R v S, MV
[2014] SADC 135
•6 August 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, MV
Criminal Trial by Judge Alone
[2014] SADC 135
Reasons for the Verdict of His Honour Judge Beazley
6 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone - accused charged with two counts of indecent assault against his daughter - offences allegedly occurred when the complainant was aged 14 years - complainant aged 58 years, and accused aged 93 years as at the date of trial - prosecution case based entirely upon acceptance of the truth and reliability of the evidence of the complainant - uncharged acts and other discreditable conduct alleged - relevance of prior inconsistent statements of the complainant - substantial forensic disadvantage to the accused by the delay - whether prosecution case proved beyond reasonable doubt.
Verdict: Accused not guilty of each of the two charged offences.
Criminal Law Consolidation Act (1935) s 56; Evidence Act (1929) s 34 CB, s34L(5), s 34P; Juries Act (1927) s 7, referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v M, BJ [2011] SASCFC 50; R v Liddy (2002) 81 SASR 22; R v Keyte (2000) 78 SASR 68; Thorne v The Queen [2007] NSWCCA 10; R v RTB [2002] NSWCCA 104; R v Dann [2000] NSWCCA 185; R v Livingstone [2011] SASCFC 28; R v T, WA (2014) 118 SASR 382; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; Palmer v The Queen (1998) 193 CLR 1; Abrahamson v The Queen (1994) 63 SASR 139; Hargraves v The Queen [2011] HCA 44; Murray v The Queen (2002) 211 CLR 193; R v El Rifai [2012] SASCFC 98; R v ATM [2000] NSWCCA 475; WFS v The Queen [2011] VSCA 347; R v BFB (2003) 87 SASR 278; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 273 LSJS 571; R v Lapins [2007] SASC 281; R v Maiolo (No 2) [2013] SASCFC 36; R v A, GP [2012] SASCFC 81; R v Brady [2014] SASCFC 7; R v Smith [2013] SASCFC 128; R v E, DJ (2012) 112 SASR 225; R v Kerin [2013] SASCFC 56; R v Gavare [2011] SASCFC 38; R v Lomman [2014] SASCFC 55; R v M, JJ [2013] SASCFC 51; R v D, WD [2013] SASCFC 32, considered.
R v S, MV
[2014] SADC 135Criminal Trial by Judge Alone
Introduction
M. V. S. (‘the accused’) is charged on Information, dated 29 October 2012, with two counts of Indecent Assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’).
It is alleged that the accused committed the subject offences against his daughter, ‘M’, (‘the complainant’).
He had initially been charged with three counts on that Information, with the particulars to the first count alleging that an indecent assault had occurred at Prospect on or about 14 February 1968 (my emphasis); the particulars to the second count alleging that an indecent assault had had occurred at Glenelg on or about 6 June 1970; while the particulars to the then third count had alleged that an indecent assault had occurred at Glenelg on 7 June 1970.
Upon a previous trial, no evidence was led by the Prosecution as to Count 3 on that Information. Accordingly the jury, at that trial, returned a directed verdict of not guilty to that count.[1]
[1] T. pp 2 and 9.
In his opening address at the subject trial, counsel for the prosecution asserted that the accused had committed the subject offences in Counts 1 and 2, at Glenelg, in 1970. The complainant was born on 5 August 1955, and was accordingly aged 14 years at the time of the alleged offences,[2] and aged 58 years as at the date of trial. The accused was born on 15 April 1921, and thus aged 93 years as at the date of trial.
[2] Ex P10.
I granted leave to the Prosecution to amend the particulars in count 1 on the Information, so as to delete the words ‘on or about the 14th day of February 1968 at Prospect’; and to substitute the words ‘between the 1st day of January 1970 and the 31st day of December 1971 at Glenelg’.
Upon arraignment, the accused pleaded not guilty to each of the two remaining counts on the Information. It is convenient to set out the particulars of each count as pleaded in the amended Information, and as developed in the Prosecution opening, as follows:
First Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
M.V.S., between the 1st day of January 1970 and the 31st day of December 1971 at Glenelg, indecently assaulted ‘M’. The Prosecution asserts that the accused touched ‘M’ and committed an act of cunnilingus upon her following her attendance upon a promotion by the ‘Valentine’s band’ at John Martins store, to mark the occasion of Valentine’s Day.[3]
Second Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
M.V.S., on or about the 6th day of June 1970 at Glenelg, indecently assaulted ‘M’. The Prosecution asserts that the accused took the complainant’s hand and placed it upon his penis in the main bedroom.[4]
[3] T. p 8.
[4] T. p 9.
Procedural Matters
·Trial by Judge Alone
On 6 February 2014, a Judge of the Court granted an application by the accused for an extension of time to elect to be tried by Judge without a jury pursuant to s 7(1)(a) of the Juries Act 1927 (SA). The accused’s substantive application was granted and the trial commenced before me on 22 April 2014.
Mr R Williams appeared as counsel for the Director of Public Prosecutions (‘the Prosecution’) and Mr G Algie SC appeared as counsel for the accused.
·Notice of Intention to Adduce Evidence of Discreditable Conduct
The Prosecution sought to adduce evidence of alleged ‘discreditable conduct’ by the accused, namely evidence of alleged incidents of sexual impropriety between the accused and complainant, whether or not the subject of a specific count on the Information.
In his opening address, counsel for the Prosecution explained that:
The uncharged acts could essentially be characterised as grooming behaviour. There are some specific uncharged acts in terms of there being some touching of the vagina when the complainant was as young as about five or six whilst she was being piggybacked by her father on a holiday whilst the family was living in Victoria. There are specific acts of a similar type of touching of the vagina, the accused explaining to the complainant that he was cleaning her, and then there is a course of conduct alleged in terms of indecent touching of the vagina and acts of cunnilingus that were frequent during her childhood until she was about the age of 15.
So if I can treat those as two separate categories, what the prosecution say is essentially precursor conduct, and the grooming behaviour. There are non-propensity uses, one might say, and the prosecution does not rely on any of the acts alleged for any propensity reasoning.
Counsel for the accused did not object to the Prosecution leading this evidence.
In R v C, CN,[5] White J expressed the opinion that, notwithstanding that no objection was taken by counsel, it was necessary for a trial Judge to consider and apply the provisions of s 34P of the Evidence Act 1929 (SA) in respect of each charge, and be positively satisfied, that the conditions for admissibility of each item of alleged discreditable conduct, had been met before being received by the court.
[5] [2013] SASCFC 44.
Subsequently, however, the Court of Criminal Appeal has in two recent decisions, declined to apply that dicta, stating that:[6]
If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under s 34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.[7]
[6] R v C G [2013] SASCFC 83 at [50]; R v C CA [2013] SASCFC 137 and R v Maiolo (No2) (2013) SASCFC 36.
[7] [2013] SASCFC 83.
In addition, as I have noted, I sit in this trial as Judge without a jury. In R v Abrahamson, the Court of Criminal Appeal noted that the:
Principle that a Judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force.[8]
[8] (1994) 63 SASR 139 at 143.
I accordingly determined that I would receive such evidence of such alleged acts of discreditable conduct, de bene esse.
On the Prosecution case it was relevant and probative for non propensity purposes, namely to place the charged offences in their proper context; to show an escalation of indecent touching; to demonstrate why the complainant reacted the way she did and to explain why the complainant may be vague and uncertain as to dates and events given the frequent and repetitious nature of the alleged uncharged acts. On the accused’s case, it is in the interest of justice for the court to hear, in greater detail, the alleged history of the complainant, notwithstanding the forensic disadvantage to the accused, as it provides a better opportunity for the court to assess the complainant’s alleged truthfulness and reliability in respect of the two charged offences.[9]
[9] (1994) 63 SASR 139.
In the event I am satisfied that the evidence of the alleged discreditable conduct which had occurred before the final count on the Information, has a high degree of probative value which substantially outweighs any prejudicial effect upon the accused.
Insofar as the alleged conduct may have occurred after the charged acts, it must necessarily have little weight in placing any of the charged offences in context.[10]
[10] R v ATM [2000] NSWCCA 475; WFS v R [2011] VSCA 347; R v Beserick (1998) 30 NSWLR 520 at 525; R v BFB (2003) 87 SASR 278.
I have received the evidence for the non propensity uses, only, as identified by counsel for the Prosecution.
I have kept those uses sufficiently separate and distinct such that there is no risk of the evidence being used impermissibly.
·Section 21 of the Evidence Act, 1929
The complainant is the daughter of the accused. Prior to her giving evidence, I explained her right to make an application for an order, pursuant to s 21 of the Evidence Act 1929 (SA), exempting her from giving evidence. I briefly questioned her in respect of that right notwithstanding that she had given evidence against the accused on that previous trial. I was satisfied that she was aware of her right to make such an application, and that she had declined to seek such an exemption.
·Necessity for Reasons
In a series of recent decisions the High Court of Australia has stressed that sufficient reasons must be given by Trial Judges, and, indeed, Intermediate Courts, which properly explain the verdict.[11] Those reasons must include the principles of law applied by the Judge and the facts as found by the Judge. A trial judge sitting alone, is not however obliged to ‘express all the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of law’.[12]
[11] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438.
[12] Markou v R [2012] NSWCCA 64 at [19]; R.v R, R, L.J [2008] SASC 35 and R v T, W A [2014] 118 SASR 382.
Legal Directions
I do not propose to detail all of the obvious directions of law.
I do however remind myself of some of the following fundamental directions which apply in every criminal trial:
·The accused comes before this court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt on each of the charged offences has been proved beyond reasonable doubt. In the context of this case the accused is innocent of a specified act of indecent assault unless the Prosecution has satisfied me of his guilt of it beyond reasonable doubt.
·In assessing the evidence of the witnesses I am entitled to accept the evidence of a witness in whole, in part, or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[13]
[13] Hargraves v R [2011] HCA 44 at [25].
·The Prosecution seeks to satisfy me beyond reasonable doubt entirely upon the evidence of the complainant, as to each of the alleged counts of indecent assault. While I am not obliged by statute to so direct myself,[14] I will approach the evidence of the complainant with caution and only rely upon it if I am satisfied beyond reasonable doubt that it is both credible and reliable, in respect of the count which I am then considering.
·The accused is charged with two separate charges on the one Information. Each must be considered separately on its merits. It does not follow that if I am satisfied beyond reasonable doubt of his guilt on one count that he must also be guilty of the other count. Counts do not stand or fall together.
·I do however direct myself, that as the prosecution case depends entirely upon the complainant, where inroads have been made as to her credibility and reliability, any reservations, I may have as to her credibility or reliability, in my assessment of one count of indecent assault, may be carried over to my assessment of the allegations in respect of the other count.[15]
·The accused does not have to prove anything. The accused was not obliged to give evidence. At trial, the accused elected not to give evidence on oath but to leave it to the Prosecution to prove its case beyond reasonable doubt if it were able to do so. I have drawn no inference adverse to the accused in consequence of him exercising his right to silence.
·The court must take into account the evidence of the accused’s good character, in this case, as a factor affecting the likelihood of the accused having committed either alleged offence or any of the alleged discreditable conduct.[16]
·Only proof beyond reasonable doubt by the Prosecution, can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charge I am then considering, I must give the accused the benefit of that doubt and find him not guilty of that charge.
·There was a significant delay by the complainant between the alleged offences and when she first brought the allegations to the police in March 2008. I direct myself that there may be many reasons why a complainant may delay making allegations of sexual misconduct.
·If I were satisfied that the accused was significantly forensically disadvantaged by the delay of some 44 years between the first date specified in the particulars in the Information, and the trial, then this disadvantage must be taken into account by me, pursuant to s 34CB of the Evidence Act 1929 (SA).
·When considering any proved out of court prior inconsistent statements by any witness, such an inconsistent statement is only relevant to the assessment of the credibility and reliability of that witness. Some prior inconsistent statements might concern a trivial aspect of the evidence or may be put down to a memory loss. On the other end of the scale, some omissions or inconsistencies are so fundamental that they may entirely undermine that witness’s evidence.
·The complainant’s evidence was not corroborated in respect of either count. Mere presence or opportunity is not, of itself enough for corroboration. It is, of course unsurprising that many alleged acts of sexual misconduct are not corroborated. It is the nature of such an offence.[17] Although a court is no longer obliged to give a warning as to the absence of corroboration,[18] I warn myself in the circumstances of this case that the complainant’s evidence must be approached with caution and scrutinised with great care.
[14] Evidence Act, (1929), s 34L(5).
[15] R v Liddy (2002) 81 SASR 22 at [181 – 193].
[16] R v Trimbole (1979) 21 SASR 577.
[17] R v EDJ [2012] SASCFC 137, [117]-[120].
[18] Evidence Act, (1929), s 34L(5).
Elements of the charged offences of Indecent Assault
A person commits the offence of Indecent Assault if he intentionally and unlawfully applies force against another, and it occurs in circumstances of indecency. The Prosecution must prove beyond reasonable doubt in respect of each count separately, each and every element of the offence as follows:
1. The accused applied force to the complainant.
A mere touch would constitute sufficient force.
The allegations are, in respect of:
·Count 1, that the accused performed an act of cunnilingus upon the complainant;
·Count 2, that the accused placed the complainant’s hand on his penis.
2. The application of such force was deliberate.
3.The accused’s conduct in each count, as described, occurred in circumstances of indecency.
If the Prosecution proves elements one and two beyond reasonable doubt, the conduct clearly occurred in circumstances of indecency.
4. The accused’s conduct, in each count, as described, was unlawful.
As no person aged under 17 years is capable of consenting to an indecent assault, there is no doubt that if the prosecution proves elements one, two and three beyond reasonable doubt, the accused’s acts were unlawful at the time of the offending.
Overview
The complainant was the only witness called to give oral evidence at the trial. She was giving evidence about events which she alleged had occurred at least 44 years ago.
The Prosecution also tendered, by consent, the declaration of Detective Brevet Sergeant Pamela Rogers in which she deposed as to her investigations as to the possible presence of the band ‘The Valentines’ in South Australia on or about ‘Valentine’s Day’ in 1969, 1970 and 1971. She explained that her investigations involved her examination of copies of The Advertiser and Sunday Mail newspapers on or about 14 February 1969, 1970 and 1971.[19]
[19] Exhibit P7.
The only reference to ‘The ‘Valentines’ band was contained in The Advertiser edition of Friday 13 February 1970. She deposed to ‘finding a article on page 8 in an area titled ‘Pop Scene with Greg Kelton’ which read:
‘Tomorrow is Valentine’s Day, so naturally enough the 20 Plus Club is having THE VALENTINE’S as a special guest group for the evening ....’.
In addition a list of agreed facts was tendered.[20] Those agreed facts were as follows:
·The complainant was born on 5 August 1955.
·The antecedent report of M V S dated 6 January 2011 accurately records his date of birth as 15 April 1921, and the fact that he has no criminal antecedents.
·Adelaide Girls High School records verify that the complainant attended Adelaide Girls High School between 11 February 1969 and December 1971 undertaking first year in 1969, satisfactorily completing the year; second year in 1970 obtaining unsatisfactory results; second year repeated in 1971, again obtaining unsatisfactory results.
[20] Exhibit P10.
The accused exercised his right to remain silent and not give evidence at the trial. I have drawn no inference adverse to him in consequence of his election to exercise that right. The accused’s case was a denial of the complainant’s allegations. He further asserted that he was significantly forensically disadvantaged by the long delay of at least 44 years between the dates of the alleged offences and the date of trial. He points to the fact that while the complainant was aged approximately 14 years in 1970, she was aged 58 years as at the date of trial. The forensic disadvantages included the loss of documents by the complainant, and the loss of an opportunity to investigate the complaints at an earlier time. He also refers to his age of 93 years as at the date of trial.
The general background
The complainant was born on 5 August 1955.[21] She was the fourth of five children of the accused and his wife. The family had resided in various places including at Ballarat when the complainant was aged five or six years, before moving to South Australia in or about 1964, when the complainant was aged six or seven years.
[21] Exhibit P9.
They lived initially in a residence at Glenelg before moving to Prospect when she was aged about 11 years. The Prospect residence was a boarding house which accommodated 30 or 40 male boarders. Some three years later the family moved back to the same house at Glenelg. The complainant was educated to second year High School in Adelaide between 1969 and 1971. At the end of 1971, she obtained an apprenticeship as a hairdresser. The complainant asserted that the sexual contact between herself and the accused ceased in June 1970.
The complainant subsequently had three children of her own. One ‘D’ has an intellectual disability. Some photographs were tendered by the accused of attendances by the complainant at family functions, many years after the alleged[22] offences. The photographs appear to record the complainant being in a happy mood in the presence of the accused. Another photograph was tendered by the accused of his, and his wife’s attendance upon ‘D’.[23] A letter written by the complainant to the accused describing him as ‘the greatest dad in the world’ was also tendered by the accused.[24] The first time that the complainant had spoken to the police about the alleged offences was on 19 March 2008.
[22] Exhibits D1, D2, D3 and D4
[23] Exhibit D5
[24] Exhibit D6
The complainant’s evidence on each count
I turn to the complainant’s evidence with respect to each of the counts on the Information. As it transpired, the complainant’s evidence on each count was not led, in chief, in the order in which they were pleaded. This does not imply any criticism of counsel for the DPP. It was simply the manner in which the complainant gave evidence. I will however detail the complainant’s evidence firstly as to Count 1. Each count will be considered separately on its merits.
·Count 1
The complainant deposed that the alleged offence in Count 1 occurred at the Glenelg home and involved the accused committing cunnilingus upon her. When asked, in chief, about the background to that occasion, she deposed:[25]
[25] T. pp 30 - 32.
AValentine’s Day 1970 or 1971. It was Valentine’s Day and I snuck out of high school at lunch time. I went to the shoe department at John Martins and The Valentines were playing there in the shoe department, Valentine’s Day and Bon Scott was there because he was friends with them. I had my school diary and I got all their signatures in the back and on my arms and went back to school and got home and he came into my room that night and I felt so dirty. I scrubbed myself and just was – everyone went to the school the next day that had the signatures and my arms were red raw. I remember that outstandingly because it was like – at that age it was the most exciting thing that happened. I had seen a rock star and it was ruined.
QWhat happened when you got home that night specifically?
AWell, he was not happy. He was not happy because I had signatures. It was like he was a jealous person, yeh. I don’t really know how to explain it. I just felt really dirty, real dirty and I think as I got older I was more aware of how wrong it felt, what was happening.
…
QYou said that your father wasn’t happy when you got home.
ANo.
QWhat took place from that point.
AI can’t remember now. That’s gone from my head.
…
QDid anything of a sexual nature take place on that day?
AYes.
QWhat took place?
AHe came into my room and he did the same thing that he would normally do. He would lift the covers from the bottom up, he would slide my bottom across and he would perform oral sex so it would have to have been 1970 because he stopped touching me in June 1970, so my timeline now just tells me it would have to have been 15 February that year when I was 15.
QDo you still have the diary that was signed?
AI would like to say I have and I have searched my house for probably 10 years now and found every school item. I found school yearbooks and things like that but I haven’t found the diary because I think every time anyone used to come to my house when I was playing netball I would show people Bon Scott’s signature ‘look what I have’.
…
QDealing with the specifics of this occasion, on that night you said that he performed oral sex. Are you able to describe in detail what took place?
AHe used the same technique every time. It was bottom on the side of the bed, wetting his fingers and he would be rubbing me, wetting. On one occasion, I believe it was the other time with the penis, I think that was the time when he actually put his wet hand that had been rubbing me in my mouth. Other than that, he’d use the same technique every time. He would rub his hands on my body. He would wet his fingers, rub me, be licking and rubbing with his fingers while he was licking me.
QThe touching and the oral sex you’ve told us about generally, would that take place at a certain time of day or would it vary.
AIt was usually at night because my mother wouldn’t get home until late. I assume that’s why and my older brother would always be out. He was always down at Glenelg car park. My mother didn’t get home until 10 or 11 at night. I know she wasn’t there.
The complainant was cross-examined about whether she had made up the Valentines’ event to create some support for the allegation against the accused. She was asked:[26]
[26] T. pp 45 - 48.
QWhen you spoke to Officer Godwin back again in March of 2008, for some hours, as you’ve told us, you didn’t mention anything about this Valentines’ event, did you.
AProbably not. I was talking about hundreds of events, so I would have to have gone home and thought more.
QIs there a reason that the Valentines’ event, scrubbing the arms and your father doing these things after you got home from seeing The Valentines’, wasn’t something you mentioned in March 2008?
ANot particularly.
QIs the Valentines’ event something that you thought about or remembered after you spoke to Officer Godwin in March 2008?
AIt was just something – it happened hundreds of times. It was just something that I sort of remembered after, as in the time when I scrubbed my arms because I felt exceptionally dirty. That was the only thing outstanding about it. There was nothing outstanding about what he did to me because it was the same as other times. I just felt extra dirty this time.
…
QWhen you went and spoke to police the second time, this is to Officer Rogers, on 3 August 2008, you told her, I think, about the Valentines’ event; is that right.
AYes. I wasn’t sure which year it was.
QHow did that recollection or that memory come back to you?
AWhat year it was.
QNo, the Valentines’ event.
ABecause it was Valentine’s Day, so it had to be 14 February.
QYes, I accept that but between speaking to Officer Godwin and making no mention of anything to do with Valentine’s Day or The Valentines’ group, five months later, you go and speak to Officer Rogers and you tell her about this allegation relating to Valentine’s Day. Did something happen.
AYes.
QWhat was that?
ASomeone started listening to me, so I had an opportunity to think more because it mattered that someone was talking to me about it, something that I had had to keep bottled up because no one cared.
…
QWhen you spoke to Officer Rogers, I think you agree that you told her about an incident that occurred, you say, on Valentine’s Day after you’d seen The Valentines. Do you remember that?
AYes.
QYou told her that that incident that you allege against your father, after seeing The Valentines, occurred at Prospect, didn’t you.
AI’m not sure. That would be because I had my timeline out because as I said earlier, it took me until two weeks ago to work out that when I was born, I wasn’t one. I kept doing my timeline as in 1, 2, instead of 0, 1 so it put out where I lived. I was out by a year all around.
QIf you just go to page 5 of the document, the last paragraph, you see that you say ‘in my original statement, I mentioned an incident which occurred at the Prospect Road, Prospect address where my father was performing oral sex on me and my sister arrived home and drove down the driveway next to the house’. You see that.
AYes.
…
QThen you go on to say ‘I believe the date of this incident to be Valentine’s Day 1968’.
AYes, and it wouldn’t be possible because my timeline was out.
Q‘The day was Wednesday, 14 February 1968 when I was 12 years old’. You see that in your statement.
AYes I can see that.
Q‘I now remember this date from going through an old school diary of mine’; is that right.
AYes.
The complainant conceded that she had examined a school year book during the five month period between giving her first statement to the police, and when she gave this second statement in August 2008. She was asked why she had changed the date of the alleged offence from 14 February 1968 to that date in 1970. She deposed:[27]
ABecause I was at high school. If it had been 1969 for instance when I started high school, school starts first week in February, I had no friends, I went to a new school, I know it wasn’t that year, I was very quiet and didn’t speak to people. It had to have been the year later. That’s when I contacted Pam and said to her, I said to her last week that it was 1970, definitely. I didn’t know they were playing somewhere else in Adelaide the same night, no idea until you just told me then.
QAlright. Could I put this to you 14 February 1970, Valentine’s Day, was in fact a Saturday.
ANo, I don’t believe – I know I was at school and I wagged school and went in there. My only explanation for that would be if they played the day before Valentine’s Day or something like that but it was definitely The Valentines in the shoe department for Valentine’s Day and I wagged school and went in there.
·Count 2
[27] T. p 52.
The complainant deposed that on an occasion in June 1970 she and the accused were sleeping in the main bedroom due to renovations taking place at the Glenelg house. She asserts that the accused took her hand and placed it on his penis. She said this occurred on 7 June 1970 when her mother was in America at her sister’s wedding. She was asked, in chief:[28]
[28] T. p 27.
QWhat house was this?
AAt Glenelg.
QSo where would you sleep each night while the renovations at Glenelg were taking place.
AIn the corner of their room in a bed.
QWould your mother sleep in that room or not.
AYes.
QWould anybody else sleep in that room?
AMy father.
QOn the occasion that you spoke about a moment ago where your mother was overseas where were you sleeping?
AI don’t know. I just remember being in his bed. That’s actually all I remember because that was when I realised he knew I was not asleep.
QWhat was it that took place to make you realise that.
AHe spoke to me and he put my hand on his penis.
QDescribe in your own words in as much detail as you can the sequence. What took place on that occasion?
AI can’t remember there being covers on the bed to be pulled off me so I was on the bed. He moved my bottom to the side of the bed as he would normally and was rubbing it, wetting it with his mouth, wetting his fingers with his mouth so they were wet and rubbing me. Then her performed oral sex. He said something to me after and I was horrified because I knew – because for some reason I thought he thought I was asleep. He picked up my hand to put it on his penis. He did it like that (indicates) and I pretended I was still dead like a dead body and I don’t remember anything else happening and that was the last time, to my knowledge, that he ever touched me.
QWere you there indicating with your hand.
AIf that was his penis (indicates) he put it on and I just still pretended I was like a dead body, limp because –
QI’ll describe for the purposes of the transcript what you’ve just performed there. Were you putting your right hand on the edge –
AI was on the right side of the bed. He would have moved me. He would have been there naked but I don’t know if he had a shirt on because I always had my eyes shut and he put my hand on his penis and I still acted like I was asleep.
QAre you there indicating with your arm dropping down.
AThat’s his penis (indicates). Yes, I was still a dead body.
QHow is it your hand came to be on his penis.
AHe put it on his penis. He picked my hand up and put it on there.
QWas that before or after he said something to you.
AAfter.
QWhat happened after that?
AI don’t actually remember much more. I just remember the next day stabbing him with a StaySharp knife. I was scared to death of him.
QThe time you just told us about, was that the only time you had ever touched his penis.
AYes. I was never aware of him ever being naked or doing – touching himself or anything ever when he came into my room.
QOn the other occasions where he would come into your room, how long would you be in your room for?
AI have no idea. Sometimes it would depend on, when we were in Prospect, we had a big park and a driveway and he would hear my sister’s car coming so he would leave the room. She would have enough time to park and it was a really big place and he would leave the room. I was aware of that because I would her the car. She had an old Morris Minor or something like that and yeah.
…
QBefore I move on from the occasion that you told us about where your mother was away in the US, the oral sex on that occasion, can you describe in detail what he did.
AWell, the start was he would wet his fingers and rub me and rub me without really – I’m not aware of him inserting the fingers into me but he would rub it until I was red raw, I would guess and he would always just be very gentle. I don’t really know how to explain – I guess he thought he was being nice to me.
QCan you describe how his penis felt when you had your hand on it?
AStiff.
The complainant was cross-examined about inconsistencies in statements that she had made to the police on 19 March 2008 and subsequently on 3 August 2008. She conceded that she had told the police on 19 March 2008 that the subject offence in Count 2 had occurred at Glenelg when she was aged seven or eight years, and before she had moved to the Prospect house.
She said, that when she made her first statement to the police in respect of this count 2 she had not made any mention that it had occurred while her mother was away in America or that her sister was getting married. She was asked: [29]
[29] T. pp 41 - 43 and 56 - 57.
QWhy is that, do you have an explanation for that.
AYes, I think because we shifted that often and went from Glenelg to Prospect to Glenelg and my mother wasn’t there and it took me a lot of thinking a timeline. St Albans, Caulfield, Ballarat now I’m five, Hampton was slipped in there too, I think I missed that out. Glenelg, Prospect, Glenelg and I was still finishing school. She was – my mother was not there, my mother went to America. I was sharing a room. That’s what happened. I got confused too about my sister being there because she left and went to America when we lived at Prospect and it happened when my sister lived overseas because I know when I was sitting here earlier I said my sister was there the second time we went to Glenelg, well she wasn’t, she never shifted the second time, she was already gone. … I was confused, definitely. I knew it was at the house at Glenelg and I just – to be honest, I guess I was so frightened of the fact that he was still touching me at 15 because I can’t believe that I didn’t scream to the world what was happening to me. At that time, I probably thought that I was younger because it’s frightening to think that I was 15. That is the worst thing to me, that I was a young woman when he was still coming into my room. It would have been easier to remember if I had shifted to a different house at Glenelg altogether, not the same house again.
…
QThen you say the next day – is ‘stabbing’ the correct word, is that how you would describe it.
AI lunged at him with the StaySharp knife. I was cutting meat and he came up behind me and got too close. And I can’t say I lunged at him but I certainly cut him and turned around defending myself, frightened.
QDid that really happen?
AYes.
QIt is not something you are just making up.
ANo. There was no floorboards in the room next door, you had to walk on the rafters to get into the kitchen. He chased me down the hallway and I had to run on the wood.
QBecause you told the police, in particular you told Officer Rogers in your statement of August 2008 that after your father’s hand got cut on this occasion he then also abused you that night in the usual manner with ‘my father masturbating me and performing oral sex on me’.
AIf that’s the case that was the end of it, it finished when my mother was in America.
She was asked about evidence that she had given in a previous trial.[30]
[30] T. pp 57 - 58.
QYou’ve told this court and the earlier court that the last time your father did anything to you was the occasion when, the one and only occasion when he spoke to you and you say he put your hand on his penis.
AAnd that was the night before I stabbed him.
QSo when you say that the night after you stabbed him he abused you in the usual manner with him masturbating you and performing oral sex.
AI would have been incorrect.
QThat would be incorrect.
AIt would be.
QOr would that be a lie.
AIt would be a lie if I said it was correct now.
QSo why did you say that he did that when it wasn’t true, is there an explanation for that.
AI would say that just at that moment the stress, trying to recollect hundreds of times. I know that the last time that he touched me was when he put my hand on his penis, my mother wasn’t there and I cut him with a knife the next day.
·Discreditable conduct
The complainant described a series of alleged events which had started when she was aged five or six years and the family had been on a holiday to a beach suburb in Victoria. She explained that the family had only been on the one holiday in Victoria. She described having no shoes on. She said that the accused would piggy back her. He would place his fingers into her vagina.[31] She deposed that the accused had started touching her on the vagina at the Glenelg house when she was aged about 7 to 8 years, and this touching increased to cunnilingus. This had continued until she turned 15 years of age. She was asked, in-chief:[32]
[31] T. p 22.
[32] T. p 23.
QSo what part of your body would he be supporting when he gave you a piggy back in the manner you described?
AHis fingers or hands would be inside my underpants on my vagina.
QWould he, at the same time, be supporting your buttocks?
AYes.
QWould he be moving his fingers or would they be still?
AI’m not sure of that. I just knew I needed my mother and she wasn’t there. That’s how I felt. I felt like I was trapped somewhere.
QOn how many occasions can you recall, whilst holding being piggybacked in the manner you have described?
AI remember not having shoes at any time and the sand was always hot. We were at the beach. I remember being piggybacked all the time.
QHow long was the holiday for?
AI have no idea. At least a week or two. At least a week.
QWhen you were piggybacked, can you remember what you were wearing?
AI always wore a dress, so dresses and pants and underwear, bathers.
QWas there any other occasions during the holiday when you were in Victoria, that you were touched in any other way by your father.
AYes, after a shower or after I would assume it’s a shower at the caravan park, I don’t remember being showered and I remember being dried and his hands run all over my body and being touched in my area here (indicates). It would make my skin jump, like nervously.
QYou’re pointing where.
AThe top of my legs here. Like touching me here (indicates).
QIs that around the hips?
AAround the hips and he would go lower down and touch my groin.
QWould he touch you on the vagina or not.
AI don’t remember at that stage. I just knew I felt really uncomfortable and something felt very wrong but I’m not 100% positive that – I knew something was wrong but I can’t say – I knew I felt creeped out here but I can’t be sure of that and I just know I got so sunburnt, big blisters, that it all stopped, so I had blisters on blisters, so I was safe.
QYou say you were safe. Did you continue to have showers or not.
AI don’t remember.
QAbout what age were you when this holiday took place?
AFive, five or six.
…
QWhen did he first touch you on the vagina?
AAt Glenelg, the first time, when I lived there.
QHow old were you.
AEight.
QCan you describe what he did?
AHe used to sneak into my room. He would always lift the covers from the side and the bottom up. He would rub his hands all over me. He would wet his fingers. He would slide them up and down on my vagina. He did the same technique for many years like that and at certain stages, he moved to oral sex too where he would move my bottom to the side of the bed and perform oral sex.
QWhen you say he would ‘perform oral sex’, what do you mean.
AWell, I know it was him because I looked down sometimes. I would pretend I was a dead body and my legs would be in an awkward position if he moved me and I looked down and it would be his head on my vagina and he would be licking it and he would be wetting his fingers while he was doing it.
QRubbing you where.
AOn my vagina and licking my vagina.
QHow old were you the first time you can recall him licking your vagina in the manner you have described.
AI think it was at Prospect when he started changing and doing more things.
QFrom the time that you were at Glenelg the first time and the touching started in the manner you’ve described with the covers being lifted up, how frequently would that take place?
AThere were times when it would be twice a week, three times a week but then there would be times, depending upon who was at the house, I guess and things like that. It might be a week without or two weeks or something like that but I guess it would depend on opportunity.
QWhen the oral sex started, how often would that occur?
AOften.
QAre you able to indicate?
AI will say three or four times a week and he would always do the same thing lift the covers from the bottom up. I felt like it wasn’t part of my body for that reason. I felt apart of it, not a part of it.
The complainant deposed that she had an orgasm when she was aged about 13 or 14 years at the Prospect residence.[33] When asked how many times she had been brought to orgasm, she said:[34]
I couldn’t say. It wasn’t like heaps, like. It might have been 10 or it might have been 20. I don’t really know because I didn’t really actually know what they were ....
[33] T. p 26.
[34] T. p 29.
She was asked whether anyone was ever present in the house when there was sexual contact by the accused. She said that at Prospect there was a boarding house full of people and when her mother had worked at night time her father worked at home quite often. She said that at Glenelg where her mother worked until 10 or 11 pm, the accused and two of her brothers would have been there. She repeated that the sexual contact with the accused ceased in June of 1970.
She was cross-examined about this:[35]
[35] T. pp 53 - 56.
QI want to ask you about a couple of other things: the coming into your bedroom that you allege your father did and touching or masturbating your vagina. Did you say that started when you were living at Sturt Street?
AYes. He touched me before that but my memories of him of being totally sexual, before then I didn’t know what was happening, the piggybacks, for instance. I just thought he had, I was just discomforted.
QSo we have the piggybacks and what we could generically describe as cleaning in Victoria.
AThat’s when my nightmare started, yes.
QThe first time he touched you, rubbed your vagina, was - I think you said this morning – at Glenelg when you are aged about eight.
AWhen we came from Victoria.
QTo Glenelg.
AI could have been seven, we shifted. Sometimes it was in the middle of the year we shifted. It wasn’t like from January to January so it’s a bit difficult. I might have been seven when we shifted at the beginning of the year.
QYou said this morning, according to my note, that the first time he started licking your vagina was at Prospect.
AYes.
QThe rubbing of the vagina happened about two times a week but sometimes less.
AIt would depend on who was around I guess.
QThe oral sex happened three to four times a week.
AAs time went on it happened more often and my mother worked at night also at Glenelg.
…
QIs it true that after making your first statement there were a number of details that you then recalled and that you wished to add to your first statement and a number of other incidents which you then recalled that you would also like to add.
AI’m sure I did, yes.
QBecause for instance, the allegations you make about your father sexually abusing you and piggy backing you.
AYes.
QThey didn’t appear in your first statement, did they, no mention of that.
ANo, they probably, might not have because I think I actually rang up because that was something that I thought of after because I didn’t think of that as a sex act at the time when I made my first statement.
…
QIf you said that, that you remember your father masturbating you and giving you oral sex throughout the night referring to living in Ballarat, Victoria, being five or six years of age; that wouldn’t be true.
ANo.
QCould you explain why you would have said that to Officer Godwin?
AI was sitting there at 7.30 in the morning. I was very distressed. I had never made a police statement before in my life. I was recollecting 15 horrific years of my life. I was trying to work out a timeline. I was trying to remember the things that are important.
She was cross-examined about the various photographs in which she was depicted with her family. She said that her family did not include her in most events. She said that Christmas time was the only time that she was invited to attend upon the family. She said that her perception was that the family would not give her children any presents.[36]
[36] Exhibits D1, D2, D3.
She was then cross-examined about a letter which she had written to her father.[37] In particular she was asked about the expressions in that letter as follows:
I think that I am one of the luckiest, no the luckiest person in the world. I’ve got you, mum and ‘D’, the three greatest people in the world … I probably don’t deserve all three of you but there is no way I would part with any of you, especially you dad … to the greatest dad in the world, I would like to say please forgive me and that I love you very, very much. Lots of love.
[37] Exhibit D6.
She conceded that she had written that letter. She said however that ‘it was by a person desperate to be accepted by their family, desperate absolutely desperate. She was begging for her family to let her be a part of it.’
She said that she had told ‘D’ that the accused and his wife, ‘D’s grandparents, had died.[38] The accused and his wife had later provided respite care for ‘D’ between 2002 and 2008. She was asked:
QSo I think once every three weeks your son ‘D’, would go and spend time with his grandparents.
AI don’t know how often. I was no part of it. No part whatsoever and I actually got my name taken off as his guardian at that time because I didn’t want to be responsible for making that decision which he wanted, he wanted to see his grandparents.
[38] T. p 64.
Submissions of counsel
I have taken into account the whole of the submissions made by both counsel. I do not propose to fully detail each submission but will set out a synopsis of the points made by them.
The Prosecution
Mr Williams, counsel for the prosecution, submitted that the court ought to conclude that the complainant was an honest witness doing her best to tell the truth. He submitted that the complainant did not fabricate her evidence. He made that submission,[39] in anticipation of a submission by counsel for the accused that the complainant had a motive to lie, namely the bitterness caused by the perception of rejection about which the complainant had referred in her evidence.
[39] T. p 74.
He submitted that this very proper concession by her did not, in any way, undermine her honesty or reliability as a witness in respect of the charged offences. At its highest it was relevant to explain the dysfunctional nature of the family. He turned to Count 1 and the complainant’s evidence as to her attendance upon the ‘Valentine’s’ at John Martins.
He submitted, that it was telling that ‘The Valentines’ were in fact in Adelaide on the Friday before Valentine’s Day in 1970.
It was not to the point, he submitted, that Valentine’s Day in fact fell on a Saturday in 1970. On any view the promotion at John Martin’s Shoe Department was a small scale event. It was a promotional event, not a performance. It may be inferred that this may have occurred on the Friday or an earlier time that week leading up to Valentine’s Day in 1970.
He referred to the complainant’s demeanour when giving her evidence. She was quite animated and expressive. He submitted that she had candidly admitted inconsistencies when taken to them including omissions from statements previously made. He invited the court to find that the complainant had not embellished her evidence while giving evidence. He properly conceded that the court needed to take into account the obvious forensic disadvantage to the accused by the delay, which would include the loss of a diary. He referred to the rather unusual nature of Count 2, which is the placing of the hand upon the accused’s penis. It was this unusual event which she would remember, even though, on her evidence, a more serious offence involving cunnilingus had occurred. Mr Williams submitted that the court ought to accept her explanation as to dates in light of what had occurred in respect of her timeline.[40] He submitted that she was able to fix dates by an event such as the wedding of her sister so far as Count 2 was concerned. He submitted that the complainant is either lying about the events or is telling the truth. He invited the court to accept that she is both an honest and reliable witness; and to return verdicts of guilty in respect of both counts.
[40] T. p 84.
The Accused
Counsel for the accused, Mr Algie, correctly submitted that it is not a question of a court determining whether the complainant was either lying or telling the truth. There may be many reasons why a complainant may give an erroneous account of events, notwithstanding that she has convinced herself over many years that the account is correct.
As is plain from the recent decision of the High Court of Australia in Douglass v R,[41] the onus upon the Crown in establishing each charge separately beyond reasonable doubt is an exacting standard. The Prosecution must establish in this case that the complainant was both a truthful and reliable witness beyond reasonable doubt.
[41] (2012) HCA 34.
Mr Algie referred to the difficulties which had been faced by the complainant over her life. In particular she had grievances against her parents for the way in which she perceived that her children had been treated. He submitted that her bitterness may well have led her over some 40 years to believe the objectively false allegations that she was now making. He submitted that it was fortunate that the complainant’s letter and photographs were retained. They provided, he submitted, objective evidence of the falsity of the complainant’s account. Mr Algie took, as the starting point, the allegation by the complainant which was the basis of Count 3. She had told the police about an alleged event involving the accused masturbating her and performing oral sex upon her, the day following the alleged event in Count 2. She now conceded that that event did not occur.[42]
[42] T. p 89.
He was critical of the vagueness of the complainant’s evidence as to the alleged discreditable conduct. The complainant had acknowledged that, at the least, her younger brother would have been present in the house. It defied belief, he submitted, that such sexual conduct could have occurred at all, let alone in the manner deposed to by the complainant.
He then turned to an inconsistency in respect of Count 2 namely that when she spoke to the police on the first occasion she had told them that Count 2 had occurred when she was aged 7 or 8 years and before she had moved to Prospect. He submitted that contrary to the submissions of counsel for the prosecution, this could not be glossed over. While confusion as to an exact date might be explained by the long delay, the complainant could not have been confused that she was aged 7 or 8 years. At trial the complainant deposed to Count 2 having occurred when she was aged almost 15 years. It was, on her account, the final sexual event.
Mr Algie then turned to count 1 on the Information. He submitted that there was simply no evidence to support a suggestion that the Valentine’s had played at the John Martins store. Initially the complainant had not mentioned Valentine’s Day to the police but thereafter had been adamant that the event in Count 1 had occurred on Valentine’s Day. He submitted that the complainant had altered her account from being 1968 to 1970 or 1971. Mr Algie submitted that had there been some promotional visit to John Martins by the Valentine’s on a Friday, it could not explain the detailed evidence she gave about rubbing off the autographs and attending the school the next day.
He repeated the fact that when she gave her statement to the police in March 2008 she had made no mention at all of ‘The Valentines’. Later she had identified Valentine’s Day, and the specific year of 1968, when she was just 12 years of age. He repeated that while dates could be explained, the complainant could not have erred as to her age at the time. She was conveying to the court that she was just 12 years old to explain why she did not resist the accused. She had fixed Valentine’s Day on Wednesday, 14 February 1968, after her own investigations and in particular from an old school diary[43]. She had asserted that, over the years, the school books had been lost.
[43] T. p 93.
Mr Algie submitted that, at the least, this presented the accused with the most significant forensic difficulty, when added to the delay.
He turned to one other aspect of the complainant’s evidence of alleged discreditable conduct. He submitted that when she gave her first statement to the police in March 2008, there was no mention of piggy-backing or of the accused washing her as she now describes. He submitted that this was a classic case of a complainant ruminating over time and giving an abusive flavour to something that was entirely innocent. He repeated her allegations of masturbation and oral sex in respect of the initial Count 3, subsequently withdrawn by the complainant on the basis that she may well have been confused or tired or upset. He submitted it was a very serious allegation to level against the accused when it was ultimately conceded to be untrue.[44]
[44] T. p 94.
Mr Algie referred to various matters which may have provided a motive for the complainant to at least embellish her evidence. He described the bitterness as bordering on hatred towards her father. He referred to her own evidence that she had been excluded from family activities; and that her disabled son had wanted to spend time with her father and mother such that her first response was to tell him they were dead.
He submitted that the forensic disadvantage to the accused, in light of his age is overwhelming. The passage of time alone would materially impede any useful recollection of these events. The absence of diaries and any documentation which might have assisted his ability to determine whether in fact he was in Adelaide at the time of each of the alleged offences is also significant. The very difficulties referred to by the prosecution to explain inconsistencies by the complainant, establish glaring and insurmountable difficulties for the accused. He asked rhetorically, if a complainant could not identify dates and events accurately, how could an accused be expected to answer those allegations. He referred to dicta of the Court of Appeal New South Wales in DVG v The Queen.[45] He submitted that in the subject circumstances the court ought not excuse so obvious a number of defects in the evidence of the complainant simply on the basis of delay. He submitted that the inconsistencies by the complainant are so fundamental that the court could not be satisfied beyond reasonable doubt as to either count. He invited the court to return verdicts of not guilty.
[45] (2002) 133 A Crim R 227, paras [37]-[40].
Discussion
In assessing the strength of the Prosecution case I must have regard to the obvious and significant forensic disadvantages encountered by the accused because of the delayed complaint to the police made by the complainant.
Forensic disadvantage
In the subject case there is no doubt that the accused has suffered a significant forensic disadvantage in consequence of the long delay of 38 years between the dates of the alleged offences and the reporting to the police in March 2008. The accused has clearly lost the opportunity to make enquiries as to the alleged events in 1970, which could have been made if there were a prompt complaint. That inference is inevitable in consequence of the delay of 38 years. Indeed, as counsel for the Prosecution has conceded, the complainant’s own memory of events was adversely affected by the delay. She had difficulties in even identifying the year in which the alleged event occurred; let alone the background to those events. I do not need to repeat the significant inconsistent statements and omissions by the complainant as to dates. The complainant had embarked upon a course of reconstruction to fix the dates of the alleged offence. The accused’s difficulties are exacerbated by his age of 93 years.
I have taken into account this significant forensic disadvantage to the accused in considering whether or not the Prosecution has proved its case in respect of each count that I am considering; and have approached the complainant’s evidence with caution, and scrutinised it with great care.
Evidence of good character
I am obliged to take into account the evidence of good character of the accused, as detailed in the agreed set of facts. Good character is relevant, in the subject case, as a factor affecting the likelihood of the accused committing the offence I am then considering.[46]
[46] R v Trimboli (1979) 21 SASR 577 at 578.
General assessment of the evidence of the complainant
As is apparent the complainant gave evidence as to events which had allegedly occurred from about 1961, when she was aged about 6 years until June 1970 when she was aged 14 years.
I observed the manner in which the complainant gave her evidence, and in particular her reactions when cross-examined.
The demeanour of a witness when giving evidence may, in some cases, be an important factor, particularly when the evidence relates to a recent event. The complainant was indeed quite emotional when giving her evidence. Generally, however, a witness’s demeanour when giving evidence about events after a long delay would be of little significance, because of the many intervening personal events in a person’s life.
There was no dispute that she was angry with the accused as being in some way responsible for herself and her children being excluded from her wider family. There is no doubt that she was angry that her son ‘D’ had chosen to spend time with the accused and her mother.
The defence suggested that the complainant may have fabricated her allegations against the accused for these reasons.
A motive to lie is highly relevant to the credibility of the complainant and I will consider the motives suggested by Mr Algie.[47] The fact remains that the accused does not have to prove anything. I direct myself that it is the prosecution which bears the onus of establishing that the complainant gave a truthful and reliable account of the events in respect of Counts 1 and 2. The accused could not possibly know what was going on in the mind of the complainant. The complainant’s evidence gains no credibility from the absence of a proved motive to lie.[48] Mr Algie submitted that it was extraordinary that the complainant would write to her father and family in the terms of the letter in Exhibit D6, if there was any truth in her allegations.
[47] T. pp 95 - 96.
[48] R v Sluczanowski (2008) 256 LSJS 277 and R v Smith [2003] SASCFC 128 paras [10]-[15].
I do not accept that the complainant gave a consciously false account of the events the subject of the charges. There are undoubtedly many factors which have impacted upon her presentation as a witness. She faced the near impossible task of trying to recount alleged events which, on her account, had occurred some 44 years earlier.
I have no doubt that the complainant genuinely believes that the alleged offences and discreditable conduct did occur in the manner to which she has deposed. The fact remains that the Prosecution must satisfy me beyond reasonable doubt both as to the credibility and reliability of the complainant as a witness. It is plain that the complainant has had a very difficult life. She has had to care for her three children including intellectually disabled ‘D’. I have no doubt that she feels that she had been treated poorly by her family, and that she has reconstructed certain events in her life. I have no doubt that personal matters over the intervening years, have also coloured her evidence.
She gave evidence generally about alleged discreditable conduct. That evidence fell within two categories; the first included alleged recollections of ‘incidents’ at a beach holiday in Victoria; while the second involved alleged ongoing indecent assaults which had occurred so regularly at the Glenelg and Prospect houses that she was unable to particularise each such specific event.
It is of course unsurprising that a victim of alleged sexual offences could not accurately particularise each such offence even if they were in recent memory. That difficulty is exacerbated, in the subject case, by the long delay before the allegations were brought to the attention of police in March 2008.
I do not however suggest that the complainant’s failure to bring these allegations to the police at a time earlier than 2008 is, of itself, in any way adverse to her credit as a witness. There are many reasons why a complainant may delay making a complaint. In the subject case the accused was her father. It is understandable that the complainant would have been reluctant to inform upon the accused, her father, in light of her son’s relationship with the accused and her mother.
I repeat however that I have concerns as to the complainant’s reliability as a witness.
A prime example is her evidence of the family holiday at a beach in Victoria. She alleged touching by the accused when he was piggy-backing her and drying her. She conceded, when cross-examined that when she had first spoken to the police she did not mention this event. She had not mentioned it because she was not certain, at the time, that it may have been sexual misconduct.
In my opinion the complainant has unwittingly reconstructed her evidence as to that event, so that what were objectively, non-sexual circumstances became imbued with a sexual connotation.
There are undoubtedly a number of previous inconsistent statements made by the complainant to the police and some significant omissions by her.
I have no doubt that the complainant also embarked upon a course of reconstruction to fix the dates upon which each of the two counts on the Information had allegedly occurred.
She had fixed the date of the first count as being Valentine’s Day – the 14th of February. She had initially fixed the year as being 1968 at Prospect despite the fact that she knew that she would only have been aged 12 years.
She had initially fixed Count 2 as having occurred when she was aged 7 or 8 years. Subsequently she fixed the date by reference to her mother’s absence overseas in June 1970 at her sister’s wedding, when she was aged almost 15 years.
Of further concern is that the complainant had told the police that another indecent assault had occurred, and which was particularised in Count 3 on the Information. I repeat that this was the subject of the directed acquittal in the previous trial.
In the event there is no need for me to further discuss the evidence as to the alleged discreditable conduct. I have already expressed my concerns as to one aspect of that evidence namely the alleged beach side indecent assaults.
Analysis and verdict on each count
I remind myself that the whole of the evidence is admissible on each count, and is relevant to the assessment of the complainant’s credibility and reliability as a whole.[49]
[49] R v Lapins [2007] SASC 281 at [52] and R v Brady [2014] SASCFC 7.
I also remind myself that each count must be considered separately on its merits.
I turn to count 1 on the Information.
·Count 1
There is in my opinion, a major difficulty for the Prosecution, in light of the complainant’s evidence in respect of the background of this alleged offence. Generally, an inability of a complainant to specify a date for an offence would be understandable after such a long delay. The particulars to each count on the Information are not elements of the particular charge and a date does not have to be proved.
Parliament has recognised that this difficulty for alleged victims of sexual offences,[50] may even extend to identifying an event, as opposed to a date.
[50] The charge of Persistent Sexual Exploitation of a Child in s 50 of the Criminal Law ConsolidationAct, 1935.
However in the subject case, the date was a most significant matter for the complainant. It was at the very heart of her complaint against the accused.
On the complainant’s evidence this was a very significant event in the complainant’s life.
She had on her account, met a Rock Star and had been so upset after the alleged indecent assault by the accused, that she had removed autographs. It almost defies belief that she would have overlooked the reference to Valentine’s Day, when she first spoke to the police. It is also somewhat odd that she could initially have thought that she was aged only 12 years when this event allegedly occurred.
The complainant’s own difficulty in initially fixing the year as 1968 and the event as having occurred at the Prospect residence speaks for itself. The complainant had lost the school year book which was a source of the complainant’s statements to the police in March and August 2008.
The long delay has undoubtedly adversely affected the accused, as I have found. The forensic disadvantages suffered by the accused after so long a delay are overwhelming in this case.
Such documents as were recovered namely the photographs and letter, were of some significance in testing the consistency of the complainant’s evidence.
The letter written by the complainant to the accused was, on its face, entirely inconsistent with her evidence, as were the photographs of family events.
There is no doubt that the alleged indecent assault in count 1 could not have occurred on Valentine’s Day in 1970 as that day fell on a Saturday.
It could not have occurred on the Friday before Valentine’s Day as on the complainant’s evidence as she had attended at school the next day.
This does not mean, of course, that the event the subject of count 1 did not occur, on another day that week. As I have explained, while it is the complainant’s evidence in court which constitutes the evidence in this case, a previous inconsistent statement or omission is however relevant to the complainant’s credibility and reliability as a witness. The inconsistencies and omissions are too significant in this case to ignore. While I repeat that I have accepted that the complainant was genuinely attempting to give evidence from her memory of the alleged indecent assault in Count 1, her account is simply too unreliable and inconsistent to be accepted beyond reasonable doubt.
I refer, in particular to the inconsistency of her allegations in respect of Count 1; the terms of her letter to the accused; the overwhelming forensic disadvantage suffered by the accused following the delay of some 38 years to March 2008, and the allegations as to Count 3 which were subsequently conceded to be wrong.
I am not satisfied by the Prosecution beyond reasonable doubt as to the guilt of the accused on this Count 1.
Accordingly I will return a verdict of not guilty on this Count 1.
·Count 2
The Prosecution case on this count faces similar difficulties to those found in respect of Count 1.
There is no doubt that the complainant also gave inconsistent versions as to the alleged offence in Count 2. She had initially told the police that the ‘event’ had occurred when she was aged just 7 or 8 years. She had initially made no reference to her sister’s wedding as being the relevant date. At trial the date of her sister’s wedding in June 1970, at which time the complainant was aged almost 15 years was fundamental to her account of this alleged event. The complainant could not give an adequate explanation for her initial account to the police. Her evidence as to the alleged ‘stabbing’ event, and her ‘fear’ of the accused at that time, was a reconstruction of that event.
Of particular concern is that the complainant had asserted to the police that the event in Count 2 had occurred one day before the alleged event in Count 3.
I do not propose to further detail the reasons for my ultimate finding on this Count 2. The reservations which I have expressed as to the reliability of the complainant’s evidence on Count 1, carry over to my assessment of this Count 2. I do not need to repeat those reservations.
I cannot be satisfied beyond reasonable doubt on the Prosecution evidence of the guilt of the accused in respect of this Count 2. Accordingly I will return a verdict of not guilty to Count 2.
Conclusion
For these reasons I now return the following verdicts:
Count 1 Not Guilty.
Count 2 Not Guilty.