R v Prosek
[2017] SADC 65
•15 June 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PROSEK
Criminal Trial by Judge Alone
[2017] SADC 65
Reasons for the Verdicts of Her Honour Judge S David
15 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with three counts of aggravated indecent assault - trial by judge alone - accused is married to the great aunt of the complainant - complainant aged eight or nine at the time of the alleged offending - admissibility of complaint evidence - accused denied offending in police record of interview - no case to answer submissions - finding of a case to answer on each count - evidence of good character of accused.
Held: Not Guilty on counts 1, 2 and 3.
Criminal Law Consolidation Act 1935 s 56(1); Evidence Act 1929 ss 9, 13BA, 34M, 34P and 34R, referred to.
R v Lomman (2014) 119 SASR 463, applied.
R v PROSEK
[2017] SADC 65
Roman Prosek (‘the accused’) was arraigned before me on the following Information:
Roman Prosek is charged with the following offences:
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Roman Prosek between the 1st day of January 2014 and the 11th day of January 2016 at Port Lincoln, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Roman Prosek between the 1st day of January 2014 and the 11th day of January 2016 at Port Lincoln, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
Third Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Roman Prosek on the 11th day of January 2016 at Port Lincoln, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
The pleas
The accused pleaded not guilty to the charges. At his election I heard the trial without a jury. I found the accused not guilty of each offence. I now publish reasons for those verdicts.
Overview
The accused is married to the great aunt of the complainant, ‘L’. L was born on 4 April 2006. During 2014 and 2015, the accused is alleged to have touched L on the vagina on three separate occasions. On the prosecution case, the accused first touched L’s vagina underneath her underpants while she and the accused were riding on a tractor, in fact a ride-on lawnmower (‘the tractor incident’, count 1). L also said that the accused touched her vagina on the outside of her underpants at a playground (‘the playground incident’, count 2). The accused is further alleged to have tickled L’s vagina under her clothes, but on top of her underpants, while in the accused’s lounge room on 11 January 2016 (‘the lounge room incident’, count 3).
L alleged other uncharged occasions of the accused tickling or touching her vagina along with an uncharged incident in which the accused, while driving to Winter Hill, asked L to take a photograph of her private parts for him (‘the photo incident’).
L first complained to her mother of some of the alleged offending on 11 January 2016. Police interviewed L on 20 January 2016 (‘the first interview’), when she was aged 9, and on 11 July 2016 (‘the second interview’), when she was aged 10.
The accused participated in a record of interview with police on 21 January 2016, during which he denied the offending. The accused admitted going for a ride with L on the tractor but denied touching L’s vagina on any such occasion. The accused admitted taking L to playgrounds but denied touching her on the vagina on any such occasion. The accused admitted tickling L in his lounge room on 11 January 2016, however the accused said any touching of L’s vagina on this occasion was accidental. The accused denied asking L to take a photo of her private parts for him.
At trial, the prosecution sought to lead L’s interviews with the police pursuant to s 13BA of the Evidence Act 1929 (SA) (‘the Act’). The complainant was available, if required, to give further evidence. L was 11 years old at the time of the trial. The prosecution, as part of its case, also called L’s mother, and tendered some agreed facts.
The accused did not give evidence at trial.
The accused called character evidence from a Mr Nikolajevic, and tendered a statement from Ms Mislov. There was also an agreed fact that the accused had no criminal convictions and the police had received no other complaints of a sexual nature against him.
The defence case was that the prosecution has not proved beyond reasonable doubt that the accused had on any occasion deliberately touched the complainant on her vagina.
Standard directions
I have given myself a number of directions; some of them standard and some particular to this case. I deal now with the standard directions and later in these reasons with particular directions.
The accused is presumed innocent until and unless his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused of any of the charged counts, I must be satisfied that the prosecution has proved beyond reasonable doubt the elements of the charge.
The accused elected not to give evidence as was his right. I have not drawn any inference adverse to him on account of his exercise of that right. Nor have I speculated on the many reasons why he may have chosen not to give evidence.
Elements of the offence
I have directed myself about the elements of the offence of aggravated indecent assault. An indecent assault is an assault accompanied by or committed in circumstances of indecency.
First, the prosecution must prove an assault. An assault is the intentional and unlawful application of force to another person. The force does not have to be great. A simple touching will suffice. The relevant touching must be deliberate. An accidental touching is not sufficient. In this matter, the touching said to constitute the relevant assaults are the accused touching or tickling L on the vagina whilst she was on the tractor (count 1), at the playground (count 2) and on 11 January 2016 in his lounge room (count 3).
Secondly, the prosecution must prove that the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation to the circumstances of indecency. Whether or not an alleged touching is indecent is for me to determine by reference to pervading community standards of what is considered indecent. Whether or not L (a young child) consented to the alleged touching is irrelevant.
Thirdly, the prosecution must prove the element of aggravation, which is that L was under the age of 14 years at the time of each offence. L was aged 11 at the time of the trial. There was no dispute that L was under 14 at the time each charged offence was alleged to have occurred.
Admissibility of police interviews with L
Following a pre-trial application, I permitted the prosecution to lead L’s police interviews pursuant to s 13BA of the Act, having been satisfied of the pre-conditions to admissibility as set out in s 13BA(3) of the Act in respect of each interview. Counsel for the accused did not submit otherwise.
I determined that L, whilst not capable of giving sworn evidence, was capable of giving unsworn evidence at the time of each interview on the basis of the content of the recorded interviews themselves. I did not consider it efficacious to have an inquiry under s 9 of the Act as the interviews were conducted between 10 and 16 months earlier than the trial, which I considered too lengthy an elapse of time for an inquiry to shed any light on L’s capacity to give unsworn evidence at the time of the recorded interviews.
Counsel for the accused did not contend that L did not have the capacity to give unsworn evidence at the time of her interviews.
I have directed myself in accordance with s 13BA(6) of the Act and warned myself not to draw any adverse inference against the accused because of the admission of L’s evidence in the form of audio/visual recordings. I have directed myself not to allow the admission of the evidence in this form to influence the weight given to the evidence.
Permission to cross-examine L
The prosecutor did not seek permission to further examine or re-examine L.
Counsel for the accused sought permission pursuant to s 13BA(5) of the Act to cross-examine L on topics relating to previous inconsistent statements said to have been made by her and to put the defence case. I granted permission for defence counsel to cross-examine on those topics as being in the interests of justice.
L to give unsworn evidence at trial
I determined that L did not have the capacity to give sworn evidence at trial. I made that determination on the basis of information provided to me by the prosecutor.[1] Following on from my assessment of L’s responses during her police interviews, and my finding that L had the capacity to give unsworn evidence at the time of those interviews, I determined that L was capable of giving unsworn evidence at trial pursuant to s 9 of the Act.[2] Before I permitted L to give unsworn evidence, I told L that she must tell the truth and L agreed to do so, as required under s 9(2) of the Act.[3]
[1] T 31-33.
[2] T 32.
[3] T 33-34.
Judicial warning regarding L’s unsworn evidence at trial
I have warned myself about L’s unsworn evidence as required pursuant to s 9(4) of the Act. I have directed myself as to the reasons why L’s evidence is unsworn, namely that L does not have an understanding of the solemnity attaching to the taking of an oath or affirmation, nor an understanding that the taking of an oath or affirmation creates an obligation beyond the moral obligation to tell the truth in daily life and legal sanctions may follow should L fail to tell the truth. At the request of defence counsel, I have warned myself of the need for caution in determining whether to accept L’s unsworn evidence and in assessing the weight to be given to that unsworn evidence.
Prosecution case
The prosecution case relied almost entirely on L’s police interviews and L’s evidence in court. The prosecution also adduced evidence from L’s mother which was said to explain how the allegations first came to light and as relevant, to some extent, to support L’s credibility. I also received evidence of the accused’s record of interview with police.
Evidence of L
I will turn first to L’s evidence by reference to each charged count.
Count 1
During L’s first police interview, she said she was on a tractor with the accused and he was touching her private part inside her knickers.[4] She said she calls her private part her ‘vagigi’.[5] L said this occurred when she was in Year 3 and during 2014.[6] L said she was too small to reach the pedals.[7] The accused put his hand under her knickers.[8] She didn’t tell him to stop.[9]
[4] Interview on 20/1/16, p 3.
[5] Interview on 20/1/16, p 3.
[6] Interview on 20/1/16, p 3.
[7] Interview on 20/1/16, p 3.
[8] Interview on 20/1/16, p 3.
[9] Interview on 20/1/16, p 4.
L said this was the first time she had been out on the tractor.[10] She was sitting on the accused’s lap.[11] She was steering the tractor but the accused was pushing the pedals.[12] L said as she was driving the tractor the accused touched her ‘vagigi’.[13] She said the tractor was moving at the time.[14] L said the accused was touching her ‘not exactly on my vagigi just up the top’.[15]
[10] Interview on 20/1/16, p 7.
[11] Interview on 20/1/16, p 7.
[12] Interview on 20/1/16, p 7.
[13] Interview on 20/1/16, p 7.
[14] Interview on 20/1/16, p 7.
[15] Interview on 20/1/16, p 8.
In her second police interview, L said that after the accused had touched her vagigi, he told her that her skin felt really nice and like her baby cousin’s skin, which was really nice.[16]
[16] Interview on 11/7/16, p 20.
In court, L agreed that she had asked the accused to have a ride on the tractor.[17] L agreed that if she sat on the tractor’s seat she could not reach the pedals.[18] It was suggested to L that she was standing between the accused’s legs rather than sitting on his lap.[19] L disagreed with that suggestion. L agreed that while she was steering the tractor the accused had his arms around her tummy.[20] It was suggested to L that the accused did not touch her vagina while they were on the tractor together. She responded ‘he did’.[21] It was suggested to L that the accused did not put his hand down her pants or her knickers while they were on the tractor together. L responded ‘he did’.[22]
[17] T 45-46.
[18] T 46.
[19] T 47.
[20] T 48.
[21] T 48.
[22] T 48.
L said that she first spoke to her mother about the tractor incident a few days after the last occasion she visited the accused, that is, a few days after 11 January 2016.[23]
[23] Interview on 20/1/16, p 8.
Count 2
L said there was an occasion when the accused had taken her to the playground and he picked her up and was touching her vagigi.[24] L said the accused picked her up and then ‘touched her, tickled her’.[25] L did not know how the accused picked her up. [26] L said the accused tickled or touched her not under her knickers but probably on the outside of her pants.[27] L said he tickled her probably at the top.[28] L pointed to an area in the vicinity of the top of her vagina when saying this.[29] L said this incident occurred after the tractor incident (count 1) and while she was in Year 4 and during 2015.[30]
[24] Interview on 20/1/16, p 17.
[25] Interview on 20/1/16, p 17.
[26] Interview on 20/1/16, p 17.
[27] Interview on 20/1/16, p 18.
[28] Interview on 20/1/16, p 18.
[29] Interview on 20/1/16, p 18.
[30] Interview on 20/1/16, p 19.
L first disclosed the playground incident to police during her first interview. The interview had been completed but upon leaving the interview room, L indicated she remembered something more and the interview was resumed and L disclosed the offence.
At trial, L agreed that one of the playgrounds she visited with the accused had a flying fox.[31] Defence counsel suggested to L that there was an occasion when the accused tried to catch her as she came off the flying fox and he almost dropped her. L said she could not remember such an occasion.[32] L said that she was standing on a higher platform and the accused picked her up by grabbing her by the waist with one hand and placing his other hand between her legs.[33] L said he started tickling her rude part with the hand which was between her legs, while holding her off the ground.[34] L said that he was touching her vagina. L was asked to describe what she meant by ‘touching’. L responded by saying the accused ‘rubbed it, I don’t know’.[35] L said that immediately before the accused picked her up she had come off a flying fox and was standing on the platform.[36]
[31] T 49.
[32] T 49.
[33] T 50.
[34] T 50.
[35] T 51-52.
[36] T 52.
Count 3
In her first interview with police, L said that on the last occasion she was at the accused’s home, the accused was tickling her vagigi.[37] L said he was touching her under her pants, but not under her knickers.[38] L said the accused knew it was wrong because he said ‘I’m going to go to gaol’.[39] L said she told him to stop and he did.[40] L said the accused said he did not want her to tell her mum.[41]
[37] Interview on 20/1/16, p 4.
[38] Interview on 20/1/16, p 5.
[39] Interview on 20/1/16, pp 4, 5.
[40] Interview on 20/1/16, p 5.
[41] Interview on 20/1/16, p 5.
Later in that first interview, L said that she and the accused were in the lounge room. L said she was lying down on the floor and he was tickling her under her pants but not under her knickers.[42] She said the accused was in front of her and kneeling and she was lying on her back. L said the accused tickled her on her vagigi.[43] L said she got upset and said stop.[44] L said the accused was upset and he knew what he did was wrong and he told his wife and L’s nana.[45] L said the accused said sorry to her and that he was going to gaol and he felt like he wanted to shoot himself.[46] L said she was crying.[47]
[42] Interview on 20/1/16, p 10.
[43] Interview on 20/1/16, pp 10-11.
[44] Interview on 20/1/16, p 11.
[45] Interview on 20/1/16, p 11.
[46] Interview on 20/1/16, p 11.
[47] Interview on 20/1/16, p 11.
L said that she then told the accused’s wife that the accused was tickling her on her vagigi and the accused’s wife responded by saying it was an accident.[48] L said that while later talking to her mum she told her that she didn’t think it was an accident because, in her words, ‘of that tractor thing’.[49]
[48] Interview on 20/1/16, p 12.
[49] Interview on 20/1/16, p 12.
In L’s second interview with police, L also said that on this last occasion the accused was rubbing her legs.[50] She said she was lying down and her legs were straight up and he was rubbing her legs.[51] L said this was the only time the accused was rubbing her legs.[52]
[50] Interview on 11/7/16, p 8.
[51] Interview on 11/7/16, p 8.
[52] Interview on 11/7/16, p 9.
In court, L agreed that on that morning, she was dropped off by her mother earlier than normal.[53] Defence counsel suggested to L that the accused went and lay down on the couch in the lounge room. L said she could not remember.[54] It was suggested to L that she woke up the accused by pretending to be a lion. L said ‘no, I don’t think so’.[55] L said she could not remember what was happening before the accused was tickling her and she could not remember how she and the accused came to be on the floor.[56] Defence counsel suggested to L that she went over to the accused who was lying on the couch and jumped on him and they both fell onto the floor. L said she could not remember that having occurred.[57]
[53] T 39.
[54] T 40.
[55] T 40.
[56] T 41.
[57] T 41.
In court, L agreed that the accused was tickling her around the tummy and the sides of the tummy, however L said that he was also tickling her on her vagina.[58] Defence counsel suggested to L that the accused did not tickle her on her vagina at that time. L said ‘I don’t know’. L was asked ‘what do you mean by that, what do you mean that you don’t know?’ She said ‘I don’t remember’.[59] L said however, that she can recall the accused rubbing her legs. L said that she was on her back and he was holding her legs up. He rested her legs on his shoulders and he was rubbing her legs up and down.[60] It was suggested to L that her legs were not on the accused’s shoulders and he was not rubbing her legs. L responded ‘I don’t exactly remember where he put my legs but I know that he was rubbing them’.[61]
[58] T 41.
[59] T 41.
[60] T 41-42.
[61] T 42.
In court, L agreed that the accused was tickling her and she told him to stop.[62] She agreed he asked her ‘what’s wrong?’ and she said ‘you touched me’.[63] She agreed that the accused said ‘if I did, it was an accident’.[64] L denied that the accused said ‘I’ll have to tell mummy’.[65] L agreed the accused said people can be put in gaol for that type of thing.[66] L agreed she told the accused she did not like to keep secrets from mummy. L disagreed that the accused said ‘OK, we’ll tell your mum’. L said the accused said ‘don’t tell her’.[67] L agreed that the accused said ‘we’ll tell your mum together’.[68] L disagreed with the suggestion that the accused did not say anything about wanting to shoot himself. L said ‘he did say something like that, he said he felt like he wanted to shoot himself’.[69]
[62] T 42.
[63] T 42.
[64] T 42.
[65] T 42.
[66] T 43.
[67] T 43.
[68] T 43.
[69] T 43.
Defence counsel suggested to L after that her mother arrived to collect her later that afternoon, her mother asked her in the presence of the accused ‘was it an accident?’ and L said ‘yes mummy it was’. L denied that conversation.[70] L said her mother asked her whether it was an accident when they were in the car and L said ‘no’.[71]
Uncharged acts
[70] T 43.
[71] T 43-44.
‘The photo incident’
In her first police interview, L said that the accused said to her: ‘I would like you to take a picture of your ... Don’t remember what he said, but my vagigi’ and she replied ‘no, I don’t want to’.[72] L said this occurred while they were driving to a town called Winter Hill, in the same year as the tractor incident or during year 3 or 2014.[73]
[72] Interview on 20/1/16, p 5.
[73] Interview on 20/1/16, p 6.
In court, L said that the accused said to her, on the way to Winter Hill, ‘all I ever wanted was for you to take a picture of your private part’. L said she cannot remember what words the accused used but L knows he was referring to her private part.[74] It was suggested to L that she told her mother that this conversation took place travelling home from the playground, which L denied.[75]
[74] T 53.
[75] T 53-54.
Asking to look at L’s knickers
In her second police interview, L said that there were occasions when she was at the accused’s home when the accused asked her what colour her knickers were and the accused asked her to show him by pulling her shorts down and he would usually tickle her in ‘that spot’ but not under the pants.[76] L said she meant her vagigi when using the words ‘that spot’.[77]
[76] Interview on 11/7/16, p 3 L 28-32.
[77] Interview on 11/7/16, p 7 L 3-7.
L also said there was an occasion when she was wearing underpants with a star on the front and the accused touched her underpants on the star.[78]
[78] Interview on 11/7/16, p 9 L 28-34.
In court, it was suggested to L that the accused never spoke to her about the colour of her knickers. L disagreed and said that this occurred ‘not very often, a few times, maybe five and in the lounge room’.[79] It was suggested to L that the accused never looked at her knickers or touched her knickers. L said he did.[80] L agreed that there were occasions where she did handstands or cartwheels and she told the accused the colour of her knickers but L said this occurred after the accused asked her about the colour of her knickers.[81]
Direction on uncharged acts
[79] T 54.
[80] T 54-55.
[81] T 55.
The prosecution sought to lead evidence of the uncharged acts, summarised above, for a non-propensity purpose, namely to explain how the accused was emboldened to commit the offences and to rebut any suggestion that the accused accidentally, as opposed to deliberately, touched L on the vagina on any of the three charged occasions.
I permitted the evidence to be led for those purposes as I was satisfied that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused, pursuant to s 34P(2)(a) of the Act. I was also satisfied that the permissible use of the evidence could be kept sufficiently separate and distinct from the impermissible use such as to remove any appreciable risk of the evidence being used for an impermissible purpose as required by s 34R of the Act. The evidence was not led in proof of the accused’s sexual attraction towards L, and I have not used it for this purpose or any other propensity purpose.
Of course, before I could use the evidence of the uncharged acts, summarised above, I would first need to be satisfied that they occurred.
I now direct myself as to how I cannot use L’s evidence of the uncharged acts. Even if I am satisfied that the uncharged acts occurred, that does not in any sense absolve me from the task of determining whether each of the charges themselves are made out. It is simply one part of the evidence presented in proof of each charged offence. I must not reason that because I am satisfied of any or all of the evidence of the accused’s uncharged acts involving L, he must necessarily be guilty of something and convict the accused of any of the charges. That would clearly be a wrong approach and I have not adopted it.
I direct myself that it would also be wrong for me to reason that because I am satisfied of any or all of the uncharged acts by the accused, that he is the sort of person who would be likely to commit the offences with which he is charged and therefore he is more likely to be guilty of any of the offences. Again, that would be a clearly incorrect approach and I have not adopted it.
I return to the prosecution case.
Evidence of KM – L’s mother
The prosecution led evidence from L’s mother, KM.
KM gave evidence that she moved to live in Port Lincoln at the end of 2013.[82] KM’s mother was living with her sister, the accused’s wife, in Port Lincoln.[83] KM has known the accused all of her life.[84] KM said that from early 2014 the accused would look after her youngest child, L, usually during the school holidays.[85]
[82] T 56.
[83] T 56.
[84] T 57.
[85] T 57.
KM said that on 11 January 2016, she left her daughter at the accused’s home at about 6.30 am. She finished her shift at 2 pm and went to collect L.[86] Upon arriving at the accused’s home, the accused came to meet her. KM said the accused was crying and shaking. KM said she asked the accused what was wrong and he replied ‘something’s gone terribly wrong today’. KM asked what had happened and after the whereabouts of L. The accused said L was in his wife’s workshop. The accused said ‘something’s gone terribly wrong today, I accidentally tickled L on the pussy and she got very upset’.[87] KM said L was not present for this conversation.[88]
[86] T 58.
[87] T 58-59.
[88] T 59.
KM said she next went to her aunt’s workshop. L was there with her aunt and another of her aunt’s grandchildren.[89] KM asked L to collect her things and come home with her.[90] After leaving the accused’s home, and whilst in the car travelling home, KM asked L what had happened. L said ‘mum, this wasn’t an accident, he did it on purpose’. KM said she asked L, ‘why do you think it was on purpose?’ L replied that the accused told her not to tell her mum because he’ll go to gaol and she, L, won’t be able to come and play here anymore. KM said L didn’t talk about the incident anymore at that stage.[91] KM said L was very quiet, not herself and a bit upset.[92]
[89] T 59.
[90] T 59.
[91] T 59-60.
[92] T 60.
L’s conversation with her mother in the car is said to be an elaboration on L’s initial complaint to L’s great aunt about the lounge room incident (count 3).
KM said that later that evening, L spoke with her further about the accused.[93] KM said L told her that each time L and the accused went to the park, the accused put her on the monkey bars and tickled her through her clothes.[94] KM said L told her there that the accused tickled her in the lounge room quite often.[95] KM said L told her that she was on the tractor with the accused and was sitting on the front in between the accused’s legs because she could not reach the pedals and he had his hands down her knickers.[96] This part of KM’s conversation with L was led as evidence of an initial complaint of the tractor incident (count 1).
[93] T 60.
[94] T 61.
[95] T 61.
[96] T 61.
KM said L told her she was too scared to tell her about the alleged incidents because the accused had said he would get in trouble and she wouldn’t be allowed to visit him again.[97] KM said L also told her that she didn’t disclose the alleged offending because every time the accused did something he would say ‘I’m sorry, I won’t do it again’.[98]
[97] T 61.
[98] T 61.
KM also gave evidence that prior to L’s second interview, L told her that on the occasion of the tractor incident, the accused said L’s skin felt soft like the skin of (his granddaughter).[99] During this conversation, L also told KM that when returning from the playground, the accused said ‘all I ever wanted is to have a photo of you on my phone without clothes on’, to which L replied no and the accused said okay.[100] KM said that L also told her that the accused would pull her shorts or leggings out to see what knickers she was wearing.[101] However, L did not say in her interview or in court, that she told her mother about the accused asking to see her knickers.[102]
[99] T 62.
[100] T 62.
[101] T 63.
[102] T 63.
KM said that as a result of those further disclosures by L she contacted the police and they interviewed L for a second time on 11 July 2016.[103]
[103] T 62-63.
In cross examination, it was suggested to KM that on 11 January 2016, upon arriving at the accused’s home to collect L, L was present when she first spoke with the accused.[104] KM disagreed.[105] KM denied the suggestion that she asked L in the presence of the accused, if he had accidentally touched her and L said ‘yes, mummy’.[106] KM denied that she then said to L: ‘I told you about those men. Poppa’s not like that. Get your gear and we’ll go.’[107]
[104] T 66.
[105] T 66.
[106] T 66.
[107] T 66.
KM agreed that when she provided a statement to police on 13 January 2016, she did not tell the police that L told her the following: that the accused told L not to say anything otherwise she couldn’t come and play anymore;[108] that the accused tickled L on the monkey bars;[109] or that the accused tickled L lots of times in the lounge room.[110] KM provided no explanation for why these matters were not in her police statement.
[108] T 68.
[109] T71.
[110] T 71.
KM also agreed that when she provided her statements to police on 13 January 2016 and 11 July 2016, she did not tell the police that L told her that the accused said that L’s skin felt soft like his granddaughter’s skin during the tractor incident.[111] KM said however, that she made a note dated 12 July which read ‘tractor tickling L inside pants. It feels like [C’s] skin’.[112]
[111] T 74-75.
[112] T 75.
KM agreed that her note dated 12 July did not refer to the photo being of L without her clothes on.[113] KM maintained however that L told her that the accused asked L for a photo of her without her clothes on but she simply did not make a note of all of the details of her conversation with L.[114]
[113] T 75.
[114] T 76.
It is an agreed fact that on 13 July 2016, KM attended the Port Lincoln Police Station and provided Senior Constable Saunders with a page containing her handwritten note dated 12 July 2016.[115] It is also an agreed fact that no addendum statement was taken from KM relating to the note and police may have advised KM that no statement was required as the note related to matters L had already disclosed in her interview dated 11 July 2016.[116]
[115] Agreed Fact 1, T 80.
[116] Agreed Fact 2, T 80.
KM agreed in cross examination that L recently told her that L and the accused were driving back from a playground (not Winter Hill) when the accused asked L for a photo of her without clothes.[117]
Directions on complaint evidence
[117] T 78.
The prosecution led evidence of L’s conversations with her mother, KM, about the tractor incident (count 1), the lounge room incident (count 3) and the uncharged acts to explain how L’s allegations first came to light and in support of L’s credibility.
There are clear differences between the evidence of L and KM as to the timing of the relevant disclosures and as to their content. In respect of the tractor incident (count 1), L said she did not tell her mother about the alleged incident on the tractor until a few days after the lounge room incident. However, KM said L told her about the tractor incident on the evening of the lounge room incident. Furthermore, KM said L told her that the accused had his hands down her knickers and not that the accused touched her on the vagina. There is nothing inconsistent between KM’s evidence with what L said in her police interview and in court. However, on KM’s evidence L does not actually complain of the alleged touching of the vagina itself.
In respect of the lounge room incident (count 3), L says in her first interview she told her mother about it on the day that it occurred after having initially complained to the accused’s wife. L said she made it clear to her mother that the accused’s alleged tickling or touching of her vagina was not accidental. KM said that L told her, in the car travelling home from the accused’s house, that the accused’s tickling of her vagina was not accidental.
In respect of the uncharged act of the photo incident, L said in her first interview that she told her mother ‘about the photo question’ on the day before the interview, that being 19 January 2016. KM said L told her about the photo incident on 12 July 2016, when she noted their conversation. KM said that L told her the incident took place on the way home from a playground, which is inconsistent with L’s evidence that the incident occurred on the way to Winter Hill.
I also note that KM said that L told her, on the evening of the lounge room incident, that the accused tickled her lots of times on the monkey bars yet L never disclosed any such occasions having occurred. Furthermore, KM in her initial statement to police on 13 January 2016, did not make any mention of L having told her that the accused tickled L on the monkey bars or in the lounge room lots of times and KM did not provide any explanation for why these matters were not in her police statement.
To my mind the evidence of L’s complaints to her mother, KM, summarised above, are clearly relevant to show how the allegations the subject of counts 1 and 3 and the uncharged acts first came to light. In respect of the lounge room incident (count 3), I am satisfied that L’s statement to her mother on the day of the alleged offence that the accused’s touching of her vagina was not accidental also supports L’s credibility. L made her complaint in a timely manner, first to the accused’s wife which was then elaborated upon to her mother. To my mind, L’s conduct in so doing is how you would expect a young child deliberately touched on her vagina in the circumstances described by L to behave. The content of L’s complaint to her mother is also consistent with L’s evidence in her police interviews and in court as it relates to count 3.
However, L’s other disclosures to her mother about the tractor incident and the uncharged acts do not buttress L’s credibility because of the inconsistencies between L’s and KM’s evidence in respect of the timing of the relevant conversations and their purported content. In fact, in respect of the uncharged act of the photo incident, KM’s evidence, which I accept, that L told her the relevant conversation took place while returning from a playground is inconsistent with L’s evidence that the conversation took place while travelling to Winter Hill and undermines L’s credibility on this uncharged act.
I have not used any of the evidence of L’s disclosures to her mother as evidence of the truth of the content of L’s statements. The evidence simply reveals how the allegations first came to light and, as it relates to count 3, is evidence of consistency of conduct on the part of L for the reasons I have set out above.
I also direct myself that there are many varied reasons why L has complained to her mother about the charged and uncharged incidents at particular times. I note that L was a very young child at the time of all of the alleged offending and it is common ground that L enjoyed many aspects of spending time with her great uncle. These are reasons which may well explain why L complained to her mother about the alleged offending at the particular times she did.
Accused’s record of interview
On 21 January 2016 police officers Constable Saunders and Detective Senior Constable Monks attended at the accused’s home in Port Lincoln at which time the accused participated in a record of interview with police.
During the interview, the accused was asked about the lounge room incident (count 3). He said:[118]
Well, yeah, I, I – Well, I just, I was, we were sitting here, well, she was playing on the computer, here, and we were just mucking around like you normally do, I mean, she’d been here, you know, not that often, but in the school holidays, she used to come here, er, ‘cos we, were sort of quite, quite, quite close, I suppose, as a-, well, to me, it was like, she’s my, like to be her father to her, because she, she hasn’t got a bloody father, you know, but anyway, and um, so we’re just, um, muck around and give her a bit of a tickle, she loves, loves tickle, and um, anyway, then she – And then when that stopped, she, I mean, because I was sort of, er, getting a bit tired, because I haven’t been sleeping well, because I’m on this stupid, bloody tablets all the time, and anyway, so we went and lied down, just over there. She’s playing the computer in this, right, right in this chair, and anyway, when I was laying down, er, er, she went to me, rah, you know, because when we done, rah, and will give a tickle, you know, and er, and then, er, I’ve been sort of, throw back to her, and, I mean, sort of back, sort of like that, and then, anyway, she put the computer down, she come over, so practically jump on me, you know, like, we all muck around. And anyway, I rolled over, and she fall on top of here, and so I give her a tickle on the tummy, and er, and um, she was, doesn’t mind, she, she’s like an octopus, she’s so, er, she’s a beautiful little creature, you know, I mean, sort of funny, er, and anyway, she fall down, so I tickle her, and she was pushing her hands around and I’m still tickling her, next minute she said, you touched me. I just freeze up. I honestly just freeze up. I didn’t know what to do, anyway, I got up and she got very upset, sitting there where, I don’t know, she just-, and er, and I said, what’s wrong. She said ‘you touch me’ and I sort of looked. I was, all accident, I didn’t mean to, you know, and, and then, of course, panic set in, so I said, look, you’re gonna cause a lot of problem, don’t say anything, you know, and then she said to me, no, Pappa, she said, I don’t like to keep secrets. And I, I was so proud of her, I just say, okay, well own up to your mother, when she comes, I’ll tell her, and I did tell her. Er, that was just outside there, but,, um, um, at the workshop, and she even, er, ask in front of me, she said, well, it was an accident. She said, yes. And that, I thought was, that was it. And then – (Music goes off). Oh, for me tablets, I got alarm for me tablets, so, don’t worry, I’ll get them later. And er, now where, I don’t even know where I was, I’m so bloody upset, stuffed up. And um, and yeah, I thought everything was okay, because she accepted, um, and I thought, yeah, nothing to it, really, but still upset, I mean, that should ne-, never happen. Um, and then her sister, she live with us, er, for quite a while actually, and she come for tea, and she’s just feels so strange, and I never thought much of it, but that’s, that’s the last time we see her, and, and now we just wonder, we try to ring, um, try to call them, to them, they wouldn’t talk to us, and now you turn up, so that’s, that sad, because I’m quite happy now, at least I know, bloody, where you’re standing here because I, what I really should, should have done, you’ve got no idea.
[118] ROI 21/1/16, p 3, L 27 - p 5, L 4.
During the interview, the accused agreed that L had been coming to their house during the school holidays for a couple of years.[119] The accused said that he would take L for a drive, to the park and they would go and feed the chooks.[120]
[119] ROI 21/1/16, p 13, L 23-29.
[120] ROI 21/1/16, p 6, L 25-28.
The accused agreed that there was an occasion when he drove with L to Winter Hill Lookout but he denied having asked L to take photographs of her private parts. He responded ‘oh, come on, that’s a bloody fabricated lie’.[121]
[121] ROI 21/1/16, p 14, L 1-11.
The accused agreed there was an occasion when he took L on the tractor.[122] He agreed that L could not reach the tractor’s pedals.[123] The accused said L was standing up and driving and he had a hand around her stomach.[124] The accused denied placing his hand down L’s pants and touching her underneath her knickers.[125]
[122] ROI 21/1/16, p 15, L 28 - p 17, L 4.
[123] ROI 21/1/16, p 16, L 5-6.
[124] ROI 21/1/16, p 16, L 12-13.
[125] ROI 21/1/16, p 17, L 17-23.
The accused agreed that he took L to the playground but denied ever touching her on the vagina at the playground.[126] He said there was an occasion when he caught L as she came off the swing/slide and he slipped and his hand went between L’s legs to avoid dropping her.[127]
[126] ROI 21/1/16, p 18, L 1-13.
[127] ROI 21/1/16, p 18, L 14-25.
The accused volunteered that while he was looking after L at his home, L had been doing gymnastics such as cartwheels and handstands and L would ask him to grab her legs.[128] The accused also said they would play hide and seek and he would chase her all over the house but nothing ever occurred between them of a sexual nature.[129]
[128] ROI 21/1/16, p 19, L 18-33.
[129] ROI 21/1/16, p 20, L 7-11.
The accused was asked about the last occasion he looked after L. The accused agreed L said he had touched her and the accused told her not to tell anybody because if L did he would go to gaol.[130] The accused said he panicked and that is why he made the comment.[131] The accused said L told him ‘I don’t like keeping secrets’ and he, the accused, said he was proud of her for responding in that way.[132]
[130] ROI 21/1/16, p 21, L 13-18.
[131] ROI 21/1/16, p 21, L 20-29.
[132] ROI 21/1/16, p 21, L 25-29.
The accused denied each of the charges during the police interview.
No case to answer submissions
Counsel for the accused submitted that there was no case to answer in respect of each charge as there was insufficient evidence which, if accepted, was capable of proving the first element of each offence, that is, the accused’s touching of L’s vagina.
Defence counsel contended that, first, during L’s interview on each occasion when L is pointing to the part of her body where the accused was touching or tickling her, she is pointing to her lower stomach area or the upper pubic bone and not her vagina. Secondly, it is submitted that L was never asked by the interviewing police officer to specifically point out which part of her body the accused was touching, for example, on a doll or a diagram. Thirdly, it is argued L’s actual descriptions of where the accused was touching her on each charged occasion are confused and lack clarity.
It is submitted that the evidence when looked at as a whole is insufficient, even if accepted, to establish beyond reasonable doubt the first element of each charged offence.
I turn to consider the relevant evidence in more detail.
During the first interview, L said that the accused, while on the tractor, was touching her private parts inside her knickers.[133] L clarified that another name for her private parts is a vagigi.[134] While saying this L pointed at an area which I am satisfied indicated the general area of her vagina.[135] Later in the same interview, L is asked whether the accused touched her inside her vagigi or on the outside of her vagigi.[136] She again points at what I consider is the general area of her vagina and gave the following answers:[137]
QOK. So you do. Yeah. You know what it means. So I just want to ask when he was touching you.
AInside.
QInside. OK. And when you say inside you’re saying inside your… Can you tell me what you mean.
ANot exactly on my vagigi. Just up the top.
[133] Interview 20/1/16, p 3.
[134] Interview 20/1/16, p 3.
[135] Interview 20/1/16, p 3.
[136] Interview 20/1/16, p 7.
[137] Interview 20/1/16, p 8.
Later in the interview, L says that during the playground incident, the accused tickled her on the outside of her pants.[138] L is then asked a series of questions about where on her body the accused tickled her. L gave the following answers, during which L again pointed to an area which I consider to be the general area of her vagina.[139]
QOK. So on the outside. Yeah. And can you point to where he’s tickled you.
AYes. There probably at the top.
QAt the top. OK. And nowhere else?
ANo.
QAnd nowhere else?
ANo.
[138] Interview 20/1/16, pp 17-18.
[139] Interview 20/1/16, p 18.
L also said during the first interview that during the lounge room incident, the accused tickled her on the vagigi.[140] In respect of the lounge room incident, I also note the uncontested evidence that the accused said to KM: ‘I accidentally touched L on the pussy’.
[140] Interview 20/1/16, pp 4,11.
Towards the end of the first interview the police officer clarifies what L means by the word ‘vagigi’. L was asked the following questions and gave the following answers:[141]
QOK. I just want to make sure. I know you call it vagigi. Do you know what other people call it? Can you tell me a name or two just so I know we are talking about the same thing.
AThe fanny or the vagina.
QThat’s right. Just want to make sure because so many people have different names. You could be calling that your leg. I just want to make sure we’ve got the same idea of what you mean. Thank you.
[141] Interview 20/1/16, p 19.
I have reviewed both interviews closely. As summarised above, at the outset of the first interview, L was asked what she meant by the term ‘private parts’. L said she called it her ‘vagigi’. At the end of the first interview, L further qualified that another word for ‘vagigi’ is ‘fanny’ or ‘vagina’. On each occasion, when L is asked to show where the accused touched her, I am satisfied L points to the general area of her vagina. In those circumstances, I am satisfied that L’s evidence, if accepted, is evidence which could prove beyond reasonable doubt the first element of each offence, namely that the accused touched her on the vagina.
I find there is a case to answer in respect of each charged count.
Defence case
I turn to the defence case.
The accused called evidence from a Mr Nikolajevic as to his good character.
Mr Nikolajevic gave evidence that he first met the accused in around 1963, both men having emigrated from Europe to Australia.[142] He said they have remained close friends since that time.[143] Mr Nikolajevic gave evidence that he was aware of the charges against the accused.[144] However it became apparent during the prosecutor’s cross examination of the witness that he was unaware of the detail of those allegations. Mr Nikolajevic was not aware of the alleged frequency of the alleged touching[145] or on what part of L’s body the accused allegedly touched L.[146]
[142] T 82.
[143] T 82.
[144] T 84.
[145] T 87.
[146] T 88.
Mr Nikolajevic gave evidence that the accused’s reputation amongst the ethnic community in Port Lincoln is well known and that he is well respected.[147] He described the accused’s reputation as ‘next to none’. He said that he has not heard anything bad spoken about the accused.[148]
[147] T 84.
[148] T 84.
Mr Nikolajevic said he had observed the accused with L, and that he had never seen anything out of the ordinary between the accused and L.[149] He said that the accused and L appeared to have a good relationship.[150]
[149] T 85.
[150] T 87.
After the detail of the allegations were made known to Mr Nikolajevic during cross examination, he said that those details did not change his good opinion of the accused nor his evidence about the accused’s good reputation.[151]
[151] T 90-91.
I also received a statement of Ms Pauline Mislov.[152] She is now 66 years old and has known the accused since she was 13. Ms Mislov said that the accused is known within the community of Port Lincoln to have an untarnished reputation. She said the accused is known as a hard-working, family oriented person. Ms Mislov said that Port Lincoln is a small community and she has never heard a bad word said about the accused.
[152] Tendered as D7.
It was an agreed fact that the accused has no criminal convictions and there is no police record of any other allegations of a sexual nature having been made against him.[153]
Directions on the accused’s good character
[153] D8, T 92.
I direct myself that I should bear in mind the accused’s previous good character when considering whether I am prepared to find the accused guilty of all or any of the charges. I bear in mind that the accused’s previous good character is a factor affecting the likelihood of the accused having committed the charged offences. I have also considered the accused’s previous good character in assessing the credibility of the explanations given by him during his record of interview with police.
Analysis
The prosecution case rested almost entirely on L’s evidence as set out in her interviews and in court. There is no evidence independent of L which materially supports the prosecution case. I remind myself of my earlier warning of the need for caution in determining whether to accept L’s unsworn evidence and the weight to be given to her evidence.
I have considered the evidence in respect of each charge separately, and while some of the evidence is common to more than one charge, the charges do not necessarily rise and fall together. I have considered each count quite separately.
L was a very young child at the time of the alleged offending. There was a lack of clarity and detail in her evidence which in many respects is consistent with her young age. However, L’s evidence also lacked cogency in some material respects. I turn in more detail to my reasons for so finding in respect of each charge.
Count 1
There is no dispute that the accused had opportunity to commit this offence. The accused admitted in his interview that there was an occasion when he and L were riding alone on the tractor, and it was common ground that the accused had his arm around L’s stomach while riding on the tractor on one such occasion.
In the context of that common ground, it was important that L was able to clearly describe where the accused indecently touched her and the context in which it occurred.
During L’s first police interview, L said she was on a tractor with the accused and he was touching her private part inside her knickers. However, when asked as to the precise location of the touching she said ‘not exactly on my vagigi just up the top’.[154] The interviewing officer did not further clarify what was meant by that answer, nor did the police officer clarify the precise location of the alleged touching by using a chart or diagram. Furthermore, it was not until the second police interview, that L provided further detail about the incident by saying that the accused, after touching her ‘vagigi’, told her that her skin felt really nice and like her baby cousin’s skin, which was really nice.[155] There was no further detail from L about the circumstances in which the alleged indecent touching occurred.
[154] Interview on 20/1/16, pp 7-8.
[155] Interview on 11/7/16, p 20.
L’s credibility in respect of count 1 was not buttressed or supported by her disclosure to her mother for the reasons set out above, and there is no evidence independent of L to support her allegations.
Count 2
There was a lack of clarity about L’s evidence in respect of the playground incident. In L’s first interview, she said the accused touched her on the ‘vagigi’ on the outside of her pants, and that he tickled her ‘probably at the top’.[156] Again the precise location of the accused’s touching was not clarified, which was significant in this trial because it was common ground that there was at least one occasion when the accused held L at the playground as she came off a piece of equipment, causing him to touch her between her legs. On the defence case, any such touching was not of L’s vagina and/or accidental.
[156] Interview on 20/1/16, p 8.
During that first interview, L said she did not know how the accused picked her up prior to touching her.[157] Yet, in court, L said that she was standing on a higher platform when the accused picked her up by grabbing her by the waist with one hand and placing his other hand between her legs.[158] L said he started tickling her rude part with his hand which was between her legs, while holding her off the ground.[159] L said that she had come off a flying fox and was standing on the platform immediately before this occurred.[160] L provided none of the abovementioned detail in her police interviews.
[157] Interview on 20/1/16, p 18.
[158] T 50.
[159] T 50-51.
[160] T 52.
Furthermore, in court, L was asked to describe what she meant by the term ‘touching’. L said the accused ‘rubbed it, I don’t know’,[161] which is different to her description of the accused tickling her as provided in her first interview.
[161] T 52.
L’s account of the playground incident differed significantly in court from that provided in her first interview and was undermined by a lack of clarity as to the location of, and nature of the alleged touching. I also thought the mechanics of what L ultimately described in her evidence in court as inherently unlikely, that is, that an elderly man would hold a child in the air with one hand while tickling or touching or rubbing her vagina with another hand.
Count 3
L initially said in her first police interview that the accused was touching her under her pants, but not under her knickers.[162] Later in that first interview, L provided further detail including that she was lying down on the floor and the accused was kneeling in front of her while tickling her on the vagigi.[163]
[162] Interview on 20/1/16, p 5.
[163] Interview on 20/1/16, pp 10-11.
In L’s second interview with police, L elaborated upon her earlier interview and said that the accused was also rubbing her legs on this occasion while she was lying down with her legs straight up.[164] L said that this was the only time the accused was rubbing her legs.[165]
[164] Interview on 11/7/16, p 8.
[165] Interview on 11/7/16, p 9.
In court, defence counsel suggested to L that the accused did not tickle her on her vagina. L said ‘I don’t know’. L was asked ‘what do you mean by that, what do you mean that you don’t know?’ L said ‘I don’t remember’.[166] L said however that she can recall the accused rubbing her legs on this occasion.[167]
[166] T 41.
[167] T 41.
While L’s evidence in respect of this charge was supported by her timely complaint to her mother, L’s evidence was also undermined by the fact that her version of events has changed over time. Furthermore, in court L said ‘she could not remember’ when it was suggested to her that the accused did not tickle her on the vagina.
Uncharged acts
The prosecution led evidence of the uncharged acts summarised above to explain how the accused was emboldened to commit the offences and to rebut any suggestion that the accused accidentally, as opposed to deliberately, touched L on the vagina on any of the three charged occasions.
Before I could use the evidence of the uncharged acts, I first needed to be satisfied beyond reasonable doubt that they occurred. Ultimately I could not be so satisfied for the following reasons.
‘The photo incident’
In her first police interview, L said that the accused said to her: ‘I would like you to take a picture of your ... Don’t remember what he said, but my vagigi.’ L said she replied ‘no, I don’t want to’.[168] L said this conversation occurred while they were driving to a town called Winter Hill.[169] Yet, KM gave evidence that L told her that this conversation occurred travelling home from the playground.[170] L denied saying that to her mother.[171] I preferred KM’s evidence on this topic. KM was clear and precise about the content of her more recent conversation with L. Furthermore, the accused denied in his police interview having had such a conversation at all.
[168] Interview on 20/1/16, p 5.
[169] Interview on 20/1/16, p 6.
[170] T 78.
[171] T 54.
I was not, in all the circumstances, satisfied of the photo incident having occurred.
Accused asking to look at L’s knickers
The second body of evidence of uncharged acts related to the accused asking to see L’s knickers and touching her on the vagina over her knickers on uncharged occasions. L did not say anything in her first interview about other uncharged occasions of touching or of the accused asking to see her knickers. L did not tell the police about these matters until the second interview, despite being clearly asked in the first interview whether there were any other incidents of touching, and responding no.
Ultimately, I was not persuaded of any of the uncharged acts such that I could use that evidence to rebut accidental touching by the accused of L’s vagina on any of the charged occasions. Nor could I use the evidence to strengthen the prosecution case by explaining how the accused became emboldened to commit the charged offences, confident that L would not complain.
Conclusion
I have had regard to the well-made closing submissions of prosecuting counsel during which it was submitted that L was a witness who lacked the sophistication to craft a story of the accused touching her vagina during three separate incidents about which there was no dispute that the events surrounding those occasions occurred. It was submitted by the prosecution that L presented as an unsophisticated but forthright witness who made appropriate concessions in her evidence. For example, L agreed that there were occasions of innocent tickling and that there were many good and pleasant aspects of her relationship with the accused. L also said she had no ongoing feelings of antipathy towards the accused as she was ‘over it now’.
Furthermore, it was said that the accused’s reaction to the ‘lounge room incident’ was not consistent with an accidental or innocent touching by the accused of L. The prosecution submitted that the accused’s actions after the lounge room incident are so far removed from normal adult behaviour that they are not consistent with his innocence. I do not accept that submission. To my mind the accused’s conduct on the afternoon of the lounge room incident (count 3) is also consistent with an elderly man having panicked.
Similarly, the prosecution submitted that the accused’s memory of the innocent occasions during which the alleged touching occurred (the tractor and playground incidents) is extraordinary if the alleged touching had not occurred or was accidental. Again I am not persuaded by that submission. On a close reading of the police interview the accused is directed to certain occasions upon which the offending is alleged to have occurred and the accused then provides what detail he can recall from each specified occasion.
After considering the whole of the evidence, including the accused’s record of interview with the police in which he denied the alleged offending and his previous good character, I am not satisfied beyond reasonable doubt as to L’s evidence of the accused touching her on the vagina on each of the charged occasions.
I make it clear that I did not form the view that L was a dishonest witness or a liar. However, L was a very young child at the time of her interviews and at the time of the trial. I am left with doubts as to the reliability and accuracy of L’s evidence about the charged offences. In those circumstances I was not satisfied beyond reasonable doubt of any of the charged offences.
Verdict
I find the accused not guilty of counts 1, 2 and 3.
0