R v O'DOWD
[2011] SADC 130
•26 August 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v O'DOWD
Criminal Trial by Judge Alone
[2011] SADC 130
Reasons for the Verdicts of His Honour Judge Tilmouth
26 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused found guilty of one count of indecent assault and one count of unlawful sexual intercourse with respect to one complainant, and found not guilty of three counts of unlawful sexual intercouse with respect to the second complainant.
Criminal Law Consolidation Act 1935 (SA) s49, s56; Evidence Act 1929 (SA) s34L(1)(b), s34M; HML v The Queen (2008) 82 ALJR 723; R v Dolan (1992) 58 SASR 501; R v Vonarx (1999) 3 VR 618; R v Beserick (1993) 30 NSWLR 510; KRM v The Queen (2001) 206 CLR 221; Gipp v The Queen (1998) 194 CLR 106; Basto v The Queen (1954) 91 CLR 628; Burns v The Queen (1975) 132 CLR 258; R v Karpany [1937] SASR 377; R v Williamson [1972] 2 NSWLR 281; Brown v The Queen (1913) 17 CLR 570; R v Copeland (1997) 194 LSJS 1; R v Jenner (2000) 110 A Crim R 512; R v Robinson & Tiplady (1985) 123 LSJS 37; R v Woods (2008) 102 SHSQ 422; R v Crisafio (2003) 27 WAR 169; R v ALJ (2000) 117 A Crim R 370; (2000) 211 LSJS 449; MNO v The State of Western Australia (2009) 193 A Crim R 466; Zoneff v The Queen (2000) 200 CLR 234; Robinson v R (No 2) (1991) 180 CLR 531; R v Slobodian (1982) 30 SASR 161; R v Schlaefer (1984) 37 SASR 207; R v Towle (1951) 72 WN (NSW) 338; KRM v The Queen (2001) 206 CLR 221; R v Mayberry [2000] NSWCCA 531; R v Cook (2000) 22 WAR 67; R v Dossi (1981) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171, referred to.
Roach v The Queen (2011) 85 ALJR 558; R v Nieterink (1999) 76 SASR 56; Tully v The Queen (2006) 230 CLR 234; R v Manson Unreported NSW (CCA) 17 February 1993, BC9303922; R v Stringer (2000) 116 A Crim R 198; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR; Liberato v The Queen (1985) 159 CLR 507; R v Calides (1983) 34 SASR 355; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, applied.
R v Liddy (2002) 81 SASR 22, distinguished.
R v Randall (1991) 55 SASR 447; Holland v The Queen (1993) 67 ALJR 946, discussed.
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
The evidence of what both complainants said to their mother shortly after the events in relation to count 2 is admitted under s 34M of the Evidence Act for the limited purposes described therein, as is the evidence in elaboration in what they told a Doctor afterwards.
Evidence Act 1929 (SA) s34M; Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; B v R (1993) 66 A Crim R 192; R v Puaca [2006] Crim LR 341; Morris v The Queen (1987) 163 CLR 454; R v Urbano (1983) 9 A Crim R 170, referred to.
R v H,T (2010) 108 SASR 86; Driscoll v The Queen (1977) 137 CLR 517, applied.
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
Because the charges relate to events occurring 30 years previously s 34CB of the Evidence Act is engaged and the question of forensic disadvantage must be considered. There was actual disadvantage inherent in the passage of time, in the fact the formal contemporaneous statements were not taken from the complainants and in mounting an effective defence. There is significant forensic disadvanate in relation to count 4.
Evidence Act 1929 (SA) s 34CB; Longman v The Queen (1989) 168 CLR 79, referred to.
R v Cassebohm [2011] SASCFC 29, applied.
R v O'DOWD
[2011] SADC 130The Charges
The accused Wayne O’Dowd pleaded not guilty to five charges laid on the one Information, one an indecent assault, the remaining four, unlawful sexual intercourse.
All are alleged to have occurred between 1 January 1980 and 16 February 1981 at Smithfield Plains, where the accused then lived. The indecent assault and unlawful sexual intercourse charged on counts 1 and 2 relate to his then stepdaughter TC. The latter three counts of unlawful sexual intercourse relate to his then stepson JC, TC’s brother.
Mr O’Dowd duly elected for trial by judge alone. Evidence in the trial proceeded between 26 July 2011 and 29 July 2011. These reasons analyse the prosecution case and proceed to verdicts on each count.
Personal histories
The female complainant TC was born on 28 September 1972. She was aged 38 at the time of the trial. Her brother the complainant JC was aged 40 at the time of giving evidence. He was born on 21 September 1970. Their mother the witness RC married Mr O’Dowd in May 1977. They separated not long after the charged events came out into the open, and they later divorced. Mr O’Dowd who is now 54, has since remarried and lives interstate with his wife and their 17 year old son.
At all relevant times the accused was enlisted in the RAAF as a general hand deployed in air movements. In early 1975 he was posted to RAAF Fairbairn, which is the military side of the Canberra airport, in the Australian Capital Territory. He met RC in 1976. Soon after, he moved into a small Unit with her and the two children in Queanbeyan, New South Wales. They later moved to a house in a suburb of Canberra itself.
In June 1980 he was posted to RAAF Edinburgh, in South Australia. This came about because RC had grown homesick and desired to move back to Adelaide where her parents lived. For about three months they lived in two hotels near the base and then acquired RAAF provided housing, initially in Elizabeth West, then in two different homes in Smithfield Plains. These suburbs are relatively close to the base. One of these two houses in Saxon Street Smithfield Plains, was close to a creek. Both TC and JC gave evidence that they regarded the accused as their father, called him dad, loved him and were obedient to him.
The evidence of TC
TC’s evidence was that abuse at the hand of the accused occurred numerous times. Two events in particular stood out in her mind. The first charged on count 1, occurred during a BBQ at their house in Smithfield Plains near a creek, so this must have been at Saxon Street. A social cricket game was being played. She remembers this occasion because it was the first time she tried smoking a cigarette which she stole from the accused. Her mother would not allow her to play cricket as she was wearing a dress, so she went inside to change. Whilst in her bedroom and in the course of changing clothes the accused came in.
Her evidence about the precise incident was this:[1]
[1] T42.24-43.11
QAre you able to tell us about the order of when you went to change, did that make sense.
AI got my clothes out that I wanted to put on then I took my dress off.
QWhat were you wearing when your dress was off.
AI had underpants on and socks and sandals.
QWhat happened when you were standing there just wearing that.
AWayne came in.
QWhat did he do once you came into the room.
AHe came over to me and pulled my underpants down and started touching me.
QWhere did he touch you on this occasion.
AOn my privates.
QWas this occasion similar to what he did on the other occasions.
AYes.
QBy the time this happened had it happened a number of times already to you.
AYes.
QHe's touched you on your privates. Just to be clear, what do you mean by that.
AMy vagina.
QWhat happened after that.
AI got dressed and went outside and he gave me a little smack on the tush.
The second event she recalls forms the subject-matter of count 2. She said this occurred one evening when they were watching television and her mother was not at home. Her mother RC often worked at nights “sometimes it was every night, other times it might have been two to three nights”.[2] She described this occasion in considerable detail during her evidence-in-chief:[3]
[2] T143.5
[3] T35.36-40.24
QBut after the show Wayne took you into his bedroom.
AYes.
QWas it just two of you alone when something happened in the bedroom.
AYes.
QWhat happened after you entered the bedroom.
AI was made to undress and hop up on the bed on all fours.
QWhat were you wearing that night.
APyjamas.
QDo you remember anything about the pyjamas.
AThey had frills on the sleeves and there was a couple of buttons at the front.
QWas it warm weather or cool weather.
AIt was warm.
QWhat was Wayne wearing.
ABlue shorts and a shirt, a casual shirt that just had a couple of buttons also.
QSo a shirt with a collar.
AYes.
QDid he take any of his clothes off.
AYes, he took his shorts and underpants off.
QAnd your clothes.
AOff.
QAll of them.
AYes.
QWhat happened after you were made to undress.
AI was told to get on the bed and I was on all fours.
QDo you remember anything about the room or the bed on this night.
AIt was dark and there was something green in there, green sheets or a green blanket.
QWas the bed made.
ANo.
QCan you describe the way you were on the bed and what Wayne said to you to get you in that position.
AHe asked me to hop on the bed and hop down like I was – like a little dog, like on my hands and knees.
QSo he mentioned a dog in some way.
AYes.
QWhen you were on your hands and knees on the bed which way were you facing.
AAway from Wayne.
QWas part of you near the edge of the bed.
AYes.
QWhich part.
AMy backside.
QSo your backside, as you’ve described, is at the end of the bed facing where Wayne was.
AI’m sorry?
QYour backside is over the end of the bed facing Wayne.
AYes.
QDid Wayne touch you in any way.
AYes
QWere you looking at what he was doing.
ANo
QWhere did he touch you.
AMy privates.
QWhat did you feel.
ASomething cold and wet.
QHad you felt something like that before.
ANo.
QI ask you to be specific here, but where and how did he touch you when you felt something wet.
AHe touched me with his hand on my vagina and my bottom.
QDid he just touch you on your vagina or was there some penetration.
ANo, he put his finger in.
QIn where.
AInside me, in my vagina.
QWas that the first time he’d put something in your vagina.
AYes.
QWhat about when he touched you on the bottom.
AHe did the same thing.
QInside.
AYes.
MR STEWART: Don't lead.
QWhat else did you feel after he touched you in that way.
AI felt something different pressing against me.
QWhere was that pressing against you.
AMy vagina.
QWhere exactly did it press, what happened.
AI know now what it was; that he was pushing his penis into my vagina.
QDid his penis go inside your vagina.
AYes.
QAt the time did you know what was happening.
ANo.
QAt the time could you feel where his hands were.
AAround my waist.
QBoth his hands around your waist.
ANo, he had one hand on my waist, around my hip area, and one hand on my back.
QAre you able to tell us which hand was which or not.
AHis right hand was around my right side and his left hand was on my back.
QWas that at the same time you felt something in your vagina.
AYes.
QWas there any movement with what you felt in your vagina.
AI could feel him pushing.
QCould you describe that in more detail.
AHe was pushing himself in and out of me.
QDid it hurt.
AYes.
QDid you cry.
AYes.
QDid you say anything to Wayne about it hurting.
AYes.
QWhat did you say.
AI said ‘Ow Daddy, it hurts’.
QWhat did he say.
A'Shush, it's okay'.
QHow long did this last for.
ANot very long.
QDid you ask him to stop any more times.
AYes.
QWhat happened after he stopped.
AHe then put his penis to my bottom.
QWhat did you feel.
AI felt him pushing himself into me.
QDid his penis go inside your bottom.
AIt felt like it went in a little way.
QDid he move his hands at all.
AYes.
QWas that before or after he moved his penis.
ABefore.
QWhere did he put his hands.
AHe put one hand on either side of my bottom.
QWhat did he do when he had his hands there.
AHe pulled my bottom apart.
QDid this hurt.
AYes.
QDid you say anything.
AI told him that it was hurting.
QCan you describe any movements he was doing when you felt his penis pushing your bottom.
AI felt the same thing that he was doing with my vagina. I felt him pushing forwards and backwards.
QHow long did that last for.
ANot very long.
QWhat happened when that stopped.
AHe ejaculated on my back.
QWhat did you feel.
ASomething hot, well, warm, hot and wet .
QDid anything need to be cleaned off your back.
AYes.
QWho did that.
AWayne.
QWhat did he do.
AHe wiped it off, I’m not sure what with.
QWas that while you were still in the same position or after you’d moved.
AI was still in the same position.
QWhat happened next.
AI went to the bathroom. I was told to clean myself up and so I did.
QDid he say anything to you on this occasion about whether you could tell anyone what happened.
ANo, not allowed to tell anybody.
QDo you remember what he exactly said or did.
AHe said 'Remember, don't tell anybody'.
QWhen you went to the bathroom and cleaned yourself up did you use the toilet.
AYes.
QWas there any pain.
AYes, it stung.
QWho was the first person you eventually told about what Wayne had been doing to you.
AMy mum.
QWas this occasion you've just told us, was that close in time to when you told your mum.
AYes.
QHow close.
AWithin 24, 48 hours.
In the context of these two charges, TC gave evidence of other uncharged acts in the nature of various kinds of sexual abuse, commencing when they lived at Queanbeyan. These complaints may be summarised as follows:
.her memory of the very first of such incidents at Queanbeyan was of the accused lying beside her on a bunk bed, putting his hands under the covers, pulling down her underpants and rubbing her vagina with his hand as she cried;[4]
.this type of conduct happened many times in Canberra quite possibly at least once a week;[5]
.touching between the legs rubbing her vagina with a towel in the bathroom and then his bare hands at the home in Canberra;[6]
.an incident in her bedroom of the Canberra house when the accused came in, pulled the bedclothes off, took her underpants off, pushed her legs apart as she lay on her back, and proceeded to kiss and lick her between the legs on her vagina;[7]
.incidents occurring “often” when the accused would have her sit on his lap, pull her up against his stomach and bounce her on his legs against an erection, in Canberra and Adelaide;[8]
.an incident in a shed on the accused’s parent’s farm near Goulburn when he pulled down her shorts and began to touch her again;[9]
.one night in sleeping quarters on the Goulburn property the accused came to her bed and touched her;[10]
.as the accused lay on his back she was told to sit on him with her legs either side of his waist whilst he held her around the waist pushing her backwards and forwards, her “privates” touching his “privates”;[11]
.touching her between the legs and “making me touch his privates” continued in Adelaide, on one occasion leading to ejaculation.[12]
[4] T22.1-23.1
[5] T23.2-.15
[6] T23.22-24.20
[7] T26.15-27.10
[8] T27.11-28.16
[9] T29.3-.10
[10] T29.29-30.9
[11] T34.6-.20
[12] T34.27
The evidence of JC
So far as unlawful intercourse on count 3 is concerned, JC described having a “good recollection” as to this occasion. His evidence-in-chief was:[13]
[13] T93.22-95.33
AOne of the earliest ones I can remember, I was playing out in the backyard, playing with my cars and Mum and Wayne were inside. I remember seeing Mum walking outside, like, out the back gate or past the back gate and not long after that I was called in, inside, thinking I did something wrong.
QWhy did you go inside.
ABecause I was called in by Wayne.
QWhere was Wayne when you got inside.
AHe was in the bedroom.
QWhose bedroom.
AMum and Wayne’s.
QDo you remember what Wayne was wearing.
ABrown shorts with a blue stripe down the side and a pair of thongs.
QHad you seen him wear those brown shorts before.
AQuite often.
QWhen you went into the bedroom with Wayne was anybody else in there.
ANo.
QDo you know where your sister was at the time.
ANo, she might have been playing with some friends or she might have been in her bedroom. I'm quite sure she was still in the bedroom because she was pretty young, so I don't think she would have been out playing by herself.
QWhen you went into the bedroom whereabouts was Wayne in the room.
ASitting on the bed.
QCan you give us any more detail about that; what part of the bed he was sitting on, how he was sitting.
AHe was sitting on the corner of the bed.
QWere his legs - where were his legs.
AHis legs were open in front of him.
QWhereabouts in the room did you go.
AI stood right in front of him.
QWhose idea was that.
AWayne's.
QWas he doing anything when you came to stand in front of him.
AHe was stroking his penis.
QWhat could you actually see.
AHim rubbing his penis through his shorts.
QWhat happened after you came there and stood in front of him.
AI was crying, I didn't know what was happening and I got told to pull my shorts down.
QDid you.
AYes.
QDid Wayne touch you in any way.
AYes, he put his hand on my hip
QDid he touch you anywhere else.
AHe squeezed my bum.
QWhat happened next.
AHe then progressed to put my penis in his mouth.
QHow did you feel at the time.
ABad, scared.
QYou told us you were crying.
AI was crying, very much.
QDid Wayne say anything to you when you were crying.
A‘It’s all right, I’m not going to hurt you, it’s okay’.
QWhat did he do, in more detail if you can, when he put his penis in your mouth.
AHe squeezed my bum and I felt pressure on my bum, like, my anus, and I felt something penetrate it a little bit.
QWas that the first time that had happened.
AThat's the first time, yes, that I felt pressure on my anus.
QWhat about Wayne's mouth, can you give us some more detail about that.
AHe put my penis in his mouth and he was rolling his tongue around and then he put my testicles in his mouth as well.
QHow long did that all last for.
ANot long.
QWhen you were that age when this happened did you have an erection.
AYeh, and I wasn't sure what it was.
QDid you ejaculate.
ANo.
QDo you remember anything about the room or the bed.
AYeah, it was just a normal bed with a white quilt and pillows, white pillows, just a pretty plain bedroom.
QWhat happened when Wayne stopped touching you, how did it all come to an end.
AJust came to an end, he told me to put my shorts back up and I could go outside to play.
QDo you remember which house this was at.
AThis was at Saxon Street.
The event he referred to in his evidence was of having to perform oral sex on the accused for the first time at the house. He remembers this particularly because the accused announced “now it’s your turn”. His evidence which in fact pertains to count 5, was this:[14]
[14] T102.26-105.24
QPerhaps we will talk about the oral sex now. Do you remember the first time that you were made to perform oral sex.
AYes.
QWhere were you.
AI was in the bedroom.
QWho else was in the bedroom.
AJust myself.
QWas Wayne somewhere.
AYes, sorry, he was in the bedroom.
QWhat is the first thing you remember about this occasion that stands out.
ABeing scared.
QWhat made you scared.
AI was confused why I was there and, yeah, I thought I did something wrong.
QWhere were you and Wayne when he got you to perform oral sex on him.
AWe were in his bedroom, my mum and Wayne’s bedroom.
QWhereabouts in the bedroom.
AStanding in front of the bed.
QHad anything else sexual happened on that occasion.
ANo.
QCan you tell us what was said.
A'Don't say anything, no-one will believe you and if you do say anything I'll hurt your mum'.
QSorry, I don't think I was very clear. Before it started can you tell us if anything was said by Wayne.
A‘I'm not going to hurt you, it's all right'.
QWhose idea was it for you to perform oral sex on him.
AWayne’s.
QDid he say something to that effect.
AYes, he said 'Now your turn'.
QWhat did he mean by that as you understood it.
ATo suck his penis.
QHow did you know that that's what he meant by 'Now your turn'.
AI knew if I didn't do it I'd probably get a hit.
QDid you do it.
AYes
QWhere was Wayne when you did it
AOn the bed.
QWas he sitting or lying.
ASitting.
QWas he wearing anything.
AHis brown shorts, that was the first occasion.
QWhat do you mean by that.
ALike, the first occasion that I ever remember is those brown shorts, he was wearing those brown shorts at the time and he took them off.
QThe first occasion he made you perform oral sex you remember those brown shorts
ABrown shorts.
HIS HONOUR
QThis is in Adelaide, is it.
AYes.
QHe took the shorts off.
AYes.
QWhat were you wearing, if anything.
AI was wearing my clothes, my shorts.
QDid you get undressed at all.
AYes, I was told to take my pants down.
QWhat happened after you took your pants down.
AHe put my penis into his mouth.
QSo was that before he got you to do it to him.
AYes.
QWhen in relation to him putting your penis in his mouth did he say ‘Now it’s your turn’.
AYes, he said 'It's your turn' to put his penis in my mouth, he said that after he finished with me and he said 'Now your turn'.
QDid you say anything to him when he said 'Now it's your turn'.
A‘I don't want to'.
QDid he say anything back to you.
A‘Do it’.
QDid he give you any instructions.
AYes.
QWhat were those instructions.
ABasically told me how to put my penis into his mouth - sorry, I'll say that again - his penis in my mouth.
QCan you remember exactly what he said.
ANo, I can't remember exactly what he said, I can remember feeling pressure on the back of my head.
QDid you put his penis in your mouth.
AYes.
QAt the time he did that where was Wayne, in what position was he in.
AHe was sitting on the corner of the bed.
QWhere were you.
AI was standing in front of him.
QYou said you could feel some pressure on your head, what was that pressure from.
AHis hand on the back of my head.
QWhich way was the pressure moving you or forcing you.
AIt was just being forced to him, like, being pushed.
QDid you try to stop.
AI tried to pull against him, I couldn't.
QWho was stronger out of you and him back then.
AWayne.
QHow long did you have his penis in your mouth for.
ANot long.
QDid Wayne ejaculate on that occasion.
ANot on that occasion, no.
QWhat happened after his penis came out of your mouth.
AHe put his shorts back on - after he had cleaned himself he put his shorts back on, told me to put my shorts back on and go and play.
QHow did he clean himself.
AWith a cloth.
QWhat did he clean.
AHe cleaned his penis.
The third event JC described in his evidence relates to the allegations particularised under count 4. It is said to have occurred at the Edinburgh Airbase. According to JC there was a party at the base on a cold evening for one of Mr O’Dowd’s airforce colleagues. JC described playing 8-ball that night and then being taken to what he described as the accused’s office, where according to JC the accused did a little administrative work. His evidence as to what then transpired was:[15]
[15] T109.27-111.19
QWhat happened after Wayne finished working.
AHe asked me to come around and stand in front of him around behind the desk.
QWhere was he at that point.
AHe was sitting on the chair.
QWhereabouts did you end up standing in relation to him in that chair.
AIn front of him.
QWhich way were you facing.
AFacing him.
QWhat happened.
AI had to - he said 'Pull your pants down' and then he performed oral sex on me.
QHow long did that go on for.
ANot long.
QWhat happened after that finished.
AHe told me to pull my pants up and I walked around to the front of the desk and then he put my pants down again.
QSo you were at the front of the desk by this stage.
AI was at the front of the desk.
QWhere was Wayne when he pulled your pants down again.
AHe was standing behind me.
QWhat were you wearing that night.
AI was, I think I was just wearing some pants and a jacket because it was at night, it was cold, I can't be quite sure what I was wearing that night.
QDid you have underwear on.
AI had underwear, yes.
QDid Wayne pull down just your pants or underwear as well.
APulled down pants and underwear.
QWhat happened after that.
AI felt pressure in my anus again, I got bent over the table.
QDid Wayne touch you anywhere.
AHe had his hand on my shoulder.
QDid you notice if Wayne got undressed at all.
ANo, no he just pulled his pants down.
QCan you tell us in more detail what you actually felt.
ABad pressure in my anus and feeling like my head was going to explode.
QWhat was the pressure from.
AHis penis in my anus.
QHow far did it go in.
AQuite a way.
QDid he move in any way.
AHe was thrusting.
QHow long did that last for.
ANot long but I felt something wet, whether it was an ejaculation or, but I felt something wet.
QAt what stage did you feel something wet.
AAfter the motions had stopped.
QAnd what about in relation to what Wayne was physically doing.
AHe was thrusting and pushing down on me.
QWhere did you feel the wetness.
AI felt a little bit of wetness on my leg.
QWhat part of your leg.
AThe back of my leg.
QHigh up or low down or in the middle.
AIt was high up.
QWhat happened after you felt the wetness.
AHe stopped and I got told to pull my pants back up.
QDid you stay in the office for very long.
ANo, not long after that.
QDid Wayne say anything to you after this.
A'Don't say anything' that was one thing he quite often said after but not on every occasion.
The second complainant JC also gave evidence coming under the rubric of uncharged acts. These may be summarised as follows:
.the accused sucking his penis “every opportune moment when mum wasn’t around”;[16]
.making JC suck his penis on many occasions to the point of ejaculation, but “not on every occasion”;[17]
.regular penetration of JC’s anus by the accused’s penis mostly at home and on some occasions at the RAAF base.[18]
[16] T95.36-96.7
[17] T100.12-.21
[18] T101.9.27
There was another category of evidence falling within the ambit of uncharged acts of events when the two children were said to be present together with the accused. This evidence is admissible as original direct evidence of the events to which it refers. It is instructive to consider how the accounts of TC and JC on these incidents correlate or otherwise. Their respective versions are summarised in this table:
EVIDENCE OF TC
EVIDENCE OF JC
One occasion he particularly remembered in Adelaide occurred during his uncle’s wedding reception when the accused licked TC’s vagina and sucked JC’s penis.[19]
On one occasion she recalls in the main bedroom of the Canberra house she was told to take off her pyjamas, hop on the bed, when the accused made her touch his penis and was then told to touch her brother “with my mouth on his privates”.[20]
TC has no recollection of her brother licking her vagina.[21]
The accused told me to lick TC’s vagina a couple of times.[22]
In a bedroom in Adelaide at the house JC stroked his penis to the point of ejaculation, the accused licked his sister’s vagina whilst JC stood in the corner watching.[23]
The accused then told them “to lay on top of each other and give thrusting motions”, in what the accused called “mock sex”.[24]
On an occasion in Adelaide the accused penetrated his anus whilst TC was present crying “stop”.[25]
TC has no memory of JC yelling out and telling the accused to stop abusing her.[26]
JC saw the accused penetrate his sister and was yelling and screaming at him to stop.[27]
The accused penetrated her once with his penis.[28]
The accused had intercourse with TC between 5 and 10 times.[29]
[19] T91.5-93.7
[20] T30.10-33.14
[21] T79.36-80.16
[22] T98.8-.15, 123.35-124.1
[23] T96.11-98.20
[24] T98.21-100.11
[25] T101.28-102.11
[26] T80.17-.22
[27] T111.30-112.15
[28] T34.21-.26, 64.14-18, 66.20-.23
[29] T123.27-.34
In light of the virtually complete disparities and inconsistencies between them as to the occasions of joint participation in alleged acts of abuse by the accused, it is not possible to place any store on these parts of the uncharged acts evidence. Despite what might have been previously thought to be the position regarding the onus of proof in respect of uncharged acts following HML v The Queen,[30] the position now is that it is “neither necessary nor appropriate … to give the jury any direction about the standard of proof to be applied to that evidence”: Roach v The Queen.[31] This approach proceeds on the assumption that the evidence was correctly admitted in the first place and properly used for very limited and specific purposes in the second.[32]
[30] (2008) 82 ALJR 723 at [32], [42], [61], [196], [506] and [512]
[31] (2011) 85 ALJR 558 at [49]
[32] Above at [48]
The evidence – legal principles
The charges are presented on the prosecution case as indicative of a course of conduct with respect to each of TC (counts 1 and 2) and JC (counts 3-5), given more colour by the uncharged acts evidence. This type of circumstantial evidence as just summarised and tabulated, is admissible only to the limited extent that it explains why the first charged incident in respect to each child did not just “come out of the blue” and as illustrating a pattern of behaviour under which both submitted to the accused: R v Nieterink,[33] and Tully v The Queen.[34]
[33] (1999) 76 SASR 56 at [43-44]
[34] (2006) 230 CLR 234 at [147]
For her part TC gave evidence that she “was never allowed to say anything” and was told by the accused that this was “our secret”, as “I was daddy’s special girl”. Most times he would say “remember don’t say anything” or “don’t tell anybody”.[35] On one particular occasion after the incident in the shed referred to earlier at the Goulburn property, he produced an axe and said to her in a frightening manner “remember don’t tell anybody” to which she responded “yes daddy”.[36]
[35] T28.20-.27
[36] T29.3-.28
For his part JC gave evidence to a broadly similar but not identical effect. He stated Mr O’Dowd would tell him “don’t say anything, no-one will believe you”.[37] When detailing the count 3 events he described feeling “bad” and “scared”, was crying at the time, but was reassured by the accused “it’s alright, I’m not going to hurt you, it’s ok”.[38] On other occasions he was told not to say anything because he would not be believed, that his mother would be hurt if JC spoke up.[39] He remembers thinking at one point:[40]
Why is he doing this to us I mean he was our dad and I couldn’t understand why he was hurting us and I was just totally confused.
[37] T93.2
[38] T95.1-.5, 103.16
[39] T103.12, T106.20
[40] T114.15-.17
In each instance this particular evidence is admissible on the additional footing to explain why each came to submit to the acts of the accused: Tully v The Queen,[41] and why each did not make a complaint to other persons immediately: HML v The Queen.[42]
[41] Above at [147]
[42] (2008) 82 ALJR 723 at [499]
Even so it is the conduct identified in the particulars of each count that must be proven on the evidence separately admissible in relation to it, beyond reasonable doubt: R v Dolan,[43] R v Vonarx,[44] Roach v The Queen,[45] and R v Nieterink.[46] Such evidence is not admissible and nor may it be used to reason the accused is necessarily likely to have done something wrong on the occasions charged, or that he is the kind of person likely to commit one or more of the offences: R v Vonarx,[47] R v Beserick,[48] KRM v The Queen.[49] Such evidence is no substitute for proof of the act or acts charged: Gipp v The Queen.[50]
[43] (1992) 58 SASR 501 at 503
[44] [1999] 3VR 618 at [22-23]
[45] (2011) 85 ALJR 558 at [48-49], [66]
[46] (1999) 76 SASR 56 at [43-44]
[47] Above at [22-23]
[48] (1993) 30 NSWLR 510 at 516
[49] (2001) 206 CLR 221 at [31], [107] and [134]
[50] (1998) 194 CLR 106 at [78], [141]
The evidence adduced on the individual counts is not available to be used on a propensity basis, and it is not admissible on a coincidence basis either: compare: R v Liddy.[51] The prosecution expressly eschewed any reliance on cross-admissibility in either respect.[52]
[51] (2002) 81 SASR 22 at [230]
[52] T229.16-.35
The charges – legal principles
Count 1 charges an indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). As it stood from 2 October 1975 until 11 February 1982, s 56 provided any person who indecently assaults any other person, is guilty of a misdemeanour. An indecent assault is comprised of a deliberate application of force in circumstances of indecency. An indecent act is one unbecoming or offensive to common propriety, according to community standards of decency: R v Manson,[53] R v Stringer.[54] There is no suggestion other than if a deliberate rubbing to the vagina as alleged on count 1 is proven beyond reasonable doubt, that it constitutes an indecent assault.
[53] Unreported NSW (CCA) 17 February 1993, BC9303922 at 3
[54] (2000) 116 A Crim R 198 at [56]
The remaining four counts charge unlawful sexual intercourse contrary to s 49 of the Criminal Law Consolidation Act. As that offence stood at relevant times, a person having sexual intercourse with any person under the age of 12 years, was guilty of a felony and liable to imprisonment for life. Sub-section 49(2) provided a person attempting to have sexual intercourse with a person under 12 years of age was guilty of a misdemeanour and liable to a term of imprisonment not exceeding 7 years.
Sexual intercourse was defined at that time to include the acts of introducing a penis into the anus or the mouth of another person: s 5(1) definition of “sexual intercourse”. There was no definition of “sexual intercourse” (as there is now), so the common law applied, which was that the slightest degree of penetration would suffice: R v Randall.[55] As four judges of the High Court pointed out in Holland v The Queen,[56] “common law rape would be satisfied without penetration of the actual vagina”. Of course these children being both under the age of 12 at relevant times, render the issue of consent irrelevant on all five charges.[57]
[55] (1991) 55 SASR 447 at 449-450
[56] (1993) 67 ALJR 946 at 949
[57] Section 49(4) of the Criminal Law Consolidation Act as it stood at relevant times only permitted consent to become relevant if the victim was “above the age of 16 years”.
The evidence of complaint
It was the evidence of TC that she first spoke up the morning after the incident charged on count 2. She approached her mother who was at the kitchen table. She told her mother “dad was touching me in my privates” to which she responded “you lying little bitch” and slapped her across the face.[58] TC immediately spoke to JC who according to TC took her by the hand, returned to their mother when he “told mum that I was telling the truth, it is true, daddy does these things to both of us”.[59]
[58] T44.23-45.2
[59] T45.13-.18
For his part JC gave a broadly similar account of the circumstances of this disclosure:[60]
[60] T113.15-.30
QWhat did you see or hear your sister do.
AI saw my sister tell my mum. My mum got very angry with her and that's when I defended my sister and I said 'It's true'.
QDid you have a conversation with your sister before you told your mum.
AYes, I was going to say that I was going to tell mum but I couldn't get the courage up to tell mum and my sister did.
QDid you hear what your sister said happened to her.
AI didn't hear what my sister said happened to her but she said that he was doing it to her as well.
QWhat did you say to your mum about what happened to you.
AThat it's true, he was doing it to both of us.
QCan you remember any of the detail that you told her.
ANo, sorry.
Their mother RC deposed to the exchange in these terms:[61]
[61] T145.7-.25
QWhat did TC say to you.
AShe said 'Daddy has done bad things', and I sort of went blank and I said to her 'Go to your room for a minute'.
QWhat was her demeanour like when she told you this.
AShe looked really frightened like she was in trouble.
QDid she say anything else to you at that time.
A'Daddy touched us'.
QWhen you told her to go to her room did she.
AYes.
QDid anything else happen.
AJC came out and said the same thing.
QCan you tell us the words he used as best you can recall.
AHe said that 'Yes, daddy has touched both of us'.
QWas JC alone when he came out.[62]
AYes.
QWhat was JC's demeanour like.
ALike he was in trouble as well, like he'd done something wrong.
[62] The Information filed in this court is dated 6 September 2010
These accounts are not dissimilar. To the extent that there may be some minor points of difference, they are explainable by the passage of time and the children’s respective ages, then 8 and 10. The graveman of the complaint for practical purposes remains identical in one important respect, it is referrable to both children.
It was not long afterwards that police were called and attended the house on the same day. It is unclear whether they took statements and if they did, the evidence suggests they would not have been comprehensive. Crisis care workers also became involved shortly afterwards, on the initiative of the accused. The matter did not proceed to prosecution because RC consulted the children who expressed no wish “to press charges for their daddy.[63] The evidence was scant, however it is apparent that this prosecution was reactivated several years ago, but the reasons why and the circumstances were not examined by either party, except for a passage in the evidence of TC, which will be examined later.
[63] T146.34-147.11
This evidence of complaint is relevant and admissible to the extent provided for under s 34M of the Evidence Act 1929 (SA). That section abolishes the common law relating to complaint in sexual cases as laid down by the High Court in Kilby v The Queen,[64] and Crofts v The Queen.[65]The section now serves to facilitate the admission of the evidence of “an initial complaint” of an alleged sexual offence, in order to inform how the allegation first came to light and as evidence of the degree of consistency (if any) of the conduct of the alleged victim, but not so as to furnish evidence of the truth of what was said, or alleged in the complaint: R v H,T.[66]
[64] (1973) 129 CLR 460
[65] (1996) 186 CLR 427
[66] (2010) 108 SASR 86 at [45-46], [101-105]
Section 34M(6) also expands the scope of admissible evidence to the extent that it permits proof of subsequent “information provided by way of elaboration of the initial complaint”. Of course there may be varied reasons why both complainants made no complaint of the earlier conduct at any particular time, or to any particular person, but it is a matter for the court now to determine the significance if any of this evidence in the particular circumstances of this case: s 34M(4). Indeed as noted earlier, TC and JC gave their own separate reasons for not complaining sooner than they did.
Forensic delay
It does not appear that either gave statements of any substance to Detectives who attended the home on 14 February 1981, if at all. In light of the fact that they were referred for forensic medical examination, the probabilities are that no statements, or at least no statements of substance were taken or recorded. Their mother said that she was spoken to by two Detectives, and yet there is no evidence they took a formal statement from her either.[67] The accused declined to be questioned on legal advice.[68]
[67] T146.31-.32
[68] T177.29
These facts engaged the application of s 34CB of the Evidence Act, given that thirty years has passed in between time. This section has the effect of abolishing the rule of law of practice laid down by the High Court of Australia in Longman v The Queen.[69] However s 34CB(2) requires the court to identify and explain the nature of any forensic disadvantage and to take that disadvantage into account when scrutinising the evidence, but not to the extent that it may conclude it is “dangerous or unsafe to convict”. These obligations arise once the court forms the opinion that “the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant”: s 34CB(2).
[69] (1989) 168 CLR 79
The ambit of the new provision enacted in 2008, was considered recently the by Court of Criminal Appeal in R v Cassebohm:[70]
[28] I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant’s ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.
[29] Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered “a significant forensic disadvantage”. This is a decision for the trial judge.
[30] It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused’s memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J. That is, the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
[31] If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
[32] The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[70] (2011) 109 SASR 465; [2011] SASCFC 29 per Doyle CJ, White and Peek JJ agreeing
In this particular case there is of course the loss of memory that necessarily occurs over the passage of some 30 years between the events and the trial. This in itself amounts to an identifiable form of forensic disadvantage. This detriment is compounded by the fact that statements from TC and JC which might have otherwise been recorded so as to furnish the accused the opportunity to test their evidence against those statements, and to tease out any inconsistencies that might arise between them and their evidence in the trial. The same considerations apply to the evidence of RC. As a consequence there is a clear difficulty in testing their evidence and in marshalling an effective defence.
Forensic medical examination
Both children were examined at the Rape and Sexual Assault Assessment Centre, then located at the Queen Elizabeth Hospital, by Dr Tania Black on Sunday 15 February 1981. Of course she has no recollection of those examinations. She referred without objection to notes made at the time and dictated shortly afterwards. Her note with respect the history taken and of the examination of TC, read:[71]
'The most recent occasion was on last Thursday evening when mother was at work', I still don't know, it might be 'working', 'and TC and her brother had' - something or other - 'had been watching TV. They took off all pyjamas and he, dad, took off his shorts. He touched us down below with his fingers and pushed his penis - she doesn't know what it's called - into her front and back. Afterwards has to wipe wet away with toilet paper. Told not to tell mum but this time she sort of felt that she had to, she says her brother doesn't do anything to her but stepfather also assaults him. She indicates with full length of forefinger the depth to which penetration might have occurred but during examination it seems likely that penetration beyond the labia did not occur. It hurt but did not bleed'.
… 'TC says that her stepfather has been taking her to bed on several occasions during the last four years, she has no clothes on, and he pushes his penis into her in the vaginal area and in the anal area. It hurts her and afterwards she wipes ‘wet’ away with toilet paper'. She has had no bleeding. He told her not to tell. She is a cheerful, cooperative young girl who seems of average intelligence. General examination reveals no abnormality. She is prepubertal. Genital examination reveals some reddening at the introitus. The hymen is rudimentary and in the knee-chest position only the introitus gapes to the size of approximately 1 cm width and half a centimetre depth. The introitus does not appear to admit the finger of - on more than - or more on gentle pressure. The anus appears normal but the anal reflex appears slightly less brisk than expected. Findings are consistent with her story'.
[71] T166.8-.23, 167.9-.26
Dr Black gave evidence that normally when the skin around the anal area was examined the anus contracts, producing a “circumferential rugae”.[72] She expressed the view that the anus did not seem to contract as promptly as she would have expected. She added this “could be related to repeated interference with the anus and I am not sure what the range of normal was, but I did note that it did seem to be less marked than normal”.[73] Vaginal examination revealed a hymen she described as “variable”, in the sense that she expected more tissue to be present. For a child of that age she found this condition to be “a bit unusual”.[74] As to the reddening around the vaginal entrance, she expressed the view this could have been caused by “many things but it could be caused by rubbing” and that “the size of the opening into the vaginal canal suggests to me that finger penetration would be possible”.[75]
[72] T162.12
[73] T163.8-.10
[74] T161.36-162.4
[75] T162.22-.27
When it comes to her examination of JC which followed that of TC, her opportunity to make an assessment was quite limited as he was uncooperative, being apprehensive and embarrassed.[76] The expert opinions of Dr Black as to the examination, demonstrates mere consistency at best with the allegations made by TC, which of itself is of no probative value in determining the issue of penetration of the anus: B v R,[77] R v Puaca.[78] However she took the following history from him:[79]
On three occasions when mother was out, once in Queanbeyan three and a half to four years ago, once in Elizabeth Fields and about a year ago and once last Thursday night, he and sister were taken to bed by stepfather. Also he has visited JC's bed sometimes. Took clothes off. Father had some magazines which he looked at, then pushed against bottom with penis. No ejaculation. Told to go to toilet, which he did, and had a bowel action while dad went on with TC. No bleeding. Bowel actions didn't hurt. Didn't hurt ever, really. Perhaps a little once. Doesn't think he drinks first. Originally told mum ejaculation on back. He was told not to tell'. And on p.8 it says 'JC says that his stepfather has taken him to bed or visited his bed on several occasions when he indecently assaulted JC pushing his penis against JC's anus, probably without penetration, and JC is not aware of ejaculation taking place. The most recent time was on 12 February when mother was out. JC and his sister were told not to tell. JC is an active, cheerful lad who was too embarrassed to cooperate with physical examination. He seems of average intelligence. The anus looked normal on inspection and was held tightly closed. Findings are normal and do not conflict with the story of the general facts but not details of which the stepfather admits.
[76] T163.19
[77] (1993) 66 A Crim R 192 at 196
[78] [2006] Crim LR 341
[79] T168.37-169.24
Dr Black added under cross-examination, that on the assumption JC had ‘full anal intercourse with an adult male penis on several occasions, there would be signs of injury by way of ‘fine tears around the anal verge’ if done forcibly but not if done ‘gently gradually’”.[80]
[80] T169.25-170.3
The histories given by Dr Black as quoted above, were elicited under cross-examination without objection from prosecuting counsel. Both counsel seemed reluctant in their final addresses to embrace these histories as falling within the ambit of an “elaboration of the initial complaint” within the meaning of s 34M(6) of the Evidence Act:
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
In my opinion the accounts taken by Dr Black satisfy this definition, as they elaborate upon what was said to their mother, so they are available for use under s 34M, and in particular as evidence of the degree of consistency (if any) of the conduct of each. In any case those statements to Dr Black may be admissible for the purpose of contradicting the maker in the event of inconsistency, thus tending to demonstrate the maker may be unreliable and therefore going to credit: Driscoll v The Queen.[81] Whether they do have that effect depends upon what inferences can reasonably be drawn as to the accuracy of the prior statement, the degree of contemporaniety of the statement to the facts it relates, and in this instance the ages of the children at the time (8 and 10 respectively): Morris v The Queen.[82] But as in the case of reception under s 34M, such material is not available as evidence of the truth of the contents: R v Urbano.[83] As such it remains admissible but only for the limited purposes already discussed.
[81] (1977) 137 CLR 517 at 535
[82] (1987) 163 CLR 454 at 469
[83] (1983) 9 A Crim R 170 at 174
It is noticeable that each speaks of events of the preceding Thursday, which would have been Thursday 12 February 1981.[84] This was an occasion when their mother returned home earlier than expected after having gone to see a film at the Edinburgh RAAF base. No doubt this furnishes the reason for the end date in the information. She arrived home to find “Wayne with his arms around the kids”, something she described as unusual.[85] It will be necessary to return to the content and context of these disclosures later.
[84] T177.23
[85] T144.13-.30
Evidence of admissions by the accused
The children’s mother said that she confronted the accused after the children spoke with her at the kitchen table, by asserting:
… he had something to tell me and that he had better tell me the truth or I would come over and tear his face open with my bare hands.[86]
[86] T146.3-.6, 156.21-.24
According to her he cried and then responded “I’m so sorry” and “I didn’t mean to hurt them, I’m sorry”.[87] This response is capable of being treated as an admission of some wrongdoing as against both children, but it does not in itself amount to an acceptance of any particular conduct, as nothing specific was put to him.
[87] T146.7-.10, 156.26-.30
The situation is clearer in respect of admissions made to a social worker who was called to the home on Saturday 14 February 1981 at around 5.30pm. As he has practically no recollection of the events, leave was permitted (again without objection) to refer to notes. These were read onto the transcript. They were a compilation of his own and that of a fellow social worker who attended with him and subsequently “put … together”, and typed.[88] The social worker Mr Tolhurst confronted Mr O’Dowd with “what had physically taken place between himself and the children”.[89] The note records this:[90]
He was initially vague and circuitous but in due course told me that in his opinion there had been no penetration with his penis with his son's anus. He had told me he placed his penis against his son's legs, against his buttocks from behind, and that he had ultimately ejaculated. He insisted that he had not physically interfered with his daughter in any way but that she had been in the room when the encounter with his son took place. He said there had been similar events with his son on two occasions only in the past, each separated by some six to nine months. It would seem that his daughter had never been involved in any such activities.
I returned to Wayne to confront him with this, he persisted in his claim that TC had not been assaulted by him in any way physically. I told him that since the facts of the incident were in question it would be likely he would be subject to further questioning about this in future. He understood this and accepted it.
Mr Tolhurst advised the family to attend the Sexual Assault Referral Clinic which of course they did the following day, Mr O’Dowd going with them.
[88] T173.18-.19
[89] T173.34-.35
[90] T175.7-.29
Evidence of the accused
The accused did not dispute this conversation in the terms. He confessed again in his evidence-in-chief given in his own defence that there were “three occasions where I used my penis between the legs of JC … nowhere near his anus or his buttocks”.[91] During only one of these did he ejaculate. He telephoned Crisis Care because he felt “disgusted and ashamed with myself”.[92]
[91] T203.7-.11
[92] T203.27-.35
In light of this evidence and in light of the failure to put in issue the social worker’s note of the admissions, it is necessary to consider what reliance and what probative value they contain, insofar as they may tend to show the guilt of the accused in relation to any particular count or counts: Basto v The Queen,[93] and Burns v The Queen.[94] These admissions are not directly referable to any of the charged acts and they do not marry with any of uncharged acts of a sexual nature alleged by JC. They are however evidence of a sexual attraction to JC: HML.[95] On the other hand the denials of any improper conduct involving TC are evidence in his case for him, or against him, depending on whether they are believed, according to the weight the court is prepared to attribute to them: R v Karpany,[96] R v Williamson.[97]
[93] (1954) 91 CLR 628 at 641
[94] (1975) 132 CLR 258 at 261
[95] Above at [26-27], [41], [59], [156-158], [277], [456], [487] and [512]
[96] [1937] SASR 377 at 379
[97] [1972] 2 NSWLR 281 at 289
Mr O’Dowd also acknowledged under cross-examination apologising to their mother and that he made reference to “the children” in the course of doing so.[98] He said TC was present on the most recent of the three occasions.[99] Two occurred in Adelaide and the third in Canberra.[100] Once again he denied any misconduct relating to TC, and he denied any misconduct with JC other than that confessed to Mr Tolhurst.[101]
[98] T206.8-.21, 210.14-.22
[99] T210.23-.30
[100] T211.24-.29, T224
[101] T201.11-.32, 22.24, 212.22
He specifically acknowledged one of those three incidents took place on the Thursday night prior to disclosure, separated by a second in Adelaide, a few months earlier.[102] Each occurred on a bed with JC on his hands and knees, the accused standing behind whilst placing his penis between the upper legs of JC.[103]
[102] T211.24-.27, 224.3-.21
[103] T211.34-212.1, 218.13-.25
Of course the evidence of the accused stands to be appraised in the same way as that of any other witness: Brown v The Queen.[104] It should not be discounted simply because he is an accused person: R v Copeland,[105] and R v Jenner[106]. He is entitled to the presumption of innocence and to such credit as the court thinks fit for having taken the course of giving evidence on oath and exposing himself to cross-examination: R v Robinson & Tiplady.[107] By so doing he does not assume any onus of proof, and it remains incumbent on the prosecution to prove all elements of each charge beyond reasonable doubt, even if the evidence of the accused is disbelieved: R v Woods.[108] Moreover the guilt of the accused is not simply established by a preference for the evidence of a complainant: R v Crisafio.[109]
[104] (1913) 17 CLR 570 at 589
[105] (1997) 194 LSJS 1 at 7
[106] (2000) 110 A Crim R 512 at [31]
[107] (1985) 123 LSJS 37 at 38
[108] (2008) 102 SHSQ 422 at [38]
[109] (2003) 27 WAR 169 at [59]
The witnesses
There is no obvious reason from the manner of giving evidence, or the content of the evidence, to reject the evidence of TC or JC. TC gave evidence with poise and dignity even though stressed and visibly upset at times. Defence counsel was permitted to cross-examine her about a previous allegation she made of being raped when she was 12 or 13 and of being sexually attacked by a group of men some 10 years ago, with a view to establishing, which he successfully did, that she had not made a formal complaint to the police about them.[110] This line of questioning was allowed over the objection of prosecuting counsel, despite the prohibition in s 34L(1)(b) of the Evidence Act 1929 (SA). This course was allowed because the questions were not directed to “sexual activities”, but to inconsistency of conduct going to her credit: R v ALJ,[111] MNO v The State of Western Australia.[112]
[110] T78.19-79.35
[111] (2000) 117 A Crim R 370; (2000) 211 LSJS 449
[112] (2009) 193 A Crim R 466
It was argued by the defence that as these were clearly dramatic events, the failure to report them does not ring true, in terms of common sense and life experience.[113] As so understood the submission seems to be that TC’s credit has been substantially undermined because she was raped and then pack raped (assuming for the present that is what it was), but completely failed to complain, even when there was forensic support for her allegations, and yet resolved to press, or rather reactivate, her allegations in this matter.
[113] T270.23-271.7
The simple answer to this criticism is that quite different dynamics were at work in each instance. As to the single rape, she explained that she was “afraid, ashamed, embarrassed, I didn’t want to cause my family more hurt” and at the time:[114]
was drinking quite heavily, I didn’t care about myself, what happened to me. I didn’t want to be anymore, and because of my drinking I felt that I brought that rape upon myself”.
[114] T78.19-79.2, 84.9-.34
As to the allegations of pack rape she explained “I had no idea who the people were that did it”, even though it involved sexual intercourse and she had obvious physical injuries as a consequence.[115] Her explanation in re-examination for reporting the matter before the court but not those, was this:
The difference is that Wayne was my dad, he's someone that I loved, cared about deeply, trusted. He was supposed to protect me, make me feel safe and he didn't do that, whereas the other occasion it was a once-off and I had just put my family through absolute hell and I wasn't prepared to do that again. We were only just starting to get our lives back together and I didn't feel that it was the right thing to do.
[115] T79.7-.35
As the cases make clear, there may be many and varied reasons why complaints are not made. They involve very subjective and personal decisions as to which people may react quite differently. As TC makes clear in her evidence, the motivating point of difference was that the accused had in effect betrayed her trust. This is reasonable, explicable and with due respect to defence counsel’s position, quite unremarkable.
JC was less precise and rendered his account with a rather flat effect, but that appeared to be his nature.[116] More tellingly, the first time he spoke of an incident at a wedding at all was the week before trial.[117] This conflicts with his mother’s evidence that the reception was at a time when the uncle lived in Canberra.[118] Defence counsel Mr Stewart was highly critical of an extraordinary “slip” he supposedly made at one point in an unguarded moment “K - and myself – sorry [TC] and myself”,[119] but that was in my view, just a momentary verbal slip of no consequence. He explained under cross-examination that he was apt to confuse names, and that he had “just got off the phone with my daughter” before giving evidence.[120]
[116] T118.27-.36, 121.32-.37, 245.30-.35
[117] T118.17-119.8
[118] T139.15-.33
[119] T100.5
[120] T133.28-135.5
The evidence of each complainant must be separately examined and scrutinised with great care before a conclusion is arrived at that a verdict or verdicts of guilty should be brought in: R v Murray,[121] Robinson v The Queen.[122]
[121] 1987) 11 NSWLR 12 at 19
[122] (1999) 197 CLR 162 at [21] & [26]
When it comes to the accused there was nothing apparent either from the manner or content of his evidence calling for it to be rejected out of hand. He was rather defensive when probed with the fact that he apologised to his wife with reference to both children, “I didn’t refer to them by name … just the children” given that he admitted hurting only one child.[123] And he was also turgid and confusing when asked to detail why he did not normally work over the weekends at RAAF Edinburgh, however he had nothing to gain from this.[124] Furthermore he was noticeably guarded and reticent when cross-examined as to the details of the admitted abuse of JC, but it proved impossible to discern whether this had its origin in the inherently embarrassing subject matter or in deliberate evasiveness on his part.[125]
[123] T210.17-.22
[124] T216.4-.29
[125] T211.24-212.24
The prosecutor Mr Edge was particularly critical of these responses in light of the admissions to Mr Tolhurst.[126] The submission was that “he admitted what he thought was the basic minimum he could admit to throw the attention off.[127] It is true enough that this evidence placed the accused in something of a dilemma. Had he unsuccessfully put the Tolhurst conversation in issue, that might have seriously rebounded on his overall credit and may perhaps have led to a valid argument that his lies about that were affirmative evidence of guilt in relation to counts 3-5, because they revealed “that the truth would implicate him … in the commission of the offence”: Zoneff v The Queen.[128] On the other hand to reason, in effect, that the accused was stuck with these admissions and thereby had an interest or motivation in tailoring his evidence to suit, is to infringe the principle laid down in Robinson v R (No 2):[129]
To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.
[126] T211.24-212.22, 218.1-219.13
[127] T258.21
[128] (2000) 200 CLR 234 at [16]
[129] (1991) 180 CLR 531 at 536
Allegations that his wife had complained of being raped in Canberra and of having arguments with her as to her type of employment in Adelaide, fail for lack of satisfactory proof of the underlying facts. In any case they were collateral issues which did nothing to advance any relevant inquiry: R v Slobodian.[130] That evidence fell well short of demonstrating the children overheard discussions that might have given them knowledge of sexual matters beyond their years. When it comes to contrasting Mr O’Dowd’s evidence with certain objective facts, matters stand somewhat differently however.
[130] (1982) 30 SASR 161 at 165-166
It follows the resolution of this case is therefore to be found in a close analysis of the evidence as it relates to each count, separately considered on the admissible evidence in relation to it and it alone: R v Schlaefer,[131] R v Towle,[132] and KRM v The Queen.[133] Moreover the evidence of one complainant is not available as evidence in respect of offences relating to the other complainant: R v Mayberry,[134] R v Cook.[135] With these principles firmly in mind it is now possible to consider the evidence in relation to each charge separately considered.
[131] (1984) 37 SASR 207 at 210
[132] (1951) 72 WN (NSW) 338 at 340
[133] (2001) 206 CLR 221
[134] [2000] NSWCCA 531 at [54]
[135] (2000) 22 WAR 67 at [55]
Count 2
Count 2 is based primarily on the evidence of TC, supported by certain attendant circumstances and objective facts. This count is considered first, simply because there is more evidence – direct and circumstantial - in relation to this than on any other count. The allegations here relate to an incident occurring within 24-48 hours of the complaint to RC. Since it is proved the Crisis Care Workers attended on Saturday 14 February 1981, this occasion must have been either Thursday 12 or Friday 13, most probably the former. The precise date however is not an essential element in proof of the charge: R v Dossi,[136] R v Pfitzner.[137] This was the very evening when RC came home early to find the accused in the unusual situation with the children watching television in the lounge room. TC alleges the accused inserted his finger and then his penis into her vagina and then her anus for the first time.[138] It makes common sense that this unusual and remarkable escalation in the nature of their relationship, furnished every reason to recall this particular incident. The objective fact of a more or less immediate complaint, is strongly suggestive that something quite different and marked took place on this evening, serious enough to overcame her previous fears and apprehensions to the point of making complaint.
[136] (1981) 13 Cr App R 158
[137] (1976) 15 SASR 171
[138] T64.18, 67.11-.13
The terms of the complaint to her mother are equivocal standing alone, but the term “in my privates” is significant. However the elaboration to Dr Black the following day “last Thursday evening when mother was at work … he pushed his penis … into her front and back”, contains a high degree of consistency with her account of this night. The allegation of vaginal penetration is consistent with the physical examination of Dr Black, especially the “variable state of the hymen and the reddening at the vaginal entrance”, given that penetration on this occasion hurt TC. However the “circumferential ruage” around the anus is of no significance one way or the other. Furthermore there is the general admission by the accused to his wife of some proximate misbehaviour in relation to both children. It is true that JC gave no evidence about this particular incident in respect of either TC or himself and that TC said nothing of his involvement in this. Although the respective complaints to Dr Black suggest mutual participation at the outset, they are not so precise as to be inconsistent with separate and distinct abuse of TC later on that evening.
In light of her evidence as to the penetration of the vagina, which can be accepted, there can be no doubt that it was sufficient to establish the element of intercourse, whether intercourse requires proof of the penetration of the labia: R v Randall,[139] or penetration of the vaginal passage: Holland v The Queen,[140] as either are proved on the evidence she gave. It is apparent that she told police in November 2010 “he never actually penetrated” her anus,[141] although she maintained in an earlier statement as well as her evidence that he had. This, I think, is simply a product of confusion over the degree of penetration rather than the fact thereof, but is not such a marked inconsistency as to affect her credit on this or more widely.
[139] (1991) 55 SASR 447 at 450
[140] (1993) 67 ALJR 946 at 949
[141] T65.15
On the other hand there is a degree of forensic disadvantage in this instance. Because charges were not pursued, no further enquiry was made. The accused is denied the opportunity of verifying where he was, although that is less significant because his wife has him at home this night in addition to TC. There are no contemporary statements by which to test the accuracy of TC’s evidence from which any inconsistencies can be probed. The occasion is highly date specific. It might conceivably have been possible to confirm or refute that the accused ejaculated if the bed linen had been examined soon afterwards.
On the evidence confined to count 2, given the correlation of the allegations with the objective facts, the objective fact of making a timely and not inconsistent complaint (as distinct from the content), the high degree of consistency in the elaboration to Dr Black, that the events were so significant that she felt compelled to tell her mother, the particularly acute reasons for remembering the events, the accused’s admissions in evidence that something untoward happened that night with TC present, and the partial admission made by the accused to his wife in the particular context, lead to the rejection of the accused’s evidence in denial of these events. As there was otherwise no reason to doubt the evidence of TC as to this occasion the charge is proved good beyond reasonable doubt, based on the evidence which I accept as reliable and truthful.
Count 1
The evidence of TC given in proof of this count is quoted extensively above. This was the incident when a BBQ was in progress at the creek-side Saxon Street house. It involved touching about the vagina in TC’s bedroom.
There is a small degree of forensic disadvantage. If a timely complaint was made, Mr O’Dowd would be in a position to determine his whereabouts on the occasion in question. There is the absence of contemporary statements. There is no corroboration. The medical evidence does not assist, although the evidence of complaint is broadly consistent with it.
It is difficult to accept that the acts of penetration found proven on count 2 occurred without antecedent lesser preparatory acts or grooming. The evidence of TC that they did – summarised earlier – therefore makes common sense, but of course that evidence does not establish this particular charge because of the limited use to which it may be put. The finding of guilt on count 2 cannot be used as propensity evidence in relation to this count, but that finding is admissible for the narrow purpose of enabling the inference to be drawn that it is inherently likely exploratory or preparatory sexual acts did occur, or that it just happened for the first time “out of the blue”. On that premise the allegation of touching around the vaginal area has the distinct ring of truth about it, whereas the accused’s denial does not. Given the detailed recall of TC of this one particular event, this charge is also proven beyond reasonable doubt.
Count 3
This count is the first relating to JC. As seen above, it concerns allegations progressing to anal intercourse, but in point of time it must have been after the count 4 events. There is no corroboration. The complaint made to his mother in this instance is not inconsistent with the allegation, but that is all. The same may be said incidentally, in relation to counts 4 and 5. None are consistent with what JC told Dr Black in the sense that it went only so far as “putting his penis against JC’s anus”. JC gave no evidence referable to an incident involving him on any evening proximate to medical examination. There is general forensic disadvantage in the sense that the accused could not verify his whereabouts and the absence of contemporary statements, but there is no allegation of ejaculation in this instance. In the result, despite the admissions of other sexual abuse and hence of sexual attraction to JC, and despite the fact that Mr O’Dowd has been disbelieved in relation to counts 1 and 2, the court is fundamentally in the position that it does not know where the truth lies in this instance and must therefore acquit: Liberato v The Queen,[142] R v Calides.[143] Expressed in another way, in a case of oath against oath such as this is, the court is unable to reach a conclusion of guilt beyond reasonable doubt because the accused’s denials are not incredible: Question of Law Reserved on Acquittal (No 1 of 1993).[144]
[142] (1985) 159 CLR 507 at 515
[143] (1983) 34 SASR 355 at 358
[144] (1993) 59 SASR 214 at 218
Count 4
The occasion must have occurred in point of time before the events on count 3, as it was the first time JC alleges being anally penetrated. Count 3 must therefore have been a subsequent act of anal penetration. Count 4 of course relates to the incident at the RAAF Edinburgh base. There is no corroboration. Nothing in the complaint evidence talks of any incident at the RAAF base. The position of the accused was such that it was unlikely he had, or needed an office of his own.[145] There is every reason objectively speaking to think non-military personnel would be restricted from entering operational areas at any time, for safety and security reasons. There was unchallenged evidence given by the accused that security patrols constantly monitored and patrolled on all days of the week including weekends, so there is every likelihood the conduct of the alleged kind was highly risky to exposure.[146]
[145] T195.4-196.23
[146] T194.22-193.3
In addition, the denial of the opportunity to verify his whereabouts or otherwise is more pronounced in this instance. There is a significant and palpable degree of identifiable forensic disadvantage because the accused is denied the opportunity to decisively prove these attributes of service life and procedures. More importantly perhaps, a timely complaint and therefore investigation could have confirmed by a simple visit to the base that an office as described by JC existed and its location qua operational and security areas. As the evidence stands it is unlikely the accused would have exposed himself to such an obvious risk of being caught out, particularly in view of his previous experience in Canberra when he was disciplined for bringing unauthorised personnel on base.[147] In this state of the evidence, the court is far from satisfied the charge in the place and circumstances alleged, has been proven beyond reasonable doubt.
[147] T186.13-187.31
Count 5
Finally, count 5 relates to the first allegation of JC being obliged to take the accused’s penis into his mouth. Once again there is no corroboration and the same situation applies as with count 3, so far as the complaint evidence, the statements made to Dr Black and forensic disadvantage are concerned. Despite the admissions of sexual interest and quite different sexual abuse of JC, it is impossible to discern where the truth lies on the specific allegations levelled against the accused on this count as detailed in the evidence, so the accused is entitled to the benefit of that doubt accordingly.
Conclusion and verdicts
The court has found no particular reason for disbelieving the evidence of the two complainants. So far as count 2 is concerned, the evidence is more precise, it was quite detailed and specific and it can be dated with precision. There are objective facts supporting the evidence of the female complainant. That charge is proven beyond reasonable doubt. Count 1 is also proven for the reasons identified earlier. The court is unable to find counts 3, 4, and 5 proven. This conclusion contains no warrant that the accused is innocent of those three charges. It merely reflects the fact that the prosecution has fallen short of proving them according to the high standard of proof required.
Verdicts of guilty on counts 1 and 2 and not guilty of counts 3, 4, and 5 are entered accordingly.
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