R v R, ILC
[2018] SADC 98
•14 September 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, ILC
Criminal Trial by Judge Alone
[2018] SADC 98
Reasons for the Verdict of His Honour Judge Chivell
14 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The defendant is charged with maintaining an unlawful sexual relationship with his daughter between 1997 and 2001. Multiple unlawful sexual acts alleged. Complainant was between three and eight years old during that period. The prosecution evidence included a recorded telephone conversation between the defendant and the complainant in 2016. The prosecution contended the conversation contained statements constituting admissions of guilt.
Held: The telephone conversation contained admissions of guilt. They strongly corroborated the complainant’s evidence. All unlawful sexual acts alleged in the information proved beyond reasonable doubt.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34P(1)(a), s 34P(2)(a), s 34P(2)(b), s 34P(3), s 34P(4), s 34R; Hughes v The Queen [2017] HCA 20; R v C, CA [2013] SASCFC 137; R v Taheri [2017] SASCFC 92; Em v The Queen (2007) 232 CLR 67, referred to.
R v R, ILC
[2018] SADC 98
The defendant is charged with maintaining an unlawful sexual relationship with a child. I will refer to him as ‘R’. He has pleaded ‘not guilty’. The offence is created by s 50 of the Criminal Law Consolidation Act 1935 (SA).
The alleged victim of the offence is R’s daughter. I will refer to her as ‘C’. I will refer to her mother as ‘A’. C was born on 6 August 1993.[1] She has no siblings. The offence is alleged to have occurred between 1 January 1997 and 31 December 2001, when C was between the ages of three and eight years. It is common ground that when she was about eight years old the family moved to a town in northern New South Wales, and then to a town in the north-west of New South Wales when she was about 11 years old.
[1] Exhibit P1.
The particulars of the alleged offence are as follows:
Particulars of Offence
[R] between the 1st day of January 1997 and the 31st day of December 2001 at […] and other places, engaged in two or more unlawful sexual acts with or towards [C], a person under the age of 17 years, by:
(a) exposing his genitals;
(b) causing her to touch his penis;
(c) causing her to perform an act of fellatio upon him;
(d) causing her to suck his nipples;
(e) sucking her nipples;
(f) touching her breasts;
(g) touching the outside of her vagina;
(h) inserting his finger into her vagina;
(i) inserting his penis into her vagina; and
(j) performing an act of cunnilingus upon her.
R pleaded not guilty to the charge upon arraignment and elected to be tried by a judge sitting without a jury.[2] R was represented by Mr J A Richards. Ms K Smith appeared for the prosecution.
[2] Juries Act 1927 (SA), s 7(1)(a).
General Directions
I remind myself of the following fundamental principles:
·R is entitled to the presumption of innocence. He is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not proved, the appropriate verdict is not guilty.
·The burden of proving guilt rests on the prosecution. There is no onus on R to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of R.
·R elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to cross-examination by Ms Smith.
·R’s evidence should be assessed in the same way as the evidence of any other witness. In particular, it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence.
·Even if I reject R’s denials beyond reasonable doubt, that does not strengthen the prosecution case. To convict R, I must be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Proof beyond reasonable doubt means what it says, and needs no further elaboration. A person must not be convicted on doubtful, insufficient or unreliable evidence. A suspicion of guilt is inadequate. Nothing short of proof beyond reasonable doubt is sufficient.
Elements of the Offence
In order to prove that the accused is guilty of maintaining an unlawful sexual relationship with a child, the prosecution must prove each of the following four elements beyond reasonable doubt:
1.During the time of the offending specified in the information, the accused was an adult: there is no dispute about this element – R was aged between 41 and 46 years during that time;
2.During the same period, the complainant was a child: there is also no dispute about this element – C was aged between three and eight years during the period;
3.The accused was in an unlawful sexual relationship with the complainant:
3.1an unlawful sexual relationship is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child;
3.2an unlawful sexual act means any act that constitutes or would constitute a sexual offence (there is no dispute in this case that all of the acts specified from (a) to (j) on the information are unlawful sexual acts);
4.The accused maintained the unlawful sexual relationship. The word ‘maintained’ or ‘maintaining’ carries its ordinary meaning – that is, carried on, kept up or continued. (There is no dispute that, if two or more of the unlawful sexual acts are proved beyond reasonable doubt, an unlawful sexual relationship was maintained.)
It is not necessary for me to find that all of the unlawful sexual acts in the particulars are proved in order that the offence be proven beyond reasonable doubt. It is sufficient if I find that two or more such acts were performed during the relevant period.
Whether or not C consented to any of the unlawful sexual acts is irrelevant,[3] since at all relevant times she was under the age of 17 years.
[3] Criminal Law Consolidation Act, s 50.
Prosecution Evidence
C gave evidence that she is now 25 years old. She said that when she was two-and-a-half, the family moved to a town in the Riverland. R was not employed throughout her childhood and adolescence. A was employed throughout the same period. R was C’s primary carer as she grew up.
C gave evidence that the first sexual act by her father took place around the time of her fifth birthday. She was able to identify the time from several of the photographs in Exhibit P4. For example, photographs 2 and 4 depict her holding a doll she received for her fifth birthday, and photograph 3 shows her with her father cutting her fifth birthday cake. C said that around this time she and her father were in her parents’ bedroom and R sucked her left nipple.[4] He told her that what had happened was ‘our secret’, and that she should not tell her mother.[5]
[4] T 24.
[5] T 26.
C said that also around this time she played ‘sexual games’ with her father. One of these involved playing ‘peekaboo’ with her father’s penis, which he had inserted into a toilet roll. He told her to catch the head of his penis as it poked through the end of the roll, and to also do so with her mouth.[6] Her father’s penis went into her mouth on more than one occasion.[7] These sexual acts also occurred in her parents’ bedroom.
[6] T 26.
[7] T 27.
C also said that there was another game where her father was role-playing as a puppy, and she would lead him down the hallway pretending that his penis was the leash.[8] At the time, her father’s penis was erect, and she would hold it by one hand.
[8] T 29.
C said that all of these incidents occurred on separate occasions in around 1998. On each occasion, her mother was at work.
C said that the family moved to another address in the Riverland when she was seven or eight years old. Photograph 5 of P4 was taken at the second address. Her father continued to be the primary caregiver and her mother continued to work full-time.
At one point in her evidence, C indicated that she was ‘stressed’ and could not really remember what was happening when she was referred to an incident which occurred at this second address. She could remember certain aspects of the incident but then asked for a break, which I earlier had offered to her.[9]
[9] T 37.
After the break, C explained that she had been finding it harder to ‘access what I want to say’ because of the stress. I will refer to this incident later in these reasons when dealing with Mr Richards’ criticisms of C as a witness.
C then described another incident at the first address. She had been in her parents’ bedroom with her father, she was lying on her back on her mother’s side of the bed and her father was lying over her. He attempted ‘semi-successfully’ to insert his penis into her vagina. She said:[10]
I remember as far as that - like, I remember it penetrating and hurting so I sort of expressed an 'Ow' and pushed upwards and after that, sort of, exclamation of pain he did stop and that was sort of as far as I can remember.
She said she was five or six years old when this occurred. She said there was no other occasion in South Australia where such an act occurred.[11]
[10]T 39.
[11] T 39.
C described another incident at the first Riverland address when she said that her father sucked and licked her vaginal area, specifically the labia and clitoris. She said this occurred for quite an extended period of time, probably five to 10 minutes, and also occurred in her parents’ bedroom on the bed.[12] She recalled that this was the only occasion when her father did such a thing.[13]
[12] T 42.
[13] T 43-4.
C referred to another incident which took place after the move to the second Riverland address. This was an incident about which she said she was having difficulty ‘accessing’ her memory prior to the break. She said that she had been in her parents’ bedroom with her father, and he was masturbating while sitting next to her. She said that he used tissues to collect the ejaculate. C became concerned that they may have been seen by children playing in the street outside. She said she was seven or eight years old at that time.[14] She said that there were other occasions when she had seen her father masturbating as well.[15]
[14] T 45-6.
[15] T 46.
C also described another incident which occurred at a ‘motor inn’ in Adelaide at Christmas when she was seven or eight years of age. She said that after opening Christmas presents, her mother had gone to take a shower, during which time R asked her to suck his nipples and she complied.[16] She said that this activity had also occurred at both places where they lived in the Riverland and in New South Wales. She said that the activity of sucking R’s nipples became known between them as ‘my jobby’. [17]
[16] T 48.
[17] T 48.
C also described R fondling her vagina, both the outer and inner labia, but without inserting his finger into the ‘vaginal cavity’.[18] She said that this happened at all of the places where they lived, both in the Riverland and in New South Wales. She said that this digital penetration progressed to ‘full penetration’ by the time they had moved to the second New South Wales town. She said that his sexual abuse developed into other forms of activity at both towns in New South Wales, but it is not necessary for me to outline that in detail.
[18] T 55-6.
Discreditable Conduct Evidence
C was asked whether any sexually inappropriate behaviour by her father occurred after they moved to New South Wales. Mr Richards objected. The following exchange then occurred:[19]
[19] T 40.
OBJECTION: MR RICHARDS OBJECTS
MR RICHARDS: I understand the evidence has been led to provide context. If my friend is attempting to lead details of other offending on other occasions, in my submission it is going to be on context, these are not matters which he is charged with in this trial. So that's the basis of the objection.
HIS HONOUR: I don't quite understand the objection. Counsel opened on this topic, whether it is admissible or it's not, it is not a matter of quantity; is it?
MR RICHARDS: I object. The objection stands or falls.
HIS HONOUR: Can you explain what you mean.
MR RICHARDS: It is one thing to make an assertion about an act, it is another if my friend wants to refer to that act in this trial.
HIS HONOUR: If it's not proven it's not before the court.
MR RICHARDS: They are not matters on which we have had detail chapter and verse allegations provided and, in my submission, it’s one thing to provide context. If your Honour is against me.
HIS HONOUR: I am against you. If anything takes you by surprise you can ask for an adjournment to take instructions.
MR RICHARDS: Thank you.
Prior to the trial, the prosecution gave notice of its intention to adduce discreditable conduct evidence pursuant to s 34P(4) of the Evidence Act 1929 (SA). The nature of the discreditable conduct to be adduced was ‘evidence of uncharged sexual misconduct in New South Wales’. The uses of the evidence which rely on a particular propensity or disposition[20] were:
Evidence of sexual misconduct is relied upon by the Prosecution to prove the accused had a sexual interest in the complainant and a willingness to act upon that sexual interest and that he was therefore likely to have acted pursuant to that interest in relation to committing the charged offence.
[20] Evidence Act, s 34P(2)(b).
These proposed uses are classic ‘propensity’ uses which are admissible pursuant to s 34P(2)(b) of the Evidence Act provided that certain strict criteria are complied with. No objection was taken to the admissibility of that evidence.
However, in her opening address, Ms Smith, said:[21]
The prosecution has also referred to both sexual and physical abuse occurring in a different State, New South Wales. These acts of sexual abuse do not form part of the charge laid on information. They are uncharged acts which occurred after the alleged sexual offending in South Australia. The prosecution submits that the use of this evidence is relevant but again, both specific and limited. The accused is not on trial for these uncharged acts. Even if the court finds other alleged acts of abuse, both physical and sexual, occurred in New South Wales, that can't of itself prove that the accused sexually abused his daughter in South Australia. Again, it would be quite wrong and unfair for the trier of fact to reason that way. But what these uncharged acts may do, if and only if your Honour finds them proved, is place the charged offending in context in showing that the alleged sexual and physical abuse by the accused upon his daughter, [C], didn't simply cease once the family moved interstate but that it continued, even when they moved to different towns in New South Wales, and the offending escalated.
It is evidence, the prosecution submits, that reveals that [C] continued to silently submit to and endure this persistent and escalating sexual abuse for many years and may suggest why her father was emboldened and confident in thinking he could continue to sexually abuse [C] and get away with it, particularly when there were significant events occurring in her childhood, namely moving house and moving to a different State, where she was uprooted from her familiar environment and relocated to new and unfamiliar surroundings, with the two constants in her life being her mother, who was a busy working mum, and her father, her primary caregiver. It is evidence, the prosecution submits, that forms an indispensable part of the narrative of the prosecution case. It is evidence, it is submitted, without which the rest of the prosecution case could not properly make sense.
I pause there to note that the leading of this evidence is not challenged by my friend. Accordingly, however, with respect to this discreditable conduct evidence, it is submitted by the prosecution that your Honour will need to direct yourself according to s.34R of the Evidence Act.
This type of discreditable conduct evidence was discussed and held to be admissible in Hughes v The Queen.[22]
[21] T 9-10.
[22] [2017] HCA 20.
Again there was no indication of any objection at that stage by the defence to the leading of this evidence for that more limited purpose.
In those circumstances, I proceeded on the basis that the admissibility of this evidence was not disputed. If it had been disputed, unless Mr Richards was able to produce submissions other than what were contained in the grounds for his objection at T 40, I do not see any grounds upon which the evidence could have been excluded. I still do not understand the significance of a distinction between ‘an assertion about an act’ and a reference to that act in the trial. If the defence did not dispute the admissibility of the evidence, then there were no grounds for Mr Richards’ objection.
I remind myself that s 34R of the Evidence Act requires me to identify and explain the purpose for which the evidence of uncharged acts may, and may not be, used.
Since the prosecution no longer relies on propensity, the provisions of s 34P(2)(b) no longer apply. Section 34P(2)(a) provides that it is sufficient if the probative value of the evidence ‘substantially outweighs’ any prejudicial effect it may have on the defendant. I take from the lack of objection from the defence to the admission of this evidence that this requirement has been satisfied.[23]
[23] See R v C, CA [2013] SASCFC 137 per Kourakis CJ at [54].
Similarly, I take the lack of objection as an acknowledgment that the requirement of s 34P(3), namely that the permissible use of the evidence 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’, has been met.
In that context, I also remind myself that I must not use the evidence for any impermissible purpose, that is, that R is more likely to have committed the offence because he has engaged in discreditable conduct.[24]
[24] Evidence Act, s 34P(1)(a).
I will therefore confine the use to which any evidence of what may have occurred in New South Wales to the purposes identified by Ms Smith in her opening, and ignore any issues of tendency or disposition. The issues identified by Ms Smith go to the credibility of C’s evidence only.[25]
[25] R v Taheri [2017] SASCFC 92 per Vanstone J.
One incident described by C illustrated the nature of her relationship with her father and the degree to which this was concealed from her mother, who was still working full-time. She said the incident happened in the second New South Wales town. She said:[26]
One afternoon my father was seated in the chair and I was straddling his lap for lack of a better word. We - so neither of us had clothing on at that time, I think they'd been removed and his penis was rubbing against me, not inserted but touching my vagina and I remember hearing a car door. So it was quite late in the afternoon, mum was home. She had her own car at that point and I remember this bit of mad scramble for us both to redress ourselves and of course she had house keys so she let herself in and we pretended like nothing happened.
[26] T 68.
The evidence, if accepted, illustrates that C had by that time become completely inured to sexual abuse by her father. It had become so routine that she automatically reacted to conceal it from her mother in an urgent situation such as her mother returning home unexpectedly. This is an example of how the evidence of uncharged acts in New South Wales provides a context to the earlier acts in South Australia that, if accepted, makes C’s evidence of what happened in South Australia less surprising, and more credible.
C also said that her father physically abused her in New South Wales. This evidence was led without objection from the defence. She also gave evidence of R’s aggressive behaviour towards her mother. The reason for the lack of objection to this evidence became apparent when R gave evidence on his own behalf. I will return to this issue later in these reasons when discussing R’s evidence.
C said that on 10 June 2012, when she was almost 19 years old and they were living in the second New South Wales town, she made a ‘disclosure’ to her mother, A. The details of the ‘disclosure’ were not led from her,[27] although A was asked about it in general terms.[28] C said that following the disclosure, she left her parents’ house and went to stay with her partner, B. She said she returned home ‘sporadically’ after that. She said there was the occasional angry outburst by her towards her father about what had occurred, and that his response was:[29]
… the most significant was that I was told that I should let it go, that I shouldn't hold on to it and if I did, I would become a bitter old woman who no-one would love.
[27] T 76-7.
[28] T 115.
[29] T 77.
C said that later in 2012, she and B attended at her parents’ house for a ‘family dinner’. It was A’s birthday. She said that at one stage her father raised the topic of her ‘legal options’. She said:[30]
He asked whether - this is paraphrased, what I was going to do and whether I would pursue a case, basically. A court case. At that point I had said that I didn't know, I couldn't promise that I wouldn't in the future but at that moment I was far from ready and that I couldn't make any promises. He then almost begged me, told me that he couldn't go to gaol and I think there was tears there as well.
[30] T 79.
Evidence of A
A confirmed that she worked full-time throughout her relationship with R, and that R remained unemployed. R was C’s primary caregiver throughout.[31]
[31] T 106.
A confirmed that in June 2012, C made a ‘disclosure’ to her that he had been abusing her sexually.[32] A confronted R with the allegations that day.[33] She said:[34]
I told him what [C] had told me, that he had been sexually interfering (with) her and he said something to the effect that 'Well, she's still a virgin and it was only touching'.
[32] T 115. This evidence was not led as ‘complaint’ evidence pursuant to s 34M of the Evidence Act. It is therefore not evidence of the truth of the alleged ‘disclosure’, nor is it evidence of consistency of C’s conduct, or of how the allegations first came to light (s 34M(4)). It merely provides a context for R’s alleged response.
[33] T 115.
[34] T 116.
She added:
The actual conversation I don't remember, apart from that because it stood out to be such an absurd thing to say.
R admitted saying that to A.[35] He denied that this was an admission that he had sexually abused his daughter. He said he was talking about her boyfriend, B.
[35] T 190.
Ms Smith put the illogicality of R’s answer to him:[36]
Q.But that just doesn't make sense, does it, that you would use the word 'touching' if you're suggesting in a physical way and the word 'virgin' in the same sentence.
A.I think what's happened here is that this has been taken out of context, like a lot of the stuff is, and I wasn't referring to myself. I would never touch my daughter sexually.
[36] T 191.
Further, R’s evidence is inconsistent with Mr Richards’ cross-examination of A. Mr Richards put to her that this comment by R was not about sexual abuse, but was about him disciplining C.[37]
[37] T 128.
I reject R’s explanation for this comment. R’s statement to A constitutes an admission of the truth of the allegations of sexual abuse by C, and strongly corroborates her evidence about that.
A also spoke about the further incident later in 2012 when C and her boyfriend, B, came to the house for dinner. That evening, C told her parents that she would not return to the house until R left. A, C and B all testified that R asked C what she was going to do. R admitted that this conversation occurred. In cross-examination, he said:[38]
[38] T 192-3.
Q.Do you agree that in response to what [C] said to you, that you then proceeded to ask [C] what she was going to do. Is that something you said to [C].
A.I think I said something like that, yeah.
Q.Wasn't it the case that you then begged [C] not to tell anyone about what had happened because you couldn't go to gaol.
A.That's correct.
Q.So that is something that you did say.
A.That's something I said.
Q.And that was a reference, wasn't it, when you begged her not to tell anyone, a reference to the sexual abuse that you had perpetrated upon her.
A.There was no sexual abuse, I'm talking physical abuse.
Q.I suggest to you that on this occasion you were referring to sexual abuse of your daughter, not physical abuse.
A.No.
Q.I also put to you that on this particular occasion you said to [B] that you were scared to go to gaol, is that something you said.
A.That's something I said.
Q.And that later that evening you tried to sell some of your belongings to [B], do you agree that occurred.
A.That occurred.
Q.And that occurred in the den or what is known as the den in your household.
A.That's correct.
Q.Do you agree that also during this conversation with [B] he said words to the effect that he wouldn't be inviting you to his and [C]'s wedding.
A.I heard that, yes.
Q.That was something that was said to you.
A.Yes.
Q.You wouldn't be seeing their children if they ever have children.
A.Yes, I remember that.
Q.In response you shed some tears.
A.Yes.
Q.On this occasion you said to [B] that maybe you should drive your car into a tree, do you agree that you said that.
A.Yeah.
Q.I suggest to you that those comments that you made and your reaction by shedding some tears was in relation to the sexual abuse of your daughter, not the physical abuse.
A.No.
A, C and B all gave evidence that the context was sexual abuse. I accept the prosecution submission that it does not ring true that there would be such a conversation about one act of physical abuse which, on R’s evidence, occurred after C misbehaved and was provocative. The conversation is much more consistent with a discussion about sexual abuse.
A accepted that she did not make any notes about the conversation she had with R. It was suggested that R was talking about disciplining C rather than sexually abusing her. A was clearly contemptuous of such a suggestion. She said that R was responding to her accusation that he had been sexually abusing C. Clearly, A’s belief was that R’s statements did not make sense in any other context.[39]
[39] T 128.
A accepted that throughout C’s childhood, she saw nothing that indicated to her that R was touching C inappropriately.[40]
[40] T 133.
Mr Richards suggested to A that R suffered from erectile dysfunction. She agreed that that was so ‘towards the end of our marriage’.[41] She denied that it was throughout their marriage. She was then cross-examined about whether her husband’s penis was smaller than a toilet roll holder. A was clearly embarrassed by the question. Her responses were:[42]
[41] T 135.
[42] T 135-6.
Q.Your husband was not particularly a generously endowed man; is that a fair thing to say.
A.Compared to?
Q.Well -
A.I don't know.
Q.Is it fair to say that his erect penis is less than four inches long.
A.I don't remember, I'm sorry.
…
Q.The question that I asked was whether or not he was bigger than a toilet roll holder and you said you don't remember.
A.Frankly, I didn't measure it against the toilet roll holder. It was - he was my first major sexual partner, so I had nothing to compare it to. So, no, our sex life was our sex life, it was what it was.
…
Q.But comparing it to a toilet roll holder, he was smaller than that; wasn't he.
A.I've got no idea, sorry.
Clearly, A provided no support for R’s arguments based on erectile dysfunction or penis size.
The ‘Pretext’ Telephone Call
On 9 December 2016, a telephone conversation took place between R and C. There is no evidence that R knew that C had attended at the Special Crimes Investigation Branch offices in Wakefield Street, Adelaide for the purpose of the call, or that he knew that the conversation was recorded. He was not asked about that. C said that no one else was in the interview room during the call, and that she was in control of the recording device.[43] Evidence of this conversation was led without objection. The disk[44] was played in court. A transcript was received as an aide-mémoire.[45]
[43] T 83.
[44] Exhibit P8.
[45] Exhibit P8A.
In cross-examination, R said that he ‘sometimes’ had difficulty hearing what was being said, but ‘not all the time’. He said:[46]
Like, I said 'Yes' to a lot of the things I thought I heard.
[46] T 194.
Ms Smith pointed out that there was only one occasion during the call when he asked C to repeat herself. The passage occurs at page 20 of the aide-mémoire:
Q199.Yep.
A:Would’ve had that for a week and um I might just get Meals on Wheels I think because that’s, oh apparently I’m a Diabetic now so I’ve got that
Q200.Well that makes sense.
A:Hey?
Q201.I said that makes sense given, you know, your unhealthy food choices in the past.
R’s response in cross-examination was bizarre:[47]
A.I don't think I was asking her to repeat what I said.
HIS HONOUR
Q.What she said.
A.What she said, sorry. I don't think I was asking her, I was really telling her that I was thinking about Meals on Wheels.
[47] T 196.
R refused to accept that this was the only occasion when he asked C to repeat herself.[48] He declined to identify another point. He became evasive and self‑contradictory. He insisted he was saying ‘Yes’ to everything[49] when that was clearly wrong. Then he suggested he was trying to find out the allegations C was making against him.[50]
[48] T 196.
[49] T 197.
[50] T 197-8.
The conversation contained many significant statements made by R. The prosecution contends that many of these statements constituted admissions of guilt. The following passages from the transcript illustrate this point:
Passage 1
Q9.Pardon.
A:Can I say something first?
Q10.Yeah, sure.
A:I’m really sorry.
Q11.For what?
A:For everything I did.
Q12.What did you do?
A:Bad things.
Q13.But I need to hear you, I need to hear you take ownership of what you did.
A:I have.
Q14.No. Yeah, but you’re just doing it generically. I need to.
A:No I’m not. No, I’m not. I’ve been to the doctors and I’ve been on anti-depressants and everything.
Q15.Well, you and I both.
A:Yeah. I, I’m very sorry. I’m so sorry. I don’t know what I was thinking.
Q16.Well what. What do you remember doing?
A:I don’t know why I did, I don’t know what I did. I know, I remember what I did. I know what I did.
Q17.Can you, I need to hear you say it. I need that for my closure because every time you’ve admitted it to me, you know, what, what were some of the things.
A:I’m not gonna, to say what I did.
When this passage was put to him, R’s answers went from:
·he heard what she said;[51]
[51] T 198.
·when he said ‘bad things’ he was only referring to one thing;[52]
[52] T 198.
·he was emotional, he could not hear her talking properly, his sinus was blocked up and he was crying.[53]
[53] T 198.
All of these purported explanations are entirely unconvincing and self-contradictory. R’s apology was unsolicited by C, and his use of words like ‘everything’ and ‘things’ was in response to non-leading questions.
Passage 2
Q23.Ok.
A:And I’m sorry. I’m very, very sorry that I hurt you.
Q24.Because you sexually abused me?
A:And I hurt your mum too.
R’s response to me during cross-examination was:[54]
[54] T 199.
Q.When she said 'Because you sexually abused me'.
A.Yes.
Q.And you said 'And I hurt your mum too'.
A.Yes, that's correct.
Q.Weren't you agreeing that you sexually abused her.
A.No, I wasn't.
Q.(What) did you use the word 'and' for.
A.Because I hurt [A] and I hurt [C]. I'm not referring to anything else.
Q.When she said 'Because you sexually abuse(d) me' you didn't say 'No, I didn't', did you.
A.No, we're not on the same page. We're not on the same page.
Q.I'm on p.3, what page are you on.
A.I know where I am in my mind, I am not on the same page as [C].
R’s response here is illogical and makes no sense. It was as if he could not bring himself to face the truth of what he had said to C, and the truth that lay behind it.
Passage 3
Q28.The first thing I ever remember was um when we were living at […] and um you were sucking my nipple, my left nipple. Do you remember that?
A:Yeah. I shouldn’t have done any of that.
Q29.And the things that you made me do to you?
A:Yes.
Q30.Yep? So, whether …
A:Oh, I’m sorry about doing any of that. I do, I know what I did. I remember [C].
R’s response to this passage was that he was trying to ascertain what ‘charges or things she’s saying against me’.[55] That response is patently untrue. His responses clearly indicate that he knew what C was talking about, and that he acknowledged that her statements were true.
[55] T 199.
Passage 4
Q50.Um, I know you’ve said some things to mum about it but um obviously that was a little while ago now, but do you recall instances where you did try for penetration?
A:No.
Q51.Because they did happen.
A:Right.
Q52.Um I can recall one quite clearly when we were living in […].
A:Mm.
Q53.Umm.
A:No, I can’t remember that.
Q54.Ok. So it wasn’t just touching.
A:No.
This is a clear example of where R did not say ‘Yes’ to everything. He denied actual penetration. He clearly understood the context of the conversation.
Passage 5
Q59.But can you tell me, can you, can you remember what you did?
A:I hurt you and I remember everything.
Q60.Well can you tell me what you remember? Because I need to hear.
A:Oh well.
Q61.Please.
A:I remember touching you inappropriately.
Q62.Where?
A:In places that I shouldn’t have touched you. I don’t really want, I, I don’t really want to spell it out.
Q63.No, but I need you to. It’s so important for me.
A:I’m sorry that I touched you in places that I shouldn’t have touched you. [indecipherable]
R’s response in cross-examination was that he was ‘just letting her tell me what she thinks is happening … nothing else’.[56] On further questioning, R said that what he actually said in this passage was:[57]
[56] T 204.
[57] T 205.
'I remember touching you inappropriately around the neck'
He said no such thing. The evidence of what he said is there, clear as crystal, on the disk. Whatever is the explanation for them, R’s responses completely lack credibility.
Passage 6
Q113.What do you mean?
A:I, I didn’t really…. Oh it just seemed to happen. It just seemed to happen. I think it runs in the family.
Q114.Why is that?
A:I think my dad had it – did it.
…
Q116.He did it to [R’s sister].
A:Yes. And I think he came back from the army and um a social disease.
Q117.Ok.
A:And she gave, I think he gave it to her, or, or he got her pregnant, or and he got her pregnant. Or um, and I think that’s why she went off the rails the way she did.
Q118.Yep. You know she tried to commit suicide?
A:Yeah.
R’s response to this passage in cross-examination was:
·his father’s ‘social disease’ was in fact a cold or the flu;[58]
[58] T 215.
·his father did not do anything to R’s sister, he was referring to his sister’s boyfriend;[59]
[59] T 215.
·when he said that his father ‘Did it to [R’s sister]’, he meant that his father was violent towards his sister, just as he was to C;[60]
[60] T 215.
·when he said his father got his sister pregnant, that was just ‘mixed up stuff’.[61]
[61] T 215.
This is another example of R’s answers being illogical and nonsensical, and plainly untrue. His characterisation of a ‘social disease’ as a cold or the flu was a particularly low point in his evidence. His suggestion that he was saying that his father came home from the army and gave R’s sister a ‘social disease’, namely a cold or the flu, is ludicrous.
Passage 7
Q135.Yep.
A:And you were supposed to have been my love child, and everything else.
Q136.Yep.
A:And um, you know I can see, I just, I was just a monster to you.
Q137.Mm hmm.
A:Oh I just wasn’t, this is not right. Just not right. And I got no explanation except that, I was out of control.
Q138.Yep.
A:And I didn’t, I didn’t know really quite how to stop.
Q139.Ok.
A:I enjoyed it and I shouldn’t have. And now I know that I shouldn’t have enjoyed it and I shouldn’t have done it.
Q140.Yep.
A:I, this is the price I pay. I paid a huge, I’m still cracked – like you are.
Q141.Yeah. Yep.
A:We both know. And I, I think the only peace I’m gonna have is when I’m dead.
R also described his behaviour as ‘sickening’.[62]
[62] A: 131; T 218.
R described himself as a ‘monster’. R did not accept that he was a monster towards C, even though he admitted he said it.[63]
[63] T 219.
Notwithstanding his use of expressions like ‘sickening’ and ‘monster’, R continued to maintain that he was referring only to one incident of physical abuse. That is clearly contradicted by the context in which both expressions were used. R was clearly referring to a course of conduct, rather than, as he now asserts, a single incident. The same comments also apply to R’s later description of himself as an ‘animal’[64] and that what he did was ‘evil, evil, evil’.[65]
[64] A: 236.
[65] A: 273.
R was also challenged about his admission in this passage that he was ‘out of control’, that he ‘didn’t really know how to stop’, and that he ‘enjoyed it’. He said he did not remember saying those things.[66] Later, he admitted saying it.[67]
[66] T 228.
[67] T 229.
At that point, R professed to be tired and losing concentration.[68] However, he then reverted to his version, saying that he should not have enjoyed smacking C.[69] I saw no sign that he was losing concentration. He continued to make his specious arguments right to the end of the cross-examination.
[68] T 229.
[69] T 229.
Passage 8
Q311.Because you used me as a means for your sexual satisfaction.
A:I know that’s right. But I know that better now. I know better now.
Q312.It’s selfish. That’s what it was. It was selfish.
A:It was very selfish and it was cruel. And it was probably cruel.
Q313.It was cruel. Yes. Because I didn’t know any better. But you, like you said earlier you were able to manipulate me.
A:That’s right.`
Q314.And there was, there was oral sex. There was um, there was digital penetration. There was um me sucking your nipples. You sucking my nipples. There was attempts an [sic] penile penetration. Yes?
A:That when I worked it out. That’s when I should that’s when I stopped.
Q315.What do you mean?
A:I worked it out I shouldn’t have been doing that. Too little too late.
Q316.Yep.
A:And I worked it out. Right back then and I didn’t want to do anything more. Plus I didn’t want to. I knew I hurt you and I well, you know, I wondered, I wondered um, you know if you could ever, you know get over it?
Q317.That’s not how it works.
A:No, but I realised what was going on.
Q318.Yep.
A:And I tried to stop. I did really try. I didn’t try hard enough.
This is perhaps the clearest acknowledgment by R of sexual offending against C. What R makes clear is that he admitted sexual abuse, but he drew the line at penetration, and that’s where it should have stopped.
R’s response in cross-examination was:
·he only heard parts of this passage,[70] although he could not specify which parts. The point about that is that it is his answers which are incriminating and not C’s questions. The answers were clearly responsive to C’s questions. I reject R’s evidence that he did not hear everything that was said;
·when he said he had ‘worked it out’, and that when it should have stopped, he was referring to hurting her.[71] For the reasons I have already given, I reject this explanation.
[70] T 222.
[71] T 224.
Case for the Accused
R elected to give evidence on oath.
I remind myself that his evidence should be assessed in the same way as the evidence of any other witness. In particular, it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence to which he is entitled when his evidence is being assessed.
R described himself as a ‘house husband’ throughout his marriage to A.
R said he suffers from erectile dysfunction. He got that ‘years ago’ and it was the result of being treated for drug dependency when he was young. He was given tablets which resulted in ‘chemical castration’.[72] After C was born, he underwent a vasectomy because A had suffered several miscarriages and then two stillborn children. He developed a severe pain afterwards, which was investigated with a lot of ultrasounds.[73]
[72] T 145.
[73] T 145-6.
R said that as the result of all this, he could only have an erection for ‘a few seconds’, and that he could not achieve a full erection. He said he suffered from erectile dysfunction throughout his marriage and even before he was married, and that he ‘always had trouble’. He said, ‘I was on the decline quite early I think’.[74]
[74] T 146.
R denied that his penis was large enough to ‘poke out’ of the end of a toilet roll. He said this was especially the case because ‘it wouldn’t be erect either’.[75]
[75] T 147.
R was cross-examined about the fact that A had suffered at least four miscarriages, there was evidence of two stillborn children and, of course, C was conceived notwithstanding his alleged impotence. His evidence about this was bizarre:[76]
[76] T 156.
Q. … You'd accept that the penetration was sufficient to enable you to ejaculate inside of your wife.
A.My wife is large, I didn't have to penetrate. There was no penetration, I just -
And later:[77]
[77] T 157.
Q.I assume that you were having sexual intercourse often enough with your wife to warrant having a vasectomy, would you agree with that.
A.I don't know. I don't really think that's here nor there. I had a vasectomy to keep my wife alive. I wasn't thinking about sex. It's not all about sex, you know.
Q.Was it to prevent her from becoming pregnant.
A.Yes.
Q.Pregnant as a result of penile-vaginal intercourse between you.
A.Not specifically in that terminology.
Q.How else would she become pregnant.
A.I would place it in her. There was no penetration, if you know what I'm saying. She was a large woman.
R’s evidence about this topic completely lacks credibility. It is nonsensical to suggest that sex had nothing to do with having a vasectomy, as is the idea that he and A were able to conceive a child at least seven times even though he was effectively impotent, and could not achieve penetration.
As I have mentioned, A was cross-examined on this topic. She agreed that R suffered from erectile dysfunction towards the end of their marriage, but not throughout the marriage.[78] It was not put to her that she became pregnant at least seven times without R having penetrated her sexually.
[78] T 134-5.
R also said that he has a hearing disability. He wears hearing aids.[79] He said that he also suffers from diabetes, testosterone deficiency, arthritis and heart problems (he has had two heart attacks ‘probably 10 years ago or more’).[80]
[79] T 147.
[80] T 147.
R denied ‘each and every one’ of the allegations made by C that he sexually abused her.[81]
[81] T 149.
R did admit there was one occasion where he physically chastised C in a way that he thought was inappropriate. It happened when C was 13 or 14. They had had an argument about what C was wearing. He was very angry with the way she spoke to him. He told her he did not like her wearing dresses and skirts ‘up so short you could see her knickers between her legs. She was dressing like a slut’. He said:[82]
A.Lost it. I basically pushed my hand against - she was standing way back from the wall (WITNESS INDICATES), I got so angry I lifted her up off her feet and I placed her against the wall and held her like a vice and I was so angry. I should never have done that.
Q.She gave evidence that on that occasion you held her for an extended period of time and was choking her.
A.Yes.
Q.Do you agree with that.
A.Yes, she turned blue.
[82] T 150-1.
R denied that he acted this way after C called him a ‘child molester’ in the course of one of their many arguments when she was a teenager.[83]
[83] T 174.
R added that there was no other occasion where he physically chastised C in a way that he thought was inappropriate.[84] He said:[85]
I was chastising on the grounds that I thought were fair and just. Sometimes I would, you know, probably get a little bit too angry and lose it but I would never hit her.
[84] T 151.
[85] T 149.
R said that when C became a teenager, she became rebellious and that he ‘had to be strict with her’.[86] There was conflict between them. He said that this got a lot worse as she got older, when they lived in New South Wales. He said ‘She was always pretty bad’.[87]
[86] T 151.
[87] T 152.
At this point, I pause to observe that R’s evidence about C’s rebelliousness is in marked contrast to what he said during the telephone conversation on 9 December 2016. In that conversation, R took entire responsibility for the conflict between them, describing his own behaviour as that of an ‘animal’, a ‘monster’, and that he had been ‘evil’.
As to that call on 9 December, R made the following general points:
·he was in his car in the car park of a very busy shopping centre;[88]
·there was outside noise as he was parked near a collection point for shopping trolleys which were banging into a trailer throughout the whole call;[89]
·there were people walking and moving trolleys backwards and forwards;
·his hearing disability was exacerbated on that day because he was not wearing hearing aids. He was unable to hear her voice clearly throughout the call. In those cases he just said ‘Yes’;[90]
·at no time did he intend to admit to sexually inappropriate touching of his daughter;[91]
[88] T 153.
[89] T 153-4.
[90] T 154.
[91] T 154.
I reject R’s allegations that he did not hear his daughter clearly through the call, that he simply said ‘Yes’ even though he did not hear the question, and that he did not intend to make admissions of sexual misconduct. I am satisfied beyond reasonable doubt that R’s evidence about that is untrue. It is clearly apparent from the transcript that his answers were responsive to the questions, he did not simply say ‘Yes’, and there was only one occasion where he asked her to repeat what she had said. Although there are some signs of background noise in the recording, it is not loud, and both C’s voice and R’s voice are clearly audible.
I reject R’s evidence beyond reasonable doubt that he did not at any stage intend to admit that he had engaged in sexual misconduct with C.
Admissions of Guilt
R did not give evidence about a belief, one way or the other, about whether the conversation was being recorded. It is more likely that he did not believe that it was. But that does not mean that R was less likely to tell the truth. He knew that C had called him in order to have him admit and ‘take ownership’ of his behaviour. It is not credible that he may have falsely admitted his guilt to her because ‘I just wanted to talk to her and hear her voice’.[92]
[92] T 154.
In Em v The Queen,[93] Gleeson CJ and Heydon J (with whom Gummow and Hayne JJ agreed on this point) approved directions to the jury given by the trial judge that they should consider this type of evidence by asking themselves the following questions:
“1.Are you satisfied that the accused said what the Crown says that he said?
2. If you are satisfied that the accused said what the Crown says that he said, are you satisfied that the accused was intending by what he said to make a truthful statement? …
3. If you are satisfied that the accused said what the Crown says that he said and that the accused was intending by what he said to make a truthful statement, does what the accused said amount to an admission and what weight should be given to it.”
[93] (2007) 232 CLR 67 at [86].
I indicate, for the reasons I have already described, that I am satisfied beyond reasonable doubt that the answer to all three questions is ‘Yes’.
As to the weight to be given to the evidence, it is appropriate to give it considerable weight. It is probative of guilt, and strongly corroborates C’s evidence.
Consideration
As to C’s evidence, Mr Richards criticised it on the following grounds;
·she was either mistaken or lying;
·her motivation for lying cannot be known;
·she may not be lying – she may be truthful but mistaken;
·C was not afraid of conflict with her father when she was a teenager;
·C’s disclosure of the allegations came after she came home drunk the night before from a party;
·C’s allegations were that R’s abuse occurred in the home, sometimes when her mother was present, and when there was a high risk of detection;
·it is incredible that A was not aware of the abuse if it occurred;
·C’s allegations lacked specificity;
·the allegations are not sophisticated such that a teenager would not be able to make them up;
·C needed to be reminded from her statement during a break in her evidence about significant aspects of her evidence.
I accept that the defendant is under no obligation to prove that C is lying, nor is he obliged to suggest a motive for lying. It is for the prosecution to prove beyond reasonable doubt that her allegations are true, and the defendant has no obligation to prove or explain anything.
As to C’s loss of memory when giving evidence, it was readily apparent that C was distressed at having to give evidence against her father. She explained that she was having difficulty ‘accessing’ her memory because of the stress she was under. She should not have referred to her statement in those circumstances, but she was not warned against doing so. C’s behaviour was not dishonest or underhanded. She freely answered Mr Richards’ questions about the issue in cross-examination.[94] I am satisfied that the events which occurred during her examination-in-chief do not reflect adversely upon her credibility or reliability.
[94] T 83.
I reject Mr Richard’s other criticisms of C’s evidence. She was a good witness, articulate and thoughtful. She did her best to describe events that were very painful to her. She made appropriate concessions in cross-examination when required. My impression of her was that she was an honest witness. The nature of the allegations is inconsistent with her being mistaken. Her evidence was grounded in fact, not fantasy, and was strongly corroborated by the conversation on 9 December 2016, and R’s admission to A in 2012.
As to R’s evidence, Mr Richards submitted that:
·R was distressed and ‘deeply emotional’ because of the serious allegations being made against him;
·R became tired and confused late in his evidence;
·R was ‘never shaken’ in cross-examination about his general assertion that there had never been sexual activity between him and C;
·there was noise on the recording which supports R’s assertions that he did not hear everything that was said.
It is true that R cried at several stages during the ‘Pretext’ telephone call. However, I detected no indication that he did not understand what they were discussing. I do not regard his apparent distress as exculpatory.
As to R being tired and confused, I reject the submission that the cross-examination was oppressive or unfair. There was no indication, from answers subsequent to R’s complaint, that he was unable to concentrate, or that he did not understand the question.
As to R not having been ‘shaken, if that means that he did not stray from his chosen path, then that is true. However, his stubborn refusal to acknowledge the significance of much of what he said in the telephone call became so bizarre in cross-examination that it was difficult to tell whether R’s evidence was consciously untrue or self-delusional. Either way, it completely lacked credibility.
I am satisfied beyond reasonable doubt that R’s denials of C’s allegations of sexual abuse are untrue. Wherever their evidence conflicts, I accept C’s evidence. I am satisfied beyond reasonable doubt that her evidence is true.
Conclusion
C’s evidence justifies a finding that all of the alleged unlawful sexual acts specified in the information have been proved beyond reasonable doubt.
Verdict: Guilty.
0
4
1