R v P, B
[2017] SADC 104
•27 September 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, B
Criminal Trial by Judge Alone
[2017] SADC 104
Reasons for the Verdicts of His Honour Judge Cuthbertson
27 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
- RELATED OFFENCES
Trial by Judge Alone
Accused charged with one count of Rape and one count of Indecent Assault.
Verdict: Not Guilty Rape, Guilty Indecent Assault.
Dietman v Feast [2015] SASC 148; S v Queen (1989) 168 CLR 266, considered.
R v P, B
[2017] SADC 104
The defendant is presented on an Information of the 7th of August 2017 alleging a count of rape against the complainant occurring between the 6th of November 2014 and the 20th of November 2014 at Elizabeth Grove and a count of indecent assault against the complainant on the 14th of December 2014 at Elizabeth South.
Rape
The elements of rape are relevantly as follows:
1The defendant committed a voluntary and intentional act;
2The act was an insertion of the fingers into the vagina of the complainant;
3The act occurred without the consent of the complainant; and
4The defendant knew the victim was not consenting at the time.
Indecent assault
The elements of indecent assault are relevantly as follows:
1The accused placed his hands on the thigh of the complainant, close to her vagina;
2The act was voluntary and intentional;
3The act was unlawful;
4The act occurred in circumstances of indecency; and
5The act was without the consent of the complainant.
Onus of proof
There is a presumption of innocence and the defendant is regarded as innocent unless and until guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charge lies wholly upon the prosecution; the defendant does not have to prove anything.
Separate consideration of counts
The defendant is charged with separate counts and each count must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean there must be a verdict of guilty or not guilty in relation to the other count.
Other discreditable acts
I am not to reason that because the defendant is guilty of a particular count or it is proved against him that he has committed a particular uncharged act of sexual impropriety against the complainant that therefore he has a propensity to commit sexual offences against the complainant and is guilty of an offence charged on that account.
The relevance of the other count or other alleged acts of alleged sexual impropriety by the defendant against the complainant, in considering a particular count, is that they may demonstrate that the defendant has a sexual interest in the complainant. They may also explain why the complainant may not have complained and why the defendant may have believed he could perform the act without complaint or physical remonstration.
Evidence given out of court and use of court companion
The complainant gave evidence by CCTV. She also had a court companion with her while giving evidence.
The witness KR had a court companion with her when she gave her evidence.
I am not to draw any adverse inference against the defendant for the use of a court companion by the complainant and the witness KR or from the fact that the complainant gave evidence outside of the courtroom.
Evidence of initial complaint
In relation to Count 2, the charge of Indecent Assault, evidence was led of an initial complaint by the complainant to her stepmother concerning that incident.
That evidence is not evidence of the truth of the complaint.
I am entitled to use that evidence to inform me as to how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant.
I also remind myself in relation to Count 1 that the failure or delay in making a complaint is not of any probative value in relation to the complainant’s credibility or consistency of conduct in relation to that count, but that I am to determine the relevance of any failure or delay in the context of the particular case.
In this case I am not of the view that the failure or delay in making a complaint is of any significance. I am not surprised, given the complainant’s intellectual functioning, that she did not make a complaint against the defendant at the first reasonable opportunity.
Unfortunately, the complainant has a mental disability. She is presently aged 39 years. She lives with her adoptive mother KR at Elizabeth Grove. Her father died in 2009 and her mother died in 2007. She had been living with KR, her stepmother, for some ten years. She regularly works at Bedford Industries and its predecessor the Phoenix Society.
KR married the defendant and the three of them lived together at all relevant times.
Accused did not give evidence
In this case the accused did not give evidence. He was not obliged to give evidence and there may be many reasons why he did not give evidence.
Because it is his right not to give evidence I must not hold it against him. I must not take into account that he did not give evidence in determining the question of guilt or innocence.
Particulars
The particulars of Count 1 were that on an occasion when KR was on a trip to Queensland and the defendant and the complainant were living alone in the house he inserted his finger into her vagina causing it to bleed. This was at a time when she did not have her period.
Although I was not specifically told in the prosecution opening, the inference was clearly that this was but one occasion. One might have expected the prosecutor to have informed me if there were more than one occasion when the same thing happened. This was all against a background of sexual abuse by the defendant towards the complainant.
In particular, the defendant would touch her on the breast when driving her home from work.
The complainant would routinely shower after work and the defendant would enter the shower and would touch her on the breasts.
These occasions were not isolated but apparently were committed on many occasions and form the background of sexual abuse.
Count 2 was alleged to have occurred on a specific occasion on the 14th of December 2014 at Elizabeth South. KR had gone to have a lie down. She heard the defendant go to the lounge room and got up to investigate.
The defendant was sitting in front of the complainant rubbing his hands on the complainant’s inner thigh area. This is the subject of Count 2 of indecent assault.
Complainant’s intellectual disability
In the course of the trial I heard evidence from a Mr Pearce and received a report from him.[1] He is a psychologist and relevantly for the past 11 years has been the senior psychologist to Minda Incorporated. He has interviewed the complainant. He has noted that the complainant was diagnosed with microcephaly at the age of four months. This is a condition in which the skull is not properly formed so that the brain is compressed causing it to stop developing properly.[2]
[1] See Exhibit P1.
[2] T11.
The complainant has an IQ in the range of 55-63 consistent with a mild intellectual disability. I am told that a range lower than 70 is generally indicative of intellectual disability.
Mr Pearce describes the complainant as having social skills to communicate with others about general matters and things that she is familiar with but more specific details were often difficult for her to recall including the order in which things occurred.
When the complainant gave evidence I thought that she gave it in an expressionless manner and devoid of emotion. It was clear to me that she needed questions to be kept simple. Difficulty soon arose in her examination-in-chief as to whether she was referring to a singular incident or incidents that were occurring repetitively over a period of time.
I assess her evidence against the background of her intellectual disability. It may be the explanation for certain deficiencies in her evidence for which I make allowances, but it cannot be permitted to lower the test for conviction from proof beyond reasonable doubt.
Latent duplicity or uncertainty
In relation to Count 1 the complainant gave evidence as follows:
QApart from touching [B]’s penis, did anything else happen when you were in the bed with [B]?
AYeah, he stuck his fingers up my vagina.
His Honour
QHow many times did he do that when you were in the bedroom with him when your mum was away.
AHe did that every night.
CROSS-EXAMINATION
QDid you say anything to him about that.
AYes, I told him he was hurting me.
QHow did he hurt you.
AHe had sharp fingernails.
QDid anything happen because he had sharp fingernails.
AYes, he made me bleed down there.
His Honour
QHow many times did that happen.
AEvery time when mum was away.
QWhat, he made you bleed every time.
AYeah.[3]
[3] T29.
The above evidence immediately discloses that the information was defective for latent duplicity or uncertainty.[4] When this was pointed, out the prosecutor sought to remedy the situation by electing to proceed on the basis that Count 1 related to the first time it happened that the defendant placed his finger in the vagina of the complainant.
[4] See the extensive discussion by Peek J in Dietman v Feast [2015] SASC 148 in which his Honour regards the issue as properly described as one of uncertainty rather than latent duplicity.
Assessment of witness
My assessment of the complainant is that she was an honest witness. I did not form the impression that she was making up these events.
On the other hand, it must be observed that there are a number of inconsistences in her evidence. She must have informed the prosecution that Count 1, the insertion of his fingers into her vagina, occurred on only one occasion, yet in evidence she said that it occurred on a number of occasions.
In cross-examination a number of inconsistences were asserted by the cross-examiner. The fact that the complainant had stated something different on a previous occasion is the subject of agreed facts.[5]
[5] See "list of inconsistencies" produced by defence.
In relation to Count 2 the complainant said in evidence-in-chief that she was wearing her nightie at the time that it occurred. This is consistent with her step-mother’s evidence.[6]
[6] T35.20, 61.32.
Under cross-examination she agreed that she told a police officer that she had been wearing shorts and a tank top.[7] When the inconsistency was pointed out she adhered to the version that it was shorts and a tank top.[8]
[7] T38.9.
[8] T38.18.
Her explanation for this appeared at one stage to lead to the inference that she was agreeing that someone told her to say she was wearing a nightie rather than a pair of shorts[9] and a tank top.
[9] T38.25.
She said in evidence that on the occasion of Count 2 the defendant was touching the outside of her thighs.[10]
[10] T40.37.
In cross-examination she told the court that on the way home from work the defendant would touch her breasts while in the vicinity of the roundabout near the Holden factory. [11] She was inconsistent as to whether on those occasions the defendant would say “nice breasts” or “does that feel good”. She resolved upon an assertion that he said both those things.[12]
[11] T42.23.
[12] T44.
She agreed that she told a police constable that he would touch her on the breasts while driving as well and that she had not told the court that.[13]
[13] T45.19.
She told a police officer that when in the shower the defendant would touch her on her buttocks as well as on her breasts but did not say that in evidence in court[14] because she says she forgot about it.
[14] T47.32.
In court she said that when in the shower he said to her “nice body”. When it was pointed out that she had earlier said that he had said “nice breasts” she said that he had said both of those things.[15]
[15] T48.
In cross-examination she confirmed that when KR was away and she was sleeping in the main bedroom the defendant would make her bleed every night by inserting his fingers into her vagina. This caused her to have a shower every night. She changed her nightie every night because it had blood on it and that the sheets were washed on every occasion because of blood on the sheets. I find the above claim difficult to accept.
She did not tell the police officer that the defendant made her bleed every night in bed.[16]
[16] T49.34.
She also said to the police officer that the only time the defendant put his fingers inside her vagina was once when she was in the shower.[17]
[17] T50.12.
She had previously told the police officer about an incident in the shower involving the defendant putting his finger in her vagina and not about an incident in the bed when he inserted his finger into her vagina.[18]
[18] T51.19.
Although I think that the complainant is a truthful witness the inconsistences are such that I am not entirely confident that she is an accurate witness. For these reasons I would not be prepared to accept her evidence beyond reasonable doubt unless corroborated in a material aspect. Accordingly, I am not satisfied beyond reasonable doubt in relation to Count 1. It is attended by too many inconsistences and a change of position as to whether it was an isolated incident or whether it happened on many occasions.
I am also a little concerned as to the appropriateness of the amendment of the particulars to assert that the offence is to constitute the first of a number of acts described by the complainant. The complainant has never in her evidence claimed any of the possible acts as being the first. She does not claim to have any specific memory of the first of these incidents in her parents’ bed that occurred while her stepmother was in Queensland which the prosecution now allege is the subject of Count 1.
There can only be conjecture as to whether the complainant was referring to the first time it happened in her evidence-in-chief.[19]
[19] See the discussion in S v Queen (1989) 168 CLR 266.
Accordingly I am not satisfied beyond reasonable doubt Count 1 is made out.
I have a different view in relation to Count 2.
The incident described as Count 2 is supported in many respects by the evidence of KR. I accept the evidence of KR. I think she is an accurate and honest witness. I do not think that she made up the incident in order to falsely accuse her husband.
The complainant clearly described the incident as the last time that the defendant indecently touched her.[20] She described an incident in the lounge room when she was sitting in her usual chair for watching television and the defendant was sitting on a foot stall facing her. He touched her on the leg on her thighs. She described his hands wandering near her vagina but not touching it.[21] She described his hand as getting within about an inch or the width of a 5 dollar note from her vagina.[22] She described the defendant as saying “Don’t tell anyone because I’ll get in trouble too”.[23] This utterance of the defendant is evidence of a guilty mind.
[20] T34.37.
[21] T35.33.
[22] T36.11-.21.
[23] T36.28.
She described how when KR walked in the defendant turned around and said “Nothing’s going on, is it”. She described how “He flew off the – my footstool and I got upset”.[24]
[24] T37.14.
She describes herself as wearing shorts and a tank top.[25] In fact I accept the evidence of KR and find that she was wearing a nightie.
[25] T38.
This does not cause me to doubt the incident described in Count 2 as having occurred. I have noted the cross-examination on the topic. I put her inconsistencies down to her mental deficiency.
I accept her evidence beyond reasonable doubt for two reasons.
Firstly, as I have said I do not find any of her evidence to be intentionally misleading. I do not regard her as a liar.
Secondly, but more importantly, I was impressed by the evidence of KR. It corroborates the evidence of the complainant and in particular it corroborates that an offence has occurred and that the defendant is the perpetrator.
In particular KR corroborates the evidence of the complainant that she was lying down in the bedroom, that the complainant was in an armchair and that the defendant was on a footstool.
I accept that the complainant correctly heard the defendant say “She is still asleep”.[26] In my view that is evidence that the defendant intended to perform a sexual act and was concerned to do it so that his wife would not know about it.
[26] T59.13.
KR corroborates the complainant’s evidence that she later was sitting in her recliner chair and that the defendant was sitting on the footstool in front of her. Her evidence corroborates that the defendant had his hands under her nightie.
I accept her evidence that the defendant and the complainant were not physically affectionate in a father/daughter relationship. I find that there was no legitimate explanation consistent with innocence for what she observed him doing.
The activity was indecent regardless of whether his hands touched her vagina or not. To touch a female under her nightie or her upper thighs so near to the vagina is to do so in circumstances of indecency.
I do not find on the evidence that his hands did touch her vagina as the complainant herself denies it and KR did not observe it.
I am confident, however, that his hands reached the area of her upper thighs, that there was no innocent reason for him doing that and that it constituted an assault in circumstances of indecency. It was not an act of fatherly affection or horseplay.
The evidence that the defendant very quickly removed himself from the stool[27] when KR came into the room and his utterance, without anything being said to him, “What? Nothing’s happening here” and then to the complainant “Nothing’s happening, is it, M?”[28] is evidence of a consciousness of guilt on his part. I have considered what innocent explanation there might be for the quick movement and the utterances and I am unable to conceive of any.
[27] T62.30.
[28] T63.1.
The evidence that the complainant was in tears is some circumstantial evidence supporting the proposition that the defendant is guilty in that it indicates that the complainant did not want the activity. I do not think her tears were caused by the defendant and KR having an argument.
I find that a short time after the incident described, the complainant came to the computer room and spoke to KR who asked her, “What happened”. The complainant replied “He touched me” and pointed to her private parts.[29]
[29] T64.3.
In my view, although that is not evidence of the truth of it and I must not use it in that manner, it shows consistency of conduct with the evidence of the complainant and is what one might expect from a similar complainant in similar circumstances. To that extent it bolsters the credibility of the complainant’s evidence as to the incident.
I have considered and reject the possibility that the complainant and KR conspired to make up their allegations against the defendant. In particular I do not think that the complainant would have the subtlety to make up the utterances she attributes to the defendant at the time due to her mental limitations.
I should point out the prosecution did not specifically ask the complainant whether she was consenting to this act. I am satisfied, however, from the tenor of all the complainant’s evidence that she was not consenting to this act occurring and I have no doubt the defendant knew that the complainant was not consenting by her failure to struggle or remonstrate with him.
VERDICTS
I return the following verdicts:
Count 1 – Not guilty;
Count 2 – Guilty.
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