R v PAustralian National UniversityCCIO - [2022] SADC 115

District Court of South Australia
(Criminal)
R v PANUCCIO
Criminal Trial by Judge Alone
[2022] SADC 115
Reasons for the Verdict of her Honour Judge McIntyre
21 September 2022
CRIMINAL LAW - PARTICULARS OF OFFENCE
The accused is charged on Information with one count of Aggravated Indecent Assault and one count of Gross Indecency.
Held: Acquitted of both charges
Criminal Law Consolidation Act 1935 (SA) s 56, 58(1)(a); Evidence Act 1929 (SA) s 12AB, s 13BA, referred to.

R v PANUCCIO
[2022] SADC 115

The accused was charged on Information dated 30 July 2021 with one count of aggravated indecent assault contrary to s.56 of the Criminal Law Consolidation Act 1935 (the CLCA), and one count of gross indecency contrary to s.58(1)(a) of the CLCA.
Both counts are particularised as having occurred at Glandore between 5^th December 2018 and 31^st July 2019. The complainant in respect of both counts is the same.
The accused entered pleas of not guilty and elected to be tried by a Judge without a jury. For the reasons that follow I find the accused not guilty.
Background
The complainant and her older brother lived in the care of their father, a single parent, at Glandore. The accused is a close friend of their father. There was an arrangement in place whereby the accused would look after the complainant and her brother from the time that they arrived home from school until the time their father finished work around 5:00 pm. This occurred on an almost daily basis over some years
It is the prosecution case that the charged events occurred on an occasion when the complainant was home alone with the accused. Her brother was elsewhere, and her father had gone to deal with his car which had broken down at Henley Beach. It is alleged that on this occasion that:
·The accused put his hands under the complainant’s t-shirt and started rubbing her chest area. This is the alleged indecent assault.
·The accused removed her pants and underwear; and
·The accused removed his own pants and underwear and rubbed his exposed penis in front of the complainant. This is the alleged gross indecency.
Elements of the offences
To prove the offence of aggravated indecent assault the prosecution must prove first that the accused assaulted the complainant. An assault is an intentional and unlawful application of force or violence to another person without their consent; however, as a child, the complainant is unable to consent to the type of touching alleged here. The second element that must be proven is that the assault was accompanied by or occurred in circumstances of indecency. The indecent circumstances must involve a sexual connotation. Finally, the prosecution must prove the aggravating feature that at the time of the offence the complainant was under the age of 14.
To prove the offence of gross indecency the prosecution must prove that the accused committed a grossly indecent act; that the act was committed in the presence of the complainant and that the act was committed when the complainant was aged under 16 years.
There is no dispute that the complainant was under the relevant age at the time each offence is alleged to have occurred: she is currently only 12 years of age. The contentious issue in each count is whether the accused acted as alleged. I am satisfied that, if he did, the touching of the complainant’s chest occurred in circumstances of indecency and that the act of masturbating in front of a child was grossly indecent.
Legal considerations and 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 the 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 and the proper approach to drawing inferences of fact.
·In this matter the accused chose not to give evidence. He was under no obligation to do so. I draw no inference from the fact that he exercised his right to silence at trial.
Prosecution case
The prosecution case consisted of evidence from the complainant and her brother; evidence from two of her schoolteachers, Ms Melissa Johns, and Ms Caitlyn Farrugia, and evidence from the investigating officer Detective Brevet Sergeant Chantelle Stone. In addition, several documents and recorded materials were tendered.
Vulnerable witness arrangements
The evidence of the complainant and her brother was admitted in two portions.
The complainant was interviewed at school on 28 July 2020 by Detective Stone, who is a prescribed interviewer, in the presence of Ms Farrugia and Ms Milne. She was 10 years of age. That interview was conducted under s.13BA of the Evidence Act. It was admitted into evidence before me (exhibit P1). The complainant also gave unsworn evidence and was cross-examined on topics the subject of a grant of leave at a pretrial special hearing conducted under s.12AB of the EA on 18 October 2021. She was 11 years of age. This was recorded and admitted into evidence before me (Exhibit P4).
The complainant’s brother was interviewed by Brevet Sergeant Stone on 7 May 2021 under s.13BA of the Evidence Act. He also gave sworn evidence and was cross examined at the s.12AB hearing. A recording of the interview (Exhibit P6) and his evidence from the s.12AB hearing (Exhibit P4) were admitted into evidence before me.
I direct myself that I may not draw any inference adverse to the accused from the making of these arrangements and I must not permit them to influence the weight to be given to the evidence of the complainant or her brother.
Complainant’s evidence
In the interview conducted by Brevet Sergeant Stone on 28 July 2020 the complainant said that she was in class when Ms Farrugia saw her looking unhappy and took her outside. They went to the quiet room, and she told Ms Farrugia the truth; specifically, that she was raped when she was 8. Detective Stone asked the complainant what she thought being raped means. She said:[1]
Well, I guess it means like when people like lock like close all the windows shut the door and start like taking your clothes off. I only learnt about it last year and I don’t remember anything, and I don’t feel comfortable like talking about when I was naked.
[1] MFI-P2 pg.7 [304-307]
The complainant was asked what happened when she was raped. She was home alone with the accused because her dad’s car broke down at Henley Beach and her brother was not at home. She said:[2]
…and then I was left alone with Luigi um but (her brother) wasn’t home at the time I think he was heading out with friends or something and then he told me to lay down on the couch in the living room and I tried to leave to go up to my bedroom because he’s not allowed to go up there and he’s um he started like taking my pants off and then I tried to pull them up and then he said just stop and just lay there and stop moving and then he took his pants and underwear off and then and then he started to like putting his hands under my T-shirt and then I got and then it got really uncomfortable
[2] MFI-P2 pg.6 [238-245]
She said she then ran upstairs and hid under her bed until her dad came home. She was asked what happened after the accused took his own pants and underwear off. She said that he started rubbing his private part. She explained that his private part was his penis. He told her not to tell anyone. Detective Stone then asked:[3]
QAnd you said that Luigi did take your pants down and his own pants off can you remember what happened next just after that?
ANo I don’t really remember so I guess I like forgot about it and then I started thinking about it again this year and I can’t really remember the full details, the middle of it.
[3] MFI-P2 pg.8 [329-334]
The complainant reiterated that she was raped when she was 8 and added that she was in Miss Milne’s class. She reiterated that this incident occurred when her dad’s car broke down at Henley Beach. Detective Stone then said:[4]
QHenley Beach and so you were at home and it was just Luigi yeah and he’s told you to go on the couch and then he put his hand under your top on the couch can you remember what happened then?
AHe started like rubbing his hands on my um boobs and then next then he took my pants off then he took his pants off and then he starred rubbing his private part.
QYeah and what happened then
AUm. And then like I guess he was just like and then he told me after not to tell anyone and then I got really like can’t it just.
QI know its hard and scary but you’re doing well describing it
AYou know I cant remember I don’t think he said anything but I cant remember the like everything that happened because I guess I like whenever I move on from my past I forget things like I just say oh don’t worry about the past but whenever I think about the past its like especially when this happened it’s just traumatising and its, it’s too scared to talk about it because I’ve only told . Well now I’ve probably only six people and it’s just too scary to come out about.
[4] MFI-P2 pg.9 [38-400]
A little later in the interview the complainant said that the accused started rubbing his penis “to try and get the milk out I guess”. She said he then put his hands under her shirt and “then he did that bit”. She was asked to explain what she meant. She said:[5]
Like he started rubbing like his hands on my boobs and I don’t really know what to do then or anything so I kind of just lay there like I just coz I think I had like a phone than but it didn’t work and I had um like I tried I guess I tried calling dad my dad but he said not to and then I like I tried I tried calling dad and I guess he wouldn’t let me see I guess he didn’t want anyone knowing about it and then he basically did the same thing was like that is what everyone else gets done at like 10 years old’s and stuff like sexually abuse me and stuff like it is just hard to talk about.
[5] MFI-P2-pg 9-10 [419-426]
At the end of the interview Detective Stone summarised as follows:[6]
QYeah, and he’s told you to lay down on that and that’s what you did and then you said he has placed his hands under your top and rubbed and he took your pants off and he took his own pants and underwear off and then he’s rubbed his private parts and you assumed that it was he was trying to get the milk out. Can you tell me what he did next?
AUm (lengthy pause) I guess um (silence) I forgot.
[6] MFI-P2 pg.12 [549-555]
The complainant said that the only time something had happened was this occasion when she was eight.
The complainant said she had told her dad earlier in the year of the interview in probably the third or second month. She said she told him that:[7]
Um I told him that Luigi had raped me when I was either and then he told me that he didn’t believe me so then I guess I kind of just ignored him for the rest of the night from that then probably like a couple of week a couple of days after that I told Avril……and then today I told Molly and Caitlin and Ms Mel
[7] MFI-P2 PG.13 [605-612]
In her evidence in chief at the pre-trial special hearing the complainant was asked about the two charged incidents. She said the accused rubbed her breasts by rubbing in between them. She said that nothing happened to his penis as he was rubbing it and no milk came out.
In cross-examination she was asked about the sequence of events in the loungeroom. The cross-examination proceeded as follows:[8]
[8] PTSH Tx [41 – 43]
Q.I'm going to ask you now about some of the things that you said to the policewoman Chantelle when you spoke to her last year, okay.
A.Okay.
Q.Now, do you remember saying this to Chantelle about what Luigi did -
A.Mm-hmm.
Q.- do you remember saying this: 'He told me to lay down on the couch in the living room'.
A.Mm-hmm.
Q.'And I tried to leave to go up to my bedroom, because he's not allowed to go up there, and he's - um, he started, like, taking my pants off, and then I tried to pull them up and then he said, "Just stop, and just lay there and stop moving", and then he took his pants and underwear off and then he started to, like, putting his hands under my T-shirt'. Do you remember saying all that to the police.
A.Yes.
Q.So is what you were saying to the police that after Luigi took his pants and underwear off, the very next thing he did was put his hands under your T-shirt.
A.Yes.
Q.Then a little bit later do you remember that you were being asked this question by Chantelle, the police officer: 'So you said that Luigi has told you to go on the couch, and he's taken your pants down and he also took his own pants and underwear off. Can you tell me what happened then?'
A.He started -
Q.Sorry, (Complainant’s name), do you remember that she asked you that question.
A.Yes.
Q.And did you say this to her: 'Um, then he, like, started rubbing his private part and then he told me to just not to tell anyone'. Did you say that.
A.Yes.
Q.And were you saying to Chantelle then that when he took his pants and underwear off, the next thing Luigi did was rub his private part.
A.Aha - yes, I mean.
Q.So now I'm going to ask you not about what you said to the police officer but what actually happened. When Luigi took his pants and underwear off, what was the next thing he did. Did he put his hands under your T-shirt or did he rub his private part.
A.He rubbed his private part.
Q.So at the beginning when you said to the police that the very next thing he did was put his hands under your T-shirt, you say now that's not right; is that right.
A.I think I made a mistake there. I think he put his hands under my T-shirt. I made a mistake.
HIS HONOUR
Q.When did he put his hand under your T-shirt. Tell me about that.
A.He started rubbing between the breasts.
Q.And when was that with respect to his penis. Was it before, or after, or at the same time.
A.It was before.
XXN
Q.So, (complainant’s name), just so I'm clear about that, you say that Luigi put his hands under your T-shirt before he rubbed his private part.
A.Yes.
Q.A little bit later do you remember whether you said this to the police officer: 'Well, apparently, like, I guess he - I guess he started rubbing his penis to try and get the milk out, I guess', and she said 'Okay. And is that what happened?', and you said 'And then he put his hands under my shirt and he did that bit'. Do you remember saying that.
A.Yes.
Q.And so was that a mistake when you said that about the order of things.
A.I think so, yes.
Q.Do you remember being asked this question by Chantelle, the police officer: 'He's told you to go on the couch and then he put his hand under your top on the couch. Can you remember what happened then?'
A.Yes.
Q.And did you say this to her: 'He started rubbing his hands on my, um, boobs and then next he took my pants off, and then he took his pants off and then he started rubbing his private part'. Do you remember saying that.
A.Yes.
Q.So did he rub his hands on your boobs before or after he took his pants off.
A.Before.
The complainant was asked about her telephone and whether she tried to call her dad using the phone at the time straight after the accused touched. She said she thinks maybe she had a phone but couldn’t use it because it had no sim card.
Between the time she says the accused touched her when she was 8 and the time she spoke to the police when she was 10 the accused did not touch her sexually again.
The complainant said that she learned the word ‘rape’ in class from a teacher, Melissa Johns, in a subject in year 4. She did not remember what the teacher told her the word meant.
The complainant’s brother
The complainant’s brother was interviewed by Detective Brevet Sergeant Stone on 7 May 2021. He was at the time 14. He said that he had known the accused for about 9 years and that the accused mostly came over to their home and looked after him and his sister when his father went to work. The accused would be there when he and his sister got home from school. The accused would watch T.V., he and his sister would come in and do homework upstairs. He got on with the accused, they never really had an argument. His sister had arguments with the accused over little things like not cleaning dishes or eating and making a mess. Nothing major. The tenor of what the complainant’s brother told the police was that the accused did not interact very much with the children whilst looking after them. He described the accused as his dad’s best friend and as a good friend. He did not notice a change in the relationship that the accused had with his sister.
His father had a SUV that broke down. He said he remembered one occasion when he wasn’t there, but he was pretty sure the SUV broke down when his dad was driving. The second time he is aware the SUV broke down was when his dad and sister went to her old primary school and it broke down on Henley Beach Road.
In his evidence at the pre-trial special hearing the complainant’s brother said that his father’s car was a Holden Captiva. He knew it broke down more than once, but he was not there when this happened. The second time it broke down was on Henley Beach Road. He does not know where he was on that occasion.
The complainant’s father
The complainant’s father separated from the children’s mother shortly after his daughter was born. He had sole custody of both children from early 2010. He identified the photographs taken by police of the home they were living in at the time of the alleged incident (exhibit P9) and explained the layout of his home by reference to those photographs. He said that the lounge room furniture had changed significantly from the time of the alleged incident to the date they were taken. Likewise, his daughter’s bedroom furniture had also changed.
The complainant’s father explained his working hours and the arrangement he had with the accused to look after the children when he was unable to do so. He and the accused were very good friends. They socialised with each other, and their families. The accused would be at his house most days. When he was working, the accused was there to keep an eye on the children until he got home from work. He had a set of keys to their house so that he would be there waiting for the children when they came home. The only rule was that the accused could not go upstairs. This did not just apply to the accused. Downstairs was the only place people would visit at his home.

He owned a Holden Captiva. It broke down on two occasions. The first occasion was at Blackwood in 2019 and the second occasion was on Henley Beach Road. Following the Blackwood breakdown, he was told that it was not repairable and so he cancelled the registration of the car. Exhibit P10 is a letter from the Motor Vehicles Registration Department dated 12 July 2019 confirming cancellation of registration and a refund of fees. He subsequently renewed the registration when he was told that the Captiva could be repaired.
The vehicle was repaired but again broke down on an occasion he took his daughter to a doctor’s appointment at Angle Park. After the appointment, they went to his daughter’s former primary school at Henley Beach to see her old teachers. After leaving the primary school they went to a bakery at West Beach. The car would not start up after they left the bakery. They caught a taxi home, arriving about 1:30 – 2:00 pm-ish. He telephoned for a tow truck and left home at around about 3:00 pm in a taxi to attend to his car. He left his daughter with the accused. His son was not there. The tow truck arrived at around 4:00 to 4:30 pm. The tow truck took the car back to his mechanic arriving at about 5:30 to 6:00 pm. The mechanic was closed but the vehicle was left there. He walked home. He arrived home in the dark and it was about 10 past 6 or so.
The mechanic contacted him the next day and told him that the Captiva was not fixable. He cancelled the registration again. The notification of cancellation of the registration and the compulsory third party insurance was tendered as exhibit P11. The effective date of cancellation was 29 August 2019. He believes he cancelled the registration of the Captiva earlier than that, but he did not hand in the plates until some time after the registration was cancelled. He thinks that he cancelled the registration about a month to two months after the Captiva “died”.
On an occasion after his car broke down at Henley Beach, he had a conversation with his daughter in the kitchen which he recounted as follows:[9]
[9] Tx [44-46]
Q.If you can tell her Honour as best as you can, and using the exact words, if possible, what did (the complainant) say to you about Luigi.
A.She said she didn't like Luigi anymore. It's pretty much the way she summed it up, she didn't like Luigi anymore. So I can't really, yeah, I'm assuming that's - the only part of the conversation I can remember, so yep.
Q.Did she tell you anything else about Luigi.
A.And she also did say that Luigi touched her, but then she went silent and ran off on me so. And every time I do ask her still, she still does the same thing so.
Q.I want to ask you about what you said that Luigi touched her, is that right.
A.That's correct, yes.
Q.Are they the precise words you recall (the complainant) using.
A.That's right, yes.
Q.Did she say anything else to you apart from that Luigi had touched her.
A.No, as I said, she won't go - yeah, she won't say nothing else than that so.
Q.Once she told you that, you said that she said 'I don't like Luigi any more' and that Luigi had touched her.
A.Mm-hmm.
Q.What did you say, if anything, and again I'll ask you to use the precise words if you can.
A.I did ask her again what did she mean by that, and as I said, she never really divulged anything else to me so.
Q.What were the words that you used.
A.I asked her to explain it to me but yeah, yeah, she couldn't explain it so, like she didn't want to say anything, she just ran off on me so.
Q.Apart from what you've already told us, did (the complainant) say anything else at that time.
A.Not that I can recall.
Q.When she told you about Luigi, are you able to remember what her demeanour or presentation was at that time.
A.Yeah, she wasn't happy, yeah, she didn't look happy anyway so.
Q.What do you mean by she didn't look happy.
A.(My daughter’s) a happy little girl, but when she was talking about Luigi, yeah, her demeanour changed, she was really cold, she just didn't, yeah, didn't want to talk about it.
Q.You said she didn't want to talk about it and ran away, is that correct.
A.That's correct, yeah.
Q.So am I right that nothing else was discussed between you two at that time.
A.No.
He pressed his daughter on a few other occasions, but she would walk off and would not talk to him about it. When she told him that the accused had touched her, he thought that it was in the context of a game that he knew about where the accused had accidentally pulled her pants down.
He described his daughter changing in her behaviour towards the accused in 2019. She appeared uncomfortable around the accused and did not want to be at home with him on her own. She didn’t talk to him and didn’t really say hello.
In cross-examination the complainant’s father was asked about the bed that his daughter had at the time in 2019. He described it as a metal frame bed which was about 5 inches from the floor. There was a box underneath the bed of about 38 cm wide. His daughter did not have a phone at the time. He described his daughter in 2019 as being tiny. She had not developed any breasts at age 8 or 9.
He was asked about the breakdown of his car and the occasion when the car broke down at Henley Beach. He was asked whether it occurred at about 10:00 in the morning. The complainant’s father said it was around 10:00 to 10:30. He did not think it was school holidays. He came home, rang a tow truck and then he caught a taxi back. As he left, he told the accused he wouldn’t be long. When he arrived back at the car the tow truck was already there. He thought it was in the afternoon when he left and that he didn’t get back until 5:00 – 5:30 pm. It was getting dark when he came back. It was suggested to him that it was sooner than that. He did not respond to that question.
The complainant’s father was taken to his statement to the police dated 29 July 2020. He agreed that he did not mention Henley Beach to the police, but he did describe a breakdown of his car at Blackwood in around July 2019 in which he described coming home by tow truck. He told police that, on this occasion when he returned home the accused, his son and daughter were all at home and his daughter said something to the effect that the accused had pulled her pants down and started laughing. His son said that they had been mucking around playing chasey and the accused had pulled his sister’s pants down. He also told the police that his daughter had not mentioned anything else about this incident and she had never used the words ‘rape or sexual assault’. He agreed that he did not tell police that his daughter had told him that the accused has touched her and then she would run away and wouldn’t tell him anything else. He then gave evidence as follows: [10]
[10] Tx [72-74]
A.Well, in late, in mid 2020, yeah, she did actually start coming out with that. So that was, yeah, pretty much the same time as, yeah, just after this one we're assuming that it would have been.
Q.So you're saying she told you, for the first time about touching, after you've given the statement to the police.
A.After I had given the statement to the police, (the complainant), yeah.
Q.So before you gave a statement to police she had not told you anything about Luigi touching her, or anything like that.
A.Not that I can - I can't remember the date that she actually started saying that to me, so. It wasn't something that had stuck in - that was in my mind when this happened so. I can't remember. I can't remember the dates that she started saying that to me so.
Q.Well, you told her Honour this morning didn't you that -
A.I'm pretty sure it happened before I done this. I'm pretty sure it was before I done this but I can't - yeah, yeah, as I said, I can't remember why I didn't put it on this statement so.
Q.No. Because you see, you've told her Honour your daughter was telling you not once, but a number of times -
A.She did say it a number of times that she didn't like Luigi, more, she didn't like Luigi, and yeah she didn't want to be with Luigi. That's the only thing that just come out, and I used to ask her why and she never answered me so.
Q.At that time she was not telling you that he'd touched her, is that correct.
A.That's correct, yes.
Q.So by the time you had given the first statement to the police she had not told you anything about him touching her.
A.No, not till after she come out at the school, and that was it so.
Q.Did she ever say to you words to the effect 'Look, I wish Luigi wasn't home all the time, we never get any peace.'
A.Yes.
Q.She used to say that.
A.Yeah, she said that a couple of times.
Q.Why is Luigi always here, why can't I be home alone or with the family.
A.Yes.
Q.I'm not saying she disliked him, but she just wished he wasn't there all the time.
A.Yeah.
Q.That's what she's telling you.
A.That's what she told me, yes. And that was in 2020, that wasn't in any other time.
Q.So then she was saying that before you gave a statement to police, the first statement.
A.I can't remember, I'm not a hundred percent sure, so I can't remember. I don't know.
Q.But at the time that police first spoke to you, what stuck out in your mind was the time that they told you about the pants being pulled down and playing chasey.
A.That's correct, yes.
Q.That's what stuck in your mind.
A.Yes.
Q.There's nothing else that had been said to you that caused you any concern until that time, correct.
A.No.
In re-examination he agreed that his daughter often went under her bed and that she would fit very easily underneath it. He was asked about his time estimates in relation to the Henley Beach incident. He never wears a watch. His recollection is that he went back to his car in the afternoon but cannot remember what time it was. He thinks it was after or near 3:00 o’clock when he went back in the taxi but that is just an estimation. He was not sure of the time he dropped his car off at the mechanics and then walked home but it was dark when he walked home.
He was asked about the timing of his daughter’s complaint, and he gave further evidence as follows:[11]
[11] Tx [80]
Q.However, now in questions from Mr Apps you're saying that that conversation didn't occur until after (the complainant) had spoken to police.
A.I don't know whether it occurred before or after, I can't remember the times or the date, yeah, when that happened so. I'm, yeah I apologise, I just can't remember the dates, I know it was in 2020, but I'm pretty sure it was after Christmas but I can't remember so.
Q.To be clear, (the complainant) spoke to the police on 28 July 2020.
A.That's right.
Q.Your evidence is that that -
A.I reckon it happened just before it, just before (the complainant) gave evidence to the police. I reckon it was in June, June or somewhere around there when she actually come out and said it so.
Q.When you said to Mr Apps a moment ago that it occurred after she spoke to police, is that incorrect, is that, or you just don't know.
A.I just don't know, I just can't remember the dates, and I just can't remember the time that she come out and said it so.
Q.But it could have been before she spoke to police on 28 July.
A.I believe in myself that it was before she spoke to police so.
Q.But that's something you're not certain of.
A.I'm not a hundred percent certain of it, no.
Q.Is there anything that occurred that you can recall around the time of that conversation with (the complainant) that would help you assist when that conversation occurred.
A.No, no I can't remember, no.
The complainant’s teachers
Ms Melissa Johns is a teacher and has been at the Blackforest Primary School for some five years. She taught the complainant, as a year 4 student, in 2019. She explained the child protection curriculum and the aspects that were taught in year 4. An overview chart was tendered during her evidence which she explained. She explained what was taught in the complainant’s class during 2019. At no point during 2019 did she use the term ‘rape’ in class, nor did she teach the children about ejaculation.
She described the complainant as a very sweet little girl, well liked by everybody but relatively quiet and shy. She had been diagnosed with a global delay, that is at a young age she did not meet all her milestones. Specifically, she had difficulty hearing and recognising instructions. For that reason, the complainant had student services officers who would assist her by giving clear specific and direct instructions that would be repeated to her often. Her learning difficulties were more directed to her written work than her oral work.
In cross-examination Ms Johns gave evidence of the complainant’s friendship with a boy who had what she described as an extensive trauma background which Ms Johns had advanced as a possible reason for the complainant using the word rape when she spoke to police.
Ms Caitlyn Farrugia gave evidence that while she is now a teacher, she was previously a student support officer at Blackforest Primary School and that she worked with the complainant starting in 2018 and subsequently. She explained what she did as a student support officer and spoke of a particular day in 2020. She went into support the complainant in class after recess. She sat with her for about 10 minutes whilst the teacher did some teaching and then they had to do a group task. She noticed that the complainant was very withdrawn from her group task. Her friend asked her to do a part of it and she didn’t want to which was very unlike her. Ms Farrugia noted she looked quite upset and asked if she was okay. She didn’t answer and so Ms Farrugia asked her if she wanted to go outside for a chat. They went outside and she still looked very upset and sad. She said that it was a private matter and that she didn’t feel comfortable talking about it. Ms Farrugia reassured her and asked her if something had happened with her friends or at home. She said yes to home and that something had happened at home. She started crying so they went to a room where they could be more private. She was crying and her body language and mannerisms were not her usual self. She had her hands over her face and her head pressed into her knees hiding her face. Ms Farrugia then gave evidence as follows:[12]
[12] Tx [104-105]
Q.What if anything did (the complainant) say when you were in that room.
A.(The complainant) said that she remembered a memory at recess that still affects her. And I asked her what the memory was about. And she said two years ago, when she was in year 3, that their family car was broken down, and her dad had to go to Henley Beach to pick it up, and she had to stay at home, and her dad's friend Luigi was at home, and her brother was at his friend's house, and she asked dad if she could go to Henley Beach to get the car and dad said no, she had to stay at home. So, it was her and Luigi at home, and she said Luigi raped her.
Q.What was (the complainant’s) demeanour as she was saying these things to you.
A.Very kind of nervous, upset, crying, still head down. She was very upset and very nervous, yeah.
Q.You said that before she was hiding her face with her hands; is that correct.
A.Yes.
Q.When she was telling you those things that you've just told her Honour, what was she doing, if anything, with her hands at that time.
A.I can't 100% remember, sorry.
Q.Do you remember if she was hiding her face or she wasn't.
A.There were periods where she was hiding her face and then she would put her face up and hide it again, but I can't remember at specific points in the conversation whether she had her head up or down.
Q.As a result of her telling you these things, what did you say, if anything.
A.I said 'Thank you for sharing' and I asked her if it was okay if I went and got Mrs Milne, Mel Milne, who was our school wellbeing leader, to come in and have a chat to us and work out what to do next.
Q.What did you do next.
A.First (the complainant) said that she was okay with getting Mrs Milne, but she didn't want to get into trouble. Because it was dad's friend, she was worried that dad would be angry at her, and I expressed that I didn't want her to get into trouble either and that we would do what we could and I went and got Mel.
Following this the school called the police who attended and spoke to the complainant in the presence of her and another teacher. Ms Farrugia said that she had never seen the complainant behave like this on any previous day in 2018 or 2019. They never discussed the word ‘rape’ or ‘masturbation’ or anything like that.
Investigating Officer
Detective Brevet Sergeant Chantelle Stone was the investigating officer. She was notified of the complainant’s allegations on 28 July 2020. She attended at the school around about 17:21 hours where she spoke to the complainant and recorded the interview; exhibit P1. She arrested the accused on 16 September 2020 and during his arrest the video camera was activated. That video was played in court (exhibit P13). The accused denied the allegations.
Several documents were tendered through Detective Stone, specifically a plan of the complainant’s home (exhibit P15), the complainant’s birth certificate (exhibit P16) and the complainant’s enrolment history at primary school (exhibit P17). She contacted the paediatrician that the complainant attended with her father. There was an appointment on 24 July 2019.
Discussion
The prosecution case rests entirely on the evidence of the complainant. There are no independent witnesses to the alleged offending. There is no forensic or medical material to support her evidence. I must be satisfied of the complainant’s evidence beyond reasonable doubt if I am to convict the accused. If I accept her evidence, then it is evidence upon which the accused could lawfully be convicted of the charged offences.
The complainant ties the charged offences to the breakdown of her father’s car at Henley Beach following a doctor’s appointment. The complainant was left home alone with the accused whilst her father went to arrange the towing of the car. Despite the lack of precision of the father’s evidence as to timing, I am satisfied that there was sufficient time for the accused to act in the way alleged by the complainant. The question is whether I can accept the complainant’s evidence about what occurred whilst her father left to await the tow truck beyond reasonable doubt.
I found the complainant to be an impressive witness in many respects. The manner in which she gave her evidence was compelling, her demeanour was appropriate, she spoke cogently and coherently. Much of what she said had the ring of truth. Despite this, I am troubled by several aspects of her evidence. These aspects include, but are not limited to, issues about when the charged incidents occurred, the timing and terminology of any complaint to her father and the sequence of events.
I am satisfied that the breakdown at Henley Beach was on 24 July 2019. This is consistent with the evidence given by the complainant’s father and the date of the medical appointment. This date does not however sit comfortably with the complainant’s consistent evidence that that the accused “raped” her when she was 8 in Mrs Milne’s class or her complaint in 2020 to Ms Farrugia that it occurred “two years ago” when she was in year three. The complainant was 8 in 2018 and she was in Ms Milne’s year 3 class. On 24 July 2019, the complainant was 9 and she was in Ms Johns’ year 4 class. Whilst it is understandable that a child might get the year wrong it is less likely in my view that she would get her year level and class teacher wrong. On a related topic, the complainant also said unequivocally that she had learnt the word “rape” at school from a teacher in the subject in Year 4 and that the teacher was Melissa Johns. Ms Johns and Ms Farrugia rejected that proposition saying that they did not and do not use that word.

Another area of concern is the evidence of the complaint to her father. The complainant said, in about the third or second month of 2020, she told her father that the accused “raped” her when she was 8. This is the same terminology that she used to her teachers and police. I accept that this is how the complainant describes the incident albeit it is not an accurate term for the activities described. I consider that if she complained to her father, she would likely have used the word “rape” to describe what happened. The complainant’s father’s evidence does not support her evidence. He gave evidence of a complaint about touching. If the complainant complained to him using the word “rape” it is extraordinary that her father was so imprecise about when the complaint was made and did not take any action in relation to that complaint. His evidence is also very unhelpful as to the timing of the complaint about touching, ultimately conceding that it may have been made after the involvement of the police. I cannot therefore be satisfied that the complainant made a complaint to her father prior to the police report.
Perhaps the most troubling aspect of the complainant’s evidence is her description of the acts that form the basis of the charge. I have set these out in detail above. The sequence of events, the touching of her chest under the T-shirt, the removal of her pants and underpants, the removal of the accused’s pants and underpants and the rubbing of the accused’s penis changes in virtually every re-telling. This is not a situation where there has been protracted abuse over several weeks, months or years where complainants are understandably unable to be precise about details. This is a one-off and quite singular event. Even making allowances for the distressing nature of these allegations and the complainant’s youth, these discrepancies are not minor matters.
To state the obvious, my task is to consider all the evidence and determine whether or not the prosecution has proven each element of a charged offence beyond reasonable doubt. Whilst I am suspicious, indeed strongly suspicious, that the accused did engage in inappropriate sexual behaviour towards the complainant on the occasion her father’s car broke down at Henley Beach, he ought not to be convicted of indecent assault or gross indecency in circumstances where I remain uncertain about critical aspects of the complainant’s evidence. Despite my reservations, I do not consider that the prosecution has discharged its very high burden of proving the charges beyond reasonable doubt, and I acquit the accused of both counts.