) causing JLM to masturbate his penis on one occasion;
b) inserting his finger into JLM’s vagina on one occasion;
c) touching JLM on her vagina on the outside of her clothing on more than one occasion; and
d) touching JLM on her breasts on the outside of her clothing on more than one occasion.
Pursuant to s 7 of the Juries Act, the defendant RSM elected to be tried by judge alone.
I consider that there are a number of fundamental directions of which I should remind myself as a judge sitting without a jury. They are as follows:-
1. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2. The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence charged.
3. The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5. I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
6. The sole task before me is to determine whether or not the prosecution has proved the elements of the charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lay in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
7. The evidence of the complainant is not separately or otherwise objectively corroborated. I am therefore required to more closely scrutinise the evidence of the complainant in those particular circumstances.
There are other directions which I will give myself and I will discuss through the course of this judgment.
The elements of the offence
The integers of this offence, to be proved beyond reasonable doubt, are as follows:-
1. An adult person.
2. Over a period of not less than three days.
3. Committed more than one act of sexual exploitation.
4. Of a child under the prescribed age (17 years: s 50(7) Criminal Law Consolidation Act).
A person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could be the subject of a charge of a sexual offence. The sexual offence particularised is that the accused is alleged to have committed more than one act of sexual exploitation of the complainant JLM over a period of not less than three days during the period between 25 September 1981 and 31 December 1991. The conduct comprising the alleged ongoing acts of sexual exploitation includes the accused:
a) causing JLM to masturbate his penis on one occasion;
b) inserting his finger into JLM’s vagina on one occasion;
c) touching JLM on her vagina on the outside of her clothing on more than one occasion; and
d) touching JLM on her breasts on the outside of her clothing on more than one occasion.
If the allegations made by the prosecution are proved to my satisfaction beyond reasonable doubt then the conduct described in sub-paragraphs (a)-(d) inclusive above constitute sexual offences. The charge particularised in sub-paragraphs (a), (c) and (d), if proved beyond reasonable doubt, constitute indecent assault. If proved beyond reasonable doubt, the conduct alleged in particular (b) constitutes unlawful sexual intercourse contrary to s 49 Criminal Law Consolidation Act (CLCA). In any event, each of these alleged offences is a sexual offence for Division 11 CLCA.
The accused elected not to give evidence
As was his right, the accused elected not to give any evidence. I remind myself that the accused was entitled to remain silent in the face of this charge and no conclusion or inference one way or the other is to be drawn from such an election. The onus is upon the prosecution to prove the case against the accused beyond reasonable doubt. The plea of not guilty entered by the accused at the re-arraignment may logically be understood as a denial of the allegations made against him by the prosecution.
The case for the prosecution[1]
[1] In judgement No 1 in this action I dealt with an application by the accused for a request to be made by me as a trial judge to invite the prosecution to call the mother of the complainant. I refused that application.
The prosecution led evidence from two witnesses, the complainant JLM and her half-sister LID.
LID is the daughter of the mother of JLM and the accused. The complainant is the step-daughter of the accused. The complainant is 10 years older than LID.
The complainant was born in Adelaide in 1973 and lived predominantly until 1980 at Mount Gambier. Her parents’ marriage ended in 1975 or 1976. She continued to live with her mother in Mount Gambier until 1980 when she moved back to Adelaide. From that time she and her mother lived at a house at Modbury Heights.
The complainant’s mother married the accused in 1981. Prior to that time, the accused had come to live at the Modbury Heights address.
The home at Modbury Heights was a typical 3 bedroom home comprising a master bedroom and two smaller bedrooms, a living and dining area combined and a family room and kitchen combined. There was one bathroom and toilet. There was a carport and a large shed at the rear in which was a workbench and also in one corner a darkroom.[2] At the time of the marriage of the accused and the complainant’s mother, the complainant’s surname was changed to the accused’s surname, M. The accused moved into the house at Modbury Heights about a year before the marriage.[3] From the time that the accused moved into the Modbury Heights home, he slept in the master bedroom with the complainant’s mother, PMM.
[2] See Exhibit P1: the darkroom was constructed for the use of the complainant’s mother.
[3] T32-34.3.
The complainant gave evidence that an incident occurred in the master bedroom of the Modbury Heights home in the period up to one year after her mother married the accused in 1981.[4] The complainant states that one morning, she woke up and went into the master bedroom where the accused and her mother were still in bed. She did so because she wanted a cuddle from her mother.[5] From and before the time of her mother’s marriage to the accused she had been keen to have a father figure in her family[6] and she commonly called the accused “dad”.[7]
[4] T34.23.
[5] T34.33; T35.4.
[6] T65.35.
[7] T67.10.
When the complainant crawled into the bed, she was next to her mother.[8] She cuddled up with her mother and talked to her for about 10 – 20 minutes.[9]
[8] T35.28.
[9] T35.35.
After about 10 – 20 minutes, the complainant recalls that her mother left the room for a reason although she cannot now recall the reason. She can recall her mother saying to her words to the effect: “won’t you stay and have a cuddle with dad?”.[10]
[10] T36.4.
Following her mother leaving the room, the complainant rolled over towards the accused whilst they were both still in the bed. She put an arm over his chest and cuddled him.[11] The complainant did not have any recollection if the accused responded to the cuddle[12] but after cuddling him for a couple of minutes, she then rolled back and thought about getting up.[13]
[11] T36.14.
[12] T36.18.
[13] T36.27.
When she was doing that, the accused said to her: “do you want to touch me?” which the complainant interpreted to mean “do you want to cuddle?”. The complainant responded by rolling over again and putting her arm over the accused. At that point, the accused took her left arm and placed it on his erect penis. He did so using his right hand.[14]
[14] T36.29.
The complainant recalls that at that time, the bed clothes were down around his hips, he was wearing underwear and she could see the shape of his erect penis.[15]
[15] T37.5.
The complainant said that the accused held her left hand on his erect penis for what seemed like a long time, perhaps about 30 seconds or more.[16] The accused then took his right hand away for a moment before putting it back on her left hand and moving her left hand up and down his erect penis from the base to the top.[17] The complainant said she had a clear memory of what it felt like including that she felt the accused’s circumcision scar.[18] It is an agreed fact in this matter that the accused is circumcised.[19] The complainant thought that the movement up and down the penis of the accused happened about five times.[20] After the accused removed his hand once more, she quickly drew her hand away, rolled over and left the room. She thinks she might have made an excuse before leaving the room but she was very confused about what was going on and has no recollection of where she went after she left the room.[21]
[16] T37.15.
[17] T37.21.
[18] T37.25.
[19] Exhibit P8 agreed fact 4.
[20] T37.29.
[21] T37.31; T38.1.
The complainant strongly disagreed with any suggestion by the accused in cross examination that there was no occasion when she would cuddle her mother in bed when the accused was present.[22] Based upon the evidence given by the complainant and her sister LID I reject any suggestion that there were no occasions when the complainant cuddled with her mother in bed with the accused present. As I have earlier stated in judgement No. 2, I considered that such a scenario was both intuitively and inherently implausible. I think that it is a wrong proposition.
[22] T75.7.
Subsequent to the event in the master bedroom, the complainant said that the accused later touched her and exhibited what she described as groping behaviour.[23] This groping behaviour consisted of him touching her over her clothes with his hand on her buttocks or on her groin. She said this groping behaviour occurred about twice per week.[24] The complainant had no clear recollection how long after the first incident that this groping behaviour commenced but she thought it continued unabated for at least 6–12 months.[25] She recalled that this behaviour happened in her home, and in other places.[26]
[23] T38.7.
[24] T38.10.
[25] T38.15.
[26] T38.23.
JLM gave evidence that she told her mother about this behaviour about 6–12 months after the first incident in the master bedroom.[27] She did this because she was starting to feel unsafe and she wanted the behaviour to stop.[28]
[27] T38.28.
[28] T38.21.
JLM recalled that before telling her mother, she went to the bathroom for about 20 minutes to try to work out what she was going to say. When she opened the bathroom door, her mother was approaching in the corridor of the house. She immediately spoke to her and said words to the effect: “dad’s been playing with me” to which her mother asked: “what do you mean?”[29] She then told her mother words to the effect that: “he’s been touching me” and pointed to her groin.[30]
[29] T39.2; T39.6.
[30] T39.11.
JLM gave evidence that her mother then became angry and took her to find the accused before going into the family room.[31] She was then left by her mother and the accused to watch television on her own. They went to the master bedroom and they stayed there for at least an hour.[32] When they came out of the bedroom, her mother told her that the accused was sorry and that if he ever touched her in a way that she did not like she should say “no I don’t like that”.[33] She was then told by her mother to give the accused a cuddle which she did.[34]
[31] T39.13.
[32] T39.19.
[33] T39.19; T40.2.
[34] T40.12.
JLM said about one month after this conversation the touching started again in the same manner.[35] This went on for another 6 – 12 months and eventually she spoke to her mother again.[36] JLM recalled that the second conversation also took place in the Modbury Heights house but the details are less clear to her. She said she felt an overwhelming sense of abandonment at the time.[37] She said that when she told her mother the second time, the same thing happened; her mother and the accused went into the master bedroom and she sat in the family room. She really has no clear memory of what occurred next.
[35] T40.24.
[36] T41.2.
[37] T41.10.
In cross examination, the accused put to JLM that the first and second disclosures to her mother never happened.[38] JLM denied such suggestions. She also denied the suggestion by the accused that the groping never occurred.[39]
[38] T75.25; T76.30.
[39] T75.34.
In cross examination, JLM was asked whether she was very wary or extremely wary about being in any situation alone with the accused. JLM said she did not believe that the situation was always like that. She said she was a child; she was not always constantly on guard.[40] She was further cross examined about her assertions about the groping of the accused going on in the family situations. She said it was an everyday situation in the family where there was a dynamic of a loving family which had this form of abuse going on at the time; it was because she was in the situation of a loving family that her guard would be down on occasions.[41] She described this situation as duplicitous. She said she was in a situation where she had a loving step-father that occasionally groped his step-daughter.[42] She also disagreed with the suggestion that she made any endeavours to avoid being alone with the accused. For example, she said that she enjoyed learning from him how to use tools and to be self-sufficient.[43]
[40] T77.15.
[41] T77.21.
[42] T77.36.
[43] T78.3.
JLM then gave evidence of a second incident. This occurred after she had a nightmare at the Modbury Heights address.[44] She thinks this would have occurred no later than when she was about 10 or 11 years of age. By this time she had moved rooms because her younger sister was born. She was 10 years older than her younger sister. She did not think it was any earlier than when she was about 9 years of age.[45]
[44] T42.16.
[45] T43.18.
The circumstances were that she went to her mother’s bed after waking up from a nightmare. She wanted to be comforted. JLM said she was constantly troubled by nightmares. These varied in degree and on occasions she sought comfort from her mother. Also on those occasions, the problem with the nightmare may have manifested itself as a stomach ache. She said that happened often.
She recalls that on this particular occasion, she went and woke her mother and told her she had a bad dream and that she had a stomach ache, she said that she could not get back to sleep. She said that for reasons that she cannot now recall, her mother seemed reluctant to get out of bed. Her mother usually looked after her on these occasions but that was not always the case. On this occasion, her mother asked the accused to settle her down.[46] The accused then took JLM back to her bedroom. She lay down on her bed on her back.[47] JLM has no clear recollection of what she was wearing but she thinks she was wearing something on her top such as a nightie and she was probably wearing underwear which was usual.
[46] T42.20.
[47] T43.10.
JLM recalls that once she was in bed, the accused started rubbing her stomach.[48] She said she hoped that he would rub her stomach a couple of times and then cease. By this time, her clothing had moved up around her rib height so that her ribcage and legs were exposed. She recalls the accused rubbed her stomach for a couple of minutes. Over time, the accused then extended the strokes of his hand up to her chest and down to where her underwear was. He eventually pushed his fingers down underneath her underwear.[49]
[48] T43.34.
[49] T44.6.
JLM said that at this time she was confused about what was happening. She recalls that the accused then started rubbing his hand higher across her chest and nipples and then further down underneath her underwear across her groin area.[50]
[50] T44.17.
JLM said she has a recollection of being frozen and terrified at that time. She was asked where the accused was rubbing in her underwear area. She said that it was initially a downward stroke but then got worse and he rubbed with his fingers between the labia and then touched the entrance to her vagina all the way up inside the labia to the clitoris. She said she strongly remembered that sensation.[51]
[51] T44.
She does not recall anything being said by herself or by the accused when all of this was happening. She can recall that it went on for a short period of time of about 5 minutes although she cannot be clear about this.[52] She cannot recall how it all ended and she thought she remained in bed afterwards. She did not really think about or say anything about it after that time.
[52] T45.16.
In cross examination, JLM agreed that throughout her childhood, it was her mother who would usually comfort her if she was sick.[53] This did not mean that the accused did not sometimes fulfil that role. She described this incident as probably an unusual situation but she also strongly disagreed with the suggestion that there was no occasion where the accused rubbed her stomach and vagina.[54]
[53] T78.21.
[54] T78.36.
The evidence of JLM is indirectly corroborated by her sister LID. She said when the family was living in Cumberland Park, and when she was a young girl there were occasions when she was ill or had nightmares. On those occasions she sought help from her mother or her father.[55] LID said that she sought help from both of them. She thought that she would call out to them. They could be still up in the living room or she would knock on their bedroom door if she thought they had gone to bed.[56]
[55] T128.37.
[56] T129.1.
LID said that when she called out for them, they would usually come out and one of them would come and pick her up and put her back to bed and look after her.[57] She does not recall occasions when she was ill or had a nightmare when she got into bed with her parents but she does recall that one or other of her mother or father would come and look after her in her bedroom if she had a nightmare and was seeking their assistance.[58]
[57] T129.7.
[58] T129.8.
JLM said she would usually walk or ride her bike to school. She recalls one occasion when the accused drove her. She thought she had a bee sting[59] and this was the reason why she was taken to school in the car. She can recall the accused drove her to school in his rally car. She was in about year 5. She can recall that as they drove to school, the accused started a conversation with her about sex. He told her that if she had any questions about sex, she should talk to him as he knew more about sex than her mother.[60] She cannot recall saying anything to him at the time. At that time, the general groping by the accused of JLM had continued. This was occurring on less occasions than when she was younger as she had grown a little wiser. She thought that it was still happening and she thought it was about once per week.[61]
[59] T45.29.
[60] T46.17.
[61] T47.22.
JLM gave evidence that when she was between about 11 and 12 years of age, there was an incident which occurred at the workbench in the shed at the Modbury Heights premises.[62] She gave evidence that the accused was showing her how to use tools. He had shown her how to fix a piece of timber in a vice and how to use a saw. She was attempting to use the saw to cut a piece of timber. She recalls that the accused was to her left closer to the door of the shed. She states that as she was sawing, she noticed that the accused had then lent across her body and grabbed her breasts. At that stage, she was about 11 or 12 years of age and although her breasts had begun to develop that development did not yet require her to wear a bra. She was only wearing a t-shirt.[63] She recalled that when the accused touched her on the breast, he smiled and laughed. She said to him: “no don’t do that” and he laughed at her. He then let her go as she had demanded. This event occurred after her sister was born.[64] She did not tell her mother about this because she did not think her mother was taking her seriously when she made complaints about the accused.
[62] T48.2.
[63] T48.33.
[64] T49.29.
In 1986, the whole family went on a holiday travelling around Australia with a caravan. JLM kept a diary of the trip.[65] That diary disclosed that the family started travelling on 23 November 1986.
[65] Exhibit D3.
JLM recalls that the car broke down at the beginning of the trip. The breakdown was somewhere outside Port Pirie and the family had to stay in Port Pirie for a period of time for the car to be repaired. She has a recollection that whilst they were at Port Pirie, all four of them, herself, the accused, her mother and her half-sister, went to the beach. This was a town beach with a jetty. The water at the beach was very shallow. She recalls that it was very salty and brackish.
JLM said she was then a good swimmer. She recalls that she went for a swim into deeper water with the accused to the end of the jetty. She recalls that for some reason when she was swimming in the deeper water, she got “spooked” about being in such deep water. She said she could not touch the bottom and she thought that what “spooked” her was that she could not see what was underneath her and that is what caused the trouble.[66] As a result of becoming “spooked”, JLM swam towards the accused and hung onto his shoulders. She said that within 10 to 15 seconds, the accused had grabbed her on the groin. At that point she pushed him off with her legs and shouted “no don’t do that”.[67] She recalls that the accused laughed at her and he conveyed to her the impression that he thought it was something of a joke.[68] She has a recollection that the accused then responded by saying words to the effect: “everyone does that. Don’t you do that with boys?” She recalls the question and also recalls shouting back at the accused: “no I don’t”.[69] Her recollection is that she then swam back to the foreshore together with the accused.
[66] T51.28.
[67] T52.1.
[68] T52.7.
[69] T52.12.
In cross examination, JLM was asked questions about whether she was avoiding the accused in the lead up to this caravanning trip. She said she was eternally optimistic that things would get better and to an extent she did let her guard down. She did have a hope and a dream that he would become or be a good father.[70] She also agreed in cross examination that the water at the Port Pirie beach was quite shallow[71] and that it would have been necessary to go through the shallow water to get to the deeper water. Also in cross examination, JLM was taken to her diary entry for 24 November 1986 which describes the day at Port Pirie. She agrees she did not refer to swimming out of her depth in her diary[72] and when she was asked why she did not refer to that fact, she said it was probably because she would need then to refer to the groping and the “horrible incident” that she did not want to refer to in her diary.[73]
[70] T80.25.
[71] T94.11.
[72] T95.10.
[73] T95.24.
JLM agreed that nowhere in the diary[74] is there any mention of any behaviour of the accused which is the subject of the charge before the court. She explained that the reason for that was she was frightened by the information she held. She thought that if she recorded that information in her diary, it would split her family apart.[75] She did not record anything in her diary of the nature of the incidents that are the subject of her evidence and the charges against the accused because she did not want that information in the diary which could be shown to anyone. She was afraid of the consequences.[76] She was aware that if anybody saw her diary and read those matters, it would split the family apart.[77] She did not want to take that risk.
[74] Exhibit D3.
[75] T85.16.
[76] T85.34.
[77] T85.16.
After the car was repaired in Port Pirie, the caravanning trip continued. JLM said the caravan in which they were initially traveling with was quite small. When you entered the door of the caravan, there was a table that converted into a double bed on the left hand side followed by a kitchen area and then double bunks running towards the back of the caravan.[78] She said she slept on the top bunk at the very back of the caravan. That was about shoulder height which was about 1.2m to 1.4m off the floor.[79]
[78] T52.38.
[79] T53.34.
JLM recalls that during the trip, there was an occasion when she was woken one night. She had been sleeping. She recalls that at that time they were on their way to Ceduna. They were sleeping off road. She recalls that the accused woke her by nudging her. He said to her words to the effect: “you’re having fun there aren’t you?” At the time she was a young girl of about 13 years of age and she did not know what he meant by what he was asking. She recalls saying to the accused words to the effect: “no I’m not” or “just go away”. She just rolled over to face the back of the caravan. That is all she could recall.[80]
[80] T59.29.
JLM said on the trip, they eventually got to Perth sometime after Christmas 1986. She said it was in high summer. She recalls that the accused and her mother traded the caravan in for a larger and newer caravan whilst in Perth.[81] She recalls that in the new caravan, there was a bedroom in the front area which was used for the children. There was a larger bedroom in the back area for her parents. In the middle there was a kitchen and table separating the two sleeping quarters.[82] JLM recalls that she slept again in the top bunk and her younger sister slept in the bottom bunk in the front section. The caravan did not have any bathroom facilities but they would often get changed in the caravan itself.[83]
[81] T54.26.
[82] T54.37.
[83] T55.20.
JLM also recalled that the main kitchen area had an L-shaped couch around the table. She said she used to like sitting in the right hand corner edge to watch television. She recalls there was a cupboard and a wardrobe immediately next to this corner section and then there was then a concertina wall which would pull across to close off the bedroom area which her mother and the accused would use.
She recalls that the back of the couch, the cupboard and the wardrobe were about 1.1m to 1.2m tall. If she was sitting in the corner and watching television or reading a book and, for example, the accused was getting changed without the concertina doors being pulled shut, her back would be towards him.
She recalls occasions when the accused started using his penis to tap the back of her head or her cheek.[84] JLM said he would do this when her mother was in the room with her back turned. On those occasions she would say “no” or “don’t do that” and he would just laugh. She did not know whether his penis was erect when he was doing this.[85] Her recollection was that he would do this in the middle of changing to go to the beach but she cannot recall when he first did this and she does not recall how many times this occurred.[86]
[84] T56.5.
[85] T56.13.
[86] T56.24.
I have a real doubt about the evidence given by JLM on this topic only. She was not able to give any evidence of the width of the couch, the proximity of the couch to the changing area or how, for example, it would be that the accused might get access to her across the top of the area of the couch in the way in which she described. JLM also said that these events occurred when her mother was in the room. I am not satisfied that the evidence given by JLM on this topic is of sufficient detail for me to be satisfied of its cogency and reliability. I do not consider that the view I have formed about the evidence on this topic in any way diminishes the credibility, reliability or truthfulness of the other evidence given by the complainant. I consider that the evidence on this topic is too vague and lacking in detail to enable me to make any finding about it.
In cross examination, JLM was asked whether she spent a lot of time on the trip alone with the accused. The recollection of JLM is that it was often the case that they were all together.[87] For example, she could not recall going swimming alone with the accused again.[88] She was asked whether she went shopping alone with the accused. Her recollection is that she would often also be with her mother.
[87] T80.25; T80.31.
[88] T81.1.
JLM gave evidence that sometime after leaving Perth with the family, her mother was taken ill. She was suffering from severe abdominal pain which was thought to be appendicitis.[89] Her mother was eventually taken to hospital and during that time, JLM stayed in the caravan park with her sister and the accused whilst her mother was in hospital. She thinks her mother stayed in hospital for about 4 – 5 days.
[89] T58.30.
During that time, she recalls one night when she was asleep and it was quite dark outside. She was awoken by the accused who was quite insistent that he wanted to come up and sleep in her bunk bed.[90] When she became aware of what was happening, she had the clear impression that the accused was ill as he was shaking. She was aware that the accused had a history of sudden bouts of nausea and uncontrollable vomiting and so she thought the accused was ill because he was shaking. She said she felt it was her responsibility to look after him.[91]
[90] T59.6.
[91] T59.10.
JLM recalls she was laying on her side and she had her back towards the exterior wall. She recalls that when the accused got into her bunk, he was lying on his back and on the edge of the bunk. To an extent, they were facing each other. JLM recalls that the accused was shaking a lot. She thought that he may have had some sort of chill or some sort of stomach upset. He turned onto his side. She then rubbed his back and was trying to think of what she could do if he was ill. This was because he had this history of having stomach upsets and uncontrolled vomiting.[92]
[92] T59.14.
JLM recalls that the accused had his head position lower than hers at some place around her upper chest. This was while she was rubbing his back and he was in a crouched position. She thought that this went on for some time and he then said to her something to the effect: “will you hold me?”[93] She did. She thought that his shaking went on for about 3 – 5 minutes. It then stopped suddenly. The accused became relaxed and then said “I feel so close to you now”.[94] It was at that point that JLM felt that she was being taken advantage of by the accused. She said to the accused “get out of my bed, get out”. She pushed him off the bed. He said “be careful”.[95]
[93] T59.29.
[94] T59.34.
[95] T59.38.
A number of references were made to the diary Exhibit D3 and the possibility she went fishing and did other activities alone with the accused. The response generally of JLM to such suggestions was that:-
…it’s a little bit black and white the way you are describing it where in fact there is multiple dynamics going on: the need to please [her] mother, the desire for things to get better and the desire just to be a child. So [she] can’t exclusively say that that would never have occurred…[96]
[96] T81.23.
I consider this to be a very convincing and intelligent answer. It is a mature answer to an open question. I think it is inherently unlikely that at times during the caravanning trip, the accused would not have been alone with JLM. I think it is also inherently unlikely that they were not alone when doing activities such as fishing. I also accept without hesitation the evidence of JLM that she was always hopeful that things would get better, that she wanted to be a child and that she wanted to please her mother. They were on a long trip around Australia, they were living in confined circumstances and JLM, as a young teenager, was trying to do the best she could for the family. I consider that the evidence given by JLM on this topic and all other topics apart from the one I have mentioned concerning the activities in the caravan was accurate, reliable, compelling and creditworthy. Apart from the exception that I have identified, I accept her evidence without hesitation.
For example, JLM readily agreed that she was fond of the accused during the trip.[97] She was living in close proximity to the accused. The accused was married to her mother and they were living as a family. That had been the situation since she was about 7 or 8 years of age. She was now 13 going on 14. She readily agreed that the presence of a father figure in her family was very important to her.[98] She agreed that she called the accused “dad” and her surname was changed to his, although she recalls that was done without any input from her.[99] She also readily agreed that she had earlier enjoyed spending time with the accused such as being in the shed and learning how to do things.[100]
[97] T81.
[98] T66.35.
[99] T67.10.
[100] T68.6.
In cross examination, JLM agreed that the diary Exhibit D3 did not record any inappropriate behaviour by the accused or any sexual behaviour by her about which she was complaining. She was asked why there was no reference to the regular groping she said was occurring. She said she was very frightened by that information and she continually thought that if she recorded it, then the diary would be seen and would split her family apart.[101] She continually thought that she would not record anything about those matters in her diary deliberately. She did not want it to be shown to anyone as she was afraid of the consequences.
[101] T85.16.
In cross examination she also agreed that on occasions she was sympathetic to the accused about the amount of work that he was doing.[102] She agreed that there may have been occasions when she and the accused were together. She got a haircut in company with the accused but she thinks this might have been with other members of her family.[103] They visited a zoo in Darwin but she also thinks that might have been with the rest of her family.[104]
[102] T89.22-27.
[103] T87.34.
[104] T88.4.
JLM was also in regular contact with teachers from her correspondence school. She thought she got a phone call once per week or two and that she had contact with a number of teachers. She could not now recall who her teachers were.[105] She was very good scholastically and had no difficulty keeping up her work whilst on this trip. During the trip she also continued to participate in Girl Guides from place to place; this is something she had done back in Adelaide.[106] She agreed that she made no complaints to her teacher or to any supervisors of the Girl Guide group in which she participated.
[105] T88.11-19.
[106] T89.6.
She also continued in her diary to refer to the accused as “dad”. For example, on 6 March 2007, she refers to the accused as “dad being practically dying with his new job of picking carrot seeds off 8 foot carrot tops”.[107] It was then put to JLM that the recording of the conversations and the sympathy she was expressing towards the accused and his activities made it highly unlikely that any of the events or the groping that she had described would have occurred on the day that she made an entry about “dad”.[108] JLM could not agree with that proposition. She said she was not disclosing the information to anyone because after the second disclosure to her mother and nothing had happened, she thought that no one would believe her. At T91.20, after a number of references to activities involving the accused on this caravanning trip she was asked this question about the content of the diary, Exhibit D3:-
QWell, it’s also fascinating to read, isn’t it, because it doesn’t quite fit with the (accused) that you described and the actions or the impropriety that you claim to be perpetrated against you now in the proceedings for six years does it.
AAnd the reason for that is because you would see this diary and… would happen to destroy the family that I so wanted to protect. I wanted to pick this diary up and destroy which I was trying to protect, which was my mother and the relationship within the family.
Q But on your version you had already told your mother.
AYes, but she didn’t believe me. But as I’ve said before, I was eternally hopeful that the right thing would be done.
[107] T90.18.
[108] T90.36-91.4.
At the end of the caravanning trip, the family returned to Adelaide. The family did not return to the Modbury Heights house but lived at a number of different addresses before moving to a home at Cumberland Park.[109]
[109] T61.28.
After returning to Adelaide and living at Cumberland Park, JLM attended secondary school to completion of Year 12.
The complainant gave evidence of another incident involving the accused after she returned from an exchange in Germany in 1989. She was at home in the morning but she does not know what time it was.[110] When she awoke, the house was quiet so she believed everyone was at work or at school. She had a late start because she was in year 12 or she was at university. She cannot now recall. She was sleeping in what was described as a sleepout. She walked out of that room through the kitchen to the bathroom to have a shower. She put a towel around herself and then went back to her room to get changed. Whilst she was getting changed, she heard a sudden noise in the house. She stopped doing what she was doing in an attempt to work out what the noise was. She described it as a thundering noise of footsteps rumbling through the house.[111]
[110] T61.36.
[111] T62.22.
As it was a sleepout, the door to her bedroom was all glass but it was mottled glass. She could see through the mottled glass that there was a shape moving towards her. Then, without warning, the accused burst through the door and he was completely naked. He went “ta da!” He had an erect penis and he was smiling.[112]
[112] T62.22.
She can recall that she shouted at the accused “get out get out!” She pushed him out and shut the door, locking it. She recalls this was a most bizarre experience and not something she was expecting and she has no idea what the accused might have been thinking.[113] She recalls that within months she moved out of the house. She thinks she moved out of the house when she was in her first year of university. She went to live in student accommodation.
[113] T63.3.
In cross examination, the accused put to JLM that what she was saying about the events the subject of her complaints to the police simply did not occur. She denied that suggestion.[114] It was put to her that she did record other information of a personal and sensitive nature in her diary such as getting her first period. She was challenged why if she recorded something as personal as that, she did not record other personal information. The complainant said there was nothing unusual in a 13 year old girl writing that type of information down.[115] She also distinguished this information from reporting the details of the allegations of sexual abuse within the diary[116] stating that she formed the view that it was inflammatory information that she thought was too powerful for the family to bear without it coming out unscathed.[117]
[114] T99.25.
[115] T100.10.
[116] T101.
[117] T101.21.
The accused put to her in cross examination that the incident at home at Cumberland Park simply did not happen and JLM denied that.[118] She also denied the assertion put to her in cross examination that she had not made any allegations to her mother regarding the sexual impropriety of the accused. She disagreed entirely with that proposition and denied its veracity.[119]
[118] T102.34-103.36.
[119] T107.37.
Also in cross examination, the proposition was put by the accused that once she had gone to university for the first year in 1991 she wanted to gain her independence. It was put to her that this is why she moved out. She disagreed with these propositions and said that she did not form any view about what she should do until the night she left the house.[120] It became apparent to her that in order to enable her to leave home, she needed independent Austudy to support herself. She thought about that once she had made her decision to move out of home. That was her thought process.[121] It was put to her that she knew that she could be awarded independent Austudy by substantiating through a statutory declaration that she could not live at home.[122] I do not accept that this was the complainant’s state of mind when she decided to leave home.
[120] T108.24-109.4.
[121] T109.13.
[122] T109.19.
After moving out of home, she purchased a book called “Growing Through Pain, the incest survivor’s companion”. She read that book in part. The book records the stories of six incest survivors and their journey through the survival of incest. On page 168 of the book Exhibit D6, she made a notation:-
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 paragraph on that page of the book, to which this note refers and as it appears on the Exhibit with the complainant’s underlining, reads:-
I don’t remember especially wanting to tell my mom about the incest. If I did have a strong urge to tell her, I don’t remember feeling it. My mother used me a lot as a confidante, and I became an adult very fast with all of this. I realize now that I had a lot of adult perceptions. 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.
The accused put to her that this handwriting was a reference to the fact that she had not told her mother anything about the allegations that she was now bringing in court. The accused put to her that what she was recording by that handwritten entry was that she was identifying with the woman in the book that she also wanted to tell her mother but did not. As a result, the reflection meant that she could not have told her mother.
JLM denied that proposition[123] and said when reading the book, she could see a similarity between that story and her history whereby she felt she continually could not try to tell her mother to disclose anything further to her because it would break her mother’s heart and she obviously could not cope with it. That was the conclusion that JLM had reached. She had informed her mother but the last time was two years after the first incident when she would have been about 9 or 10 years of age.[124] JLM had come to the conclusion that because her mother did not rescue her from the situation that her mother could not cope with the situation and perhaps was in denial. That is why she responded to the story through her reflections that she too felt that her mother could not cope with the problem because JLM could not continue to talk with her about it as she knew or had formed the view that her mother could not cope and the information would break her mother’s heart.[125] The accused then put the proposition to JLM that she was making the matter up. She denied that proposition. She said that when she wrote this sentence in the book the expression “always” meant “constantly” because she constantly wanted to tell her mother what was going on but could not do so. All of this was a reflection on somebody else’s story.[126]
[123] T109.24-110.38.
[124] T111.1-17.
[125] T111.9-17.
[126] T112.3.
JLM was then taken to passages that she had underlined in the text on page 168 of the book. It was put to JLM that she had underlined those particular sentences to indicate her agreement with those sentiments.[127] JLM did not agree with that proposition and said she had underlined those words because she recognised the same feelings within herself.[128] She saw the underlining as identifying something in someone else’s story that struck a common chord with her.[129] JLM denied the proposition that this was a record of her never having spoken to her mother. She said that it showed something different, that she has reflected on someone else’s experience and how it was similar to her experience.[130]
[127] T116.19.
[128] T116.26.
[129] T116.38.
[130] T117.3-30.
JLM said she obtained the book in late 1991 when she was living independently in North Adelaide and was going to university. At that time she was having some form of counselling. She thought she had one or two sessions of counselling immediately after she left home. It was put to her that after completing two sessions of counselling and then reading the book, she ruminated on her recollections and developed recollections that she had been sexually interfered with by the accused.[131] JLM denied that proposition. She had the counselling because she was in a state of emotional distress at having made the decision to leave an abusive home environment and she was facing the world alone.[132] The purpose of getting the book was to help her work through the feelings she had at the time.[133]
[131] T120.31.
[132] T119.7-14.
[133] T118.9-36.
During counselling, JLM disclosed to the counsellor that her reason for leaving home was the abuse of the accused towards her from a very early age and that she could not live there anymore. She needed to work through those feelings before she could work out what she was going to do next,[134] having made the decision to leave home on the same day she left.[135] She became aware that she was entitled to independent Austudy if it was unsafe for her to live at home.[136] I accept the evidence of JLM on that and the other topics as I have indicated. I found her to be a compelling, reliable, accurate and truthful witness.
[134] T119.7-23.
[135] T119.38.
[136] T120.20.
JLM was then cross examined on her academic record. She was an outstanding student at school and achieved very high results at university including an honours degree in chemical engineering. This cross examination appeared to suggest that there was an inconsistency between the events complained of by JLM and the achieving of these results. I would reject such a proposition as untenable.
Exhibit P8 is a statement of agreed facts. Agreed facts 7 and 8 read as follows:-
7. The accused’s legal representative issued a subpoena to the University of Adelaide counselling section on 16 March 2015 seeking counselling notes with respect to the complainant.
8. The counselling service responded by way of a statutory declaration dated 16 March 2015. That statutory declaration reads as follows:-
i. …
ii. I have undertaken a thorough search of the university’s records and am unable to locate any counselling notes relating to JLM…
iii. The university student records show that JLM ceased to be enrolled at the university in 1994.
iv. Since 2012, the minimum retention period under General Disposal Schedule 24 (pursuant to the State Records Act) for university student counselling records is 15 years from the last activity on file. Prior to 2012, no minimum retention period was specified and I believe the university’s counselling service would have applied a 7 year retention period.
v. Had any counselling notes existed for JLM, I believe these would have been destroyed.
vi. I have been unable to locate a file destruction record. I believe this is because prior to 2001, there were no formal records disposal procedures in place at the university and therefore file destruction records were not kept.
The prosecution also called in evidence LID, the half-sister of the complainant. She recalled that she lived with her mother, father and half-sister JLM until she was about 9 years of age. At that time her mother, her father and herself moved to Queensland and JLM stayed in Adelaide.[137]
[137] T128.10.
LID recalled living at a house at Modbury Heights as the first house she had lived in, then going on a trip around Australia with the family, then living with her grandparents for a few weeks and then rented accommodation at Colonel Light Gardens. She recalled then going to the Cumberland Park address.
She recalled that there were occasions when she got ill or had nightmares and she sought assistance from her mother or her father.[138] LID said that on those occasions she would call out to her parents or go to them. One or other of her parents would come out and put her back to bed and look after her.[139] She did not have a recollection of getting into bed with her parents when she was ill or suffering from nightmares but she does recall being in bed with her parents on special days like Mother’s Day, Father’s Day, birthdays and those types of days. LID said that on those occasions they would sometimes make breakfast and bring in a tray of food and everyone would hop into the one bed and stay there for a while having breakfast.[140] When she was referring to “all of us”, she was referring to her mother, her father, JLM and herself.[141] This evidence contradicts the proposition put to the complainant that she would never enter her parents’ bed.
[138] T128.31-38.
[139] T129.7.
[140] T129.15.
[141] T129.1-38.
LID also confirmed that during the caravan trip the family members got changed in the caravan. It would not have been unusual for members of the family to get changed into their bathers in the caravan.[142]
[142] T130.23-28.
As I have mentioned, LID was asked questions about being sick or having nightmares as a child. The proposition was put to her that it would be only her mother who would look after her and put her to bed and stay with her. She did not agree with that proposition. The following exchange is disclosed at T132.9-14:-
QIt would be your mum who would take care of you and put you to bed and stay with you if need be.
AAnd my dad as well. It seemed to be more so my mum. She would, if I was having a very bad fever, she would stay in the room through the night with me but my dad would also put me to bed as well and comfort me.
QDad might put you to bed and tuck you in but if you needed a bit of sort of ongoing looking after that was mum’s job would you agree.
AI don’t know if it was her job. It was more sort of she tendered to be more so the one to do it, I guess.
Then in relation to whether or not members of the family were in the bed with the parents, she was asked these questions at T132.20-27:-
QYou mentioned special occasions like Mother’s Day and Father’s Day, was there an occasion, maybe Mother’s Day or Father’s Day when JLM and you went into your parent’s room in the morning and you were jumping on the bed when they were still in it.
AYeah, I mean probably it was more like I was jumping on the bed because I was the youngest. It was a water bed so it was kind of fun to jump on.
This evidence given by LID is entirely consistent with the evidence given by JLM in relation to those matters. That evidence is very important in light of the Rule 49 application which the accused then re-agitated at the end of the hearing of evidence of this trial.
I have already earlier referred to the statement of agreed facts, Exhibit P8. I have already recorded agreed facts 7 and 8. For the sake of completeness it is necessary to recite the other facts in paragraphs 1 to 6 on that statement as follows:-
1. The complainant was born on 25 September 1973.
2. The accused was born on 10 June 1954.
3. LID was born on 3 May 1983.
4. The accused is circumcised.
5. The accused as his wife sold the Modbury Heights house on 18 November 1987.
6. The accused has no criminal record.
In relation to agreed fact number six, I have taken into account that the accused is ordinarily a person of good character in reaching my decision.
Uncharged acts and other conduct
As will be clear from the above discussion, the evidence led by the prosecution, without objection from the accused, concerned other conduct which was not particularised as conduct comprising the ongoing acts of sexual exploitation although, the particularity of the offence states that the conduct included the conduct which I have set out above. Some of the conduct comprised evidence of uncharged acts. I refer in particular here to the act alleged to have taken place in the complainant’s bunk in the caravan on the trip and in the Cumberland Park house in 1991 where the accused allegedly exposed himself to the complainant. I accept the evidence of the complainant on those topics without any hesitation.
It is first necessary to state that in relation to this other conduct of the accused that I find proved, it is impermissible for me to reason on some propensity basis. I have not done so. I am required to try this case on the evidence relating to the offence charged against the accused and not evidence relating to other things that he has done on another charged or uncharged occasion or occasions.
I am not permitted to reason that if the accused had committed another crime or engaged in some form of misconduct not covered by the particular charge that I am considering, that he is the sort of person who has committed or is likely to have committed the charged offence. In addition to the evidence led in relation to the specific charge on the information, the prosecution led evidence from the complainant of other acts of misconduct. I have described them above as uncharged acts. I have also stated above that I am satisfied beyond reasonable doubt that the accused performed the uncharged acts.
I would not reason that merely because I am satisfied beyond reasonable doubt that the accused committed the uncharged act that he is the sort of person to have committed the charged offence. I have already described that as impermissible propensity reasoning. I would use the evidence of the uncharged acts only for the purpose of placing the relationship between the accused and the complainant in context. That context is important because the charged the acts did not come “out of the blue”. Secondly, the evidence in relation to the uncharged acts might be relevant to explain the confidence that the accused had in performing the charged offence including a confidence gained from the complainant’s failure to complain about ongoing conduct and the confidence gained by him that he might continue on to behave in the way that he did.
I also think that the ongoing nature of the accused relationship with the complainant as asserted by her on the prosecution case might also explain why she did not complain about the accused sexual misconduct until later on. I also bear in mind that the alleged uncharged acts could only be relevant to a charged offence if the particular uncharged sexual act had occurred prior to the charged act. If I am satisfied that the uncharged conduct occurred after the charged acts, it may not be considered by me in respect of any earlier charged count.
There is other evidence, such as the conversation in the car on the way to school about asking the accused any questions about sex. This type of evidence is often referred to in evidence relating to the potential grooming of a minor by an adult. I find that the evidence of the complainant on those matters may be accepted as truthful, reliable, cogent and compelling. Even though I have made that finding, I have decided to leave that evidence to one side in my deliberations. I do not intend to give any further consideration to that evidence. My considerations of that evidence do not form part of my process of reasoning in this matter concerning the particulars of the alleged offence. My assessment of the truthfulness, reliability, cogency and compellability of that evidence sits in the background of my assessment of the evidence given by the complainant.
Complaint evidence
I have already recounted the evidence given by the complainant of two complaints to her mother about 12 months apart concerning the abuse that she was allegedly suffering by the conduct of the accused. I accept the evidence of the complainant in relation to those complaints made to her mother beyond reasonable doubt. I have found her evidence on that topic to be truthful, reliable, cogent and compelling. Her evidence on that topic has not been disturbed in a thorough cross-examination. The case put for the accused to the complainant in cross-examination is that the complaints were never made. I am unable to accept that proposition and I accept as proved beyond reasonable doubt that the complaints were made by the complainant to her mother in accordance with her evidence.
Any evidence given by a complainant about the making of a complaint to a third party is, without more, hearsay evidence. That evidence cannot be accepted except if it falls within one of the exceptions which are now codified in s 34M Evidence Act. I may only accept this evidence as evidence of consistency of conduct on the part of the complainant and not on the basis to prove the truth of the statements made by the complainant. It may also be received to inform me how the allegation first came to light. I have approached that evidence on that basis.
This is significant at a number of levels because the whole of the credibility of the complainant was attacked by the accused. As judgments No. 1 and 2 in this matter disclose, two Rule 49 applications have been made by the accused that the court invite the prosecution to call the mother of the complainant in evidence in the prosecution case. I have dismissed both of those applications. The version of the mother of the complainant is that no such complaint was ever made to her.
In those circumstances, even though I have made a finding that I accept as proved beyond reasonable doubt that the complaints were made, I have put that evidence to one side in coming to my decision on this matter. This is because it is necessary for me to more closely scrutinise the evidence of the complainant in this matter, it being unsupported by other independent evidence. I consider that the process of more closely scrutinising the evidence of the complainant from the point of view of the accused is most appropriately done by putting to one side any further consideration of the complainant evidence. That is how I have proceeded in this matter.
Offence of persistent sexual exploitation of a child
In respect of an offence alleged against an accused under s 50(1) of the CLCA it is necessary for the prosecution to prove that the accused was an adult person who over a period of not less than three days committed more than one act of sexual exploitation of a particular child. In the particulars of the charge, the period over which the conduct alleged to comprise the ongoing acts of sexual exploitation occurred was between 25 September 1981 and 31 December 1991. I am satisfied beyond reasonable doubt that the conduct comprising the ongoing acts of sexual exploitation occurred during that period of time and I am therefore satisfied that the conduct took place over a period of not less than three days.
In R v Landmeter,[143] the majority Vanstone and Bampton JJ said at paragraphs [25] – [29] as follows:
[143] (2015) 121 SASR 522.
[25] Section 50(4) deals with the way in which such an offence may be charged:
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i) the period during which the acts of sexual exploitation allegedly occurred; and
(ii) the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i) in relation to the child who is allegedly the subject of the offence against this section; and
(ii) during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
It will have been noted that if specific sexual offences are also charged in relation to the same victim during the period covered by the sexual exploitation charge, they must be charged as alternatives. Accordingly, a defendant could not be convicted for both.
[26] Subsection (5) makes it even clearer that the sexual exploitation charge covers the field in relation to a specified period and victim for all time; being either convicted or acquitted of such a charge is a bar to future conviction:
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
[27] Taken as a whole these provisions suggest that, in contrast to the traditional situation, all sexual offending by a person against a particular child in the relevant period falls within the single offence of persistent sexual exploitation of a child, whether particularised or not. One of the important functions of the particulars for this charge is to establish which of the acts (or types of acts) occurring within the course of conduct will be available in proof of the charge. For example, in framing the charge, the Director of Public Prosecutions might wish to confine the particulars to certain of the more serious acts alleged, so that the jury is obliged to render its verdict having regard to those allegations; even though less serious conduct might also be described by the victim, and have been available to be particularised. To repeat the point, by definition, the offence encompasses all sexual exploitation making up a course of conduct against a particular child within a given period. The function of the particulars is to define those allegations which are available as a basis for proof of the charge.
[28] Accordingly, here, the hugging without accompanying kissing was neither uncharged (as that adjective is usually employed) nor “discreditable conduct … other than conduct constituting the offence“ under s 34P Evidence Act, and so did not call for the directions contended for by Mr Mead, either at common law or under s 34R.
[29] However, it will be necessary to make plain to the jury that proof of the unparticularised conduct is not sufficient to prove the charge; it is proof of more than one act of the particularised conduct of which the jury must be satisfied. In this case the judge twice identified the particularised conduct as the conduct on which proof of the charges depended. In addition, the jury had copies of the information.
As is clear from their Honours’ judgment, I am required to be satisfied of proof beyond reasonable doubt of more than one act of the particularised conduct of sexual exploitation. It is therefore necessary before the accused may be found guilty of a charge of contravening s 50 of the CLCA for me to be satisfied that he committed at least two acts of sexual exploitation of a child under the prescribed age. Under s 50(7) the prescribed age in relation to a person who is in authority in relation to the child is 18 years. Under s 50(8)(b) CLCA a person is in a position of authority if that person is a step-parent of the child. The accused is the step-father of the complainant.
Although I accept that at the intermediate appeal court level there appears no doubt about what is sufficient to be alleged to lead to a conviction (upon satisfaction beyond reasonable doubt) of an accused, there must be some doubt in relation to the question of what is necessary for certainty. I will come later to that matter but I refer here to the decision of the Court of Criminal Appeal in R v Chiro[144] and the grant of appeal by the High Court on Friday 10 February 2017 of an appeal against that decision. I will discuss that matter later.
[144] (2015) 123 SASR 583.
I think it is worthwhile to attempt to gather the relevant principles as they are applicable to the operation of s 50 CLCA. They are as follows:
1. It is necessary to identify the two or more acts of sexual exploitation from the multiple acts alleged and that I am satisfied of proof of these two matters proved beyond reasonable doubt.[145]
2. There must be a minimum amount of evidence adduced by the prosecution to satisfy me of the two offences (at least) and for me to decide that those two offences were committed.[146]
3. Section 50 does not require evidence which allows offences to be delineated or identified by reference to differentiating circumstances.[147]
4. Neither the elements of the offence or its particularisation nor any implication of the extended unanimity direction require the occasion on which each act of sexual exploitation was committed to be identified in a way which distinguishes it from other acts of sexual exploitation.[148]
5. Ordinarily it is inappropriate to take special verdicts on the various acts of sexual exploitation alleged.[149]
6. The acts may consist both of those of which adequate particulars can be given and those where such particulars cannot be given.[150]
7. On the question of particularity it is not necessary to establish the dates or occasions of each of the separate sexual offences so that they can be distinguished from the other.[151]
[145] R v Little (2015) 123 SASR 414 at [4], [12] and [20].
[146] Ibid at [110], [112], [113], [114], [115] and [116].
[147] R v Hamra [2016] SASCFC 130 at [47].
[148] Ibid at [43].
[149] R v N, SH [2010] SASCFC 74.
[150] R v Livingstone (2011) 109 SASR 380.
[151] R v C, G (2013) 117 SASR 162.
I have earlier mentioned the decision in R v Chiro. In that case, the appellant Mr Chiro was found guilty in a jury trial of persistent sexual exploitation of a child contrary to s 50(1) CLCA. There was a broad range of conduct that was particularised ranging from kissing on the lips to fellatio. On appeal Mr Chiro submitted firstly that the conviction was void for uncertainty. He alleged that where the prosecution had clear evidence of specific instances of sexual abuse then it was not necessary to use s 50 CLCA but there should be specific charges in relation to those offences. This, Chiro alleged, was consistent with what fell from the Court of Criminal Appeal in R v N, SH[152] at [11]. In R v N, SH a s 50 charge had been laid but the trial Judge took special verdicts from the jury. This was to establish which of the acts mentioned in the particulars had been found proved by the jury. The convictions were quashed because the Court of Criminal Appeal took the view that there should have been separate trials. The court was therefore of the view that inadmissible evidence had been introduced. The court held in Chiro at [9] that it is for the prosecution to select particular charges upon which a defendant will be presented for trial and it is not the role of the court to express a view as to whether a particular charge is to be preferred to another. In the absence of any particular constraint within the wording of s 50 CLCA about how it is to be used, the court would not artificially read into the provision some particular stricture upon the Director’s power to use it. These are matters within the Director’s discretion.
[152] [2010] SASCFC 74.
Mr Chiro also submitted that the selection of such a charge under s 50 had sentencing consequences. This was because the range of offences alleged against Chiro, at the lower end, involved kissing and at the higher end involved fellatio. In the absence of any special verdicts, there remained uncertainty as to what was established by the guilty verdict of the jury. That, on the argument, led to uncertainty and therefore the verdict was void. Reliance was placed upon the decision of the High Court in Cheung v R[153] which was an appeal against sentence. Two of the Judges of the High Court were in dissent. Kirby J said that it was desirable as a matter of prosecution practice that:-
… wherever practicable offences should be framed with specificity so as to enable the Judge to sentence an accused as near as possible to the basis of the facts found by the jury: [132]. In that regard Kirby J agreed with Callinan J. His Honour also said that it was desirable in a case such as Cheung’s to take special verdicts to elucidate the basis upon which the jury had convicted. Callinan J at [160] said that the Crown should try to formulate a count or counts so as to enable the Judge to fix a penalty in accordance with the manner in which the jury reached the verdict.
[153] (2001) 209 CLR 1.
Vanstone J in Chiro held that the ratio of Cheung’s case is not reflected in the judgments of Kirby and Callinan JJ.
The next ground of appeal was that special verdicts should have been taken and the absence of taking special verdicts leads to uncertainty because of the wide range of acts particularised in the Judge’s direction. This was because even two instances of kissing would suffice in terms of the actus reus and so there was a need for the Judge to take one or more special verdicts to determine on what basis the guilty verdict had been rendered. This argument was contrary to the New South Wales Court of Criminal Appeal in R v Isaacs[154] and is contrary to views expressed in the decision of the Court of Criminal Appeal in this State in R vN, SH where the trial Judge was criticised for taking special verdicts after a trial of a s 50 CLCA charge.
[154] (1997) 41 NSWLR 374.
Vanstone J, who wrote the decision of the court, formed the view that the Judge was correct not to take a special verdict. To have put the jury on notice that it would be required to inform the court of the conduct which formed the basis of its findings might have confused the jury in its deliberations on the general issue as well as confusing the jury about the questions to be asked of it by the directing Judge. For example, Mr Chiro submitted that the jury should have been asked in turn about each numbered particular in the information. Vanstone J formed the view that there was no need for a special verdict.
In the High Court, special leave was granted to Mr Chiro on 10 February 2017. It is therefore appropriate that I put to one side the reasoning of the Court of Criminal Appeal in Chiro pending the decision of the High Court. However, for the reasons that follow, I am satisfied that the decision in Chiro does not have any material influence on my decision in this case. I now turn to those matters.
The parties’ addresses
The prosecution asked me to accept that the evidence given by the complainant is accurate, reliable, truthful and compelling. In respect of each of the acts alleged to constitute the offence of persistent sexual exploitation of a child, I am satisfied that the evidence given by the complainant in respect of those matters is accurate, reliable, compelling and truthful. I accept her evidence of those events on that basis. The question for me then is whether I am satisfied that the prosecution has proved its case beyond reasonable doubt.
In its address, the prosecution addressed a number of matters that I do not need to repeat because I have already canvassed them in full. However there are some matters with which I do not agree but those matters do not change the view that I have formed. The prosecution submitted that the alleged behaviour in the caravan of the accused touching the complainant on the neck and shoulder with his penis was not remarkable. I do not accept that submission because, different from other evidence given by the complainant, it lacks specificity, detail and completeness. The prosecution said that it could be explained simply by the accused becoming more involved as time goes by but I do not think that such an explanation is cogent in the circumstances. Having formed that view, two things follow. The first is that I have put that matter to one side and I will give it no further consideration. The second is whether the decision not to take into account that matter because of the criticism I have of the evidence given by the complainant about it would lead me to a conclusion that the complainant’s evidence on other matters lacks accuracy, reliability, cogency or truthfulness. I would not and do not form that conclusion. I have not accepted the evidence about those events because of the lack of detail about them. As a result I am not prepared to accept the evidence in relation to those matters.
Then the prosecution addressed what it considered to be matters that might appear anomalous anticipating the attack of Mr Algie SC in defence of the accused. The first was the apparent fondness of the complainant towards the accused in her evidence notwithstanding the systematic abuse of her. The second, is the note written in the handwriting of the complainant on the face of Exhibit D6. The prosecution suggested that there was an apparent incongruity in the fondness of the complainant for the accused despite the abuse. It suggested that that might seems incongruous through the eyes of a mature adult but the matter must be analysed from the perspective of the child. On the second matter, the handwritten entry in Exhibit D6, the prosecution suggests that the proper approach is to view the matter from the child’s perspective. It was submitted that the answers given by the complainant in relation to those matters to the questioning of her in cross-examination are demonstrative of the reaction of a child and so there is nothing incongruous, implausible or unsatisfactory about those matters.
I have some difficulty understanding the submission of the prosecution on these two points. Rather than deal with those matters separately, it is appropriate that I deal with them through the progress of my decision making in relation to the submissions put by the defence. I turn to those matters now.
First the accused relied upon the context of the matter, namely allegations brought against the accused some 30 years after the event when the family was described as being an ordinary family that was typical. It was suggested that this established an unconditional bedrock from which the prosecution sought to build its case.
The accused submission is only accurate to an extent. The facts are that the complainant was born in Adelaide, she went to live in Mt Gambier with her parents and whilst in Mt Gambier her parents split. In 1981, after the complainant’s mother had moved back to Adelaide, she had commenced a relationship with the accused and the accused moved into their home at Modbury Heights. Therefore, from the age of about seven, the complainant had been through the experience of having moved from Adelaide to Mt Gambier, having witnessed the breakup of her parents’ marriage and then returning to live in Adelaide with her mother after the separation. The question of these events arising 30 years later is a matter to be considered in respect of the forensic disadvantage to the accused. I will consider that matter later.
Then the accused suggested that the allegations enjoyed no independent support and that, objectively, they were contradicted and undermined. I am unable to accept the submission that the allegations of the complainant were contradicted and undermined. I will address those issues later.
It is very often the case that in matters of this type where children are allegedly abused in a family situation, that there is very little independent support. There is no rule in relation to those matters but experience of life and common sense dictates that there will very often be no independent support for a version given by an allegedly abused child. Obviously enough, the version given would be bolstered by independent support but that does not mean that in the absence of such support, it would not be possible to make a finding of proof beyond reasonable doubt of the alleged conduct. It is necessary for me to more closely examine the evidence as a result. This is the approach that I have adopted. I have taken the same approach as I would direct a jury to take in a jury trial. The direction would be to take particular care to analyse the evidence of the complainant, unsupported as it is by other independent evidence and so, as a result, that evidence must be more closely scrutinised.
The accused then suggested that the evidence given by the complainant was from the point of view of a mature, highly intelligent educated and articulate 43 year old woman. The court should take the view that this version of events is infected by explanations emanating in retrospect from such a person who attempts to explain away incongruities that emerge at a time when she was between 9 and 14 years of age. It was submitted by the accused that such incongruities should be recognised for what they are, namely the creation of a reasonable doubt. The accused submitted that it is a possibility that the complainant in her position may now well believe her story and that in many respects, there is a real prospect of a miscarriage of justice by way of a wrongful conviction because the case as presented by the prosecution relies upon an intelligent, educated and articulate 43 year old woman who was casting back into history to give evidence of what happened to her as a child. The accused criticised the complainant for descending to almost jargon in her responses in cross-examination.
I am unable to accept this submission. There is no evidence before me and no indication that the evidence of the complainant is infected by retrospective reasoning. To the contrary, the complainant gave her evidence in a convincing and straight forward manner. She conceded freely that her memory on some matters may have been affected by time. On the crucial matters she had a sound, convincing and compelling recollection of the facts. Nothing arose in cross examination of her that would in any way throw doubt upon that view. There was nothing before me to suggest that the complainant was in some way attempting to explain away incongruities. I do not accept that any incongruities arose that required explaining away.
I also do not accept that the complainant was casting back into history to give evidence of what happened in a way that was untruthful, unreliable or both. She was a very impressive witness who was able to respond to questions in cross examination in a straight forward and honest way. I did not perceive any descent into jargon in her answers. I formed the view that the complainant’s answers were spontaneous, compelling and convincing. Cross examination did not lead me to conclude that the complainant’s evidence was contrived or that doubt should be cast upon her version of events.
On many occasions, the accused criticised the complainant for not having made any entries in her diary, Exhibit P3, of the alleged abuse suffered at the hands of the accused. The accused submitted that the diary was in fact an independent objectively verifiable truthful account of what really happened on the trip. That diary contains no allegation of any wrong doing on the part of the accused. It does nothing but reflect a happy, contented child enjoying a trip around Australia. The accused contends that the absence of any information within that diary points overwhelmingly in only one direction, namely that the events alleged by the complainant never happened. It was said to be an objectively verifiable version of events which was inconsistent with the version given by the complainant and should lead the court to a conclusion that the version of events given by the complainant should not be accepted. I will deal with each of those matters in turn.
The accused was particularly critical of the fact that the complainant said that she did not record matters in her diary because those matters would have been inflammatory information that she thought was too powerful for the family to bear without coming out unscathed. It was said that this was not the thought process of a 13 year old child who, when making entries in her diary, said nothing about the alleged sexual improprieties happening on that trip. This was said to be a post-event, rethought adult justification by the complainant. So also did the accused criticise that the complainant said that she did not make records in her diary because it was secret information. I am unable to accept that submission of the accused. In my view it overlooks reality, common sense and life’s experiences. I have already set out the background of life experiences of the complainant. She had witnessed the breakdown of her parents’ marriage. She had witnessed the separation of her parents, her return to Adelaide and her mother attempting to re-establish her life in Adelaide as a single supporting parent. She’d also witnessed the accused come into the life of her mother and herself and so she knew of the new family dynamic. I consider that it is perfectly natural for a young pubescent female to wish for the prolongation of stability in her life notwithstanding the abuse that she may allegedly have been suffering at the hands of a member of her family. It is my role to apply common sense and experience of life to assess that evidence. I accept without reservation the evidence of the complainant that she did not make entries in her diary of what she alleged was occurring because if seen, they may have necessarily led to the family breakdown.
The accused then alleged that when looked at objectively, the allegations made by the complainant are not able to stand up to any logical analysis.
In relation to the first event set out as particular (a) the accused said that no evidence was led that he might have said to her, as might usually be the case, “don’t tell anybody, this will be our secret”. That may well be the case but the absence of such a statement does not, without more, undermine the version of events given by the complainant nor does it suggest that such version is not accurate, reliable, compelling and/or truthful. The accused then criticised the version of the complainant when she made her first complaint to her mother that there was no allegation about touching or cuddling or masturbation in the bedroom. The version of events given by the complainant was that she told her mother that she had been touched by the accused and that she had pointed to her groin area. This was consistent with the evidence that she gave that she was being abused by being touched by the accused. However, accepting that factual scenario does not undermine the compellability, accuracy, reliability or truthfulness of the complainant. That is because the complainant was making her complaint allegedly after a period of abuse by the accused. The complainant told her mother about the abuse that she was then suffering. The criticism of the complainant is quite misplaced and the complainant said that the groping conduct was the most consistent form of abuse.
The accused then criticised the evidence of the complainant about having a nightmare and stomach aches and the accused being asked by the mother of the complainant to look after her. It was said that this was palpably illogical and could not withstand critical and logical analysis because on the complainant’s version, she already twice told her mother of the allegations against the accused which the mother had allegedly taken seriously. The accused had been spoken to twice. That assessment does not take into account a number of facts. The complainant gave evidence that she suffered constantly from nightmares. This has been a significant part of her life. She said that the fright from nightmares often manifested itself in a stomach problem for her. She sought out her mother on some of these occasions.
There is nothing to suggest that the complainant’s mother would not have taken the statement allegedly made by the accused that he was sorry (and would not reoffend) seriously and that she would not, for example, trust the accused if she herself was feeling unwell or there was some reason why she could not get out of bed on that particular night.
Also it is to be recalled that the evidence given by LID indirectly at least contradicts the propositions put to the complainant by the accused in cross-examination. I have already rehearsed that evidence given at T128-129. Contrary to the propositions put by the accused, LID said that one or other of her mother or father would come and look after her and put her back to bed if she’d had a nightmare or if she was feeling unwell. She thought that this might have been done mostly by her mother but was insistent that it was also done by her father, the accused. The accused put the proposition that LID told me that it was only the mother who would be responsible for comforting the children if they were sick or feeling unwell. I do not accept that characterisation of the evidence. The evidence in cross-examination about those matters is at T132 reads as follows:-
QIt would be your mum who would take care of you and put you to bed and stay with you if need be.
AAnd my dad as well. It seemed to be more so my mum. She would, if I was having a very bad fever, she would stay in the room through the night with me but my dad would also put me to bed as well and comfort me.
QDad might put you to bed and tuck you in but if you needed a bit of sort of ongoing looking after that was mum’s job would you agree.
AI don’t know if it was her job. It was more sort of she tendered to be more so the one to do it, I guess.
The accused then criticised the complainant’s version because she said nothing after the event which is described in the particular paragraph (b) in the information. However, this was after a previous occasion that occurred in the bed of the accused and the complainant’s mother and after complaints had been made by the complainant to her mother and after ongoing abuse. The complainant said that she had the impression that she had been abandoned because of what was going on in the life of a 9 or 10 year old child. Common sense and experience would dictate that children of that age in such circumstances would not necessarily say anything at all. I consider that it is not inconsistent with the credibility, reliability, accuracy and compellability of the complainant’s version that she did not say anything to the accused.
The accused then criticised evidence given by the complainant about the alleged indecent assault at Port Pirie. It is asserted that the objective available material sheds light on the assertion and it is suggested that the entry on 24 November 1986 in the diary, Exhibit D3, provides a portrayal of the true situation, namely that nothing happened. The accused referred to the entry in the diary for that day. It was suggested that when that page is critically analysed, it gives rise to the real possibility that the evidence of the complainant was not true. It was submitted that it might be believed by her now but it was simply not true. I am unable to accept that submission for the reasons already explained. It would be necessary to reject the evidence of the complainant, which I am not prepared to do, to make a finding that the only objective truthful evidence of what occurred on 24 November 1986 was that which is contained on the face of the diary. I am satisfied that the evidence given by the complainant in relation to why she did not make records within the diary of matters which she considered might tear her family apart was credible, reliable, compelling and truthful. She was an intelligent child and, by that age (13 years or thereabouts) was sufficiently alert to matters that would indicate that the version of events given by her is accurate.
The accused then criticised the complainant for suggesting that the groping behaviour which occurred twice a week or thereabouts and then reduced to once a fortnight continued throughout the whole of the time that she was living with the family. This behaviour was apparently never seen by her sister and never experienced by her sister. There was no evidence led from LID of the complainant as to whether or not such behaviour had been perpetrated upon her. There was no evidence led whether she had seen this behaviour. A criticism was made that it is one thing to tell the police but it is quite another thing not to tell your sister. I am again unable to accept those submissions. I consider that they do not withstand critical scrutiny. There was an age gap of 10 years between the complainant and her younger sister. At the time the complainant left home, her younger sister was between 8 and 9 years of age. Many of the events the subject of the information took place before LID was born and LID would have been a very young child during the course of the complainant’s progress through puberty to adulthood. There is every reason why the complainant would not have spoken to her sister about what the accused might do. That failure does not render any allegations about the general groping behaviour of the accused as being bizarre or lacking in reliability or cogency.
The accused criticised the fact that although in the evidence, there is mention of friends such as Briony and Bree, there is no evidence that any complaint was made to such good friends of the behaviour of the accused. The accused also submits that there is no suggestion of any complaints to teachers or to doctors, Brownies or Guides supervisors. I consider these criticisms need to be assessed in turn.
Merely because a complainant does not complain to her friends about what the accused was allegedly doing does not in any sense diminish or damage the credibility, reliability or compellability of the version of events given by the complainant in this instance. The friends referred to by the accused were friends who were remote from her during her trip. They were in contact either by phone or through letters. Those friends were not immediate to her at the relevant time of the trip around Australia. There was no cross-examination of the complainant by the accused about any question of complaint to those friends.
In relation to the criticisms about complaints to teachers, there is no evidence on that topic. I consider that the absence of any evidence on that matter is explicable by reason of the fact that the complainant had at the forefront of her mind the preservation of the family unit. Although there is no evidence on the topic, I think an inference clearly arises that the same approach applies to complaints to Brownies or Guides supervisors. They were also very remote from the complainant and contact was made with them by the complainant as the family moved from place to place. There is no evidence to suggest that there was sufficient time for the complainant to take any such people into her confidence.
The accused also questioned how, if such terrible things were occurring, the complainant could show such application as an intelligent, diligent child and achieve the academic success that she did throughout her studies. I consider that this submission overlooks the strength of the human spirit. It is not necessary to reflect long on one’s own life experiences to know that many people are able to succeed notwithstanding very difficult and untoward circumstances. Sometimes that success is achieved because of those very circumstances. This largely depends on the ability and fortitude of the individual. The complainant’s academic record is testament to her fortitude and ability.
The accused then repeated the criticisms of the content of Exhibit D3 except to the extent that it could only be seen as being an accurate portrayal. Added to that, the accused also criticised the admission by the complainant that she had a fondness for her family. I consider that these criticisms are misplaced for the same reasons.
In relation to the letters from Germany, Exhibit D4, the complainant was on an exchange trip. She was a long way from home, she was 16 years of age and she had never been out of Australia before. She was living in a completely foreign environment. It would be surprising that such letters would have shown anything except fondness for her family in such a situation. Common sense and experience would dictate that such would be the case and the complainant readily conceded that at a particular level she had a fondness for the accused, notwithstanding the abuse. She recognised that when she was young the accused assisted her in a number of matters including teaching her to use tools and other matters in the garage. However, I consider that this is not evidence which would lead to a finding of unreliability or untruthfulness of the evidence of the complainant. To the contrary, I consider that the concession made by the complainant about those matters was frank, honest and quite appropriate in the context that she was a young girl, living in the circumstances that I have already described following the breakdown of her parents’ marriage and where she was attempting to make her way in life as best she could.
In 1991, the complainant left the home at Cumberland Park. She went to live in independent student accommodation. She did not make any plans to leave and made a spontaneous decision on the relevant date to leave the home. This was after the alleged conduct by the accused when he exposed himself to her after she had a shower. At that time, she was in the first year of her undergraduate degree in Chemical Engineering. The complainant gave evidence that soon after leaving home, she twice saw a university counsellor. I have earlier referred to the statutory declaration filed on behalf of the university indicating that the university records are not available. The accused properly complains that it is not known what counselling might have been sought, what might have been said to the counsellor, whether any allegation of sexual abuse was made to the counsellor if counselling occurred. There was some suggestion that the approach to the counsellor was somehow tied to obtaining an independent living allowance. The evidence on that topic is obscure and I put it to one side.
The complaint of the accused is that this is one of the significant disadvantages that he faces in the trial. It was suggested that this was an embryonic event leading to the allegations 25 years after the event and that it is not accessible to the accused. I consider that the complaint in relation to those matters is well made. However, it must be seen in the context of the overall evidence. The evidence is that at about the time the complainant went to counselling, she purchased the book from which Exhibit D6 is a page. The evidence discloses that the title of the book is Growing Through The Pain – the incest survivor’s companion.
One page of that book (page 168) is in evidence as Exhibit D6.
After making a criticism that the complainant did not go to the police until 20 years after the event, the accused submitted that the Exhibit D6 is an extraordinarily important piece of evidence. The accused submits that whatever is written on the page is an accurate portrayal of the true position otherwise why write anything at all. This is in the face of the evidence given by the complainant that what she was doing was making an observation about and was reflecting upon the things that had happened in her life and the point of view that she had formed about saying anything to her mother. I consider that in the circumstances it is necessary to set out that part of the Exhibit as it is presented. The relevant part of page 168 of the book reads as follows:-
I don’t remember especially wanting to tell my mom about the incest. If I did have a strong urge to tell her, I don’t remember feeling it. My mother used me a lot as a confidante, and I became an adult very fast with all of this. I realise now that I had a lot of adult perceptions. 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. I knew that she felt very burdened. She had a lot of the financial responsibility in our house because of my dad’s drinking.
I don’t remember. I don’t know. I think I remember wanting to tell her.
In the above quote the words are underlined in the same fashion as they appear on the face of Exhibit D6.
Above the type written script on the page is an entry in the handwriting of the complainant: “I always wanted to tell her but I didn’t want to break her heart, so instead my childhood was taken away from me”. There is then an arrow down the left hand margin of the page to the handwritten word “see” that is followed by a further arrow pointing to the sentence commencing “As much as I think I… wanted to tell her…”
It is necessary to have all of that information in order to properly understand both the submissions of the accused and the evidence given by the complainant. I have already canvassed in detail the evidence given by the complainant on these matters and I will not repeat it.
The first criticism of the accused is that what has occurred is that rather than saying nothing, the complainant chose to respond by writing what she did on the top of the page, Exhibit D6. The accused suggested that the significant matter is that what is said in the article provokes the response by reference to not wanting to tell her mother about the incest because she could not handle it. The criticism was that the evidence of the complainant was that she had told her mother twice about the abuse. The evidence of the complainant was that this was the complainant’s reflection on a very long period of abuse allegedly suffered at the hands of the accused and it was therefore a personal reflection on what she was thinking throughout that whole period of time. The accused then submitted that the expression “I always wanted to tell her…” properly analysed leads only to one conclusion that no allegation of sexual impropriety was ever made by the complainant to her mother. It can also lead only to the conclusion that there was no meeting between the complainant and her mother which was followed by a meeting between the mother and the accused with respect to the allegations of sexual impropriety.
Alternatively, the accused submitted that at the very least there is a possibility that Exhibit D6 objectively tells the reader that no such thing occurred and on a forensic view, if any such allegations were made to her mother, Exhibit D6 would tell us that that was so. This means that the evidence given by the complainant about those matters is not accurate, reliable or truthful. Her evidence about that is just wrong. This would flow on to each and every allegation of actual sexual impropriety that the complainant made against the accused. Thus, she could not be relied upon beyond reasonable doubt with respect to the allegations of sexual assault.
I am unable to accept this submission of the accused. I do not think that it withstands logical analysis. The evidence of the complainant was that she was reading the book in the context of trying to deal with what had occurred to her in her life. Although it is not completely clear, it appears that the purchase of the book was associated with the counselling that she had received. The content of the page is written by a person who, as a child, has been the subject of incest and is unable to tell her own mother of that incest. This is because she felt her mother could not handle it because of the protective way in which the incest sufferer felt about her mother. This involves information of sexual abuse by a father (or a step-father). A young girl being unable to tell her mother even though she wanted to because she knew the information would break her mother’s heart is, as a matter of common sense and experience to be accepted. Also, the complainant explained that when she used the expression “always” in that handwritten note, she meant “constantly”. It is understandable that her inability to tell her mother of what had happened and what was happening worsened the situation over time so that it became even more difficult as time went on to tell her mother anything because of the likely effect upon her mother. It had a compounding effect. I consider that the explanation given by the complainant about that entry and the circumstance leading to the writing of that note are accurate, reliable, compelling and truthful. I am not able to accept the accused’s submission that she could not be relied upon beyond a reasonable doubt.
The accused then criticised what he described as the immovable doggedness on the part of the complainant as an intelligent and articulate witness. I consider that there is an inherent weakness and internal inconsistency in this submission. It would suggest that by some process of thought as an intelligent, articulate and highly educated woman, the complainant would create in her mind a circumstance that never existed and make allegations of the most serious kind against her step-father with all of the consequential effects that such allegations would have because of her own obsessive personality. As a result, it is suggested, she would because of her intellect, doggedly refuse to accept and acknowledge the true position. That proposition need only be stated to indicate its weakness and its lack of logic. In an indirect way it would, if accepted, penalise the complainant because she is an intelligent and articulate woman.
The accused also criticised the complainant because it might be thought to be a little strange that at the age of 10 she unilaterally determined to sever all contacts with her natural father. The evidence given by the complainant on that topic was that she visited her natural father in Mount Gambier between the ages of 7 and 10. She found that the visits were entirely unsatisfactory and were distressing to her because her father would have nothing to do with her and would not communicate with her in any way. I consider that it is a mark of common sense as opposed to being a mark of strangeness that she would make that decision. This common sense was a hallmark of the complainant’s behaviour. I am unable to accept that criticism.
The accused then reiterated the forensic disadvantage which he allegedly suffers. He said that he might have had regard to his personal records, employment records, travel records and other things that are not available to him that might shed some light on the allegations. It was suggested that he was then effectively rendered impotent in his capacity to meaningfully participate in the entire trial process.
I accept that any person having to face charges 30 years after the event would suffer a disadvantage. I would also accept that such a disadvantage was a significant forensic disadvantage. However, on the evidence before me, there is nothing to indicate that the accused’s personal records, employment records or travel records were not available. The submission[155] was put only on the basis that “…it goes without saying…” that such things were unavailable. There is no evidence before me on that topic. However, even in the absence of those matters, I consider that the accused suffers a forensic disadvantage.
[155] T156.3.
My assessment of the matter and my decision is that the forensic disadvantage suffered by the accused is not so great as to lead to the conclusion that it would so heavily weigh in the balance. It is a matter to be taken into account. I have taken it into account. On the other side of that equation, I am satisfied that the accused has had regard to a number of pieces of evidence that date back to 1986. For example, Exhibit D4 are the copies of the letters sent by the complainant to her family between 22 November 1989 and 14 December 1989 whilst she was on the overseas exchange in Germany. The defendant had access to the book “Growing Through The Pain” as well as the diary Exhibit D3. It is not clear to me what other records might have been available to the accused which would cast light on these matters. That is particularly the case when it is known that an allegation of persistent exploitation of a child does not require the specification of a particular date but merely events occurring between a particular date range. I have given the forensic disadvantage suffered by the accused such weight as I consider appropriate. The weight that I have given that disadvantage has not changed my decision in this matter.
I turn finally to the submission made by the accused that I ought to direct myself in terms of the decision of the High Court in Jones v Dunkel.[156] The submission was to the effect that inferences in favour of the accused should be drawn arising from the failure of the prosecution to call the mother of the complainant in evidence. In the case of Jones v Dunkel there was a collision of two trucks on a winding country road. The plaintiff’s husband who was the driver of one of the trucks was killed. The plaintiff sued the owner and driver of the other truck in negligence based upon an inference said clearly to arise from the facts of the matter. The driver of the other truck did not give evidence.
[156] (1958) 101 CLR 298 at 308 per Kitto J.
Kitto J at page 308 of the report considered the directions of the trial judge associated with the failure of the defendant to call the driver of the truck. Kitto J agreed with the direction to the jury that the evidence leading to the inference of negligence might be more readily accepted because it had been left uncontradicted. Kitto J criticised the trial judge for failing to give the jury a direction that any “inference favourable to the plaintiff for which there was ground in the evidence might be more confidently draw when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.
Kitto J then held as follows:-
The jury should at least have been told that it would be proper for them to conclude that if (the driver of the other truck) had gone into the witness box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which… I consider was open on the plaintiff’s evidence…
In the decision of the Court of Criminal Appeal in Hoang that I have referred to in judgment No 1, I referred to the discussion by David J of the High Court decision in Apostilides and the comments by Gaudron and Hayne JJ[157] as follows:-
Only if the trial judge has made such an enquiry and has been given answers considered by the trial judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified persons. There would then be real questions about whether, and how, the jury would be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the persons. Only when those questions have been answered would further directions of the kind contemplated by Jones v Dunkel have been open…
[157] (2002) 210 CLR 285 at 295.
For reasons that I have expressed in judgments No 1 and 2, although I was not satisfied about some of the submissions made to me by the prosecution, I formed the view that I would not make any enquiry of the prosecution. As a result, I have not been provided with answers that I consider to be unsatisfactory. Also for the reasons published in judgments No 1 and 2, I have not formed the view that it would have been reasonable to expect that the prosecution call the mother of the complainant in evidence. It follows that it would not then be necessary to give any further consideration to identifying the applicable Jones v Dunkel direction that I should give myself.
I also refer to the discussion of the rule by the learned author of Cross on Evidence[158] commencing at paragraph [1215]. The learned author states ten considerations in relation to the application of the Jones v Dunkel rule. It is not necessary that I canvass each of the ten considerations and it is only necessary that I repeat the eighth as follows:-
Eighthly, the principle in Jones v Dunkel may apply to both parties: if so, the operation of the principle is not that the failure of one party excuses the failure of the other, but the competing inferences that the uncalled evidence would not have assisted either side arise, and that the trier of fact must consider the evidence which is before it in the light of those inferences (Brandi v Mingot (1976) 12 ALR 551 at 560 (High Court); at para [1215] on p 45 of the text).
[158] 8th Australian Ed, the Honourable J.D. Heydon.
Based upon my decisions in judgments No 1 and 2, the only Jones v Dunkel inference that I would be considering would be a competing inference that the uncalled evidence would not have assisted either side. However, in light of my earlier discussion, it is not necessary to discuss that matter further.
It is then necessary for me to turn to the specific matters disclosed on the face of the Information. I now turn to that matter.
The accused RSM is charged with the offence of persistent sexual exploitation of a child. It is necessary for the prosecution to prove that over a period of not less than three days RSM, an adult, committed more than one act of sexual exploitation of JLM a person under the age of 18 age whilst he was in a position of authority. In the period of time identified within the particulars of the offence, the accused was an adult and was in a position of authority. This is not in contest between the parties.
The first incident complained of was that the accused caused JLM to masturbate his penis on one occasion. I am satisfied that it has been proved beyond reasonable doubt that shortly after the 8th birthday of JLM, she was in her mother’s bed. She had gone to her mother’s bed to give her mother a hug. The accused was also present in the bed. After the complainant’s mother got out of the bed, and whilst the complainant was still in the bed with the accused, the accused said words to the effect “do you want to touch me?” He placed the complainant’s left hand on his penis with his right hand. Later, he moved the left hand of the complainant up and down on his penis several times during an event which lasted about 30 seconds. This is the conduct described in paragraph (a) in the particulars of the offence.
I am also satisfied beyond reasonable doubt that about a year later when the complainant was aged between 9 and 11 she woke after having a nightmare and went to her mother complaining of the nightmare and a stomach ache. The complainant often suffered a stomach ache associated with a nightmare. The complainant went into the bedroom of her mother and the accused. She woke her mother complaining of the stomach ache. The complainant’s mother asked the accused to take her back to bed. The accused did so and put the complainant back to bed. When he did so he commenced rubbing her stomach to soothe her and then gradually moved his hand higher up the complainant’s stomach and lower down until his hand was placed inside of her underwear. The accused then used his finger to stroke the complainant on the inside of her labia but on the outside of her vagina continuously. He also rubbed the complainant over the area of her breasts and over her nipples.
I am satisfied beyond reasonable doubt that about two or so years later, when the complainant was aged between 10 and 12 years, she was alone in the shed of the house at Hinkler Road. The complainant was being taught how to saw wood by the accused. She was using a handsaw. When she was using the handsaw in the shed, the complainant reached down and grabbed her breasts with his left hand on the outside of her clothes.
I am satisfied beyond reasonable doubt that about a year later on 24 November 1986, when the complainant was aged 13 years and during a caravanning trip around Australia, the family had stopped at Port Pirie due to a breakdown of a motor vehicle. It was hot and the family went to the town beach in Port Pirie. The complainant swam out to deeper water near the end of the jetty with the accused. When she got into water over her depth, the complainant started to panic and grabbed hold of the accused. Some five to ten seconds later, the accused grabbed hold of the complainant on her groin on the outside of her bathers.
Under s 50(2) CLCA, a person commits an act of sexual exploitation if the act could be the subject of a charge of a sexual offence. Section 50(7) CLCA defines a sexual offence to mean an offence against Division 11, CLCA. I am satisfied that in respect of particular (a), (c) and (d) the conduct of the accused constituted indecent assaults. I am satisfied that the conduct particularised in particular (b) constituted unlawful sexual intercourse contrary to s 49 CLCA. Each of these offences is a sexual offence for Division 11 CLCA.
In the result, I am satisfied that the accused committed more than one act of sexual exploitation of JLM namely on the four occasions that I have described above over a period of not less than three days between about 1980/1981 and 1991 whilst JLM was under the age of 18 years and whilst as an adult he was in a position of authority over JLM as her step-father.
I therefore find that the charge against the accused is proved beyond reasonable doubt.
The verdict is guilty on the count on the Information.
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