R v Mittiga (No 2)
[2010] SADC 68
•12 May 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MITTIGA (No 2)
Criminal Trial by Judge Alone
[2010] SADC 68
Reasons for the Verdicts of His Honour Judge Stretton
12 May 2010
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with unlawful sexual intercourse with a person under the age of 12 years, unlawful sexual intercourse with a person under the age of 17 years, indecent assault, aggravated indecent assault and gross indecency.
Trial by judge without jury.
Held: verdict of guilty.
Evidence Act 1929 (SA) s34CA, s34CB, s 34D, s34M, referred to.
Palmer v The Queen (1998) 193 CLR 1; Hoch v The Queen (1988) 165 CLR 292; R v Liddy (2002) 81 SASR 22; R v Wallace (2008) 100 SASR 119; R v Ellis [2010] SASC 118; R v Dennis [2010] SASC 69; Singleton v Police (2009) SASC 41, considered.
R v MITTIGA (No 2)
[2010] SADC 68Introduction
The accused Saverio Mittiga is charged with three counts of indecent assault, two counts of aggravated indecent assault, two counts of unlawful sexual intercourse, one with a person under 12 years old and one with a person under 17 years old, and one count of gross indecency. The accused elected to be tried by judge without a jury. He has pleaded not guilty.
Particulars of the offences alleged against him are as follows;
Count 1 Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).Saverio Mittiga on the 23rd day of May 2007 at Tyrie Avenue, Findon, indecently assaulted T, a person of the age of 16 years.
Count 2 Indecent Assault. (Ibid). Saverio Mittiga between the 23rd day of May 2007 and the 30th day of April 2008 at Crittenden Road, Findon, indecently assaulted T, a person of the age of 16 years.
Count 3 Indecent Assault. (Ibid). Saverio Mittiga between the 31st day of March 2008 and the 1st day of May 2008 at Crittenden Road, Findon, indecently assaulted T, a person of the age of 16 years.
Count 4 Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Saverio Mittiga on the 15th day of June 2008 at Findon, had vaginal sexual intercourse with S, a person of the age of 9 years.
Count 5 Unlawful Sexual Intercourse with a Person Under 17. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Saverio Mittiga on the 15th day of June 2008, at Findon, had vaginal sexual intercourse with L, a person of the age of 14 years.
Count 6 Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Saverio Mittiga between the 31st day of July and the 1st day of September 2009, at Grand Junction Road, Kilburn, indecently assaulted S, a person of the age of 10 years.
Count 7 Aggravated Indecent Assault (Ibid). Saverio Mittiga on the 19th day of September 2009, at Grand Junction Road, Kilburn, indecently assaulted S, a person of the age of 10 years.
Count 8 Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935). Saverio Mittiga on the 19th day of September 2009, at Grand Junction Road, Kilburn, committed an act of gross indecency in the presence of S, a person under the age of the 16 years.
Principles
The accused in this matter is presumed innocent of all charges, unless and until the prosecution has proved beyond reasonable doubt any charge. It must prove each and every element of any offence beyond reasonable doubt, and the accused carries no onus in any respect. Possibilities or probabilities of guilt are insufficient.
I observe that here are eight separate charges tried together. Each is however a separate offence and must be separately considered. No one charge can be proved beyond reasonable doubt unless, upon a separate consideration of that charge, each and every element of that charge is proved by admissible evidence relevant to that charge beyond reasonable doubt.
I adopt and will apply all the normal principles I would normally explain to a jury concerning the appropriate approach in assessing the witnesses who gave evidence, credibility, reliability and the drawing of inferences.
The accused in this matter exercised his right not to answer any questions when spoken to by the police. That was his right and I draw no adverse inference against him for exercising a right that is fully and legally open to him. The accused also elected to call no evidence in the trial, and again this is his right fully and legally open to him and I draw no adverse inference against him. It is always for the prosecution to prove its case beyond reasonable doubt, the accused bears no onus whatsoever and is fully entitled to take the course he took.
In all matters, in particular in this matter being a case involving allegations of inappropriate sexual conduct towards children, it is particularly important that a court bring an unprejudiced mind to the case and decide the case solely on the evidence given in the court room. Matters of sympathy, emotion, prejudice, or dislike must be dismissed and a completely dispassionate, impartial and objective review of the evidence must be undertaken. I take that approach.
In this matter, there is evidence that when the accused was confronted by the alleged victim’s mother, he hurried one of the alleged victims out of his car, did not reply to the allegations and departed quickly. The prosecution relies on this as some evidence of guilt. A court is able to draw an inference of guilt from such evidence, having regard to all the evidence in the case, only if it is satisfied that there is no explanation of the conduct other than a realisation or consciousness of guilt. In this matter, as I later discuss, it is possible that the accused’s alleged reaction to such confrontation may simply have been panic or fright for reasons other than consciousness of guilt, and accordingly I draw no adverse inference against him on that account.
When I refer to being ‘satisfied’ or that I ‘find’ or that I accept any evidence or any factual matter relating to the prosecution evidence or prosecution case, I at all times mean proven beyond reasonable doubt.
Elements of the offences
Unlawful sexual intercourse with a person under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
The elements of this offence are;
1. That the accused had sexual intercourse with the complainant. Sexual intercourse includes penetration of the vagina/labia majora/anus, by any part of the body of the accused and by any object. Any degree of penetration is sufficient, for any period of time. Consent is no defence. In this case it is alleged that, the accused had sexual intercourse with S by inserting his penis and his tongue into her vagina.
2. That the complainant was under the age of 12 at the time sexual intercourse occurred. In this case it is alleged that S was 9 years of age at the time when it is alleged that the accused had vaginal sexual intercourse with her.
Unlawful sexual intercourse with a person under 17. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
The elements of this offence are the same as unlawful sexual intercourse with a person under 12 years of age, except that it must be proven that the complainant was under the age of 17. In this case it is alleged that L was 14 years of age at the time when it is alleged that the accused had vaginal sexual intercourse with her.
Indecent assault (Section 56 of the Criminal Law Consolidation Act, 1934).
The elements of this offence are;
1. That the accused assaulted the complainant. Assault is an intentional and unlawful application of force or violence to another person. The application of force need not be great, indeed any touching or handling is enough. The application of force must be intentional, in that a purely unintended, or for example, accidental touching would be insufficient. The application of force must be unlawful in that it is without lawful justification or excuse. In this case it is alleged that the accused assaulted T on three occasions and S on two occasions, touching their breasts and bodies.
2. That the assault is accompanied by or occurs in circumstances of indecency. Indecency is determined by reference to what by any reasonable contemporary standards can only be described as indecent.
3. An indecent assault is aggravated if the indecent assault is of a person under the age of 14 (Section 56(2) of the Criminal Law Consolidation Act, 1935), although it is unnecessary for the prosecution to prove that the defendant knew of, or was reckless as to the aggravating factor. In this case it is alleged that S was 10 years of age when she was indecently assaulted by the accused.
Gross indecency (Section 58 of the Criminal Law Consolidation Act, 1935).
The elements of this offence are;
1. That the accused did the act alleged.
2. That the act was done with or in the presence of the complainant, in that it was directed towards or against the complainant. The complainant’s consent is irrelevant.
3. That the complainant must have been under the age of 16 years, although it is immaterial whether the accused was aware of that. In this case it is alleged that S was 10 years of age at the time of the act alleged.
4. That the act must have been indecent. Indecency means some form of sexual conduct or activity which ought to be regarded as indecent, having regard to the complainant’s age and the nature and circumstances of the conduct or activity, and to contemporary standards or morality and decency. In this case, the circumstances of indecency alleged are the accused discussing specific sexual activity between the accused and his former wife, with S, then a child of the age of 10. It is clear that words alone can constitute an act of gross indecency.[1]
[1] Singleton v Police (2009) SASC 41 at [39]-[46].
5. That the indecency, if it occurred, must be gross. In other words, it must be something more than minor or trivial indecency, such that it can be characterised as grossly indecent.
Overview of the prosecution case
The three complainants in this matter are referred to as T, L, and S. The birth certificate of each complainant was tendered and it was not in dispute that T was born on 23 May 1991, L on 22 June 1993, and S on 30 October 1998.
The first five offences are alleged to have occurred between 23 May 2007 and 15 June 2008. On 15 June 2008 the allegations came to light and the complainants’ mother called the police. The accused was arrested a few days later. The final three offences are variously alleged to have occurred between 31 July and 19 September 2009 whilst the accused was on bail for the first group of offences.
It is alleged that that three complainants were sisters, living with their parents and three younger brothers at Findon. The family were in poor and difficult circumstances. In 2007 the accused was an 81 year old man. It is alleged that L was walking past the accused’s house one day and offered to help the accused out, as her religion had taught her to offer to help old people. She offered to and did do some cleaning and shopping for him, and over time the other two complainants met the accused as well.
The family was struggling financially, the accused assisted them with money, driving them places and providing them meals. Over time it is alleged that the family became reliant on the accused. Regularly the children would go to his house for an evening meal, the accused collecting them and returning them. The accused became trusted by the complainant’s parents and accordingly the girls were left with him on regular occasions.
The prosecution case is that the accused took advantage of these circumstances to commit the alleged offences. Each of the complainants was called to give evidence on oath and two statements S made were also tendered pursuant to section 34CA of the Evidence Act.
When the police attended the accused’s house on June 15 2008 they took a number of photographs and seized a number of items. They seized the accused’s underwear, and it is alleged that DNA testing of the accused’s underwear established the presence of L’s DNA on the inside front of those underpants. This evidence is led in support of count 5 in the information of unlawful vaginal sexual intercourse with L. When the police spoke with the accused, he exercised his legal right not to answer any questions.
Overview of the defence case
The accused did not give a statement to police nor give evidence at trial. The accused through his counsel and by his plea maintained his innocence and subjected the evidence led by the prosecution to scrutiny. The defence put by his counsel was that the alleged events simply did not occur, that the complainants may have made them up to extract money either directly from the accused or by way of Criminal Injuries Compensation, and that they may have done this to ‘get out from under’ their difficult financial and family situation at home. In light of this, and inconsistencies in some of the evidence, the prosecution evidence should not be accepted as establishing the charges beyond reasonable doubt.
Evidence
T was called and gave evidence on oath. She gave evidence that she was the oldest child in the family, being 18 at the time of giving evidence in April 2010. At the time of giving evidence she confirmed her sister L was 16, S was 11 and her three brothers were 7, 5 and 2. She admitted that the family had been struggling financially, particularly once the youngest child was born. It was at that stage her mother had got sick and her father had to stop working to care for her mother. T gave evidence that her mother now suffered from a brain tumour and epilepsy, and that the family’s income was limited to family welfare payments of various types.
T recalled meeting the accused on 23 May 2007, that being her 16th birthday. Her sister L had suggested that they should stop at the accused’s house, which they did. At that time, T knew that L was helping the accused with duties around the accused’s house, as his wife had died.
T said that on that day L wanted to see if the accused needed anything from the shop. T gave evidence that when they got to the accused’s house, the accused asked T to have a look around the house and she agreed. She said that when she and the accused arrived at the third bedroom he grabbed her arm, pulled her onto his lap and lifted up her jumper, and started rubbing her stomach on her bare skin. She put her arm under her breast, so that he couldn’t bring his hand up any further. She said she pushed his hand down and said “No”, because she started feeling uncomfortable. She said the accused then took his hand from under her jumper and placed it onto her right breast, over the top of her jumper. She said his left hand was on her right breast. She said she pushed his hand away, so it would have been there “for maybe two seconds”. She said “No”, and got up to leave the room and she recalls the accused saying “Sorry”. She said she did not give him permission to touch her breast. She then told her sister that they had to go home to their mother, which they did. She said she was “crying, shaking and also partly angry”. She said L asked her what had happened and why she was crying and she told L that the accused had touched her. Those alleged events comprise count 1 in the information.
T said she next saw the accused a few days later at her grandmother’s, again in company with her sister L. The accused had brought L to her grandmother’s. When they arrived, the accused said he wanted to speak to T, and they went outside the house to talk. The accused then said he had come to give her $25 for her birthday. T said she didn’t want it and walked inside.
The next time T said she saw the accused was around August, at her parent’s house. She avoided him on that occasion.
She said she could recall another occasion when the accused touched her. When she was “still about 16, 17”. On that occasion the accused was taking L and T to their grandmother’s, so they went to the accused’s new house at Crittenden Road to get a lift. T gave evidence that she was in the lounge room, sitting on the lounge with the accused sitting in the middle of the lounge. T said she was sitting on the left hand side closest to the front door.
She gave evidence that the accused placed her leg over his leg. T said that the accused then started rubbing her left chest area, touching her breast. He also rubbed the upper part of her leg, on her thigh. She could not recall whether anything was said. She said she put her right hand over her chest, to protect her breast and she said he eventually got up and moved. She said the accused moved his hand away when L came back into the room. They then went to T and L’s grandmother’s house. Those alleged events comprise count 2 in the information.
T then gave evidence that there was an occasion in around April 2008, which was after the incident she had just described happened at Crittenden Road. On this occasion the accused took T, S and two of their younger brothers to Hungry Jack’s to purchase food. T said that the accused took them back to his house in order to eat the food they had purchased at Hungry Jack’s. Initially she said they went into the lounge room. Some time after that T went to the toilet. T said that she noticed that S had disappeared and the accused was also not in the room. She said she got a bit worried about that and took one of her brothers with her to look around the house and find where S was.
She said she found S walking out of a side room to the laundry at the back of the house. T said she noticed that S was pulling her skirt down. She noticed S was crying. The accused followed S out of the same room. T asked S what had happened. S said “Nothing”. She said they all went back into the lounge room.
T said that when she had gone to the toilet, she had come back out and the accused was in the kitchen by himself. That was after she had seen S pulling her skirt down. T gave evidence that the accused pushed T into the table, leant over her and started placing his hands down her pants. She said the accused was on top of her, facing her and she could also feel his penis through their clothes on her leg. She said she recalled him rubbing his penis on her leg through her clothes.
At that time she recalled the accused’s hands being placed on the table, but he then placed his hands down her pants, touching her skin. She said he got about half way down her pelvis when she placed her hand there and started pushing his hand back up. T said the accused was then trying to kiss her, but she was turning her head to the side. T said she felt confused and frightened and was too scared to say anything. She recalled that eventually he moved himself off her and then they went home. She said that she did not give the accused any permission to touch her like that. Those alleged events comprise count 3 in the information.
T then gave evidence about the events of Sunday 15 June 2008. T gave evidence that she was at her parents’ house at about 7.15pm. She said her parents were there together with two of her brothers. She said that the accused dropped L and her other brother at home. T said her brother came banging and screaming on the door, and yelling “Where’s mummy, where’s mummy, where’s mummy?” She said her brother then told her mother something. T said she saw her sister S was crying and saw her go into the bedroom. T then saw her parents, and walked into the bedroom to speak with S. She then said;[2]
[2] Transcript [61]-[62].
AS was on the bed crying and I asked her what happened and she asked me to get my mum. I went back in and I said ‘Mum, S wants to talk to you’. Me and mum both went back in the bedroom and she had told my mum that Sammy had stuck his penis in her vagina.
QWhat was she doing while she was telling you this.
AShe was crying.
QWas anything else said.
AJust before that mum had said to her - S said that he did and mum said ‘Did what?’ and that’s when she led into that he had put his penis in her vagina.
QWas anything else said after she described him putting his penis in her vagina.
ANo.
QWhat was the next thing you did.
AI didn’t really do anything, but the police were called and that’s when I had to give my statement.
QIs that when you told the police officer about what you say Sammy had done to you.
AYes.
QWas that on 15 June 2008 when you told the police about that.
AYes.
QWhere did you speak to the police officer.
AI had spoken to the police officer in the police car out the front of the house.
QWere any of your sisters present.
ANo.
T then went on to identify the accused’s house through some photographs and a map, and a street directory map was tendered by consent showing the relative locations of the accused’s house and the complainants’ house. (P5)
T’s evidence concerning her alleged observation in April 2008 of S coming out of a room pulling down her skirt and crying, and of the events of 15 June 2008, whereby S disclosed to T and their mother a complaint that the accused had vaginal intercourse with S, was evidence led in support of count 4 in the information. Count 4 in the information alleges the accused had unlawful sexual intercourse with S on 15 June 2008.
T’s evidence of the April 2008 events was led in support of S’s evidence that the accused had been having sex with S regularly prior to the offence occurring on 15 June 2008.
In relation to the alleged observations that T made of S in April 2008, and also the evidence of S herself as to sexual acts by the accused with her prior to 15 June 2008, such evidence relates to acts which are not subject of any charges. It was led because it is potentially helpful to the court in evaluating S’s evidence such that hearing the whole of such allegations may better enable the court to assess S’s evidence. The whole course of events is led to provide a context for the charged event and to allow a full and better evaluation of the interaction between S and the accused. I may only place reliance on the uncharged incidents if I am satisfied beyond reasonable doubt that they occurred. I am also aware that, depending on their nature, uncharged events may support the defence in showing inconsistency, unreliability, or inherent improbability in the evidence of S.
It would of course be wrong to reason that, due to uncharged incidents having occurred, or being alleged to have occurred, that the accused is the sort of person who would be likely to commit the offences with which he is charged. It would also be wrong to reason that due to uncharged incident having occurred, or being alleged to have occurred, the charged events have or did occur.
It would also be wrong to say that so long as somewhere along the line the accused had unlawful sexual intercourse with S, whether or not it’s in the circumstances alleged and particularised in the information, the accused could be convicted. It is only upon the charges themselves that a court may render a verdict. The uncharged acts, if I find them proven beyond reasonable doubt, may and will only be used in the limited way I have articulated.
T’s evidence of her own complaint and of S’s complaint on about 15 June 2008, is admissible to show how the allegation first came to light,[3] and can be evidence of the consistency of conduct of the alleged complainants[4] but is not admitted as evidence of the truth of what was alleged in the complaints. The Evidence Act (1929) also makes it clear that a court should be aware that there may be varied reasons why an alleged victim of a sexual offence has made a complaint of an offence at a particular time to a particular person.[5] I bear these principles concerning uncharged acts and complaints in mind at all times.
[3] Section 34M(4)(a)(i) Evidence Act 1929.
[4] Section 34M(4)(a)(ii) Evidence Act 1929.
[5] Section34M(4)(c) Evidence Act 1929.
T was cross-examined by defence counsel. Under cross-examination T admitted that at times her step father had been violent towards her and she had seen him yelling at her sisters. T said that at times she had left home to live with her grandmother and also on one occasion with a friend’s family. T also agreed that hygiene in the family home was poor and that not infrequently there wasn’t enough food in the house for the children to eat properly. She admitted that at some times it was not pleasant to be at home because of how her father was treating her.
She was questioned about the practice of going to the accused’s house and T said she only went there a couple of times. T said she wasn’t aware of her sisters going to the accused to eat because she didn’t really have communication with them at that particular time as she was with her friends or at her grandmother’s. T denied lying about the allegations to get money from the accused to help her get out from under the adverse family situation.
T was cross-examined about her sister L doing work for the accused and earning money for that. T recalled one situation when T needed money and L asked the accused for a loan on T’s behalf towards purchasing her Year 12 school jumper. T said she did borrow that money and then returned it. T said she returned the $20 she borrowed to the accused, via L, two or three weeks prior to 15 June 2008. Defence counsel cross-examined T about the events of 15 June 2008 and her knowledge of how often her sisters went to the accused’s house. Defence counsel put to T that she had spoken to the accused at his car window, and that the accused had indicated that he wouldn’t lend her any more money because she hadn’t repaid him for the school jumper. T agreed that she had said “I’ll fix you” to the accused but said that that related to the accused trying to touch her, rather than anything to do with money. T was cross-examined about the events comprising counts 1, 2, and 3 and gave answers relatively consistently.
Defence counsel put to T that in a statement she gave to the police on 15 June 2008 she did not tell police the detail of which hand touched which breast.[6] T denied that she had been more specific at trial because she was making anything up.[7] T said that she was prepared to go back to the accused’s house because her grandmother had told her that the accused was just an old man who was lonely after his wife died and maybe he was behaving a bit strangely.[8]
[6] The first occasion at the accused’s house, count 1, transcript page 115.
[7] Transcript [116].
[8] Transcript [117].
Defence counsel put to T that when she had given her June 2008 statement, and was referring to the events where the accused had put her leg over his leg, she had told the police “Sammy put his arm around my back, and put his leg up over my leg”. T said that it might have been this way. T reiterated that as she remembered it her leg was placed over his leg, and that either she was confused at the time, or she was worried at the time about what had happened to her sisters. T said that she said she was confused when she spoke to the police officer.[9]
[9] Transcript [121].
T was then cross-examined about the events following the trip to Hungry Jack’s in April 2008. T said that by that stage she didn’t trust the accused because of what he’d done. She said she went because her mum had made her go with her younger sister.[10] T denied that she was happy to go because nothing had in fact happened.[11] Defence counsel put to T her statement in June 2008, where she had discussed the order of events at the house and in particular at what stage they watched a programme called Gladiators on TV. T said that she did mention an inaccuracy in her statement about that to the police officer who read the statement through to her, but that the police officer had said that it could be fixed up when she talked to the lawyer. That police officer was Tania Milsom. T said that when she saw the statement she said to Tania that she wasn’t in the room when they were watching Gladitors at the end, that she had gone to the toilet. T said that the police officer said “We’ll leave this and you can discuss it when you go through with the lawyer”.[12]
[10] Transcript [122]-[123].
[11] Transcript [124].
[12] Transcript [127].
T was then cross-examined about the events whereby she alleged she was pushed up against the kitchen table. She explained that she still accepted a lift home from the accused as it was 7.30pm, getting dark and the walk home was about 45 minutes. T agreed she had said to police that the accused had “tried” to put his hand down her pants, and that she had been meaning to say that he tried and got only part way down. Defence counsel also highlighted that it wasn’t specifically mentioned in the statement that the accused had touched her skin.[13] T explained that she was upset and that she was simply answering the questions that she had been asked.[14] T said that she hadn’t told the police officer about feeling the accused’s penis touching her leg, as she hadn’t been asked a question about it.
[13] Transcript [132]-[234].
[14] Transcript [134].
T was also cross-examined about her evidence of S’s complaint. She agreed that when her mother had first asked S about it, S initially denied it. Defence counsel cross-examined T about visiting the doctor and the history L gave to the doctor. T recalled that her mother explained to the doctor that in her religion she taught her children to look after older people. It was put that the doctor had recorded that T had said the accused “Flashed his willy at us” at Hungry Jack’s. T said she recounted this to the doctor as something that her little brother had said to S[15]. T said that she had told her mother “(The oldest son) said that Sammy had flashed his willy at us”.
[15] Transcript [138]-[139].
L was then called to give evidence. L confirmed her birth date of 22 June 1993. L gave evidence that she met the accused as she used to go past his house to go to the shops and the bus stop. She said she spoke to him and that she “sort of” made friends with him. From that point on L used to clean for him and do the shopping for him. Initially the accused’s wife was alive but she died shortly afterwards. L gave evidence that she would go to the accused’s house maybe once, twice or a little more per week, and she got paid for the cleaning and the shopping. She said she would get $20 or $30.[16]
[16] Transcript [144].
L said she talked to the accused in Italian and in English because the accused was Italian and she knew some Italian from when she went to High School. L gave evidence that shortly after the accused’s wife died he moved house and the new house was closer to where L lived. L said that she used to go to Hungry Jack’s with the accused for tea and would sometimes see him at school. L said that the accused would come and watch her play soccer and would give her money.[17]
[17] Transcript [145].
L accurately described the bedroom apparent from the photographs. L said that the accused would give her presents such as a mobile phone. L gave evidence that she, her sisters, her brother and her mother would eat at the accused’s house maybe three times a week. L said that the accused would drive them around, for example to Hungry Jack’s, Charlie’s and their grandmother’s. L said that in about mid 2008, it got a bit rough with the accused and he spoke to her meanly. L said that something happened. L said that the accused was giving her a lift to her grandmother’s to pick up one of her two brothers, when he asked L to change a light globe at his house. She said the accused then drove to his house and she got up and changed the light bulb in the accused’s bedroom. She said the accused then pushed her onto the bed, held her arms and said “Things are gonna happen now”. L said that she replied “No, nothing should happen”. L then gave evidence that the accused pulled his pants down, pulled L’s pants down and then “He stuck his dick inside me and went in and out”.[18]
[18] Transcript [148].
L said she had clear memory of the accused’s penis being inside her and moving in and out. L was asked how long that went on for and she said “About 20 minutes”. She then said she didn’t think he had an erection, his penis felt floppy and it felt awkward. L said she felt very sore and in pain and that her head was going too fast. Then she said there was a knock on the door and the accused said to a lady at the door that he was coming, he got up, pulled his pants up and went out. L said that she then pulled her pants up and stayed in the room. L gave evidence that the lady came in and then afterwards L said to the accused “We have to go. We should go.” L said that none of her brothers or sisters were at the accused’s house at that time. L said that the accused then took her to her brother at her grandmother’s, as originally planned. L said that as they drove she told the accused not to do it again, and the accused said to her not to tell anyone. L said she was feeling funny, weird and scared.[19] Those alleged events comprise count 4 in the information.
[19] Transcript [150].
L said she didn’t mention anything to her parents when she got home because she felt scared. L gave evidence that her mother said that they didn’t have enough food or money and so for the children to go to the accused’s house for dinner that night. L said that she went back there with her sister S and two of her brothers, and she went in the accused’s vehicle. L was then asked whether anything strange happened while they were there that second time. L said that she went to the toilet and when she came back she asked her brother where S was, and her brother told her “in the bedroom”. L said she knocked and tried to open the bedroom door but could not open it, and then the accused said he was coming, and so L sat back down and waited.[20]
[20] Transcript [151].
L gave evidence that the next thing that happened was that S and the accused came out of the bedroom and S had a “weird look on her face”. L asked if anything had happened and S said “No”. L said that as soon as they got home her brother went inside and told her mother what had happened. At that, L’s mother started yelling at the accused and said “What did you do to my daughter?” at which the accused said nothing and drove off. L’s mother then rang the police. L then said that the police attended. L said that she told the police about the incident that happened to her, but she couldn’t remember whether she did so on that night or on a night after that.[21]
[21] Transcript [152].
L identified matters depicted in the tendered photos and various items in the accused’s house. She identified a jar of lollies in photo 7 of P4 that she said the accused used to give to her and her brothers. L recognised a hand drawn birthday card, addressed to L for her 15th birthday that she had written. L said that the accused was present when she wrote it, and she wrote it because he the accused could not write. She said this was shortly before her 15th birthday. That card was tendered as P15. L also identified a list of things that she had written down from a Tandy catalogue that she might want, that she may have written in the accused’s house. That document was tendered as P13. L gave evidence of her telephone number upon which she said the accused had contacted her.[22]
[22] Transcript [157].
L gave evidence that since June 2008 her health had deteriorated and that she had some memory loss, she was scared going out in public and going by transport. She said that she had anxiety, panic attacks and post traumatic stress disorder. L gave evidence that she had had a physical injury to her head at some time that had affected her memory. L identified a plan that she had drawn of the accused’s house and she identified the second bedroom as the place where the sexual incident with her had occurred. That was tendered as P14.[23]
[23] Transcript [158].
L was cross-examined by defence counsel. L described the events again whereby she met the accused and said that as far as she could remember she was 14 when she first met him. She agreed that her mother also did some house cleaning for the accused to raise money. Her father also did some work around the accused’s house. She agreed remembering that the accused’s wife died at a certain stage and the accused being stressed. L also agreed with the same propositions that had been put to T by defence counsel, that the family had money problems and as a result of that L, S and one brother ate at the accused’s house three or four times a week. What would usually happen is that either the accused would contact her mother or her mother would contact the accused to see if it was okay, and then they would be picked up by the accused and dropped back by the accused.[24]
[24] Transcript [162].
Defence counsel raised with L an incident where her father organized a trailer for the accused to buy, and then there was an issue over the ownership of that trailer. To resolve that incident, amongst other things the accused was given a puppy. L agreed with that. L agreed that their house was not very clean and hygiene was an issue in the house. L agreed that there had been violence by her father towards her mother. She also recalled physical violence to T, and physical aggression to L and S. L agreed that it wasn’t the happiest of households. L denied that she had made up any allegations against the accused, and denied that any of the things that had been put to her had been a basis for that.[25]
[25] Transcript [166].
L said that she did not know whether the accused had ejaculated when he had sex with her.[26] She went on to say that she had an impression that he had ejaculated. Defence counsel put to L that when she was taken to see a doctor on 15 June 2008, she had described the sexual intercourse as lasting about five minutes and that the accused had said that he couldn’t come. L was asked why she had told the court in evidence in chief that it had been about 20 minutes. L replied that she got confused. L went on to say that she couldn’t remember what she told the doctor about the period of time the intercourse occurred.[27] L continued to be pressed about the timing, and said that she didn’t tell the doctor that the accused had his penis in her vagina for five minutes but that she could not remember what she told him.[28]
[26] Transcript [167].
[27] Transcript [170].
[28] Transcript [169]-[171].
L said she couldn’t remember whether she told the doctor anything about whether he ejaculated. L said she said she disagreed that she had voluntarily gone into his bedroom, but she did say that she went in there by herself. L said she got up to change the light and that was it, he had then grabbed her. Defence counsel then put to her that she had told the police that the accused had grabbed her and taken her to his bedroom. L disagreed with that. L said it hadn’t crossed her mind to complain to the woman who came to the house. She said she didn’t because she felt scared. L denied that she made any of the allegations up.[29]
[29] Transcript [178].
L agreed that the accused would give her money at times, and that he would also lend her money. L said she saw her sisters get money from the accused as well. L said they were usually small amounts of money between $20 and $80. L agreed that the accused would help the family out by buying nappies, baby formula, and other stuff like that for her mother. L agreed that the accused would hug her and kiss her on the forehead and cheek. L agreed that she and T had had to do a lot of work in looking after the younger children of their family.[30]
[30] Transcript [180].
The prosecution called Senior Constable Woods, a police officer stationed at the Family Investigation Branch. Senior Constable Woods gave evidence that she attended S’s home on 17 June 2008 and interviewed S on video. Through Senior Constable Woods, the statement of S was led pursuant to Section 34CA of the Evidence Act[31]. With the consent of both counsel, the video tape of that interview was tendered as P7.[32]
[31] R v Mittiga (No 1) [2010] SADC 65.
[32] Transcript [78].
With the consent of both counsel, I was provided with transcript of that video by way of aide memoire. Both counsel agreed I should have reference to that aide memoire for convenience.
I am mindful however that it is the content of what S said that is the evidence, and that I should not give undue weight to the evidence by virtue of either the video having been tendered as an exhibit, or by way of having been provided with an aide memoire for convenience. The aide memoire transcript of S’s statement dated 17 June 2008, was marked MFI P6.
In the course of her 17 June 2008 statement, S drew a picture of “Sammy’s bedroom”, which was tendered by consent as P8. During the course of that same statement S drew a picture entitled “Sammy’s dick”, also tendered by consent, as P9.
The prosecution called Senior Constable Barlow from Holden Hill Police Station, the investigating officer. Senior Constable Barlow oversaw and was present during a second interview and statement of S, given on 21 September 2009. I raised with counsel that Section 34CA required that the evidence be given from “the person to whom the statement was made”, as whilst Constable Barlow was overseeing and present, she did not ask the questions herself. Defence counsel agreed that the other officer need not attend and requested the court proceed to call the evidence through Senior Constable Barlow.
With the consent of both counsel the video of that interview was tendered as P11. With the consent of both counsel I was provided with a transcript of that interview by way of aide memoire. The aide memoire transcript of the 21 September 2009 statement was marked MFI P10. I make the same observations concerning the importance of not giving any undue weight to the statement of S dated 21 September 2009, by virtue of either the video having been tendered as an exhibit, nor by way of having been provided with an aide memoire transcript for convenience.
S commenced her 17 June 2008 statement by confirming her birth date of 30 October 1999. S said that she had spelling and speech problems. S was asked to talk about what happened to her, and she said it was about Sammy who was a friend of her sisters, who raped her. S said she had known the accused for three years. The police officer then asked what happened;
QYeah, yep. Now what I was going to ask you. So what, what happened the other day, when.
AHe dragged in the bedroom.
QMm.
AAnd he started having sex with me.
QMm when was that, do you know what date that was.
ANo.
QNo was it the same the same day the police came and spoke with you.
AYeah.
The police officer then asked some questions about events leading up to the allegation;
QHe lives around the corner, mm ok, so you went there for a bit of a play.
AYep.
QAnd then you came back here after.
AMm.
QAnd did you say you had a bit of tea here.
AYeah a little bit and then mum send us over there.
QYep so who did she send over there.
AMe, (the eldest brother), (the next eldest boy), and L
QMm so it was just you.
AYep.
Q(Two boys names mentioned), so T didn’t go.
ANo.
Q(Another brother) didn’t go.
ANo.
QOk.
AThey, T’s she, she didn’t want to go, cause she, she doesn’t like him.
S went on to say the accused came around and picked them up and took them back to his house. She said that the accused lived alone because his wife had died. She said she thought the accused was in his 80’s. S said she saw him a number of times a week, depending. S said she saw him at least every week, sometimes more than once a week. S said that the accused used to ask her mum and dad for her to go around there, and her mum and dad would say yes.
S said she remembered T going around there, once to a particular restaurant and another time with L and T. S went on to say;
QAnd, and what’s he like, what’s Sammy like.
AUm when I first met him he was kind of nice, then when he took me into the bedroom he mm.
QOkay.
A
QSo when’s the first time that something happened with Sammy with you.
AUm first time when I first went there.
QThe first time you went there, what happened on the first time you went there.
AI do not remember.
QYou don’t remember.
ANo.
QOk, do you think something happened though. What makes you think that.
ABecause I remember just him taking me into the bedroom, I can’t remember anything else.
And then a little later;
QOkay, okay so when was the first time you actually remember something happ, happening.
AIs the, the day that mum rang the cops.
QOkay so.
AI think that day I remember.
QDo you remember any other occasions before that, any other times that things happened with him with you before that day that mum rang the cops.
AUm mm.
QYou do.
AYes.
QYep can you tell me about those.
AUm he’s stuck his dick in my enny.
QMm.
AAnd he stuck his private part in my bum.
QMm.
AAnd he gave me money for it, but when I got my coat out of the bedroom I put it on the floor the zips were open and (the money was gone).
S went on to say that she also remembered what happened once before when the accused was doing the same thing to her, although he gave her lollies then. S went on to be asked about the occasion when her mother called the police, which would be two days prior to the statement, on 15 June 2008. She told the Senior Constable that she had braised steak and onions for tea, had drinks and then the accused took her into the bedroom and had sex with her. She said that while he was having sex with her, she told him to stop and he wouldn’t, but that L said something and the accused got off her because L said it was time to go. She reiterated that the accused then gave her money for it.
S was then asked to go over the events again, and went through them in a little more detail. She explained how she was in the kitchen eating her ice cream, then when she finished the accused grabbed her by the hand and pulled her into the bedroom. When in the bedroom, S said the accused locked the door and turned on the lights. S described the bedroom in some detail and drew the picture that had been tendered. S then recounted how the accused pulled her pants off and pushed her down on the bed. S then pointed to a bruise on her leg and indicated that’s how she got that bruise. She said the accused kissed her on the face. S said that when he initially pulled her into the bedroom, he didn’t say anything but that he took off her pants and pushed her on the bed. S then said the accused took his pants off and started having sex with her. S said that the accused was wearing grey jeans, a t-shirt with squares on it, and white jocks. She also said that he had a blue and white singlet underneath.
S said that when she had been pushed onto the bed, the accused held her by one hand, pulled off his pants, then jumped on top of her and started having sex with her. S said she banged her head on the rails at the edge of the bed. S said she knew what her vagina was, “It’s the part you wee from” but that she would call it an ‘enny’. S said that the boys’ private part was a dick. S said that he jumped on the bed, hopped on her, grabbed his dick and put it in her ‘enny’. S said that when he finished she went to get up but he “kissed her there, and started licking it”. She said she could feel the accused’s dick in her. S said that when he was having sex with her, he was holding her down and moving his dick in and out of her backwards and forwards. S said she didn’t know how long that took, “It seemed like a little bit of time, rather than a long time”.
S said that while he was doing that, he lifted up her top, she went to pull her top back down, but he grabbed her boobs. S said that when he started squeezing her boobs she said to the accused not to do it because that hurt. She said she was telling him to stop but he wouldn’t. S said she told him to stop because she didn’t want him to have sex with her, because she knows that it’s wrong. S reiterated that while the accused was having sex with her, L was outside the door and called out that it was time to go, and that’s when the accused got off her and kissed her “down there and licked” her “vagina or enny”. She said he licked her down there on the inside. She said that she didn’t like that either and told him to stop. But she said the accused wouldn’t listen to her. S said that it was only L calling out that it was time to go that made him stop.
S said that she thought that the accused had sex with her for only a “little bit of time”. She said she told the accused “don’t do that again” and that she’d be telling. S said that the accused said “don’t tell, don’t tell” and that the reason he did it was because of his wife dying. S said that she said to him “Like there’s no reason to rape me and he’s like, I didn’t rape you”. S then said the accused gave her $5 and told her not to tell anyone. S said the accused told her to spend the money for school.
S then said after she and the accused left the bedroom, the accused took L into the bedroom but she didn’t know what they were doing. She said she could hear them talking. The door was shut. S said she didn’t know how long the accused and L were in the bedroom, but it was “little bit of time”. S then said that the accused gave them “heaps of lollies”. S said that she told her little brother what happened, when she got out of the bedroom and while L was in the bedroom with the accused. S said she told her brother that the accused had sex with her and put his dick in her enny and that he should go and should tell mum.
S said that in the car the accused gave L $10 in change. They arrived at her parent’s house and her mother called out “Get here now”. S remembers her mother calling out to L to get there now and to speak to her. S then recounted her memory of events upon arrival at her house, and said that that was when her mum came into the bedroom she told her mum what had happened. Then her mother called the police.
Senior Constable Woods then asked S whether other things had happened before. S said yes, he had done it before. S said “Just the same thing, what he done on the day that mum called the cops”. S didn’t remember whether that was a couple of days a week or some period beforehand. On further questioning, S said that it had happened all the other times she had been there, that the accused sometimes gave her money but sometimes didn’t. S said that she usually gave the money to her mother, because her mother needed it. S said that she meant that he had put his dick in her ‘enny’ more than 10 times before. She couldn’t remember how many times. S said that it had been going on since she had met the accused. S was asked whether she could describe other occasions in detail and she said she couldn’t because she “couldn’t remember a lot of stuff”.
The police officer asked S whether he’d done anything other than being on top of her and putting his dick in her ‘enny’, and S said “He, he has pulled me around the back so he’s put his dick in my bum”. S said he had done that the same number of times. She couldn’t remember the first time it had happened, apart from it being the first time she met him. S was then asked why she thought she had difficulties with her memory and she answered because of her ear, and when she banged her head and because of the Panadol she took. S said she always banged her head and she couldn’t remember things. She also said she could forget about things but she didn’t want him in her life, she wanted him out of her life because of what he’d done to her and to her family.
S went on to say that she had seen L being taken into the bedroom by the accused as much as she had been taken in there. S also said that her mother has a brain tumour but she did tell her mother once what had happened. She said she did that when she was eight years old, the previous year, she said her mother had forgotten. She said her mother was ill with a brain tumour. S was asked to draw the accused’s penis.
S also said that the accused would lubricate his “dick” via his fingers from his mouth and by using baby oil which he would put “over his dick”. S said that the accused did that before he had sex with her.
The video also contained some discussion with S’s mother on an unrelated topic, which with the consent of all I ignore. Further, the statement contains reference to S saying that the accused had also raped her mother, which with the consent of both parties I also ignore. Both categories of material are irrelevant and inadmissible, I regard them as such and I ignore them.
A further statement by S dated 21 September 2009 was tendered and admitted per section 34CA of the Evidence Act.[33]
[33] R v Mittiga (No 1) [2010] SADC 65.
In that statement S described that the accused had recently come to the markets where she worked, although she knew the accused wasn’t supposed to come near any of them. S said that she saw the accused and the accused told her to come over, so she went and jumped in the car with him. S said that she said to him “Stay away, I don’t want you near me and I don’t want you near me or the s, or where I work, just stay away for, all, and to, like the court case is finished”. She said that after that he gave her a drink and he tried to give her a biscuit. She said then he gave her money. She said he then tried to touch her, but she stopped him, got out of the car and walked off.
The police officer then asked questions in more detail and she expanded on what she initially had said. S said that the accused had been coming to the markets to see her from the start of 2009, up until the Saturday before 21 September 2009. S said that he initially came on Sundays but then he started coming on Saturdays. She said that change happened in about August. S said that the accused always came between two and three o’clock but then he told S that he would come about 1 o’clock.
The police officer then asked about the most recent occasion, the previous Saturday. S said that she saw the accused in front of the eating area, where he just beckoned her over with his hand, for her to come with him. S then went and told the man she worked for that she was going to see a friend. S said that the accused was driving a maroon car which was parked at the side of the building. She said she walked over to the car to see him and to tell him not to come. She said she jumped into the car and started telling him not to come. She said she told him “Don’t come anymore because it’s just going to get worse” for him. S said that the accused said to her “I know it won’t get any worser for me because I’ll just keep on saying I didn’t do it”.
S said that the accused then asked S how she was going, and she said “pretty good”. S said that the accused unbuckled his seatbelt and then reached over with his hand placing it on her leg and started moving his hand towards her private part, her vagina. S said she then decided to say “How is you going”, so that he would stop. S then said she took his hand away and said “Oh pretty good” and then he pulled out his wallet to give her some money. S described the money in the wallet, and that the accused gave her a $20 and a $10 note and told her not to tell anyone. S said she didn’t know why he gave her the money. S said he opened up the part of the car between the seats and pulled out a drink and some biscuits. She said the biscuits were Tim-Tams rolled up in alfoil, but that she said she didn’t want one because she thought he might have done something to the biscuits. S said the accused then put the can of drink on her lap, it was an energy drink called “Naughty Girl”. S then said she had to go before her employer would yell at her. S said that the accused then locked the car doors and drove around to the back of the car park.
The police officer then asked S to go over in more detail the part where the accused tried to touch her. S described how he had his hand on the inside of her thigh and it went towards her vagina but it didn’t touch her vagina. S told the police officer how she had used the money the accused gave her to buy a recharge on her phone, but she got the wrong recharge. Those alleged events comprise count 7 in the information.
The police officer then asked S about previous occasions when the accused had come to the market to visit her in 2009. The police officer asked S to say if there was any other time when he had touched her inappropriately;
QProperly right, no? You’ve told me about one time where he’s touched you on the leg when he’s come to visit you at the markets, I want you to think really, really hard for me cause this is really important, has there been another time when he’s touched you.
AUm I can’t remember.
QHave a think coz this is really important.
AThere’s, I think there’s one other time
QYeah one other time he has touched you.
A
QWhat, what did he do that time.
AUm he tried, he um touched me like there.
QOh there, and what, what are you pointing to.
AMy boob
QTo your boob.
A
QAlright well when did that time happen, and as I said if I look you don’t know the answer just tell me, that’s okay to say you don’t know but,
AUm
QWhen did that time happened when he touched your boob.
AAbout term, no term one.
QTerm one. I’m not very good with terms. Well I, I sort of I think well term one, well what months are we looking at then.
AUm still, still in um au, it was in August.
QIn August, yeah.
ALike the first term of school.
QStill in the first term of school, alright. And it, and you think it was August.
A
QYeah, and what was this on a Saturday or Sunday.
ASaturday.
QThis was a Saturday that he’s come to see,
A
QThink about that day for me if you can and tell me as much as you can remember about that time when he’d come to visit you and he touched your boob.
AHe, he gave me money.
QMoney. Yep.
AGave me drink, Tim-Tam’s, lollies and he tried to touch me on the boob.
QTouch you on the boob, now ok, just, you know I’m going to do that thing again when I shut my eyes and I try and picture it. So whereabouts’ are you talking with him when he’s tried to touch you on the boob.
AUm the same place.
QWhat’s.
AAt, at the back.
QBack, and whereabouts, and what are you sitting in or.
AThe car.
QYou’re sitting in the car and this is the maron car is it.
AYep.
S went on to say that she was sitting in the passenger seat and the accused in the driver’s seat. She said she had “gotten in to tell him to keep away”, she said that was an occasion when she was walking to the markets but it was very late and he just drove in. She said that the accused had come near the market stall and she said to her employer that she was just going to see where her friend was. S said he was sitting at the back in his car where he usually was and she went and knocked on the window. S said that the accused opened the car door, she jumped in and said to the accused “Go away”. S said that the accused reached over and touched her boob and squeezed it once really hard. S said it was on top of her clothes. Those alleged events comprise count 6 in the information.
S said those were the only times that he had touched her at the markets. She said that the accused gives her money all the time, usually $20, $30 or $40 and also $50. S said that she doesn’t have to do anything for the money, just sit there and talk to him. S said she felt really scared and annoyed about Sammy and didn’t like seeing him.
The police officer then asked S to think back to the time two days prior to the interview when the accused had talked to her, and asked S to recount what she talked with the accused about. She said the accused asked her “Oh what’s going on with the, all the court things and all that” and S said that she didn’t know. She said that she didn’t want to tell him that he might be going to jail, because he “might not rock up to the court”. S said that the accused asked her whether she was going to court. S said that when the accused had given her the money, he had said for her not to tell or he would get in big trouble.
S then was asked whether the accused had talked about anyone else when he was in the car with her on the Saturday.
AUm about his wife.
QAlright well what did he talk to you about his wife.
AWhat him and his wife done like.
QWell what, what did they do.
AHow’d he have sex and,
QOh I need to know about that, tell me what, what he exactly said
AHe asked me how, if I knew, “how to have sex”.
QYeah.
AAnd I said “yeah I already know”.
QUhm
AAnd he’s like “oh I tell you about what my mo, wife, me and my wife done”.
QYeah
AAnd then he said, started telling that he “put his dick in his wife” and all that, that.
QOh okay and what else “yeah and all that” tell me “he put his dick in his wife” and,
AAnd then he started moving up and down.
QYeah. What was he doing when he was telling you that.
AUm he just sat staring at me.
QYeah was he do, what was he doing with his hands while he’s talking with you about.
AHolding it on his um legs.
QHe had his hands on his legs.
AHe had one hand on his leg and he had one hand on the um wheel.
QOh so one hand’s on the steering wheel.
ALike on the wheel.
QOh on the wheel and the other is on his leg when he’s talking about his wife.
AMm.
QOkay so he, what else did he say about his wife, tell me everything.
AUm that they were moving up and down and um about his wife sucking his dick and all that.
QHis wife sucking his dick
A
QOkay well what did he say about that.
AAnd then um he stopped coz there was other people coming and the window was down.
The police officer then asked some more questions about the detail of the alleged conversation;
QAlright, so you were sitting in the car and he’s talking about having sex with his, with his wife.
A
QYeah and how he puts his dick, did he say where he puts his dick in his wife.
AYes he.
QWhat did he say, what
AHe said “He put his dick in he, in her vagina”
QOh ok. And what does he do with his dick when it’s in her vagina.
AUm he was moving up and down.
QYeah and he did say anything more about that.
AUm then he said that um that “his wife got off”.
QYeah.
AThat he got off his wife and that his wife got off the bed and that he laid down and she got on top of him.
QYeah.
AThen she was sucking his dick and.
QYeah and what else.
AUm that um “he was standing up and he was putting his dick in his, in her mouth” and
QYeah yep and anything else.
AThen um that “he had sex in his car”.
QYeah.
AAnd that’s all.
QDid he tell you about how he had sex in the car.
AUm the same thing
QDo can you tell me coz that’s really important what he said to you.
AUm that they were at the back in the back seat.
QYeah.
AAnd um “took all their clothes off”.
QYeah.
AThat, coz they were sleeping in their, in their car.
QThey were sleeping in the car.
AAt them, like at the back of his house.
QYeah.
AAnd they were having sex.
QOh did he say anything else to you.
ANothing else.
QWhy was he telling you about sex with his wife.
AI don’t know.
QOkay well how did that conversation get started.
AUm it made me feel how did it started I don’t know.
QYeah how did it finish.
AUm coz I told him I was gonna “I’ll have to go
QYeah
Anow”.
QYeah. You said that the people came over to the car and he stopped talking about it.
AThen when they, they got in the car and they go drove off and he started saying again.
S went on to say that the first sex described was at home in his bedroom, and the second time was at the back of the car and that the accused was calling it beautiful but it made her feel really yucky and like she was going to “Spew”. Those alleged events comprise count 8 in the information.
S went on to say that she thought L had given the accused her phone number because he kept ringing her and did so that very Saturday. S went on to say that she told the person she worked for at the markets about Sammy, but that she hadn’t told anyone else because she didn’t want them to worry. At the end of the questioning the police asked about whether there were any other occasions the accused talked about having sex with his wife. S said only when he first raped her.
The prosecution also elected to call S to give evidence-in-chief on oath. I initially asked S some questions and I was satisfied per Section 9 of the Evidence Act that she clearly understood the obligation to be truthful entailed in giving sworn evidence. Accordingly S gave evidence on oath.[34]
[34] Transcript [234]-[235].
S gave evidence in chief on oath that her statements to police officers given on 15 June 2008 and 21 September 2009 were truthful. Counsel for the prosecution asked S why, when she was first dropped home on 15 June 2008 that she had said that nothing happened, and she answered that she said it because she was scared that her mother was going to yell at her. She said she later told her mother, and T and the police what happened and that was the truth.[35]
[35] Transcript [237].
The counsel for the prosecution then asked S to describe the interior of the accused’s car as she saw it when she got into it in September 2009, and she provided a description of it. S also said that she had showed the police officers her mobile phone that indicated a blocked number call on 19 September and told the police “That was when Sammy rang me”.[36]
[36] Transcript [238].
Application was made to cross-examine S and I granted permission to cross-examine pursuant to Section 34CA(2) in relation to three subject areas.[37]
[37] R v Mittiga (No 1) [2010] SADC 65.
S was cross-examined pursuant to this permission. S said that her household was both happy and an unhappy one. S said that her father didn’t hit or push her mother, herself, T or L, but that he did shout at them and sometimes gave them a little hit across the head. S agreed that she did sometimes have arguments with her mother, and that her mother could have a short temper (“Yeah, and no”). S admitted that there were times when there wasn’t enough food in the house and they would go around the accused’s house to eat. S agreed that in terms of cleanliness around the house and those sorts of things, things were sometimes pretty bad. S denied that she made her allegations about the accused up, and denied that anything was made up to get money for herself, her sisters or to help with money problems at the house.[38]
[38] Transcript [239].
S was cross-examined about the events of 19 September 2009 at the markets. S agreed that she knew that the accused had been charged with what he had done to her and her sisters T and L. S agreed that she knew the accused was on bail and not supposed to bother her and the members of her family. S agreed that she was aware that the accused was regularly at the markets. S was asked why in those circumstances she had gotten into the car with him. S replied that she wanted the accused to stay away, she didn’t want him to come to the markets anymore. S was asked by defence counsel why she didn’t just tell the police or her parents and get them to do something about it, and she replied she did tell the police that night, but at the markets she didn’t have any money on her phone.[39]
[39] Transcript [241].
S was asked why, when she’d seen the accused at the markets on previous occasions she hadn’t told the police or her parents, and she answered that she didn’t really know. It was put to her why did she get into his car, given what she said what the accused had done to her in the past. S replied that she wanted to tell him to go away and never to come near her family or the markets, as he wasn’t supposed to be there or near their house. S said she got in the car because she wanted to speak to him straight about that.[40]
[40] Transcript [242].
Police and other evidence
The remainder of the evidence in this matter was for the most part relatively uncontroversial.
Counsel for the prosecution called Judith Morris, who was working at the market on 19th September 2009. She had noticed S disappearing at times so this day she followed S and saw S in the accused’s car and noted down the accused’s registration number. When S returned 45 minutes later S had $30.
Counsel for the prosecution called the mother of the three complainants (“the complainants’ mother”). She gave evidence she knew the accused as “Sammy”. She gave evidence about the events of 15 June 2008. She said that L, S and one of her sons were over at the accused’s house. She had arranged that the accused would drop them back home. She said she was in bed when she heard the car pull up. She said her son said something to her which gave her concerns about S. At that she ran to the front door and saw L still in the accused’s car whereupon she said “What did you do to my kid you bastard?” to which there was no reply, so she said “What did you fucking do with my kid?” There was no response except that the accused hurried S and L out of the car, slammed the door and drove off quickly.
The complainants’ mother then went to speak to S who she said was in the bedroom “all teary and crying”. She said she asked S what happened and S told her that Sammy had pulled down his pants and showed her his dick and then he put his dick inside her flaps. She rang the police immediately.
Under cross-examination the complainants’ mother agreed that L had said she hadn’t seen the accused do anything to S, and that she, the complainants’ mother was not sure T was there. She said she had epileptic fits which affected her brain. She agreed she had told police that T had been at the house. She agreed that S had initially denied that anything had happened with the accused. She agreed that she had not said in her 2008 statement that S had told her that the accused had “showed his dick”.
Counsel for the prosecution called Sergeant Rodda. Sergeant Rodda attended the complainants’ premises on 15 June 2008 at about 8pm. At that time he spoke to T while seated in a police vehicle. To that point T had not made any disclosure about sexual offending, to his knowledge. T gave a statement he later converted into a declaration. He gave evidence that T had told him about an incident when she first met the accused on 23 May 2007. T had told him that in the bedroom at the accused’s house T had been told to sit on the bed, the accused rubbed his hand on her belly, which she pushed away, and he placed his hand on her breast on the top of her jumper. T mentioned to him that she told her sister L that she had been touched by the accused.
He gave evidence that T also described an incident in February 2008 when the accused had put his arm around her back and put his leg over her leg. T told him that the accused had his left arm around her back and his left hand over her left breast. Sergeant Rodda recounted T describing an incident occurring after the trip to Hungry Jack’s. T told him about an incident in the kitchen when the accused had pushed her against the table, held her there and tried to kiss her. He had also tried to put his hand down the inside of her pants. Sergeant Rodda recalled T appearing shaken and upset about these recollections.
In cross-examination in relation to the first incident of May 2007, Sergeant Rodda agreed that he had no note of T describing whether it was the left or the right hand on her breast. Defence counsel also raised the other matters arising from the statements, which he had put to T in her cross-examination. Sergeant confirmed his recollection and note of her statements, in particular he confirmed his note of the description of the February 2008 incident that, in part, Sammy (the accused) put his leg over her leg. The point made by defence counsel is that T in her evidence said that he put her leg over his leg. Defence counsel cross-examined in relation to the April 2008 incident and Sergeant Rodda said that there was no mention about her feeling the accused’s penis against her leg through the clothes. Sergeant Rodda agreed that T had not mentioned specifically that the accused had touched her skin (in those words). Sergeant Rodda said that he could surmise from her actions as described, that the accused would have touched her skin.
Counsel for the prosecution then called Senior Constable Slattery. Senior Constable Slattery had also attended on 15 June 2008, in company with Detective Sergeant Milsom at the complainant’s shouse. One of his duties was to interview and note the conversation with L. Senior Constable Slattery agreed that his note of L’s complaint was as follows;
1pm Crittenden Road. Took L to his place and raped her. Took into bedroom, grabbed her arms and pulled her pants down. Pulled his pants down, held her by one arm on bed, placed his penis inside of her. No injuries. Wearing same clothes as when it happened earlier today, including underwear. He was wearing white underpants (always wears white). He said that he doesn’t come. Told him not to touch her. He told her it is alright because he doesn’t come. Erect penis put in vagina. Five minutes on top and stayed in same position.[41]
[41] Transcript [252].
On Senior Constable Slattery’s next page of notes it says, “He pulled pants up” and he said that was essentially the end of what was said to him. He had spoken to L in the kitchen, together with Detective Sergeant Milsom. Senior Constable Slattery couldn’t recall L’s demeanour at the time. He and Detective Sergeant Milsom then made arrangements to convey L and S to the Women’s and Children’s Hospital.
Clothing and lollies were seized from both girls. The sweets were the same as depicted in photograph 7 of P4. Senior Constable Slattery later arranged for forensic procedures to be carried out on the accused, however the accused was not arrested on that day. Senior Constable Slattery and Detective Sergeant Milsom attended the accused’s house at Crittenden Road Findon on 23 June 2008 and arrested the accused. The accused declined to answer questions. Police searched the accused’s house and located and seized a bottle of baby oil.
Counsel for the prosecution called Detective Sergeant Milsom. Detective Sergeant Milsom gave evidence that she attended the complainants’ address on 15 June 2008 in company with Senior Constable Slattery. She assumed the role of investigating officer on arrival. Detective Sergeant Milsom gave evidence that she had an initial conversation with L with Senior Constable Slattery present. She said that L had described an incident in which she was taken into the bedroom by the accused, effectively held down and penetrated with his penis. She didn’t have verbatim notes of that conversation.
Detective Sergeant Milsom said that L provided a description of the accused’s penis and genitals and a description of the movements made in relation to the sexual allegation, for how long it lasted, and some of the symptoms she was experiencing after the event.
Detective Sergeant Milsom’s note of L’s complaint was as follows;
AOkay. According to my notes, the information from L was that this allegation was made prior to 1pm that day. In a bedroom. She was wearing blue jeans, a Billabong top, which was pink, and a green and blue t-shirt and green underwear. She was pushed onto the bed. The defendant had white underpants and was wearing black pants. He said that he doesn’t come. She described him as having a hairy penis, which was circumcised and very hard and he was moving up and down for five minutes on top of her. And afterwards she felt some pain in her stomach, felt wetness in her vagina and during the incident he had kissed her on the lips.
Detective Sergeant Milsom could not specifically recall L’s demeanour, but recalled that initially she was very shy and it was hard to get information out of her at that time, as it was with all the children.
Detective Sergeant Milsom then was asked to recount S’s initial complaint about the incident. She said as follows; [42]
AOkay. So S has stated to me that she has obviously attended at Sammy’s house that evening. That they cooked tea in the kitchen and present was herself, L, (the two brothers) and at some point during the evening, L was sitting on Sammy’s lap in the kitchen. She talked about Sammy’s bedroom having in it a double bed and some poles on the bed. She described a necklace with Jesus on it and pictures of Jesus and pictures of his wife in that room. Within the bedroom there was a TV cabinet, a cabinet, which had hair - she said “Hair stuff” and makeup, which was from his wife. And she said there was - I have “Both light and lamp on it” and there was a small cabinet with a little light and a little lamp on it. And during the incident she has said “Stop it I want to go back out there”. The bedroom door was locked and that there was a lock on the door. It says here in my notes; didn’t go onto the bed. Took pants of. Undid button. Pushed her onto the bed. She wasn’t actually wearing undies. She said; “No pants. Pulled undies off. Feet came off the floor. Shoes off”. She was wearing pink pants, a green and blue t-shirt and on the floor were the pants and undies. Sammy was wearing a blue and stripy top with buttons in the middle, a white singlet, plain white jocks and grey pants with a black and gold belt and black slippers. And she has described the incident as that he’s pushed or rubbed against her three times. His penis was circumcised and was both hard and soft. He had a ring with a plain gold band. He had kissed her on her right cheek and she received $5 and some lollies from the Defendant. That’s my notes from S.
[42] Transcript [259]-[260].
Detective Sergeant Milsom went on to say that she arranged for S and L to go to the Women’s and Children’s Hospital for a forensic medical examination. She said she arranged for their DNA profiles to be deposited at the Forensic Science Centre and then made arrangements to speak to the accused. Detective Sergeant Milsom said she went with other officers to the accused’s house at Crittenden Road Findon. She directed photos to be taken by the crime scene officer on 15 June 2008, being P4. Detective Sergeant Milsom indicated that the white underwear depicted in photograph 12 was the accused’s underwear, also seized and conveyed to the Forensic Science Centre for testing. She later obtained a sample of the Defendant’s DNA which was conveyed to the Forensic Science Centre as well.
Detective Sergeant Milsom said that the Defendant was not interviewed until 23 June 2008. Detective Sergeant Milsom gave evidence that other clothing, the birthday card and confectionery were seized on 15 June 2008. P12, the document said to be a birthday card, was seized from the spare room. At the time it contained a $50 note which was left with the accused. She said the seized lollies were consistent with those in photograph 7 of P4. P13 was part of a pack on the kitchen table in the accused’s home. Detective Sergeant Milsom seized a bottle of baby oil on 23 June 2008. The baby oil was tendered as P15. Detective Sergeant Milsom gave evidence that the baby oil was depicted in photograph 14 of the bundle of photographs.
Detective Sergeant Milsom produced photographs taken by Dr Edwards on the night of the forensic medical examination depicting S and apparent bruise to her leg. They were tendered as P16.
Counsel for the defence submitted that there were inconsistencies in L’s story as to how she was taken into the bedroom and asked why, if the allegations were true, she did not complain to the woman who attended shortly after the event. Counsel for the defence highlighted other matters which L said which he submitted also affected L’s credit, although perhaps to a lesser extent.
Counsel for the defence submitted that S also not be accepted. He submitted that given the restrictions on cross-examination imposed by section 34CA(2) I should give special scrutiny to her evidence. Defence counsel submitted that the strongest point of criticism of S’s evidence concerned events alleged to have occurred surrounding counts 6, 7, and 8 in the information. Defence counsel submitted that the fact S got into the accused’s vehicle at the market on 19 September 2009 was strong evidence that the previous offending had not occurred. Defence counsel submitted that for the complainant to affectively say “well, the way to deal with this is to go over and get in the car with the man who has sexually abused me” was a serious issue with her credibility.
Finally counsel for the defence addressed the DNA and medical evidence. He submitted that it may have been possible for the DNA to have got into the front of the accused’s pants some other way, particularly as it did not take much for DNA to get from one place to another. In relation to the evidence of Dr Edwards he submitted that the evidence did not establish that the vagina of L was penetrated by a penis, as against a finger or something else. Further, he emphasised it could not proved whose penis, if it was a penis, was used. In relation to S, there were no injuries and so defence counsel submitted that the medical evidence did not take the matter further in relation to S.
Use of uncharged acts and complaint
I use the evidence of the uncharged acts concerning S in the way earlier discussed in the reasons, merely as background, explaining the relationship between S and the accused and providing the context against which count 4 is alleged to have occurred.
I have adverted to the complaints made by each of these complainants. T provided an account of the allegations concerning counts 1, 2 and 3 on 15 June 2008, shortly after the allegations concerning S had been disclosed. The offences about which T complained were allegedly committed on 23 May 2007, then sometime between 23 May 2007 and 30 April 2008, and finally in April 2008.[47] T said that she did complain of the 23rd day of May 2007 offence to her sister L, at the time that count 1occurred. L did not give any evidence to that effect.
[47] Between the 31st day of March 2008 and the 1st day of May 2008.
L complained of the allegations comprising count 5 in the information on 15 June 2008 when police attended. That was on the same day as the alleged offence.
S said she complained of the allegations comprising count 4 in the information shortly after they had happened, to her younger brother, asking her younger brother to tell her mum. As a result of that both L and their mother spoke with S on 15 June 2008 and S complained of the offence to them. Police attended, and the allegations were repeated to the police.
In relation to counts 6, 7 and 8, S gave a detailed account of those events to police on 21 September 2009. Counts 7 and 8 allegedly occurred on 19 September 2009 and count 6 allegedly occurred during the month of August 2009.[48]
[48] Between the 31st day of July and the 1st day of September 2009.
Section 34M of the Evidence Act 1929 addresses the issue of complaints in sexual cases. It abolishes the common law relating to recent complaint in sexual cases and provides that in a trial of a charge of a sexual offence no suggestion or statement may be made to the effect that a failure to make, or delay in making a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.[49] Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.[50]
[49] Section 34M(2).
[50] Section 34M(3).
Section 34M makes it clear that the complaint is admitted to inform the court as to how the allegation first came to light and as evidence of the consistency of conduct of the alleged victim, but it is not admitted as evidence of the truth of what was alleged. Further, that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person. Otherwise, it is a matter for the court to determine the significance (if any) of the evidence in a circumstances of the particular case. The initial complaint is defined to include information provided by way of elaboration of the initial complaint either at the time or at a later time. I treat the evidence strictly in the way articulated by section 34M.
Section 34CB and 34D of the Evidence Act
Section 34CB of the Evidence Act requires a court to closely consider whether any period of time elapsing in between the alleged offending and trial has resulted in a significant forensic disadvantage to the defendant and if so be aware of the nature of the forensic disadvantage and take that into account when scrutinizing the evidence. I bear that fully in mind when assessing the evidence in this case.
I must also be aware pursuant to section 34D of the evidence act when considering the two statements admitted pursuant to section 34CA, of all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statements, and in particular whether or not the statements were made contemporaneously with the occurrence or existence of the facts stated, and whether or not the maker of the statements had any incentive to conceal or misrepresent facts. I am also mindful that pursuant to section 34D(2) a section 34CA statement is not corroboration of other evidence given by the maker of the statement. I also bear in mind that neither statement bears the sanction of the oath.
Assessment of the evidence
I have paid very close attention to the evidence given by the three complainants. I have given full weight to the matters advanced by counsel for the prosecution and defence concerning matters affecting the credibility of those witnesses. I have particularly considered closely whether the inconsistencies highlighted in respect of complainants T and L should reflect generally upon the evidence they gave and its probative weight. I have endeavoured to set the main suggested inconsistencies out in my earlier summaries of the cross-examination of each complainant and in my summary of defence counsel’s address.
I closely considered the evidence of T. T gave her evidence carefully and well. Her answers were responsive and consistent by and large throughout her evidence. The inconsistencies raised and put to her were adequately explained in my view. In particular, I believe her explanation about the issue of whether the accused put his or her leg over the other. I formed a very good impression of T and provisionally regarded her as a truthful and reliable witness.
I closely considered the evidence of complainant L. L gave evidence in a clear and straightforward manner. I formed a positive impression of her. She answered questions by and large consistently. In relation to inconsistencies raised with her, with one exception I accept beyond reasonable doubt her explanations for them. The one exception is where she said she did not tell the doctor that the intercourse was for only five minutes. I believe she did not recall saying what she said, had different memory of the time and as a result believed she did not say what the doctor had recorded she had said. I regard her as mistaken rather than dishonest in that regard. I found her a good and provisionally truthful and reliable witness.
I closely considered the evidence of complainant S. S’s evidence was presented to the court by way of two statements tendered pursuant to section 34CA, and she also gave supplementary evidence on oath. I subjected the evidence to special scrutiny and bore in mind that it lacked the sanction of the oath. I find S’s statement of June 2008 to be striking and utterly convincing. S was interviewed for over an hour by a police officer and answered the questions and provided her statement about the events in an utterly convincingly matter of fact way. Her answers about the accused having sex with her on the day alleged in the information and on numerous previous occasions stretching back to when she had first met the accused, were disarmingly matter of fact and highly convincing. I find S’s statement of September 2009 to be credible and believable. I was also impressed by her examination in chief and response to cross-examination. I had given permission for S to be cross-examined on three areas that seemed central to the allegations she made and to her credit. Her answers in cross-examination were clear, consistent and convincing. Overall, I found S provisionally truthful and reliable.
I have closely considered all the matters raised by defence counsel and the matters put in cross-examination, most of which I have summarised earlier in these reasons. I find that the few real inconsistencies raised were all matters of honest miss-recollection or honest but mistaken reconstruction, and which I do not regard as casting any doubt over the honesty and accuracy of the allegations they made of the alleged offending.
In the final analysis I would believe each of the complainants by themselves, even if unsupported by any other prosecution evidence. My strong impression was that they were forthright and honest witnesses, recounting factually and accurately the events that occurred.
S gave evidence per her s 34CA statement of a series of uncharged offences of vaginal and anal intercourse committed on her by the accused for the entirety of the period she knew him. This evidence was given in a chillingly matter of fact and ordinary way, which in the final analysis I have no hesitation accepting beyond reasonable doubt. I do not reason from this that the accused committed the charged offences against S or any of the other offences charged. It would also be wrong to reason from this that the accused had a propensity to commit any of the other offences charged. I utilise that evidence strictly in accordance with the principles articulated earlier, in the limited way that it explains the relationship between the two and provides the context wherein the events comprising count 4 occurred.
I have mentioned earlier in these reasons I regard the response of the accused to the accusations by the complainants’ mother as equivocal. I accept beyond reasonable doubt the evidence that the mother gave and that the accused reacted in the way that is alleged. The accused’s response is however consistent with either a guilty mind or panic and innocence. Accordingly I draw no adverse inference against the accused from this evidence.
Counsel for the defence has suggested that one or all of the complainants had a motive to lie and fabricate these allegations. He has suggested that they, in a context of adverse family conditions, in the context of borrowing, earning or being given money by the accused over time, may have individually or in concert or tacitly fabricated the allegations in an attempt either to extract money directly from the accused or make a claim for criminal injuries compensation moneys. I have accordingly closely scrutinised the evidence of each complainant and all other evidence in the case with this in mind. It is plainly not for the accused to prove anything, still less to prove a motive, but when an issue is raised that there may be a motive, it is legitimate to closely consider whether there is any reasonable possibility that such motive may exist.
I have concluded that there is no evidence whatsoever that there was any agreement of any kind between the complaints to fabricate evidence, nor that any complainant had any financial motive whether direct or indirect to fabricate allegations against the accused. In fact, if anything the converse is the case. The making of these allegations was highly likely to stop the flow of financial assistance the accused was providing to the complainants’ family, his assistance in providing lifts, gifts and other supplies to the family, and the payment of moneys to L and the complainants’ parents for work done over time. I apply the principles applicable to such evidence discussed earlier in accordance with Palmer v The Queen (1998) 193 CLR 1.
I have scrutinised the DNA evidence. I found it convincing and unchallenged. I have carefully considered whether there is any reasonable possibility that L’s DNA could have found its way to the inside front of the accused’s underpants in a way consistent with innocence or to put it another way, not as a result of the accused having vaginal intercourse with L on 15 June 2008. I conclude that there is no such other reasonable possibility. I find proven beyond reasonable doubt that L’s DNA was located on the inside of the accused’s underpants as a result of vaginal intercourse with L.
I have considered all the matters put by counsel for the defence closely, and independently scrutinised all the evidence led by the Crown.
I accept the evidence of each of the complainants beyond reasonable doubt. In my view they were truthful and their evidence entirely reliable as to the allegations they made of the offences charged. Whilst in my view the operation of section 34CA(4) is not completely clear where cross-examination has been permitted on some matters but not on others, in an abundance of caution I have scrutinised the entirety of S’s evidence with the particular care articulated in section 34CA(4).
I have closely considered, as required by section 34D of the Evidence Act what weight I should attach to the two section 34CA statements. In particular I note that the statements were made contemporaneously with the existence of the facts alleged in count 4 in the information, and fairly contemporaneously with counts 6, 7 and 8.
I have considered the nature of the questions that elicited the evidence in the statements. They were fair and in my view not leading or suggestive of any answer. I have considered, as required by section 34D, whether the maker of the statements had any incentive to conceal or misrepresent facts and I find she had none whatsoever. I note that per subsection (2) the contents of her statement cannot corroborate any other evidence given by S. I have regard for the evidence given by S in evidence-in-chief that the statements were true and the supplementary evidence-in-chief and cross-examination that she gave. As mentioned, after applying all the principles required by the Evidence Act, I was impressed by and accept all her evidence beyond reasonable doubt. Notwithstanding the careful scrutiny I am required to give to the evidence, I have no hesitation in accepting the evidence of S as the truth. I also find that it is reliable and accurate.
In summary I accept the evidence of all three complainants as both true and reliable as to the events alleged in the information, beyond reasonable doubt.
In reaching these conclusions I have considered only the evidence relating to each complainant, and accept the evidence of each complainant on the basis of the content and manner of delivery of that evidence. Each was individually convincing, without reference to the other.
I regard the evidence of each complaint as evidence of the consistency of the conduct of each complainant within the meaning of s34M of the Evidence Act, and that nothing in the evidence of their complaints derogated from or reduced the weight of their evidence to this Court. It is not of course evidence of the truth of the complaint.
The evidence of L is convincingly supported by the DNA evidence.
I have not accordingly strictly needed to consider the degree to which the evidence of each supports the other in the sense articulated in Hoch v The Queen (1988) 165 CLR 292, R v Liddy (2002) 81 SASR 22, and similar cases, for example as recently discussed in R v Wallace (2008) 100 SASR 119, R v Ellis [2010] SASC 118 and R v Dennis [2010] SASC 69.
For the sake of completeness I however observe that there is in my opinion an objective improbability of the alleged events occurring to these complainants other than in the way alleged by the prosecution, within the principle articulated in these cases. There is a similarity or underlying unity between the allegations in that;
·Each complainant was a sister in the family the accused befriended.
·Each alleged offence occurred associated with payments or offers of payment either at the time of the offence or another time.
·Each offence allegedly occurred while the accused was alone with one sister.
·The allegations of unlawful sexual intercourse by S and L, both involved the grabbing of the victim in a bedroom of the accused’s house, pushing them onto the bed followed by partially clothed vaginal intercourse.
·The allegations of indecent assault of S and T are broadly similar, involving touching of the breast and leg.
Whilst I accept the evidence of all three complainants beyond reasonable doubt without reference to each other, the evidence of each does support the evidence of the other in that there is an objective improbability of the alleged events all occurring to these complainants, other than in the way alleged, within the meaning of Hoch and the cited cases.
Findings
As a result of the above I find proven beyond reasonable doubt that Saverio Mittiga on the 23rd day of May 2007 at Tyrie Avenue Findon indecently assaulted T, a person of the age of 16 years by, in the third bedroom of his house grabbing her arm, pulling her onto his lap, lifting up her jumper and rubbing her stomach with his hand on her bare skin towards her breast, then taking his hand from under T’s jumper and placing it onto T’s right breast for approximately two seconds before T pushed the accused’s hand away and saying no. I find that the elements of the offence of indecent assault as earlier articulated are made out in that the accused unlawfully applied force intentionally and without lawful justification or excuse to T, accompanied by circumstances of indecency. I find that placing his hand under T’s clothing on her stomach and moving it towards her breast and then grabbing her breast on the outside of her clothes is indecent having reference to what a reasonable contemporary standard would describe. Accordingly I find count 1 in the information proven beyond reasonable doubt.
I find proven beyond reasonable doubt that Saverio Mittiga between the 23rd day of May 2007 and the 30th day of April 2008 at Crittenden Road Findon indecently assaulted T a person of the age of 16 years in the lounge room of the accused’s house at Crittenden Road when the accused was sitting on the lounge in the lounge room with T. I find that the accused placed T’s leg over his leg and started rubbing T’s left chest area and breast and thigh. I find that this was an intentional and unlawful application of force to T without lawful justification or excuse accompanied by circumstances of indecency. I find that in all the circumstances placing T’s leg over his leg, rubbing her chest and breast and upper thigh was indecent in the relevant sense. I find count 2 in the information proven beyond reasonable doubt.
I find proven beyond reasonable doubt that Saverio Mittiga between the 31st day of March 2008 and 1st day of May 2008 at Crittenden Road Findon indecently assaulted T a person of the age of 16 years by pushing T into the kitchen table, leaning over her, placing his hands down the front of her pants, touching her skin and moving his hand down her pelvis, attempting to kiss her and rubbing his penis on her leg through her clothes. I find that this was an intentional and unlawful application of force to T without lawful justification or excuse and I find that the circumstances as described were indecent in the relevant sense. I find count 3 in the information proven beyond reasonable doubt.
I find the proven beyond reasonable doubt that Saverio Mittiga had unlawful sexual intercourse with a person under 12 years of age in that on 15 June 2008 at Findon he had vaginal sexual intercourse with S, a person of the age of 9 years, grabbing her by the hand, pulling her into the bedroom, locking the door, pulling S’s pants off, pushing her down on her bed, and then having vaginal sexual intercourse with her, by firstly placing his penis and then his tongue in her vagina. I find that during that process the accused also made contact with S’s chest with his hands and squeezed her which hurt. I find that S was under the age of 12 at the time, being 9 years of age. I find count 4 in the information proven beyond reasonable doubt.
I find proven beyond reasonable doubt that Saverio Mittiga had unlawful sexual intercourse with a person under 17 in that on the 15th day of June 2008 at Findon he had vaginal sexual intercourse with L, a person of the age of 14 years, in that on that day he drove her to his house on the pretext of getting her to change a light bulb and when she was in the process of doing that he grabbed her, pushed her onto his bed, held her arms, said “things are gonna happen now” and then had vaginal sexual intercourse with her for some minutes until interrupted by a lady knocking on the door. I find that L was 14 years of age at the time of these events. I find count 5 in the information proven beyond reasonable doubt.
I find proven beyond reasonable doubt that Saverio Mittiga between the 31st day of July and the 1st day of September 2009 at Grand Junction Road Kilburn indecently assaulted S a person of the age of 10 years by touching her on the breast when visiting her at the market whilst they were both sitting in his car. I find that he intentionally and unlawfully and without lawful justification or excuse applied force to S and that the touching of the breast was indecent in the relevant sense. I find count 6 in the information proven beyond reasonable doubt.
I find proven beyond reasonable doubt that Saverio Mittiga on the 19th day of September 2009 at Grand Junction Road Kilburn indecently assaulted S a person of the age of 10 years, by in his car at the market unbuckling his seatbelt, reaching over with his hand, and placing it on her leg and moving it towards her vagina. I find that this act was an intentional and unlawful application of force to S without lawful justification or excuse and that placing his hand on S’s leg and moving it towards her vagina was indecent in the relevant sense. I find count 7 in the information proven beyond reasonable doubt.
I find proven beyond reasonable doubt that Saverio Mittiga on the 19th day of September 2009 at Grand Junction Road Kilburn commited an act of gross indecency in the presence of S, a person under the age of 16 years by conducting a detailed and explicit conversation describing having sex with his wife. The accused asked S if she knew how to have sex, described vaginal and oral sexual intercourse with his wife both in bed and in his car. I find that the conversations alleged by the complainant did occur, that it was in the presence of the complainant and directed towards S who was under the age of 16. I find that the conversation was indecent having regard to the complainant’s age, the nature and circumstances of the conversation and contemporary standards of morality and decency. I apply Singleton v Police (2009) SASC 41. I find that the indecency was gross in that it was considerably more than minor or trivial indecency and that it can be properly characterised as grossly indecent. I find count 8 in the information proven beyond reasonable doubt.
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