R v S, DD - [2011] SADC 188

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, DD
Criminal Trial by Judge Alone
[2011] SADC 188
Reasons for the Verdict of His Honour Judge Soulio
8 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone.
Accused charged with one count of indecent assault and one count of unlawful sexual intercourse.
Verdicts: Not guilty of both counts.
Criminal Law Consolidation Act Amendment Act (SA) No. 94 of 1972; Evidence Act 1929 (SA) ss 34CB, 34M; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 49, 56, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 293; R v J, JA (2009) 105 SASR 563; Crampton v The Queen (2000) 206 CLR 161; R v H,T (2010) 108 SASR 86; R v S,DD (2010) 109 SASR 46, considered.

R v S, DD
[2011] SADC 188
Background

The complainant, J, was born in 1974 and is aged 37 years of age. She alleges that between mid 1986 and mid 1987, when she was 12 years old, she was indecently assaulted by the accused. She further alleges that between mid 1987 and mid 1991, when she was between 13 and 16 years old, the accused engaged in sexual intercourse with her. The accused, who is the father of the complainant, denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The accused is charged with one count of indecent assault pursuant to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA),[1] and one count of unlawful sexual intercourse pursuant to s 49(3) of the CLCA.
[1] As the Act stood at the relevant time.
By s 3 of the Criminal Law Consolidation Act Amendment Act No. 94 of 1972, the following offence of relevance to the counts charged on the Information, was inserted into the CLCA:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
The particulars alleged are that:
First Count
The accused between the 10^th day of July 1986 and the 31^st day of July 1987 at Port Lincoln, indecently assaulted J, a person of the age of about 12 years.
Second Count
The accused between the 31^st day of July 2007 and the 10^th day of July 1995 at Charlton Gully, had sexual intercourse with J, a person under the age of 17 years.
J’s evidence in relation to the first count, in general terms, was that the incident occurred in her parents’ bedroom, when she was living at Eden Street in Port Lincoln. The accused commenced by massaging her feet, and then her legs, and then proceeded to insert his fingers into her vagina.
Her evidence in relation to the second count, in general terms, was that the incident occurred after the family moved to Charlton Gully, and occurred in the lounge room of the house there. That incident, she said, began in the same way when the accused commenced by massaging her feet and eventually proceeded to inserting a finger into her vagina.
Although a range of dates in relation to each offence is alleged in the Information, the exact date is not an essential ingredient of any of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[2]
[2] R v Dossi (1918) 13 Cr App R 158 at 159–60.
General Directions
It is necessary to give consideration to the elements of the offences and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the initial “complaint” by J. It is also necessary to consider the relevant onus of proof in relation to uncharged acts, and the use to be made, if any, of such acts if proved to the requisite degree.
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to either charge I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied before I could convict the accused of any count on the Information that the prosecution has proved beyond reasonable doubt each element of the charge. Where I refer to something being proved, or being satisfied of, or accepting something, I shall mean beyond reasonable doubt.
It follows, that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of the charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence, and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
Complaint
The provisions of s 34M of the Evidence Act 1929 (SA) apply[3] and evidence of the initial complaint by J was led in accordance with that section which provides:
[3]    R v Seigneur (2009) 103 SASR 2007.
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)    to inform the jury as to how the allegation first came to light; and
(ii)     as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The first offence against the complainant J is alleged to have occurred some 25 years ago, and the second is alleged to have occurred between 20 and 24 years ago. The first time the matter was raised by the complainant, on her evidence, was when she was around 14 years old, and while she was living at Charlton Gully. J said in evidence that she told a Ms Hopewell, a school friend, that she had been sexually abused by her father. The complainant subsequently made a report to police in 1988 which is asserted to be an elaboration of the initial complaint. Counsel agreed that the evidence of complaint to Ms Hopewell was admissible but that I retained a discretion to exclude such complaint evidence.[4]
[4] See R v H, T (2010) 108 SASR 86 (per Gray J), R v S, DD (2010) 109 SASR 46 (per Peek J).
Evidence of the initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency of the conduct of a complainant and the reliability of her evidence.[5] It is not admitted as evidence of the truth of what a complainant alleges.
Delay in Complaint
[5] R v J, JA (2009) 105 SASR 563 (per Duggan J) at [93].
Section 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; and
(b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint. However, if I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach each charge on the basis that I should give close scrutiny to the complainant’s evidence.
I bear in mind that in a case, as here, involving lengthy delay, the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic weapons that contemporaneity provides.[6]
[6] Crampton v The Queen (2000) 206 CLR 161 at [45].
Uncharged Acts
There was evidence from the complainant that on occasions other than the charged occasions, after the incident constituting Count 1, the accused performed similar acts upon her on a regular basis, in different rooms in the house, including the lounge room, and the bedroom J shared with her younger sister.
The whole of the alleged course of events in relation to the complainant provides a context in which it is said that the charged incidents occurred. In that way it can be said that the preceding events throw light on the relationship which the complainant described as existing between herself and the accused.
It may tend to explain why the complainant did not make an immediate complaint when the second charged incident was said to have occurred. It may explain why the accused expected the complainant’s co-operation and silence at that time.
Further, it could be used to assist in explaining the background against which the second charged offence came about, where the complainant’s evidence of the offences charged may otherwise have been unreal or unintelligible or not fully comprehensible.
The evidence of the uncharged incidents, along with the evidence going directly to the charges, can be used by me in determining what, if any, weight I am prepared to place on the complainant’s evidence. The evidence may assist me in concluding that the complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence, and thereby raising doubt about the charges.
I will only use the evidence of an uncharged acts where I am satisfied that such an act occurred. I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. My verdicts must be delivered on the basis of the evidence in relation to the charges themselves.
The Elements of the Offences
Count 1 - Indecent Assault
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove each of four elements beyond reasonable doubt.
The first element which must be proven is that there was an application of force to another person. Any touching or handling is sufficient. There need not be any great application of force. In relation to Count 1, the acts alleged to constitute the assault are that the accused touched her vagina and put his finger inside her vagina.
The second element requires that the application of force must be intentional rather than accidental touching. The third element is that the application of force must be without lawful justification or excuse.
The fourth element is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent.
Given the undisputed age of the complainant, consent is not an issue. The defence did not dispute that if the act alleged by J was committed, the act constituted an act of indecent assault.
Count 2 – Unlawful Sexual Intercourse
The accused is charged with unlawful sexual intercourse with a person under the age of 17 years of age. The Crown must first prove beyond reasonable doubt that the accused had sexual intercourse with J. The act alleged to constitute the offence is that the accused inserted his finger into the complainant’s vagina, such an act falling within the broader definition of sexual intercourse.
The second element to be proved is that J was under the age of 17 years at the time the sexual intercourse occurred. Consent on the part of J is not a defence to the charge. The charge is proven if the two elements are established regardless of whether J consented.
Witnesses
The Crown case comprised the evidence of J, the evidence of Ms Hopewell, to whom the initial complaint was said to have been made, and the police officer, Ms Pearsons. The accused gave evidence in his own defence and was the only defence witness.
The Prosecution Evidence
The Complainant J
The complainant gave evidence about her family circumstances and the fact that she was, at about the age of 12, living in Eden Street in Port Lincoln. She thought she was in about year six in primary school. She said that on a number of occasions prior to the commission of Count 1 the accused had massaged her feet. However, on a particular occasion the accused started massaging her feet and then continued and touched her “in a different way”. She thought it was in the late afternoon on a weekend. She said that the incident occurred in her parent’s bedroom and that her mother was present in the room, but asleep at the time. She said that her mother suffered epilepsy and took medication, and became sleepy.
She said she was laying on the bed next to her mother and that her father came into the room and sat on the edge of the bed and started massaging her feet, before moving up to massage her legs and then started touching her on the vagina, and then put his finger inside, and moved his finger in and out. He did not say anything. She was asked how she felt at the time and said that she was “pretty confused and I sort of pretended that it wasn’t really happening.” She said that her father stopped touching her in that way, and then got up and left without saying anything. She did not tell her mother about it.
She was asked whether she could recall the details of every time the accused did something sexual to her and said that she could not because it happened so many times she had blocked it from her memory so that she could get on with her daily life.
She described the similar subsequent actions by the accused, starting with him massaging her feet and then moving up her legs and touching her vagina. She said it happened so many times that she could not remember any specific time. She gave evidence that on occasions she would wake up in her bedroom which she shared with her sister who was a year younger, and find that the accused was touching her in the same way.
She said that the family moved to Charlton Gully near Port Lincoln and that the same sort of thing continued. She said that it happened on a regular basis and so many times that she could not remember a specific incident. The same type of episode happened at night when she was in her bedroom, both when she was sharing a bedroom with her sister, and after she moved into her own bedroom.
She also said that when she was sharing a room with her sister she noticed the accused watching her through the windows on a few occasions, while she was getting changed for bed.
She said that there was a specific occasion, the subject of Count 2, which she could remember taking place in the lounge room in the house at Charlton Gully. She went to sleep in the lounge room because the house was cold, and there was a fire on in the lounge room. She woke up to find that the accused was touching her, and said that she thought that he had started touching her on her feet and then moved up her legs and then was touching her on the vagina. She said that he put his finger in her vagina and moved it in and out. She said that she was about 14 years old when that happened.
She was asked how she felt on that occasion when the accused behaved in that way, and said “pretty confused, you know just imagining it wasn’t really happening, that sort of thing.” She said that she could not say how many times a similar event happened in the lounge room but that it happened on lots and lots of occasions. She said that the sexual activity by the accused did not stop until she moved out of the house when she was 16 years old. She moved to live with some friends, to get away from sexual abuse by the accused.
She said that after she initially moved out of the house at Charlton Gully she continued to visit for meals once or twice a week. She was asked why she did so, and said that she was raised to believe that family was important and that the family should do things together. She agreed that she still wanted to maintain contact with the accused. She ultimately stopped having contact with him about seven years ago when her own daughter reached the age that the complainant was when she first stated being abused.
J’s Evidence as to the Initial Complaint
The complainant said that when she was about 14 years old in year nine at high school she first told her school friend Sacheen (Ms Hopewell) that she was being “sexually abused” by her father. She had, at Sacheen’s suggestion, gone to see the school counsellor. She remembered that a Mr Edmonds was the school counsellor at the time, but said that she also remembered speaking with a female counsellor.
She subsequently attended at the police station in Port Lincoln, in June 1988, at the suggestion of the counsellor. She gave a statement to a female police officer over a period of some hours. She believed that her mother had attended to see the police officer with her. After the attendance at the police station she believed her parents separated for a period but then resumed living together. She was asked whether things of a sexual nature continued to happen after she had been to the police and said that they continued until she moved out.
Cross-Examination of the Complainant

Counsel for the defendant put to the complainant that there were a number of inconsistencies between what she had said in evidence before me, and what she had previously said in evidence in an earlier trial, and to police. Examples included whether or not she could remember what she was wearing at the time of the first incident; that when she first spoke to police in 2006 she did not suggest that her mother was in the bedroom at the time of Count 1, but rather thought she was in the bedroom on her own with the accused; and that in that detailed statement to police there was no mention made of the accused having inserted his finger into her vagina.
The complainant agreed that in her 2006 statement she had made no specific mention of an incident in the lounge room when the fire was on. She said that investigating detective would often ring her and check with her to see whether she was “having any more memories and stuff like that”. She mentioned some detail of that incident in a later statement given in 2007. She agreed that the investigating detective had said to her that it was important to record details of the incidents she remembered most about, prior to her giving her statement in 2006.
The complainant was asked whether the school counsellor she saw was a Mr Edmonds. She responded saying “I remember that he was the counsellor at the time, but I remember that there was a female counsellor as well, but I don’t remember what her name was.” She agreed that she had been told that Mr Edmonds had no memory of such a conversation.
As to her evidence that the accused had spied on her through the window while she was getting changed in the early evening, she agreed that at Charlton Gully there were spiders which would come out at night and spin webs in the garden area outside the window. She agreed that her father didn’t like spiders.
It was put to her that she had been shop lifting just prior to attending upon police to report the sexual assault against the accused. She said that she could not remember doing so, but thought that her sister may have done so. That appeared to be put as the foundation for a motive to lie. I bear in mind of course that the accused does not have to prove a motive to lie, or indeed to prove anything, and that it is for the prosecution to prove each element of the charge beyond reasonable doubt.
The complainant agreed that after the report to police, and when the family were living together at Charlton Gully, there were many occasions when she went out with the accused collecting wood for the fire, in the scrub. She agreed that on such occasions the accused did not touch her in any inappropriate way.
Ms Hopewell
Ms Hopewell was a school friend of the complainant. She recalled that the complainant had told her something in relation to the complainant’s father when they were about 14 years old and in year eight or nine at school. She said that she was told that the complainant’s father had “sexually interfered with her”, or words to that effect. Ms Hopewell said they then went to the student counsellor’s office. She could not remember the counsellor’s name but described him.
Ms Pearsons
Ms Pearsons, the police officer, said that she was stationed at Port Lincoln police station from 1986 to early 1989. She recalled the complainant and said that she had completed a crime report shortly after meeting with the complainant on 28 June 1988. Her crime report contained a note that the complainant’s allegations were of numerous occasions of penetration of the vagina with a finger, and “possibly penis”.
The Accused
The accused was 60 years old when he gave evidence. He confirmed that his wife suffered from epilepsy and had her first grand mal seizure in 1977 and was thereafter on medication.
He denied that his wife frequently had naps in the afternoon during the 1980s. He did not recall her ever doing so. He described her as a light sleeper. He said that only time she had a deep sleep was after the first grand mal seizure.
He was asked about the allegations made by the complainant, and denied that he had ever touched her in a sexual way.
He agreed there was a wood fire in the lounge room but did not recall any family members sleeping in the lounge room. He agreed that the bedrooms where the complainant and her sister slept were colder rooms than the rest of the house. He denied the second incident or any such incidents.
As to the allegation that he had spied on the complainant through her bedroom window, he said there were heavy curtains on the windows. He described a garden running the length of the house outside the bedroom window. He said there were large spiders at Charlton Gully and he did not go out to the garden after dark because of his reaction to spiders.
The accused gave evidence that he received a call from the proprietor of a newsagency in Port Lincoln reporting that the complainant had been caught shop lifting. He became angry about that and when the complainant arrived home with her mother he approached the car, and dragged the complainant out of the car and kicked her.
The accused said that the report to police occurred within a month after that. He said he was interviewed by police shortly after the report and attended for interviews on two occasions. The allegations were put to him, but to his recollection no allegation about incidents at Eden Street were put to him at that time.
He said that he was crabbing professionally in about 1991, and employed the complainant in that business. In about the year 2000 he started harvesting cockles and the complainant worked for him for about eight months between late 2004 and mid 2005. He said that they also went out to collect fire wood on occasions, both when living at Charlton Gully and after that. He said that the complainant had returned to live with him and his wife on a number of occasions after first moving out.
Cross-Examination of the Accused
It was put to the accused that it was common for members of the family to have afternoon naps on the weekend but he denied that. He agreed that the complainant wore a nightie but no underwear to bed, and said that was on the advice of the complainant’s mother.
The accused denied in cross-examination that he had gone into the lounge room while there was a fire going, and the complainant was on the couch, and he had inserted a finger into her vagina. He said “no I did not”. He denied looking through the window into the girl’s bedroom.
The accused agreed that he was upset about the fact that the complainant had made serious but false allegations about him. He said that after a period of some months he felt sorry for her. He did not recall ever talking to her about it.
Addresses of Counsel
Prosecution
Counsel for the prosecution submitted that the complainant was a reliable and credible witness, and that her demeanour was that of someone doing her best to tell the truth. Counsel properly conceded that the complainant’s evidence was attended by some inconsistencies and gaps in memory, but said that was understandable given both the period of time since the events are said to have taken place, and the multiplicity of events.
In relation to Count 1 counsel submitted that the circumstances described were such as to establish that the incident occurred beyond reasonable doubt. The first time such an event took place was something that would stand out in the complainant’s memory, as was the fact that it occurred in a different room from where the bulk of the uncharged acts took place. Counsel submitted that the fact that the complainant could not be certain about what she was wearing, or that she could not recall whether it was a finger or fingers that were inserted into her vagina, did not detract from her evidence. Counsel further submitted that the failure to mention that her mother was present, when making the first statement to police, was suggestive of the complainant’s honesty, in that she had recalled further details and raised them with police. She said it was such an unusual detail to invent, that the addition of that detail adds a ring of truth to the complainant’s account.
Counsel made a similar submissions in relation to the second incident; that it stood out from other incidents because it was in the lounge room, that the fire was going, and it was winter time. Again, quite properly, counsel conceded that there was a previous inconsistent statement in that the complainant had earlier referred to the accused massaging her feet and legs and then proceeding to insert his finger into her vagina, whereas during the course of the trial before me the complainant said she might have woken up to find the accused touching her on the vagina. Counsel said that the requirement to give evidence or make statements about this issue on multiple occasions meant that the surrounding details had become confusing, but that that did not mean that I could not act on the key aspects of the complainant’s evidence about which she remained unshaken.
Counsel submitted that the uncharged acts might explain why the complainant was amenable to the conduct, insofar as it related to Count 2, and why she made not complaint for some time, and why the accused might have been so brazen as to undertake such conduct.
I make the observation that the circumstances described in the first incident, where the complainant said her mother was laying asleep in the afternoon on the bed next to her while the offence was being committed, would have been a particularly brazen offence.
Counsel submitted that the complaint to Ms Hopewell was generally consistent with the evidence in court. The suggestion to police that the accused had possibly used his penis, counsel said, could be viewed as an inconsistency but given the qualification “possibly” did not necessarily have to be viewed in that way.
Counsel submitted that the fact that the complainant continued to have contact with her family, and with the accused, after moving out, must be seen in the context of her explanation that she had grown up with the concept of a close family being important. I accept that evidence of visits subsequent to the alleged incidents, does not necessarily mean that the complainant was not telling the truth about the incidents.
Defence
Counsel for the accused commenced her submissions by reference to s 34CB of the Evidence Act. Counsel pointed to the fact that the police file in relation to the 1998 report by the complainant had been destroyed, that the accused did not have the advantage of the denials made at the time the allegations were put to him. Further, the loss of memory suffered by each witness in the case which made it difficult to test the evidence. Counsel submitted that it was difficult to test the prosecution evidence and difficult to present a positive defence as to events said to have occurred on numerous occasions without specific details.
Counsel criticised the complainant saying that she had a tendency to “fill in the gaps” on details, which had not remained consistent with details she had previously given in evidence, and in statements to police.
Counsel submitted that when the complainant’s evidence was scrutinised in relation to each of the charged counts the evidence did not reach the point such as to exclude a doubt. Further, the evidence in relation to uncharged acts did not assist with that issue.
Counsel submitted that Count 1, which was said to be the first occasion of sexual activity, was inherently unlikely to have occurred as described by the complainant, and that it was inherently unlikely that the accused would have chosen a time when his wife was in bed having an afternoon nap, to go into the room and touch their 12 year old daughter on the vagina, and penetrate her vagina. Counsel submitted that the accused in such circumstances could have had no way of knowing what the complainant’s reaction might have been and so to do that for the very first time in those circumstances was so unlikely as to be unbelievable.
Counsel also pointed to the inconsistencies between the complainant’s first statement, in which she said that the accused rubbed her on the front of her underpants, and made no mention of the presence of the mother, but said in evidence that she was not wearing underpants, and that she had changed into her nightie in the middle of the afternoon for a nap. No mention was made of penetration in that first statement.
Counsel also made the submission that the incident described as the second incident in the lounge room, was also not an incident reported in the first statement, a statement compiled over the course of several interviews. Counsel described the complainant’s evidence as having the hallmarks of a person who had reconstructed an event, and as a result there must be concern about the reliability of the complainant.
Counsel also criticised the complainant’s reliability on the basis that whilst it must be accepted that she spoke to the school counsellor, and that the school counsellor was a man, the complainant was subsequently told by the investigating officer that the school counsellor, Mr Edmonds, said that he had no recollection about the discussion. It must have been on that basis that the complainant said in evidence that she was not sure whether the counsellor in question was a man or a woman.
It was an agreed fact that the complainant said to another prosecutor “I remember seeing a school counsellor, I don’t remember why I went to see him. Perhaps I was angry with my family for some reason.” The complainant asserted, when cross-examined, that she did not remember saying that to the former prosecutor, and was not prepared to accept that she did say it.
Counsel submitted that the complaint evidence, particularly having regard to the issues as to the identity of the counsellor, and as to the note recorded by Ms Pearsons, did not assist the prosecution case.
Counsel submitted that in relation to Count 2, I would need to be satisfied beyond reasonable doubt that it occurred in the way described. Again, as mentioned, that incident was not described at all to police in 2006. Counsel submitted that the evidence in relation to that count was attended by inconsistencies as to whether the complainant was asleep or awake at the commencement of the incident.
Counsel described as an unusual feature of the evidence that each event, including the uncharged acts, is said to have occurred without a word being exchanged, a threat being made, and any suggestion of resistance verbal or otherwise. Counsel also made the submission that there was some significance in the fact that the complainant was prepared to be alone with the accused in remote places after matters had come to a head.
Counsel submitted that the accused was not shaken in his evidence on oath and that the prosecution’s criticism of what were described as his attempt to distance himself from visits to the children’s bedrooms at night, was unfounded.
Findings
The decision is a difficult one. The case has been made more difficult by the considerable delay between the time of the alleged incidents, and the time this matter came to trial. I accept that the accused has been placed at a significant forensic disadvantage by virtue of the passage of time, and that I accordingly need to scrutinise the complainant’s evidence. The complainant’s evidence is the only evidence against the accused. There were a number of inconsistencies in her evidence. The complaint evidence is itself attended by inconsistencies such that I cannot regard it as being of assistance to the prosecution case. It is not clear that the complaint post dated the second count in any event.
The accused denied the allegations on oath and was not shaken in cross-examination.
I bear in mind that where there is uncertainty as to where the truth lies, I must necessarily find that there is a doubt.
Whilst I may have a suspicion, and indeed a strong suspicion, that the accused engaged in sexual activity with the complainant, having regard to the presumption of innocence and the standard of proof required before I could convict, I cannot be satisfied beyond reasonable doubt that the accused committed the charged offences.
Verdict
I am left with a doubt that the acts alleged by the complainant occurred. Accordingly, I find the accused not guilty of each count.
Count 1 – Not guilty.
Count 2 – Not guilty.