R v P, Er - [2015] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, ER
Criminal Trial by Judge Alone
[2015] SADC 129
Reasons for the Verdict of Her Honour Judge McIntyre
18 September 2015
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of Persistent Sexual Exploitation of a Child under s.50(1) of the Criminal Law Consolidation Act. Verdict not guilty.
Criminal Law Consolidation Act 1935 s50(1); Evidence Act 1929 s12A, referred to.

R v P, ER
[2015] SADC 129

The accused was charged on Information dated 4 November 2014 with one count of Persistent Sexual Exploitation of a child.
The particulars are as follows:-
P, ER between the 1^st of June 2012 and the 31^st of December 2012 at      Whyalla, over a    period of not less than three days, committed more than one act of sexual exploitation of SRP, a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)   Penetrating SRP’s vagina with his penis.
b)   Touching SRP’s vagina on more than one occasion.
c)   Performing cunnilingus on more than one occasion.
d)   Inserting his penis into SRP’s anus.
The accused entered a plea of not guilty and elected to be tried by a Judge without a jury.
Outline of the Prosecution case
The prosecution case is that between 1 June 2012 and 31 December 2012 the accused committed a number of sexual offences against his biological daughter SRP. Specifically, it is alleged that on a number of occasions the accused touched his daughter’s vagina, penetrated her vagina with his penis, penetrated her anus with his penis and performed cunnilingus on her. As a consequence of those alleged acts he has been charged with persistent sexual exploitation of a child. At the time S was four years of age. The accused was at the time 39 years of age.
Legal Consideration & General Directions.
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
·The accused elected not to give evidence in this court. That is his legal right and no inference adverse to the accused is to be drawn from the exercise of that right.
Elements of the Offence.
In order to prove that the accused committed the offence of persistent sexual exploitation of a child the prosecution must prove each of the following elements beyond reasonable doubt.
1That accused was an adult person.
2That over a period of not less than three days the accused committed more than one act of sexual exploitation.
3That the complainant was under the prescribed age, i.e. under the age of 17 years.
Sexual exploitation is where a person commits an act that could be the subject of a charge of a sexual offence. The sexual acts alleged here are:
a)     Penetration of the anus and vagina with his penis.
b)     Touching of the vagina.
c)     Cunnilingus.
There is no doubt as to the age of either the accused or the complainant. There is no doubt that the acts alleged are capable of being the subject of a charge of a sexual offence. The contentious issue is whether the prosecution has proven the second element of the offence. Specifically whether it has proven that the alleged sexual acts occurred and, if so, whether the accused committed them.
Background
This matter proceeded as a re-trial. The evidence consisted of tendered material comprising a recording of an interview with S at Child Protection Services, a recording of S’s evidence at the previous trial, a recording of the arrest of the accused, a recording of a police interview of the accused, transcript of evidence given by S’s mother and a forensic medical examiner at the trial and some agreed facts.
The complainant S was born to LR and the accused. The accused and LR were in an on and off relationship. The accused would see S from time to time including a period of time when he would share custody of S with her mother on a week on week off basis.
In the middle of 2012 S and her mother moved in with the accused at his residence at Whyalla. They lived together at that address for about 3 months. It is during that period of time that the offence is alleged to have occurred.
It is agreed that LR was hospitalised between 18–21 October 2012 and that she had two periods of day leave from hospital.
LR gave evidence that she and S moved out of the accused’s house in November 2012. On about the 23^rd or 24^th November 2012 S made a complaint to her mother Ms R who reported the matter to the police shortly after. This complaint led to the charge.
S was interviewed by a social worker from Child Protection Services on 24 October 2013. At the time S was 5 years of age. This interview forms the basis of the prosecution case together with S’s evidence at the previous trial. If I do not accept S’s evidence beyond reasonable doubt then the prosecution case inevitably fails.
The defence has asked me to give myself a warning under s.12A of the Evidence Act 1929. Section 12A provides as follows:
(1)     In a criminal trial, a judge must not warn the jury that it is unsafe to convict on                 a child's uncorroborated evidence unless—
(a)     the warning is warranted because there are, in the circumstances of the
  particular case, cogent reasons, apart from the fact that the witness is a                    child, to doubt the reliability of the child's evidence; and
(b)     a party asks that the warning be given.
(2)     In giving any such warning, the judge is not to make any suggestion that the             evidence of children is inherently less credible or reliable, or requires more         careful scrutiny, than the evidence of adults.
I decline to give myself that warning in the circumstances of this case. However I note the prosecution case depends almost entirely upon S’s evidence. Accordingly it is important that I carefully scrutinise her evidence.
Interview with S at Child Protection Services
S was interviewed on 24 October 2013. The interview was conducted by a social worker at Child Protection Services at the Women’s & Children’s Hospital in North Adelaide. The interview commenced at 10.15 am and concluded at 11:00 am.
The interview took place approximately 12 months after the charged events and the report to police. It is not entirely clear on the evidence before me why the interview did not occur at an earlier date but it appears related to issues with Ms R.
I have carefully considered the video recording of that interview.[1] For ease of reference in these reasons I will refer to the transcript[2] that was provided as an aide memoire but I note that the evidence is the recording itself.
[1] Exhibit P2
[2] MFI P3
S was 5 years of age at the time of the video interview. During the course of the interview S is asked about different types of touching. She was first asked about whether anyone had ever given her a kiss. Initially, she said she had been kissed by people she didn’t know. She then said that she had been given a kiss on the “boobies” by someone called “Kimmy”. It appears from what she said that “Kimmy” was a child and may have been an imaginary friend.
She was then asked if whether anyone had ever given her a “yucky” or a “rude” touch. S said that W who was her Auntie’s son had given her a rude touch on her “mimmie”. Her “mimmie” is the word S uses for her vagina. She said that he kissed it. She said that W was a child. It is a little challenging to follow what S said about W’s age but ultimately it seems she agreed that he was 9.
S was then asked as follows:
QSo has anyone else given you a yucky or a rude touch.
ANo.
QNo.
AOh my dad.
QOh your dad.
AE.
QYour dad.
AE.
QE.
AE (indecipherable words).
S went on to say that he had given her a “yucky” or rude touch on her “mimmie” and her “butt” using his hands and lips. She said that it occurred inside her clothes and she demonstrated this. She said it occurred more than once. She said that it occurred at his place which she then clarified to be “mine and his and my mum’s”. S said that her mummy was asleep in bed when this happened and that it happened in her room. She said that it happened during the day time when her mummy was very tired. She said her mummy was sick and had to go to the hospital. S was then asked if he said anything to her when he touched her “mimmie”. S responded:
AUm, “Don’t worry, mummy is asleep, and no-one else was, is watching us, scared”.
QHe said “Don’t worry, mummy is asleep and no-one else is watching us”.
AAnd I went ….
QAnd you went –
ALike that
QOk
AAnd I was scared of him.
QAnd you were scared. So what did it feel –
ACos I just metted him
QYou just met him, okay.
AYeah.
Later in the interview S said that they were lying on the top bunk in her bedroom; that he took off his clothes and took all her clothes off and she didn’t want them off. She was then asked what happened after he took off her clothes.
AYou already know don’t you.
QNo, you need to tell me.
AI did.
QSo what happened.
ASex remember.
QOh, sex, but what does that mean.
AOh, he started (indecipherable words and S makes a motion with her hands) really hard and it hurt.
S accompanied this latter description with a motion of her hands and a thrusting motion of her body. This demonstration appeared consistent with penile vaginal sexual intercourse. She said that he used his “willie” to have sex and that he put it in her “butt” and “mimmie”. She said she didn’t like it but she didn’t feel anything else. She then described him kissing her “mimmie” for a long time. When asked what he used to kiss her “mimmie” she indicated her lips and her tongue. S was asked by the social worker how many times these things happened. She held up both her hands.
S’s evidence
S gave evidence in a trial when she was 6. The recording of that evidence was tendered in the trial before me.[3] S was asked how many times things had happened. S held up both hands again and said 10 times. She said on those 10 times it was different and that they happened on different days.
[3] Exhibits P4 & P5
In cross-examination she said she could not remember what she said to her mum when she told her mum about what had happened. She was asked whether she knew a man call A who lived with her and her mum for a period of time. She said yes and agreed that she called A “Dad”.
She was then asked about the interview with the social worker at the hospital.
QWhen the sex was happening, had you just met that person.
AYes.
QAnd you call that person your dad: Is that right.
AWell, he told me to call him dad but he is not really my dad.
In re-examination S was asked:
Q. S what’s your real dad’s name
A. E.
LR
LR is S’s mother. A transcript of her evidence from the previous trial was tendered by consent.[4] Ms R described her relationship with the accused. She said they separated before S was born but after she was born they arranged for visitation. Originally it was just whenever they would organise it and then it became week on, week off. That is S would spend a week with her and a week with the accused.
[4] Exhibit P8
Ms R described living with the accused a month or so before her 30^th birthday which was in October 2012. She resumed her relationship with him and they shared a bedroom. S had her own bedroom with a set of bunk beds. She said that S slept on the bottom bunk. Ms R had some medical issues while they were living there and about a week before her 30^th Birthday she went into the hospital for just under a week. While she was in hospital the accused looked after S.
Ms R said they moved out of the accused’s house in November. Her relationship with the accused was not working out. She and S moved to Adelaide to stay with her step-father. Whilst living there S made a complaint about the matters that resulted in this charge. Ms R thought this conversation occurred on 23^rd or 24^th November. She gave evidence about the conversation as follows:
QWhat was happening leading up to this conversation at your dad’s house.
AShe was jumping around, holding onto her private parts like she needed to go to the toilet and I told her to go to the toilet and stop holding it.
QDid she respond to you.
AYes. She started crawling back saying “I don’t need a toilet”, my daddy hurt my mimmie.
QAfter she said that to you, what did you do.
AI took her into my step-dad just to see if she would say it again and I asked her to tell poppy what she said to mum and she repeated it.
QDid you conduct any sort of examination of the area of her mimmie.
AI asked her to show me. She threw herself down on the ground and showed me.
QWhere did you look and what did you observe.
AHer vagina, it was red on the inside.
QShe uses the word mimmie. What is that a word for.
AThat is for her vagina.
Ms R then described her friend’s mother giving S a smurf doll and asking her to grab the smurf’s hand and touch on the smurf where daddy touched her. Ms R observed her daughter holding the smurf doll hand on the bottom under the belly area. She was asked “so you mean daddy touched your tummy”. S responded “no it was my “mimmie” but the smurf’s hand doesn’t reach”.
Ms R asked her if it was only once and S said “No it happened lots and heaps”. S mentioned an argument that Ms R had with the accused on her 30^th birthday. S said that Ms R had gone outside to check the letter box and was looking for Uncle W and daddy had gone into her room and started touching her.
Ms R said that S called her ex-fiancée A or “Dad” or more specifically “dad A”. She said the last time S saw A was at the end of 2010 when she was about 3.
In cross-examination Ms R was asked about her relationship with A. She said they moved to Port Pirie in 2009. They separated in Port Pirie mid to late 2009. At the time she was occasionally going back to Whyalla so S could see the accused. When she was in Port Pirie she also arranged a couple of occasions when S could be dropped off in Whyalla so she could see her father. Mr P had a new partner Ms W who had two children, two young boys. S would stay with them.
Ms R moved back to Whyalla in about May 2012 and moved in with Mr P around July 2012. Before moving in with him she stayed with a few people in various locations.
In cross-examination Ms R agreed that she took S to the doctor when she was about two because:[5]
she was expressing herself in random ways sexually that she shouldn’t have been at that age and I was concerned and took her to the doctor and he said there was no evidence of anything and that it was left at that.
[5] Exhibit P8, p55-56
She was asked whether she told Families SA on 29 December 2010 that she was concerned that S had been sexually abused. It was also put to her that she had taken S to a hospital around the same date complaining that she had been sexually abused. The tenor of her answers to these questions was that she did not remember the dates but she agreed that she had told Families SA that S had pain in her rectal area and that she had a red vagina.
Ms R agreed that she took S to the hospital in January 2010 and complained that S had rashes on her inner thigh and a white discharge around the vagina. Ms R did not agree that she told them she thought someone in Port Pirie had sexually abused S. She agreed that she told Families SA on 29 January 2010 that S tried to insert objects into her vagina.
In early 2014 Ms R started seeing a man called PL and in May 2014 S told her that Mr L had put his penis in her vagina on a number of occasions. Ms R denied any contact with Mr L prior to early 2014 which is, of course, well after these allegations came to light and were investigated.
Medical Evidence
Dr Donald, a medical doctor working at the Child Protection Service at the Women’s & Children’s Hospital from 1988 until October 2014 gave evidence about an examination of S at a previous trial. The transcript of his evidence was tendered before me.[6]
[6] Exhibit P9
Dr Donald supervised a forensic medical assessment of S on 20 December 2012. This examination showed no sign of any abnormality. There was no sign of recent or old injury to the external or internal genital structures or the peri-anal area. A diagram depicting the vaginal area was tendered[7] which Dr Donald used to explain that there were a number of possibilities to account for the lack of signs of injury in that area including that an injury occurred up to the level of the hymen that has healed, that there were never any injuries or that nothing had in fact happened to the child. Dr Donald said that if the anus of a child is penetrated, generally speaking the examination will be normal, unless the child is seen very shortly after the penetration which did not of course occur in this case.
[7] Exhibit P10
Discussion
I have carefully viewed the recordings of S’s interview with the Child Protection Service and her evidence at the previous trial. I have no doubt that S was the subject of persistent sexual exploitation as alleged by the prosecution. The descriptions and demonstrations of those activities that she gave during the course of the CPS interview were compelling.
The timing of the events giving rise to the charge is somewhat obscure. The most compelling reason for suggesting that they occurred when S and her mother were at the accused’s house was the complaint that S made to her mother shortly after they left Whyalla. The terms of the complaint were a little difficult to follow in Ms R’s evidence and of course I did not see her give evidence. However it seems that whatever S conveyed to her mother, Ms R formed the view that the person S was complaining about was the accused and that she was complaining about things that had happened whilst they were living with him in Whyalla.

S told the CPS interviewer that these events occurred at “his place” which she then amended to “mine and his and my mum’s”. This is certainly capable of describing the accused’s residence. However, it appears S’s early life was somewhat transient. She and her mother travelled around quite frequently. They often lived with other people on a temporary basis. Indeed it seems clear that this was the situation shortly prior to moving in with the accused on this occasion.
S makes reference in her CPS interview to her mother going to hospital and it is an agreed fact that her mother went into hospital during the time they were staying with the accused. Ms R admitted having mental health and substance abuse issues and that she needed to go to hospital on this occasion for mental health issues. Whilst there is no evidence on this topic it may be that this was not her only period of hospitalisation. Further, S does not tell the CPS interviewer that these things happened when her mother was in hospital. She says on one occasion that her mother was asleep in bed. On another she says it happened in the daytime when mummy was “very tired”. S then says her mother was sick and had to go to hospital. The descriptions of the various events of touching however all seem to refer to her mother being present in the house but asleep.
From time to time during S’s early childhood Ms R was in a relationship. On one occasion this was a lengthy relationship with a man called “A” who S also called “Dad” or perhaps “Dad A”. Ms R had another daughter with this man. It seems likely from Ms R’s evidence that there were other men who came into S’s life as something of a father figure.
It appears from her evidence that Ms R was concerned on at least two, possibly three, prior occasions that S had been sexually abused and not by the accused. Likewise it is clear that there have been allegations of sexual abuse by her partner Mr L following these allegations against the accused. I do not say that the fact that S may have been abused on other occasions means that she was not sexually assaulted by the accused as alleged by the prosecution but rather it demonstrates the sad reality of S’s early life. She was in an extremely vulnerable position. The accused is not the only person she has known as “Dad”. He is not the only person who has had the opportunity to molest her at “his place”.
At first blush S’s identification of the person who gave her “yucky” touches as her dad E seems conclusive. However, later in the CPS interview she said that she was scared of the person who did these things to her because she had only “just metted him”. Plainly she had not just met the accused. Whilst her parents separated before her birth she knew that the accused was her father and saw him not infrequently. Whilst it is challenging to know precisely when this occurred there was even a period when she stayed with him on a week on week off basis.
When S was asked about this at the trial she agreed that she had only just met the man who had sex with her. She said that he told her to call him “dad” but that he was not really her dad. When asked what her real dad’s name was she said “E”. That evidence was given clearly and with no apparent confusion. Given that evidence, I cannot exclude as a reasonable possibility that some person other than the accused assaulted S.
Accordingly I find the accused not guilty of the charge.