R v Mill No. Sccrm-02-289

R v MILL
[2002] SASC 290
Criminal

DUGGAN J. The accused is charged with having unlawful sexual intercourse with M, a boy under the age of 12 years. According to the prosecution case, M’s mother took him to the accused’s home on the evening of Thursday 30 August 2001. She was going out to see a film and she had arranged for M to be looked after by the accused and his wife who were close friends. The accused and his wife were present when M arrived and their two children were also at home. The accused’s son is the same age as M; his daughter is 16 years of age.
M gave evidence that, in the course of the evening, the accused’s wife and children retired and M lay on a couch in the lounge. He said the accused was lying on another couch in the same room. It was anticipated that M’s mother would pick him up later in the evening and the front door was left closed but unlocked so that she could enter the house. M’s mother arrived to pick him up around midnight.
M gave evidence that at one stage during the evening the accused came over to where M was lying on the couch and removed the rug which was spread over him. He then lowered M’s pyjamas and, according to M, licked him on the penis. The accused then returned to his couch.
When M’s mother returned later that evening she observed that M was upset. She asked him if something was wrong and he then made a complaint to her and described the incident to which I have referred.
The accused has denied the alleged offence. He has elected to be tried by judge alone. M and his mother were called to give evidence for the prosecution. The accused and his wife gave evidence. The accused also called a psychologist who examined M shortly after the incident. The defence also called a medical practitioner who gave evidence on a topic which is discussed later in these reasons.
There are two elements of this offence which must be proved beyond reasonable doubt before the accused can be found guilty. It must be proved that the accused had sexual intercourse with M on the occasion specified in the charge and, secondly, that at the relevant time M was under the age of 12 years.
There is no dispute as to the second element. As to the first element, sexual intercourse is defined in s 15 of the Criminal Law Consolidation Act 1935 so as to include fellatio. There need not be any penetration of the mouth by the penis; it is sufficient if a licking of the penis is established (Rien v The Queen (1995) 63 SASR 503 at 505).
I remind myself of some general matters. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused does not have to prove anything.
Nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that the accused is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. The requirement of proof beyond reasonable doubt applies to each element of the charge.
I have said that the accused gave evidence. He was not obliged to do so. He could have remained silent in answer to the charge, leaving it to the prosecution to prove the required elements. However, the accused elected to give evidence on oath. In assessing his credibility and the weight to be given to his evidence I must regard him on the same footing as any other witness. The accused does not assume any burden of proof by going into the witness box. The burden of proof remains with the prosecution.
M said he was taken to the accused’s house at 6.00 pm. He was wearing his normal clothes, but took his pyjamas with him. He played for a time with the accused’s son who was eventually sent to bed. The accused’s wife and daughter remained in the lounge room for a time and M went to sleep on a couch. He awoke at some stage and the only one in the room at this time was the accused who was lying on another couch. The television was still on. M said he then went back to sleep.
Later M awoke. He said he heard bottles rattling from the direction of the kitchen. He then saw the accused in the lounge room again, but he (M) then went to sleep. M awoke again and saw the accused going to the kitchen to get some chips. The accused went back to bed. M went to sleep again.
M said he awoke a further time and saw the accused get up and come over to where M was lying. M said the accused then pulled the quilt from M and pulled M’s pants down.
M’s evidence continued:
“Q     After he pulled them down, did he do anything else?
A      Yes, he licked my dick.
Q      When you say your ‘dick’, does that mean your penis?
A      Yes.
Q      What part of his body did he use to do that?
A      His mouth.
Q      Do you know if your penis went in his mouth or not?
A      No, it didn’t.
Q      How long did that last for?
A      He just did it once and then –
Q      Did it once and then what?
AAnd then he just pulled my pants back up and pulled the quilt over and went back to bed.”
M said that after this incident the accused went back to his couch and lay on it. M said he stayed awake and waited for his mother. He said when his mother arrived he ran up to her and gave her a hug. He then went out to the car. He said when his mother came to the car he hugged and kissed her. His mother kept asking him what was wrong and he told her that the accused had licked his penis.
M’s mother, Mrs H, gave evidence that the accused and his wife were good friends and that, from time to time, they would baby-sit for her. She said that on the evening of the alleged offence she had been invited to a preview of a film as part of her work and she asked the accused and his wife if M could stay at their place until after the film.
She said she arrived at the accused’s house at about 6.30 pm. She returned about midnight and entered the home through the unlocked front door. M was sitting up on the lounge and he ran straight over to her. She said he threw his arms around her legs and said “Thank God you’re here”. He then ran out to the car. She said he seemed to be in a state of panic.
Mrs H said the accused was asleep on another lounge when she went in. He started to get up as she was leaving, but she told him not to. The accused said M had a cold or a temperature and that his wife had given him some Panadol. Mrs H thanked him and left.
The witness said that when she went out to the car M was crying . She asked him what was wrong and he said “He’s sick Mum. He’s sick”. She questioned him further and he said “Mum, he pulled my pyjama bottom down and he licked me on the dick”.
Mrs H said she was particularly upset because the accused and his wife were such good friends. She said to M “Are you sure you weren’t dreaming?” and he said “No Mum, he’s sick”. She then asked him if he had seen something on TV or the Internet, but he repeated what he said happened.
The accused said in evidence that after M arrived at the house he and his wife went out to dinner, leaving his daughter to care for the two boys. They returned between 8.00 pm and 9.00 pm and the accused’s son was sent to bed. The accused said M then lay on the couch. The television was on. The accused lay on another couch. His wife was in the room watching TV. His wife said M had a temperature and she gave him some Panadol.
The accused said he dozed off and cannot remember waking up until Mrs H came in to get M. He cannot remember his wife being there when Mrs H came in. He said he could not remember getting up from the couch for any purpose. He denied being involved in any incident of the type upon which the charge is based.
The accused’s wife said in evidence that M’s mother told them she would be back at 10.00 pm or 10.30 pm. She said she gave M some Panadol after he complained of a sore throat. He then lay on the lounge. She said her husband was lying on the other lounge. Their daughter eventually went off to bed.
She said M went to sleep and she noticed him “thrashing about” on the lounge. He was moaning. She covered him with a rug. Her husband was asleep throughout.
According to the accused’s wife she stayed up until she heard M’s mother come back. She then went to bed because she said she was not in the mood for a coffee or conversation. She heard Mrs H come in and pick up M. She said that, up to the time she went to the bedroom, she did not see the accused go over to M and touch him.
It is necessary to say something about the evidence of the complaint and M’s distress. A complaint of a sexual offence is admissible as evidence if it satisfies certain criteria as to spontaneity and recency. These criteria are satisfied in the present case. M made a complaint to his mother at the first reasonable opportunity and it was spontaneous in the sense required by law. It is appropriate in this case to use that evidence as exhibiting conduct on M’s part which was consistent with his allegation of sexual interference. It constitutes a buttress to his credit (Kilby v The Queen (1973) 129 CLR 460 at 472).
Section 34CA of the Evidence Act 1929 provides the court with a discretion, in the case of an alleged sexual offence against a young child, to allow evidence of a complaint to be admitted to prove the truth of the facts stated in the complaint.
In the present case, I cannot see any reason arising out of the circumstances in which the complaint was made which would prevent me from exercising the discretion to allow the complaint to be used for the probative value referred to in the section. On the other hand, I have some difficulty in perceiving a practical purpose, in the circumstances of the present case, in viewing the evidence in this light as opposed to treating it simply as evidence of consistency. M gave evidence of the alleged incident in its entirety and, in my view, the case should be judged on the evidence given in court. Accordingly, I have decided to regard the complaint as clearly demonstrating consistency, but I have not applied it for the probative purpose referred to in s 34CA.
I accept the evidence of Mrs H that M was visibly upset when he saw her enter the room. I have considered whether this is equivocal in the sense that there might be another reason, apart from the alleged incident, which caused the distress. No equivocality is apparent on the evidence and, in my view, the distress is relevant in that it is consistent with M’s version of a sexual approach by the accused.
I deal now with some issues arising out of M’s evidence. Mr Cuthbertson, for the accused, has placed emphasis on the possibility that M might have dreamt about the alleged incident. It is necessary, therefore, to consider the evidence in relation to this topic. I accept Mrs H’s evidence that she was not anxious to pursue M’s allegations with the authorities, particularly as she was such a good friend of the accused and his wife. I also accept her evidence that, after M made his complaint in the car and while they were still outside the accused’s house, she asked her son whether there were alternative explanations. Her evidence was as follows:
“AI said ‘Are you sure your weren’t dreaming?’. He said ‘No mum, he’s sick’. I then said ‘Did you have something on TV that you’ve seen?’. I was trying to go through every logical explanation as to why my son would speak like that, to start off with. I’ve never heard him use a word like that let alone – I know all kids do when you’re not around – but I’d never heard him speak like that. So I went through a logical pattern of questioning.
QDid he describe to you again what had happened?
AHe repeated it again and said no, he didn’t see anything on the Internet. So he didn’t see a dirty movie and that did happen and there was – he was just determined that is what happened.”
Mrs H said she asked M more questions about this later. She said in evidence “he strongly said ‘No I didn’t dream it’ ”.
According to Mrs H she took M to school the following morning. Her evidence continued:
“QDid you speak at all about this dream topic when you took him to school?
AWhen I dropped him at school the next morning, I reiterated to him that I did, I believed every word he was saying because I couldn’t not with the way he was. However, remembering these were my best friends, I was looking for something to hopefully – I didn’t want it to be true. I asked M to ‘Please consider the fact that it could be a dream. Can you just think about that while you are at school today’. That was it. He said ‘It wasn’t a dream mum, but I’ll think about it’.”
Mrs H said that after she dropped M at the school she became concerned about him. After making enquiries, she obtained the name of a psychologist, Ann Thornton. She then went to the school to pick up M and, when he saw her, he said, “I have thought about it Mum and you’re right. It must have been a dream”. Later in the afternoon, Mrs H spoke to the psychologist and told her that she had “planted this dream thing in M’s head”. The psychologist advised her to apologise to M, say nothing else and observe his reaction.
Mrs H said she then spoke to M and said “I put that in your head and I’m sorry”. She said he turned around instantly and said “Mum it wasn’t a dream. It did happen”.
In cross-examination Mrs H said she was positive that she raised the idea of a dream first, not M.
M was asked about the dreaming issue for the first time in cross-examination:
“QAnd your mum dropped you off at school and your mum picked you up from school; do you agree with that?
AI’m not sure if she picked me up. She might of.
QI suggest to you that she picked you up and you said to her something like this: ‘You might be right mum, it could have been a dream’?
AYes.
QAnd I suggest to you later that day after you had come home from school your mum said to you something like this: ‘I talked to a special doctor who knows all about these things and she said that maybe you thought that I didn’t believe you because I suggested it was a dream. I do believe you and I’m sorry’. Your mum said something like that to you?
AYes, she might of but I do not remember her saying it exactly like the doctor, I don’t think she went and saw her.”
There was further cross-examination:
“QYour mum assured you, didn’t she, M, that you don’t have to worry about it being a dream; it was true. Isn’t that right?
AYes, she said something –
QIs that right?
AYes, she said something like that.
QIn fact, your mum has told you on a number of occasions, hasn’t she, look, she apologised – I am not using the exact words she said, she said things like that she apologises for ever doubting you; what you were saying was the truth?
AYes.”
And later:
“Q     You don’t know whether this was a dream, do you?
A      Yes, I know it’s not a dream.
QIs that because your mum has told you lots of times it’s not a dream, it’s true?
A      No, she hasn’t told me anything. I know that it’s not a dream.”
The witness was re-examined on the topic:
“QDo you remember the other lawyer asked you a question about whether you’d told your mum the next day after this happened at [the accused’s] house, about whether it could have been a dream?
AYes.
QAnd you said you said to her ‘You might be right, mum, it could have been a dream’?
AYes.
QWho was it that first raised the question of whether this could have been a dream?
AMe.
QHow did you do that?
AI just told her it when I came back from school. I told her that it might have been a dream and I said that because I – I could see that she was really stressed and she just didn’t want –she was like crying every night and stuff, I could hear her. I just really wanted to get out of there, that’s why I said it.
QYou said it, what, because she was upset?
AYes.”
There is some ambiguity in the last passage about the occasion to which the witness’s attention was directed when he was asked who first raised the question of whether this could have been a dream. However, the witness answered it by reference to the occasion after school. I do not think he took the question as referring to the first occasion on which dreaming was spoken about on the previous day. This was not the context of the questioning. There is no doubt on the evidence that it was Mrs H who first raised the topic of dreaming when she was in the car with M outside the accused’s home.
Ms Thornton said in evidence that, in the course of her interview with M, she asked him what he was thinking at the time of the assault and he answered “is this a dream or not”. She asked him whether he thought it was a dream then or later and he said “At the time I thought it was real, but when I went to school I thought it was a dream”.
He was asked what made him change his mind about the event being real and he said “I don’t know why. I just thought about it”.
I gave leave for further cross-examination of M after Mr Cuthbertson had been provided with Ms Thornton’s file. The cross-examination on this topic was as follows:
“QYou understand I am asking you now what you said to Ms Thornton?
AYes.
QI am suggesting to you that, when she said ‘What were you thinking?’ – that is, when the man goes back to the couch – you said ‘Is this a dream or not’?
ANo, I do not remember, but I’m pretty sure she didn’t.
QWere you thinking that; ‘Is this a dream or not’?
ANo.
QYou did, at one stage, however, genuinely believe it was a dream, didn’t you?
ANot genuinely.
QNot genuinely?
AYes.
QDo you mean you never really thought it was a dream?
AYes.
QDid Ms Thornton ask you this question: ‘Did you think it was a dream then, or later?
AI do not remember.
QDid you say to her ‘At the time, I thought it was real, but when I went to school, I thought it was a dream’?
AYes, I did think that.
QYou genuinely thought that?
ANo, I did not think that genuinely.
QDo you agree that she asked you this question: ‘Did you think it was a dream then, or later?’, to which you replied ‘At the time, I thought it was real, but when I went to school, I thought it was a dream’. Do you agree that she asked you that question and you gave that answer?
ANo, I do not think that.”
I am satisfied beyond reasonable doubt that Mrs H first raised this issue of dreaming with her son and that she pressed the matter for the reasons which she has given. I am further satisfied beyond reasonable doubt that at no time prior to making this complaint to his mother did he conclude that he was dreaming. If the incident did take place, then he may have asked himself during it whether he was dreaming, although I do not think that this did pass through his mind.
I have given careful consideration to the implications of the evidence on this topic. I find that this concept of dreaming was pressed upon him by his mother who raised it as an issue in his mind. I am satisfied that, for a short time, he was prepared to say it was a dream because of the influence his mother was exerting on him. However, as soon as it was brought home to his mother that it was inappropriate to put this into his mind and she communicated this to him, he immediately reaffirmed that the incident had occurred.
Mr Cuthbertson stressed the relevance of some other evidence to the issue of dreaming. M agreed in cross-examination that he had a cold on this evening and that he had a “runny nose”. He said the accused’s wife gave him some Panadol. He agreed that the accused’s wife felt his forehead. I have already referred to the evidence of the accused’s wife that she noticed M “thrashing about” and moaning. Later in these reasons I refer to my finding that the accused’s wife is not a witness worthy of credit in this case. In the light of other descriptions of M’s condition given by M and his mother it is my view that this evidence was exaggerated.

Dr McCleave, a medical practitioner, was called by the defence to give evidence on the issue of dreaming. Dr McCleave has extensive expertise in forensic medicine and he said that he studied psychology as part of his science degree. He has treated people with psychological problems.
He said that people with a fever might hallucinate and that if a young child thrashed about in his or her sleep, that might be indicative of a fever.
The witness then referred to the phenomenon of dreaming and he said that children can have more difficulty than adults in separating dreams from reality. I accept this evidence as a general proposition. However, I am not prepared to allow, as a reasonable possibility, that M dreamt that he was assaulted in this way and then treated the dream as an actual occurrence. I hasten to add that this is not something which must be proved in any way by the accused. However, the evidence on this issue of dreaming, including the evidence of M’s statements, does not lead me to entertain a reasonable doubt about the truth and accuracy of M’s version and the fact that the events which he described actually happened.
Mr Cuthbertson raised another issue arising out of the evidence of Ms Thornton. According to Ms Thornton, Mrs H said she wanted her to see M because she wanted an opinion on M’s credibility prior to allowing him to be interviewed by the authorities. However, Ms Thornton agreed that there were really two reasons conveyed to her by Mrs H and the other reason was that Mrs H wanted to see how her son was coping.
In her evidence, Mrs H said her main purpose in retaining the services of a psychologist was to ensure that her son was alright. Despite defence submissions to the contrary, I can find nothing in the explanations for M being taken to the psychologist which in any way reflects on the credibility of Mrs H or is relevant in any other way to the determination of the case.
The defence raised another incident which it was claimed might have some bearing on M’s credibility. The accused gave evidence that, on an occasion before the alleged offence, Mrs H called the accused and his wife over to her place for coffee and spoke to them about her former husband, M’s father. She said M was not happy with his father and did not want to see him again. No reason was given as to why M felt this way. In cross-examination the accused said that this occasion could have been 12 months before the alleged offence.
The accused’s wife referred to this occasion in her evidence. She said that she was told by Mrs H that M had come home distressed and he said he did not want to go back to his father’s house. She said Mrs H asked whether she should take out a restraining order against her former husband. No further reason was given for M being upset.
Mrs H denied that any such incident occurred. She said she got on well with her former husband who had flown back from the United States for this trial. She said her husband was looking after M while she was giving evidence. She said that at no time did she have any concern about something which her husband might have done to M. For his part, M denied that his father had treated him badly at any time. In particular, he denied a suggestion put to him in cross-examination that his father had sexually assaulted him.
The accused’s wife also said in evidence that she spoke to M about his father on the night of the alleged incident:
“He told me his dad was coming home the next day, and I said to him ‘That’s really good’. He said ‘No, it’s not. Mum will make me go live with him’, and I just said to him ‘Well, you need to actually discuss that with your mum. That’s got nothing to do with me’.”
M denied that this conversation took place.
It was argued that, on the evidence given by the accused and his wife, there might be some problem in the relationship between M and his father which could have relevance in some way to a motive which M might have in telling a false story about this incident.
Even if the evidence of the accused and his wife were to be accepted as a reasonable possibility, the existence of such a link is no more than speculation. In any event, I accept the denial of Mrs H that a conference along the lines suggested by the accused and his wife took place. Apart from my views on the respective credibility of the witnesses, it seems quite unlikely that Mrs H would ask for advice on a topic such as this and not give any indication as to the real nature of the problem.
There are two criticisms advanced by the defence in relation to M’s evidence which require comment. M and the accused’s son go to the same school. In cross-examination M denied that he said to the accused’s son when they were at school that his father was going to be “in big trouble”.
Mrs H said in evidence that, on one occasion after the alleged offence, M told her that the accused’s son and most of the pupils in their class were accusing M of lying about the incident and M responded by saying to the accused’s son that his father was in “big trouble”.
It is difficult to ascertain precisely what was said at the school because of the circumstances in which the comments were made and the fact that the evidence establishing it is hearsay. I have taken the evidence into account when assessing M’s credibility, but it is not of such weight as to affect my assessment of M as an honest and reliable witness in relation to the incident itself.
The second criticism of M’s evidence arises from the following circumstances. The accused said in evidence that in August 2001 he received a call from M asking him to come to his mother’s place urgently. The accused said that M told him that his mother was in the shower and she had been hurt. He said that when he arrived at Mrs H’s house he realised that the situation was not urgent.
Mrs H was cross-examined about this incident. She said that, on the occasion in question, she was trying to replace the shower screen in the bath and it fell on her so that she could not move. She said she was not hurt, but she screamed out to M to ring the accused and tell him to come quickly. M did so. She said she told M the number at the time.
It was put to M in cross-examination that this occurred in the 12 months before the alleged offence. He said he had no knowledge of it. It is difficult to impute any motive for deliberately misleading the court in relation to this incident which is far removed from the alleged offence. There is a clear possibility that the incident has passed out of M’s memory. In my view it does not affect his credibility in relation to the present matter.
I have considered all of Mr Cuthbertson’s submissions in relation to discrepancies in M’s evidence. They relate to matters such as what was said between M and his mother immediately after the incident, whether he was crying at this time, what happened when he got home and whether he went back to sleep after the incident. I will not list all the criticisms in these reasons but, in my view, none of the criticisms relied upon by the defence cast any doubt on the accuracy and truthfulness of M’s evidence.
I am not required by statute to remind myself of any danger inherent in convicting on the type of evidence given in this case. However, there are some aspects of the case which render it appropriate to remind myself of particular dangers in acting on the evidence. M is a young child and this is a case of word against word. The evidence concerning the issue of dreaming requires close analysis and the exercise of particular care in assessing the case.
Nevertheless, I accept M’s evidence as truthful and reliable. He gave his evidence in a straightforward manner. He impressed as an intelligent child who was conscious of the importance of telling the truth in an important matter. I find that he did not imagine that the events had occurred or that he dreamt of an incident of this nature and now finds it difficult to distinguish between the dream and reality.
His conduct and demeanour were entirely consistent with the occurrence of the incident. He showed immediate signs of distress as soon as he saw his mother and, when they were outside in the car, he made a complaint which was entirely consistent with the occurrence of the incident.
The accused denied the incident and said that he was asleep at all relevant times. I have taken his denial into account when assessing the evidence and I have given consideration to his evidence as a whole. However, it does not diminish the weight which I am prepared to give to M’s evidence.
I have no hesitation in rejecting the evidence of the accused’s wife that she was present in the lounge room at all relevant times up to the time when Mrs H returned to pick up her son. The demeanour of this witness was unimpressive and the unlikelihood of her version being true was readily apparent. She was due to get up at 5.30 on the following morning to go to work. She said she stayed up because Mrs H said she would be back at 10.30 pm. When Mrs H had not arrived by that time, she said she thought she would be there any minute and so she did not bother to go to bed. Instead she waited for a period of approximately one and a half hours. However, when she heard Mrs H drive up, she said she went to bed immediately because she did not feel like talking or having a cup of coffee. She said her husband was snoring when she heard Mrs H’s car, but she did not think of waking him to say that Mrs H was there to pick up M. She said she could not remember her husband coming to bed, although he said he went into the bedroom as soon as Mrs H left.
The inconsistencies in her version are readily apparent. I have reached the conclusion that she invented this version in order to provide a defence for her husband.
Although I reject her evidence, I do not think it appropriate to use it in any way against her husband. It is not as though there is evidence that the two of them concocted this version. On the accused’s version he did not know whether or not she was in the lounge room throughout the evening prior to the arrival of Mrs H.
I should also say that I accept Mrs H’s denial that she said she would be back at about 10.30 pm. She said her recollection was that she said she would return around 11.30 or 12.00 pm.
I have borne in mind the dangers inherent in acting on the evidence in this case, but after consideration of all the evidence I am satisfied beyond reasonable doubt that the accused licked M’s penis in the manner alleged. I also find proved that M was a child under the age of 12 years at the time of the incident.
I find the accused guilty of the offence with which he is charged.

[2002] SASC 290

30 August 2002