R v Mtm No. DCCRM-02-1192

R v M T M
[2004] SADC 59
Chief Judge Worthington
Criminal

The accused is charged is with persistent sexual abuse of a child contrary to s74(1) of the Criminal Law Consolidation Act 1935. It is alleged that between 28 July 1994 and 31 December 1999 he engaged in persistent sexual abuse of F, his biological daughter, when she was aged between 10 and 15 years. The relevant conduct complained of is cunnilingus, inserting his finger into her vagina, inserting his penis into her vagina and causing her to perform acts of fellatio. The Information alleges that there were at least three separate incidents falling on separate days in which the accused committed a sexual offence against F.
As relevant to the trial, s74 reads as follows:
“74(1)     A person may be charged with and convicted of the offence of persistent sexual abuse of a child.
(2)     Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).
(3)     A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.
(4)     A charge of persistent sexual abuse of a child -
(a)must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and
(b)must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct,
but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence.
(5)     Before a jury returns a verdict that a defendant is guilty of persistent sexual abuse of a child -
(a)the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days, between the time when the course of conduct is alleged to have begun and when it is alleged to have ended in which the defendant committed a sexual offence against the child; and
(b)the jury must be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred).
(6)     The judge must warn a jury, before it retires to consider its verdict on a charge of persistent sexual abuse of a child, of the requirements of subsection (5).
(7)     ..............................
(8)     ..............................
(9)     ..............................
(10)A prosecution on behalf of the Crown for persistent sexual abuse of a child cannot be commenced without the consent of the Director of Public Prosecutions.
(11)   In this section -
child means a person under the age of sixteen years;
sexual offence means an offence against section 48, 49, 56, 58, 58A, 68 or 72, or an attempt to commit, or an assault with intent to commit, any of these offences.”
As required by s74(10) the Director of Public Prosecutions has consented to the prosecution. The accused elected to be tried by judge alone and has pleaded not guilty.
For the Crown to obtain a verdict of guilty it must prove beyond reasonable doubt that there were at least three separate incidents, falling on separate days, and that on each such occasion the accused committed a sexual offence against F. Although the Crown does not need to establish the dates of these incidents or the order in which they occurred, it must establish the material facts of three such incidents so as to prove on each occasion the commission of a sexual offence of the nature described in the Information, i.e. against s49, unlawful sexual intercourse.
Apart from evidence put before the court as agreed facts F and her mother, Mrs M , were called by the prosecution as witnesses. Orders were made under s13 of the Evidence Act 1929 to enable each of them to have a screen placed between them and the accused while they gave evidence. F also had a court companion present during her testimony. These arrangements neither affect the weight to be given to the evidence of either of those witnesses nor do they give rise to any inference against the accused - s13(7) Evidence Act.
F is now 20, born 27 November 1983. It is the Crown case that the accused sexually abused F regularly between the ages of 10 and 15 and that this must be seen in a scenario where the accused had started abusing F when she was 5 years old. To that end there was evidence of sexual activity involving F beyond that which is the subject of the charge.
The accused and Mrs M were married in 1977 and had three daughters, of whom F is the youngest. They separated in July 1994 while they were living at Hurley Grove, Hackham. They had been there since March of that year, and prior to that they had lived at Taunton Parade, Christies Beach since June 1991. When they separated the accused moved to Radcliffe Grove, Christies Downs. The eldest daughter, A, went with him. F and her other sister, J, remained with their mother at Hurley Grove but stayed with the accused at Radcliffe Grove regularly. The accused lived at that address until about November 1996 when he moved to a house in Ardross Crescent, Morphett Vale where he remained until about October 1999. It is the Crown case that F continued to visit him regularly while he lived at Ardross Crescent and that the accused habitually abused her by way of unlawful sexual intercourse in one form or another while he was living at both Radcliffe Grove and Ardross Crescent. That abuse is said to have occurred inside the house at each address and in his car on journeys between Radcliffe Grove and F’s school.
As he was entitled to do, the accused did not give evidence and no adverse inference will be drawn against him for that election. He was interviewed by police on 19 May 2002 when the allegations were put to him, but he exercised his right not to answer questions. No adverse inference will be drawn against him for exercising that right. No other evidence was called by the defence, but F’s allegations of sexual misconduct by the accused were strenuously challenged. A report from Dr S. E. Taylor from Flinders Medical Centre indicates that there is no medical evidence that is of assistance one way or the other
RADCLIFFE GROVE
F was still 10 years old when the accused moved to Radcliffe Grove and she attended a primary school in a nearby suburb. In evidence-in-chief F said that she used to visit her father every Tuesday after school, stay the night and go to school on the Wednesday morning. Her sister, J, would do the same after school on Wednesday. I am satisfied from the evidence that even if F did not stay overnight literally every Tuesday, she did so regularly on Tuesdays during school term and would sometimes stay with the accused on weekends and during school holidays. Her eldest sister, A, lived at that house, and for some of the time A’s boyfriend, D, lived there also. It is not clear how long D lived at the house, but it could have been for up to a year. At some point, probably before D left, a woman, whom I shall call W, began to live with the accused and shared his bedroom. The evidence is not specific but it seems that at some point W became his wife. Nothing turns on that.
Until D left, F shared a bedroom with A, but then moved into the third bedroom which had previously been used by D. In her evidence-in-chief she said that it was in this room, bedroom 3, that sexual abuse occurred during the night when she was staying there after school. She said that he would come into the room while she was in bed, take the bed covers off, pull her knickers down, climb on top of her and put his penis into her vagina. This always happened at night time. Nothing was said and she would pretend to be asleep, hoping he would go away. She could not remember how often this occurred but said that it was on more than three separate nights. She did not remember him doing anything else to her on those occasions. In cross-examination her attention was drawn to two occasions when she was interviewed by police and gave statements, 27 January 2002 and 28 January 2003. She also gave a statement to the police on 13 May 2002. None of the statements were put before the court in full; only excerpts as thought to be necessary. Based on that, there is no reason to believe that the statement of 13 May 2002 contains any helpful material as it was only to attend to minor matters which have no bearing here.
In her statement to the police on 27 January 2002 she said that the accused first assaulted her in his own bedroom and she described him either pulling her pants down or getting her to pull them down, and after getting on the bed licking her vagina for a minute or two before getting her to suck his penis. She added that before he did this to her, he would first insert his fingers into her vagina. She thought that this happened probably five or six times at Radcliffe Grove. As can be seen, this differs from her evidence-in-chief.
In her statement of 27 January 2003 she described the incidents in much the same way as in her evidence-in-chief, but with the addition that he would begin by licking her vagina and that sometimes he would do no more than lick her vagina. Referring to her earlier statement in January 2002 she told the police that, although she had said that the accused would get her to suck his penis at Radcliffe Grove, on reflection she thought that that occurred later when he was living at Ardross Crescent. She confirmed in cross-examination that she believed that to be so and that at no stage had she sucked his penis at Radcliffe Grove. F maintained that the accused had sexually abused her inside the house at Radcliffe Grove but acknowledged that she could not reconcile the versions she had given and could not now remember what had occurred.
F said that the accused would routinely drive her to school on a Wednesday morning when she was staying at Radcliffe Grove and that there were times when, if no one else was in the car, he would put his fingers into her vagina while he was driving. Sometimes the accused would drive A to school as well, but as she was at high school she would be dropped off first. In her evidence-in-chief F described the car as a manual white station wagon with bucket seats, and a console, handbrake and gearstick between them. She would be in the passenger seat but she would change gears on his instruction because he was teaching her how to use them. She said that while he held the steering wheel with his right hand, he would use his left hand to work his fingers into her vagina. She would not say anything about it to him but would tense up her vagina to make it hard for him to gain entry. She was sure that this happened more than 3 times on different days; she estimated about 20.
In cross-examination she acknowledged that a considerable part of the journey from Radcliffe Grove to the school involved being in heavy traffic but said that he did not keep his fingers in her vagina for the whole of the trip. In her statement of 27 January 2002 she told police that she thought “this happened nearly every second week when he would take me to school” (Tx 69) and in her statement to the police on 28 January 2003 she said “Dad would finger me lots of times on the way to school. He had probably only ever missed a couple of times” (Tx 97). She acknowledged that on neither of these occasions had she mentioned anything about changing gears for her father and that the first time this was mentioned was in evidence-in-chief.
ARDROSS CRESCENT
The accused moved to Ardross Crescent in about November 1996 and at first, only he and W lived there. The same visiting arrangements continued for F and J. They each used the same bedroom (bedroom 3) on different nights but after a time J moved in to live with the accused and W. Thereafter J used that room, and whenever F stayed overnight she used a trundle bed in another bedroom, referred to in evidence as bedroom 2.
F could not remember anything happening until after she began to sleep in bedroom 2. The bedroom used by the accused and W (bedroom 1) was at the front of the house and bedroom 2 was at the back, between bedroom 3 and what was described as the computer room. F said that she would be asleep in bedroom 2 and wake up to find the accused naked in her room. He would remove the bed clothes, pull her nightie up and her undies down, lay on top of her and put his penis in her vagina. She estimated that this would last for about five or ten minutes and nothing would be said. It never happened more than once in a night and it happened about 20 times, perhaps more. She said that she would not let on that she was awake because she thought it would be over more quickly if she did not say anything and pretended to be asleep. At one stage in her evidence in chief it was unclear whether she was saying that her father began to do this before J moved in, but it was soon clarified that that was not so, and she confirmed in cross-examination that there had been no sexual activity in bedroom 3.
F said that the accused also molested her in the lounge, bedroom 1 and the computer room at Ardross Crescent.
In evidence-in-chief she said that there were occasions during the day, when no one else was there, when “We’d basically start off in the lounge room” (Tx36) then the accused would take her into bedroom 1, ask her to take her clothes off or take them off for her, undress himself, tell her to get onto his bed and begin licking her vagina. After that he would suck her breasts and sometimes he would get on top of her and have penile vaginal sexual intercourse. She remembered that on one occasion he had ejaculated onto her stomach or her chest. She said that this happened on many different days; about 10 was her estimate. She also remembered having to suck his penis in bedroom 1 on a number of occasions. She estimated that this happened about 5 times, each on separate days. She said that she had some difficulty remembering the incidents that occurred in bedroom 1 properly, but that there was one that stood out in great detail and that was the last time anything happened between them. This became known in evidence as “the last occasion” and I shall come to it shortly.
In the course of cross-examination her attention was drawn to what she had said to the police in January 2003. Her description then was similar, although there were some differences, eg., that he had ejaculated onto his own chest and that this had happened more than once. By reference to that statement she confirmed what she meant by saying that these episodes would begin in the lounge room, i.e., while she was sitting on his lap he would insert his fingers into her vagina before telling her to go to his bedroom. However, much was made of the fact that in her evidence-in-chief she described these incidents as always happening during the day whereas, she had said to the police that this “would happen on the Tuesday nights [W] would be at work” (Tx113). It was submitted that this was a major inconsistency. I shall discuss it further in due course.
In her evidence-in-chief she said that on about 5 occasions in the computer room, each on separate days, while she was sitting on his lap to use the computer, he put his fingers into her vagina. In cross-examination it was drawn to her attention that she had not mentioned this at all in her statement to the police on 27 January 2002, but that on 28 January 2003 she said, speaking of the computer room: “I think he fingered me in there as well. I can’t remember how many times. I can’t remember any specific incident” (Tx127). When it was put to her that she just could not remember what took place in the computer room she replied: “I do remember, but I don’t remember any specific details about it.” She repeated that this would happen during the day but she could not say whether it was after school on a Tuesday or whether it was during school holidays or on a weekend. Although she did not think anyone else was at home when this happened, she allowed for the possibility that someone may have been there.
F said that the last time anything happened was in the lounge and in his bedroom at Ardross Crescent. In evidence-in-chief she said that she was about 15 and that it was shortly before J’s birthday in October. In cross-examination it was confirmed that she meant J’s birthday in October 1999. She described sitting on the accused’s lap in the lounge room watching TV, still clothed, and the accused putting a finger inside her vagina. He then suggested that they go to his bedroom, by which she understood him to mean: “So that he could have sex and lick my vagina again”(Tx42). She went to the toilet, then to the bedroom and undressed. He took his clothes off and she lay on the bed. He performed cunnilingus with her legs resting on his shoulders and then sucked her breasts. She said that this went on for about 10 minutes and then he asked “if I would like to have sex with his wife [W]” (Tx43). She refused and stayed in the room for a short time before walking out. She said that she had a clear memory of this happening during the day.
In cross-examination she was directed to her statement of 28 January 2003 where she had said that she was not exactly sure when it had happened but that it was about half way through the year, “probably a Tuesday night because I can’t remember going to my dad’s on a weekend” (Tx118). She also agreed that she had told the police that she was not sure if she had school the next day, but that she had spent a week of her school holidays at her father’s place and it may have happened then. She went on to say “I remember being at my dad’s house at …… Ardross Crescent. I remember being in the lounge room, it was daytime” (Tx119).
Her attention was also directed to parts of her statement to police in January 2002 but, as far as I can determine, the question of whether this last occasion occurred during the day or at night did not arise. The extracts of that statement read out in court refer to the accused licking her vagina for about two minutes and after that asking if she would like to have sex with his wife. There is no mention of the accused sucking her breasts, but I do not know whether that was mentioned elsewhere in the interview; nothing was put to her about that.
The accused moved from Ardross Crescent to Aldinga in about October 1999 but F never stayed with him there. In evidence-in-chief she said that she went to Aldinga to visit J on Christmas Day but did not go inside. However, she agreed that there were also times before October 1999 when she visited J at Ardross Crescent but had not stayed. A series of questions were put to her about various possibilities and I will come back to some of them later. Included among them was the possibility that she had not stayed overnight again at Ardross Crescent after she went to a scout jamboree in Queensland in early 1998. Her response can be summarized by saying that she does not remember that being the case at all but she allowed for the possibility. However, her mother was quite clear in her recollection that F continued to visit and stay with her father until late 1999. She said that because of F’s scouting activities she did not stay on weekends as frequently but that there was little or no change with regard to Tuesday nights. It should be noted that although the transcript (Tx173) does not contain the reply, when Mrs M was asked: “Is it a fact that [F’s] visits to Ardross stopped after she went to jamboree” (sic) she said “No”.

F did not tell anyone about what was happening at the time it was occurring. It appears that the first record of her complaining is to police in January 2002, and those allegations were put to the accused during his interview with police on 19 May 2002. When asked why she had not spoken to anyone earlier, including her mother, she said that she was afraid to do so. I will return to this.
PRIOR CONVICTION/UNCHARGED ACTS
Apart from the conduct that is the subject of the charge, evidence was led of earlier sexual conduct involving the accused and F.
The first was a conviction in this Court in December 1989 for unlawful sexual intercourse with F on 21 April 1989 when she was 5 years and 4 months. On that occasion he was at home alone with F. It appears that F had sustained some burns in her genital area a couple of nights earlier when she had dropped a sparkler. F’s mother had been treating this with some form of salve, but while the accused was looking after her he told her to take her pants off and rubbed some oil on the affected area while she was lying on a bed. In the course of doing this he took down his tracksuit pants, began to rub his penis back and forth across her vagina penetrating the outer lips. He continued to do this until he ejaculated.
Mrs M said that this was reported to the police and that for a couple of months the accused left the family home and went to live with his mother. The church of which they were then members put great emphasis on the importance of a cohesive family unit, and within a couple of months the accused moved back into the house. He received a suspended sentence and was put on a bond. Mrs M said that she did not speak to F about the incident at the time and, indeed, she could not recall ever speaking to her about it; she avoided it because she thought it would bring back memories that F may have forgotten. She made it clear that this was not something she would ever be comfortable talking to F about.
This evidence was led by the Crown to show a sexual attraction to F that has been acted upon by the accused, notwithstanding that she was a young child and his natural daughter. The evidence is admissible for that purpose but care must be taken in how it is used: B v The Queen (1992) 175 CLR 599. B was charged with committing acts of indecency upon and having sexual intercourse with his daughter, and the question was whether evidence of prior convictions for sexual indecency with the same daughter was admissible and, if so, what use could be made of it. The majority, Mason CJ, Brennan and Deane JJ, held that the evidence was admissible and that the jury was permitted to use it as tending to prove the offences with which the accused was charged. However, they said that the trial judge had to be careful in directing the jury: Mason CJ at p602:
“The existence of the prior convictions left the applicant extremely vulnerable to the possibility of irresponsible allegations on the part of an unscrupulous daughter that he had resumed his previous unlawful conduct. Consequently, it was for the trial judge to stress to the jury that they must be satisfied beyond reasonable doubt that he had in fact done so before they could convict the applicant. An evaluation of the daughter’s evidence and that of the applicant was critical on this aspect of the case.”
F said that she had no independent recollection of the 1989 incident. All she could remember was being taken from school or kindergarten to Flinders Medical Centre. She said that when she was about 9 years old her mother told her about it; she remembers that conversation but not the incident itself. As I have said, her mother does not remember such a conversation. On this I prefer F. She has good reason to remember it and is unlikely to forget it. However, whether F remembers more of the incident than she realizes, or whether her memory comes from a conversation with her mother is not material. The fact is that her father did this to her and she has had some awareness of it at least since she was 9 years old.
The Crown also led evidence of uncharged acts of indecency by the accused while the family was living at Taunton Parade, Christies Beach, when F would have been aged between 7 and 10 years. She said in evidence-in-chief that on a few occasions her father showed her “some dirty magazines” (Tx17) which were in a box on top of a cupboard in the bedroom he shared with her mother. She said there were a number of magazines; some were A4 and some were smaller, A5. These magazines had pictures of naked men and women engaging in sexual activity. She said that when he showed her these magazines, sometimes he would show her his penis. In all, she thought that there were about 5 occasions and that on 3 of them he exposed himself. Apart from remembering that she would sit at the end of the bed, she could not remember much more than that about these incidents. This evidence was challenged and I shall come back to that in due course. However, it was led to show what had already happened before the charged acts, and the circumstances in which the charged conduct had come about. It was also submitted that a proper understanding of this was relevant to an acceptance by F of what was happening to her and her failure to complain about the behaviour earlier: R v Nieterink (1999) 76 SASR 56.
FINDINGS RE ARDROSS CRESCENT
F was an impressive witness. She was forthright and did her best to give frank and careful answers. As I will outline in a moment, there are inconsistencies and there are parts of her evidence on which I cannot rely, but that is no reflection on her candour. There were occasions when she would pause for some time before answering a question, and one such pause was so long that I directed it to be noted (Tx92). But I do not accept Mr Charman’s submission that these delays were because she was planning an answer to fit with the version she was giving at the time. Having observed her in the witness box, I formed the opinion that this was because she was doing her best to try to remember what had occurred, sometimes many years before, and be as accurate as possible in giving an answer. She was frank in acknowledging suggested inconsistencies between what she had told the police and what she was saying in evidence. Sometimes she was too ready to agree that there was an inconsistency. However she cannot be criticized for that. She is only aged 20; she is polite and relatively unsophisticated. It is unsurprising that she would not argue with counsel, someone speaking with authority, about whether what had been said was in fact an inconsistency. I have also considered whether the delay in her complaining about the accused’s conduct is adverse to her credibility and for reasons I will mention at the appropriate time, I have concluded that it does not.
While I am conscious that there could be good reason why F might delay the making of a complaint (s34I(6a) of the Evidence Act) the lapse of time is such that there is a risk that the accused has suffered a forensic disadvantage. Because of it, there is the potential of his having been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence, if he chose to do so, to counter the allegations as he would have been closer to the time they are said to have happened. In those circumstances and as the case against the accused is principally F’s unsupported evidence, I must scrutinize her evidence with great care and be aware that unless I am completely satisfied of its truth and its reliability, it would be dangerous to convict the accused (Longman v The Queen (1989) 168 CLR 79). For the same reason I must also exercise a similar caution when considering the evidence of uncharged acts at Taunton Parade, and be aware that it would be dangerous to find those acts proved unless after the same close scrutiny of her evidence, I am satisfied of its truth and accuracy - R v RWB [2003] SASC 420 per Besanko J at par 60 and Bleby J at par 2.
For reasons I will discuss shortly, I am not satisfied that I can rely on F’s evidence to the extent necessary to make a finding of guilt with regard to the conduct charged between about July 1994 and November 1996 when the accused was living at Radcliffe Grove. Notwithstanding that, however, I am satisfied that her evidence of what occurred in the lounge/bedroom 1 and in bedroom 2 at Ardross Crescent is reliable and that it is safe to make findings based upon it. F made it clear that, when she spoke of the accused licking her vagina, she meant that his tongue went inside the lips of her vagina (Tx44). Therefore this constituted an act of sexual intercourse. It is self evident from her descriptions of his putting his penis inside her vagina, putting his finger or fingers into her vagina and causing her to suck his penis, that each of these acts constituted sexual intercourse for the purposes of s49 of the Criminal Law Consolidation Act. At that time she was above the age of 12 years and under the age of 16 years. I am satisfied beyond reasonable doubt that while F was visiting or staying with the accused at Ardross Crescent there were multiple acts of unlawful sexual intercourse and that there were at least 3 separate incidents, falling on separate days, that such an offence occurred. All such offences occurred after the commencement of s74, namely 28 July 1994. In making this finding I am satisfied of the following, and in reaching these conclusions I have not needed to have regard to the prior conviction or the uncharged acts, except in the way I will mention shortly:
·On numerous occasions, in the order of about 20, each on a separate day, there was penile penetration in bedroom 2;
·On numerous occasions, each on a separate day, there was digital penetration in the lounge room which would be followed by cunnilingus, penile penetration and/or enforced fellatio in bedroom 1. Contrary to Mr Charman’s submission, I am not troubled by the fact that F temporarily forgot about fellatio in bedroom 1 at one stage of her evidence. It is impossible to be more precise than to say that there were many acts of unlawful sexual intercourse in bedroom 1. F said that she could not say how often it happened but that it was probably more than 10 times. And when asked to estimate how often she was made to suck his penis she said that it was about 5 times. Whether that is 5 times in addition to the 10 already mentioned is not clear. Nonetheless, even if she is just referring to acts of sexual intercourse in bedroom 1, there were clearly many more than 3 separate occasions, some of which might have involved more than one type of sexual intercourse. I include the last occasion as one of the incidents proved.
After closely scrutinizing her evidence about the computer room I am not satisfied that she has a clear memory of incidents in there. There was no mention of it during her first interview with the police in January 2002 and her mention of it in January 2003 is tentative: “I think he fingered me in there as well. ……… I can’t remember any specific incident” (Tx127 - emphasis mine). She was more certain of it when giving evidence but the concern is whether her confidence is well placed. Does she have a clear memory of digital penetration while she was sitting on his lap in the computer room as distinct from while she was sitting on his lap in the lounge room? That must be considered in light of this not being mentioned at all when she first spoke to the police (by itself not necessarily remarkable) combined with her diffidence about it when it was first mentioned to them a year later. I am therefore not prepared to make an adverse finding about activity in the computer room. For completeness I should also point out that I am unable to say that there was never a day when sexual intercourse occurred in both locations: bedroom 2 and lounge/bedroom 1. But the clear tenor of her evidence is that this would have been unlikely.
It was submitted that there was a major inconsistency in F’s evidence about whether conduct had occurred at Ardross Crescent during daylight or at night and that this went to the reliability of her evidence, if not to her veracity. I do not accept that submission. It was common for F to refer to things happening, both at Radcliffe Grove and at Ardross Crescent, on “Tuesday night”. However, it would not be fair to regard this as necessarily meaning only that something happened at night time as distinct from during daylight hours.
Questions asked of her in evidence-in-chief used the expression “Tuesday night” in a broad sense; sometimes to mean the time she went to her father’s place after school rather than the hours of darkness. There are also a number of examples of her using the phrase in that way. For example, in cross-examination (Tx118-119) she was referred to her statement to the police of 28 January 2003 in relation to the last occasion on which there was sexual contact with her father, where she said “It was probably a Tuesday night because I can’t remember going to my dad’s on a weekend” and then, after some discussion as to what that meant, her statement continuing “I remember being in the lounge room, it was daytime”. Again, when talking about acts of sexual intercourse beginning the lounge room and continuing in bedroom 1, she said in her statement to the police on 28 January 2003 (Tx113) “That would happen on the Tuesday nights [W] would be at work.” I accept the evidence that W was usually still at work when F arrived after school but was usually home by dinner time and stayed at home. With that in mind, the part of “Tuesday night” she is referring to is really late afternoon/early evening.
This is to be contrasted with F’s use of the words “at night” or “night time” to mean not during daylight. For example, when asked in cross-examination (Tx114)“what time do you say it becomes night time” she said “When it’s dark”. Similarly, when talking about the last occasion on which there was sexual contact she was asked “whether it was at night or during the day” and she answered “It was during the day” (Tx121).
Properly understood, I do not accept that she was inconsistent in her descriptions of when sexual activity occurred in the lounge/bedroom 1, and the fact that she was persuaded in cross-examination to concede that there was a contradiction carries no weight. The clear and consistent thrust of her evidence is to the effect that the accused would commit these acts in the lounge and in his bedroom when no-one else was there, whether that be before J got home from school or W got home from work.
It was put that, because F said that she would always see the accused naked in her bedroom before he attacked her, this evidence could not be correct because it was inherently unlikely that he would walk naked from his bedroom, down the length of the house, with J and W present in the house. This submission is not sound. There is no evidence of the accused’s dress habits, whether he wore anything to bed, or whether or not it would be unlikely that from time to time he would walk about at night without any clothes on, e.g., to go to the bathroom . Moreover, F’s evidence is that she would be asleep when he came into the room and then wake up to see the accused in her bedroom. Thus, her evidence of the accused being naked when she saw him must be seen in that context. Despite the assumption made in some of the questions in cross-examination, there is nothing to support an assertion that she saw him walk through the door naked. It does not follow, therefore, that he necessarily walked about the house naked before she saw him. He may have removed his clothes after he arrived in her bedroom but before she woke up.
It was put that because the activity in bedroom 2 is said to have happened at night when J was in the adjacent bedroom and W was in bedroom 1, it is inherently unlikely to be true. I accept that someone acting in that way, would run a great risk of being caught. However, given F’s evidence, which I accept, that nothing was said, that would reduce the risk somewhat and the accused would be aware of it. More, it is not uncommon for the furtive conduct involved in getting illicit sexual gratification to carry with it a significant risk of detection. Some people are foolhardy, some are cautious. That is not to say that the risk of detection of impugned conduct is not relevant to the assessment of the value of F’s evidence. But it does not follow that, just because there is a fairly high risk of detection, it is inherently improbable that the accused would do it.
Many questions were asked of F in cross-examination about signs of the accused being disabled while he was living at Ardross Crescent; matters such as mobility and breathing. She acknowledged that there had been a period when he used an oxygen tank. She did not know when this was but thought it was over a period of a couple of months. She also had some memory of him having epileptic fits but did not know when that was. She was shown a photograph that was marked for identification, but never introduced into evidence, and she agreed that she could see herself in the photograph as well as her father with a walking frame. However, she said that she did not “know the occasion” (Tx133). In address, Mr Charman relied on the following as an acknowledgment by her that the accused was using a walking frame in August 1997 (Tx133-134):
"Q“But if you were told that that was you attending at his 40th birthday party in August 1997, would you say that’s possible.
AYes.
…………………………………………….
QIf that was a picture taken at your father’s birthday party in August 1997, you can see him there with a walking frame.
AYes
QYou would accept, therefore, that again that is a picture of him at his birthday party in August and that in August 1997 he used a walking frame.
A.Yes. “
In the absence of other evidence, it is self evident that this proposition is untenable.
At a more general level, it was submitted that, because F allowed for various possibilities put to her in cross-examination, there must be some doubt about her evidence. Using the above as an example, it was submitted that because F acknowledged that it was possible that the accused was ill during 1997, this undermined her evidence about him abusing her at that time. I do not agree. Consistent with her frankness she was prepared to acknowledge that, if there was something that might show she was mistaken, she was not going to argue about it and would allow for the possibilities. I do not regard that as weakening the effect of her evidence. Moreover, even if it were the case that while the accused was living at Ardross Crescent there were times when he was ill, it does not follow that he could not have behaved from time to time in the way described by F. There are other examples of this type of submission based on possibilities acknowledged in cross-examination, but it is not necessary to canvass them.
USE OF EVIDENCE OF PRIOR CONVICTION AND UNCHARGED ACTS
The level of proof required for uncharged acts in a situation such as this has been the subject of attention in the authorities, but I need not discuss that further as I am satisfied beyond reasonable doubt that conduct as described by F, involving pornographic magazines and the accused exposing his penis, occurred while the family was at Taunton Parade. In her evidence-in-chief F said that she thought there were about 5 occasions, on 3 of which he showed her his penis. In cross-examination she was reminded that she had said to the police on 27 January 2002: “I think he might have showed me these magazines once or twice” and that she could “remember dad showing me his penis. I don’t remember a lot about that when he did this to me (sic) but it was probably after he showed me the magazines. I don’t remember how many times he showed me his penis and I don’t remember anything more about these incidents” (Tx49-50). When asked why her evidence-in-chief was different she said that she had had time to think about it and believed it was closer to 5 times and in the way described. While I accept that there is an element of reconstruction, that goes to how many times it occurred rather than what occurred. Rather than showing an inconsistency in the principal allegation, the thrust of the evidence on both occasions is that there were two types of conduct, one where he just showed her a magazine and the other where he also exposed his penis. A fair reading of what she says is that there were a few occasions involved but she cannot be specific about the number.

When F’s mother gave evidence she confirmed that the accused kept pornographic magazines in a bedside cabinet and that these magazines were A4 size and a smaller size that she described as 6 inches x 3 inches. That tends to confirm F’s description of A4 size and A5 size. Mrs M said he also had pornographic books, videos and magazines in a cupboard, like a wardrobe, in the study. That room was adjacent to the bedroom with the doorways very close to each other. The bedside cabinet described by Mrs M does not fit the description of the cupboard in the bedroom referred to by F. But F’s description of a cupboard in the bedroom is not unlike Mrs M’s description of the one in the study. Given that this all happened when Fwas only between 7 and 10 years old, it is not unreasonable that she may be a bit mixed up about where the cupboard containing the magazines was located, in the bedroom or right next door in the study. Similarly, either F or Mrs M may be wrong about whether the magazines were in the cupboard or in a box on top of it. I do not regard these discrepancies as material.
I have made use of the evidence of those uncharged acts and the prior conviction in the following way. Although F does not recognize a memory of the conduct for which the accused was convicted in 1989 she was, as I have said, since the age of at least 9 years old, aware that there had been sexual abuse by her father when she was little and that she did not feel comfortable talking to her mother about it. From F’s point of view, her mother’s knowing about the 1989 incident had given her no protection because she was still living in the same family unit as her father and was abused again at Taunton Parade. There had been an interruption of a couple of months in 1989 when the accused was kept away from the family home but it is not clear how much of this F remembers or whether she felt in any way responsible for that period of break-up. In the circumstances it is not surprising that she did not complain to her mother about what happened at Taunton Parade. From her point of view, what would she gain by telling her mother? The fact that it was not mentioned for some years does not, in my opinion, affect her credibility in relation to that conduct.
It is true, as was submitted by Mr Charman, that at the time of the conduct complained of at Ardross Crescent F was no longer living with the accused and had not done so for some time. He submitted that there was no reason why by that time she could not have complained of the conduct if the allegations were true; she was going home after each visit to her mother and was away from the influence of the accused. In dealing with that submission I need to refer again to Radcliffe Grove. As I have said, F’s evidence about conduct in the house at Radcliffe Grove is not sufficiently reliable to support a finding of guilt. That is not to say, however, that I formed an adverse opinion about her credibility.
Having regard to what has been proved beyond reasonable doubt with regard to the conviction in 1989, the uncharged conduct at Taunton Parade and the conduct at Ardross Crescent, there has been a long history of sexual abuse that started when F was only 5 years old and was still happening when she was 15. I have no doubt that F was making honest attempts and thought she could recall what occurred at Radcliffe Grove. But despite her apparent confidence she was confused, and that became apparent during the course of her evidence. Her confusion must be understood in light of her giving evidence now at age 20 of events some 8-10 years ago that occurred prior to a lengthy period of abuse at Ardross Crescent. It was my clear impression, and this is borne out by looking at her evidence as a whole, that she tried to recall what happened in the house at Radcliffe Grove but failed. It is true, as Mr Charman submitted, that there are a number of inconsistencies in what she says occurred in the house at Radcliffe Grove when one compares what she said in January 2002, January 2003 and at trial, and even comparing evidence-in-chief with cross-examination. But a fair reading of it and proper regard to her demeanour does not support his contention that at times she tailored her evidence to suit a purpose. However, while it is therefore not possible to treat that evidence as reliable for the purposes of the charge, this has not affected my assessment of her credibility.
Her evidence of what happened in the car on the way to school from Radcliffe Grove was more cohesive, even if there were some deficiencies. However, the difficulty for the Crown is that the time in question is exactly the same as that to which the unreliable evidence about conduct inside the house is directed. Bearing in mind the Longman warning, I have formed the opinion that it would be dangerous to rely on this evidence, which is so closely connected in time and circumstance, including the risk of impermissible reconstruction, to make findings of guilt in relation to the allegations of conduct in the car. For example, notwithstanding F’s assertion that this conduct occurred while the accused was living at Radcliffe Grove, if there has been reconstruction about when it happened there is a risk that she has associated this conduct in the car with the wrong address, as she did with some of the conduct inside the house. That leaves open the possibility that an earlier time is involved. The accused did not move to Radcliffe Grove until July 1994 and the Crown must prove that the offending took place after 28 July 1994. Thus the possibility that this conduct occurred before the operation of s74 is open; it has not been excluded. Again, this is not to say that F is being untruthful. I mention briefly that I am not persuaded by the submission that the difficulties attendant on the accused doing what F said because of the dynamics involved and the risk of being seen by the occupant of another vehicle, indicate that F’s evidence is suspect. They merit consideration as part of the evidence but they do not necessarily make the alleged conduct inherently improbable.
Returning then to the question of delay. Although the position with regard to Radcliffe Grove is unclear, by the time the accused was sexually abusing F at Ardross Crescent there was a history of abuse going back to when she was 5 years old. The accused would have been able to approach her bedroom at Ardross Crescent confident that she would be compliant and that there was little or no risk of her making a noise that would attract the attention of either J or W. With regard to activity in the lounge/bedroom 1 he could be just as confident of her compliance. Equally, by that stage F was confused and ambivalent about her relationship with her father. She was conditioned by her experience to accept that sex was part of that relationship. She did not know what her mother’s reaction would be if she told her and, indeed, her mother confirmed in her own evidence that this was not the sort of thing she would have felt comfortable talking to her daughter about. In my opinion the delay in complaining does not tell against her. Even though she was no longer living with her father, I accept that it was due to a mixture of being afraid of her mother’s possible reaction and uncertainty about her own relationship with the accused, combined with an acceptance of the inevitability of the position in which she found herself. This is well summarized in her answers to the following questions at Tx45-46:
"Q“How did you feel about your father at this stage when this was occurring.
AI loved him because he was my dad but it was still like a strange relationship.
QDid you want to see him get in trouble for what he was doing, at that time.
AI probably didn’t - I didn’t understand it fully then like when it was happening..
……………………………………………………………..
QDid you feel close enough to your mother during the time that this was happening with your father to talk to her about it.
ANo.
QWhy was that.
AI’m not really sure. I’m just - just didn’t feel comfortable talking about what had happened.”
CONCLUSION
For these reasons I find it proved beyond reasonable doubt that at Ardross Crescent, Morphett Vale the accused committed a sexual offence, namely unlawful sexual intercourse, against F when she was between the ages of 13 and 15 years, on at least 3 separate occasions, each of which fell on a separate day, and that therefore the accused is guilty of persistent sexual abuse of a child.

[2004] SADC 59

8 April 2004