R v Persico - [2010] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PERSICO
Criminal Trial by Judge Alone
[2010] SADC 106
Reasons for the Verdicts of His Honour Judge Rice
12 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Allegations of an indecent assault on one occasion and an allegation of indecent assault and unlawful sexual intercourse on a separate occasion - accused gave evidence - complainant and accused reasonable witnesses - no basis to reject accused's evidence - prosecution has not proved its case beyond reasonable doubt - verdicts of "not guilty" on all counts.

R v PERSICO
[2010] SADC 106
Introduction

The accused is charged with three offences of a sexual nature. Count 1, an indecent assault, is alleged to have happened at Windsor Gardens on 1 December 2007. It is alleged against the accused that he put his hands up a swimming rash vest being worn by the complainant, and touched her left breast. The complainant was then aged 15 years.
Counts 2 and 3 are both alleged to have happened on the same occasion on 25 March 2008, also at Windsor Gardens. The complainant was still aged 15 years. On that occasion it is alleged that the accused initially indecently assaulted her by touching her under her clothing around the area of her vagina (Count 2) and then inserted his fingers in her vagina (Count 3).
The complainant is the accused’s step-granddaughter. The accused is the father of the complainant’s step-mother.
Alleged factual circumstances
The complainant lived with her father and step-mother, plus a brother, in a house at Windsor Gardens. The complainant had her own bedroom which was completely detached from the main house.
The accused and his wife (the accused having re-married in about 1977) visited the home of the complainant’s parents over the years on family and special occasions. Similarly, the complainant and her parents visited the house of the accused. In addition to that, the accused’s wife performed paid cleaning work at the complainant’s home. The accused also did odd jobs there.
It is common ground that, on Friday, 30 November 2007, the complainant’s father and step-mother went to Sydney for the weekend. The accused stayed the weekend to babysit the complainant and her 10 year old brother. He arrived on the Friday afternoon and was proposing to stay until late on Sunday.
The complainant alleges that, on the Friday night, while she was using the computer which was set up in the lounge room, the accused asked her whether she was looking at pornography. The complainant said that she was not doing so and that she was not “pervee”. The accused is alleged to have said that it was not about being “pervee” and that he would show her some later.
The only other topic of note on that Friday night was that the complainant discussed her interest in a television and book series known as Hellsing, with the accused. The complainant said that the author’s latest book was late being released and said that was because the author “was playing with himself”. She alleges that the accused then asked her whether she masturbated. The evidence does not disclose whether she answered that question.
Moving to the Saturday, the complainant said she went by the O-Bahn bus to Tea Tree Plaza and hired some Hellsing DVDs that she had ordered previously.
On the Saturday afternoon, the complainant went swimming in the pool by herself. She said her brother was inside playing video games. She said when she got out of the pool she sat on the edge with her feet in the water. She said the accused came and sat next to her, hugged her and said she was a good swimmer. She alleges the accused, in rubbing her back, put his hands up her rash shirt and touched her left breast. She said she was scared and confused, pulled away from him and said she was not comfortable being touched like that. Nothing more came of the incident. It was not the subject of any complaint until after the events alleged as Counts 2 and 3. She said she was scared of telling and scared of the accused.
The complainant said that, on the Saturday night, she watched DVDs comprising 13 episodes of Hellsing. She said the accused watched over half of them before going to bed.
The accused stayed on the Sunday also, giving the complainant and her brother dinner before he left to go home. The complainant says she asked for a second serving of pasta, which prompted the comment from the accused that “…he liked a woman with a healthy appetite and that he thought it was sexy” (TP17). He is alleged also to have patted her on the backside.
As to the background leading up to the allegations in Counts 2 and 3, the events are said to have occurred on 25 March 2008. It was a school day and the complainant’s father and step-mother were both at work. The complainant and her brother walked home together from a nearby school. When they arrived home at about 4.00 p.m. the accused was already there and said to have been varnishing some furniture.
The complainant said that her brother went to his room to play video games. She went to her room to change. The accused came in and seemed interested in asking more about Hellsing. The accused asked that she read a Hellsing book to him. They both sat on the bed and the accused pulled her onto his lap. She alleges she read to him for about 20-30 minutes and, after a while, he put his hands inside her shorts and knickers. Initially, he was rubbing the outside of her vagina (Count 2) and then put his fingers inside her vagina (Count 3). She described this conduct as being rough. She said the accused stopped once he heard the dogs barking.
The complainant said she failed to make any complaint to her father or step‑mother that evening because she was scared and in shock.
Evidence of complaint
The day after the events alleged in Counts 2 and 3, the complainant spoke to her school counsellor about these allegations. The counsellor then called the Families SA child abuse report line while the complainant was still present. Both the counsellor and the complainant spoke to the Families SA worker. The Families SA worker recorded the following complaints:
•Last night (25/03/08) Lauren was at home, by herself, lying on her bed in her bedroom reading. Nick Persico visited the home to deliver some lasagne. He went into Lauren’s room and put his hands inside of her pants and touched her vagina. He inserted his fingers into her vagina also.
•Some time last year Nick Persico put his hands up Lauren’s top and touched her breasts.
I note that evidence of complaint is not evidence of the truth of the assertions within it. It is evidence of consistency of conduct such that if something occurred of the nature alleged in Counts 2 and 3, you would expect a complaint of it to be made at an early opportunity. It also explains how the allegations first came to light.
In this case, it is also some evidence of inconsistency because the complainant’s evidence before me was inconsistent with the notes of the worker. Those notes record the complainant was at home by herself and lying on the bed reading, both of which are inconsistent with the complainant’s account about the setting prior to what is alleged as Counts 2 and 3. Having said that, I am conscious that the worker may have made an error in recording or simply misunderstood what was being said. I am certainly satisfied a complaint was made in respect of all counts.
Medical evidence
The prosecution also called Dr Kelly from Child Protection Services who forensically examined the complainant on 19 June 2008. The only injury or abnormality found on genital examination was a deep hymenal notch in the eight o’clock position. Such a notch is indicative of previous hymenal penetration. However, the nature of the penetration is unknown and the abnormality is such that it cannot be said when it occurred. Usually, such an abnormality would cause some degree of bleeding but it may have been minimal and gone unnoticed.
Accused gave evidence
The accused gave evidence and was cross-examined in a thorough manner. He called no other evidence. Although he admitted being with the complainant on the specific occasions identified by her, he denied any wrongdoing or suggestive conduct or conversation. He denied any interest in the series known as Hellsing. He acknowledged that he displayed an interest in the series when the complainant spoke about it, but in doing that he was just being nice to her. I think it very unlikely that he had any genuine interest in the series. The prosecution would suggest it was feigned interest as a pretext to spending time with the complainant.
Legal considerations
I note the requirement that the prosecution prove its case beyond reasonable doubt and that there is no onus or obligation on the accused. The accused does not have to prove or show anything. More particularly, the accused, in denying allegations, does not have to demonstrate why a complainant may be making false allegations.
To convict the accused on any count, I would not only need to be satisfied about the complainant’s accuracy and reliability, I would also need to be able to reject the accused’s account.
Further, I also note that it is not a matter of me preferring one account on oath as against another account on oath. If I am uncertain about the proof of the allegations, then obviously the prosecution has not satisfied me about guilt and I would be obliged to acquit.
Discussion
There is no doubt that the complainant is an intelligent, knowledgeable and articulate person. She clearly has a vivid imagination as is amply illustrated by her school Creative Writing (Exhibit D1) and her website writings under the name “Spinmontop” (Exhibit D2).
I do not find it necessary to analyse those writings, particularly those contained within Exhibit D2. The position I find myself in is quite straightforward.
I have had regard to all the evidence given in the case
I find the complainant to be a reasonable witness. I find the accused to be a reasonable witness. There is certainly no sufficient reason to disbelieve or reject his account. On that basis, I am unable to say the prosecution has proved its case beyond reasonable doubt.
I enter verdicts of not guilty on each count. Those verdicts should not be taken by the complainant as a rejection of her account.