R v R, G
[2019] SADC 91
•1 July 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, G
Criminal Trial by Judge Alone
[2019] SADC 91
Reasons for the Verdicts of His Honour Judge Beazley
1 July 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - JURISDICTION - PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - HISTORICAL SEX OFFENCES ALLEGED
Defendant charged with one count of unlawful sexual intercourse of a child, D, then aged under 12 years contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 1); and one count of maintaining an unlawful sexual relationship with a child, L, then aged under 17 years contrary to s 50(1) of the CLCA (count 2) - offences alleged to have been committed by the defendant between 1988 and 1994 - The two complainants are sisters, and are nieces of the defendant - the defendant was found to be mentally unfit to stand trial - finding recorded - the trial then proceeded as to the objective elements of each alleged offence - complainants were adults at the date of trial - the defendant elected for trial by judge alone - cross admissibility of evidence discussed - question of forensic disadvantage to the defendant - whether amendment to s 49(1) of the CLCA on 15 May 2006 to create the offence of unlawful sexual intercourse of a child under 14 years in lieu of that of a child under 12 years affects prosecution - the particulars to count 1 amended to substitute the words 'then aged under 12 years' for those in count 1 - whether delay in prosecuting the defendant could result in an unfair trial - whether evidence of offences improbable.
Held: As to count 1 the prosecution case is solely reliant upon the evidence of D being accepted as both truthful and reliable beyond reasonable doubt. There were substantial inconsistencies between D and the recollections of others called as witnesses - while the court accepts that D honestly believes that the charged event did occur in the manner to which she deposed, her description of the charged event is inherently improbable. That coupled with the inconsistencies and the long delay inevitably must lead to a conclusion that the prosecution has failed to prove the objective elements of the charge.
Accordingly the objective elements have not been proved beyond reasonable doubt by the prosecution.
Held: As to count 2, for the reasons set out herein, I am satisfied beyond reasonable doubt by the prosecution of each of the objective elements of count 2.
Criminal Law Consolidation Act 1935 (SA) ss 49, 50, 269M and 269N; Evidence Act 1929 (SA) ss 34CB, 34P, 34R and 34S, referred to.
R v Bauer [2018] HCA 40; Ayles v The Queen [2008] HCA 6; R v W, GC (No 2) [2007] SASC 129; McPhillamy v The Queen [2018] HCA 52; Hughes v The Queen [2017] HCA 20; R v Maiolo (No 2) (2013) 117 SASR 1; R v R, G [2017] SASCFC 128; Gax v The Queen [2017] HCA 25; Chiro v The Queen [2017] HCA 37; Imm v The Queen [2016] HCA 14; Hamra v The Queen [2017] HCA 38; R v March [2014] SASCFC 54; R, BH v The Queen [2011] VSCA 121; Huggins v The State of Western Australia [2018] WASCA 61; R v C, CA [2013] SASCFC 137; R v M, BJ (2010) 110 SASR 22; Douglass v The Queen [2012] HCA 34; R v Bolte [2010] SASC 112; R v S [2015] SASCFC 179; Tyrrell v The Queen [2019] VSCA 52; Subramaniam v The Queen [2004] HCA 51; R v W, CT [2019] SASCFC 18; R v Hayles [2018] SASCFC 58; R v Taylor [2014] SASCFC 112; R v Abdulla (2005) 93 SASR 208; R v Miller (No 2) [2000] SASC 147; R v R, G [2016] SADC 162; R v Cassebohm (2011) 109 SASR 465; Fleming v The Queen (1998) 197 CLR 250; Hargraves v The Queen [2011] HCA 44; BCM v The Queen [2013] HCA 48; Markou v The Queen [2012] NSWCCA 64; Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; R v W, PK [2016] SASCFC 5; R v Parry [2017] SASCFC 66; R v T, S [2017] SASCFC 67; R v Heinze [2017] SASCFC 155; R v Bonython-Wright (2013) 117 SASR 410; R v M, DV [2019] SASCFC 59; R v R, PA [2019] SASCFC 19; R v Becirovic [2017] SASCFC 156, considered.
R v R, G
[2019] SADC 91Criminal Trial on objective elements, by Judge alone
Introduction
G R, (the defendant),[1] is charged on Information dated 23 July 2018, (the current Information) with one count of Unlawful Sexual Intercourse[2] with the complainant, to whom I will refer as D, (Count 1); and one count of Maintaining an Unlawful Sexual Relationship with a Child,[3] in respect of a separate complainant to whom I will refer as L, (Count 2).
[1] I will employ pseudonyms when referring to the complainants, the defendant and other witnesses to ensure there is no breach of s 71A(4) of the Evidence Act 1929 (SA). I refer to GR as the ‘defendant’ in accordance with s 269M of the Criminal Law Consolidation Act 1935 (SA) (the ‘CLCA’).
[2] Contrary to s 49(1) of the CLCA.
[3] Contrary to s 50(1) of the CLCA.
The respective complainants, D and L, are sisters. The defendant is their uncle, by marriage.
The prosecution alleges that the defendant committed the offence in Count 1 against D between 31 December 1989 and 1 February 1993. It was an agreed fact that D was born on 3 February 1981. She was therefore aged between 8 years and 11 years, as at those dates in the particulars.
As at the time of trial D was aged 37 years.
The prosecution alleges that the defendant committed the offence in Count 2 against L between 31 December 1988 and 1 January 1994.
L was born on 16 February 1979. She was therefore aged between 9 years and 14 years, as at those dates in the particulars. At the time of trial L was aged 39 years.[4]
[4] Statement of Agreed Facts – Ex P7.
The respective counts
It is convenient now to set out, in detail, each count, prior to amendment, as particularised in the current Information as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G R, between the 31st day of December 1989 and the 1st day of February 1993 at Hawker or another place, had sexual intercourse with D, a person under the age of 14 years, by inserting his finger into her vagina. (my emphasis)
Second CountStatement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G R between the 31st day of December 1988 and the 1st day of January 1994 at Plympton and other places, maintained an unlawful sexual relationship with L, a person under the age of 17 years, by engaging in two or more unlawful sexual acts towards her, namely:
(a) inserting his finger into her vagina on more than one occasion;
(b) inserting his penis into her vagina on more than one occasion;
(c) causing her to touch his penis on more than one occasion;
(d) touching her breasts on more than one occasion;
(e) kissing her on the mouth on more than one occasion.
·A retrial
The defendant had previously been charged on Information dated 29 June 2016 (the previous Information) with three alleged offences. Count 2 on the previous Information specified the same alleged offence of Unlawful Sexual Intercourse involving D and the same particulars as those in Count 1 of the current Information. Count 3 on the previous Information specified the alleged offence of Persistent Sexual Abuse of a Child involving L contrary to s 50(1) of the CLCA.
Section 50(1) of the CLCA was amended by Parliament, which amendment had the effect that the charge in Count 3 on the previous Information was repealed, as and from 24 October 2017.
The charge of Maintaining an Unlawful Sexual Relationship with a Child as set out in Count 2 of the current Information was substituted. While the particulars remain the same as in the previous Information, some of the elements of the charge in the current Count 2 are different.[5]
[5] By s 6 of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) the offence under s 50(1) of the CLCA was repealed. The charged offence in count 2 was substituted. That Act was proclaimed to commence on 24 October 2017. See also R v M, DV [2019] SASCFC 59.
That previous Information had also contained an additional count, being that of Indecent Assault against D.
The previous trial had commenced on 29 June 2016. The prosecution conceded that the defendant was mentally unfit to stand trial at that time. That previous trial accordingly proceeded on the objective elements of each of the three counts on the previous Information, and before a Judge without a jury.[6]
[6] Juries Act 1927 (SA) s 7.
That Judge concluded that the objective elements of those charges equivalent to counts 1 and 2 on the current Information, were proved beyond reasonable doubt. While satisfied as to D’s credit and reliability, his Honour was not however satisfied as to the elements in respect of the additional count of Indecent Assault allegedly committed against D.[7] His Honour had been ‘left in doubt’ about that alleged offence because, essentially, D’s evidence was not supported by the evidence of L, as to that additional count.
[7] R v R, G [2016] SADC 162.
The defendant appealed against the findings of the trial Judge with respect to the equivalent charges to those in counts 1 and 2. That appeal was allowed and the Judge’s findings as to the objective elements of the equivalent of the subject counts 1 and 2 were set aside. They were remitted for a retrial.[8]
[8] R v R, G [2017] SASCFC 128.
Count 1 on the current Information - Unlawful Sexual Intercourse
·Amendment to Count 1 of the particulars
There was an error in the initial particulars to Count 1, in that they referred to D being ‘a person under the age of 14 years’. These particulars were in the same form as the charge in Count 2 on the previous Information.
At the time of the alleged offending by the defendant, the offence of Unlawful Sexual Intercourse under s 49(1) of the CLCA was restricted to such acts against a ‘child under the age of 12 years’.
It was not until 15 May 2006 that s 49(1) was amended to cover such acts against ‘a person under the age of 14 years.[9]
[9] See Statutes Amendment (Sentencing of Sexual Offenders) Act 2005 (SA) s 11, which only applies to offences committed on or after 15 May 2006. See R v W, GC (No 2) [2007] SASC 129.
Neither the trial Court on the previous trial, nor the Court of Criminal Appeal made any reference to the particulars of the then charge. I assume that those particulars did not come to their respective attention. The defendant is charged in Count 1 with the offence, under s 49(1) of the CLCA, as at the dates particularised in the current Information.
The charge of Unlawful Sexual Intercourse with a person under the age of 12 years pursuant to s 49(1) of the CLCA, in force between 1989 and 1993, is a separate and distinct offence from that under s 49(3) of the CLCA in respect of a person aged under 17 years.
I invited counsel to address the Court as to whether the particulars to Count 1 should be amended to substitute the words ‘under the age of 12 years’ for the words ‘under the age of 14 years’ in the current Information. I repeat that the prosecution case, at all times, was that D was aged under 12 years as at the date of the alleged offence. I heard brief submissions by counsel as to that amendment. Very properly counsel conceded that there could be no embarrassment to the defendant.[10] There is no doubt that the Court does have the power to order such an amendment.
[10] See Ayles v The Queen [2008] HCA 6.
I readily accept that any amendment to the particulars after the completion of evidence is a significant step. See R v Kerin.[11] Ultimately there was no opposition to the amendment sought by the prosecution. Indeed, rather than being prejudiced the amendment did give rise to a submission by the defendant that it was possible, on the evidence, that the event, the subject of the amended Count 1, had occurred when D had already turned 12 years. I will discuss that evidence later in these reasons.[12]
[11] [2013] SASCFC 56 at [229]-[248].
[12] T[58]; [74.12]; [215.6 and .35]; [221]; [286.21]; [314] and [317].
I accept that the particulars in Count 1 were simply an oversight. I made an order permitting the amendment to the Information, substituting the words ‘under the age of 12 years’ for the then words in the particulars to Count 1.[13]
[13] T (28/05/19) at [2]-[3].
The amendment was endorsed accordingly.
The elements of the amended Count 1 on the current Information
The offence contains three elements, each of which must be proved by the prosecution beyond a reasonable doubt. They are as follows:
·The first element is that the defendant had sexual intercourse with the complainant D
At the relevant time of the alleged offence, ‘sexual intercourse’ was defined in s 5 of CLCA to include the act of penetration of the vagina of a complainant by any part of the body of another person or by any object.
The prosecution alleges that the defendant had sexual intercourse with D by inserting his finger into her vagina, between 31 December 1989 and 1 February 1993.
The defence denies that any act of sexual intercourse occurred at all between D and the defendant.
·The second element is that complainant D was under the age of 12 years at the time of the act of sexual intercourse
The prosecution must prove beyond reasonable doubt that D was aged under 12 years at the time of the alleged act of sexual intercourse.
The prosecution alleges that D was aged between 8 and 11 years at the time of the alleged offence.
It was an agreed fact that the complainant D was born on 3 February 1981. On the amended particulars, D was aged between 8 and 11 years between 31 December 1989 and 1 February 1993.
Subsequent to the amendment, the defendant does not accept that D was aged under 12 years as at the date of the alleged offence.
·The third element is that the act of sexual intercourse was unlawful
If the prosecution has proved both elements 1 and 2 hereof beyond reasonable doubt, then in light of the age of the complainant D at the time, there can be no dispute that the act of digital penetration of D’s vagina was unlawful.
A child under the age of 17 years is unable to consent to sexual intercourse.
·Count 2 – Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the CLCA
·The nature of the charge in Count 2
An adult person is guilty of the charged offence if the prosecution proves beyond reasonable doubt that within the charged period, he maintained an unlawful sexual relationship with a child under the age of 17 years.
The relevant offence of Maintaining an Unlawful Sexual Relationship with a Child, and indeed in its previous form, was enacted by Parliament to provide for those cases wherein a child may not remember in sufficient detail when and where the individual unlawful sexual acts had occurred. Accordingly, while some alleged acts may be capable of being adequately particularised, others may not be so capable.[14]
[14] R v Livingstone [2011] SASCFC 28.
The difficulties, over time, with respect to each of the various forms of the charge in s 50(1) of the CLCA were the subject of considerable dicta in decisions of the Court of Criminal Appeal in Question of Law Reserved (No 1 of 2018),[15] R v M, BJ,[16] R v Little,[17] R v Hamra,[18] R v Chiro,[19] and R v Johnson.[20] Those decisions were recently considered by the High Court of Australia in Chiro v The Queen,[21] Hamra v The Queen,[22] and Johnson v The Queen.[23]
[15] [2018] SASCFC 128.
[16] [2011] SASCFC 50.
[17] [2015] SASCFC 118.
[18] [2016] SASCFC 130.
[19] [2016] SASCFC 142.
[20] [2015] SASCFC 170.
[21] [2017] HCA 37.
[22] [2017] HCA 38.
[23] [2018] HCA 48.
In Hamra v The Queen, supra, when considering the previous form of the charge under s 50(1) of the CLCA, the Court disavowed the need to identify the two or more particular acts of sexual exploitation with a degree of specificity so as to differentiate them from other such acts. It said at [28]-[46]:
Neither the common law nor s 50 of the Criminal Law Consolidation Act precludes a judge … from deducing a conclusion by simple and obvious logic, provided, of course, that [it] reach[es] the conclusion as to the same two or more acts …
To the extent that those propositions suggest that some greater degree of particularity is required beyond that which sufficiently identifies two or more particular acts within s 50(1), separated by three days or longer, those propositions are incorrect … it would be sufficient if the jury (or judge in a trial by judge alone) were to accept that acts which could be the subject of the charge of a sexual offence occurred every night, or every weekend, over a period of two months without further differentiation of the particular occasions of the offending.
In Chiro v The Queen, supra, the High Court held, upon a verdict of guilty upon a charge brought under the predecessor s 50(1), that the trial Judge may exercise his or her discretion to ask the jury to identify which of the particularised acts of sexual exploitation they agreed had been proved, so as to provide the factual basis for sentence. If the trial Judge did not do so, then the prisoner must be sentenced on the basis most favourable to the prisoner.
However, when Parliament substituted the current form of the charge, it purported to require, contrary to the dicta in Chiro, that if the Judge did not ask the jury, the Court must sentence on the basis that the jury had found that all of the acts so particularised in the charge had been proved beyond reasonable doubt.[24] The Full Court of the Supreme Court has subsequently concluded that the relevant sentencing clause of the amending Act is invalid.[25]
[24] See op‑cit.n.5 from 24 October 2017.
[25] Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128.
In R v M, DV,[26] a majority of the Court of Criminal Appeal, determined that the ‘actus reus of the offence is the maintenance of a relationship, which need not be a sexual one, in which … an adult engages in two or more unlawful sexual acts with a child’. That Court held that it is not an element of the offence created by s 50(1) of the CLCA that there was a ‘sexual relationship’. It was however an element of the offence that there was a ‘relationship’ (but not necessarily a sexual relationship) between the defendant and the complainant in the course of which the defendant engaged in the unlawful sexual acts.
[26] [2019] SASCFC 59 (In the subject case the allegation is that L was the defendant’s niece, but that the relationship was also a sexual relationship).
The elements of Count 2 on the current Information
The charged offence contains four elements, each of which must be proved by the prosecution beyond a reasonable doubt.
The elements are as follows:
·The first element is that the defendant was an adult at the time of the acts upon which the charge is based.
A person is an adult if he or she is aged 18 years or older. This element is not in dispute. It is an agreed fact that the defendant was born on 5 July 1939 and was therefore aged over 18 years at all relevant times.
·The second element is that the complainant L was during the relevant period a child under the age of 17 years.
It is an agreed fact that the complainant L was born on 16 February 1979 and was therefore aged between 9 years and 14 years as at the times particularised in Count 2.
·The third element is that during the relevant period the defendant was in a relationship with the complainant L in the course of which the defendant engaged in two or more unlawful sexual acts with the complainant L.
‘An unlawful sexual relationship’ is defined as a relationship in which the defendant, as an adult, engaged in ‘two or more unlawful sexual acts’ with or towards a particular child, in this case the complainant L, during the period particularised.
The prosecution case is that L was the defendant’s niece and the defendant was in part her de facto carer at the time. Accordingly, this defined the ‘relationship’, in the course of which the defendant engaged in the two or more unlawful sexual acts detailed in the particulars in Count 2. In any event, on that case, the ‘relationship’ was also a ‘sexual relationship’.
‘An unlawful sexual act’ means, if sufficiently particularised, a ‘sexual offence’.
‘A sexual offence’ relevantly means an offence against Division 11, or ss 63B, 66, 69 or 72 – other than ss 59 and 61 of the CLCA. I set out the elements of the relevant alleged sexual offences after discussing whether there is a fourth element of the subject Count 2.
·There remains a question whether there is a fourth element, namely that the defendant ‘maintained’ the unlawful sexual relationship with the complainant L during the relevant time particularised in Count 2.
In R v M, DV, supra, the Court determined that there was no such fourth element, at least on the facts of that case.
The word ‘maintained’ means ‘carried on’, ‘kept up’ or ‘continued’. Accordingly, the prosecution must prove that there was some continuity of the unlawful sexual acts. Contrast the factual circumstances in McPhillamy v The Queen,[27] in which the acts were isolated. In the subject case, nothing turns upon the question of ‘maintained’, because on the prosecution case if elements 1, 2 and 3 have been proved beyond reasonable doubt then the unlawful sexual relationship was maintained.
· The alleged sexual offences particularised for the purpose of the third element
[27] [2018] HCA 52. Cf R v DAT [2009] QCA 181.
I turn now to the elements of the three types of ‘sexual offences’ which the defendant is alleged to have committed by performing the acts particularised in the current Information.
·Unlawful Sexual Intercourse
The alleged acts:
· Inserting his finger into the complainant’s vagina on more than one occasion.
· Inserting his penis into the complainant’s vagina on more than one occasion.
The relevant alleged offence depends upon proof of the age of the complainant L, at the time of the alleged ‘sexual act’.
If L was aged under 12 years at the time of the act, the relevant charge is that of Unlawful Sexual Intercourse with a person under the age of 12 years under s 49(1) of the CLCA.
If, however, the complainant was aged 12 years or over and under the age of 17 years at the time of the alleged ‘sexual act’, the relevant charge is that under s 49(3) of the CLCA.
I do not need to repeat the elements of this offence.
·Indecent Assault
The alleged acts:
· Kissing the complainant on the lips in circumstances of sexual lewdness.
· Touching the complainant’s breasts in circumstances of sexual lewdness on more than one occasion.
An indecent assault is an assault committed in circumstances of indecency.
The prosecution must prove the following four elements beyond reasonable doubt:
· That the defendant intentionally applied force against the complainant. A touching would suffice.
· That the assault was deliberate as opposed to accidental.
· That the application of force occurred in circumstances of indecency. To merely kiss someone is not of itself ‘indecent’. People kiss each other as a means of greeting. In some groups of society, it is a custom. Some persons are more tactile than others. They touch others not in a sexual way. The prosecution must prove more than that a touch or kiss occurred. It must prove that it occurred in circumstances of sexual lewdness.
· That the application of force was unlawful.
·Procuring a Child to Commit an Act of Gross Indecency
The alleged act:
· Causing or procuring the complainant to commit an act of gross indecency by touching his penis on more than one occasion.
The prosecution must prove the following four elements beyond reasonable doubt:
· That an act was performed by a ‘child’.
· That the relevant act was ‘grossly indecent’.
· That the defendant incited or procured the child to commit the act.
· That the act was committed in the presence of the defendant.
Procedural matters and general directions
·Mental unfitness to stand trial[28]
[28] CLCA s 269H.
It was conceded by both counsel that the defendant remained mentally unfit to stand trial.
On 23 September 2013, the defendant, then aged 74 years, had been admitted to the Ashford Hospital Emergency Department suffering from a large right frontal intracranial haemorrhage.
By 8 January 2014, the state of his mental health was assessed as not being ‘of sufficient severity to impair his fitness to stand trial’.
On 31 March 2015 and 29 July 2015, the defendant was assessed by the Clinical Neuropsychologist Dr Scamps as suffering from a neurodegenerative process, such that he did not have the capacity to understand the nature of the proceedings or follow the evidence.
On 14 August 2015, a Judge of this Court had recorded the finding that the defendant was mentally unfit to stand trial pursuant to s 269MA(5) of the CLCA.
In the period of three years between that finding, that the defendant was mentally unfit to stand trial, and the commencement of the subject trial on 23 July 2018, the defendant has been assessed by other experts who have confirmed the diagnosis of significant cognitive decline due to advanced dementia, such that his mental health has significantly declined since the previous trial.
In May 2017, the defendant had suffered a heart attack and was admitted to the Royal Adelaide Hospital.
It is patently clear that the defendant’s mental processes are so disordered and impaired, as to fall within the relevant test under s 269H of the CLCA set out in R v Hayles.[29]
[29] [2018] SASCFC 58 at [26]-[31].
The concession by both counsel that the defendant remained mentally unfit to stand trial was properly made. I have recorded my own, finding, to that effect pursuant to s 269MA(5) of the CLCA.[30]
· Trial by Judge Alone
[30] See T (24/7/18) at [5].
Prior to the commencement of the trial, the defendant by his counsel sought an order that he be tried as to the objective elements by judge without a jury pursuant to s 7 of the Juries Act 1927 (SA). The application was granted.
The trial as to the objective elements of each of the two counts commenced on 24 July 2018. It is for the prosecution to prove beyond reasonable doubt the objective elements of each count, separately considered.
Mr Martin appeared with Ms Williamson as counsel for the prosecution, and Ms Abbey appeared as counsel for the defendant.
The defendant presented during the trial as a frail elderly man. At times, the defendant would unwittingly interrupt the proceedings by attempting to move around the courtroom, and make incomprehensible mutterings. On occasions those interruptions did lead to at least one witness becoming distracted when giving evidence.[31] No criticism was or is made of the defendant, as such conduct reflects the state of his mental health.
[31] T[256]-[257].
In light of the caselaw, very properly, no application was made for an order that the trial of the objective facts be permanently stayed.[32]
·Vulnerable witness applications
[32] cf Subramaniam v The Queen [2004] HCA 51; Walton v Gardiner (1993) 177 CLR 378; and R v Abdulla (2005) 93 SASR 208.
When L gave her oral evidence I made an order for special arrangements pursuant to s 13 of the Evidence Act permitting her to give that evidence from outside the courtroom, transmitted by CCTV to the courtroom; that she be accompanied by a court companion; and that the Court be closed.
When D gave her oral evidence I made an order that she be accompanied in Court by a court companion and that the Court be closed.
I direct myself not to draw any inference adverse to the defendant as a result of either of those arrangements, nor to allow them to influence the weight to be given to those witnesses’ respective evidence.
·Detailed Reasons
In a series of recent decisions, the High Court of Australia has stressed that sufficient reasons must be given by trial Judges and, indeed, intermediate appellate courts, which properly explain the verdict. [33]
[33] Douglass v The Queen [2012] HCA 34 at [14]; BCM v The Queen [2013] HCA 48; AK v Western Australia (2008) 232 CLR 438; Fleming v R (1998) 197 CLR 250; R v R, G [2017] SASCFC 128; Gax v The Queen [2017] HCA 25; and R v Becirovic [2017] SASCFC 156.
Those reasons must include the principles of law applied by the Judge, and the facts as found by the Judge. They must reveal the reasoning process linking the relevant principle and justifying the findings of fact.
The reasons must include any warnings that are to be taken into account; a discussion of the arguments on disputed factual questions; and the outcome of the arguments.
A trial Judge however is not obliged to ‘express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law’. [34] I note that the ‘[r]easons are not required to be lengthy or elaborate … [and the] reasons are to be read as a whole’. [35] In the subject case however in order to detail some inconsistencies it has been necessary to provide reasons which are both lengthy and elaborate.
·Specific legal directions
[34] Markou v The Queen [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382.
[35] See R v R, G [2017] SASCFC 128; Fleming v The Queen, supra; Douglass v The Queen, supra; R v Keyte (2000) 78 SASR 68; R v Tran [2017] SASCFC 99 at [67]; and R v Thompson [2018] SASCFC 104.
I will detail later in these reasons a number of legal directions specific to the subject trial. They will include directions as to substantial forensic disadvantage to the defendant;[36] the cross admissibility of the evidence of each complainant; the use to be made of alleged discreditable conduct;[37] the alleged collusion between the complainants;[38] and the alleged prior inconsistent statements, or inconsistencies between the evidence of a complainant, and that of other witnesses called by the prosecution.
·General legal directions
[36] Evidence Act1929 s 34CB; R v Cassebohm (2011) 109 SASR 465; R v Parry [2017] SASCFC 66; R v T, S [2017] SASCFC 67; R v W, PK [2016] SASCFC 5.
[37] Evidence Act 1929 ss 34P; 34R and 34S.
[38] R v Bonython-Wright (2013) 117 SASR 410; and R v C, CA [2013] SASCFC 137.
I have directed myself as follows:
·The defendant comes before this court with the presumption of innocence in his favour.
The burden of proving the objective elements of the charge, that I am considering, lies wholly on the prosecution. The prosecution must rebut any reasonable hypothesis consistent with the innocence of the defendant. The defence is not required to prove anything.
·In assessing the evidence of witnesses generally, I am entitled to accept the evidence of a witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[39]
[39] Hargraves v The Queen [2011] HCA 44 at [25].
·The prosecution seeks to satisfy me beyond reasonable doubt entirely upon the evidence of the complainant D, and in so far as it is cross admissible, the evidence of L in respect of Count 1 on the Information, and as to Count 2 principally upon the evidence of the complainant L, and partially upon the evidence of D. The complainant D’s evidence was not corroborated in respect of Count 1. Mere presence or opportunity is not of itself enough for corroboration. It is, of course, unsurprising that many alleged acts of sexual misconduct are not corroborated. It is the nature of such an offence.[40] Although a court is no longer obliged to give a warning as to the absence of corroboration,[41] I direct myself in the circumstances of this case that each of the complainant’s evidence must be approached with caution and scrutinised with great care.
·I must assess each witness for the prosecution as to their truthfulness and reliability. In particular it is essential for the Court to resolve any inconsistencies in the evidence of the prosecution witnesses. Where a witness has made a statement out of Court which is inconsistent with the evidence given by the witness in Court, such a prior inconsistent statement goes to the reliability and credibility of the evidence given by the witness in evidence to the Court.
·The defendant is charged with two separate charges; one each against two separate complainants on the one Information. Each must be considered separately on its merits. I must consider each charge in the light only of the evidence which applies to it. This is because some of the evidence is only relevant to one charge and not the other.[42]
·I direct myself that the defence does not have to prove anything, let alone prove that a complainant had lied to the Court. A motive to lie is however a matter which is highly relevant to the credit of the respective complainants. The defence could not know why or whether the complainants or either of them may have lied. I must however consider the motives put forward on behalf of the defence, and any submissions of the prosecution. Even if I did not accept the submission of the defendant, it does not follow from the absence of a proven motive to lie that a complainant must be telling the truth. Lies can be told for no apparent reason. At all times, it is for the prosecution to satisfy me that the relevant complainant is both an honest and a reliable witness beyond a reasonable doubt.
·I direct myself that where inroads have been made as to the credibility or reliability of a complainant, any reservations I may have in my assessment of one count may be carried over to my assessment of her evidence on the other count.
·There were a number of witnesses who were not called as witnesses by the prosecution. I direct myself not to speculate upon why they were not called as witnesses nor what they may have said had they been called. I must not speculate upon anything not the subject of evidence.[43]
·Where evidence is sought to be admitted as discreditable conduct evidence against the defendant, I must identify and explain the purpose for which it may, and may not be used.[44]
·Counsel for the defendant referred to various statements made by L to the police on the first occasion, which she submitted were previous inconsistent statements. I direct myself that this case is to be decided on the evidence given in the courtroom. However, if a witness, in this case L, has said something out of the Court which is inconsistent with her evidence in Court that may impact upon her honesty and reliability. L’s honesty and reliability is fundamental to the prosecution case in Count 2.
·An overview of the prosecution case
[40] R v E, DJ [2012] SASCFC 137, [117]-[120].
[41] Evidence Act1929 s 34L(5).
[42] Dun v R [2019] VSCA 43.
[43] These included the complainants' cousins MR and DR; ‘K’ at T[148]; EK at T[150]; DK at T[151]; FC at T[161]; JK at T[282]; KB at T[282], and the police officer Donna Spark at T[101].
[44] Evidence Act 1929 ss 34P(2)(a) and 34R(1).
A number of background facts were not in dispute. RE and JE, the parents of the complainants, migrated to Australia from Syria. They resided at Edwardstown for about 20 years. The defendant is married to the sister of the complainants’ mother.
L, the third of their four children, is two years older than D.
They each commenced their education at a primary school in Kurralta Park to Year 3. L and D moved to another primary school in Plympton in 1988 and 1989 respectively. The prosecution case is that the respective offences occurred while L and D were both attending the latter primary at Plympton.
In 1993, L commenced high school in Adelaide, remaining there until Year 11. She subsequently undertook a TAFE course.[45]
[45] T[30]-[32].
In 1994, D commenced at the same high school, however completed her Year 12 studies at another high school, and successfully completed a tertiary course at University.
The complainants’ brother R2 was aged about six years older than D. He had transferred to another middle school by the time that D had commenced at primary school at Plympton. He was however present at, inter alia, relevant alleged events at Alawoona; and at the Flinders Ranges.
It was in about 1989 that L and D’s parents, RE and JE, had purchased a deli in Croydon Park. At that time, the defendant and his wife JR had children of their own, respectively DR and MR, who were younger than L and D.
It was the prosecution case that the defendant became the de facto primary carer for L and D during the period that they were at the primary school at Plympton.[46] It is alleged that the defendant, who was then unemployed, took on the task of collecting them from their home, taking them to school and then back to his home. The respective families were very close. The defence has denied that the defendant had exclusively driven the complainants to and from school.
[46] T [273] (R2 described them as ‘surrogate parents’).
The complainants’ older siblings would find their own way to school by bus. Accordingly, on the prosecution case, L and D would be on their own when the defendant arrived to collect them in the mornings. In opening, the prosecution indicated that it would lead evidence that on those mornings the defendant had ‘attempted to groom’ both L and D by, inter alia, kissing them.
The defendant has not been charged in the subject trial with that alleged discreditable conduct. The prosecution case is that amongst those uncharged acts, the defendant had rubbed his hands over both L and D’s breast and vaginal area over the top of their clothes. It also alleged that the defendant showed D and L drawings of a naked woman.
The prosecution case is that L was the more vulnerable, despite being older than D. She had learning difficulties with ‘reading, writing and maths’, and few friends.[47]
[47] T[33]-[34].
As to the alleged event the subject of Count 1, the prosecution asserts that the charged offence occurred at the Flinders Ranges. D alleges that she woke up in the middle of the night, among others sleeping in a tent, to find her tracksuit and underwear pulled down, and the accused lying next to her rubbing and inserting his finger into her vagina.
As to the alleged events the subject of Count 2, the prosecution asserts that:
·The defendant kissed L with an open mouth; caused her to masturbate his penis; digitally penetrated L’s vagina; and touched her breasts at his home after school, despite other children being present at the house.
·The defendant would engage in penile/vaginal sexual intercourse with L while they were alone at his home.
·On one occasion while L was sitting on a bench in the defendant’s ‘shed’ or ‘garage’, the defendant kissed her; rubbed her breasts and inserted his finger into her vagina, despite children being present at his home, and D allegedly observing the defendant while he was kissing L.
·The defendant took L from her parents’ deli and drove her to a remote spot in Salisbury, where on more than one occasion he kissed her, digitally penetrated her vagina and masturbated himself.
·The defendant took L, D and his own children to the beach at Brighton or Somerton Park, during which he took L out in a swimming tyre and inserted his fingers into her vagina, in deeper water.
·For two short periods, the defendant moved out of his family home and resided at a house owned by a friend named FC. On two occasions, the defendant took L to that home where he was staying and had penile/vaginal intercourse with her on each occasion. L would assert that on one of those occasions, FC was present at his house.
·The defendant at Alawoona took L into the house on the property and while others remained outside, masturbated himself and inserted his finger into L’s vagina. D had walked into the room and had observed the defendant in bed with L under a blanket
·The defendant, in the Flinders Ranges, took L from the single tent where the children slept; kissed her, touched her on the breasts; and inserted his finger into her vagina.
·The defendant on another evening while at the Flinders Ranges took L outside the single tent and engaged in penile/vaginal sexual intercourse with L while both remained standing.
It is the prosecution case that neither L nor D had discussed with each other nor with any other person any of these allegations until about 2012, when D first made a report to the police. It is the prosecution case that L did not report the matter to the police initially, but only spoke to the police after D had first reported to them.
It is the prosecution case that there was no collusion between them nor any concoction of their evidence. While D told L to answer a telephone call from the police, she did not speak to her about what had allegedly happened to her, nor vice versa.
The defence case
The defence case was that the alleged offences in Count 1 and Count 2 did not happen. While the defence does not need to prove anything it submits that the respective evidence of L and D was the result of concoction; fabrication; memory difficulties; fantasy; or a misunderstanding of events caused by the long delay in them bringing the alleged events to the attention of the police.
Counsel for the defendant ultimately submitted that D was not an honest and reliable witness; while L was for various reasons not a reliable witness. She submitted that the defendant had suffered a significant forensic disadvantage by the delays in the counts being brought to the attention of the police. She submitted that the evidence of both L and D was so implausible that they ought not to be accepted beyond a reasonable doubt. She repeated the submission that D and L had colluded in their evidence, and in the decision to report the defendant to the police.
·The issues in the trial
The principal issue in the trial was whether the prosecution had proved beyond reasonable doubt that the alleged sexual acts in counts 1 and/or 2 had occurred. There were however a number of other issues raised on the defence case, which included:
·The date of the alleged trip to the Flinders Ranges, directly relevant to the amended Count 1.
·The credibility and the reliability of each complainant.
·Whether the evidence on each count was cross-admissible.
·Whether evidence of discreditable conduct and of uncharged acts was admissible.
·Whether there was any collusion between the complainants.
·The relevance of alleged inconsistencies in the respective evidence of each complainant.
·The relevance of alleged forensic disadvantage to the defendant in consequence of the long delay in bringing the allegations to the police.
·The inconsistencies between the evidence of D in particular as contrasted with that of L and their brother R2.
·The factual issue as to who drove the complainants to and from primary school; and in particular whether it was indeed the defendant having regard to the evidence of the complainants’ mother JE; their father RE and the role of the defendant’s wife JR in such driving.
·The alleged implausibility of the complainants’ evidence as to the uncharged acts and as to both counts.
·The course of the trial
The prosecution called as witnesses, the complainant L; the complainant D; and their brother, R2, to give oral evidence. Each of them was cross-examined extensively by counsel for the defendant.
The prosecution tendered a list of agreed facts (the first list) detailing the respective birth dates of the defendant, L, and D; the birth dates of the defendant’s children DR and MR; the school records of L and D; and the dates of the defendant’s occupation of his Plympton home.[48] In addition the evidence of the complainants’ parents RE and JE from the previous trial was tendered as Exhibits P13 and P12 respectively, on the bases that they would respectively have given that evidence orally had they been called in the subject trial.[49]
[48] Ex P7.
[49] T[328].
The defence did not call any oral evidence but tendered some Certificates in respect of the defendant’s wife JR.[50] It also tendered a list of agreed facts (the second list), the first four of which detailed the dates of acquisition by the defendant and JR respectively of various motor vehicles, which were potentially relevant to the dates of driving L and D to school and to the Flinders Ranges trip.[51]
[50] Ex D14.
[51] T[330]-[331].
The relevant dates of acquisition of the vehicles were:
·23 November 1989 – a silver Toyota sedan.
·27 May 1991 – a fawn Nissan station wagon.
·23 December 1999 – a white Jeep Cherokee depicted in Ex P3.
·5 August 2002 – the white Suzuki Vitara vehicle depicted in Ex P3.
The agreed fact 5 to the second list detailed a statement made by the complainants’ mother in 2013 when she asserted that she ‘took the kids to school’.[52] The agreed fact 6 related to the evidence given by D in the earlier trial and directed to what she had said then about the number of times that the defendant had touched both L and herself.
[52] T[331].
Discreditable conduct and cross admissibility
It is well established that the discreditable conduct provisions, in s 34P of the Evidence Act, ‘govern all aspects of trials of all offences including that relating to the determination of applications for severance of counts’.[53]
[53] R v Maiolo (No 2) (2013) 117 SASR 1 at [131].
I turn now to s 34P of the Evidence Act, which provides as follows:
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
·The admissibility of evidence of alleged discreditable conduct by the defendant in respect of D and L.
The prosecution led evidence, without objection, as to alleged discreditable conduct by the defendant, which included alleged kissing and fondling both D and L prior to driving them to school on most mornings. It also included an allegation that the defendant had shown them drawings of a naked woman on two occasions. I will detail my findings on those allegations later in these reasons. These allegations were not the subject of a charge.
The only charge against the defendant in respect of D is that of the alleged penetration of her vagina with a finger or fingers in the Flinders Ranges. There was no objection to the evidence of alleged discreditable conduct, however I received it de bene esse.
The charge in Count 2 includes alleged offending against L during the same trip to the Flinders Ranges, which D asserts was the occasion of the offending in Count 1. As at the commencement of the trial the prosecution case was that some of the evidence of each complainant is corroborated by the other complainant.
As is plain s 34P(2) differentiates between two classes of permissible use of discreditable conduct. The first in s 34P(2)(a) does not rely upon propensity; while the second in s 34P(2)(b) does rely upon propensity as circumstantial evidence of a fact in issue.
In respect of the former the permissible use of the evidence must substantially outweigh any prejudicial effect to the defendant. In respect of the latter it must have strong probative value having regard to the issue arising in the case.
In a general sense evidence of alleged discreditable conduct may be used by me under s 34P(2)(a) as being potentially helpful in assessing a complainant’s evidence. It may help throw some light on the nature of the interaction between each complainant and the defendant that she or they claimed existed. It might also explain, on the prosecution case, why the defendant was confident in taking opportunities to commit such conduct notwithstanding the presence of another or others; and, in particular, that D would not complain about what occurred at the Flinders Ranges, as she had not complained about any of the uncharged acts.
It also explains why the accused continued to so act, on the prosecution case, notwithstanding the risk of discovery and the familial relationship. In the case of D, the prosecution case relates to isolated events, when being picked up for school, and the single event in the Flinders Ranges, the subject of Count 1.
In the subject case, such evidence is admissible for a non-propensity purpose because it was highly improbable on the evidence of D and L that they had concocted their accounts.[54]
[54] R v Heinze [2017] SASCFC 155
The commission of an offence of sexual misconduct may otherwise appear improbable if not seen in the context of previous sexual misconduct, and such evidence may have strong probative value.
It is necessary to identify and explain the purpose for which the evidence may and may not be used pursuant to s 34R(1) of the Evidence Act.[55] It is not necessary to descend into the detail of each item.
[55] See R v M, DV [2019] SASCFC 59.
The allegation that a drawing of a naked woman had been shown to either or both complainants may be relevant as evidence of grooming, in desensitising a complainant about sexual matters. Where however the alleged showing of the photograph had occurred after the charged events, such conduct must necessarily have little weight in placing it in context.[56] Again there was no objection to that evidence being led by the prosecution.
[56] R v Beserick (1993) 30 NSLWR 510 at [525]; and R v BFB (2003) 87 SASR 278.
In R v Bauer[57] at [47]-[51] and [60] the High Court said:
[57] [2018] HCA 40.
As is apparent from comparison of the trial judges ruling with the Court of Appeals reasons for judgment, previous decisions of this Court have left unclear when and if a complainants evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. That is due in part to differences of opinion between members of the Court in HML – and in subsequent tendency evidence decisions, most recently IMM – as to the rationale of admissibility of tendency evidence in single complainant sexual offences cases. It is unsatisfactory that trial judges and intermediate courts of appeal should be faced with that problem. It is also unsatisfactory that the issue should continue to be attended by as many complexities as have thus far been thought to surround it. The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.
Henceforth, it should be understood that a complainants evidence of an accuseds uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes…
Since proof of an accuseds commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the very high probative value of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML:
Generally speaking ... there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.
And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant's account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused's guilt of the charged offences.
…
By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other.
[footnotes omitted]
I must not take into account such discreditable conduct unless I am satisfied that the acts were committed by the defendant. Proof that the defendant committed such discreditable conduct is not a substitute for proof of the objective elements of the charged offence.
I must not engage in impermissible propensity reasoning.
I have permitted the evidence of discreditable conduct to be led solely for non-propensity reasoning pursuant to s 34P(2)(a).
The alleged conduct has strong probative weight having regard to the issues which have been identified. That probative weight substantially outweighs its prejudicial effect on the defendant.
It is also relevant from the defendant’s point of view in assessing a complainant’s honesty and reliability. In the event that I am not satisfied that the discreditable conduct had occurred, because I did not accept her evidence as truthful and reliable on those acts, then it remains relevant on the defence case because I may use that lack of satisfaction when considering the truth and reliability of her evidence on the two charged offences.
I am satisfied that the permissible use is and will be kept sufficiently separate and distinct from any permissible use in accordance with s 34P(3) of the Evidence Act.[58] I accordingly permitted the evidence of discreditable conduct to be led at that stage.
·Cross-admissibility of the evidence of L and D
[58] See R v D, VF [2018] SADC 89 at [32]-[35]; Pfennig v The Queen [1998] 182 CLR 461 at [531]; and Phillips v The Queen [2006] HCA 4.
The defendant’s counsel very properly submitted that notwithstanding that the Court of Criminal Appeal, in its reasons delivered on the defendant’s appeal, had concluded that the evidence of the then three charges was clearly cross-admissible,[59] it is necessary for me to make my own determination of that question.
[59] R v R, G [2017] SASCFC 128 at [53]-[54].
I refer in this respect to both ss 34P and 34S of the Evidence Act.
The latter section provides that when considering the question of cross-admissibility at this stage, the Court must not exclude the evidence if the only grounds for the exclusion would be either (or both) that the evidence may be the result of collusion or concoction, or that there is a reasonable explanation consistent with the innocence of the defendant.[60]
[60] See Evidence Act s 34S.
The principles governing the cross-admissibility of evidence of sexual offences have been the subject of a number of recent decisions of the Court of Criminal Appeal including; R v Heinze [2017] SASCFC 155; R v Tran [2017] SASCFC 99; R v C, CA [2013] SASCFC 137; R v M, JJ (2013) 117 SASR 81; R v R, G [2017] SASCFC 128; R v March [2014] SASCFC 54; R v Liddy (2002) 81 SASR 22; R v M, BJ (2010) 110 SASR 22; R v C, G [2013] SASCFC 83, and R v Bonython-Wright (2013) 117 SASR 410, and by the High Court in R v Bauer;[61] McPhillamy v The Queen[62] and Hughes v The Queen.[63]
[61] [2018] HCA 40.
[62] [2018] HCA 52.
[63] [2017] HCA 20.
In Hughes v The Queen,[64] supra, the majority in the High Court noted that:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The focus of the appellant's submission on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove. The particular stated in the tendency notice, that the conduct occurred in the vicinity of another adult, served to highlight the appellant's willingness to act on his sexual interest in underage girls despite the evident danger of detection. It would have been more accurate to particularise the conduct as occurring in the vicinity of another person, since on some occasions it was another child who was in the vicinity. In EE's case, there was no evidence that any person was in the vicinity. Nonetheless, the evidence in support of that count was that the appellant encouraged EE to stimulate his penis as they stood kissing in the driveway of her family home, in circumstances in which EE was fearful that they would be seen. The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection.
An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a "pattern of conduct" or a "modus operandi" which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.
[64] [2017] HCA 20.
In McPhillamy v The Queen, supra, the High Court repeated the test expressed in Hughes v The Queen, however as there was a 10-year gap between the previous offences and the charged offence, it could not be said that the tendency made the charged offence more likely.
It is convenient to refer to the dicta of Kourakis CJ in R v C, CA, supra, in which the Court similarly identified two bases for cross-admissibility based on different types of reasoning.
The first is the ‘similarity of accounts’ basis where the probative force lies in the improbability of persons independently concocting stories or colluding. The second is the propensity or proclivity basis. I will set out the relevant parts of his Honour’s reasons at [57]-[61], [65]-[70] and [84].
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail.
…
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged…
The second basis for cross-admissibility is that the evidence showed the appellant to have a particular propensity to engage in the conduct described by the complainants. I should first explain further what I mean by a propensity basis for cross-admissibility. It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires. The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning… If the jury are so satisfied with respect to at least one of the complainants, the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants. If the jury are so satisfied, the third step is to take that particular propensity into account, together with the evidence directly bearing on the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either one, or both, of the remaining complainants.
I am satisfied that the evidence of offending against either of MA and MG was capable, if accepted, of establishing an embedded sexual proclivity to engage in sexual relations of the kind described by them with pubescent boys. The duration of the sexual relationship the appellant maintained with each of them, and the frequency and nature of his sexual activity, gave the evidence strong probative force as circumstantial evidence of sexual motivation to commit offences of that kind against other pubescent boys.
…
On the alternative permissible use of the discreditable conduct evidence to show a proclivity to commit sexual offences against the school friends of the appellant’s son, there is much less separation between the impermissible and permissible uses of the evidence. The only point of distinction is the intermediate step of finding that the discreditable conduct evidences an innate proclivity to commit offences of the kind committed against the complainants whenever the opportunity arises.
In R v March, supra, the Court noted at [24], that the Chief Justice in R v C, CA should not be taken to have precluded the overlap of the two forms of reasoning.
In that case the basis found by the Court was ‘the improbability of [the complainants] independently imagining or concocting stories with a high degree of similarity and detail’. However, it also said that there was another basis for admissibility namely ‘a propensity to commit a highly specific type of crime’ – in that case, ‘sexual assaults … in a brazen fashion where detection was seemingly probable and where access to the child was facilitated by the [accused’s] status’.
That dicta is of course directed to the test in s 34P(2)(b) of the Evidence Act, namely the particular propensity or disposition of a defendant as circumstantial evidence of a fact in issue.
I have already referred to the Court of Criminal Appeal decision in R v R, G, supra, in respect of the previous trial. At [52]-[54] the Court affirmed the decision of the Chief Justice in R v M, BJ, supra, stating:
I pointed out that similarity in account is not confined to a study of the very sexual acts alleged. It also comprehends the broader circumstances in which the conduct occurs; there, the family setting. Here, an important similarity is that the allegations were made by sisters of a similar age to whom the appellant had extensive access as a trusted family member, he being asked to take on extra duties towards the girls because of their parents’ work commitments. The nature of that access was an important matter and both complainants gave broadly similar evidence about it. Against those features the precise nature of the offending was of less significance. Added to that was the “garage incident” about which both gave evidence, both referring to the striking detail of the appellant claiming to have been checking L’s teeth. The evidence of both witnesses about this would have been admissible in any separate trial of the charges relating to L. If there were to be such a trial and D were to give evidence in it, then arguably the trier of fact would be entitled to know if D made similar allegations against the appellant.
In my view, seen as a whole, the allegations were similar enough to raise the improbability of both complainants giving an untruthful account of the appellant’s conduct.
The evidence of all three charges was clearly cross-admissible. Its probative value substantially outweighed any prejudicial effect it might have had: s 34P(2)(a) of the Evidence Act.
In my opinion, while there were some differences between the allegations of L which included penile/vaginal sexual intercourse and that of D, there were a large number of common features of the alleged discreditable conduct of the defendant, as follows:
·The offending is alleged to have occurred against the two sisters of about the same age by their uncle.
·The defendant was a trusted family member who was given the care of both complainants because of their parents’ work commitments.
·The complainants gave broadly similar accounts.
·Their allegations were similar enough to raise the improbability of both giving an untruthful account of the defendant’s conduct.
In my opinion, the evidence on both counts was clearly cross-admissible.
·The witnesses
I turn now to the evidence of the witnesses. I was hearing their evidence for the first time. By contrast those witnesses had given evidence on at least one previous occasion.
There was some confusion when the complainants were being asked questions about what had been said in those previous trials.
It is convenient to deal first with the evidence of L as she was the first of the witnesses called at the trial.
·The evidence of L
L explained that her family had lived at Edwardstown for about 20 years. When she was aged about six or seven years her parents purchased a deli at Croydon Park. She said that while she was growing up her family and the defendant’s family were very close and would see each other at least five times a week, mostly at the defendant’s home but sometimes at her parent’s home or at the deli.[65]
[65] T[18].
Hand drawn plans of her parent’s home at Edwardstown,[66] the defendant’s home at Plympton[67] and a book of photographs[68] were tendered.
·Defendant taking L and D to and from school
[66] Ex P1.
[67] Ex P2.
[68] Ex P3.
L deposed that the defendant would take D and herself each day to school although sometimes his wife JR did so. She said that her mother and father did not take her to school in the mornings and that D and herself would be alone at home waiting for the defendant to arrive. She said that initially he drove a green Jeep vehicle and subsequently he obtained a white Suzuki vehicle.[69]
[69] T[35].
The type of vehicle used by the defendant became a significant issue in the trial, at least with respect to the dates of the alleged offences. L said that sometimes the defendant’s children DR and MR would be in that vehicle waiting for them. She said that rarely would her mother pick them up from school and take them home. Generally, the defendant would take them to his home, until the deli was closed, and their mother would pick them up from his home.
L deposed that the defendant would collect them in the morning at about 8.00am but sometimes he came as late as 8.15am. When D gave her evidence she thought that it was 8.30am to 8.45am.
L was cross-examined about the type of vehicle driven by the defendant from time to time, having regard to the dates of acquisition in the second list of agreed facts. It was plain that L had difficulties recalling finer details which also included whether L’s grandfather had resided at the defendant’s home; whether others had also driven D and herself to and from school; when it was that alterations had been undertaken to the defendant’s home; how regular it was that the defendant’s wife was not present at the home on the alleged occasions of sexual acts; and various other matters.
The alleged discreditable conduct – kissing prior to driving to school
L said that when the defendant arrived in the mornings, he would give both L and D a kiss on the cheek. She said that this was the normal greeting which would occur especially when her parents were around.
She deposed that, contrary to the evidence of D, the defendant simply kissed D on the cheek. D would then go to the car, and leave the defendant and L in the house to lock up.
It was only after D had left to go to the car that the defendant would give L an ‘adult style kiss’, which had commenced when she was at the primary school at Kurralta Park. She described this as follows:[70]
[70] T[45]-[46].
QWhen you say 'adult style kiss' what do you mean.
AOkay, I would be kissing him on the mouth, like on the mouth, tongue kiss.
QA tongue kiss.
ATongue kiss.
QLike an open-mouth kiss as well do you mean.
AYep, yes…
QI think you said that he picked you up most days when you went to [the primary school]. How often did these kisses happen.
AAll the time. To my memory all the time when we're, like, locking up, I'm always the last one to leave the house.
QWhy was it you that was the last one to leave the house.
ABecause I always locking up the house.
QWas that your job, was it.
AYes, in my memory.
QHow did you feel about [the defendant] when he kissed you like this.
AAt the beginning I didn't know what was going on. He - because he was the only one who cared about me a lot.
QYes.
A… So I - I, like, enjoyed it at the beginning.
QI think you said that you didn't know what was happening. Can you remember how it actually started, how he started kissing you like this.
AHe started - at the beginning he used to start kissing me by the mouth like a tongue kiss and he used the tongue. Like at the beginning he used to do that and then later on he started touching me, but at the beginning it was just a tongue kiss going to school.
L was cross-examined about the vehicle used by the defendant, and whether it was a beige van. L said she believed it was the white Suzuki.[71] She said that she could not remember if another friend EK was present for the school drop off. L disagreed with the suggestion that the defendant rarely came inside their house in the mornings. L was asked about her statement to the police that nothing had happened until she went to the primary school at Plympton, and that this was inconsistent with her evidence that it started at Kurralta Park.[72]
[71] T[150].
[72] T[116].
L distinguished between kissing and other sexual conduct, and repeated that she had reflected upon the sexual contact only after the first statement to the police.
Touching and sexual intercourse
L then described how the kissing developed into other sexual behaviour.[73] She said however that this did not occur at her parent’s home at Edwardstown. L described how the defendant would ‘finger’ her in the kitchen at the defendant’s home. It was suggested to her that despite her giving five statements to the police, and having given evidence in a previous trial, that this was the first time she had mentioned this to anyone.[74] She said that it occurred over a six-year period, as did the kissing. She said that she was still remembering details because she ‘gets a picture in her head’.
[73] T[46]-[47].
[74] T[142].
She was asked:
QSo when did he start touching you.
AAs I was growing up then he started touching me.
QDo you know what school you were going to.
A[At the Plympton primary].
QAnd when you say 'touching' what do you mean by that.
AHe would be - he would be touching me under my breasts, like touching me on my breasts, fingering me in my vagina and doing a tongue kiss.
QYes.
ALike an adult, normal way. Like an adult.
QDid you say fingering into your vagina.
AFinger me in the vagina and depends where we are, he sometimes put his penis inside of me.
QIn what part of your body did he put his penis into.
AInto my vagina.
QDid you ever do anything with his penis.
AYes.
QWhat did you do.
AI used to - he would have it out and it would be having my hands around it and, like, going up and down with my hands on it.
QDo you have a word for that.
A'Ejaculating'.
QThis touching that you've just described, you told us about lots of different things, did they all happen in one place or different places.
ADifferent places at different time, because we knew him for so long because my parents - he was our main, like, a main parent to us.
QDid it stop at some stage.
AIt stopped in year 8 when I did some - because when I was a kid no-one told me anything until I went to high school and that's when I get - got more educated in high school about sex. I had sex education in year 8.
QFrom when it started to year 8 or thereabouts did you tell anyone what was happening with [the defendant].
ANo nobody.
QHow come.
AWe were too scared to say something. We were kids, we were too scared, because we had the – because he used to threaten us if we ever said something… they had guns in the house. And we – he goes to me don’t tell anyone because I love you and I care about you so much, and I use to get scared because there was guns in the house and thinking he would do something with me.
Other sexual acts
L described a number of sexual acts with the defendant at his home.[75] She said that if there was no one in the house then ‘we would be in the bedroom and there were other times on the lounge as well’.
[75] T[51]-[52].
She was asked:
QWas anybody else ever home during these times.
ADepends on the times, like if we were in the bedroom there was no-one there, if we were in the house - like if we are in the lounge there's people sitting down because it's winter time with the blanket, in the kitchen [JR] wasn't home because she was studying at High School we'd be in the kitchen and if [JR] was home we'd be in the garage and the kids would be playing outside.
Sexual activity in the kitchen
QLet's go through each of these rooms one by one shall we. Start with the kitchen, can you remember what you did with [the defendant] in there.
AYes, okay, as I'm facing - [the defendant] will be facing the window to keep out an eye on the kids playing, DR, MR and D. I will be inside with [the defendant]. He will be facing the window, my body will be back to the window, we'll be doing a tongue kiss and he'll be touch - rubbing - he'll be touching me.
QWhereabouts would he be touching you.
AHe would be playing with my breast and we'll be kissing and then he'll be - sometime, because it happened more than once to my memory, like he was playing, bringing me inside.
QSo when you were with him in the kitchen were you standing up or were you sitting down.
AI'll be standing in front of the sink.
…
QAre you able to say roughly how often you were in the kitchen with [the defendant].
AI can't because it happened like so many years, I can't remember like remember how many times it happened.
QCan you remember how you ended up meeting [the defendant] in the kitchen.
AHe'll pull me on the side as we were playing outside, he will say to me when there were no kids around he'd say 'Meet me in the kitchen'… The kissing was open mouthed with their bodies touching.
The garage incident
QYou also said things happened in the garage as well.
AYes.
…
QWhen you would both be standing up [in the garage] what sorts of things did you and [the defendant] do together.
AOkay, we'll be kissing each other as an adult tongue style, he would be touching me on the breast, sometime he'd have his penis out as well.
QYep.
AI will be rubbing his penis and sometime he'll be, as I'm rubbing his penis he'll be fingering me and we'll be watching the doorway if someone comes in and sees us, we'd keep an eye out, he will keep an eye outside while we are doing that.
QWhat about the times when you would be sitting down on the bench, do you remember what sorts of things you did together then.
AHe would be rubbing me on the breast and kissing me and fingering me.
QDid he do anything with his penis when you would be sitting down.
ANo.
QSo it was only standing up.
AStanding up.
…
QSo can you tell us what happened on this particular occasion with D.
AOkay, I remember me being in my summer uniform, it was after school in year 7.[76] I was sitting on the bench with [the defendant] and he was - he was, like, kissing me and feeling my breast and fingering me at that time. I don't know how long D was standing there when she saw us. So as she - as we were there she goes to us - because he was meant to keep an eye out to make sure no-one was watching us but at that time he wasn't looking and D was standing there saying 'What are you doing?' So we - I jumped off the bench and he quickly opened my jaw and said he was checking my teeth and then afterwards I panicked and just walked out and D said 'What were you doing?' I said 'Nothing, he was checking my teeth'.
[76] T[56].
QI think you said you were wearing a school uniform.
AYes, my summer school uniform.
QSo was this after school or before school.
AAfter school.
QDo you know who else was at the house on this particular day.
ADR and MR would have been outside playing.
QWhere was D standing.
AShe was standing facing the door. Standing at the door.
QSo can you remember what you were actually doing with [the defendant] at the time you heard her voice.
AI was - when I heard her voice, I think I was still sitting on the bench, I panicked and - I was standing up when I looked at her.
QWhat about with [the defendant], were you doing anything. You told us that there were lots of things that you were doing with [the defendant] in the garage.
AI was with [the defendant], kissing him. He was touching me when D saw us.
QDo you know where he was touching you when D saw you.
AHe was fingering me, having his finger inside of me… In my vagina, sorry.
QThis occasion where D has seen you, was this the first time that you were in the garage with [the defendant].
AIt happened so many times but only once D saw me.
The question of forensic disadvantage pursuant to s 34CB of the Evidence Act was discussed by the Court of Criminal Appeal in R v Cassebohm,[125] R v Maiolo (No 2),[126] R v W, P K,[127] and even more recently in R v R, PA.[128]
[125] (2011) 109 SASR 465.
[126] (2013) 117 SASR 1.
[127] [2016] SASCFC 5 at [35]-[42].
[128] [2019] SASCFC 19.
What is however crucial is that s 34CB is exclusively directed to the forensic disadvantage to the defendant in its own right and not diluted by similar disadvantages to the prosecution witnesses.
The respective Courts have held that a Judge must explain the nature of the forensic disadvantage, by making specific reference to the particular circumstances; and that it is not sufficient to speak of delay nor of its adverse effects on memory in general terms. The Judge must avoid the phrases referred to in s 34CB(3)(b), but must ‘tie the direction to the circumstances of the case’, and, I repeat, for a warning to be exclusively concerned with the forensic disadvantage to the accused.
The delay of 18 to 23 years between the alleged offences and bringing them to the attention of the police, and ultimately to the defendant, was substantial, and even without the deterioration of the defendant’s mental health would of itself have resulted in significant forensic disadvantage.
In R v Cassebohm, supra, Doyle CJ, relevantly, said:
I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.
For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness?
In the subject case, there are a number of other factors which contribute to the significant forensic disadvantage to the defendant; apart from this declining mental health.
The respective families were very close. Both L and D were present at the defendant’s home almost daily.
This increases the difficulty for the defendant to remember any events. He could not remember if he had disciplined either L or D or investigate any motive for their respective allegations.
By contrast had L and D attended rarely at his home he would have been in a better position to locate witnesses as to the specific dates.
The same difficulty confronts him with respect to the alleged discreditable conduct alleged by D and L to have occurred in the mornings before school.
It is obvious that had there been a complaint made at the Flinders Ranges at the time, it would have been far better as other possibilities could have been investigated. One might have thought that D’s explanation of the sexual assault by the defendant was so traumatic, someone would have noticed the event.
I accept that the allegations against the defendant were brought to his attention prior to the more significant deterioration in his mental health. Some of the witnesses to the alleged events at Alawoona and the Flinders Ranges including R2, were still available. However, his deteriorating mental health is a factor going to the issue of forensic disadvantage. As noted in R v Maiolo (No 2) supra, these factors result in a diminution of the defendant’s ‘ability to effectively conduct his case including to cross-examine the two complainants in a way so as to cast doubt upon issues of credibility and reliability’.
I direct myself that in respect of both counts the defendant has been substantially forensically disadvantaged.[129] I will take into account that forensic disadvantage to the defendant when I come to scrutinise the evidence of the prosecution and to assess whether the prosecution has proved the objective elements of the relevant count against the defendant.
·Findings as to the transport arrangements to primary school
[129] R v R, G [2017] SASCFC 128 at [70]-[78] and R v R, PA [2019] SASCFC 19 at [77]-[94].
As I have explained, I do not accept the evidence of RE and JE that JE, the mother of L and D, principally conveyed them to the primary schools at Kurralta Park and Plympton.
I do not accept however that JE never drove them to school. I do not accept that the defendant was their only driver.
I find as a fact that the defendant drove L and D to primary school on most occasions; that on some occasions his wife JR drove them as did their mother JE.
·Collusion
It is convenient to deal with the submission of the defence that the two complainants had colluded together or concocted their accounts of the subject events.
It is of course for the prosecution to disprove collusion, beyond a reasonable doubt.
I have already detailed the submissions of counsel.
There were marked differences between L and D including as to their respective evidence on the alleged discreditable conduct allegations. L’s evidence on those matters was entirely different to that of D. This was the most obvious example of the absence of collusion.
I accept that D had told L nothing prior to attending upon the police.[130]
[130] T[224]-[225].
I accept that D had not been in contact with L until she went to visit their father in hospital.
I accept D’s evidence that when they met at Scuzzi, ‘L had thought that D had reported her ex-boyfriend for stalking’.
I do not accept that D made up her account to help L.[131]
[131] T[272].
I accept that D felt unable to talk about the ‘sexual molestation and rape that we endured as children with each other’.[132]
[132] T[264].
She was pressed by Ms Abbey about her evidence at the 2016 trial when she had deposed that by the time of the Scuzzi Café meeting, that not only had she been to the police, but so also had L.
When L was cross-examined she denied having discussed with D what had happened, even after the first trial.[133]
[133] T[96]-[98].
I accept her evidence that D had stopped talking to the family, and L wanted to see her.
I accept that D did not tell her why a detective wanted to speak with her.[134]
[134] T[99].
I accept that L did make a prior inconsistent statement about having discussed some matters with D prior to L’s contact with the police. She also said that she might have spoken to D about the kissing in the shed.
However, when she was cross-examined L indicated that the police officer had called while they were at Scuzzi.
Ms Abbey submitted that in light of the inconsistencies in the evidence of D and L as to the matters discussed at Scuzzi, the Court ought conclude that D was at the least, evasive, indeed being dishonest. She invited the Court to ‘not rule out collusion entirely. I am not talking about a blunt kind of collusion we might think of but the sense in which there has been some information shared.[135] Alternatively, she submitted the prosecution had not exclused collusion.
[135] T[364].
I observed both complainants very carefully when they were being pressed about what if anything had been discussed by them at the Scuzzi meeting.
Plainly D is the more sophisticated and independent of the two.
I have no doubt that at the Scuzzi meeting there would have been some discussion about the defendant.
I accept that D’s personality is such that she did decide to keep her family including L, at arms-length for a considerable period prior to the Scuzzi meeting.
In my opinion, nothing turns upon the discussion between L and D at Scuzzi. They plainly did not engage in collusion. A simple perusal of the evidence of both discloses so many inconsistencies, it is plain that neither they nor their brother R2 got their heads together. Further the fact that there may have been some brief discussion does not in this case on its facts give rise to collusion.
I find that both D and L gave a truthful account of the discussions at Scuzzi, and before L spoke to the police.
I will deal separately with the question of the reliability of the evidence of both L and D in due course. However, I accept beyond reasonable doubt that neither of them have engaged in collusion nor have they concocted their respective evidence.
I reject any suggestion of collusion accordingly.
·Honesty and credibility of D
I turn now to the evidence of D as to the alleged discreditable conduct of the defendant to which she deposed, and as to the alleged offence in Count 1.
Save for some evidence by L, and other evidence which did not support the evidence of D, the prosecution case depends entirely upon the evidence of D being found to be truthful and reliable upon these matters beyond a reasonable doubt. I make it plain that I do not accept the submissions of Ms Abbey that D was an untruthful witness.
Indeed, in most respects I was favourably impressed by D as a witness. In my opinion, she did honestly and accurately recall the incidents in the garage and at Alawoona.
She did not embellish her evidence about the garage incident involving L and the defendant.
She did not embellish her evidence about the Alawoona incident between L and the defendant.
She made it abundantly clear that nothing had happened between the defendant and herself between the time of the alleged discreditable conduct when being collected for school and that of the alleged event in Count 1, and that save for the drawings, nothing had occurred between them thereafter.
I have no doubt that D genuinely and honestly believes that the event in Count 1 did occur, and that the discreditable conduct did occur as she has deposed.
Her evidence needs to be seen in context. I have no doubt that she turned her mind to her childhood only in 2012 when she became concerned about the safety of her nieces and nephews.
She had become remote from the family, including L over some time.
I have no doubt that she had convinced herself that the defendant had molested her sister, L when he collected L and D in the morning and thereafter.
I have no doubt that she has convinced herself that the defendant had commenced molesting herself when he came to collect L and D to take them to school.
I turn thereafter to the question of D as a reliable witness.
·Discreditable conduct involving D
I have set out at length the evidence of both D and L as to the alleged discreditable conduct of the defendant when collecting them before primary school.
There can be no doubt that the defendant did insist on kissing D at the time. There can be no doubt that D had a different personality to that of L, and that she did not like any attention from him. This has adversely affected her memory of those early years. It may be that she unwittingly has adopted some of the things she believed had been done to L. I will not speculate. She had clearly decided to keep her family, including L, at arms-length for many years prior to the Scuzzi meeting and undoubtedly blames the defendant for that situation.
·The alleged pre school allegations against D
I have assessed the evidence of both D and L on this question.
I accept the evidence of L that D was kissed on the cheek by the defendant and would leave to go to the vehicle leaving L and the defendant alone in the house.
D did not witness the defendant molesting L.
In light of L’s evidence, which I accept as both truthful and reliable on this alleged discreditable conduct, I cannot accept D’s evidence as to the alleged discreditable conduct against herself as reliable beyond a reasonable doubt.
·The drawings of a naked woman
There was a dearth of evidence as to the alleged drawings. In some ways it was unusual evidence. The occasions were said to be after the Alawoona and Flinders Ranges alleged incidents. I do not need to decide whether any such drawing was shown to the children. I do not make any finding adverse to the defendant.
The charged event in Count 1
Ms Abbey referred to a large number of inconsistencies between the account by D of the alleged offence by the defendant in the tent at the Flinders Ranges. She also referred to the conclusion that D had given at the least an embellished account of what had occurred in respect of the discreditable conduct. She invited the Court to reflect upon the evidence put forward by D in respect of Count 1. On her account with others next to her, shoulder to shoulder, the defendant has come in and committed the offending on her while she slept next to her brother RT. She submitted that that was so implausible that on its own it could be rejected. Her evidence was not supported by anyone. She submitted that on her brother’s evidence the defendant slept outside the tent. L had not corroborated D’s account of the alleged events in the tent – in addition there was a dispute as to how long the camping trip to the Flinders Ranges had taken. She submitted that the court ought to conclude that the prosecution has not made out the objective elements of the charge in Count 1.
Mr Martin submitted that the court ought to consider the evidence of the witnesses in context. This was an extended family outing at the Flinders Ranges. Of her evidence, she had observed on two occasions the defendant and L together. That is to say, in the garage at his home and in the house at Alawoona. In addition, the respective families were very close and she could hardly complain to either L or her brother R2 both of whom enjoyed their respective relationships with the defendant. He submitted that it is no coincidence that the defendant had waited for D to go to sleep before he committed the offence in Count 1.
He conceded that there was no corroboration from anyone as to the alleged charged event. He submitted that unlike the objectively less serious allegations made by D against the defendant in respect of the discreditable conduct issues, the event in respect of Count 1 was so significant that it remained in her mind. He submitted that it was not to the point to suggest that it was implausible or that the defendant had acted in a brazen manner.
In Hughes v The Queen, supra, the High Court said in a different context:
In the trial of sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted.
Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded...
In R v Corrigan[136] Doyle CJ said:
In my opinion the court must be careful when considering a submission that the circumstances of the offence are inherently unlikely or improbable. In the nature of things the jury are required to consider conduct that if it did occur is abnormal and unusual. In my opinion it is wrong to approach the assessment of the evidence in such a case on the basis that a person who commits an offence such as that which K alleged, would commit an offence only in circumstances that suggested a carefully planned event involving little risk of detection. The court cannot fully understand the thinking of a person who would commit an offence such as this, nor is it likely to assess the effect upon a person of a strong desire to commit an offence such as that alleged here. Moreover it is an unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think that an attempt to commit the offence would be unlikely because of the risk of detection.
[136] (1998) 74 SASR 545.
Discussion and conclusion on Count 1
However, I have found that D was not a reliable witness on some of the allegations of discreditable conduct. She is the only witness for the prosecution on Count 1.
While there is no need for the prosecution to prove corroboration for the allegations in Count 1, the fact remains that none of those persons in the tent observed any such conduct. On D’s evidence, she moved under the blanket over R2.
There is no support for D’s account of Count 1. It is plain that after the trip D continued to attend at the defendant’s home after school. I readily accept that something may have occurred to startle D at the Flinders Ranges, but I am unable to conclude that she is a reliable witness as to Count 1 beyond a reasonable doubt.
I repeat that in my view the complainant D was an honest witness in that she honestly believes the account which she has given to the Court. I do not accept any suggestion that she has told an untruth in respect of Count 1. I must however be satisfied beyond reasonable doubt that Count 1 did occur in that manner. The circumstances of the alleged offence of itself seem implausible that the defendant could enter the tent in circumstances, where he could commit the offence when effectively cheek to jowl with the other individuals sleeping in the tent and that there be no response from D. I repeat that the event, on D’s evidence was traumatic. I would have expected someone to notice a change in D. See Tyrell v The Queen [2019] VSCA 52. I have, of course, given myself a caution in light of the forensic disadvantage to the defendant. In addition, however, the complainant’s sister L and her brother R2 were sleeping in that tent at the time. I cannot in those circumstances accept that the evidence of D in respect of Count 1 can be accepted as reliable beyond reasonable doubt. Accordingly, I cannot be satisfied on the evidence of the objective elements in respect of Count 1, beyond a reasonable doubt.
·The credibility and reliability of L, and my conclusion on Count 2
I have taken into account my caution in respect of the substantial forensic disadvantage to the defendant, and the caution in respect of the fact that she was, apart from two incidents, the only witness for the prosecution on Count 2.
I am satisfied that L gave an honest and reliable account of the allegations in respect of Count 2 on the Information.
I make that finding notwithstanding the forceful submission of Ms Abbey as to the inconsistencies in her first report to the police. I accept her evidence that when she first met the police she had no time to properly reflect on the events which had occurred many years before, and she had put out of her mind.
I turn to her evidence of alleged discreditable conduct by the defendant against both herself and D.
L was plainly honest and reliable when deposing as to the what D had alleged had occurred. She was careful to make it clear that D’s account was not reliable.
I have no doubt that L’s account of the defendant kissing and touching her after D had left the house on the occasions that the accused drove them to school was truthful, accurate and not embellished.
L was in a different position to D. L enjoyed the attention of the defendant, and this explains why she did not explain at any time.
I accept that she erred in her memory of some matters including the make of certain vehicles; and which room she occupied at Alawoona; however, they involved minor matters, and I do not accept that her credibility or reliability were adversely affected by those errors.
I accept her evidence as to the incident in the garage unreservedly, even if it had not been corroborated to a large extent by D.
L was properly described by counsel as unsophisticated. The detail of her evidence in respect of the sexual incidents at the Salisbury Salt Lakes including the access road, the gate and the positioning of the vehicle exemplified the detailed description of each of the allegations detailed in the particulars to Count 2.
I reach the same conclusion as to the two sexual incidents at FC’s house. I accept her evidence as to them unreservedly.
Ms Abbey criticised L’s account of the various sexual incidents at the defendant’s house, in the kitchen, lounge room; and bedroom. I accept that her evidence was not as detailed on those incidents as it was in respect of the other sexual incidents, however this was because, and I find, that they happened more often at his home, such that it was difficult to distinguish each such event at the home.
I accept her evidence as to the sexual incident at Alawoona, albeit she erred about the room in which the children slept.
Ms Abbey was highly critical of L’s evidence with respect to the incidents at the Flinders Ranges. I accept that her description of the physical penile/vaginal incident on the second night is difficult to comprehend. I accept however that a sexual incident of a similar nature did occur on that second night. I do not however make that finding beyond a reasonable doubt. I have no doubt that sexual incident on the first night did occur as she described.
I find beyond a reasonable doubt that the incident in the garage; in the defendant’s home; at the Salisbury Salt Lakes; at FC’s house; at Alawoona and on the first night at the Flinders Ranges each occurred as deposed to by L.
I am satisfied beyond a reasonable doubt as to each of those allegations. Accordingly, I find that the objective elements of Count 2 have been satisfied by the prosecution. I repeat that L was the defendant’s niece and that he was her de facto carer. This defined the relationship between them. She undoubtedly thought that he loved her. In the course of that relationship the defendant committed the above unlawful sexual acts.
Conclusion
I am satisfied beyond reasonable doubt that the prosecution has proved the objective elements of Count 2 on the Information.
For the reasons, I have explained I have found that the prosecution has not proved the objective elements of Count 1 on the Information.
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