R v MARTIN - [2006] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARTIN
Criminal Trial by Judge Alone
[2006] SADC 131
Reasons for the Verdict of His Honour Judge Chivell
8 December 2006
CRIMINAL LAW
Particular offences. Offences against the person - sexual offences.
Accused charged with unlawful sexual intercourse with a person under the age of 12 years.
Trial by Judge without a jury - vulnerable witness applications - consideration of permissible use of uncharged conduct - consideration of use of complaint evidence - evidence of distress - verdict not guilty.
Juries Act, 1927 s7; Criminal Law Consolidation Act, 1935 s49(7); Evidence Act, 1929 s13(1), s13(2), s13(10)(a)(c), s13(3), s13(4), s13(5), s45A(b), s34CA, referred to.
R v Nieterink (1999) 76 SASR 56; R v I,K (2004) 89 SASR 406; R v Gallagher (1986) 41 SASR 73; R v Corkin (1989) 50 SASR 580, considered.

R v MARTIN
[2006] SADC 131

The Accused is charged on Information with unlawful sexual intercourse with a person under the age of 12 years, contrary to s49(1) of the Criminal Law Consolidation Act, 1935. The alleged offence occurred on 6 November 2003 at Plympton. It is an agreed fact that the alleged victim, whom I will call “A”, was born on 12 October 1992, and was aged 11 years at the relevant time.
The Accused elected to be tried by Judge sitting without a jury (Juries Act, 1927 s7). He pleaded not guilty upon arraignment.
Preliminary Directions
I direct myself that the elements of the offence of unlawful sexual intercourse are:
1.there must be an act of sexual intercourse. In this context, sexual intercourse includes the penetration of the vagina by a finger; and
2.the act of sexual intercourse must be unlawful. Section 49(1), as it was then, made sexual intercourse with a person under 12 years unlawful. Since the age of the alleged victim is agreed, this element has been proved beyond reasonable doubt. Consent is irrelevant (s49(7)).
Vulnerable Witness Applications
A gave evidence by means of closed circuit television from a position outside the courtroom (s13(1), Evidence Act, 1929). This was opposed by the Accused on the basis that she should make her allegation “to his face”. That is clearly contrary to the spirit and intent of the vulnerable witness provisions in the Evidence Act. A was a vulnerable witness both by virtue of her age, and the fact that she is the alleged victim of a sexual offence (s13(10)(a), (c)).
The Accused could point to no prejudice which might result from making such an order (s13(3)), and none of the factors in s13(4) or (5) were relevant either.
In those circumstances, I thought it was appropriate to make the order.
A’s mother, whom I will call “T”, also gave sworn evidence, and I made an order pursuant to s13(1) and (2) that a screen be placed which obscured her view of the Accused when she gave evidence. Ms Trengove, counsel for the Director of Public Prosecutions, said that there is a history of domestic violence between T and the Accused, and she is distressed by these proceedings.
Mr Braithwaite, counsel for the Accused, conceded that there have been Apprehended Violence Orders made in New South Wales against the Accused, although these are civil proceedings and no admissions of guilt were made. He objected to the screen in relation to T’s evidence as well.
I was satisfied that it was practical and desirable to make the order.
Having regard to s13(7), I remind myself that no inference adverse to the Accused can be drawn from the making of these orders, nor may they affect the weight to be given to the evidence.
The Case for the Prosecution
A gave sworn evidence. She is now 14 years old. Her evidence was clear and straightforward, except for certain parts which she found embarrassing. At such times, her speech became less distinct, and she seemed evasive. However, I think that was a consequence of her age and Aboriginal culture, rather than any indication of falsehood in her evidence.
A is one of 10 children born to T. The Accused is not her father. He is the father to only one of the 10, a girl much younger than A, whom I will call “B”. Another man was the father of the other nine children.
The Accused and T entered a relationship in about 1998-99. They lived for the most part in New South Wales. However, their relationship ended acrimoniously with disputation in the Family Court about custody and access to B. There are claims and counter‑claims about compliance with various orders made.
The Accused moved to Adelaide in early 2003 to look after his younger brother, who had lost a leg when he fell (or was pushed) from a train.
In September 2003, T and B also came to Adelaide to stay with the Accused and his brother at a house on Marion Road at Plympton. She gave conflicting evidence about how long she intended to stay. On the one hand it was “two weeks”, however, she “actually thought it might have worked” (T90), that “Steven had offered me and the family a new life” (T119-120), suggesting that she contemplated the possibility of staying longer. The Accused, and he was quite open about this, planned to have her down here so he could gain custody of B. He pretended to resume the relationship, although he said he hated her, and her family, for “the way she stole my daughter” (T215).
In any event, A and two of her other sisters came to Adelaide to join the group. They arrived on 25 September 2003 (Agreed Fact No 2). The Accused said that they came down so that B would have some company because she was “bored” (T199).
Events of 6 November 2003
A gave evidence that one morning her mother asked her to make toast for B. She said she went into the kitchen and the Accused was there, making a cup of coffee. She said her mother and her little sister were out of bed at the time. She said that whilst she was in the kitchen making the toast:
A.He started to touch me on the breast and touched me on the vagina and he was saying ‘I’m gonna fuck you’ and all this and I said ‘No, you’re not, because I’m too young’ and he goes ‘Oh, yes, I am’ and then he started to squeeze my nipples and my breasts and touch my vagina and put his finger inside my vagina.
Q.You said before lunch that, when he put his fingers inside your vagina, it scratched and hurt.
A.Yes.
Q.Can you tell his Honour how many fingers.
A.This one (INDICATES).
Q.How long did he have his finger in your vagina for.
A.A few seconds.
Q.Can you tell us what, if anything, he was doing with his finger inside your vagina.
A.No, he was touching me inside, yes.
A said that before the Accused did that, he had pulled her jeans down and her knickers. She said that as he was touching her, he started playing with his penis (T30). She said that he stopped when B came into the kitchen. She said “he just stopped and walked away” (T32).
A said that after she gave B the toast, she then began making herself some. By this time the Accused was at the table drinking his coffee. She said he came over again and began touching her on the breasts and then grabbed her by the hair and took her into the laundry. She said he threatened, “If you tell anyone, I’ll smash you and your mother” (T35). She said that he pushed her up against the wall near the washing machine and touched her breasts and her vagina again. She said he undid her jeans again. She said that on this occasion he touched her on the outside of her vagina. She said that he stopped when her mother came into the kitchen. Her evidence was confusing at this point, because she said that she was in the kitchen standing near the refrigerator and toaster when her mother came in (T38-39). There is no charge arising out of the laundry incident.
First Complaint to Mother
A said that when T came into the room, she said certain things “underneath her breath”, “whispering without sound coming out” and that she “read her lips” (T40).
A said that this communication was as follows:
A.She said ‘Is he touching you?’ underneath her breath and I said ‘Yes’, underneath my breath, behind Steven’s back, yes.
As I will shortly discuss, T contradicted A about this supposed silent conversation, and I am not satisfied that it occurred. This is a significant discrepancy in the prosecution evidence which has not been satisfactorily explained.
A said that T then left the room and went to call the police. She must have learned that later. She said that her mother, before leaving the room, said “I’m going to call the bank”, and that the Accused replied “Alright then, yes” (T41).
A said that after T left, she went into the bedroom where B was watching television and her two other sisters were still asleep. She stayed there until the police arrived. She said that after that she went outside and was crying with her mother.
Evidence of A’s Mother
T described the background to her relationship to the Accused. As I said earlier, the relationship started in New South Wales, and then the Accused came to South Australia. T came over here to stay with him in about September 2003 bringing B with her, and A and two other sisters joined them on 25 September 2003.
Events of 6 November 2003
T said that she had been sleeping with the Accused that morning. After she woke up, she had lain in bed thinking, until the Accused got up and left the room. She got up “about a minute later” (T103). She said:
A.I walked through the door, I seen (A) and Steven standing near the stove, side by side, and as I walked in, Steven had moved away from (A) and (A) looked at me and it was like she was trying to smile. I could see the fear in her eyes and just the whole outlook on her face, but still trying to smile. I knew there was something wrong. He’s automatically said that there was no milk or cereal for breakfast and sent (A) to the shop and that’s when I asked him could I go and ring home, to see if I could get some money off the family today, but I called the police.
T then modified her evidence that she got up about a minute after the Accused, because the significance of that evidence was clearly apparent. If it was correct, there would have been no time for the events described by A to have occurred before T entered the kitchen. T modified her evidence, saying that it might have taken more than a minute. She used the spurious reasoning that A could not have awoken that early, and that someone would have had to have woken her up, suggesting it was the Accused (T104). I have grave suspicions about the veracity of this evidence.
Another concern about that is that this could not have happened as early as A and her mother deposed. The “000” call was made to the police at between 10.05am and 10.10am (T177), so these events would not have occurred earlier than about 9.45am.
Another significant issue is that T contradicted A about this mouthed conversation behind the Accused’s back. On her evidence, it was merely the “fear in her eyes” which led her to go and call the police, without any idea of what had occurred.
When specifically asked by Ms Trengove whether she had said anything to A at that point, or whether A had said anything back to her, she said “No” (T107). She said, “I actually - I thought something had happened, so I winked at her, and for me to do that to her, she knew that I had some idea something was wrong with her”.
T said that the Accused then said that they had no milk or things for breakfast and sent A to the shop. Again, this was in direct contradiction of A’s evidence - she denied that she went to the shop at all (T60).
T said that after A went to the shop, she then asked the Accused if she could ring home, and he agreed. She went out to the telephone box and called the police (T110).
What is clear from that evidence is that T had no opportunity to ascertain from A what had happened between her and the Accused in the kitchen.
Second Complaint to Mother
After she telephoned the police, T waited by the telephone box until the police arrived. Whilst T was waiting, she saw A come back from the supermarket and go back into the house. T was still outside when the police arrived. It was not until one of the police officers went into the house that A and the other children came out and A ran towards her mother. T said:
A.She just blurted out that he had put his finger inside her Minnie and scratched her and, yes, just fell down into my arms and the police heard it, I heard it and all I could do was reassure her that it wasn’t her fault, whatever had happened. (T112)
A’s mother said that the police officers were standing directly in front of her when this occurred.
One police officer, Constable McDiarmid, said that she went into the house and found all four girls in the bedroom watching television. She escorted the children outside and observed them when they met their mother. She described A’s demeanour as “quite reserved, shy and she appeared to be upset and had been crying” (T167).
Constable McDiarmid said that A embraced her mother outside. After that, she spoke to A and asked her where she had been touched, and that her first response was using an Aboriginal word which she did not understand. She then gestured to her private parts. Constable McDiarmid said “How?” and A said “with hands”, and said that it was in the kitchen twice that day (T169). Constable McDiarmid asked A whether she had been bleeding. She said that A appeared quite alarmed and said that she did not believe so. She did say that she was “very sore” (T170).
Mr Braithwaite submitted that this complaint was inconsistent with A’s evidence that her vagina had been penetrated by the Accused’s finger and that he had scratched her. Having regard to the circumstances of the conversation, I do not accept that. The conversation was brief, and the police officer was merely enquiring about A’s welfare, rather than taking a detailed statement about what had happened. The “Aboriginal word” could have been “Minnie”, in which case the two versions are quite close, apart from the reference to scratching.
However, I agree with Mr Braithwaite that the most significant aspect of Constable McDiarmid’s evidence is the following question and answer:
Q.You also got from the mother, before going into the house, that Steven had penetrated the 11-year-old and that’s why she had summoned police to the house.
A.That’s correct. (T172)
As I observed earlier, T had no opportunity to find out from A what had occurred in the kitchen. However, T told the police, before they went into the house, and before anybody had had the opportunity to speak to A, that the Accused had penetrated her and that was why she had summoned them to the house. She could not have known that when she called the police. I agree that this evidence gives rise to, at the very least, a suspicion that the report to the police was part of a pre‑conceived plan.
Other Issues
In cross‑examination, T denied that there had been any intervention by the New South Wales Department of Community Services (“DOCS”) with her family prior to her relationship with the Accused, which started in late 1998 (T131).
That was in direct contradiction of information contained in Exhibit D8, which, it is agreed, is a briefing note from DOCS current at 20 May 2005, from the business records of that organisation relating to T’s children. I am entitled to have regard to that information as evidence of the truth of the contents of the document (see s45A(b) of the Evidence Act, 1929).
The note reads as follows:
Department of Community Service records indicate an extensive history of risk of harm reports in relation to the ( _________ ) children since March 1995. The risk of harm issues communicated in these records relate to domestic violence, physical abuse, sexual abuse and exploitation, inadequate supervision, parental/adolescent confliction and young person risk taking behaviour, including heroin use, offending behaviour and suspected prostitution.
There were other issues which caused me to have considerable hesitation about the honesty and reliability of A’s mother. Her evidence about the letters she wrote to the Accused (T135-137) is another example of her being less than candid with the Court.
Uncharged Acts
The prosecution led evidence from A that the Accused had sexually assaulted both her and her sisters in Sydney when they lived with him at Rosemeadow in Sydney (see T12-13). This evidence was led, in Ms Trengove’s submission, not to show that the Accused had the propensity to sexually abuse children, but to show that the incident on 6 November 2003 did not occur “out of the blue” and they tend to explain why A did not yell out or otherwise protest loudly at the time and why she may have submitted to the Accused’s actions (see R v Nieterink (1999) 76 SASR 56, and R v I,K (2004) 89 SASR 406).
A denied to the police on 7 November 2003 that she had ever before been sexually assaulted by the Accused (T48). There is no evidence that any complaint was made by A, or any of her sisters in respect of any such behaviour. The behaviour was denied emphatically by the Accused. I am not satisfied that the evidence of previous sexual assaults by the Accused is true, and so I exclude it from consideration.
Medical Evidence
A was examined by Dr Woodard-Knight at about 2.30pm on 6 November 2003 at the Women’s and Children’s Hospital. Dr Woodard‑Knight found a small abrasion, approximately 2mm long, on the inside of her left labia majora (T127). She described it as an acute injury, not older than 24-36 hours. After that period of time, the injury would no longer be evident (T128).
When asked what might have caused that abrasion, Dr Woodard‑Knight agreed that it could have been made by a fingernail, and:
A.Anything that might have scratched the labia; sitting on a twig without your undies on, or anything else in that area, like perhaps a ring, yes, anything that’s a little bit abrasive. (T128)
The doctor said that she was unable to say whether any of those possibilities was more likely than the other.
Record of Interview
Detective Dawkins was the investigating officer in this matter. He interviewed the Accused after A’s medical examination. The edited transcript is Exhibit P5. During the interview, the Accused denied the allegations, and referred to the disputation between him and A’s mother over the years concerning their daughter.
When asked about the injury referred to by Dr Woodard‑Knight, the Accused said: “Well I couldn’t tell you, I’ve got no fingernails. I have never had - I have always chewed my nails, I play guitar”.
Detective Dawkins confirmed that the Accused had very short fingernails, and thought that the process whereby they were scraped to obtain forensic samples would have been “quite painful” (T176).
The Accused did concede that he had threatened to “bash” A and her sisters in the past, because of his perception that they were ill‑treating his daughter. He said:
AYeah, I um, I grabbed A by the hair and before she, before she was sent down to the shop to get bread and milk and I turned around and said to her do you want to start behaving yourself, listen to mum, you listen to me, you stop shit‑stirring B, you stop standing over your sisters or bashing em, pinching em, and I said hurry up and get to fucken school. I said we’ll be right. I said when we get our own place yous can have your own ...........
Detective Dawkins agreed that the Accused was reasonably quiet and compliant when answering his questions (T179).
The Defence Case

The Accused gave sworn evidence on his own behalf. I remind myself that he was not obliged to do so, but having chosen to do so, his evidence must be treated in the same way as that of any other witness.
The Accused told me about his background, and in particular that he had been institutionalised from the age of 20 months, when he was taken from his mother. He passed from institution to institution, and from gaol to gaol, and remained in custody until the age of 32. Despite this unhappy childhood, he completed Year 12 at high school, and also studied architectural drafting and undertook an apprenticeship as a cook while he was in prison. Clearly, despite the violence and aggressiveness of his language, the Accused is an intelligent man.
The Accused described the commencement of his relationship with T, the birth of B, the eventual breakdown of their relationship and the disputes they had about custody and access to B. He summarised his attitude to T as follows:
A......... When B was born it just seemed to me like she used me to stop all the trash from coming to her house, because there was a lot of idiots going there, using her, drinking, everything, there was a lot of trash going to the house and it seemed to me that she just used me to have a kid just to get back at her ex and as soon as B was born she just took her away from me. (T191-192)
The Accused acknowledged that he had been violent towards T on a couple of occasions during disputes about the child.
The Accused said he got sick of this disputation, so he travelled to Adelaide to look after his younger brother. He described how T came down from Sydney to join him in September 2003 with B, and how A and her sisters came down later that month.
Events of 6 November 2003
The Accused said that he woke up on that Thursday morning because his daughter, who had been sleeping in the bed with him, had wet the bed. He said he put B in the bedroom with the other girls, and asked A to make some toast for her. He said that at one stage, while they were in the kitchen, he turned to A and said:
A......... ‘I don’t want youse here but when your mother goes back for her birthday you and your fucking three sisters are fucking going with her. (B) is staying but youse are fucking gone. I don’t want you here’, so I knocked her on the back of the head and that’s when she started crying. (T205)
He said that A then went to the supermarket and then came back and “next thing I know the coppers are here” (Ibid).
When being cross‑examined, the Accused displayed the depth of his anger and resentment towards T and her children, apart from B. He made it clear that all he wanted was custody of B, and that as far as he was concerned, he did not care what happened to the rest of them. He said he was still angry with A from an incident that had happened the day before when the three girls tricked B into allowing them to put a different video in the video player. He agreed that when he smacked A over the back of her head, he was angry with her. He said: “Yes. I wasn’t just angry at her, I was angry at everybody, the whole three of them and the mother. Most of all, it was the mother.” (T211).
The Accused is obviously an angry and violent man. I found his evidence almost paradoxically credible, however, because he seemed incapable of dissembling or trying to present himself in a better light. He made admissions about the unpleasantness of his character without hesitation or avoidance. I am not satisfied that his evidence was untruthful.
The Accused denied threatening to bash A and he specifically denied all the allegations that he sexually assaulted her.
As to his attitude towards A’s mother, he said:
I hated her. She took my baby. She done what the Government done to me; took everything off me. She took everything that meant anything to me, she took the world from me, and that’s why I hated her. (T214)
The Accused denied that either B or T ever entered the kitchen as A and her mother allege. He said:
It was only me and (A), and that was probably for about three minutes and then she went, after I clipped her - like I said, clipped her to the back of the head and she went to Bi‑Los.” (T228).
Addresses of Counsel
Ms Trengove submitted that any inconsistencies between A and her mother were not so significant as to cause me to doubt A’s credibility or reliability. She reminded me that A was only 11 years old at the time these events occurred. She submitted that it was highly unlikely that A was so sophisticated that she could have fabricated a story like this. I must say that I am unable to form a clear conclusion about that, on the evidence.
Ms Trengove made a number of further submissions supporting the credibility of both A and T. Further, she submitted that A’s evidence is corroborated by the medical evidence of Dr Woodard‑Knight about the scratch to A’s vagina. While I accept that that evidence is capable of amounting to corroboration (see R v Gallagher (1986) 41 SASR 73), it has limited probative value having regard to Dr Woodard‑Knight’s evidence about the slightness of the injury, and the various ways in which it could have been caused.
Distress
Ms Trengove also submitted that there is evidence from both A’s mother and the police officer of A’s distress. I accept that that is so, and that such evidence can tend to show the consistency of A’s conduct and is relevant to her credibility. However, in this case, an alternative explanation has been put forward by the Accused as the reason for A’s distress, namely his violent, indeed abusive language towards her, and the fact that he hit her on the back of the head. While this evidence does him no credit as a person, it could constitute an explanation for her distress which the prosecution would need to exclude in order for it to assist their case.
Recent Complaint
Section 34CA of the Evidence Act provides that, where the Court is dealing with a complaint made by a young child (that is a child under 12), as A was, the evidence, if admitted, goes not merely to the consistency of the complainant’s conduct, but also can be treated as evidence of the facts stated in the complaint (see R v Corkin (1989) 50 SASR 580). In that case, King CJ said at p583:
I am satisfied for the above reasons that the effect of the section is to render evidence of complaints, which satisfy the common law test, admissible, where the alleged victim is a young child, as evidence of the facts stated in the complaint and to do so irrespective of whether the child gives evidence of those facts.
In this case, the evidence was admitted without objection and I agree that it can be used for the purpose outlined by Ms Trengove, as evidence tending to prove the facts stated in the complaint. However, I am not satisfied that the first complaint, the “silent” complaint in the kitchen was made at all. I accept that the second one was made as deposed by Constable McDiarmid, that is, that no mention was made of scratching.
In summary, Ms Trengove submitted that the evidence of A, the evidence of recent complaints, the medical evidence and the evidence of distress, and indeed the attitude of the Accused of hostility and aggression displayed when giving evidence, all would justify a conclusion that the Accused is guilty beyond reasonable doubt.
Mr Braithwaite pointed out, correctly, that the issue is not whether or not the Accused is telling the truth, but whether it is reasonably possible he is, or, to put it the other way around, whether it has been proved beyond reasonable doubt that he is not. I prefer the latter as a more accurate description of the onus of proof. There is no onus on the Accused to prove anything.
Mr Braithwaite submitted that there were a number of matters which should cause concern about the honesty and credibility of the prosecution evidence. I summarise them as follows:
·in evidence A alleged the uncharged acts in Sydney, but to the police she denied that they had taken place (T48);
·the allegation of scratching the inside of A’s vagina did not arise, on Constable McDiarmid’s evidence, until after the medical examination, whereas T asserted that A had raised it as soon as she left the house;
·A’s evidence of the silent communication in the kitchen is contradicted by her mother;
·it was highly unlikely that the Accused would sexually assault A in such a brazen manner in the house when there was such a high likelihood that he would be seen, or that A would be heard if she complained, and where the affects upon his claim for custody of B would have been so devastating;
·there was no allegation about the sexual assault in the laundry until almost two years later, in the statement A gave to the police in 2005;
·the matters affecting T’s credibility, as I have already outlined;
·T’s evidence that she followed the Accused only a minute later into the kitchen, leaving almost no time for the alleged sexual assaults to have occurred;
·when T told Constable McDiarmid, before A came out of the house, that the Accused had penetrated A with his finger, she had no way of knowing that, as she had seen nothing in the kitchen and A had said nothing to her;
·the evidence of distress is equivocal in light of the Accused’s explanation.
Conclusion
Taking all these matters into account, I find that I am left with a reasonable doubt as to the truth of A’s allegations against the Accused. As I have stated, I feel a distinct disquiet about the role A’s mother has played, and there is a distinct suggestion that the allegation of digital penetration was in her mind before she had had the opportunity to even speak to A, and which she then passed on to the police. I have what I consider a reasonable doubt about whether this allegation has been fabricated to spoil the Accused’s efforts to obtain custody of B. Of course, the Accused bears no onus of proving the truth of such an allegation, but the prosecution bears the onus of excluding it beyond reasonable doubt, and I find that they have failed to do so. In those circumstances, I record a verdict of not guilty.