R v P, R
[2019] SADC 32
•22 March 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, R
Criminal Trial by Judge Alone
[2019] SADC 32
Judgment of His Honour Judge Barrett
22 March 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with two counts of Aggravated Indecent Assault against two girls aged about six or seven. They were friends of the accused's niece and would visit his house to see her.
Held: The accused is Guilty of Counts 1 and 2.
R v R, PA [2019] SASCFC 19; Hoch v The Queen (1988) 165 CLR 292, considered.
R v P, R
[2019] SADC 32
The accused is charged with two counts of aggravated indecent assault. The charges were heard in the absence of a jury. The accused is alleged to have indecently assaulted two girls who were friends with his niece. The girls would visit the accused’s house to see his niece who was frequently there. The accused’s house was next door to the primary school attended by all three girls. The girls were each aged about a year apart and were in three successive grades at school. The niece, CP, was born in February 2000, the second complainant, CB, was born in June 2001 and the first complainant, NP, was born in March 2002.
The offending against each girl is alleged to have occurred on the two single, separate occasions. The evidence tends to suggest that the alleged offending occurred in 2009. In that year the niece turned nine, CB turned eight and NP turned seven. In the event that the indecent assaults are proved beyond reasonable doubt, the ages of the complainants make out the aggravating factor.
Count 1 – Aggravated Indecent Assault – NP
NP was born in 2002. She was almost 17 when she gave her evidence. She was in year 12 at school. She attended the primary school next door to the accused’s house between April 2007 and April 2009 (P1, Agreed fact 9). She became friends with the accused’s niece, CP, who is two years older. She said that although CP lived with her grandmother, CP spent a lot of time at the accused’s house. The accused occupied the house with his partner Joanne. The couple had a baby, T. The date of birth of T is controversial in the trial and has some bearing on the timing of the alleged offending. In his evidence the accused said that T’s date of birth is the 10th of October 2008. That would make him 10 at the time the accused was giving his evidence (the 5th of February 2019). Notwithstanding the accused gave the date of birth as October 2008, he insisted that T was aged nine. Other evidence suggests that T’s date of birth is likely to have been in October 2008 and that NP and CB were visiting the accused’s house in 2009, when T was a baby. I will return to that evidence, and its significance when I consider the accused’s evidence. I should add that NP makes no mention of seeing T when she went to the accused’s house. When asked if anyone apart from the accused and his partner lived in the house at Aidis Court, Port Lincoln she said ‘not that I know of’.[1]
[1] T12.
NP says that there was an occasion when she entered the accused’s house with CP. She says she saw the accused on his bed. She saw him playing with his penis. He was reflected in a mirror in his bedroom. This evidence was led as an uncharged act for the purpose of demonstrating that the accused was willing to engage in sexual behaviour in front of the two girls particularly, for the purpose of count 1, in the presence of NP. However that evidence only has evidentiary weight if it can be shown that the accused was aware of NP’s presence. If he was not aware of her presence the incident is of no evidentiary value. I ignore this evidence because NP did not know whether the accused was aware of her presence.[2] In addition, CP makes no mention of the incident. My ignoring this evidence does not detract from NP’s credit. I do not reject her evidence. I only reject its probative weight. I do not draw any inference adverse to the accused arising from this evidence. I accept that he may have been completely unaware of the presence in the hallway of the two girls.
The offending the subject of count 1 is alleged by NP to have occurred on the occasion of another visit she paid to the accused’s house. This time she says that although she went to the accused’s house to visit CP, she did not know where CP was when she was in what she describes as the accused’s game room playing on a PlayStation. Comparing NP’s handwritten floorplan of the accused’s house (P4) with a builder’s floorplan (P3) the room NP describes as the game room corresponds to bedroom 2 (NP nominates bedroom 1 as the accused’s bedroom but makes no reference to bedroom 3).
NP says that she was sitting on a couch operating the PlayStation when the accused sat down next to her. He pushed his hand towards her ‘private area’ then
proceeded to unzip the zip of my shorts and place his fingers inside, but there was a protective layer underneath my shorts where the zip was so you couldn’t actually access into the shorts.[3]
She further described the clothing by saying “there was stitching underneath the zip, that if you undid the zip you couldn’t access anything.” NP said that she sat there, shocked and scared, and continued playing the PlayStation game because she did not know what to do. The touching stopped when someone knocked on the front door. NP says that after a few minutes she got up and left the house via the front door. She said that as she was leaving she said nothing. She could not remember whether the accused said anything. There is no evidence of NP telling anyone about what the accused did. There is no evidence of complaint.
[2] T19, 27.
[3] T20.
There is however evidence elicited from NP in cross-examination that before she reported the offending to the police in about August 2017, CP rang NP and spoke to her on the topic of the accused sexually offending against CP. There is some uncertainty about exactly what each said to the other.[4] The following matters appear reasonably clear:-
[4] T30-32.
1NP had not told anyone about the alleged offending until CP rang her sometime in 2017.
2During that phone call CP told NP that the accused, her uncle, had sexually offended against her and she was going to report it to the police.
3CP asked NP if the accused had offended against her. NP said he had.
4CP either asked NP if she would be willing to tell the police what the accused had done to her (NP) or told her she should go to the police.
NP gave evidence that while she told CP that the accused had sexually offended against her she did not go into details.[5] It should be noted that NP does not say she knew anything of any sexual impropriety by the accused towards CP, or for that matter, CB. In my view that tends against any suggestion that there has been collusion between NP and either CP or CB.
[5] T31.
There is no independent evidence supporting NP’s evidence of the offending. The accused himself however confirms that NP visited his house but he denies the offending. I will turn to the accused’s evidence about NP’s visits when I consider his evidence.
Count 2 – Aggravated Indecent Assault – CB
CB was born in 2001. She was 17 and a half when she gave her evidence. She is in year 12 at school. She says that she was seven and a half or eight when she moved to Port Lincoln. She went to the primary school next door to the accused’s house. Although she was about a year younger than the accused’s niece CP and was in the school year below her, they became best friends. CB lived with her grandparents. CB thought that she met the accused at her grandparents’ house.
CB said that she would visit the accused’s house a couple of times a week to visit CP who was often there. She visited the accused’s house over a period of a couple of months. She said the accused lived with his partner who was not always home when she visited. She said the couple’s baby T also lived there. At the time of her visits she said T was ‘real little’.[6]
[6] T42.
CB said that when she visited CP at the accused’s house they would play on the accused’s computer. The computer was in the accused’s bedroom. They played on the computer a couple of times a week.[7]
[7] T47.
CB described an occasion when she went to the accused’s house to see CP but she was not there. When she knocked on the door the accused invited her in. He said that he had something he wanted to show her. She went with him into his bedroom where he sat down at the computer. She said she stayed there for 5-10 minutes while the accused showed her computer games. He engaged her in conversation about school. She could not remember whether she was standing next to the accused or whether she sat on his knee. After the 5-10 minutes she said that she had to go because her mother wanted her home and she was going to try to find CP. The accused walked with her towards the front door. As she went to walk out of the home the accused lifted her up against the wall, pushing his weight against her, and touched her on the upper thigh.[8] He was touching her skin. CB says that she pushed the accused’s face and ran away. She was not aware of the accused saying anything. She thinks she told him to go away. She said she was scared when she ran away and did not know what to do.
[8] T51-52.
She said a few days later she went back to the accused’s house because ‘we’ had a sleepover.[9] She agreed in cross-examination that she had subsequently gone to the accused’s house with CP ‘for sleepovers and that sort of thing’.[10]
[9] T52.
[10] T63.
CB did not tell anyone about what the accused had done until she spoke to the police in March 2018. She said she did not appreciate the inappropriateness of the accused’s conduct until she was ‘maybe 12’. She would have turned 12 in mid-2013.
The report to the police in 2018 came about because a police officer approached her ‘about [CP’s] matter’.[11] She said a couple of days after she spoke to the police officer CP contacted her to see how she was. She said she and CP had a falling out at some stage although ‘we’re talking again now’.[12]
CP’s evidence
CP was born in early 2000. She gave evidence, not about the alleged offending by the accused, but about biographical matters. She was a few days short of 19 when she gave her evidence. Her mother is the accused’s younger sister.
CP says she grew up in Port Lincoln. She was aged two when her grandmother obtained custody of her. She attended the school next door to the accused’s house until years 3 or 4. She said she moved to Queensland around Christmas time in 2009 or 2010. She said that when she went to Queensland on that occasion (she has been to Queensland more than once) the accused accompanied her and such of her family as went with her.
CP says that before she went to Queensland on that occasion she would go to the accused’s house, next to the school, at least once a day. She said that T had been born at that time and he had a bedroom of his own.
CP said the accused had a desktop computer in his bedroom. She said at one stage the computer was in T’s room.
[11] T65.
[12] T66.
CP said that she was friends with NP and CB. Sometimes she would visit the accused’s house with the two of them. CP said that in recent years she had a conversation with NP about going to the police. I reproduce her evidence on the topic of going to the police:-
QIn the last few years have you ever had a phone conversation with NP about going to the police.
AYes.
QCan you remember what you said to her.
AI said to her 'Do you remember what happened?' and she said she did. We didn't go into any detail about it, and I said 'I might go to the police about it' and we didn't really go any further than that.
QSorry, did you say that you said you might go to the police.
AYeah.
QDid you ask her to do anything.
ANo, definitely not.
QHad she told you anything prior to that that caused you to speak to her.
ANo.
The accused’s evidence
The accused is 37. He and his partner have a son, T. The accused said forcefully that T is aged nine but he also said that T’s date of birth was on the 12th of October 2008 (T’s date of birth is not among the agreed facts). The accused said he moved into the house next door to the primary school in April 2008 and he lived there for only six months. If the accused’s evidence about T’s date of birth is correct, T would have been born at about the time the accused moved out of the house next door to the school, yet the accused says that T lived with him in that house. The accused’s addresses are among the agreed facts. I reproduce agreed facts 6 to 8:-
6. The SA Housing Authority provided private rental assistance to the accused to live at the following addresses between the following dates:
a. 9/112 London St, Port Lincoln SA 5606 (from 27 March 2007 to March 2008); and
b. 16 Aidis Ct, Pt Lincoln SA 5606 (from 4 April 2008 to an unknown date).
7. The accused advised the SA Housing Authority on an unknown date in 2008 that he was residing at his father’s public housing flat at 2/40 Flinders Hwy, Port Lincoln SA 5606.
8. The accused next advised the SA Housing Authority of his address on 2 December 2009 at which time he reported that he lived at a caravan park at 20 Rayview Rd, Ipswich QLD 4305.
Agreed fact 8 suggests that the accused moved to Queensland in December 2009. Agreed fact 11 suggests CP relocated from the Port Lincoln school to a Queensland school in December 2009. Those two agreed facts, combined with CP’s evidence, suggest strongly that the accused, with his family, went to Queensland in December 2009, the same time as CP and her family.
That however is denied by the accused. He says he moved to Queensland in 2017.[13] When asked where he was living in 2010 he said ‘everywhere… South Australia somewhere…’[14] He explained Agreed fact 8 by saying that he told the Housing Authorities in December 2009 that he was living in a caravan park in Queensland as ‘a scam… to get another bond’.[15]
[13] T115.
[14] T115.
[15] T115.
The agreed facts as to school enrolment (Agreed facts 9 to 11) suggest that all three girls were enrolled at the primary school next to the accused’s house between January and April of 2009. That is the only period when all three were enrolled at the school.
The accused denied the allegations made by NP and CB of sexual offending. Effectively he denies living at the address between January and April of 2009, but on the other hand, he acknowledges visits to his house by his niece, CP and both complainants.
In fact he said a lot of school children would visit his house. Visits by schoolchildren to his house were so numerous that he said neighbours complained to him about it. He gave a very convoluted explanation of those complaints.[16]
[16] T90-103.
In relation to visits by NP the accused said this:-
AShe used to come around, eat all me food and all that, like try and scab money off me and yeah, just wouldn't leave me alone, just kept coming around.
QWould she come on her own or in a group.
ASometimes she'd come on her own.
QHow often would she come around.
ANearly every day.
He said CB came to his house before she knew CP.[17] She ‘would hang around the front’. She would sometimes come with NP. There were ‘a couple of times’ that the accused was alone at the house with CB.[18]
[17] T87-88.
[18] T89.
The accused denied that he ever possessed a computer at the time the girls would visit. He said that he did not possess a computer until 2018 when his sister gave him a laptop computer.[19] The only electronic device he had at the time the girls were visiting him was an Xbox.[20]
[19] T85.
[20] T86.
In cross-examination the accused elaborated on his criticisms of NP.[21] He said she would eat his food and ask him for money to buy mobile phones. He denied giving her money despite her trying to ‘scab money’ off him. When asked whether his partner was present during this behaviour by NP, he replied that she was ‘hopeless… hasn’t got a backbone to say no’.[22] He said NP came to his house nearly every day for six months.
[21] T105-108.
[22] T106.
Separate consideration / Cross-admissibility / Collusion
I must give separate consideration to the evidence of each complainant. The complainants are making allegations of quite separate offences, albeit that I find that they are most likely to be speaking of events which occurred between January and April of 2009, the only three months during which all three girls were attending the school next to the accused’s house.
Nevertheless the complainants’ evidence may be cross-admissible in one respect. Despite the different nature of each allegation (NP alleges non-violent touching where CB alleges a somewhat violent touching) their evidence is capable of demonstrating that the accused had a propensity for sexual attraction to pre-pubescent girls who visited his house and he was willing to act upon it to the extent of limited touching. That is the only permissible use of the evidence of one complainant when considering the evidence of the other. Any other use would be impermissible. I do not use the evidence in any other way.[23]
[23] R v M, BJ [2011] SASCFC 50 at [62].
The evidence of the two complainants is only cross-admissible in this way if I find that there was no collusion between the two girls.[24] In fact I so find. The very difference between their accounts of the alleged offending suggests they have not colluded. Further, I accept that neither gave any details of the alleged offending to the other.
[24] Hoch v The Queen (1988) 165 CLR 292.
Evaluation of witnesses
The accused
I treat the evaluation of the accused’s evidence in the same way as I do that of any other witness. I bear in mind that he did not have to give evidence. Although there might be a question about whether I should give myself a forensic disadvantage warning,[25] I conclude that I should do so. The trial is taking place some 10 years after the alleged offending. If more timely complaints had been made the accused would have been in a better position to recall events. He might have been able to call witnesses to assist his defence. Even bearing those disadvantages in mind I found the accused to be a completely unsatisfactory witness.
[25] R v R, PA [2019] SASCFC 19 at [85].
For reasons that are not clear I find that the accused actually lied about not moving to Queensland in December 2009. The evidence that he did move then is compelling. The motive to lie is difficult to appreciate given that the accused admits that both complainants visited his house frequently and on a couple of occasions he was alone in his house with CB.
I find that the accused’s account of NP’s visits was an attempt by him to blacken her character. His references to her scamming him were gratuitous and purposeful. I note that none of his more egregious allegations were put to NP.
My adverse findings about the accused’s credit do not determine the case. I reject the accused’s denial of the sexual allegations but that does not prove that the allegations are true. I must determine whether I accept beyond reasonable doubt the evidence of each complainant.
Further evaluation of the evidence of NP
I find NP a credible witness. While there are aspects of her account which I think are mistaken, for example her belief that she was eight when visiting the accused, and I accept that she was unable to give an account of events surrounding the alleged offending, nevertheless I find her a truthful witness. She made no attempt to suggest any violence on the accused’s part or any attempt by him to prevent her complaining. I find compelling the detailed reference to the inner lining of her shorts preventing the accused accessing her skin. I would have accepted her account of the offending without reference to the evidence of CB about the incident involving her.
I find beyond reasonable doubt that the accused touched NP in the way she says he did. He touched her for a sexual purpose. He unzipped her shorts and placed his fingers inside her shorts in the area of her vagina. His fingers did not touch her skin because of the inner lining of the shorts. His touching her in that way constituted an indecent assault. She was under 14 at the time. I find that she was aged six or seven.
Evaluating CB’s evidence
I found CB a credible witness. She gave her evidence in a straightforward fashion without any exaggeration. She alleges a somewhat violent touching of her on the upper thigh but she does not suggest that the accused made any contact with her genitals. However the forceful manner in which he lifted her and the touching on her upper thigh clearly indicate that he had a sexual purpose. I find that the touching was indecent. Like NP, CB does not suggest that the accused told her not to tell anyone. I find that she did not in any way exaggerate what happened to her. I find beyond reasonable doubt that the accused indecently assaulted CB. She was under 14 at the time. I find that she was aged seven.
Verdict
Count 1 - Aggravated Indecent Assault – Guilty
Count 2 – Aggravated Indecent Assault – Guilty.
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