R v Manuela
[2016] SADC 27
•24 March 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MANUELA
Criminal Trial by Judge Alone
[2016] SADC 27
Reasons for the Verdict of Her Honour Judge McIntyre
24 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of unlawful sexual intercourse.
Accused acquitted of the charge
Evidence Act 1929 s34M, referred to.
R v MANUELA
[2016] SADC 27
The accused was charged on Information dated 22 February 2016 with one count of unlawful sexual intercourse. The accused entered a plea of not guilty and elected to be tried by a Judge without a jury. For the reasons that I now publish I find the accused not guilty.
The Information
The particulars outlined in the Information are as follows:
Statement of Offence
Unlawful Sexual Intercourse with a person under the age of 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Luke Rowland Poi Manuela between the 1st January 2008 and the 31st day of December 2010, at Ingle Farm, had sexual intercourse with RJJ, a person between the ages of 8 and 10 years, by inserting his fingers into her vagina.
Legal Consideration & General Directions.
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. 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. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
·I remind myself of the usual directions given to juries about the topic of prior inconsistent statements given that the complainant was asked about some inconsistencies between her statements to the police and her evidence.
·The accused elected not to give evidence in this court. I remind myself that he was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case.
Elements of the Offences of Unlawful Sexual Intercourse
In order to prove the offence of unlawful sexual intercourse with a child under the age of 14 years the prosecution must prove both of the following elements beyond reasonable doubt:
1.That the accused had sexual intercourse with the complainant; and
2.That the complainant was under the age of 14 years at the time.
Sexual intercourse includes penetration of the vagina by the accused’s fingers as alleged.
There is no dispute that the complainant was, at the relevant time, under the age of 14. The key issue is whether the prosecution have proven that the accused penetrated the complainant’s vagina with his fingers.
Outline of the Prosecution case
The complainant’s date of birth is 20 August 1999. She is now 16 years of age. The information alleges that the offence took place between 1 January 2008 and 31 December 2010 when the complainant was aged between about 8 and 10 years of age.
The accused was the complainant’s mother’s partner for a number of years. He resided with the complainant, her mother and her siblings at various addresses both here and interstate. One of those addresses was an address at Ingle Farm in South Australia. It is alleged that that one night while the complainant was living at Ingle Farm the accused came into her bedroom, lay down next to her and inserted a finger or fingers into her vagina.
This matter did not come to light until some years later. It is an agreed fact that the complainant and her mother first approached the police in June 2014 and that a formal statement was not taken from the complainant until 29 September 2014.
The main witness for the prosecution was the complainant. In addition the prosecution called her mother and tendered a number of agreed facts. The prosecution case rests entirely on the complainant’s evidence. There is no independent corroboration of her evidence. For that reason I must carefully weigh her evidence. If I accept her evidence beyond reasonable doubt then it is evidence upon which the accused could lawfully be convicted.
The complainant’s evidence in chief
The complainant gave evidence in chief about her family and the various locations at which the family lived. In particular she gave evidence about her mother and the accused entering into a relationship when she was very young and living interstate. She does not recall what age she was when the family moved to South Australia but she was in primary school.
The family lived in two different houses in Enfield before moving to Ingle Farm. She did not recall how old she was at the time. She said she was in primary school. She went to Ingle Farm East Primary School. She said that the family only lived in one house at Ingle Farm. The family was at Ingle Farm for years rather than months. She drew a diagram of the Ingle Farm home which was tendered as exhibit P2. The complainant said that she shared a bedroom with her sister H. They had a bunk bed. She slept on the top bunk and her sister on the bottom bunk. She described the door to the bedroom as being a wooden door with hinges in the middle. I understand her description to be that of a bi-fold door. She said they would sleep with the door half open because her sister was afraid of the dark. She said was also a night light in the bedroom for the same reason. There was a window with curtains.
Although she could not remember when the incident occurred she said that it happened on the only occasion that the accused’s father, girlfriend and his girlfriend’s daughter L came from interstate to stay with them. They came from Tasmania and stayed about a week. The complainant said she was 8 or 9 at the time. She said that the accused’s father and girlfriend slept in her sister K’s bedroom. She did not know where K slept. The complainant was not sure if K was living with them at that stage but said that if she was, she must have slept in the lounge room. K did not sleep in the complainant’s room.
L was about the complainant’s age and slept on a mattress on the floor in the bedroom that the complainant and her sister H shared. The complainant drew a plan of the bedroom as it was on the night in question. This was exhibit P3. This shows, inter alia, the position of the bunk beds and two mattresses. The complainant says that she slept on a mattress on the floor next to the bunk beds on one of the nights they had the interstate visitors because it was hot. Her sister H was on the bottom bunk and their guest was on the other mattress depicted next to the window.
The complainant described how the children went to bed. She went to sleep. At some stage she was disturbed when her younger brother C came into the bedroom and lay down on the mattress next to her between her body and the bunk bed. She said she fell back asleep but woke up again when the accused came into the bedroom. She gave evidence in chief about that as follows:[1]
[1] TX 18
QJust going back a step. What was the first that you became aware that there was somebody in your bedroom.
ABecause I heard the door opening and then someone walking into the bedroom.
QDid you see who it was walking in the bedroom.
AJust a little bit because there was – there was light through the bedroom window or something that just made a bit of light on his face.
QWho did you recognise the person walking into the bedroom as.
ALuke.
QWhat did he do once he walked into the bedroom.
AHe lied down next to me.
QWhereabouts did he lie down.
AThe opposite side of C.
She said that she was able to see that the accused was wearing boxers or trunks but nothing on the top part of his body. She gave evidence about the accused getting up and checking the hallway before returning to again lie down on the mattress next to her. She then gave evidence in chief about the offence as follows:[2]
[2] TX 22-23
QWhat took place when he lay down beside you.
AHe put his hands down my boxers.
QWhen you say he put his hands down your boxers, was it just one hand or was it both hands.
AOne hand.
QWhat position was he lying in in relation to you when he did that.
AI don’t remember.
QWas his head at the same end as you or the other end.
AThe same end.
QAre you able to say if it was his left hand or his right hand that he used.
AI don’t remember, I don’t –
QWhen you say he put his hand down your boxers, whereabouts did he put his hand into your boxers.
AMy vagina.
QDid his hand go through the leg of your boxers or down the front of your boxers or the back of your boxers or something else.
ADown the front.
QWhat position were you lying in when he put his hand down the front of your boxers.
ASort of on my back but also on my side.
QDid you have underwear under your boxers.
AYes.
QWhere was his hand in relation to your underwear, was it over or underneath your underwear.
AAt one stage it was over and then it went under.
QSo when his hand was over your underwear, what was he doing with his hand.
ANothing.
QSo how long did he have his hand in that particular position for.
AProbably a second.
QThen what did he do.
APut his hand under my underwear.
QHow did he get his hand into your underwear.
AFrom the front.
QWhat did he do once his hand was in your underwear.
AUm he touched my vagina.
QWhat was he touching your vagina with.
AHis fingers.
QWas he touching your vagina with one finger or more than one finger.
AOne, two maybe, one I don’t remember exactly.
During the course of this evidence the complainant became upset and we took a short break for her to compose herself. She then continued her evidence as follows:[3]
[3] TX 23-24
QWhat was he doing with your vagina.
AUm I don’t remember but I know he was touching my vagina and yeah.
QHow long did he touch your vagina like that for.
AFive, ten seconds.
QThen what did he do.
AHe got his fingers like in my vagina.
QWhen you say ‘fingers’, was it one or more than one.
AI can’t – I don’t recall.
QHow do you know that he put his fingers inside of your vagina.
ABecause I could feel it.
QDid he say anything to you while he did that.
ANo.
QDid you say anything to him.
ANo.
QHow long did he have his finger or fingers inside of your vagina for.
AFive, ten seconds.
QWhat did he do with his fingers when they were inside of your vagina.
AI don’t recall.
QDo you recall if he was moving them at all or not.
ANot really.
QWhat did you do when he did that.
AUm, I thought he was just going to do it and stop but then I moved and that’s when he stopped.
She then said that she went onto her sister H’s bed and lay at the end of her bed closest to the door. This was the end of the incident.
I found the complainant to be a straightforward and cogent witness. There was however a troubling vagueness and inconsistency about aspects of her evidence that have led me to the conclusion that I cannot accept her evidence beyond reasonable doubt. I summarise the main areas of her evidence that have given rise to that doubt.
Dates and Timing
Defence counsel criticised the complainant’s evidence as to time frames. Certainly the complainant was not at all clear about when these events are said to have taken place in terms of what grade she was in at school, what season it was, what year it was, or what day of the week it was. In many respects this is not surprising given the likely age of the complainant at the time, the large number of different houses in which she lived following the return of the family to South Australia and the number of years that have elapsed since the alleged offending. I am not prepared to be overly critical of a child for not remembering details such as the time of year, the dates or her age. What she has recalled very clearly is the most notable feature of the time frame being the unusual factor of the interstate visitors. She has also clearly identified the location as the bedroom in the Ingle Farm house.
The complainant’s mother, REJ, gave evidence on the prosecution case that enables the date of the alleged offending to be pinpointed with a greater degree of certainty. Whilst again somewhat vague as to dates and times given the effluxion of time and the number of different family residences, REJ was most clear that they lived in the Ingle Farm home for two years having moved into that residence in about the month of March 2008.
REJ moved into Ingle Farm with her children but not the accused. They were, at that stage separated. They reconciled and the accused moved back into the home on a permanent basis in 2009. She said that the accused’s family came to visit from interstate towards the end of 2009. She could not remember exactly how long they stayed but it was from four to seven nights. REJ said that she moved out of the Ingle Farm house with her children in 2010 just before her 30th birthday in May 2010.
I accept REJ’s evidence which tends to place the incident in question towards the end of 2009. At this stage the complainant was between the ages of 9 and 10.
There was however a difficulty with the complainant’s evidence as to her age. She gave evidence in chief that she recalled having her 10th birthday whilst the family was still living in Ingle farm. In cross-examination it was put to her that she told the police on 19 February 2016 that she lived at Ingle Farm from about the ages of 7, 8 and 9 and that she knew she had moved house by her 10th birthday. When asked to explain why she told the police something different she gave evidence as follows:[4]
[4] TX 31
AWell, because when I first told them we were figuring out the dates and the first time we went to the police and we figured out the dates and stuff, we did it the day we were going into the police so it made it more clearer to me what the dates were and stuff but because I don’t know, as it’s gotten longer my memory has gone a bit, like worse from it and it’s just like I still remember and stuff but I can’t remember exactly dates still.
QCan you tell us whether it is more likely that the dates in the first statement are right and your age is more likely to be right or it is more likely after time and more talking that the more recent statement is more likely to be correct about dates.
AThe first one.
QYou’ve told us today that you had your 10th birthday at Ingle Farm, do you accept that that is different to what you told the police of having moved house.
AYes, I didn’t remember the dates.
QAm I right in saying that you are not really sure at this point whether you were 10 at Ingle Farm house or sometime after Ingle Farm house.
AYes.
The complainant used her 10th birthday as a marker or point of reference to fix a time frame for the alleged offending. The complainant’s confusion about this is illustrative of the difficulty generally with her evidence as to dates and times. Whilst I have said that I am not prepared to be unduly critical of a child having difficulty with dates it is clear from her response to counsel on this topic that the complainant has engaged in a degree of reconstruction. It further appears likely from this, and other answers, that there has been some discussion within the family to assist with this reconstruction.
The Bedroom
As indicated above the complainant gave evidence about the manner in which the bedroom was set up on the night in question. REJ however contradicted her evidence about the placement of the furniture in the bedroom. The complainant said that the bunk beds were on the wall opposite the window whereas her mother said that the bunk beds were positioned across the window. This inconsistency assumes some significance in the context of the complainant’s evidence about the light source in the bedroom.
The complainant’s evidence in court was that she was able to see the accused because of light “through the bedroom window or something”.[5] When it was put to her in cross examination that she did not tell the police about light from the bedroom window she said:[6]
[5] TX 18
[6] TX 36- 37
AYes, because I said that the night light could have been on but I don’t remember if it was the night light or the window but I know there was light coming through the window.
QI will just check, I want to see what you said. My understanding of what you told the police was that in fact the night light was normally on. Is that right.
AYes
QBut I think that you told the police that in fact on this night the night light was off, is that right.
AYes
QThat’s because I think you told them that L was sleeping next to the night light and she turned it off, is that right.
AYes
QThat would suggest wouldn’t it, that if the night light was off and you described the room as being dark, that the only potential light source would be from the window, is that right.
AYes
QThat’s assuming that the curtains were open and that there was some light coming from outside, is that right.
AYes
This and the balance of the cross examination on that topic suggested that the complainant really did not recall where the light came from and that again her evidence was largely reconstructed. If her mother’s evidence about the location of the bunk beds was correct it makes the window a much less likely source of any light.
There was also a lack of clarity on the evidence as to the occupants of the bedroom on the night in question. The complainant was clear that her sister K was not in the room. She suggested that K was either not living in the house or that she slept in the lounge room.
Her mother REJ said that K was still living with the family at this stage. REJ agreed that she told the police that K stayed in the bedroom with H and the complainant whilst the interstate guests were there. However she said in evidence that she now cannot remember if K was in the bedroom with the girls or in the lounge room. She was then asked as follows:[7]
[7] TX 90
QBut if you talked to police back in 2015, I’ll check the date here, 2015 – the first time you made a statement to the police, do you think that it might be more likely to be correct than your memory now given the passage of time.
AI think it’s more accurate now that she wasn’t in the room.
Q And why do you say that.
ABecause it’s a very long time ago and I actually had to think and go back and try and remember events, nights, dates, time and from what I recall, maybe she was not in the room.
QIs it also the case that maybe she was because it would make sense wouldn’t it, to have all the girls together.
AYeah that’s what you normally would do, yes, I would have all of them in one room.
Q And the boys together,
A Together, yes, yes.
QAnd if there were guests in the house and people you didn’t know so well you might be more inclined to put all the girls together.
AYes.
Q Is that common sense.
A Yes, yes, that is common sense and that is exactly what I would have done.
I am uncertain what REJ’s evidence on this topic is. She seems to suggest on the one hand that, contrary to what she told the police, she now recalls that K was in the lounge room but on the other that she would have put all of the girls in the same room. As with the complainant there is a degree of reconstruction evident on this evidence.
Complaint Evidence
The complainant gave evidence about the occasion on which she told her mother about this incident. This was not the initial complaint. The complainant said that she told her sister H about this incident a couple of years before speaking to her mother. She was not able to give clear evidence about the time at which the complaint was made to H nor was she very clear about what she said to H. It is an agreed fact that H is estranged from the family and has refused to provide a statement. Accordingly the evidence of the complainant on this topic cannot be tested.
The evidence as to the terms of initial complaint to H is so vague and uncertain that I consider the prosecutor properly did not seek to rely upon the subsequent complaint to REJ as an elaboration of an initial complaint within the meaning of s.34M of the Evidence Act (1929). The prosecution relied upon that evidence solely as part of the narrative showing how the allegations came to the attention of the police.
Defence counsel submitted that there was an inconsistency between the account given by the complainant as to the circumstances of the complaint to her mother and REJ’S evidence on the same topic.
The complainant denied being visibly upset whereas her mother described her daughter as crying and shaking. The complainant says that the reason she spoke to her mother about this matter is that REJ asked H and her if the accused has ever done anything to them. They both said no, but later H told her that she had to tell her mother because it would probably be important. Accordingly the complainant says that she went to her mother. Her sister helped her to explain it to REJ. REJ then asked her a number of questions to elicit the details of what had occurred. The tenor of the complainant’s evidence is that she divulged the full story to her mother in that conversation; specifically that she told her mother that the accused touched her whilst they were living at the Ingle farm house during the visit by his relatives and that he did so by inserting his fingers into her vagina.
REJ on the other hand gave no evidence of asking her daughters if the accused had touched them. Her evidence was that she was sitting outside when her daughters came outside to tell her about this. The tenor of her evidence was that this was unprompted. REJ said that the complainant told her that the accused had touched her on the vagina with his hand when they lived at the Ingle Farm house. She did not at that point tell REJ whether it was in the inside or outside of her vagina. REJ said she was in shock and couldn’t absorb everything straight away. She said that they had a discussion some days later where they discussed the matter in more detail and it was on this occasion that the complainant told her that the touching was on the inside of the vagina.
There are accordingly some considerable differences between the two accounts both as to the demeanour of the complainant, the circumstances of the complaint and the events that followed. Following the complaint to REJ, whatever the circumstances, this matter was reported to the police.
Motive to lie
Defence counsel suggested that there was evidence of a motive to lie given the animosity between REJ and the accused and difficulties over custody of their son. I reject that contention. There appears to me to be little or no foundation on the evidence for that submission. I accept that REJ genuinely believes that her daughter was the subject of unlawful sexual intercourse as alleged. I consider that her actions have been consistent with those of a concerned mother taking her daughter to the police to have those allegations investigated.
I remind myself that it is not for the accused to demonstrate a motive to lie. A motive to lie is relevant to the credibility of the complainant. Having rejected the alleged motive for the complainant to lie, that does not mean that I would find that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. At all times the prosecution bears the onus of proof beyond reasonable doubt.
Police Investigation
Counsel for the defence made some submissions critical of REJ’s delay in reporting her daughter’s allegations to the police and of REJ’s conduct at the time of the police investigation. I reject that criticism. Whilst REJ’s evidence suggested that there was a 6 month delay from reporting the matter until a formal statement was taken, the time frame was in fact from June 2014 until 28 September 2014. No doubt in the circumstances this seemed a lengthy delay to a concerned mother but in any event REJ indicated that she was not clear about the dates. The 6 month estimate was a response to cross-examination and a reconstruction based on dates she did know.
As to the criticism of the delay in reporting the matter to police following the complaint and then in responding to police requests for a formal interview with her daughter; I see nothing sinister in REJ’S desire to ensure that the family routine was not disrupted and that her daughter was emotionally prepared for interviews with the police. Her daughter was young and my observation of her giving evidence was that she is distressed by having to recount these matters.
Description of the incident
I have set out above the complainant’s evidence in chief about the circumstances of the incident.
A number of inconsistencies between the complainant’s evidence and her statements to police were put to her during the course of cross-examination. Many of these were relating to what I consider to be peripheral matters that do not substantially bear upon my assessment of her evidence. There were however some inconsistencies which do cause concern as to her reliability. These are the evidence that she gave about the state of the lighting in the room and the source of light; her state of wakefulness at various times; and her observations of the accused.
Of particular significance is the difference between what she told police about the touching itself and her evidence in court. In cross-examination she was asked as follows:[8]
[8] TX 47-48
QNow, just getting back to what you say happened. On your version of events was there only one time he put his hand down your boxers and into your knickers as you have talked about, it was only one time on that night.
AYes
QIs it the case that there was only one movement of that kind. There was nothing else similar that night.
ANo.
QSo, no attempt to do it a second time or a third time or anything like that.
ANo, because, I got up and moved.
QNow, am I right in saying that you told the police when you were talking to them the first time about what happened this: that he put his hand down your boxer shorts and into your underwear and he put his fingers inside your vagina. You ‘tried to wriggle away and his hand came out of about half of my shorts and then he tried to do it again but I got up and laid with my sister’, did you tell the police that.
AYes.
QDo you accept that there is a difference between what you have said in evidence about it only happening once or there being one attempt to touch you or one touching as compared with one touching of the vagina and then a second attempt.
AYes.
QCan you explain that difference.
AWell, when you said ‘attempt’ I thought you meant, like, another night.
QBut I thought that I was reasonably clear that it was just on this one night. There was no other attempt to do this on any other time, was there.
ANo.
QOn your version of events, this was the first time it had just come out of the blue, on your version.
AYes.
QSo you say that there was the touching of the vagina and then is it right that you wriggled away or is it right that you rolled over as you described before.
AI wriggled over and rolled at the same time. That is how I got away from him, that is how I wriggled away.
QIs it the case that once you had wriggled away and rolled over that he made another attempt to do that, that is put his hands down your boxers.
AYes.
QAnd that actually his hand came out before that happened.
AYes.
QSo, now that you have told us that that is what happened or that’s the way it happened, is there some reason why before you didn’t mention that in your evidence today.
ANo, there’s no reason.
QBecause do you accept that that the first is quite a different factual situation, it is obviously putting his hand inside and touching and then that is it, you get up and go away and the second is that the hand actual slips out and then there’s an attempt to put it back. Can you see that difference.
AYes.
QCan you explain it.
ANo.
As the complainant conceded there was a difference between her evidence in court and her statement to the police. Ultimately she recanted the evidence that she gave in chief and adopted the version she gave to police. The difference is not insignificant and the reason for the difference is not clear.
Conclusion
The prosecution case rests entirely upon the complainant’s evidence. As I have said it is clearly evidence upon which the accused could be lawfully convicted. As there is no independent corroboration of her account however I must carefully weigh her evidence.
Defence counsel submits that the complainant’s evidence is inherently unlikely. It is said that there is an improbability in an adult entering a child’s bedroom out of the blue with no prior conversation or sexual interest or grooming behaviour to have sexual intercourse with a child on a mattress in the presence of three, possibly four other children, one of whom was lying on the same mattress next to the complainant in circumstances where it was in full view of anyone coming into the room, the door is half open and there are house guests. Whilst this alleged behaviour may seem brazen, even foolhardy, when put in those terms this is not of itself enough to give rise to a doubt. The experience in these courts is sadly that much offending of this type occurs in a brazen manner in the family home where the chances of discovery are significant.
However, whilst I found the complainant to be a compelling witness in many respects witness I am concerned about aspects of her evidence as summarised above. The accused ought not to be convicted in circumstances where I remain uncertain about critical aspects of the complainant’s evidence. I therefore do not consider that the prosecution has proven the charge beyond reasonable doubt and I acquit the accused.
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