R v S, JJD
[2021] SADC 74
•25 June 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, JJD
Criminal Trial by Judge Alone
[2021] SADC 74
Reasons for the Verdicts of his Honour Judge Stretton
25 June 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with aggravated indecent assault and unlawful sexual intercourse with a person under the age of 14. It is alleged that in the course of social contact between their two families, the accused took advantage of the complainant to commit the two offences. There were significant inconsistencies in the complainant’s evidence, and material inconsistency between the content of the complaint evidence and the complainant’s evidence at trial. The accused gave evidence on oath denying the offences.
Held: There is a reasonable doubt, and accordingly the accused must be acquitted of both offences.
Child Safety (Prohibited Persons) Act 2016 (SA) s 5, 38; Evidence Act 1929 (SA), referred to.
R v S, JJD
[2021] SADC 74
The accused JS is charged with aggravated indecent assault and unlawful sexual intercourse with a person under 14 years in relation to a family friend, who I will refer to as K. It is alleged that in the course of contact between the two families involving activities in a rural area near to Mount Gambier, the accused took advantage of K and committed the offences. The particulars of the offence are as follows:
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JS between the 4th day of December 2016 and the 4th day of December 2018 at (suburb specified), indecently assaulted K by causing her to touch his penis.
It is further alleged that K was under the age of 14 years at the time of the offence.
This is “prescribed offence” within the meaning and for the purposes of sections 5 and 38 of the Child Safety (Prohibited Persons Act 2016.)
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935)
Particulars of the Offence
JS between the 4th Day of December 2016 and the 4th Day of December 2018 at (suburb specified), had sexual intercourse with K, a person under the age of 14 years, by causing her to perform an act of fellatio upon him.
This is a “prescribed offence” within the meaning and for the purposes of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
The elements of the offence of aggravated indecent assault are as follows. Each element must be proven by the prosecution beyond a reasonable doubt, firstly:
1.The accused intentionally touched the complainant.
2. That the touching took place in circumstances of indecency with a sexual connotation.
3. That the complainant is under the age of 14 years.
4. Consent is irrelevant as a child is legally incapable of consenting to an indecent assault.
The elements of the offence of unlawful sexual intercourse with a person under 14 years are as follows. Each element must be proven beyond a reasonable doubt by the prosecution:
1. That at the relevant time the accused was an adult, 18 years or older.
2. At the relevant time, the complainant was a child under the age of 14.
3. The accused had sexual intercourse with the complainant. Sexual intercourse is defined to include fellatio.
Directions
This is a trial by Judge alone. It serves no purpose to set out the standard form directions to a Jury articulating the basis of the criminal trial process. To be clear, however, the court has applied each and every one of those directions.
It is nonetheless important to emphasise the prosecution at all times bears the onus of proof, and to convict the accused of any offence, the prosecution must prove each and every element of that offence beyond reasonable doubt on the basis of the evidence admitted and relevant to that charge alone. An accused bears no onus whatsoever.
The accused in this trial gave evidence on oath, although there was no obligation on him to do so. He deserves credit for undertaking a course he was not obliged to adopt. He having done so, his evidence is to be evaluated in the same way as any other witness.
The issues at trial
The prosecution opened its case by describing count 1 in the Information as comprising an incident at the accused’s home near Mount Gambier in what is known as the ‘big shed’, adjacent the house, at a time when there had been a bonfire and a gathering of people who had stayed overnight camping out. It was said to comprise an incident in the accused’s swag whereby the complainant was caused to touch the accused’s penis. [1]
[1] Opening, T13.
Count 2 is alleged to comprise an incident occurring in the accused’s ute when the accused and the complainant had been driving around the accused’s property near Mount Gambier, whereby the accused caused the complainant to perform fellatio on him.[2]
[2] Opening, T13.
The prosecution also led evidence of two further but uncharged sexual acts alleged to have been performed by the accused with the complainant. These acts were alleged to have occurred just over the Victorian border and accordingly, could not be prosecuted in South Australia. They were led to explain the relationship and also as discreditable conduct to demonstrate that the accused had a sexual interest in the complainant, and demonstrated a willingness to act upon that sexual interest when the opportunity arose, despite the risk of detection.[3] The court has had regard to that evidence strictly for the limited legally permissible purposes.
[3] Opening, T14.
The accused denies that any sexual offending or sexual acts events occurred.
The evidence
The complainant gave evidence by way of audio visual records of interviews dated 6 June 2019 and 5 March 2020.[4] Counsel for the accused sought permission to cross examine the complainant on a number of topics relevant to the facts, and her credibility. Leave was granted in relation to each topic sought.
[4] Exhibit P1.
The audio-visual interviews conducted on 6 June 2019 and 5 March 2020 were tendered pursuant to the Evidence Act. Those interviews were not on oath however in my view the statutory requirements were complied with. Questioning was neutral and non-leading. There were no unfair questions and the officer emphasized the importance of the complainant telling the truth. The officer also emphasised the importance of correcting the officer if anything the officer said was wrong, and that the complainant should disagree with any proposition put by the officer that the complainant disagreed with. In short, the process was conducted entirely fairly and in accordance with the statutory requirements. The court has regard to the evidence thereby given in accordance with the statutory principles, recognising that the complainant’s statements were not on oath.
Initially the officer asked the complainant what she was wanting to speak to police about. The complainant replied it related to the accused touching her in ways that she was not comfortable with. The police officer then asked the complainant to describe the ‘last time’ something of that nature occurred. The complainant described an event occurring in the early morning at a property just over the border in Victoria when she was asked to go and wake the accused up. She said that the accused asked her to get into the swag, made her suck his ‘rude part’, that she had to cup her hand over his penis and that he ‘fingered’ her. Although she was describing a single event, the complainant kept describing what the accused ‘would do’ which was a little discordant when describing a single event that she was purporting to remember. That is one of the two uncharged acts.
Then the complainant was then asked to describe the ‘first time’ that anything happened with the accused. The complainant said that the accused had started touching her where her vagina was, whereupon she would move away and tell him to stop; sometimes he would stop but sometimes he would not. She said she would ‘cup her hand over his dick’ and push it up and down. The complainant was again asked to describe exactly what happened on that ‘first time’. The complainant said she thought it was at his place, in other words at his family’s property near Mount Gambier. The complainant said that the accused had started touching her, whereupon she would tell him to stop. She said sometimes he did and sometimes he did not and that is what had started to happen. Then she said she had to ‘cup her hand over his dick’ and push it up and down for a time.
Then the complainant was asked about the touching of the vagina and the complainant indicated that the ‘first time’ with the accused was the same as the ‘last time’ she had described at the outset of her evidence. The complainant also described these events using terminology to the effect that the accused ‘would do’ this then he ‘would do’ that.
Then the complainant was asked to describe the event again and replied that she had got into the swag, was made to touch the accused’s penis, then the accused went to try and touch her but she pushed him away before he could do so, and got out of the swag.
The complainant firstly indicated this event was in the Victorian location just over the border, however then indicated that she was pretty sure they were at the accused’s property near Mount Gambier in South Australia. This is the event alleged to comprise count 1 in the Information.
It must be observed that there are some elements of inconsistency in the complainant’s answers in the audio-visual interview as to the ‘first time’. Initially she said it involved the accused touching her, then she indicated that it was the accused touching her but then she being made to touch his penis, then she said it was the same as the ‘last time’. The ‘last time’ had involved the accused touching her, her touching the accused’s penis and oral sex. Then she described the ‘first time’ as just involving her being made to touch the accused’s penis, rather than the accused touching her, or anything else happening.
In cross-examination, defence counsel put to the complainant that portion of what she had said in the audio-visual interview about the ‘first time’ where she had indicated that on the occasion of the ‘first time’ she had told police that the accused had touched her vagina, and she agreed to that proposition. She agreed with the proposition that that is what she was saying occurred ‘the first time’.
It was put to the complainant as to the occasion of something happening in the swag in the big shed, that she had told police during the pre-trial meeting at the DPP office that the accused had not touched her on the vagina on that occasion. She denied she had told the officer that. An agreed fact was later put to the court that she had told him that.[5]
[5] Agreed Fact 14.
Returning to the audio-visual interview, the complainant was then asked whether there were any other occasions when the accused touched her in ways she didn’t like. She responded by asking the officer whether she could tell the officer about two other times. The officer replied that she would like to know every time it had occurred. The complainant initially said, ‘it might happen a lot’ which was a slightly curious reply. She went on to describe an occasion at the property just over the Victorian border. The complainant said that on that occasion she and the accused were at some stock yards on the property near to the house whereupon the accused sat down, took out his penis and asked her/made her suck it for a short period of time before someone called out from the house and they returned there for the evening meal. That is the second uncharged alleged act.
The complainant was then asked whether there were any other occasions and she responded that there was one other time she could remember it happening. The complainant gave evidence that it was at the accused’s property. She said they went for a drive in his ute, to an area where pine trees were growing on the property. The complainant said that he parked the ute, took out his penis and made her ‘suck his dick’ again. This time, pushing her head down. Then they went back to the house and fed the animals. This is the event alleged to comprise count 2 in the Information.
The complainant was asked more generally about the accused. She described his relationship to her family and how she had known him for a long time. The complainant said she had seen him and his family regularly, perhaps weekly or twice a week, over a long period of time and that on all other occasions he would just behave normally. They were fairly regularly alone together, occupied in activities such as horse riding or feeding the farm animals. The complainant said that contact between the families had ultimately ceased after her mother had a ‘big fight’ with the accused over something.
In the second tendered audio-visual interview conducted on 5 March 2020, the complainant was asked about how and when she came to disclose the allegations. The complainant said it first occurred when she was talking to her friend, B. Her friend told her that she had been abused by her father, so in that context, the complainant said she told B the same thing had happened to her. When asked for more detail, the complainant said that B had told her that when B’s mother was away B’s father would do the same thing, in other words, make B ‘go under the covers and do things’. The complainant said that it was for that reason she told B what had happened to her. The complainant said she didn’t want B to do anything with the information, rather she told B not to say anything about it because the complainant didn’t want to have to go to the police about it, or talk about it more generally. The complainant said she didn’t tell anyone earlier than she did as she didn’t want to have to go to court or speak about what happened. She said she just wanted to put it behind her.
In cross-examination, the complainant was asked whether the accused had, in his bed in his house, digitally penetrated her vagina when she was about 10 years of age. She replied that he had. That had not been previously alleged. When the question was repeated later in the cross-examination and it was again put to the complainant, she said that was wrong.
The complainant was cross-examined in some detail as to her disclosure of the offending to her friend, B and to another family friend, F. The complainant repeated her evidence in chief that she had described the events to them only in brief and general terms.
B was later called to give evidence. She gave evidence that the complainant had disclosed to her in brief and general terms that she had been touched by the accused. She gave evidence that the complainant had also told her that the accused had woken the complainant as she slept in the accused’s bed, started touching her, ‘made her touch his dick’ and ‘asked her to suck his dick’. When this was put to the complainant, the complainant said she had not said that to B.
B was cross-examined and agreed that in November 2019 she had described the complainant’s disclosure to her as the accused coming into the complainant’s bedroom and performing the actions in question. This was also not consistent with the complainant’s evidence at trial.
Witness F was also called to give evidence. She gave evidence-in-chief that the complainant had said to her that the accused had ‘fingered’ her but she could not recall any other aspect of what had been disclosed. In cross-examination, F agreed that she had told police that the complainant had said to F that the accused did it 23 times. She conceded it was possible she might be mistaken and the complainant may have said ‘two to three’ times.
In cross-examination, F also agreed she had told police that the complainant had told her that the offending had also occurred in a horse shed at a hunt and in a horse float. When these matters were put to the complainant in cross-examination, she denied that she had said those things to F.
The complainant’s mother was called to give evidence. She gave evidence as to the family background and her family’s contact over time with the accused and his family. She gave evidence that the complainant would regularly see the accused and his family and would often be alone with the accused, for example, going for drives in the accused’s ute. In short, her evidence was that there would have been every opportunity for the offending to occur, although she did not witness any of the offending.
The complainant’s father was also called to give evidence. The complainant’s father also described the relationship between the families and that the accused had regular ongoing contact with the complainant, and that such contact included contact at the times and places the complainant alleged that the offending and the uncharged acts had occurred. The complainant’s father also gave evidence that the accused and the complainant would often be alone together, for example, in the context of checking on or feeding animals and managing horses.
The accused gave evidence on oath in his defence. The accused described his family background and work history. Essentially, he and his mother ran the family property. The accused said that his conduct with the complainant had always been appropriate and that he had never at any stage offended against her or committed any sexual acts in relation to her. The accused described the times and places of their contact over the period of the alleged offending in some detail, indicating that there was never any inappropriate touching nor any other sexual contact between them.
The accused called his mother to give evidence. The accused’s mother also described, in some detail, the family history, the relationship with the complainant’s family and the complainant and many of the events which had occurred over the period of the alleged offending. The accused’s mother agreed the complainant was present for the 2016 and 2017 long weekend rides, but she said that the 2018 ride did not occur as the State Hunt event was being held on the June long weekend. She did agree that the complainant had attended and stayed at their property over the previous weekend, but that both the accused and the complainant had slept in different parts of the house and at no stage had the accused been in a swag in the shed. The accused’s mother said she saw no suggestion of or evidence that there was any inappropriate conduct between her son and the complainant.
Addresses
By agreement, each counsel filed detailed written closing submissions and supplemented those submissions with oral argument. The court has regard to everything submitted and put by each counsel without repeating all of it in these reasons.
The prosecution submitted that in all of the circumstances, the court should accept the complainant as a witness of truth and find that she was reliable witness. The prosecution submitted that her demeanour both in the videos of interview and in cross-examination was consistent with a young woman who was being truthful and as clear as she could be in recounting what happened to her at the hands of the accused. The prosecution emphasised that it should not be overlooked that the complainant was only 12 years old at the time of interview and 14 years of age at the time of trial.
The prosecution submitted that any inconsistencies between the complainant’s account in her interviews and the complaint evidence given by B and F were not so significant or compelling so as to cause the court to have a doubt as to the complainant’s credibility or the accused’s guilt on either of count 1 or count 2. The prosecution argued that particular language and phraseology used by the complainant in the course of her evidence was both frank and compelling and indicative of a child honestly struggling to find the right words to express real conduct of a sexual nature that had been performed with her. The prosecution submitted that the accused had every opportunity to commit the charged offences and the uncharged acts. The prosecution submitted that to the extent that the accused’s mother’s evidence was that the accused never had an opportunity to commit the offences against the complainant, that should be plainly rejected. In conclusion, the prosecution submitted that it had proven its case beyond reasonable doubt.
The defence submitted that the prosecution evidence was at best vague and inconsistent in a number of respects. The defence submitted that there were substantial inconsistencies in the complainant’s recounting of events that could and should not be reconciled and that those inconsistencies should cast significant doubt on the reliability of the complainant’s evidence. The defence submitted that there was no support for the complainant from the complaint witnesses as the accounts they gave of the complaint made to them were in many respects substantially inconsistent with the complainant’s evidence at trial. The defence submitted that the evidence suggesting that alleged offending occurred at the long weekend ride, whether it be 2016, 2017 or 2018 was too general, vague and unsatisfactory. The defence submitted that the accused’s evidence was credible and reliable, and that in many respects it was supported by the evidence of his mother.
Whilst it is entirely correct to say that the accused bears no onus and in particular, is under no obligation whatsoever to point to or establish a motive on the part of the complainant to lie, the defence submitted that the circumstances of the making of the complaint suggest a possible motive. Mr Jolley submitted that it might be that the complainant made these allegations up to be supportive of her friend, B, when B indicated that things of this nature had occurred in relation to her. Mr Jolley also submitted that it might conceivably have been an attention-seeking device. He pointed to aspects of the evidence that he submitted supported that possibility.
Ultimately, Mr Jolley submitted that there were cogent reasons to doubt the reliability of the complainant’s evidence, and that the court could not and should not dismiss the accused’s denials on oath such that at the end of the day, the case had not been proven beyond reasonable doubt.
Consideration
The court has carefully reviewed all of the evidence and has been assisted by both counsel’s comprehensive written and oral addresses. The court has had regard to all counsel’s arguments although I have not set them all out.
The complainant gave evidence by way of her audio-visual records of interview and was cross-examined thoroughly by defence counsel. Her evidence was given in a straight-forward way. Her demeanour did change markedly between the first audio-visual record of interview taken on 6 June 2019, the second audio-visual record of interview on 5 March 2020 and her cross-examination on oath in May 2021. Her demeanour in June 2019 was happy and friendly, conversational and interested. Her demeanour on 5 March 2020 was quiet and in many respects, reluctant. Her demeanour in court at trial was on edge. These changes in demeanour might be explicable in the course of such an investigation, with a growing awareness over time of the seriousness of the process. Whilst the evidence was straight-forward in many respects, it had a number of aspects which need careful consideration. As earlier set out, the complainant’s evidence as to count 1 was inconsistent within the initial 6 June 2019 audio-visual record of interview itself. She was also inconsistent as to where the event occurred, whether in Victoria or South Australia although she settled on it being at the accused’s property in South Australia.
Her evidence in court as to what occurred during the event alleged to comprise count 1 lacked consistency in several respects.
The complaint evidence must also be carefully considered. I find that the circumstances of the disclosure of the allegations to her friend B and later to F were consistent only in the sense of being consistent with the events having occurred. They were not substantially consistent with the content of the complainant’s evidence given at trial. True it is that the complaint witnesses were first asked to recall the disclosures many months after they had occurred and the inconsistency may be as a result of honest errors in their recollection. However, at the end of the day, their evidence as to the content of the complaint is sufficiently different to the complainant’s evidence in court that the complaint evidence does not offer any probative support of the allegations.
The accused gave evidence on oath in a straight-forward way. There were no significant inconsistencies in his evidence over a significant period in the witness box, nor were there any obvious matters which adversely impacted his credibility or reliability.
The court has carefully considered the defence submission that there may be a motive in this case for the complaint to have made the allegation, initially to be supportive to her friend B who had disclosed such events happening to her or to get attention.
In the final analysis, whilst the court is of the view that the complainant may well be telling the truth and the events may have occurred as she has deposed, it is not possible to arrive at that conclusion beyond reasonable doubt. In short, it is a case where on the evidence presented, it is not possible to say where the truth lies. Accordingly, there is a reasonable doubt and the accused must be acquitted.
Conclusion
Count 1 – the accused is acquitted.
Count 2 – the accused is acquitted.
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