R v SEAL - [2017] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SEAL
[2017] SADC 58
Reasons for the Verdict of His Honour Judge Rice
2 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - PROCEDURE
The accused is charged with two counts of Aggravated Indecent Assault involving his step-daughter.
Accused of prior good character.
Accused gave evidence on oath denying the offences.
Suggested motive for the complainant to lie rejected. Complainant accepted as honest reliable and truthful. Evidence of accused rejected.
Charges proved beyond reasonable doubt.
R v Trimboli (1979) 21 SASR 577; R v S, DD (2010) 109 SASR 46; R v P, S [2016] SASCFC 97, considered.

R v SEAL
[2017] SADC 58
Introduction

This is a trial by judge alone.
The accused is charged with two counts of aggravated indecent assault against his step-daughter. The alleged offences are said to have taken place within a short space of time at their home during the evening of 31 December 2008.
No other occasion or course of conduct of alleged sexual offending is alleged.
The accused denied the alleged offending on oath.
Background
As mentioned, the complainant is the step-daughter of the accused. At the time of these alleged events the accused was in a relationship with the mother of the complainant. The accused and the complaint’s mother themselves had four children. The complainant said she was aged eight years at the time of the alleged offending.
The complainant said that she, her mother, the accused and the four younger children were living in a rural community south of Adelaide.
The Allegations
Put very briefly, the complainant alleges that on the occasion in question she was at home with the accused, the other children and possibly her mother. She alleges that she walked into the lounge room where the accused was sitting watching television. He had a stubbie of beer in his hand. She went into the lounge room to give the accused an affectionate hug. This she did. She then knelt down next to the chair where he was sitting. He is then alleged to have put his hand on her shoulder, then moved his hand to her lower back into the waistband of her skirt, into her underpants at the back and then touched or rubbed her vagina from underneath. She alleges he asked ‘Is that better?’ to which she replied ‘Yes’. She said the touching or rubbing continued for a few minutes. She said he was scared[1]. (Count 1).
[1] T20-T23.
After he stopped she went outside and climbed onto the trampoline and was jumping on it. The accused came out and laid on the trampoline. She said she got off and went to walk inside. She said the accused stopped her, picked her up and kissed her on the mouth using his tongue. She said that when he picked her up he had his arms wrapped around her just below her bottom. She said she felt ‘yuck’, he put her down and she walked back inside[2]. (Count 2).
[2] T23-T25.
Legal issues
The allegations need to be proved beyond reasonable doubt. From a practical point of view that means that I would need to be satisfied about the complainant’s truthfulness, accuracy and reliability and, at the same time, be able to reject the accused’s denials beyond reasonable doubt. I have scrutinised the evidence of the complainant with great care.
As part of my consideration of these issues I need to take into account the previous good character of the accused. Evidence on this topic came from the accused himself, his father and his work manager, Mr Stratford[3]. That previous good character is relevant in a number of ways. It is relevant when considering whether I am prepared to draw from the evidence the conclusion of the accused’s guilt. Further, it is a factor affecting the likelihood of the accused committing the crimes charged. Finally, remembering that the accused gave evidence, it is relevant to his credibility as a witness R v Trimboli [4].
[3] T185-T186.
[4] (1979) 21 SASR 577 at 578.
Evidence of complaint
This topic will require more detailed attention, but initially I refer to the evidence of complaint. Importantly, I acknowledge that any evidence of complaint cannot be used to prove the truth of any assertion in the complaint.
As mentioned, the allegations are charged as relating to the evening of 31 December 2008 when the complainant was eight years of age. She did not tell anyone close to her at that time. She said the accused was still living with them and if she told her mother, ‘she would obviously bring it up with him and he would be really angry with me’[5].
[5] T31-T57.
She first mentioned it to one of her younger sisters ‘C’ in 2015, about two weeks before she went to the police about it. By this time the family, but not including the accused, had moved to a small town not far from their previous home at which the alleged offences are said to have taken place. It seems to be accepted that the accused left that previous home in about August 2013.
The complaint to her sister arose in this way. The complainant asked her sister whether the accused had touched her in a way that was inappropriate. Her sister replied that he had not done so and the complainant then proceeded to say what the accused had done by saying[6]:
A‘….he put his hands in the sides of my underpants.
QDid you tell her about what happened on that evening of New Year’s Eve in 2008.
ANo, just very briefly, like he just had his hands down my pants one day.
[6] T32-33.
The complainant said she told her mother of the allegations about two weeks later, although not in detail[7].
[7] T33.
The complaint to her sister and then the disclosure to the mother (by the complainant) are, on the evidence, connected in time to other events that were occurring at the time. Further, it is suggested by the defence that the complainant has fabricated the allegations to assist her mother in Family Court proceedings. It is also suggested that the complainant herself would benefit.
Some further background is necessary to understand what was being suggested.
As mentioned, the accused left the family home in August 2013.
After that time the children of the couple, plus the complainant, would visit the accused at the accused’s father’s place where he then lived. That continued up until Christmas 2013. In February 2014, the complainant and the sister to whom the complaint was made, ‘C’, stopped going to stay with the accused on a regular basis[8]. By about the end of 2014 the mother of the complainant had stopped the accused seeing any of the children, although they may have seen him on Christmas Day, 2014[9]. By about that time the complainant did not want to see the accused under any circumstances[10].
[8] T38.
[9] T38.
[10] T62.
The basis for the complainant going to see the police in February, 2015 was not in relation to the accused. At some stage the complainant had said something to her mother that the accused had allowed the complainant to be taught to surf by a friend of the accused at Aldinga Beach and that this man had touched her on the leg[11].
[11] T60-T62.
At about this time the complainant was aware that there was a disagreement between the accused and the complainant’s mother about arrangements for him to see the children[12].
[12] T59-T62.
Further, the complainant thought that going to see the police may have something to do with domestic violence issues relating to her mother and the accused. Yet further, the complainant was aware that her mother had sought or taken out an intervention order to keep the accused away from the complainant, her mother and siblings[13].
[13] T58.
In that situation the complainant spoke with Detective Brevet Sergeant Penney on 24 February 2015 (although that date it is not entirely clear[14]). The initial topic was the conduct of the man at Aldinga Beach[15]. The complainant said that this man did not touch her. She then told the officer that she had told her mother that the accused had done something to her, and then, to the effect ‘that he was mean’ to them and police should know[16].
[14] T118, T123.
[15] T123-T124.
[16] T124.
What occurred next is best quoted from Detective Brevet Sergeant Penney’s evidence[17]:
A‘He was mean to us and police should know’. She went on to say ‘He put his hands down my pants when I was eight’, and I said to her that I was sorry that that had happened and I asked ‘How did he do this?’ and ‘CA’ said to me ‘I don’t want to say’ and then she asked me if it would help her mum in Family Court to say what had happened. And then I had a discussion with her where I said that it wasn’t her responsibility for her to look after her mother and her siblings, that this is to help her if something has happened to her.
[17] T124.
The complainant did not really dispute that account. She was asked in evidence[18]:
QWhy did you ask Ms Penney if it would help with Family Court.
ABecause I wasn’t quite sure what would be the meaning of me going to report this.
[18] T55.
Later the complainant was asked these questions in cross examination[19]:
[19] T62-T63.
QIn terms of how your situation was at the time that you saw Debra Penney, your view was that it was better to side with your mother than Chad (the accused).
AYes.
QAnd I’m suggesting that you are prepared to lie to your mother to help your mother.
ANo.
QBecause I’m suggesting to you that, at no stage, did Chad ever touch you on the vagina.
ANo.
QI suggest that, at no stage, did Chad ever kiss you.
ANo, he did.
QI’m suggesting that you lied to his Honour when you said these things today.
ANo, I wouldn’t go to the effort.
QAnd I suggest that you did that because you thought that to make an allegation against Chad to the police would help your mother in terms of ensuring that you wouldn’t have to go back and see Chad from 2015 onwards.
ANo, that’s not the case.
Before going to analyse the suggested motive of the complainant to fabricate her allegations, I refer to the account of the complaint given by the sister. Her sister said that she was told that the accused ‘…put his hands down her pants while they were hugging’[20]. The sister said she encouraged the complainant to tell their mother but that she (the complainant) did not do that for a couple of weeks[21].
[20] T72-T73.
[21] T73.
The sister said she was asked by the complainant whether the accused had done anything to her and the sister replied ‘No, because he hadn’t’[22].
[22] T73.
In cross-examination the sister confirmed that she was told that the alleged indecent assault occurred while they were hugging. She also said that the complainant did not want the sister to tell their mother[23].
[23] T74.
The first question is whether the words spoken by the complainant to her sister are properly regarded as ‘evidence of complaint’. Although the words used did not included all of what the complainant said in evidence happened, they are sufficient to be evidence of complaint of the charged offence.
Evidence of complaint may (R v S, DD)[24] be used to show evidence of consistency of conduct. The evidence of complaint may also be used to show an inconsistency between what was said in evidence and the terms of the complaint. Although there is some inconsistency between the two in this case, they are not sufficient to adversely affect my view of the complainants’ reliability and truthfulness.
[24] (2010) 109 SASR 46 at 4, 49-50, 101.
Suggested motive for the complainant to lie
I return to the question of the suggested motive for the complainant to lie.
In approaching this topic and the weight to be attached to the evidence, I have applied the principles discussed in R v P, S[25].
[25] [2016] SASCFC 97 at paras 91-94.
Further, I have applied what was referred to in R v P, S as a standard direction often given in this state. That directions is as follows:[26]
You will have to consider the possibility of a motive for the complainant to lie. A motive to lie is relevant to the credibility of the complainant. However, even if you reject the alleged motive for the complainant to lie, that does not mean that you would find that the complainant is being truthful. 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. Crucially it is not for the accused to provide a motive for the complaint to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that the complaint was telling the truth.
[26] Ibid, para 95.
The evidence of the complainant when cross-examined about the alleged motive to lie was, in my view, candid and truthful. It is clear to me that she was genuinely trying to assist her mother (and herself), not by telling a lie but by telling the truth. It is clear to me, not simply from what she said but the way she said it, that she was very reluctant to tell her mother what she said happened. She did not want to tell her and did not want her sister to tell her. She seemed initially reluctant to say anything on the topic to Detective Brevet Sergeant Penney.
In my assessment, the complainant, although young and to some degree immature, was honest, forthright and truthful. Generally she was accurate. She lacked guile or finesse. I reject the alleged motive to lie. I am only too conscious that lack of other evidence of a motive to lie does not strengthen the prosecution case. It is neutral. However, as I have found, even though there was evidence to suggest a motive to lie, in fact she was telling the truth.
I emphasise that there is no burden or onus upon the accused to prove or show anything.
Other issues at trial
Some of the evidence at trial was taken up with the identification of the occasion of the offending. As mentioned, the information alleges it occurred on 31 December 2008. Some material suggested that her mother was not present at the house at the time and may have been working at the nearby town’s sports club. However, at trial, the complainant did not go that far. Viewed overall, she said was aged eight years and it happed on New Year’s Eve, but she was uncertain whether her mother was home and was uncertain whether her mother was working that night. It seems from the evidence that her mother was not working at the club until 2010 or later[27].
[27] T18-T19, T50-T52, T84-T85, T97-T110, Exhibits P7 and P8.
Even if there is some doubt about whether the complainant’s mother was home that evening or perhaps working or volunteering, I have no doubt about the occasion in question.
Another disputed topic were some alleged incidents involving force being used by the accused against the complainant and some of her siblings. She described being punished by the accused who would ‘…hold our faces down to the pillows and mattresses and hit us.’
As I understand her evidence she was saying that the accused did those things when he was drunk and they were doing the wrong thing[28]. The complainant’s mother confirmed that conduct[29].
[28] T17-T18, T39-T41.
[29] T92-T93, T110-T111.
The accused acknowledged that there were sometimes he became intoxicated enough to be described as drunk. He described himself as fairly strict, occasionally disciplining the children with an open hand, but not in a particularly forceful way[30]. He denied placing pillows over their faces or forcing them into bedding as a form of discipline[31].
[30] T155-T157.
[31] T157.
Importantly from the complainant’s point of view she said she was scared of the accused when he had been drinking, as he had been on the occasion in question[32]. Relative to count one she said she was ‘frozen’. The complainant also said that if her mother said anything to the accused about what had (allegedly) occurred, the accused would get angry[33].
[32] T16-T17, T22, T39-T41, T45-T46.
[33] T57.
There was no discreditable conduct notice filed on this topic and it was not raised during the course of the trial. Assuming it amounts to discreditable conduct (which is by no means certain), it has a relevance to explain her reaction at the time of the alleged offending and why no complaint was made promptly. It has not been used to show the accused is of bad character and is more likely to have committed these offences (if the conduct is proved).
I also note that apart from the alleged offending and the occasions of what was said to be unnecessary force in disciplining the complainant and her siblings, the complainant enjoyed a good relationship with the accused. As mentioned, sometimes if he drank too much there would be excessive discipline[34].
[34] T16-T17, T39.
Having said those things I should express my conclusion about what has been referred to as this excessive discipline. I am quite satisfied that the complainant gave an accurate description of the accused’s conduct in this regard. I was left with the clear impression of the accused’s evidence on this topic namely, that he was down playing the extent of his drinking and the nature and severity of his discipline. I accept the complainant’s account and I reject the accused’s account.
Discussion and Conclusions
I have expressed some conclusions in what I have said earlier in these reasons.
I find the complainant to be truthful, honest and forthright. Generally she was accurate. She gave her evidence in a straightforward manner. Although to some degree she lacked maturity, she still described the accused’s conduct with clarity. She handled cross-examination well and was very frank with her answers. As I have already noted, she lacked guile or finesse.
By contrast, I was unimpressed with the accused. I find him to have been untruthful. I reject his denials that the alleged events did not occur. I reject his accounts about the amount of alcohol he drank and the nature and severity of his discipline. I acknowledge again that a rejection of the accused on key issues does not prove or assist the prosecution case.
I find the two counts proved beyond reasonable doubt.