R v S, PJ - [2007] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, PJ
Criminal Trial by Judge Alone
[2007] SADC 72
Reasons for the Verdict of His Honour Judge Soulio
2 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of indecent assault, one count of unlawful sexual intercourse with a charge of indecent assault in the alternative and one count of gross indecency with a child under the age of 12.
Evidence Act 1929 s 9; Criminal Law Consolidation Act 1935 s 5, referred to.
R v Randall (1991) 55 SASR 447; Longman v R (1989) 168 CLR, considered.

R v S, PJ
[2007] SADC 72
Introduction

The accused is the natural father of C. C alleges that in the period from 1 January 1999 to 31 December 2004 Mr S performed an act constituting indecent assault (count 1); performed an act of unlawful sexual intercourse by performing cunnilingus (count 2); in the alternative that the actions of Mr S referred to in count 2 constituted indecent assault (count 3); and committed an act of gross indecency (count 4). At the time of the actions in counts 1, 2 and 3 Miss C was a person under the age of 12 years, and at the time of the action alleged in count 4 she was for the purpose of the offence, under the age of 16 years.
The accused and his wife are the parents of two girls. Miss C is the elder daughter. During the period of the alleged offending Mr S and his wife separated for reasons unrelated to the alleged offending. The offending is said to have occurred both before and after the separation. The Crown case, whilst alleging the three specific incidents, also alleged a series of uncharged acts.
Mr S elected for trial by judge alone pursuant to s7 of the Juries Act 1927.
The Charges
The Information, as amended at the close of the Crown case, charged the accused as follows:
First Count
Statement of Offence
Indecent Assault (s56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
PJS between the 1^st day of January, 1999 and the 31^st day of December, 2000 at Christies Beach in the said State, indecently assaulted C, a person under the age of 12 years.
Second Count
Statement of Offence
Unlawful Sexual Intercourse With a Person Under 12. (s49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
PJS between the 1^st day of January, 2000 and the 31^st day of December, 2004 at Christies Beach, had sexual intercourse with C, a person under the age of 12 years, by performing an act of cunnilingus upon her.
Third Count
Statement of Offence
Indecent Assault (s56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
PJS between the 1^st day of January, 2000 and the 31^st day of December, 2004 at Christies Beach in the said State, indecently assaulted C, a person under the age of 12 years.
Fourth Count
Statement of Offence
Gross Indecency (s58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
PJS between the 1^st day of January, 2000 and the 31^st day of December, 2004 at Christies Beach, committed an act of gross indecency in the presence of C, being a person under the age of 16 years.
Preliminary Matters
At the outset I raised with counsel the form of the Information and enquired as to whether there was any concern on the part of the accused as to the offences being particularised as having occurred within such a long period of years. I was informed that particulars had been subsequently provided which sufficiently identified the occasions such that there was no concern on the part of the accused as to the information.
At the time of trial Miss C was 13 years of age. An order had previously been made that she give evidence on closed circuit television. I further ordered that the court be closed whilst she gave her evidence.
Miss C was presumed to be capable of giving sworn evidence[1]. Prior to her giving evidence I enquired of both counsel as to whether an inquiry should be conducted as to her ability to give evidence, but having regard to the assessment made of her by counsel for the prosecution, and her present age, counsel for the accused agreed that there was no need for an inquiry and that there was no reason that she should not give evidence on oath.
[1] Evidence Act s9(1)
It is necessary to give consideration to the elements of the individual offences and to the onus of proof. In addition it is necessary to consider the use which may be made of evidence of uncharged conduct; the standard of proof required in relation to such uncharged conduct; the warning which is necessary given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the original “complaint” made by Miss C.
An indecent assault is an assault accompanied by or committed in circumstances of indecency. The first element which must be proven is that there was an assault, an intentional and unlawful application of force or violence to another person. Any touching or handling is sufficient. There need not be any great application of force, although the application of force must be intentional rather than accidental touching. The application of force must be without lawful justification or excuse. The second element of this count is that the assault must be accompanied by or occur in circumstances of indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent.
The accused is charged with unlawful sexual intercourse with a person under 12 years of age. The Crown must prove first that the accused had sexual intercourse with Miss C during the period charged. Sexual intercourse includes an act of cunnilingus[2]. Cunnilingus does not require proof of penetration[3]. It is not necessary for the prosecution to prove penetration. It is sufficient if the prosecution evidence was to satisfy me beyond reasonable doubt that the accused licked the vagina or vulva including the labia majora, with the tongue. The second element of the charge to be proved beyond reasonable doubt is that Miss O was under the age of 12 years at the time the sexual intercourse occurred. This element of the charge was not disputed, Miss C having been born in 1994. Consent on the part of Miss C is not a defence to the charge. The charge is proven if the two elements are established regardless of whether Miss C consented.
[2] Criminal Law Consolidation Act 1935 s5(c)
[3] Criminal Law Consolidation Act 1935 s5(1), R v Randall (1991) 55 SASR 447
Count 3 is an alternative charge of indecent assault, to the charge of unlawful sexual intercourse in count 2. If the prosecution fails to prove count 2 and relies on the alternative then the prosecution must prove beyond reasonable doubt that there was an assault and that the assault was accompanied by or occurred in circumstances of indecency.
The accused is charged with committing an act of gross indecency with a person under the age of 16 years. It is necessary for the prosecution to prove beyond reasonable doubt that the accused committed the act alleged as the first element. The second element which must be proved is that the act was done with or in the presence of Miss C. The question of consent is again irrelevant. The third element is that Miss C must have been under the age of 16 years. Again that is not in dispute. The fourth element is that the act must have been indecent. I bear in mind that indecency connotes some form of sexual conduct or activity which is to be regarded as indecent having regard to the age of Miss C and the nature and circumstances of the conduct or activity and to contemporary standards of morality and decency. The fifth element which must be established is that the indecency must be gross, that is, something more that minor or trivial indecency so that it can be characterised not only as indecent but as grossly indecent.
Directions
The accused is of course presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. The burden of proving each element of the charges lies wholly on the prosecution. The accused is not obliged to prove anything. The accused in putting forward a defence is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the defence. I must be satisfied before I could convict the accused of the counts on the Information that the prosecution has proved beyond reasonable doubt each element of the charges.
I must also take care, given that separate charges are tried together, to ensure that the guilt of the accused on each count can only be established on the basis of the evidence relating to that count, and such evidence or a finding of guilt based on evidence in relation to one count must not be used as evidence to assist in the proof of any other count.
I also remind myself that in considering the charges it is not simply a question of preferring one version of events over another but rather determining whether or not the Crown has proved the each of the elements of each of the offences to the requisite degree.
The first of the offences here occurred some eight years ago. The first time the matter was raised by the complainant was in 2005. As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint (s34I(6a) of the Evidence Act). However the lapse of time is such that there is a risk that the accused has suffered a forensic disadvantage. Because of the delay, there is the potential that the accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence, if he chose to do so, to counter the allegations as he would have been closer to the time they are said to have happened. In those circumstances and as the case against the accused is principally C’s unsupported evidence, I must scrutinize her evidence with great care and be aware that unless I am completely satisfied of its truth and its reliability, it would be dangerous to convict the accused (Longman v The Queen[4]). For the same reason I must also exercise a similar caution when considering the evidence of uncharged acts, and be aware that it would be dangerous to find those acts proved unless after the same close scrutiny of her evidence, I am satisfied of its truth and accuracy (R v RWB)[5].
[4] (1989) 168 CLR 79
[5] [2003] SASC 420 per Besanko J at par 60
Witnesses
The Crown case comprised the evidence of C and her mother. In addition statements of two police officers together with annexures, being evidence relating to the police attendance at the accused’s residence, were tendered, as were two pieces of correspondence to which I refer below. The accused gave evidence in his own defence and was the only defence witness. He denied that the offending took place.
The Prosecution Case
Charged Acts
The complainant Miss C gave sworn evidence. The complainant was unable to specifically recall how old she was at the time she commenced the reception year at her original primary school and could not nominate the year when she left that school.
However, in establishing the time frame she gave evidence that she was nine years of age when she left that school, that she completed year 5 at another primary school, and was home schooled for a period after year 5 when she was 10 years of age.
She was nine years of age and attending the second primary school when her parents separated, her mother and sister moving to live elsewhere, and her father, the accused, remaining at the matrimonial house.
She said that during the time the family was residing together “lots of unusual things” happened.
She identified an occasion when she was in reception year at her original school and about five years of age, and her mother and younger sister had gone shopping. She said that it was on a weekend day although she couldn’t recall whether it was Saturday or Sunday.
The complainant gave evidence that the accused said that he wanted to show her a game called “the nudie game”. She followed him into his bedroom. She said that her father removed his clothes and asked her to remove her clothes but that she did not feel comfortable doing so. She said that he then removed her clothes. A little later in her evidence she reversed the order of the disrobing and said that her father had taken his clothes off just after he removed her clothes. I do not make much of that inconsistency. She was laying on her back. The accused lay on her and she said “get off, you’re too heavy”. He then lay on the bed and told her to sit on top of him which she did. She said that he started bouncing her up and down on his stomach and the accused told her to say “fuck me daddy, fuck me hard”. She refused to comply “because it’s a swear word and I’m not allowed to swear”. She recalled her father making groaning noises whilst bouncing up and down. In my view the expression attributed to the accused is important, and clearly emphasises the nature of the incident.
The complainant gave evidence that when she was 10 or 11 years of age and after her parents had separated she was at the accused’s house. She removed a container of whipped cream from the refrigerator. The accused took the whipped cream from her and walked into his bedroom. She followed him. She could not explain why she followed him. The accused removed his clothes and then removed her clothes and sprayed whipped cream over her chest, stomach and vagina. He then proceeded to lick the whipped cream off her. She said “he licked it off of my vagina, on my stomach, on my chest, was where he licked it off. Q: Whereabouts on your vagina, A: On the outside”. She said that he then sprayed the whipped cream on his penis and told her to lick it off but she refused. When she refused he then sprayed it on her face whereupon she went to the bathroom to wash it off. That behaviour was the subject of counts 2 and in the alternative count 3. It was the only occasion on which she said the accused had used whipped cream in such a way.
She gave evidence about an event on a Christmas Eve. She identified that Christmas as the Christmas when she received a pet fish. Her mother, who gave evidence, later identified that as Christmas 2004. The complainant said that her younger sister was ill and was sleeping on a sofa next to a coffee table. She said that the accused was squatting or sitting on the table and was naked. She was sitting on another sofa and facing him. She said “...he was squatting there, then suddenly started shaking his penis, the white stuff came out and, when it touched the table, he said ‘touchdown’”. She described him as shaking his penis “backwards and forwards, really fast”.
Ultimately she told a school friend about the behaviour of the accused and that school friend informed the complainant’s mother.
Uncharged Acts
The complainant gave evidence that after the first occasion, which is the subject of Count 1, on a significant number of occasions when she and the accused were alone in the house the “nudie game” was repeated. She gave evidence that on one such occasion, the accused sat with her on the bed in his bedroom whilst both he and C were naked and pulled her forward and pushed her back and said to her “daddy’s going to pound you”. Those events are not the subject of any charge.
The complainant also gave evidence in relation to other behaviour of the accused, which is not the subject of any charge, which related to other occasions on which she had stayed at his house after the separation. She said that the accused would go outside the house and to paraphrase her evidence, would, whilst within her view, masturbate to the point of ejaculation. She said that that occurred on a significant number of occasions.
In cross-examination the complainant agreed that some of the things she had given evidence about were difficult to remember, and conceded obviously that some of the things that happened, happened a long time ago. However she was resolute in denying she was mistaken about her evidence as to the accused’s activities, or confused about those activities. She conceded for example that on occasion the accused had applied a cream, in the sense of a medical ointment, to her vagina but denied that she had confused such episodes with the behaviour which is the subject of count 2. She rejected the alternative explanations put to her by counsel for the accused, including convincingly maintaining her position when it was suggested to her that the events she described did not occur.
The Complainant’s Mother
The complainant’s mother said the complainant was five years of age when she started the reception year at school in 1999. She described the complainant as being very outgoing as a younger child when at kindergarten, but having lost confidence after she commenced at school. I am not able to attribute the change in behaviour as described by the complainant’s mother, to any conduct alleged to have taken place on the part of the accused, and do not use the evidence in that way.
The complainant’s mother separated from the accused in 2003, on her account because the accused tended to have mood swings, and the children seemed to be in the way.
She confirmed that prior to the separation she would leave the complainant with the accused, and take her younger child shopping and that occurred on several occasions generally on a weekend. After the separation, the complainant’s mother initiated visits by the complainant and her sister to the accused, including overnight visits.
She gave evidence that in late May or early June 2005 she heard from the complainant’s school friend, of information relayed by the complainant to that school friend. I refer to that evidence only to set in context written subsequent written communications between the complainant’s mother and the accused.
Having heard from the complainant’s school friend the complainant’s mother attended at the accused’s house. He was not home. She left a note dated 16 June (2005).
I set out the contents of the note in full:
I popped in to borrow the girl’s video tapes and photo albums. Also collected their bedspreads, as I believe they were made for them and I do not see that they will be staying with you in future.
I know what you have been doing to the girls. You are a sick man. You have abused your position as father and betrayed your children’s trust and my trust.
I don’t believe that you should have access to any part of your children’s lives. I am hoping that you are not doing anything of a perverted nature with any other children and am also hoping that you are not holding any kiddie porn on your computer.
I do not wish to see you or discuss the matter with you. Just be thankful that you are not here while I was writing this note. If you wish to contest this issue I will not hesitate in contacting the police.
It was common ground that the accused wrote a letter in response. That letter is dated 19 June 2005.
The letter says in part:
I have been writing this letter for the past three days, to deeply apologise to all of you for my recent inappropriate behaviour with the girls. I cannot excuse or condone what I have done, and I am very embarrassed and terribly ashamed, but I do humbly beg for your forgiveness, and offer my assurance that it will never happen again. I have already apologised to the girls some time back and told them I won’t ever do it again.
...
Your note spoke to me of other children and child pornography etc – I want to assure you that I have never entertained any thoughts of other children, nor do I have any kiddie porn on my computers. I am not sexually attracted to children, I simply did not deal with my intimate feelings and desperate need for physical contact for my own girls in an appropriate manner. I over compensated for my loneliness and depression, and took feelings for the girls too far, and crossed the line.
I have been very naive, and made some very stupid mistakes which I would undo in a second if I could, but have at least learned from them, and will not repeat them.
I do hope that you and the girls can be understanding, and I also hope that I have not hurt you all too deeply. I do love all of you so much. I hope that the time the girls spent with me in the past was fun for them, and that they will remember the good times always, and not grow up maladjusted by my actions. For this I again deeply apologise. I am so sorry girls.
So, I will now move out of your lives. I don’t know how we will deal with family events like Christmas etc, but I will respect your decision and stay away from everyone.
....
The Defence Case

The accused said in chief that after the birth of his second child he became distant from his wife “mainly because she spent so much time with the girls, so I think that’s the difficulty, the husband ends up having a much less role...”. He described his wife as over protective.
He denied having raised the issue of the “nudie game” and said that in fact the complainant had coined that term and it related to the girls requesting permission to take their clothes off and walk around the house unclad. He denied the complainant’s allegations. He suggested that perhaps she was confused in that she used to climb over him in bed when he was naked.
Similarly he denied the allegations relating to count 2. He recalled one incident involving a can of spray cream, which was left over from a morning tea he had catered at his place of work. He said that the complainant requested him to spray the whipped cream into her mouth and that that may have happened at around Christmas 2004 (when the complainant was 10 years of age). He said that the can was almost empty and it sprayed everywhere. He said that it went all over the complainant’s face, in her hair, on her clothes, on her arms, some of it on him, some of it on the counter, on the floor and even some on the wall. He said that some of the cream “ricocheted off the complainant”. He said that the complainant was licking the sprayed cream from where it landed on her and that he was scooping it up with his finger from her face and her arms and eating that. That was the only incident he said involving whipped cream.
He freely conceded that he would walk around naked in the house. He denied ever masturbating in front of the complainant. He said that he would often sit on the coffee table, particularly if he had been working outside and was hot and would come in and sit on the coffee table in front of a pedestal fan. He agreed that the complainant and her sister stayed with him immediately prior to Christmas 2004.
In cross-examination he agreed that on one or two occasions when the complainant asked if she could take her clothes off, as earlier described by him, he also took his clothes off. He said that perhaps that was because it was hot and he probably would have only been wearing shorts at that stage anyway. After taking his shorts off he would sit on the couch and watch TV. He denied that the complainant had ever sat on him when both were naked.
He also agreed that the complainant and her sister would join him in bed at night, they wearing pyjamas, and he being naked. He also agreed that he on occasion went out into the back yard of his house while naked.
He said that he may have said the words “fuck me” as an expression of frustration in the presence of the complainant but not the words she attributed to him at the time of the activities which are the basis of count 1. Of the expression “I am going to pound you” he said that he played a game with the complainant and her sister which involved him running around the back yard with an inflatable oversized baseball bat saying “and when I catch you I’m going to pound you into the ground”.
He agreed that he showered with the complainant when she was aged somewhere between seven and nine years. He said that he touched her vagina for the purposes of washing her vagina and that he was only in the shower with her because her hair had to be washed. He said that he also had to “clean her anus and her feet and her underarms”. He said that the complainant occasionally instigated the showering together.
The accused described himself as indulging the children after the separation. He engaged them in a wide variety of recreational activities and indulged their wish to consume “junk food”. He said that in 2004 he was becoming depressed and drinking heavily.
The accused sought to explain his letter of 19 June 2004 as an apology for drinking heavily and not looking after the children properly. However he conceded that at the time the letter was written he had in fact stopped drinking and had done so from early April or even March.
Findings
I accept the complainant as a witness of truth. I was impressed with her evidence. In addresses Mr Handshin, who appeared for the prosecution, described the complainant as giving a measured and unembellished account, both candid and carrying with it a degree of descriptive understatement. I agree. She made appropriate concessions in cross-examination and did not give the impression of engaging in speculation or reconstruction.
Whilst there were some minor inconsistencies in her evidence, her evidence as to the events which found the charges was clear and unequivocal. The events were of an unusual nature. The charged offences were clearly identified and identifiable within the course of conduct of the accused, count 1 being the first occasion, count 2 the occasion involving the use of whipped cream, and count 4 the last such occasion occurring on Christmas Eve 2004.
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witnesses’s veracity by his demeanour in the somewhat unnatural environment of the court room. However his explanations were unconvincing, as was his manner. In my view he lacked credibility. His evidence and the concessions in cross-examination in my view give weight to the complainant’s evidence rather than undermine that evidence. I do not accept his denials of the specific matters alleged against him which are the basis for the charges.
As I have said, disbelieving the accused of course does not establish the prosecution case. It is necessary for me to consider whether the elements of the offences have been proved on the evidence. I find the elements of each count proved, on the basis of the evidence of the complainant, after carefully considering that evidence.
I turn to consider the effect of the letter written by the accused. I bear in mind that neither the “complaint”, such as it was, to the complainant’s school friend, nor the note from the complainant’s mother, constitute evidence. At most the note is only a general allegation against the accused of some inappropriate sexual behaviour. His response in my view amounts to an admission as to inappropriate sexual behaviour. It is not a specific admission in relation to either the charged acts or the uncharged acts.
Whilst the note and the letter refer to girls plural, the accused’s attempt to explain each aspect of the letter in terms of an apology for his drinking and irresponsible parenting, entirely lacks credibility. His explanation as to the interpretation which should be placed upon the letter was entirely unconvincing and I reject it. I also reject the submission that the letter is capable of any other interpretation.
The admission contained in the letter, in the face of the denial by the accused in evidence, of any sexual behaviour, is in my view at least some corroboration of the complainant’s evidence.
In relation to the evidence relating to the uncharged acts I note that the evidence was introduced without objection. I bear in mind that it is the charged acts which must be proved beyond reasonable doubt, not the surrounding facts and it is therefore not necessary that the uncharged acts, which are evidence of surrounding facts, be proved beyond reasonable doubt. I do not have regard to the evidence in relation to the uncharged acts as being evidence of propensity on the part of the accused. However, I find that the accused did engage the complainant in the “nudie game” on a number of occasions subsequent to the first occasion. I make that finding beyond reasonable doubt. I find that on one such occasion the accused said to the complainant “I’m going to pound you” and that that carried a sexual connotation. Similarly I find that the complainant observed the accused masturbating in the back yard of his house on a number of occasions, although I am not able to find on the evidence that on such occasions the accused was aware that the complainant was able to see him.
In submissions counsel for the accused sought to rely on the fact that the complainant apparently agreed to continue to visit the accused after the separation without protest as suggesting that she was not telling the truth about the behaviour of the accused. As I have said, I am satisfied beyond reasonable doubt that there was an ongoing course of inappropriate sexual behaviour on the part of the accused towards the complainant or in the presence of the complainant. I do not use that evidence, or the finding, as support for the charged incidents, or as evidence of propensity.
In my view whilst that submission by defence counsel was properly made, no real weight can be attached to it. It is not at all surprising in the case of a course of conduct which has been ongoing since the complainant was some five years of age, and which involved her natural father, that she would continue to visit him despite the fact that he was engaging her in such activities. Indeed it may not be particularly surprising in the circumstances that she was apparently willingly “going along with” such activities albeit with some feeling of uneasiness.
Count 1
I find that there was an assault constituted by the contact between the accused and the complainant and that that assault was in circumstances of indecency, namely the nakedness of both together with the words used by the accused.
Count 2
I am satisfied beyond reasonable doubt that the events as described by the complainant occurred. However, the evidence of the complainant as to the licking off of the whipped cream, and in particular the description of licking it off the outside of the vagina, was not further explored. The possibility remains that the licking was in an area above or adjacent to the vagina and I cannot be satisfied beyond reasonable doubt that count 2 is made out. Accordingly I found the accused not guilty of count 2 on that basis only.
Count 3
Count 3 is made out, the assault being constituted by the licking, and the assault occurring in circumstances of indecency, namely the nakedness of the accused and the complainant, and the fact that the accused was licking the cream from the complainant in at least the vicinity of her vagina.
Count 4
I find beyond reasonable doubt that the events described by the complainant which constitute count 4 occurred, and that the accused by masturbating to the point of ejaculation in front of his young daughter engaged in an act of gross indecency.
Verdicts
Count 1: Guilty
Count 2: Not Guilty
Count 3: Guilty
Count 4: Guilty