R v McGlashan
[2018] SADC 132
•11 December 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCGLASHAN
Criminal Trial by Judge Alone
[2018] SADC 132
Reasons for the Verdict of His Honour Judge Muscat
11 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The defendant is charged with maintaining an unlawful sexual relationship with a child. The allegations dated to the period between June and November 1990.
Verdict: Not Guilty
Evidence Act 1929 s 34CB, s 34KA, referred to.
R v MCGLASHAN
[2018] SADC 132Introduction
Brian Francis McGlashan (‘the defendant’) is charged on an Information dated 15 November 2018 with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brian Francis McGlashan between the 16th day of May 1990 and the 1st day of January 1991 at Murray Bridge, maintained an unlawful sexual relationship with RL (formerly RM) a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, namely:
(a)touching her vagina on one or more occasions;
(b)putting his fingers in her vagina on one or more occasions;
(c)touching her breasts on one or more occasions; and
(d)kissing her on her mouth on one or more occasions.
It is alleged that he committed this offence against the 10 year old friend of his partner’s daughter in the home he lived in with his partner at the time. At the relevant time the defendant was aged 32 or 33 years. The prosecution relied solely on the evidence of RL to prove the offence against the defendant.
Application for trial by judge alone
The defendant was originally tried before a jury in September 2018 and again in November 2018. On each occasion and before the completion of the prosecution case the jury had to be discharged. However, RL had given her evidence in full at each mistrial and restarting before another jury would have necessitated her having to give evidence for a third time, which would have been most unsatisfactory. Following the last mistrial the defendant elected for trial by judge alone, an application which was not opposed by the prosecution and which, in the circumstance, I granted. As I was the trial judge and had heard RL’s evidence, both parties agreed I should hear the trial to avoid RL having to give evidence for a third time. RL’s evidence from the second trial was tendered before me as her evidence.[1]
1 Exhibit P3.
Also at the second trial, there emerged a difficulty with a key witness (being RL’s father, SM) who was called by the prosecution at the defendant’s first trial in September 2018. When he was called to give evidence on 20 November 2018, it was very apparent that he was suffering from a serious cognitive deficit. That morning, prior to calling SM as a witness, the prosecutor indicated that SM’s general practitioner had recently diagnosed SM as suffering from moderate dementia. The prosecutor informed the court he had spoken with SM the day before and despite the diagnosis, SM appeared capable of recalling past details. While the diagnosis was a concern in relation to the reliability of the evidence SM would give, the prosecutor did not consider that SM was mentally unfit to give evidence. The prosecutor advised the court that depending on how SM gave his evidence he might need to call some medical evidence to explain SM’s memory deficits to the jury.
However, when SM was called to give evidence before the jury he was plainly unable to recount past events apparently due to his recently diagnosed condition. Given defence counsel had conducted an extensive cross-examination of RL based on the evidence SM gave at the first trial, an application to discharge the jury in light of SM’s present difficulties with capacity as a witness was granted.
Obviously this recent diagnosis called into question the reliability or accuracy of the evidence SM had given at the first trial only two months earlier. I will return to discuss this matter later in these reasons.
Central issue at trial
There was no dispute that the unlawful sexual acts, as particularised, amounted to sexual offences at law at the relevant time;[2] nor that the defendant was an adult[3] and that RL was a child during the period alleged.[4] There was also no dispute that if RL’s evidence of a prolonged course of sexual abuse was accepted beyond a reasonable doubt then the defendant had maintained an unlawful sexual relationship with RL over the period alleged in the particulars.
[2] Indecent Assault with a Person Under 12 Years – particulars (a), (c) and (d); Unlawful Sexual Intercourse with a Child Under 12 years – particular (b).
[3] The defendant was born on 14 October 1957.
[4] RL was born on 17 May 1980.
The sole issue in dispute was whether the alleged unlawful sexual acts,[5] which made up the alleged unlawful sexual relationship, had been established beyond a reasonable doubt by the prosecution.
[5] More specifically, at least two unlawful sexual acts as particularised, having occurred on separate occasions during the period alleged in the particulars.
The entire prosecution case depended entirely upon the court being satisfied beyond a reasonable doubt of those unlawful sexual acts, based solely upon the evidence of RL.
Prosecution case
At the time of giving evidence RL was 38 years old.[6] She alleged that when she was 10 years old she slept over at the house the defendant lived in with his then partner, CS and her two children, SS (aged eight years) and TS (aged two years).[7] RL said she was sexually abused by the defendant every Saturday night and Sunday morning over a six month period between June and November 1990.[8]
[6] T27.
[7] T35.
[8] T34, 39.
RL said that she first met the defendant when she was four or five years old.[9] She said he had been in a relationship with her aunty, VS (who had previously been married to her uncle[10]).[11] RL said her aunty VS and her former husband MS had two children, NS and KS, who were about her own age; NS was slightly older and KS slightly younger than her.[12] She said that her family would spend time with her aunty VS and the defendant and that ‘he was family so we had coffee and family functions and just visits’.[13] RL also said her mother, MM, was best friends with the defendant’s mother, J.[14]
[9] T31.
[10] MS, who was her mother’s brother.
[11] T31.
[12] T32.
[13] T32.
[14] T33.
RL said that when she was about five years old the defendant and her aunty VS and VS’s children NS and KS moved to Queensland.[15] She said that her aunty VS and the defendant returned to Murray Bridge five years later.[16] RL believed that not long after returning to Murray Bridge her aunty VS and the defendant separated.[17] RL said that despite the defendant being separated from her aunty VS, RL’s family nonetheless continued to associate with him after he returned to Murray Bridge.[18] She claimed that ‘he was family and we welcomed him back.’[19] When asked what she meant by that, RL stated ‘we would go to each other’s house, have coffee, have dinner, just normal family functions’.[20]
[15] T32.
[16] T33.
[17] T33.
[18] T33.
[19] T33.
[20] T33.
The alleged unlawful sexual relationship
RL stated she stayed over at the defendant’s house on weekends.[21] She said she would be dropped off at the defendant’s home by her mother or occasionally by her father.[22] On other occasions the defendant would collect her from her home.[23] She said she had her mother’s permission to stay over the defendant’s house.[24] She agreed that her father would have been aware that she was sleeping over at the defendant’s home on weekends over the six month period asserted by her.[25]
[21] T39.
[22] T77.
[23] T77.
[24] T77.
[25] T77-78.
RL remembered first sleeping at the defendant’s home after her 10th birthday.[26] As already mentioned, RL said the defendant was living with a woman[27] (who she could not name)[28] and that woman’s two children, SS and TS (who suffered from leukaemia).[29]
[26] RL was born on 17 May 1980.
[27] ‘CS’.
[28] T58.
[29] T52.
RL described the very first occasion she was sexually abused by the defendant as occurring sometime in June 1990, which she knew because it was soon after her 10th birthday.[30] On that occasion she was sitting on the couch with the defendant and SS watching the Saturday evening show ‘Hey Hey It’s Saturday’ on the television.[31]
[30] T43.
[31] T44.
RL said they were all covered by SS’s feather doona when the defendant placed his hand underneath her underwear and began to fondle her vagina with his fingers.[32] She said while he was fondling her vagina he also inserted his fingertip into her vagina.[33] RL described feeling confused as she did not understand why he was doing that to her.[34] She described feeling scared because she thought she was going to wet herself.[35] Under cross-examination she said that she wriggled on the couch whenever the touching felt uncomfortable and she felt petrified that she was going to wet herself.[36] RL claimed the defendant was sexually abusing her in this way for most of ‘Hey Hey It’s Saturday’ and while SS was sitting on the other side of the defendant on the couch.[37] RL said that SS was sitting on the other side of the defendant on the couch for the entire duration of the show and while the sexual abuse was occurring.[38] RL said that she did not know where CS was that night.[39]
[32] T44-45.
[33] T44.
[34] T46.
[35] T46.
[36] T82.
[37] T45-46, 82.
[38] T46.
[39] T46-47.
RL said that after ‘Hey Hey It’s Saturday’ finished she and SS went to bed in SS’s bedroom.[40] She described lying in bed with SS ‘top to tail’ when the defendant entered the bedroom to say goodnight.[41] She said he was kneeling on the floor in the middle of the bed and leaning over her and SS when he placed his hand underneath the doona which had been covering them.[42] She said that he was telling her and SS stories and jokes when he placed his hand inside of her underwear and began to fondle her vagina as he had done before on the couch.[43] She said that this time he inserted his finger further into her vagina than he had done on the couch and that this caused her to experience pain and discomfort.[44] Despite this she said that she did not react to it, nor did she move or say anything at all.[45] RL said this sexual abuse continued for approximately five or 10 minutes, following which she said the defendant gave her and SS a kiss goodnight and left the bedroom.[46] RL said the bedroom door was open throughout and again she could not say whether CS was home at the time and if she was, where CS might have been in the house.[47]
[40] T47.
[41] T47.
[42] T47-48.
[43] T47.
[44] T48.
[45] T 83-84.
[46] T49.
[47] T82-83.
RL said that after the defendant left SS’s bedroom she and SS talked before falling asleep. [48] Whilst she could not recall the exact conversation she had with SS, she said they would usually discuss school, family and a times table tape recording that SS used to help her memorise them by.[49] RL was appearing to suggest that the conversation she remembered having with SS that night was similar to their usual conversations in bed before falling asleep.
[48] T49.
[49] T49.
RL said the following morning, when the defendant was about to drive her home, he asked her if she had liked his ‘special cuddles’.[50] She said she understood what he was referring to and replied: ‘I don’t know’.[51] She claimed the defendant told her not to tell anyone about them, saying that no-one would believe her.[52] RL also said the defendant told her that if what he was doing ever hurt her or if she wanted him to stop, then she should tap him on the arm and he would desist. [53] She said he demonstrated what she had to do by tapping her on her arm.[54] RL said that by that time she had been taught about inappropriate sexual conduct at school and felt confused because she could not understand why someone, who she thought cared for her, would be hurting her like that.[55]
[50] T50.
[51] T50.
[52] T50.
[53] T50.
[54] T50.
[55] T50.
Although RL said she was never sexually abused on the couch again, she went on to describe being touched in the same manner she had described when she was in SS’s bed each and every time she slept there over the following six months.[56] She also said that each time when the defendant was inserting his finger into her vagina she felt some degree of physical pain.[57]
[56] T51.
[57] T51.
RL said there was only one occasion when she was required to tap the defendant on his shoulder, which occurred approximately one month after the initial incident on the couch.[58] RL claimed that this occurred on a Saturday night.[59] She said that on that Saturday she travelled to Adelaide with the defendant, CS, SS and TS for TS’s treatment at the Women’s and Children’s Hospital.[60] She recalled they stayed in Adelaide for most of the afternoon and that CS and TS remained at the hospital overnight while she returned to Murray Bridge with the defendant and SS, following which she was sexually abused.[61]
[58] T51-52, 88.
[59] T51-52.
[60] T52.
[61] T52
She said that when she and SS were lying in bed together that night, the defendant entered the bedroom to say goodnight.[62] As usual he placed his hand underneath the doona and inside of her underwear and began to fondle her vagina.[63] However, on this occasion RL said the defendant was much more forceful than ever before. [64] Remembering what he had told her, she tapped his arm to signal him to stop, but instead of stopping, he forced two fingers inside of her vagina which was extremely painful.[65] She said that despite the extreme pain, she did not respond nor react to what she was feeling.[66] As she put it, she couldn’t move; she was frozen; she couldn’t speak or move or do anything. [67] She was in shock and felt paralysed.[68] As with all the other occasions of sexual abuse in SS’s bedroom, after the defendant stopped sexually abusing RL, he kissed the two girls goodnight and then left the bedroom.[69]
[62] T53.
[63] T53.
[64] T53.
[65] T53.
[66] T53.
[67] T53.
[68] T53.
[69] T94.
RL said that later in the night when she went to the toilet she discovered blood in her underwear.[70] She described there being a lot of bleeding from her vagina. She said she kept her underwear on and placed toilet paper inside.[71] She said at first she thought she had started her first period but later realised that was not so.[72] RL said that she was bleeding from her vagina for a day or so following this incident.[73] She recalled wearing a night dress on this occasion and could not she say whether there were any bloodstains on her nightdress or on the bedsheets.[74]
[70] T54.
[71] T90.
[72] T54.
[73] T54.
[74] T90.
Under cross-examination RL was reminded that at the first trial she said that the following morning she went into the defendant’s bedroom. [75] At first she could not recall saying that, but said she recalled the incident after having been reminded of the specific evidence she gave.[76] She said SS was not in the defendant’s bedroom with her at that time.[77] She said he hugged her, touched her on the bottom, rubbed her back, touched her breast and kissed her, following which she left his bedroom and she and SS then made breakfast together.[78]
[75] T96-98.
[76] T96-98.
[77] T98.
[78] T97-98, 100.
RL also said in evidence that she did not change out of her underwear until she showered at home on the Sunday evening.[79] She then placed the bloodied underwear into her school bag so that her mother would not discover them and later discarded them in a bin on the way to school on the Monday morning.[80] She repeated that she was bleeding from her vagina for a day or two following that incident and she also experienced a burning sensation whenever she urinated over the following day or so.[81]
[79] T100.
[80] T91.
[81] T91.
RL also detailed being sexually abused by the defendant in his bedroom after waking up on the Sunday morning every weekend she slept over during the six month period between June and November 1990.[82] She said some mornings he would call out to her and SS to come into his bedroom.[83] She said there were also occasions when TS would also be in the bedroom jumping up and down on the bed when the defendant was sexually abusing her and other occasions when she would be in the defendant’s bedroom alone with him.[84] She said that on all of those occasions the defendant would be underneath the bed covers. [85] She also said she never knew where CS was at the time.[86] RL said the defendant’s bedroom door was open.[87] On some occasions she would have her underwear on, while on other occasions, the defendant would remove them himself, or he would tell her to take them off before getting into bed with him.[88]
[82] T55
[83] T55
[84] T57.
[85] T57, 60.
[86] T58.
[87] T64.
[88] T57.
RL described what the defendant would regularly do to her when she was in his bedroom with him, she said: ‘he would put his hands in my underwear and he would fondle my vagina, he would put his finger in. On another occasion he hugged me, he did not put his hands in my underwear. On one occasion, or on several occasions he would just hug me, he would rub my back and play with my bottom. He would fondle with my breasts on the outside of my clothes and he kissed me’.[89] RL specifically said he had his hands in her underwear and would be fondling her while SS was in the bed and under the covers with them.[90] She said that at 10 years of age she had fully developed breasts and was in a bra.[91]
[89] T57-58.
[90] T60.
[91] T65.
RL said that there were multiple times when she was in the defendant’s bedroom with him on a Sunday morning when he would touch her vagina but without inserting his finger inside her vagina.[92] She said there were other occasions when TS was in the bedroom playing and jumping at the end of the bed during which time the defendant would only gently play with her vagina and not insert his finger inside her vagina.[93] She also described occasions when the defendant kissed her on the lips including forcing his tongue into her mouth.[94]
[92] T61.
[93] T60. This had happened about five times with TS in the bedroom (T61).
[94] T64-65.
RL recalled a specific occasion in the defendant’s bedroom when she was wearing her night dress and he removed her underwear placing it on the floor next to the bed.[95] Neither SS nor TS were present in the bedroom on this occasion and she did not know where they might have been in the house.[96] She also did not know where CS was either.[97] She said the bedroom door was open.[98]
[95] T61-62.
[96] T61.
[97] T64.
[98] T64.
RL described lying on her back with the defendant lying on his side next to her in the bed while touching her.[99] She said the touching was different to the touching on other occasions; it felt as if he was encouraging her to touch him, which she did not want to do, and that he was pulling her towards him, as if he wanted her to roll on top of him.[100] She said she avoided this by snuggling closer to him and hugging him, which allowed him to continue touching her.[101] She said she only did this in the hope that she would not have to touch him.[102] She said he was touching her vagina and he then inserted his finger inside her vagina.[103] She said she somehow managed to get away from him and found herself sitting on the edge of the bed, where she put her underwear back on before walking around the bed and out of the bedroom.[104]
[99] T63.
[100] T59-60, 63.
[101] T63-64.
[102] T63.
[103] T63-64.
[104] T64.
RL said that she stopped staying over at the defendant’s house following an incident when she was punished by her mother at a social gathering at home.[105] She placed this incident as occurring sometime during November 1990.[106]
[105] T67-68.
[106] T67.
RL’s home life
RL described her mother as: ‘quite neglectful. She was very cruel and did not want me … she told me herself why she did not want me and I never once felt loved by her … she had severe depression. She was highly medicated, she used to take over a hundred pills a day and I know she did because I used to have to help her to medicate herself. She would have tablets to wake up, she would have tablets to eat, go to sleep, tablets to function. She would sleep all day, she had no comprehension of where she was or who she was’.[107] RL said that her mother did not look after RL and her brother RM (who was two years older than RL).[108]
[107] T29-30.
[108] T29.
She described her father as working long hours. During weekdays he would leave for work ‘before it was light and he would get home just as it became dark and on weekends he would be gone all day’.[109] While she did not have a bad relationship with her father she said ‘we really didn’t have a good one because he was busy all the time … He wasn’t there’.[110] RL said essentially she and her brother RM had to look after themselves.[111] She said that her father did not have a lot to do with her when she was growing up as a child.[112] RL denied that her father took her to day care or early learning centres when she was a young child, claiming that when she was four years of age ‘I caught the bus to kindy. We lived in Jervois and a bus would pick us up and take us to kindy. I went to two kindies. I went to the Tailem Bend kindy where I’d have to catch the ferry, and I also went to the Jervois kindy’.[113]
[109] T30.
[110] T31, 67.
[111] T31.
[112] T78.
[113] T78.
RL’s description of her terrible home life was self-contradicted by evidence which she gave of the family seemingly enjoying regular weeknight visits to see the defendant and his parents. RL said they would visit when her father returned home from work and after they had dinner and presumably when her mother was functioning.[114] RL also said that the defendant and his family (CS, SS and TS) regularly socialised with her family.[115] She claimed the two families were over each other’s homes quite often.[116] She also specifically claimed that her father spent ‘quite a bit of time’ with the defendant.[117]
[114] T74-75.
[115] T74-75.
[116] T75-76.
[117] T74.
RL stated she enjoyed staying over at the defendant’s house, describing it as: ‘better than being at home’.[118] She said ‘I felt loved there. I had good food. I felt like I had a safe home. I didn’t have to look after my mum. I didn’t have to cook meals or do the chores at home. I could be a child and I felt loved and wanted there’.[119] She described the defendant as treating her with love, saying ‘he would hug me, he would kiss me, he would sit me on his lap, he would interact with me, he would tell me jokes. He was very kind’.[120]
[118] T41.
[119] T43.
[120] T43.
Presumably these descriptions were to contrast her own very neglectful and cruel family life, especially from to her mother, to that which she enjoyed while at the defendant’s home. Later in her evidence, RL explained that she continued to stay at the defendant’s home on weekends, despite the regularity of the sexual abuse perpetrated upon her, because: ‘it was better than being at home. When I was there I was loved and cared for and I know it sounds really weird and confusing, but compared to the treatment by my mother it was better than being at home … At home I was physically abused which was worse’.[121]
[121] T73-74.
RL said there were also times she slept over at the defendant’s father’s house. [122] She recalled her brother staying there with her on those occasions.[123]
[122] T40, 74.
[123] T40.
RL’s lack of memory of CS and her brother
Despite claiming to have visited and then stayed at the defendant’s house almost every weekend over a six month period, RL was unable to remember the defendant’s partner, CS, by name.[124] As RL explained, she did not have much to do with CS when she stayed over at the defendant’s house, saying: ‘I remember her [CS] sitting at the table with us having meals, cooking the meals and attending to TS who was sick’.[125] Later in evidence she said: ‘I have memories that she [CS ] was there, she prepared meals. I have memories of her but they are very – I’m not sure how to describe the word? It was like she was in the background. Because I knew [the defendant] and because I had such an affection for him and I sat on his lap, we did things together, I interacted with [the defendant] more than I did with CS. I was more interacting with SS and [the defendant] than the other two [CS and TS]’.[126]
[124] T58.
[125] T58.
[126] T73.
Furthermore, despite suggesting that her brother RM was being treated even more harshly than she was by their mother, RL said that he never spent any time with her at the defendant’s house, nor could she say what he would be doing on those weekends that she stayed over at the defendant’s house.[127] She suggested as a possible reason why RM did not stay at the defendant’s house with her was that she was friends with SS who was a similar age to her, whereas RM was two years older than RL and he was a boy.[128]
[127] T66-67.
[128] T66.
The relationship between RL and SS
RL said prior to the defendant forming a relationship with CS she did not know SS.[129] She claimed she became very good friends with SS over the six month period that she spent at the defendant’s home.[130]
[129] T69.
[130] T69-70.
RL claimed that she would see SS ‘almost every weekend and sometimes during the week’ over the six month period between May and November 1990.[131]
[131] T68-69.
She described that they ‘would play games, we would watch TV, we would play Barbie dolls and play outside. Just girly things’.[132] Later she added ‘we would play chasey, hide and seek. We had a girl game that you learnt to put make-up on and things like that. We would play cards, we would watch TV’.[133]
[132] T69. On the night she was first sexually abused RL said the defendant bathed her and SS but did not do anything inappropriate. This was the only occasion RL said the defendant had bathed her and SS.
[133] T72.
RL said she slept in SS’s bed every time she slept over and said they would talk to each other before falling asleep.[134] She also said that she and SS would bath together every time she stayed over, remembering that they played in the bathtub together.[135]
[134] T71.
[135] T79.
RL agreed under cross-examination that SS was one of her best friends at that time.[136]
[136] T70.
SS’s evidence
RL’s evidence stood in stark contrast to that of SS, who said she had no memory at all of RL.[137]
[137] T168, 176.
SS’s memory of when she was an eight year old child living in Murray Bridge was not good. She remembered that the defendant was her mother’s partner and that he lived with the family for a period.[138]
[138] T155-156.
SS said while it was a possibility he came into her bedroom and told her stories and jokes before she fell asleep she, could not actually remember that.[139]
[139] T167.
SS did not recall anyone named RL from her childhood.[140] She was however, able to remember the name of her best friend at school during 1990.[141]
[140] T168.
[141] T168.
SS said she assumed she would have had sleepovers at her house but did not actually remember any.[142]
[142] T168.
SS said she had no memory of a girl staying at her home every weekend during a six month period in 1990 when SS was eight years old and had no memory of that girl sleeping in SS’s bed with her on those occasions.[143] She agreed that if that girl was one of her best friends she would likely have remembered her.[144]
[143] T176.
[144] T176.
SS said she did not recall anyone named SM and although she remembered a man named “Stewie” she did not remember who he was and assumed he was a friend of her mother and the defendant.[145] She could not say if he had any children.[146]
[145] T171.
[146] T171.
She said she did not know anyone named MM.[147]
[147] T171.
SS confirmed travelling to Adelaide with her mother and TS for TS’s cancer treatment at the Women’s and Children’s Hospital.[148] She also confirmed having a feather doona[149] and a cassette recording of the times table.[150]
[148] T171-172.
[149] T153.
[150] T166-167.
SS said when she was eight years old she spent every second weekend with her aunty and uncle at Elizabeth until she was stopped from attending there by the defendant.[151] She could not say when he stopped her from staying with her aunty and uncle but believed she had been staying there for approximately 12 months.[152]
[151] T169.
[152] T169-170.
The evidence of SM
As stated earlier in these reasons, SM (who was aged 66 years) was called at the defendant’s second trial but was plainly unable to recount past events. It was an agreed fact that SM was diagnosed as suffering from moderate dementia by his general medical practitioner, Dr Martin, on 15 November 2018 following a number of concerns expressed by SM’s partner about his cognitive functioning.
The prosecution tendered SM’s evidence given at the defendant’s first trial in September 2018, pursuant to s 34KA of the Evidence Act 1929.[153] As I have said, it was agreed between the prosecution and the defendant that SM was now unfit to be a witness because of his recently diagnosed dementia.
[153] Exhibit P7.
Dr Martin was called by the prosecution to explain SM’s present level of cognitive functioning. It appears that SM’s main present deficits are in the areas of attention and short term memory.[154] His long term memory was said to be intact,[155] although this did not appear to be so when he gave evidence on 20 November 2018 at the defendant’s second trial, following which the mistrial was allowed.
[154] T188-189.
[155] T191.
Dr Martin said that SM’s moderate dementia could increase the likelihood of him becoming confused and flustered when recalling matters, especially when he was put under pressure, such as when being questioned in a court room environment.[156] I observed these symptoms for myself on 20 November 2018. However, Dr Martin said that SM should still be able to accurately recall past events, even those dating back to 1990, if he was not feeling pressured.[157]
[156] T191-192.
[157] T192.
In assessing SM’s evidence tendered from the first trial I have had regard to Dr Martin’s opinions.
It was accepted by both the prosecution and defendant that on many occasions during his evidence at the first trial, SM appeared confused and had considerable difficulty recollecting past matters or events. I have taken into account Dr Martin’s opinion about SM becoming flustered or confused when under pressure as a likely explanation for his failure to accurately recollect past events when giving evidence during the first trial.
That noted, SM did confirm RL’s evidence that his wife, MM, was addicted to pethidine, which affected her behaviour.[158] He also confirmed that MM and RL did not enjoy a happy relationship as RL stated.[159]
[158] Exhibit P7 – T130-131.
[159] Exhibit P7 – T130.
SM also confirmed RL’s evidence that he worked every day and most weekends but disputed that he had no involvement in his children’s parenting or day to day upbringing as alleged by RL. He said that he took his children to and from early education centres and that he played with them after school and on weekends whenever he was available. [160]
[160] Exhibit P7 – T132–135.
SM stated that he knew the defendant and recalled him returning to Murray Bridge after spending a period of time in Queensland.[161] He disputed that he socialised much with the defendant after the defendant returned to live in Murray Bridge. SM said that although he would call into the defendant’s home when he was visiting someone else in the street, he would not go out of his way to see him. [162] He said that sometimes he would have been with MM and the children when he went to the defendant’s house, but qualified his answer, as he did with so many others, by saying: ‘I’m not really sure’.[163]
[161] Exhibit P7 – T138, 140.
[162] Exhibit P7 – T142.
[163] Exhibit P7 – T142.
SM said he remembered the defendant was living with a woman and her two children (who I assume to be CS and her children SS and TS), but he could not recall any of their names. [164]
[164] Exhibit P7 – T142.
He said he could not remember whether RL spent any time away from home as a 10 year old child and specifically could not remember whether she stayed the night at the defendant’s home.[165] He said he could not remember taking RL to the defendant’s house to spend the weekend there.[166]
[165] Exhibit P7 - T131-135.
[166] Exhibit P7 – T143.
SM did appear more confident in stating that he and his family did not socialise much with the defendant after the defendant returned to live in Murray Bridge.
It was very difficult to determine how reliable SM’s evidence was given that he qualified many of his answers with ‘I’m not really sure’; ‘I’m not sure’; ‘Not that I can recall’; ‘I can’t really remember’; ‘I can’t really recall’; ‘I can’t really recall that far back’; ‘I can’t recall it anyway. Honestly I can’t’; ‘I wouldn’t have a clue’. Nevertheless, I have had regard to aspects of his evidence that I considered may be reliable.
No defence case
The defendant did not give or call any evidence. Nothing whatsoever can be made of his decision not to do so. The evidence of RL is not strengthened as a result of the defendant’s decision not to give or call evidence.
Forensic disadvantage
Because of the very lengthy 28 year passage of time which has elapsed since RL alleged she was sexually abused by the defendant, it is acknowledged that the defendant now finds himself at a significant forensic disadvantage in defending this charge.
As it is for the prosecution to prove his guilt the defendant does not have to do anything to prove his innocence. However, he is entitled, as part of his defence, to mount a challenge to the evidence adduced against him. In this case that evidence comes solely from RL.
I must take into consideration when assessing RL’s evidence and determining whether the prosecution has proved the charge beyond a reasonable doubt, that the defendant is at a significant forensic disadvantage in being able to challenge that evidence.[167]
[167] Evidence Act 1929, s 34CB.
The general and particular disadvantages that confront the defendant in mounting a defence to the charge are as follows:
First, there exists the very real difficulty in conducting a detailed cross-examination of RL in order to test her account against known or undisputed facts, or against witnesses who have a good recollection of the events at that time.
Obviously, the witnesses would have better memories of the relevant time had the matter been reported to the police at a time proximate to the sexual abuse. This is no more evident than with the evidence of SM, who is now no longer in a condition to accurately recall many matters alleged by his daughter. Many of the matters he may have been able to assist with are highly relevant to the defendant’s challenge to her evidence, particularly whether RL stayed at the defendant’s house with his knowledge as frequently as she has asserted.
Similarly, RL’s mother, MM, has now passed way. MM could have given evidence as to whether her daughter was allowed to stay over at the defendant’s house, either at all or as frequently as RL has claimed she did, and whether she drove her daughter to the defendant’s house as RL said. MM could also have given evidence as to whether the families regularly socialised together.
It is hardly surprising that the witnesses who were called faced real difficulties remembering events that long ago. SS provides the best example of this.
There is now no opportunity to investigate possible medical or scientific evidence that may have existed. If the matter was reported to the police at the time, it is likely RL would have been medically examined to determine if her vagina was penetrated as she alleged, particularly following the alleged sexual act of digital penetration causing her to bleed from her vagina for two days. There may have been forensic samples taken from RL that could have been tested for the presence of the defendant’s DNA. The police may have been able to conduct investigations into the bloodied underwear which RL said she discarded in a bin. Without those opportunities the defendant is at a serious disadvantage in challenging or testing what RL is alleging against him.
None of that is meant to be any criticism of RL for not reporting or disclosing the sexual abuse at the time. However, the fact remains that the defendant is now at a significant forensic disadvantage in defending these allegations all these years later.
Any criminal trial depending entirely upon the evidence of a single witness requires the court to scrutinise that witness’ evidence with care. When scrutinising RL’s evidence to determine whether the charge has been proved beyond a reasonable doubt, the court must take into account the significant forensic disadvantages confronting the defendant in defending the allegations.
Analysis of RL’s evidence
The defendant is presumed innocent of the charge he faces. The prosecution bears the onus of proving the charge against him beyond a reasonable doubt. It is not for the defendant to prove his innocence or to disprove the prosecution case.
The prosecution case was based entirely on the evidence of RL. To find the defendant guilty, the court needs to be satisfied beyond a reasonable doubt that RL has given a reliable and truthful account of essential components of the six month course of sexual abuse which she has alleged against the defendant.
Overall, I consider that RL did her best to give an honest and at times detailed account of the sexual abuse she alleged against the defendant. It appeared at times that RL exaggerated her evidence, though I accept this is how she may have remembered things as a child. For example, she said her mother would take 100 pills every day; that she caught the ferry to kindergarten alone as a four year old, and that her father was never around despite later saying he would be home for dinner and visit family friends during the week with his family. Nevertheless, the tendency for this evidence to be intrinsically unlikely does impact upon the reliability of her recollection of events so long ago.
RL gave a detailed account in relation to the first incident of offending that occurred while sitting on the couch watching ‘Hey Hey It’s Saturday’. RL explained how the offending came about, feeling as though she was about to wet herself and the pain she experienced whilst the defendant penetrated her vagina. Whilst this account appeared credible, it was her lack of reliability as to other matters and the extreme brazen nature of some of the offending as detailed below that caused me to have a reasonable doubt that the sexual abuse did occur.
Whilst I acknowledge that it is not unusual for those who sexually abuse children to take risks, sometimes substantial risks, I did have difficulty accepting the defendant would behave as brazenly as RL has alleged, particularly in relation to the incidents alleged to have occurred in his bedroom. That alleged sexual abuse carried with it an extremely high risk of detection considering that abuse occurred at times when both SS and TS were in the defendant’s bedroom.
RL also alleged that there were a number of occasions when she was alone with the defendant in his bedroom at times when SS was home and I consider highly likely CS and TS were home too. RL said the bedroom door was open making the risk of someone seeing the defendant in bed with a 10 year old child high. Indeed, RL said that on some of those occasions she would not be wearing any underwear and that on at least one occasion, the defendant removed her underwear and placed it on the floor next to the bed while he was sexually abusing her, including kissing her on the mouth with his tongue. In my view, such a scenario is highly improbable given that at any time CS or SS could easily have walked or looked into the bedroom and detected what was occurring. The risk of detection by CS or SS in those circumstances is so great that I am left with a reasonable doubt whether any of the alleged acts in the defendant’s bedroom occurred. It also seems unusual that despite RL and SS being best friends and close in age that there would be times when the two girls were separated for long enough for this to occur.
I am satisfied that RL must have been mistaken about the date on which she said the incident during which the defendant inserted his two fingers inside of her vagina causing it to bleed occurred. Her evidence about travelling to Adelaide for TS’s treatment on that Saturday is contradicted by the agreed facts. The agreed facts reveal that on 22 June, 3 August, 14 September and 26 October 1990, all of which fell on a Friday, TS was admitted to hospital for treatment and he was discharged the following morning, being the Saturday.[168] Accordingly, RL has been shown to be unreliable as to this specific occasion and I am not satisfied beyond a reasonable doubt it occurred.
[168] Exhibit P5 – agreed fact 13.
During her evidence about this incident RL failed to mention, as she had stated in evidence at the previous trial, that the defendant had called her into his bedroom on the Sunday morning and sexually abused her. While RL said she simply forgot this occasion, I find it difficult to accept that explanation considering it was the morning after the defendant had forcefully penetrated her vagina causing it to bleed. This further added to the difficulties I faced in being satisfied beyond a reasonable doubt concerning this specific incident.
There was also no explanation from RL as to why she went into the defendant’s bedroom that morning, especially given she said she was in pain from the forceful penetration of her vagina the previous night which caused her vagina to bleed. On RL’s evidence the defendant would routinely call her into his bedroom. There was no suggestion that he ever threatened her to submit to his requests. Without evidence of any fear on her behalf to explain her compliance, it seems unlikely that she would have entered the defendant’s bedroom that morning knowing from past experience what would occur in there, especially given the forceful and painful penetration she claimed to have been subjected to the night before.
I have also taken into account SS’s evidence that she had no recollection of RL at all. It seemed extraordinary that SS would not have remembered RL at all, if, as RL claimed, RL was sleeping in her bed almost every Saturday night during a six month period, throughout which they also bathed together every Saturday night and played together. While it may be accepted that SS did not have a particularly good memory of her childhood and accepting that a person may not remember some of their friends at the age of eight years, I find it difficult to accept that SS would have absolutely no memory at all of a friend who was not only described as her best friend, but a best friend from outside of her school who regularly visited her home with her family and slept over nearly every weekend over a six month period. This is further emphasised when one has regard to RL’s evidence that the two families regularly socialised at each other’s homes. Indeed, on RL’s evidence, she was almost one of the family during that period of time.
I accept that RL must have attended at the defendant’s house for her to have known SS and TS; to accurately recall SS’s feather doona; the layout of the house; the times table recording SS mentioned; TS’s illness and his visits to the hospital. However, SS’s evidence has caused me to question the reliability of RL’s evidence as to whether she stayed at the defendant’s house for the length of time asserted by her. Indeed, SS’s evidence raises the possibility that SS stayed at her uncle’s house in Elizabeth every second weekend during the relevant period, again bringing into question whether RL slept at the defendant’s house almost every weekend as RL asserted.
I found RL’s evidence relating to the two families regularly socialising together during the relevant six month period difficult to reconcile with the evidence she gave of the neglect and hatred she experienced from her mother and the absence of her father from her life. I find it hard to reconcile RL’s evidence that her mother was apparently capable of functioning during this six month period if she was as bad as she described her. If indeed the families were socialising as often as RL claimed they were during that period of time, then it is even more surprising that she had no memory of CS and equally surprising that SS would have no memory of RL and her family. Additionally, the regular socialising RL said occurred between the families was not supported by her father.
I also consider there was an inherent contradiction in RL’s evidence of being regularly sexually abused by the defendant on the one hand and being treated with love and care and being in a safe home environment on the other. That is so, even accepting RL’s evidence of her very unhappy home life. To describe an environment where one is being subjected to continuous sexual abuse, which was painful at times, as RL claimed, as ‘caring, loving and safe’ was incongruous.
Conclusion
I find myself in a difficult situation where I consider that RL’s evidence establishes that she was probably sexually abused by the defendant as she said. I emphasize that these reasons in no way reflect a view held by me that RL is a liar or an outright dishonest witness. As I have said, I considered RL genuinely attempted to give an honest and as detailed account of the sexual abuse as she could. However, as the standard of proof in a criminal trial is an exacting one, and after careful scrutiny of RL’s evidence and taking into account the significant forensic disadvantages now suffered by the defendant through the lengthy passage of time, I find myself in a position where I am left with reasonable doubt on RL’s evidence alone that the offence has been proved.
Verdict
I therefore find the defendant not guilty.
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