R v PRM (No 2)
[2022] SADC 91
•12 August 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PRM (No 2)
[2022] SADC 91
Reasons for the Verdict of her Honour Judge Davison
12 August 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was charged with the offence of maintaining an unlawful sexual relationship with his 4-year-old granddaughter after she disclosed to her mother that he was licking her.
The child was not called to give evidence. Her statements including one recorded by her mother were admitted pursuant to s 34LA of the Evidence Act 1929 (SA). The recording included words and a demonstration of the accused's conduct.
A recording of the accused and the complainant made two days after the disclosure was admitted as an admission to the charged offending.
Charge of Maintaining an Unlawful Sexual Relationship with a Child proved beyond reasonable doubt.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 5; 49(1); 50(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13(1); 34D; 34LA; Criminal Procedure Act 1921 (SA) ss 131; 132, referred to.
R v PRM [2022] SADC 4; Barca v The Queen (1975) 133 CLR 82; R v Salahattin [1983] 1 VR 521; R v Alexander 2 VR 249; R v Corkin (No 2) (1988) 50 SASR 285; R v Randall (1991) 55 SASR 447, applied.
R v PRM (No 2)
[2022] SADC 91Criminal
Introduction
The accused is the maternal grandfather of EMH, who was 4 years and 5 months old on 10 February 2020. At that time, she was living with her mother, TLH and father, MRH, in Mount Gambier.
TLH returned to work in 2016, shortly after the birth of EMH. Arrangements were put in place for childcare. Initially, the accused looked after EMH a number of days a week at his home and at the family home of EMH. On the remaining days, she attended childcare and was occasionally cared for by other grandparents.
From about October 2019 until the time of the alleged offending, the accused cared for EMH at her family home. EMH commenced kindy in early 2020, attending on Tuesday, Thursday, and every second Friday. The accused cared for her on Monday, Wednesday, alternative Fridays and some Saturdays. EMH called the accused ‘Pa’. They appeared to have a very close relationship.
At about 8:20 pm on Monday, 10 February 2020, EMH revealed to her mother that the accused was licking her. She demonstrated the action of him licking her and indicated where he licked her. This demonstration was captured on her mother’s mobile phone.
EMH subsequently repeated that demonstration to her father and gave further details as to the circumstances in which the acts occurred.
EMH was then put to bed. Her father challenged her allegation saying ‘…if I asked Pa, if this was true, will he say ‘yes’ or ‘no’ and if you’re right I’ll give you a chocolate’. MRH gave evidence that she responded he will say ‘yes’ straightaway in a confident tone.[1]
[1] TT103.
Her father was unsure what he should do. A little later he went back into her bedroom and said he had spoken to Pa, and he had said ‘no’ the story was not true. She was not given a chocolate. Her father had not spoken to the accused about the allegation at that stage. The fact that MRH had not spoken to the accused was not disclosed to EMH.
A nanny cam was purchased by TLH on 11 February 2020 and installed by MRH in the ensuite on 12 February 2020. This was the next occasion the accused cared for EMH.
During the course of the day, the accused and EMH went into the ensuite so that EMH could wash her hands. Whilst in the ensuite, she said to the accused:
…
QWhy didn’t you tell the truth one night, you, you didn’t lick me.
AWhy didn’t I tell the truth?
QOf licking me.
AWho did I tell?
QI, told, Mummy, that, Pa licked me when I hop out of the showers and bath.
AWhy did you tell her that? I told ya not to tell her that.
QBut, I did… Want, you… To have a, chocolate and Daddy said I can have a chocolate.
AOh [E] we told, we said not to say that to Mum. That was our secret remember?... What did you tell her that what, da, Pa did?
QUm, you know how Pa does showers, I, um, get on a towel, ah, and, does lick me.[2]
[2] Exhibit MFI P4.
Later that day after MRH returned from work, he had a conversation with the accused in the kitchen. He could tell the accused was upset. He asked him ‘What’s going on?’ to which the accused responded ‘You tell me what’s going on’. MRH asked what he meant. The accused then said that MRH had offered EMH chocolate to tell stories about him. MRH asked what stories she had been telling. The accused said,
…not long after [MRH] had left, I was in the lounge room sitting on the couch and EMH had come up and sat on my lap and said to me that I had lied and she did not get a chocolate and I asked her what I had lied about and she said about licking her.[3]
[3] TT108.
MRH then explained to the accused how the events in relation to chocolate came about. At this point, TLH came home and also tried to explain to her father what had happened. The accused also told TLH about the disclosure of EMH. He said he was confused about why a four-year-old would accuse him of that and why they had not asked him. The accused went on to say he could not continue to babysit as the accusation would ruin his reputation in town.[4] During the time in the kitchen the accused also mentioned what was called ‘the cat game’. He said that maybe EMH was confused because there was a game they played where they would lick each other on the arms.
[4] TT58.
As TLH, the daughter of the accused, walked him out that night, he said ‘how [TLH] thought the worst of him’.[5] She sought to reassure him saying if they thought the worst of him, he would not have been permitted to babysit that day.
[5] TT60.
It was after the accused had left their family home that MRH retrieved the nanny cam from the ensuite and downloaded its contents. The conversation between the accused and EMH in the ensuite that day was then discovered by her parents. They decided to report the matter to the police. At about 7:00 pm on 14 February 2020, they attended the Mount Gambier Police Station and took with them the recording from TLH’s phone and the recording from the nanny cam.
The accused was spoken to by the police on 10 March 2020 and given an opportunity to obtain legal advice. He was arrested on 12 March 2020 and exercised his right to silence.[6]
[6] TT22.
On 25 March 2020 photographs were taken at the home of EMH.[7]
[7] Exhibit P5.
The Charges
The accused is charged with the offence of maintaining an unlawful sexual relationship with a child, and in the alternative, unlawful sexual intercourse with a person under 14 years.
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[PRM] between the 1st day of January 2019 and the 11th day of February 2020, at Mount Gambier, maintained an unlawful sexual relationship with [EMH], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her namely:
(a) performing an act of cunnilingus upon her on more than one occasion.
And in the alternative,
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[PRM] between the 1st day of January 2019 and the 11th day of February 2020, at Mount Gambier, had sexual intercourse with [EMH], a person under the age of 14 years, by performing an act of cunnilingus upon her.
The accused elected for trial by judge alone.[8] The trial proceeded without a jury.
[8] Juries Act 1927 (SA) s 7.
Preliminary Matters
The prosecution case was based on the out of court statements made by EMH, tendered pursuant to s 34LA of the Evidence Act 1929 (SA), for a testimonial purpose. Pursuant to r 49 of the District Court Rules 2014 (SA), a notice dated 5 July 2021 sought exclusion of the out of court statements made by EMH. Section 131 of the Criminal Procedure Act 1921 (SA) permits a superior court to hear and determine matters of admissibility of evidence before a jury is empanelled.
His Honour Auxiliary Judge Barrett heard argument on 6 October 2021 and delivered his ruling with reasons on 19 January 2022[9] admitting each of the statements.
[9] [2022] SADC 4.
Pursuant to s 132 of the Criminal Procedure Act 1921 (SA) this ruling is binding on a judge of the court presiding at the trial of the accused, unless I consider it would not be in the interests of justice for the determination to be binding or it is inconsistent with an order made on an appeal. It was not suggested by either party that I should reconsider this determination. I have, however, satisfied myself that there is no reason to reconsider or interfere with the determination of Auxiliary Judge Barrett.
Directions of Law
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of an offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt. If, however, the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of the charged offence, then he remains innocent, and I must return a verdict of not guilty.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’ evidence.
The accused did not speak with police or give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence or speaking to the police.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear, and not be influenced by public opinion in relation to this matter.
I remind myself that the statements that were admitted from EMH were not subject to cross-examination, and as such, the accused has been subject to a forensic disadvantage. This then requires me to subject these statements to greater scrutiny and to exercise care in relation to the process of drawing the inferences sought by the prosecution.[10]
[10] Evidence Act 1935 (SA) s 34LA.
Applications were made by the prosecution for special arrangements pursuant to s 13(1) of the Evidence Act 1929 (SA), in relation to the evidence of TLH and MRH. The arrangement was that a one-way protective screen be in place during their evidence. I made an order in relation to each of the witnesses. I must not draw any adverse inference against the accused nor allow these arrangements to affect the weight I give to their evidence.
The Evidence
Detective Brevet Sergeant McManus was called to produce the recordings that had been provided to the police by TLH and MRH. One recording contained the demonstration and statements about the alleged offending by EMH.[11] The second contained the discussion in the ensuite between EMH and the accused.[12] The transcripts that were prepared in relation to each of the recordings were marked for identification. I remind myself to use the transcripts as an aide to the primary evidence, that being the recordings. The recordings were viewed in court.
[11] Exhibit P1.
[12] Exhibit P3.
Detective Brevet Sergeant McManus arrested the accused on 12 March 2020. The accused exercised his right to silence.[13]
[13] TT22.
Detective Brevet Sergeant McManus attended the complainant’s home on 25 March 2020 with a crime scene investigator who took photos of the premises.[14] A floor plan of the premises was also tendered.[15]
[14] Exhibit P5.
[15] Exhibit P6.
Detective Brevet Sergeant McManus was not cross-examined.
TLH was called. She gave the following evidence. She is the mother of EMH who was born on 16 September 2015. TLH lives with her husband, MRH, and EMH. She and her husband also have older children from previous relationships who have lived with them on and off over the years.
Her father, PRM, is the accused. He and her mother separated more than 10 years ago. He now lives alone in the childhood home of TLH. His date of birth is 25 April 1950.[16] He retired from work in approximately 2013.
[16] TT30.
When EMH was born, TLH was working and studying. MRH was also working full-time. They arranged formal childcare and the accused also looked after EMH when TLH returned to work and study. The accused lived within walking distance from their home.[17]
[17] TT33.
In early 2018, TLH and MRH purchased a café. TLH worked full-time in the café including on Saturdays. She left home between 6:00-6:30 am and returned at about 4:00 pm. MRH cared for EMH in the morning until she went to childcare or kindy, or until the accused came to their house to look after her. The accused cared for EMH two days a week until about the end of 2019 when he did three days. In 2019, the accused said to TLH that he did not want to look after EMH at his house any longer because he did not want the neighbours thinking there was something wrong having a young child at his house. As a result, EMH’s toys were brought back to their family home and the accused cared for her at their house.[18]
[18] TT40.
EMH started kindy in 2020. She went every Tuesday, Thursday and alternate Fridays. The accused cared for her on Monday, Wednesday, alternate Fridays and Saturday. EMH called the accused ‘Pa’ or ‘Grandpa’. She called her paternal grandfather ‘Opa’.[19] The accused and EMH appeared to have a very close relationship. She called the days she spent with the accused her ‘Pa days’. TLH spoke to EMH about her activities with the accused.
[19] TT35.
EMH generally bathed in the mornings. She did not do so every day. She usually showered in the ensuite, as the main bathroom was used by the teenage boys. There was one bath in the house, which was in the main bathroom.[20] As TLH went to work so early, she left the bathing arrangements for EMH to MRH as he was at home.
[20] TT44.
On Monday, 10 February 2020 it was a hot day. TLH and MRH put EMH to bed at about 8:00 pm.[21] As it was so hot, EMH was only wearing knickers. TLH had washed her hair and went into the ensuite to straighten it. She had the radio going on her phone. About 5‑10 minutes later, EMH got out of bed and came into the ensuite. She walked past her mother and stood on the bathmat. She was ‘waffling on’ about stuff.[22] Her mother assumed she was trying to stay out of bed, which was not uncommon. Her mother did not pay much attention to what she was saying until she heard the words ‘Pa’, ‘licking’ and ‘shower’. She is uncertain of the order of those words. TLH then put the hair straightener down, turned off the radio and focused on EMH. She asked her what licking meant and whether it was a kissing action and whether it was like tongue to tongue. EMH said ‘no’ and patted her knickers in the area of her vagina.[23]
[21] TT47.
[22] TT47-8.
[23] TT49.
TLH was not sure what the story was and picked up her phone from the bench, clicked on the camera and started recording. She then recorded EMH as she described and demonstrated the licking actions by ‘Grandpa’ or ‘Pa’. She stopped the recording when EMH tried to change the subject and was deflecting.
She then said to EMH that she should come and tell her dad who was in the lounge room. EMH was worried she would get told off for being out of bed but her mother reassured her that would not be the case. In the lounge room she repeated what she had said and done in the ensuite. This included patting her knickers on top of her vagina to show where the licking happened. She was laying on her back when she did this. EMH was asked how this happened and said he put a green towel down for her to lie on. Her mother asked her ‘Do you mean Pa or maybe do you mean Opa?’, to which EMH responded ‘No Pa, P-A, Pa’, spelling out the name very firmly and adamantly. She was also asked ‘Why he did it?’ and said, it made Pa happy so it made her happy.[24]
[24] TT52.
MRH put his daughter back to bed. Later TLH showed her husband the recording. They were in disbelief. They discussed buying a nanny cam. TLH purchased one at the post office the following afternoon. She then gave it to her husband who charged it and installed it in the ensuite.[25]
[25] TT54-5.
On 12 February 2020, TLH went to work as usual. Her father came into the café between 9:00-9:30 am. They discussed cutting back his babysitting days as MRH’s mother was about to retire. She also said that EMH should not be showered that day because she had a blister on her foot and she had done her hair nicely, so she did not want it ruined in the shower. The accused responded with ‘ok’.
TLH went home from work arriving sometime after 4:00 pm. EMH was in the lounge room. The accused and her husband were having a discussion in the kitchen. The accused was quite emotional.[26] She appeared to have missed the first part of the conversation but said the accused was saying that EMH had a conversation with him that day and mentioned that she told mum that ‘Pa had been licking her after showers’. He said ‘Why would a four-year-old accuse me of that?’. He then said he could no longer babysit and that he did not want this said in public and his reputation ruined. He also said ‘It only takes one word and how do you disprove a negative’. He also said that after EMH told him, he felt sick and distanced himself from her. At a time when MRH was not in the kitchen, the accused also said words to the effect ‘…maybe she [EMH] was a little confused. There was a cat game that they played and would lick each other but that was more on the arms’. As TLH walked him out the house he asked, ‘…how I believed – how I thought the worst of him’.[27] TLH sought to reassure her father saying, ‘…if we had thought the worst of him he wouldn’t have been babysitting that day’.[28] TLH gave evidence that she believed her father’s denial that anything untoward had happened and she felt that she and her husband had dealt with it.
[26] TT57.
[27] TT60.
[28] Ibid.
MRH went to get the nanny cam. TLH went to the ensuite. He checked the camera in the office and then walked into the ensuite with tears in his eyes. She then viewed and listened to the footage from the camera. They went to the police on 14 February 2020 with the mobile phone recording and the camera containing the footage.[29]
[29] Exhibits P1, P3.
TLH was cross-examined. She confirmed that EMH had some little friends who had playdates and a neighbour who could have also dropped around whilst she was being babysat. She also agreed that MRH could also pop in during the day.[30] She agreed that MRH commonly entered the house through the pergola door.[31] TLH confirmed that treats such as chocolate were limited for EMH but that they did not have rules around that.
[30] TT70.
[31] TT72.
In relation to EMH showering, she said it was not a daily occurrence. It depended on what time she woke up as to whether she showered with her dad, but if she had not and needed a shower she believed the accused did that.[32] She said that EMH had more showers than baths, and having a bath was fun and special for her.[33] She agreed she would generally not see evidence of a bath or shower having occurred while she was at work.
[32] TT75.
[33] TT75, 77.
TLH confirmed that when she was a child, the accused had a bad back but said that later in life he worked full-time in a bed shop moving beds and did not take any care with his back.[34]
[34] TT80.
She was questioned about the events on 10 February 2020. She said EMH should have been in bed when she came into the ensuite. She said it was typical of EMH to pop back up again from bed and try to engage someone in order to delay her bedtime. Initially TLH tried to get her to go back to bed. It was only after the words ‘shower’, ‘licking’ and ‘Pa’, although not necessarily in that order, that she paid attention. EMH indicated the area licked by patting her vagina and after that TLH turned on the camera.[35] She confirmed that there was a conversation about kissing and tongues and a denial by EMH that that was so, and an indication by her tapping on her knickers. It was suggested that the tapping of the knickers was not an immediate response to the tongue conversation, but TLH said it was. She explained that when EMH patted her knickers alarm bells went off for her and she started the recording.[36]
[35] TT83.
[36] TT84-5.
She agreed that while EMH was demonstrating and describing what happened in the lounge room, she patted the area on top of where you wee from and said her hand did not go in between her legs.[37]
[37] TT86.
In relation to the green towels, she said that on that night it meant nothing to her and generally they do not have green towels in the bathroom.
She was cross-examined about ‘the cat game’. She was asked if she had spoken to EMH about the game and what it entailed. She said EMH had said it was about licking arms and being mum and dad cats.[38] She confirmed that she had seen EMH playing this game on the lawn with a neighbour.
[38] TT88.
TLH denied that she had any discussion with EMH about speaking to her Pa while the nanny cam was set up. She agreed that she and her husband had decided to limit the accused and EMH to the use of the ensuite that day by ensuring that they did not use the main bathroom.
In re-examination, she said that her husband had used a spare towel that was green on the Monday, when the disclosure was made. She also described and demonstrated EMH licking her forearm to demonstrate the cat game. She said in early January she had seen EMH in the front yard starting to pull her pants down and wee. When she asked what was going on, EMH said they were just playing ‘the cat game’ and weeing in the front yard like the cats do.[39] That was the first time she had heard of ‘the cat game.’
[39] TT90.
MRH was called to give evidence. He gave the following evidence. He confirmed the care arrangements for EMH. He works full-time in a security business owned by his father. In early 2020, he said EMH showered in the morning. Whether she showered depended on the way the morning went and what she was doing that day. If she was going to kindy she showered. If the accused was looking after her, there would be time during the day for her to be showered, or he could finish getting her ready.[40] He explained that there was no set routine and that he and the accused spoke about what needed to be done before he left for work, normally between 9:45‑10:00 am.[41]
[40] TT98.
[41] TT99.
He gave evidence that on 10 February 2020 he put EMH to bed about 7:30‑8:00 pm. He read her a book, said goodnight and went out to the lounge room to watch television. About 20 minutes later, his wife came into the lounge room with EMH and asked her to tell him what she had told her. EMH said ‘Pa licks her’. He said, ‘What do you mean Pa licks you’ and she got on all fours and made a licking motion. His wife asked EMH to show where. EMH was sitting down, she opened her legs and touched her vagina over the top of her knickers. When asked why, she said ‘He just does’. When asked how often it happens, EMH said after shower and baths. EMH also said that she lays on a green mat in the bathroom. MRH said there had been a green towel in the bathroom the week before.[42] EMH was put back to bed.
[42] TT102.
MRH said he was struggling to believe any of this was true. He decided to challenge EMH about it. He went into her bedroom and said, ‘If I asked Pa if this is true, will he say ‘yes’ or ‘no’ and if you’re right I’ll give you a chocolate.’ EMH responded straightaway in a confident voice ‘He will say yes’. He told her he would be back in a moment and left the room. He went to the kitchen and then went back into her room and told her he had spoken to Pa and that he said ‘No, the story was not true’. She made a sad face.[43] He had not spoken to the accused.
[43] TT103.
When he returned to the lounge room, his wife showed him the mobile phone footage. He said EMH’s actions in the lounge room were very similar to the actions to what he saw on the footage.
The next day his wife purchased the camera. He read the instructions and put it on charge. The next morning, he put the camera inside a toilet roll on a box under the ledge in the ensuite. The accused arrived at about 9:30 am and told him he had been to the café and TLH had told him not to shower EMH. MRH told him he had put bleach in the main bathroom sink and not to use that bathroom. He then left the house about half-an-hour later.[44]
[44] TT107.
He returned about 4:00 pm. The accused was in the kitchen he looked upset. TLH said,
I asked him first, said “What’s going on?”, thinking that yeah, something bad had happened and he said to me “You tell me what’s going on” and I asked him what he meant by that. Then he said that I’ve been offering [EMH] chocolates to tell stories about him and I asked him well what stories had she been saying and he said that not long after I left he was in the front lounge room sitting on the couch and [EMH] had come up and sat on his lap and said to him that he lied and she didn't get a chocolate, and he asked her what she lied about and he said about licking her.[45]
[45] TT108.
At about that time TLH arrived home and joined the conversation. EMH came back into the room and MRH took her back to the lounge room.
About 10 minutes after the accused left, he checked the camera. To view the contents, he had to plug it into a computer and open the program. He found a file and played it. He recognised the voices as EMH and the accused. He listened to it and then played it for TLH. He took the camera to the police on 14 February 2020.
MRH was cross-examined. He said one of his responsibilities was to shower EMH in the mornings. He said that he did not look for evidence of showers or baths being taken when he was at work. He said it might be mentioned by the accused or EMH.
He agreed that none of the towels shown in the photos in Exhibit P5 were green. He said it was not unusual for a green towel to be in the ensuite. He said TLH is the one who does the washing.
He agreed with a proposition that when EMH demonstrated where she was licked by the accused her hand was flat on the pubic bone.[46]
[46] TT114.
He was asked whether he challenged EMH because he thought it might be a fanciful story. He said ‘no’. When pressed he said, ‘I believed that [the accused] wouldn’t be able to do this to her. I trusted him’.[47]
[47] TT115.
In answer to questions by me, MRH said that he had been using green towels for a long time because he did not like the ones his wife uses. His towel is usually on the hook on the back of the door in the ensuite.[48]
[48] TT116.
Agreed Facts
A series of agreed facts were tendered.[49]
1. The accused, [PRM], was born on 25 April 1950.
2. [TLH] was born on 11 November 1985. She is the biological daughter of the accused, and her maiden name was [TLM].
3. The complainant, [EMH] was born on 16 September 2015. Her biological mother is [TLH], and her biological father is [MRH]. She is the biological granddaughter of the accused.
[49] Exhibit P9.
Accused
The accused did not give or call any evidence.
Addresses
Ms Park for the prosecution submitted that the principal offence could be proved by the content of the three out-of-court statements of EMH and the supporting evidence of her parents. Further, the prosecution relied upon admissions made by the accused captured on the recording in the ensuite bathroom. Ms Park submitted that these admissions are put into context by the conversation the accused had with TLH and MRH on the same day as they had been recorded. The prosecution acknowledged that the evidence relating to the three conversations could not be tested by cross-examination as the complainant had not been called, and as such I must comply with the directions in s 34LA of the Evidence Act 1929 (SA).
The prosecution submitted that the complainant was clear and consistent in relation to both words and actions and that the recording on the mobile phone is a particular compelling account given by her. She was unwavering in respect of her allegation, and it remains consistent. The prosecution submitted that TLH and MRH were both honest and reliable witnesses who did their very best to give evidence that was accurate in relation to the accounts given by their daughter and the account given by the accused. Neither sought to exaggerate and both were frank if they were uncertain in relation to a particular topic.
Ms Park suggested that the first question in this case will be whether I am satisfied that the contents of the statements do amount to an allegation of an act or acts of cunnilingus, having had regard to all the evidence and the circumstances in which the statements were made. In essence, I must be satisfied that EMH was telling the truth when she said and demonstrated what the accused did to her. It was submitted that the timing, content and circumstances of the three statements should satisfy me of the charge beyond reasonable doubt. Further, it is said that there is no doubt as to the nature of the conduct about which EMH is speaking and demonstrating in the recording. It was submitted that the account is entirely inconsistent with an imagined or concocted event.
It was suggested that the circumstances in which the allegation came to light also support the genuine nature of the disclosure and there is nothing in relation to EMH’s behaviour to indicate that she is making up the story to perhaps avoid going back to bed or for any other reason. The recording shows that the question ‘Can you show me what you were talking about?’ results in the complainant doing an unprompted demonstration and verbalising the actions. When asked, ‘To what part of you?’, her immediate response is the action of patting her hand over the area of her vagina on her knickers. She does not hesitate in her response. She leaves her hands in that area as she appears to be thinking about her mother’s next question ‘Why?’. The response was ‘He just does’.
It is submitted that there is no ambiguity at all in relation to what this four‑year-old child is demonstrating in the bathroom of her home. When other options were put to her such as were they kissing with tongues touching, she was very firm in her response that no that was not what happened.
She then goes on to make the same complaint, give the same demonstration, and articulate it in the same way to her father whilst adding in further detail in relation to the green towel, confirming that it is ‘Pa’ and spelling it out when it was suggested that it could be a different grandparent. It was submitted that this is not a case where it could be suggested that the conduct has been misinterpreted or a case of a young child getting an idea from another source. She was very clear as to the conduct, namely, licking, the identity of the person who did it to her, namely, Pa, and the area of her body where this happened on her vagina and indicates the area on the outside of her knickers. At all stages she is firm, adamant and consistent. She made the complaint in the ensuite where the alleged offending occurred. It was also in the ensuite that she discussed with the accused regarding his purported denial of the events. The added detail by the complainant that it was an activity that made her Pa happy, and so it made her happy, were not the details of a child who had imagined this or made it up. The evidence was that she enjoyed spending time with her Pa and has spent a significant amount of time with him from shortly after her birth.
With respect to how often the acts occurred, it was submitted that although there is no direct evidence in relation to it, the complainant’s language talking about showers and baths is consistent with it having occurred on at least two occasions and probably more.
The third conversation occurred in the complainant’s bed after she had disclosed to both her parents. It was submitted that this evidence is not before a court to bolster the credibility of the complainant but rather because it gives context to the conversation that occurs and the admissions made by the accused when he next visits the house.
That admission occurred in the context of the complainant having been told that the accused denied licking her. When she confronted him about it, he said ‘I told you not to tell her that’, ‘we said not to say that to mum’, and ‘that was our secret remember?’. It was submitted that in those comments he accepts the truth of what the complainant has said, implicitly admitting the conduct. He admits the act, namely the licking of her, and acknowledges the particular circumstances in which it occurs after showers and baths. Both the response and the tone of the accused make it plain that he is instantly aware of the subject under discussion. There is no hesitation or confusion on his part as to what the complainant was talking about and he accepts that it occurred on more than one occasion. It is submitted that when these statements are viewed in conjunction with the statements made to TLH and MRH, they constitute admissions to more than one act of cunnilingus by the accused on the complainant over a period of time. The conversation between the accused, MRH and TLH clearly reveals a discussion of sexual misconduct, including the accused saying ‘Why would a four-year-old accuse me of that?’. He also referred to not wanting anyone hearing the accusation and it ruining his reputation. He is clearly referring to conduct that is not capable of an innocent explanation.
The innocent explanation in this case was said to be what was referred to as the ‘cat game’. On the prosecution submission, the cat game is a completely different event that involves licking on the arm and perhaps playing mum and dad cats. The description of it is in stark contrast to the demonstration given and words spoken by the complainant in the bathroom. At no stage does EMH refer to the cat game or describe anything similar to it other than the motion of licking. In short, it constitutes very different behaviour and even if there was a game such as ‘the cat game’ played between the accused and the complainant, that does not negate the allegation made nor does it diminish the complainant’s reliability. In addition to this, the prosecution relies upon the words said by the accused, ‘What did you tell her that Pa did?’. This suggests that it is not something they both did but rather something the accused was engaged in and similarly, the accused’s state of mind in his conversation in the kitchen later tells strongly against the conduct involving an innocent game.
It was submitted that the conduct described by the complainant was an act of cunnilingus. Further, that when considering what was said, the inference can be drawn that it was conduct that occurred on multiple occasions and close consideration of the statements made by the complainant demonstrates that the acts occurred on two or more occasions. Close consideration of the admissions made by the accused is capable of comprising an admission about two or more unlawful sexual acts.
Mrs Powell submitted that it was not open to find the accused guilty of the principal offence as it has not been proven that an act of cunnilingus had been committed. She submitted that on the basis of the statements made, if they were accepted as being truthful, it was open to find the accused guilty of one count of indecent assault as an alternative to the offence of unlawful sexual intercourse.
Mrs Powell submitted that the act of cunnilingus is committed when there is oral stimulation of the female genitalia. In her submission, the statement and demonstration by EMH do not provide sufficient particularity to make such a finding beyond reasonable doubt. During the demonstration, it was submitted she was wearing her knickers, and even though it is submitted that the acts occurred after a bath or shower, that does not mean that she was not dressed at the time. It was submitted that the questioning by her parents did not go far enough to establish that licking on the skin occurred. The demonstrations by EMH, it was submitted, fall short of licking anywhere other than on the top of the pubic bone. If that was so, it may amount to an act of indecent assault. It was submitted that on the recording that was played, the complainant pointed between her legs, and secondly, she patted above that area and that was the same area that she patted when she demonstrated to her parents. She submitted that the area identified by the child and her parents was not within the labia majora or any of the genitalia rather it was on the mons pubis, an area outside that would ordinarily be considered part of the sexual organs.
In respect of the frequency of the acts as alleged, Mrs Powell submitted that the complainant was just over four-years-old, she was not literate other than having memorised a few three letter words, there was no evidence that she understood tense or the significance of using plurals. It was not clear whether she was referring to the shower and/or the bath and as such the conduct in question may not have occurred on multiple occasions. She also submitted that there was conflicting evidence from TLH and MRH about the green towel, with MRH being adamant about its use in the ensuite but TLH being equally adamant they did not use green towels, and she, on the evidence was the one who did the washing.
In respect of opportunity, it was submitted that the responsibility for showering EMH fell predominantly to her father. There was no evidence as to how often the accused showered or bathed her, there was no evidence that it is a common occurrence and as such there are limitations to the opportunity for the accused to offend based on the evidence. There was also the risk of detection as MRH came home from work during the day and there was evidence a neighbour came to the house on occasions. These circumstances render it less likely that the offending occurred in the way it was described. There was also evidence that TLH would speak with her daughter when she came home from work about the activities she had been engaged in with her grandfather during the day and as such inappropriate behaviour on the part of the accused was likely to be detected. This also rendered the likelihood of the offending occurring as described less likely.
It was submitted that if any improper conduct occurred, then it would be mere speculation to find that it occurred at any time other than in the week of the complaint and there was no evidence of the offending over the duration of the particularised charge. It was only in that week that it was suggested the green towel had been in the ensuite. The description of the events given by the complainant to her parents in the lounge room appears to have been a description only of one event and comes with the limitations of the complainant’s use of language given her age.
Further, it was submitted that there is no admission by the accused to the charged offences and that the conversation in the kitchen is merely speculative.
It was submitted that the statements made by the complainant were not obtained in circumstances that are reliable; they were words uttered by the complainant when she was supposed to be in bed, had got out of bed and was chatting to her mother. EMH was worried that she was going to get into trouble for not being in bed. Her mother initially ignored her but having uttered the three words ‘shower’, ‘lick’ and ‘Pa’, she got her mother’s attention and wanted to be the centre of her mother’s attention. The concealment of the recording by her mother may indicate that the complainant was a person liable to play up to gain attention. She was then taken to her father and asked to repeat what she had said. It was also submitted that it was difficult to be clear what the complainant had said because of the way the evidence was elicited and at a time she was being asked questions by both parents. It was suggested that given her age and the authority of her parents when considered with the circumstance that she was up past her bedtime, and evidently worried about that, may have caused her to divulge information that was inaccurate and unreliable.
In respect of the implied admission, Mrs Powell submitted that the probity of the statement must be evaluated against the circumstances of the evidence as a whole. It is clear, she submitted, that the accused was straining to process the question put by the complainant and to comprehend the accusation. The recording does not have vision of his physical response and there is a possibility that the complainant was talking about something other than an indecent act, it loses its probative value. It is submitted that the implied admission could be probative of either counts on the Information or an act of aggravated indecent assault. It cannot exclude, however, that the secret involved non-sexual contact of an activity or a secret that was not to be shared not because it involved sexual offending but for some other reason. It may have been a reference to the 'cat game' that clearly involved non-sexual licking. The conversation between EMH and the accused in the ensuite did not demonstrate any connection to licking her vagina, nor is there any indication that the mum and dad cat game progressed into some other activity of an indecent nature.
It was submitted that s 34LA of the Evidence Act 1929 brings with it significant disadvantages to an accused person trying to defend themselves against charges of this type. The safeguard to its admission has a quite a low threshold and it is relevant to my assessment of the evidence that the complainant has not given evidence on oath, there is no evidence she knows or appreciates the difference between the truth and a lie, or the consequences to the accused for telling a lie. It is also a consideration that she was offered an inducement of a chocolate by her father at a later stage in relation to this matter. It was submitted that I should also take into account the way in which the parents asked questions and the lack of safeguards in relation to that.
It was submitted that this is a relevant consideration in relation to the second and third conversations that are no longer spontaneous utterances but are made under questioning. The manner in which those statements were elicited diminishes the cogency of them and the weight that should be attached to them. Of course, the evidence is untested by cross-examination that can have the effect of eroding the credibility of the complainant or otherwise materially effecting the probability of the alleged offence having occurred. Here, it is submitted that the very specific prejudice to the accused in being able to explore the various possibilities through cross-examination of the complainant including the nature of the act itself and whether it amounts to cunnilingus and secondly the number of occasions on which it occurred has had a direct impact.
It was submitted that the elements of counts 1 and 2 cannot be proved beyond reasonable doubt as they are dependent on a finding that the initial demonstration of the child involved touching of an area of her body that included her genitalia under her knickers. There is insufficient cogent evidence from the complainant as to the number of occasions upon which this behaviour occurred. There is an issue of reliability of the statements and the unlikelihood of the offending occurring in a way described.
Discussion
The charge of maintaining an unlawful sexual relationship with a child can be proved if I am satisfied beyond reasonable doubt of the following elements:
1.The accused is an adult. There is an agreed fact that he was born on 25 April 1950. The relevant period is 1 January 2019 to 11 February 2020. I am satisfied beyond reasonable doubt that the accused was an adult during that period.
2.That EMH was a child. There is an agreed fact that she was born on 16 September 2015. The relevant period is the same as element one. I am satisfied beyond reasonable doubt that EMH was a child during that period.
3.That the accused and EMH had a relationship during the relevant period. The evidence discloses that the accused is EMH’s maternal grandfather. In addition to this they have had a particularly close relationship as he cared for her from the time, she about six months old to 4 years and 5 months old. I am satisfied beyond reasonable doubt that they had a relationship.
4.That the accused engaged in two or more unlawful sexual acts with or towards EMH during the relevant period. An unlawful sexual act is an act that would constitute a sexual offence. Cunnilingus is an act of sexual intercourse[50] and bearing in mind the age of EMH, could amount to the offence of unlawful sexual intercourse pursuant to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).
[50] Criminal Law Consolidation Act 1935 (SA) s 5.
The evidence in this trial concentrated on the fourth element. Firstly, does the evidence prove that the accused committed an act of cunnilingus and if so, does it prove that he committed this act on two or more occasions in the relevant period.
If I am satisfied that it proves beyond reasonable doubt that the accused committed the act of cunnilingus on two or more occasions, then he is guilty of the offence of maintaining an unlawful sexual relationship with a child. If I am satisfied that he committed the act of cunnilingus but not satisfied beyond reasonable doubt that he did so on two or more occasions, he could be guilty of the alternative offence of unlawful sexual intercourse. There is an alternate offence of aggravated indecent assault if I am satisfied beyond reasonable doubt that he assaulted EMH in circumstances of indecency falling short of unlawful sexual intercourse.
I must therefore closely examine the evidence and determine the weight to give to that evidence, and what are the facts in order to determine whether the fourth element has been proved beyond reasonable doubt. In doing so, I remind myself of the nature of the statements made by EMH, the fact they are made by a child who was 4‑years‑old, the circumstances in which they were made and the fact that she has not been examined or cross-examined.[51]
[51] Evidence Act 1929 (SA) s 34LA(5).
I must also bear in mind the considerations in s 34D of the Evidence Act 1929 (SA).
(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2) …
There were three out of court statements admitted pursuant to s 34LA of the Evidence Act 1929 (SA). The first is the conversation in the ensuite with her mother. It comprises what EMH said to her mother before the recording and EMH’s recorded words and demonstration.
The second is the conversation in the loungeroom. In particular what was said by EMH to her parents. The parent’s statements are admissible to give context but do not have a testimonial purpose.
The third is what the complainant said to her father after she was put back to bed. This is not lead for a testimonial purpose but rather to explain the conversation that occurred between EMH and the accused in the bathroom on 12 February 2020.
There was no objection to the conversation between the accused and EMH in the bathroom on 12 February 2020. It is led by the prosecution as an admission by the accused. In Barca v The Queen[52] the plurality explained,
It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial could infer that he acknowledged its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether: R. v. Christie. In any case, where evidence is admitted of statements made in the presence of an accused it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth.
[footnotes omitted]
[52] (1975) 133 CLR 82, 107.
Whether there can be an inference drawn by the accused’s silence, conduct or demeanour depends on a coalition of a number of facts. These may include issues such as whether the accused heard what was said, whether he could have been expected to understand what was said, and whether the subject is within his personal knowledge. The assessment of such issues is merely as assessment of human behaviour.[53]
[53] R v Salahattin [1983] 1 VR 521; R v Alexander [1994] 2 VR 249.
Findings of Fact
The evidence given by TLH and MRH was concise, consistent, and coherent. I accept that their 4-year-old daughter had a close relationship with the accused whom she called ‘Pa’. EMH and the accused had spent at least two days a week in each other’s company for over three years. The bond between them was strong. This is evident from the evidence of the witnesses and the conversation recorded in the ensuite between them. There is a clear and palpable level of trust and acceptance by EMH. Her conversation has the innocence of an enquiring very young child. She sees nothing wrong with the behaviour of her grandfather towards her and only confronts him because she feels betrayed by her perception that he has lied about his behaviour when confronted by her father. There is no malice and no hint of exaggeration in her comments. The accused does not challenge her as to the accuracy of her assertion. He seems to understand immediately what she is talking about. He expresses only his disappointment that EMH has told her mother contrary to his express direction to keep their secret and then checks with her exactly what she has disclosed.
I accept the evidence of both TLH and MRH. They were both very clear. Neither jumped to any conclusions after the initial disclosure by their daughter. Indeed, I accept that they both assumed there would be an innocent explanation for the statements of EMH. It was not until they heard the conversation that I have described above that they felt compelled to involve the authorities. I accept that neither thought the accused was capable of such behaviour, even after their daughter disclosed his actions, until it was confirmed for them by the accused in the recording.
The circumstances in which the disclosure was made to TLH, as she was straightening her hair, was spontaneous and had all the hallmarks of a very young child talking about and demonstrating very clearly the actions of her grandfather that she did not perceive to be wrong or untoward. It was just a matter of fact that she innocently disclosed in the course of chatting to her mum. Her demonstration of what the accused did was a very powerful and confronting example of sexualised behaviour. Words alone could never portray and paint the very clear picture of the actions she ascribed to the accused. There was nothing contrived about her demonstration or the words that accompanied it to her mother. Although EMH is very young, she has a good command of language and an ability to express herself clearly. In this case she utilises words and actions. I am satisfied that it was not an exaggerated or untruthful display designed to somehow delay her bedtime. Indeed, everything that she said and did was conveyed so innocently and spontaneously that it dispels any doubt about its accuracy, and her honesty.
There was then further detail given in response to direct questions from her parents, including checking the identity of the person about whom she was speaking. EMH was clear and adamant that it was ‘Pa’, the accused, going so far as to spell it to her parents ‘P-A’. She never wavered in relation to who it was. Of course, this is confirmed when EMH confronts the accused on 12 February 2020, when she thinks he has denied the conduct. Once again, EMH speaks in a direct and clear manner. She has not confused the accused for someone else nor is she confused about the licking, when it happens or how it happens. It is after showers and baths that she gets on a towel and Pa licks her. I am satisfied beyond reasonable doubt that EMH was giving a truthful account of the conduct of the accused.
The ‘cat game’ as it has been described involved a licking of the arm and playing ‘mum and dad’ cats. I am satisfied that this is not what EMH is describing to her parents and on the recordings. It may of course be a game that the accused and she played at various times but does not explain her demonstration of the accused’s conduct towards her, particularly the position that she demonstrated; laying on her back, legs apart but bent at the knees. On the evidence led, there was no secret about the ‘cat game’ nor is it consistent with the accused’s reaction when confronted by the allegation of EMH as recorded on the nanny cam including his reference to ‘our secret’ and telling her not to tell her mother.
It is also inconsistent with the accused’s reaction and explanation to TLH and MRH in the kitchen of their house after he becomes aware of EMH’s disclosure to her mother.
I am satisfied that the accused had the opportunity to commit the acts, as it was commonplace for him to bathe EMH on the days he was caring for her. Bathing would have occurred in the main bathroom or more commonly the ensuite. The fact that he was bathing EMH was not a secret. It would not have been a cause for concern if MRH came home early unannounced. If a neighbour arrived they would have to gain access and once again nothing would alert them to any illicit behaviour.
I am satisfied that the accused used the green towel on at least one occasion. The fact that TLH was unaware of that type of towel in the bathroom is not surprising given the very busy life she was leading and the fact that much of the childrearing was the responsibility of the accused and MRH.
I am satisfied that the conduct described by the complainant involved the accused licking her vagina or vulva. The Information in this case specifies the acts as cunnilingus. In R v Corkin (No 2),[54] a ruling was given that stimulation of the female vulva, or external genitalia, with the tongue amounted to an act of cunnilingus. Proof of penetration was not necessary. In R v Randall,[55] Cox J (with whom King CJ agreed) had reason to reconsider the definition saying,
I would interpret the word “cunnilingus” more precisely now than I did in Corkin (No 2). In my opinion, it denotes the licking or sucking of the vagina or vulva, including the labia majora, with the tongue or mouth. No distinction is to be drawn between the outer and inner aspects of the labia.
[54] (1988) 50 SASR 285.
[55] (1991) 55 SASR 447, 452.
In that case, the appellant had admitted in a record of interview to licking the complainant ‘down between her legs, her fanny’ when asked if he put his tongue inside her vagina he said ‘No, just licked it on the outside’.[56] Cox J found that this admission provided evidence of acts of cunnilingus.
[56] Ibid 448.
When asked what part of her ‘Pa’ licks, the complainant clearly indicates by pointing and patting the area of her vulva below the pubic bone and leaves her hand there for some time. She had her knickers on at the time. I am satisfied that she is describing an act of cunnilingus. When asked where else he licks her, she says just there. There is no doubt that she is not describing ‘the cat game’ or any other actions. Her demonstration of Pa licking is graphic and unmistakable when the recording is viewed. Further, I am satisfied that the reason the accused does this for a prurient purpose. He does these acts to her after she bathes, by it showers or baths, at a time when she is not wearing her clothes, including her knickers.
The accused’s response to the enquiry by EMH in the bathroom on 12 February 2020 is confirmatory of earlier statements made by EMH that the events occurred after bathing. I reject the submission that the licking was not on the vagina, although I do accept the evidence given by MRH and TLH that EMH patted her pubic bone when demonstrating where this occurred. However, with the benefit of the recording and being able to watch it again in an environment that is dispassionate, I am satisfied beyond reasonable doubt that EMH is referring to her genital area, including her vagina or vulva and further on her skin as opposed to on her knickers.
I have considered the use of language by EMH and made allowance for her age, in that she is not as precise at this age. I am satisfied that she is describing more than one act of cunnilingus. She says he ‘loves to do licks on her’ and says to her parents that it is after shower and baths. The ‘shower and baths’ comment in itself indicates two or more separate occasions. Even allowing for the green towel not always being available, it is clear that EMH is describing more than one incident.
I am satisfied beyond reasonable doubt that the conversation as recorded on the nanny cam constitutes an admission to the charged offending. When taken in conjunction with the accused’s statements in the kitchen, it is clear that the accused was referring to conduct of a sexual nature rather than any innocent behaviour that may have been misinterpreted by the complainant. The statements made by EMH are consistent with earlier statements made by her. The accused by his words, conduct and demeanour admits the nature of acts and the circumstances in which they occurred. In addition to this, he adds that it was their secret and he told her not to tell her mother, dispelling any doubt as to whether the conduct was a part of an innocent ‘cat game’ or any other innocuous behaviour. In other words, it confirms the assertions made by EMH in conversations one and two, and the reasonable inferences that can be drawn from them, namely that he performed acts of cunnilingus on EMH.
I am satisfied beyond reasonable doubt that the accused on two or more occasions licked the genital area of EMH constituting acts of cunnilingus. These events occurred in the ensuite and bathroom of the family home after the accused had bathed EMH. I am satisfied beyond reasonable doubt of the remaining elements of the offence of maintaining an unlawful sexual relationship with a child. I therefore find the accused guilty of count 1.
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