R v S, SG
[2017] SADC 8
•2 February 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, SG
Criminal Trial by Judge Alone
[2017] SADC 8
Reasons for the Verdict of Her Honour Judge S David
2 February 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with one count of Indecent Assault. It is alleged that the accused, who is the paternal uncle of the complainant, KS, indecently touched her on the vagina on one occasion in 2002, when she was aged 6 or 7 years old - evidence of complaint - significant forensic disadvantage caused by delay - no material support for the complainant's evidence. The accused elected for trial by judge alone.
Held: Not Guilty.
Criminal Law Consolidation Act 1935 s 56; Evidence Act 1929 ss 9(2), 13BA, 34CB and 34M, referred to.
R v S, SG
[2017] SADC 8
The accused was arraigned before me on the following Information:
[SGS] is charged with the following offence:
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[SGS] between the 8th day of January 2000 and the 1st day of October 2002, indecently assaulted [KS], a person under the age of twelve years.
The plea
The accused pleaded not guilty to the charge. At his election I heard the trial without a jury. I now publish reasons for the verdict I am about to deliver.
Overview of the prosecution case
The complainant in this matter is KS, who was born on 8 January 1995. The prosecution case is that her paternal uncle, the accused, on one occasion between 8 January 2000 and 1 October 2002 indecently assaulted her. On that occasion KS stayed overnight at her paternal grandmother’s house at Kadina. KS and her brother and the accused slept in the same bedroom. KS and her older brother shared a bed while the accused slept in a separate bed. The complainant woke during the night and called out for her father. The accused is alleged to have told her to come into his bed, which KS did. The accused is alleged to have indecently assaulted KS by touching her on the vagina. KS fell asleep.
The following morning KS told her grandmother that the accused ‘touched me in the fanny’. KS’s father arrived at the house and took her home. KS and her mother moved a short time later to Tasmania.
The allegations were first reported to Tasmanian Police in 2002. The allegations were next agitated with the police on 15 November 2012 at Holden Hill Police Station. The accused was interviewed on 21 February 2014 and declined to answer questions.
The accused did not give evidence at the trial. The defence case put to the witnesses was that the complainant fabricated the allegations as a young child and re-agitated the allegations as an adult, at the urging of her father in the context of a dispute over KS’s paternal grandmother’s estate.
Pre-trial applications
The DPP sought to lead an interview conducted by a police officer with KS in Tasmania on 6 February 2002, pursuant to section 13BA of the Evidence Act 1929. There was no argument or dispute that the pre-conditions for admissibility set out in ss 13BA(2) and (3) were satisfied, except for the requirement that the court be satisfied of the witness’s capacity to give sworn or unsworn evidence at the time the recording was made. There was no suggestion that KS had the capacity to give sworn evidence at the time the recording was made, rather the prosecution submitted that I could be satisfied that KS had the capacity to give unsworn evidence.
Section 9(2) of the Evidence Act 1929 provides:
9—Unsworn evidence
(1) …
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that —
(a) the judge —
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii) tells the person that it is important to tell the truth; and
(b) the person indicates that he or she will tell the truth.
I viewed the interview of the child. At no point during the interview was KS told that it was important to tell the truth. Furthermore, when KS was asked whether she had told the truth or a lie, she responded ‘the truth, I think’.[1] On my reading of the whole of the interview, I was not satisfied of KS’s capacity to give unsworn evidence at the time of the recording of the interview. Accordingly, all of the pre-conditions for the admissibility of the interview prescribed by s 13BA were not met and I declined to admit the interview conducted with KS on 6 February 2002.
[1] Interview between Detective Sonia Wilson and KS, dated 6 February 2002, page 12, Q/A: 120
Standard directions
I have given myself a number of directions; some of them standard and some particular to this case. I deal now with the standard directions and later in these reasons with particular directions.
The accused is presumed innocent until and unless his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused of the charged count, I must be satisfied that the prosecution has proved beyond reasonable doubt the elements of the charge.
The accused elected not to give evidence as was his right. I have not drawn any inference adverse to him on account of his exercise of that right. Nor have I speculated on the many reasons why he may have chosen not to give evidence.
The accused declined to answer police questions. That too was his right. I have not drawn any inference adverse to him on account of his exercise of that right.
I have directed myself about the elements of the relevant offence.
To prove an offence of indecent assault, the prosecution must prove an assault accompanied by, or committed in circumstances of indecency.
Therefore, the prosecution must first prove that the accused assaulted KS.
An assault is the intentional and unlawful application of force to another person. The relevant touching must be deliberate. An accidental touching is not sufficient. The touching must be without lawful excuse. The alleged touching by the accused of KS’s vagina is sufficient to constitute an assault.
Secondly, the prosecution must prove that the assault was accompanied by or committed in circumstances of indecency. Whether or not an alleged touching is indecent is for me to determine by reference to pervading community standards of what is considered indecent. Whether or not KS consented to the alleged touching is irrelevant.
In this case the act alleged to have constituted an indecent assault is the accused’s touching of KS on the vagina at night in his bed.
The prosecution witnesses
The prosecution called KS, her cousin Andrea Helyard, her father CS, and the investigating officer, Mr Loren Franz. I also received in evidence a number of agreed facts.
KS’s evidence
KS is now 21. She said that her parents separated when she was about six years old. At the time of their separation she was living in Wallaroo with her mother, but she would have fortnightly access visits with her father. She said that she visited her father at her paternal grandmother’s house at Kadina.
During the time she was having fortnightly access visits with her father, she can remember seeing the accused on only a couple of occasions. She gave evidence that she and the accused stayed overnight at her grandmother’s house on only one occasion. KS said she was 7 years old at the time. KS gave evidence it was summer time, and that her cousins Andrea and George were also staying at the house that night, as was her older brother.
KS was referred to a plan of the house.[2] KS said that bedroom 1 was her grandmother’s room where her cousins slept on the particular night that the accused also stayed at the house. She said bedroom 2 was a spare room in which she and her older brother slept in a double bed, marked ‘A’ on the plan. On this particular night, the accused slept in a single bed, marked ‘B’ on the plan. She said there was also a wardrobe marked ‘C’ and a toy box marked ‘D’ in the room. KS said that her grandmother slept in the lounge on a couch on that night.
[2] P1
KS gave evidence that earlier in the day the accused had taken her and her brother out for ice-cream. She said that at some point during the evening she went to bed with her brother. Her uncle went to bed later. KS said that when she went to bed, she was wearing a nightie or a long shirt and underwear. She said that during the night she woke. The room was dark. She said she was scared and called out for her dad. KS said she got out of bed and was trying to feel her way in her new surroundings. Her brother was still asleep. KS said that her uncle woke up and asked her to come and jump into bed with him, which she did.
KS said that the accused was lying on his side. KS said her back was placed towards his back on a bit of an angle. Her body was touching his. The accused did not have a shirt on. KS gave evidence that the accused was tickling her on her chest and her belly and then put his hands into her knickers and was tickling her vagina. KS said the accused said something along the lines of ‘this is our secret’. KS said she cannot recall whether she said anything in response. KS said that she knew what the accused was doing was wrong but she didn’t, in her words, ‘grasp the concept’. KS said the accused placed his hand down the front of her underpants and was touching the skin of her vagina in her ‘flaps’. She said that he did not actually penetrate her vagina but was stroking or dabbing her vagina with each of his fingers. KS gave evidence that the accused did not touch her anywhere else on her body and she did not touch him. She said that her last memory before falling asleep was of him touching her ‘in the fanny’.
KS gave evidence that when she woke the next morning it was light. Her brother was in his bed. The accused was no longer in the bedroom. KS said that she was actually excited that she had a secret. She said she went straight into the kitchen, where her grandmother was cooking, and blurted out: ‘[SGS] touched me in the fanny’. KS said her grandmother responded by saying ‘no, no, don’t talk about it’, and she did not believe her. KS said there was no one else in the kitchen when she spoke with her grandmother. KS said she next went straight outside where her father was working on the boat. The accused was outside too. She and her father then left the house and at some point during the day she returned to her mother’s care. She thinks that she left South Australia with her mother within a week and moved to Tasmania.
In cross examination, KS agreed that the layout of the room was relatively narrow, and about the width of two double beds. It was suggested to the complainant that the bed marked ‘A’ was actually in the corner where the plan depicts the wardrobe and toy box marked ‘C’ and ‘D’, which KS denied. KS also disagreed with the suggestion that the single bed and double bed marked ‘A’ and ‘B’ were the only furniture in the room.
KS said that her grandmother was the only person in the kitchen when she complained to her about the accused touching her ‘in the fanny’. KS accepted that when she gave a statement to the police on 17 January 2014, she said ‘I went up to ya ya and said [SGS] tickled my nudey’. She agreed she said that it was ‘nudey’ or ‘fanny’. She said that she thinks ‘nudey’ was the term she used for her vagina at the time.
KS agreed that her mother had taught her and her brother that no-one is permitted to touch her ‘private parts’. She agreed that it is possible that her mother had used language like ‘people are not allowed to touch you in the nudey or the fanny’, and that those conversations occurred before the alleged incident. She disagreed that her mother was quite focussed on the topic of sexual abuse. She said she was not aware that her mother had been abused as a child until well after this alleged incident.
KS was asked about her relationship with her mother as a teenager. She said she stopped living with her mother for a few months, when she was aged 14. She moved in with her father when she was aged 15 or 16 because she was fighting with her mother. At the age of 16 she moved from her father’s house to live with her boyfriend, Eddy.
KS was also asked about her relationship with her father’s sister, Aunt Mary. She said that she started confiding in her Aunt Mary a couple of years ago when, in her words, ‘she started believing me about [SGS]’.
KS gave evidence that she started smoking cannabis at age 13. She agreed that she might have told a medical practitioner at the Riverland Hospital on 27 June 2015 that she had been smoking cannabis since she was 9 years old. She agreed that if she had said that, it wouldn’t have been accurate. She said she might have said this because at the time she wasn’t in the right state of mind, and was suffering paranoia and other mental health issues. She denied that she would have said this to a medical practitioner to get attention.
KS agreed that she first presented to a hospital with mental health issues in July 2010. She agreed that she remembers telling doctors that she was possessed by a demon and that she was living with a witch. She now accepts that both statements were not accurate. She agreed that at the time she made those statements she believed they were true.
KS agreed that over the years she has only consulted psychologists when hospitalised and she has not had any ongoing psychological or psychiatric treatment as an out-patient.
KS agreed that in late August 2016 she was using methylamphetamine, having first taken the drug when she was aged 14. She said she had consumed it more frequently over the months leading up to August 2016, on maybe eight or nine occasions. KS agreed that at the beginning of September 2016, she was hospitalised for three days at Glenside Hospital for a drug induced psychosis. KS agreed that on 13 September 2016, she told doctors that she was scared of people that were trying to kill her. She accepts now that there were no such people attempting to hurt her. KS agreed that she hears an eerie sound in her head, and has done so every couple of months since she was 14.
KS agreed that she first gave a statement about these allegations to South Australian police on 10 January 2014, and that on this occasion both her father and her Aunt Mary accompanied her to the police station. She said that she had had a discussion with her father about going to the police a couple of months before doing so. She disagreed that she had been discussing going to the police with her father for a period of 18 months or two years before making a statement. She said that since she was a child she has known that when she turned 18 she could do something about the alleged incident.
It was suggested to KS that she complained to her grandmother when a young child as a means of getting her attention or alternatively to upset her grandmother. KS denied that this was the case. It was suggested to KS that she decided to re-agitate her complaint in 2014, only because her father and Aunt Mary had encouraged her to do so. KS denied this suggestion.
In re-examination, KS said that she has wanted to re-agitate her allegations against the accused since it happened and particularly since puberty. She said ‘I know it was wrong and I can do it’. KS also said that at the time of the alleged offence, she did not have any difficulties in respect of mental health or drug use. She said that her mental health issues and drug use commenced years after the alleged offending.
Complaint
As set out above, KS said she told her grandmother that the accused ‘touched her in the fanny’ on the morning after the alleged incident.
KS’s cousin, Andrea Helyard, also gave evidence about the complaint. Ms Helyard gave evidence that her relationship with KS while growing up was sporadic. She said that presently her relationship with KS is such that they are not close, and on neither bad nor good terms. Ms Helyard could recall only one occasion on which she stayed the night at her grandmother’s home when the accused, KS and KS’s brother were also staying the night. She said she thinks they were staying at her grandmother’s house because of a family event of some kind. Ms Helyard’s brother, George, was also staying there. She said that she can’t recall seeing the accused during the day.
In respect of the sleeping arrangements, she said that she and George slept in her grandmother’s bedroom in a double bed. KS and KS’s brother slept in bedroom 2 in a double bed, and the accused slept in that same room in a single bed. She said her grandmother slept in the lounge room on her couch.
Ms Helyard said that she woke the next morning to hear a discussion in the kitchen between her grandmother and KS. She heard her grandmother say ‘no, no, no, you’re lying, stop staying that’. Ms Helyard said she approached the kitchen and stood in an archway between the passage and the kitchen. She said KS turned to her and said ‘[SGS] touched my fanny’. She said her grandmother appeared frustrated and very dismissive of what KS was saying. She said that KS appeared adamant that her grandmother hear what she was saying. She said that they then all ate their meal in an awkward fashion. She said that her grandmother just ‘kind of completely shut KS down’. Ms Helyard said she did not recall seeing her uncle at the house that day. She recalls KS’s father coming to pick her up.
In cross examination, Ms Helyard said that KS was not upset or teary, nor did she seem afraid. Ms Helyard said that she had not discussed the contents of her police statement with any member of her family. She said that she had spoken to her mother, Mary, a couple of times about what had happened, but that was after she was interviewed by police. She said that she had not spoken to KS or KS’s father about the allegations. She said she does not socialise with KS.
In re-examination, Ms Helyard said that her mother had no input or involvement in the contents of her police statement.
I give myself the following directions on how to use the evidence of KS’s complaint to her grandmother. The evidence can be used, if I see fit, to not only show how the allegations first came to light but also as evidence of consistency of conduct on the part of KS. I have not used the evidence of complaint as evidence of the truth of the contents of KS’s statement to her grandmother that the accused touched her ‘in the fanny’.
I have considered the defence criticisms of this evidence, namely that KS does not recall Ms Helyard having been present when she spoke to her grandmother, and KS does not recall telling Andrea Helyard that the accused touched her ‘fanny.’ I have also taken into account the purported inconsistency between what the complainant said in court, namely that the accused ‘touched her in the fanny’ and what she said in her police statement in January 2014, namely that the accused ‘touched her on the nudey’. In my view the inconsistency, if it is that, is of little moment. I have also taken into account the inconsistency between what the complainant told her grandmother, namely that the accused ‘touched her in the fanny’ and what she said occurred, namely that the accused touched her on the vagina. However, in the context of her evidence that the accused touched her inside the ‘flaps’ but to her mind there was no penetration, I consider this purported inconsistency does not adversely affect the complainant’s credibility. I note it was not suggested to either KS or Ms Helyard that KS did not complain of the alleged offence to her grandmother.
I consider the spontaneity of the complaint, and the adamant manner in which KS complained to her grandmother as described by Andrea Helyard, buttresses and supports her credibility. It is the behaviour you would expect of a young child who had been indecently touched by her uncle, without any grooming or lead up to the sexual offending. Her evidence in court is also largely consistent with what she told her grandmother. Furthermore, the complainant says she was distressed by her grandmother’s reaction to her complaint and this is supported by Andrea Helyard’s evidence that her grandmother tried to ‘shut her down’, and also by her father’s evidence that by the time he saw the complainant she was very distressed and angry at her grandmother. Her father said that when he approached the house the following morning he saw that his daughter, KS, was very distressed, crying and very angry. He said she was very upset with her grandmother.
Again, I remind myself that KS’s evidence that she told her grandmother that the accused had touched her in the fanny, supported by the evidence of Ms Helyard, is not to be used as evidence of the truth of her statement. It simply reveals how the allegations first came to light and is evidence of consistency of conduct on the part of KS in the way I have set out above.
Motive to lie
The defence case put on behalf of the accused is that KS fabricated the allegations when she was a young child, for reasons best known to her. During the course of the cross-examination, defence counsel suggested to KS that she had made up the allegations either for attention from her grandmother, or, to upset her grandmother. It was also suggested to KS that she had re-agitated the allegations in 2014, at the behest of her father and aunt, due to their antipathy towards the accused because of his sexual affair with her mother, and a family dispute over her grandmother’s estate.
In this way, there has been a suggestion by defence that while the accused does not know why KS has fabricated the allegations, nor why she has re-agitated the allegations with police, KS had a motive to lie and fabricate the allegations. A motive to lie is of course relevant to KS’s credibility, and may, should I see fit to use the evidence in that way, undermine her credibility. However, I direct myself that even if I reject the suggested possible motive for KS to lie, it does not mean that I would necessarily find that KS is being truthful in her evidence.
The absence of evidence of a motive to lie does not strengthen the prosecution case, it is neutral. Lies can be told for no apparent reason. It is not for the accused to provide a motive for KS to lie. I remind myself again that at all times the prosecution must satisfy the court, beyond reasonable doubt, that KS is telling the truth in her evidence to the court. It is for the prosecution to prove the case, beyond reasonable doubt.
I turn to the evidence on this topic in more detail.
CS, the complainant’s father, gave evidence that he separated from the complainant’s mother when KS was aged about 5. CS agreed that he has long had an acrimonious relationship with the accused (his brother), because the accused had an affair with his wife. CS gave evidence that his wife had become unwell and moved to Adelaide to spend some time in Glenside Hospital while he remained in Wallaroo caring for his young children. During this time the accused commenced a sexual relationship with his wife. He gave evidence that he only found out about the accused’s relationship with his wife shortly before the alleged offending. He agreed that he had never reconciled with his brother and there remained an acrimonious relationship between them.
CS said that he first spoke with the police about the allegations when his daughter was a young child, shortly after the alleged offending. He said he spoke with a Detective Leach. In evidence, the investigating officer Detective Franz was asked whether there was any record that CS had contacted a Detective Leach or any other police officers at the Kadina Police Station in around 2001 or 2002. Detective Franz says he knows there was some contact but that is more anecdotal and he is not sure that it is recorded in the police records. He said that he was aware there was some sort of investigation in respect of the allegations when Detective Leach was stationed at Kadina.
CS said that he next spoke to the police on 15 November 2012, when he telephoned the Holden Hill Police Station. He agreed that he spoke with a police officer saying his daughter told him that his brother grabbed her on the fanny. He said that he had conversations with police officers at the Holden Hill Police Station over a period of about two weeks, about different topics.
CS said that on 12 December 2012, he spoke with a Detective Franz, at which time, he was not on talking terms with his daughter. He said he did not recall having been told by Detective Franz that if the police could not obtain a declaration or statement from KS then the allegations would be filed. Detective Franz agreed in evidence that on 12 December 2012 at 1 pm he spoke with CS. His note of their conversation was: ‘he hasn’t spoken to his daughter and she is dodging me. Will attend her home address again however if she doesn’t come forward this report will be filed no offence and nil disclosures from the actual victim … will call past a couple more times and leave more calling cards. Have left numerous messages through her father, Fab Apay to get in contact with me to no avail.’ Detective Franz gave evidence that when he recorded the words ‘she is dodging me’ he was referring to KS dodging him, not CS. He said ‘Fab Apay’ was a boy she was going out with. (my underlining)
Next, CS agreed that on 10 January 2014, he attended at the Kadina Police Station with KS and his sister Mary. It was put to CS that he had accompanied KS to influence her to re-agitate the allegations. CS explained that KS had seen a medical professional, Dr Woods, who had in turn advised Mary to get in contact with KS because she was not very well and according to Dr Woods needed support. CS said it was at that point he contacted KS. KS brought up the alleged offending. CS asked KS ‘what do you want to do?’ and KS said ‘I’d like to go and do something about having the accused charged’. CS said that he told KS: ‘well, Mary and I are happy to support you’. CS said that is how all three came to attend the Kadina Police Station on 10 January 2014.
It was suggested to CS that he, Mary and his other brother John threatened the accused that unless he agreed to co-operate with them in respect of their late mother’s estate, that the complainant would re-agitate the allegations against him. CS denied this suggestion. In response he said ‘the accused could go to gaol tomorrow it will not change anything with the estate, it’s been left as an equal share’.
CS also denied that he brought pressure to bear on KS to re-agitate these allegations out of revenge for his brother’s sexual affair with his wife.
I accept CS’s evidence that he did not encourage KS to re-agitate the allegations against the accused, either because of a long held antipathy towards him because of the accused’s sexual affair with his wife, or because of the dispute over his mother’s will. In my view, CS quite carefully explained that he was moved to assist his daughter to re-agitate the allegations because of professional advice received by his sister that KS needed their support. I put the proposed motive to re-agitate the allegations to one side. I remind myself that the evidence is neutral and it is not for the defence to prove a motive for the complainant to lie. The onus always remains on the prosecution to prove beyond reasonable doubt the charge.
Forensic disadvantage to the accused caused by delay
I now turn to a further legal direction which I give myself in respect of the forensic disadvantage to the accused caused by the delay in the allegations proceeding to trial.
It was an agreed fact that KS first reported the allegations to Tasmanian Police on 2 February 2002. The matter did not proceed to trial at that time. It was an agreed fact that on 10 January 2014, KS attended at the Kadina Police Station to re-agitate the complaint. She provided a statement to police on the same day. The matter did not proceed to trial in this court until October 2016. There has thus been a delay of 14 years between the time of the initial complaint and the matter proceeding to trial. I am satisfied that there is a significant forensic disadvantage to the accused because of the delay in the allegations proceeding to trial.
Accordingly, I have directed myself as follows.
The delay has forensically disadvantaged the accused in a number of ways. Owing to the elapse of time between the allegations and the matter proceeding to trial, the accused cannot now be expected to remember in detail the events of the relevant day, and those leading up to and after the time of the alleged offence. Had there been a trial promptly after the initial complaint, the accused may have been in a better position to test the complainant’s evidence. Furthermore, the complainant’s grandmother died in 2012. She may have been able to shed further light on the circumstances of the complaint by KS to her and explain why she was sceptical about the veracity of that complaint. Furthermore, there is a danger of distortion of memory of events which occurred in the past, especially where those recollections are from childhood.
I have taken those disadvantages into account in considering whether the prosecution has proved its case beyond reasonable doubt.
Owing to the fact that the prosecution case depends entirely upon the evidence of KS, who is giving an account of events that she says happened up to 14 or so years ago, and owing to the delay in the matter proceeding to trial with the consequent disadvantages to the accused to which I have referred, I have scrutinised KS’s evidence with great care. I have directed myself that I should not convict the accused unless I am completely satisfied of KS’s truthfulness and accuracy. I have, throughout my consideration of the evidence, borne in mind that the accused is forensically disadvantaged because of the delay.
Findings
I begin with those matters not in dispute between the parties.
Matters not in dispute:
There is no dispute on the evidence that there was only one occasion when the accused stayed over at his mother’s house while KS, her brother and her cousins Andrea and George Helyard were also staying the night. There appears no dispute that on this occasion KS, her brother and the accused all slept in bedroom 2, with the accused sleeping in a single bed, and the children sleeping in a double bed in the same room.
Ms Helyard agreed that the one occasion when the accused and the complainant stayed at her grandmother’s house, may have been on the evening of her cousin Georgia’s christening. KS could not say one way or another whether that was the case. It is an agreed fact that Georgia was christened on 22 September 2001, at which time KS was 6 turning 7.
Thus, there is no dispute that the accused had the opportunity to commit the alleged offence during a time period when the complainant said the alleged offence occurred.
Defence criticisms of KS’s evidence
The defence case is that the complainant fabricated the allegations when she was a young child. Defence counsel submitted that the concept of being touched on her vagina is not a sophisticated one. KS agreed in evidence that her mother told her, prior to the alleged offending, that it was wrong for a person to touch her on the private parts. Defence counsel argued that KS’s knowledge of the alleged sexual act did not therefore necessarily emanate from the alleged offence having occurred. Furthermore, the defence relied on the basic nature of the alleged offending to submit that KS’s allegations would not have been difficult for a young child to fabricate, and then recall and repeat as an adult.
Defence counsel contended that KS is not a reliable witness because she has been experiencing serious mental health issues since the age of 14 or 15, causing her to hallucinate and hear sounds.
There are also said to be inconsistencies between KS’s evidence and the evidence of Ms Helyard and CS, the most significant of which is that both Ms Helyard and CS do not describe the accused having been present during the day preceding the alleged incident. There are also discrepancies between how CS and KS described the layout of the bedroom in which the alleged offending is said to have occurred.
Defence counsel also contended that the allegations are inherently unlikely having regard to the following matters: the alleged indecent assault occurred ‘out of the blue’ while there was another child in the room and while the complainant’s grandmother was sleeping a short distance away; there was no ‘grooming’ or lead up prior to the alleged offence; and there was animosity between the complainant’s father and the accused at the time of the alleged offending resulting in the complainant having had very little contact with the accused. It is submitted that it is unlikely in those circumstances that the accused would take such a risk in indecently assaulting the complainant in that he could not have been assured of her silence.
Finally, defence counsel submitted that the complainant’s evidence stands alone, with no evidence independent of her to support the charge, and in light of the abovementioned criticisms, I cannot be satisfied beyond reasonable doubt of the truthfulness and reliability of KS’s evidence and accordingly should acquit the accused.
Assessment of KS
KS impressed me as an honest and forthright witness. She gave her evidence carefully and made appropriate concessions. For example, she explained that she did not think the accused had penetrated her vagina. She accepted without any defensiveness that she had suffered from mental health issues and become a user of illicit drugs in the years following the alleged offending.
KS gave a coherent and straightforward account of the alleged offending. It was simple and to some extent bland but that is consistent with the very nature of the allegations. She did not embellish the allegations or in any way try to dramatise her evidence. KS impressed me as a witness of truth.
KS made a spontaneous complaint to her grandmother on the morning following the alleged incident. As discussed above, in my view, the complaint by KS to her grandmother buttressed her credibility in two ways. First, it is consistent with how I would expect a young child of 8 to behave had the alleged offending occurred; and secondly what KS said to her grandmother is largely consistent with what she said in evidence had occurred. Furthermore, the timeliness of the complaint rebuts any suggestion that KS has invented the allegations latterly as a result of her mental health issues which began many years after KS’s complaint of the alleged offending to her grandmother.
I do not accept the suggestion that KS has re-agitated the allegation at the urging of her father or aunt, for the reasons outlined above.
However, there is no material support independent of KS for the charge. At the time of the alleged offence, KS was waking from sleep and frightened to find herself in an unfamiliar dark room alone. The alleged incident is said to have occurred relatively quickly, after which she fell asleep, and there is no suggestion in her evidence of any grooming or course of conduct surrounding the alleged incident. KS was a very young child whose parents were in the process of separating, and clearly there were familial difficulties in her life. While KS gave a clear account of the alleged incident, which does not appear to allow for any suggestion of accidental touching, in my mind there is room for misunderstanding on the part of KS and a young child’s embellishment as to what occurred that night, which has over the years solidified in her mind as the truth. I find myself in a position where I cannot be satisfied beyond reasonable doubt now, 14 years later, of the alleged offence. I make it clear that in no way is my decision a reflection of a lack of honesty on the part of KS. It is simply that a high standard of proof is required and in this case, on the evidence before me, I am not satisfied beyond reasonable doubt of the charged offence. Accordingly, I find the accused not guilty of the charge.
Conclusion
I am not satisfied beyond reasonable doubt of the charged offence and I acquit the accused.
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