R v Sears
[2018] SADC 94
•7 September 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SEARS
[2018] SADC 94
Reasons for the Verdict of His Honour Judge Millsteed
7 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) - admissibility of child complainant's audio visual records of interview pursuant to s 13BA of the Evidence Act 1929 (SA) - capacity of complainant to give unsworn or sworn evidence - complainant aged 9 years at the time of trial and 8 years of age at the time of the interviews - prosecution case based substantially on complainant's evidence and interviews - accused gave sworn evidence denying the offence.
Verdict: Accused guilty of charged offence.
Criminal Law Consolidation Act 1935 (SA) ss 5, 20(1), 48A, 49(7), 50(1), 56(1), 57(2) ; Evidence Act 1929 (SA) ss 9, 12A, 13BA, 34CB, 34M, 34P; Summary Offences Act 1953 (SA) ss 4, 74EB, referred to.
Howe v R (1980) 32 ALR 478; Chiro v The Queen [2017] HCA 37; Hamra v The Queen (2017) 260 CLR 479; R v Nesbitt [1953] VLR 298; R v Court [1989] AC 28; Harkin (1989) 38 A Crim R 296; Drago v R (1992) 8 WAR 488; R v C, M (2014) 246 A Crim R 21; R v Johnson [1968] SASR 132; Britten v Alpogut [1987] VR 929; R v Whittingham (1988) 49 SASR 67; R v Climas (1999) 74 SASR 411; Abrahamson v The Queen (1994) 63 SASR 139; Subramanian v Public Prosecutor [1956] 1 WLR 965; Walton v R (1989) 166 CLR 283; Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; R v Maiolo (No 2) (2010) 109 SASR 46; R v Schlaefer (1984) 37 SASR 207; R v Pitman (1985) 38 SASR 566; R v Baltensperger (2004) 90 SASR 129; R v B, P [2006] SASC 229; Douglass v The Queen [2002] HCA 34; Edwards v R (1993) 178 CLR 193; Longman v The Queen (1989) 168 CLR 79; R v Bakhuis (2012) 112 SASR 536; Palmer v R (1998) 193 CLR 1; R v N [2004] SASC 409; R v Van Der Zyden (2012) 261 FLR 419; R v Corrigan (1998) 74 SASR 545; Gipp v The Queen (1998) 194 CLR 106; R v Nieterink (1999) 76 SASR 56; Roach v The Queen (2011) 85 ALJR 558, considered.
R v SEARS
[2018] SADC 94INTRODUCTION
The accused, Hank William Sears, was tried before me sitting without a jury[1] on one count of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act, 1935 (CLCA), contained in an information filed by the Director of Public Prosecutions (SA). The prosecution alleged that the accused, over a period of several years, performed various sexual acts on a child (LF)[2] who was the granddaughter of a friend. The acts were allegedly performed when LF was between about four to eight years of age.
[1] The accused elected to be tried by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
[2] It is necessary to refer to the complainant, and other witnesses, by initials to prevent publication of her identity or of any statement or representation from which her identity might reasonably be inferred: s 71A(4) of the Evidence Act 1929 (SA).
For the reasons set out herein, I find the accused guilty of the charge.
THE CHARGE
Particulars
The particulars of the offence contained in the information originally stated:
Particulars of Offence
Hank William Sears at Salisbury North, Wallaroo, Maslin Beach, Enfield and other places, over a period of not less than three days between the 29th day of October 2010 and the 14th day of December 2015, committed more than one act of sexual exploitation of [LF] a person under the age of 17 years, by:
(a) attempting to kiss her on the mouth on more than one occasion;
(b) causing her to watch pornography on more than one occasion;
(c) causing her to touch his penis on more than one occasion;
(d) rubbing his body on her body on more than one occasion;
(e) inserting his penis into her vagina on more than one occasion;
(f) touching her vagina on more than one occasion;
(g) inserting his penis into her anus on more than one occasion;
(h) inserting his finger into her anus on more than one occasion;
(i) licking her vagina on more than one occasion; and,
(j) causing her to put her mouth on his penis on more than occasion.
Following the prosecution’s opening address, I granted an application by the prosecution for the information to be amended by inserting in the particulars of the offence a further alleged act of sexual exploitation, namely ‘(k) kissing her on the mouth’. The application was not opposed by defence counsel.
For reasons to be discussed later, the evidence tendered in support of each of the allegations particularised in (i), (j) and (k) was inadmissible. In the result, the accused had no case to answer in respect of those three allegations.
Elements of the offence
The accused is presumed to be innocent of the charged offence. The prosecution carries the onus of establishing his guilt beyond a reasonable doubt by establishing the essential elements or ingredients of the charge to that standard. The presumption of innocence applies unless and until the prosecution discharges that onus. The accused is entitled to the benefit of any reasonable doubt and does not have to prove his innocence.[3]
[3] Howe v R (1980) 32 ALR 478 at 483.
Prior to its repeal on 24 October 2017, s 50(1) of the CLCA created an offence where an adult person, ‘over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age’. For the purposes of this case, the prescribed age is 17 years (s 50(7)(b)).
Accordingly, in order to establish the accused’s guilt the prosecution were required to prove the following:
1. The accused was an ‘adult’ at the time.
2. The accused committed more than one ‘act of sexual exploitation’.
3. The acts were committed over a period of not less than three days.
4. The acts were committed against a ‘particular child’, namely LF.
5. LF was under the prescribed age of 17 years at the time.
There is no dispute in relation to elements (1) and (5) or in relation to element (4) to the extent that LF is the only alleged victim. The contentious issues are whether the accused committed more than one act of sexual exploitation over a period of not less than three days against LF.
Section 50(2) provided that an ‘act of sexual exploitation’ is an act of a kind that could be the subject of a charge of a sexual offence, if it were able to be properly particularised.
Section 50(7) defined ‘sexual offence’ by reference to other offence provisions contained in CLCA, including in Pt 3, Div 11 (Rape and other sexual offences). In relation to the acts particularised in the information, upon which the accused had a case to answer, the prosecution contended that the acts constituted the following offences under the CLCA:
· particular (a) – attempted indecent assault, contrary to s56 and s270A;
· particular (c) - indecent assault (s56) or compelled sexual manipulation contrary to s48;
· particulars (d) and (f) - indecent assault contrary to s56;
· particulars (e),(g) and (h)-unlawful sexual intercourse with a person under the age of 14 years contrary to s49(1)
· particular (b) – act of gross indecency contrary to s58;
An information charging an offence under s 50(1) is not required to contain the level of particularity which is demanded by the common law.[4] Section 50(4) provides that a charge under s 50(1) must allege with sufficient particularity the period during which the acts of sexual exploitation allegedly occurred and the alleged conduct comprising the acts of sexual exploitation.
[4] Chiro v The Queen [2017] HCA 37 at [8].
While the information must allege a course of conduct consisting of acts of sexual exploitation, it need not ‘allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section’ of the CLCA (s 50(4)(a)). Furthermore, the information need not ‘identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred’ (s 50(4)(b)).
The offence created by s50(1) was considered by the High Court of Australia in Chiro v The Queen[5] and Hamra v The Queen[6] both of which were delivered on 13 September 2017, the day after counsel delivered their closing addresses in the present case.
[5] [2017] HCA 37.
[6] (2017) 260 CLR 479.
In Chiro the Court confirmed that the actus reus of the offence is the doing, as an adult, of an act which constitutes a sexual offence in relation to the child concerned on at least two occasions over a period of not less than three days. Accordingly, an underlying act of sexual exploitation constitutes an element of the actus reus and must be proven beyond reasonable doubt.[7]
[7] [2017] HCA 37 at [19]-[23].
In Hamra the High Court considered the degree of particularisation required by s 50. The Court unanimously held that although s50(1) requires a jury, or judge sitting alone, to identify two or more acts of sexual exploitation, proof of the offence does not require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances.[8] The Court added:[9]
An example which illustrates this point is evidence of a complainant that an act of sexual exploitation was committed every day over a two week period. The appellant submitted that such evidence would be insufficient because, even if the jury (or judge in a trial by judge alone) were to conclude that those acts had occurred in that way, this would invite “deductive reasoning”, “rather than identifying an occasion and determining what is the evidence to prove that occasion”. In other words, it is impermissible to use logic to deduce from the occurrence of acts of sexual exploitation every day for two weeks that two or more acts must have occurred over a period of “not less than 3 days”. The submission cannot be accepted. Neither the common law nor s 50 of the Criminal Law Consolidation Act precludes a judge or jury from deducing a conclusion by simple and obvious logic, provided, of course, that the members of the jury reach the conclusion as to the same two or more acts unanimously, or by a statutory majority where a majority verdict is permitted.
[8] (2017) 260 CLR 479 at [27].
[9] (2017) 260 CLR 479 at [28].
I turn to the elements of the offences under the CLCA which the accused is alleged to have committed by performing acts particularised in the information. I will refer only to the particularised acts upon which the accused had a case to answer.
Indecent assault
The prosecution contended that the accused performed several types of acts on LF each of which constituted the offence of indecent assault, namely:
·causing her to touch his penis- particular (c)
·[In the alternative, the prosecution argued that such conduct amounted to an offence of compelled sexual manipulation, discussed below]
·rubbing his body on her body- particular (d)
·touching her vagina –particular (f)
Pursuant to s 56(1) of the CLCA ‘a person who indecently assaults another person is guilty of an offence’. The CLCA does not define an indecent assault but it is well established that it constitutes an assault accompanied by circumstances of indecency.[10] Section 20(1) of the CLCA provides that ‘a person commits an assault if [inter alia] the person, without the consent of another person (the “victim”)…intentionally applies force (directly or indirectly) to the victim…’. By force of s 57(2) of the CLCA ‘no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault’.
[10] R v Nesbitt [1953] VLR 298 at 300.
In order to establish that the accused committed an offence of indecent assault against LF, the prosecution needed to prove the following elements:
The accused applied force (directly or indirectly) to LF.
·in relation to an act particularised in (c) by applying force to her at the time she touched his penis - this was alleged to have been done by the accused grabbing hold of her wrist and then putting her hand on his penis.
·in relation to an act particularised in (d) by rubbing his body on her.
·in relation to an act particularised in (f) by touching her vagina.
The force was applied intentionally.
The force was accompanied by circumstances of indecency.
LF was under the age of 17 years, rendering consent irrelevant.
In relation to the requirement of indecency, it is for the trier of fact to ‘decide whether right minded persons would consider the act indecent or not … whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent’.[11] Put another way it must be determined whether the act is ‘contrary to the ordinary standards of morality of respectable people within the community’.[12] Furthermore, the element of ‘indecency’ must have a sexual connotation.[13] In other words, it requires an element of ‘sexual lewdness’.[14] By indecency it is meant conduct that right thinking people will consider an affront to the sexual modesty of a person.[15]
[11] R v Court [1989] AC 28 at 42 (Lord Ackner).
[12] Harkin (1989) 38 A Crim R 296 at 299-301 (Lee J).
[13] R v Court [1989] AC 28 at 42 (Lord Ackner); Harkin (1989) 38 A Crim R 296 at 301 (Lee CJ); Drago v R (1992) 8 WAR 488 at 497-8 (Nicholson J).
[14] R v C,M (2014) 246 A Crim R 21 at [19] (Peek J).
[15] R v Court [1989] AC 28 at 34 (Lord Griffiths); Harkin (1989) 38 A Crim R 296 at 299-300 (Lee CJ), Ackner.
Where an accused’s conduct is unequivocally indecent it is not necessary for the prosecution to prove that the accused had a sexual intention or motive. However, where the accused’s conduct is equivocal (consistent with both an innocent and indecent interpretation) the accused’s motive is relevant to the question of whether right minded people would regard his conduct as indecent.[16] In other words, the case law in this area draws a distinction between acts of indecency that are (i) unequivocal, in which case an inference of indecency arises; or (ii) equivocal, in which case the conduct may become indecent if the accused has a sexual purpose or motive.[17]
Attempted indecent assault
[16] Where an act is not in itself indecent, and is not committed in indecent circumstances, secret sexual gratification cannot convert the act into one of indecent assault. For example, in R v George [1956] Crim LR 52 the fact that the accused secretly obtained sexual gratification from merely removing a woman’s shoes did not make his conduct indecent. See also R v Johnson [1968] SASR 132.
[17] See S. Bronnit and B. McSherry, Principles of Criminal Law, Lawbook Co, 4th ed at 643.
The prosecution alleged that the accused committed the offence of attempted indecent assault by ‘trying’ to kiss LF on the lips.
A criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a crime and it is proven that at the same time the accused did an act or acts (which in appropriate circumstances would be seen as omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.[18] The accused must take steps towards the commission of the crime which, if they had not been interrupted either by the accused voluntarily desisting or by some other cause, would have resulted in the commission of the said crime.
[18] Britten v Alpogut [1987] VR 929 at 938.
In the present case, it was necessary for the prosecution to prove that the accused intentionally attempted to kiss LF on the lips by the performance of an act or acts which if they had not been interrupted would have resulted in the accused kissing her lips in circumstances of indecency.
Unlawful sexual intercourse
The prosecution alleged that the accused engaged in three types of unlawful sexual intercourse with a child under the age of 14 years, namely:
·inserting his penis into LF’s vagina - particular (e)
·inserting his penis into LF’s anus – particular (g); and,
·inserting his finger into LF’s anus – particular (h);
Pursuant to s 49(1) of the CLCA ‘a person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life’. [Section 49(2) stipulates that ‘a person who has sexual intercourse with any person under the age of 17 years shall be guilty of an offence’. The sub-section provides for a maximum penalty of 10 years imprisonment.]
Sexual intercourse is defined in s 5 of the CLCA as follows:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving-
(a)penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunnilingus
By force of s49 (7) consent to sexual intercourse is not a defence to a charge under the section.
To establish that the accused committed an offence of unlawful sexual intercourse against LF, the prosecution was required to prove each of the following elements:
1. The accused had sexual intercourse with LF.
·in relation to an act particularised in (e) by penetrating LF’s vagina or labia majora with his penis.
·in relation to an act particularised in (g) by penetrating LF’s anus with his penis.
·in relation to an act particularised in (h) by penetrating LF’s anus with his penis.
2. LF was under the age of 17 years at the time, rendering consent irrelevant and the act of sexual intercourse unlawful.
Gross indecency
It was the case for the prosecution that the accused committed acts of gross indecency contrary to s 58 by causing LF to watch pornographic movies (particular (b)).
Section 58 states:
(1) Any person who, in public or in private—
(a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years;
(b) incites or procures the commission by any such person of any act of gross indecency with the accused, or in the presence of the accused, or with any other person in the presence of the accused;
(c) is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of, any such person, or by or with any other person in the presence of any such person, or by any such person with any other person in the presence of the accused,
shall be guilty of an offence and liable for a first offence to be imprisoned for a term not exceeding three years and for any subsequent offence to be imprisoned for a term not exceeding five years.
(2) It is no defence to a charge under this section that the act of indecency was committed with the consent of the person concerned.
The accused’s conduct was alleged to have breached s 58(1)(a).
To establish that the accused committed an act of gross indecency, the prosecution needed to prove the following:
1. The accused performed an act (playing pornographic movies).
2. The act was intentionally performed in the presence of LF.
3. The act involved an act of gross indecency.
4. LF was under the age of 17 years at the time, rendering consent irrelevant.
The meaning of ‘indecency’ for this offence is the same as that for the offence of indecent assault with the additional requirement that the indecency be ‘gross’.
Compelled sexual manipulation
As earlier mentioned, the prosecution alleged that the accused committed acts which involved taking hold of LF’s wrist and causing her to touch his penis. It was the prosecution’s case that such an act amounted to an offence of indecent assault. However, the prosecution contended that would also amount to an offence of compelled sexual manipulation, contrary to s 48A.
That section relevantly provides:
(1) A person (the offender) is guilty of an offence if he or she, for a prurient purpose, compels a person to engage, or to continue to engage, in—
(a)an act of sexual manipulation of the offender; or
…
when the person so compelled does not consent to engaging in the act, or has withdrawn consent to the act, and the offender knows, or is recklessly indifferent to, the fact that the person does not so consent or has so withdrawn consent (as the case may be).
…
(2) In this section—
compels—a person compels another person if he or she controls or influences the other person's conduct by means that effectively prevent the other person from exercising freedom of choice;
prurient purpose—a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else;
sexual manipulation means the manipulation by a person of another person's genitals or anus (whether or not including sexual intercourse);
…
I note that s 48A does not say that in the case of a child under a certain age consent it is not a defence to a charge under the section. This is to be contrasted with offences of unlawful sexual intercourse, indecent assault and acts of gross indecency. It is possible that this is the result of an oversight on the part of the legislature. Be that as it may, the prosecution’s reliance on s48A is problematic.
TRIAL CHRONOLOGY
The trial commenced on 18 April 2017.
The prosecution called the following witnesses: LF (complainant) and FD (complainant’s mother); CD (complainant’s grandmother); GD (complainant’s grandfather); JF (neighbour of CD and GD); Dr Janine Tee (medical practitioner) and several police officers, including the investigating officer Detective Sergeant Jessica Dickenson.
On 24 April 2017 the prosecution closed its case and the defence case commenced.
On 26 April 2017 the trial was adjourned during the accused’s evidence in-chief due to the accused falling ill.
The length of the accused’s illness, and difficulties with court listings, prevented the trial from resuming until 11 September 2017. On that day the accused completed his evidence, his wife June Sears gave evidence. The defence then closed its case.
On 12 September 2017 the prosecutor, Ms R. Gray, and defence counsel, Ms E Mansfield, delivered their closing addresses.
ADMISSION OF COMPLAINANT’S INTERVIEWS
At the commencement of the trial the prosecution applied for an order admitting into evidence three audio visual records of interviews of LF made pursuant to s74EB of the Summary Offences Act 1953 (‘SOA’). The application was made pursuant to rule 57C of the District Court Rules 2014 and s13BA of the Evidence Act 1929 (‘EA’).
The interviews were conducted by Senior Constable (SC) Benjamin Horley on 9 December 2015 (‘first interview’)[19] and 3 April 2016 (‘second interview’),[20] and by Ms Lana Elliot, a social worker employed at Child Protection Services, on 2 March 2017 (‘third interview’).[21] LF was aged 8 years and two months at the time of the first interview, 8 years and 6 months at the time of the second interview, and 9 years and 5 months at the time of the third interview.
[19] Disc of first interview Exhibit P1; Transcript of first interview MFI P2.
[20] Disc of second interview Exhibit P3; Transcript of first interview MFI P4.
[21] Disc of third interview Exhibit P5; Transcript of first interview MFI P6.
Relevant statutory provisions
Section 74EB of the SOA is contained in Div. 3 of the SOA which governs the recording of interviews with certain vulnerable witnesses, including children under the age of 14 years (s 74EA(1)(a)).
Section 74EB states:
If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person the interview must be made in accordance conducted as follows:
(a) an audio visual recording of the interview must be made in accordance with the regulations;
(b) the interview must be conducted by a prescribed interviewer;
(c) the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. (emphasis added)
Regulation 20 of the Summary Offences Regulations 2016 relevantly provides:
(1) For the purposes of s74EB(b) of the Act, a prescribed interviewer is-
(a)a police officer or Public Service employee, or a police officer or Public Service employee of a class , authorised by the Commissioner or the Minister by written notice to conduct interviews with vulnerable witnesses; or
(b)…
(c)a person who has successfully completed a training course in conducting interviews with vulnerable witnesses-
(i)approved by the Commissioner;[22] or
(ii)approved by the Minister,
…
(2) In this regulation-
Minister means the Minister for Health.
[22] Defined as the Commissioner of Police or the person for the time being acting in the office of Commissioner of Police: Summary Offences Act 1953, s4.
There is no dispute that the interviews conducted by SC Horley and Ms Elliot complied with reg. 20(1)(a) and (b). In relation to reg. 20(1)(b) SC Horley was a prescribed examiner by virtue of being a police officer with required authorisation to conduct interviews with vulnerable witnesses. The application for admission of the third interview was made on the basis that Ms Elliot was a prescribed interviewer under s20(1)(c). The application was supported by an affidavit, sworn on 7 April 2017, from a solicitor employed in the office of the DPP. The solicitor deposed:
Ms Lana Elliot is a prescribed interviewer pursuant to regulation 20 of the Summary Offences Regulations 2016. In 2013, Ms Elliot completed the Interagency Practice Certificate in Child Protection at TAFE. She is currently completing the Specialist Investigative Interviewing of Vulnerable Witnesses Course through Deakin University. Further, she has continued to engage in professional development and training since commencing employment with Child Protection Services on 16 June 2014.
The application proceeded on the assumption that Ms Elliot was a prescribed examiner. For reasons that I will come to, the assumption was wrong.
Section 13BA of the EA provides for the admission into evidence of audio visual records obtained pursuant to s 74 EB of the SOA. The section relevantly states:
(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2) An application for an order under subsection (1) must—
(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b) be filed in the court; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d) otherwise be made in accordance with the rules of court.
(3)An audio visual record of the evidence of a witness may be admitted under this section if—
(a) the recording has been made pursuant to—
(i) section 12AB; or
(ii) Part 17 Division 3 of the Summary Offences Act 1953; and
(b) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d) during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a) rule as inadmissible the whole or any part of the recording; or
(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
Rule 57C imposes further procedural requirements in relation to applications made under s13BA. However, it is not necessary to refer to them.
In the present case, there was no dispute that the prosecution’s application complied with the procedural requirements stipulated in rule 57C and s 13BA(2). There was also no dispute, at least at the time the application was made, that the preconditions of admissibility stipulated in s 13BA(3) had been satisfied in respect of each audio visual record, subject to consideration of whether LF had the ‘capacity to give sworn or unsworn evidence at the time the recording was made’(s 13BA(3)(b)).
Capacity to give sworn or unsworn evidence
Section 9 of the EA relevantly provides:
(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(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.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a criminal trial, the judge –
(a) must explain to the jury the reason the evidence is unsworn; and,
(b) may, if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5) …
(6) Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.
In accordance with s9(1), LF was presumed to be capable of giving sworn evidence at the time of each of her interviews unless I determined that she did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The nature of that obligation was explained by King CJ in R v Whittingham:[23]
The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness-box, and indeed the crucial importance of telling the truth in the witness-box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked.
[23] (1988) 49 SASR 67 at 69.
This explanation of the obligation entailed in giving sworn evidence was affirmed by the Court of Criminal Appeal in R v Climas[24] which held that in the case of a child under the age of 10 years, who is thus not capable of being criminally responsible, the nature of the obligation to tell the truth should be explained to the child as a serious one which may have serious consequences for the accused. This is the nature of the obligation explained by King CJ in Whittingham but without the added aspect of a sanction.[25]
[24] (1999) 74 SASR 411 at [24].
[25] R v Climas (1999) 74 SASR 411 at 417.
The relationship between s 9(1) and s9(2) was explained in R v Climas by Duggan J when he said:[26]
Nevertheless it is appropriate to comment on the relationship between s 9(1) and s 9(2). In the event that the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the question may arise as to whether the person should be permitted to give unsworn evidence in accordance with s9(2). The prerequisites for permitting such a course are as follows:
1.the judge must be satisfied that a person understands the difference between the truth and a lie (s 9(2)(a)(i));
2.the judge tells the person that it is important to tell the truth (s 9(2)(a)(ii)) and
3.the person indicates that he or she will tell the truth.
The section contemplates a situation where the person does not sufficiently understand the obligation which arises from giving evidence in a matter before the Court, but does have sufficient understanding of the basic difference between telling the truth and telling a lie. This position is not far removed from the comparison made by King CJ in the passage quoted above from Whittingham’s case.
[26] (1999) 74 SASR 411 at 419.
Consideration
At the commencement of each of the three interviews LF was questioned to determine whether she understood the difference between the truth and a lie. I was satisfied from the questioning that LF understood the difference between the truth and a lie and therefore had the ‘capacity’ to give unsworn evidence at the time of each of those interviews. However, I was not satisfied that she had the capacity to give sworn evidence because both interviewers failed to question LF as to whether she understood that the obligation to tell the truth was a serious one which could have serious consequences for the accused. It could not be inferred from the balance of each interview that she had that understanding.
Accordingly, I admitted each of the three interviews into evidence under s 13BA, as evidence constituting LF’s evidence in chief, on the basis that she had the capacity to give unsworn evidence. The correctness of my ruling was expressly conceded by defence counsel, Ms E Mansfield.[27]
[27] Trial transcript (TT) 15.
Following the tender of the interviews, the prosecutor did not further examine LF but made her available for cross-examination at the request of the defence pursuant to s 13BA(3)(d) of the EA. LF was not re-examined.
Warning re interviews
In a trial by judge alone, the EA does not require a judge to direct himself or herself in accordance with s 9(4). However, I have (i) reminded myself as to the reasons why LF’s interview evidence is unsworn (s 9(4)(a)) and, (ii) warned myself of the need for caution in determining whether to accept the interview evidence and the weight to be given to it (s 9(4)(b)).
COMPLAINANT’S TESTIMONIAL EVIDENCE
Capacity to give sworn or unsworn evidence
At the time of trial LF was aged 9 years and 6 months. Prior to the commencement of LF’s cross-examination, I questioned her to determine if she was capable of giving unsworn or sworn evidence at that time. I was satisfied that LF had sufficient understanding of the obligation entailed in giving sworn evidence and so ruled. Defence counsel did not contend otherwise.[28]
Special arrangements
[28] TT 102-103.
When LF gave evidence at the trial, special arrangements were made, pursuant to s13A of the EA, for taking her evidence by virtue of her being a vulnerable witness,[29] namely: that she give evidence from outside the courtroom by CCTV; that she be accompanied by a court companion; that the court be closed; and, that she be accompanied by a court companion.
[29] The definition of a vulnerable witness includes a person who is under the age of 16 years: s4 EA.
Section 13A(12) provides that if, in a criminal trial, a court makes special arrangements the judge must warn the jury not to draw any inference adverse to the defendant and not allow the special arrangements to influence the weight to be given to the evidence. The section does require a judge to give him or herself such a direction when sitting without a jury and therefore I have given myself such a direction.
INADMISSIBLE THIRD INTERVIEW
As mentioned, the trial was adjourned on 26 April 2017 and did not resume until 11 September 2017.
On 1 September 2017 the matter was called on for a directions hearing on the application of the prosecution. Ms Gray advised that the DPP had been informed two weeks earlier that due to an administrative oversight Child Protection Service interviewers were not prescribed interviewers for the purposes of s74EB of the SOA. I directed the prosecution to file an affidavit from an appropriate person explaining the problem and set the matter down for further submissions.
The directions hearing resumed on 6 September 2017. The prosecution tendered an affidavit from Victoria Klaminski, Chief Executive Officer, of the Department for Health and Ageing (SA Health), sworn on 4 September 2017, in which she stated:
2Due to misunderstandings within SA Health regarding the operation of the amendments to the Summary Offences Act 1953 introduced by the Statutes Amendment (Vulnerable Witnesses) Act 2015 as they apply to Prescribed Interviewers which commenced operation on 1 July 2016, the approval of the Minister for Health was not sought with respect to any training course in conducting interviews with vulnerable witnesses for the purpose of regulation 20(1)(c) of the Summary Offences Regulations 2016 until 21 August 2017.
3The Minister for Health is not able under regulation 20(1)(a) of the Summary Offences Regulations 2016 to authorise any staff from the Child Protection Services within the Women’s and Children’s Local Health Network Inc. (Women’s and Children’s Hospital) or the Southern Adelaide Local Health Network Inc. (Flinders Medical Centre) either individually, or as a class, to be Prescribed Interviewees because these staff are employed under the Health Care Act 2008 and consequently although they are public sector employees they are not Public Service employees.
By reason of the oversight Ms Elliot was not a prescribed interviewer. In the result, the preconditions of admissibility under s31BA of the EA had not been satisfied in respect of LF’s third interview. Accordingly, I ruled inadmissible the third interview and any other evidence presented based only on the allegations made by LF in the third interview.[30]
[30] Transcript of hearing on 6 September 2017 pp 15-16.
On the hearing I heard submissions on the extent to which the admission of the third interview had contaminated other evidence presented at trial. In advance of the hearing the prosecution filed a written outline of submissions identifying the contaminated evidence. Defence counsel conceded that the prosecution had correctly identified the contaminated evidence.[31] I accept counsels’ submissions on this topic, subject to one matter to which I will refer in a moment.
Contamination of testimonial evidence
[31] Transcript of hearing on 6 September 2017 pp 8-11.
It is necessary to refer to the impact of the exclusion of the third interview on some of the allegations of sexual exploitation particularised in the information.
Particulars (i) and (j)
In the third interview LF made allegations that she had not made in the first and second interviews namely, that the accused licked her vagina on more than one occasion (particular (i));[32] and caused her to put her mouth on his penis on more than one occasion (particular (j)).[33] In consequence of the third interview becoming inadmissible the accused had no case to answer with respect to those two allegations.
Particular (k)
[32] Third interview pp 6-13, 16, 18-19, 21.
[33] Third interview pp 7,12, 13-14.
At trial LF and her grandmother CD gave evidence of the accused having kissed LF on her ‘open mouth’, as alleged in particular (k). The prosecution submitted that because this act had not been alleged by LF in her third interview the evidence given on this topic by LF and CD was admissible. Defence counsel did not challenge the correctness of the prosecution’s submission on this issue. Nor did I at the time. However, after giving the matter further consideration, I now rule that that the ‘open mouth kiss’ evidence given by LF and CD is inadmissible because there is, in my view, a real risk that their evidence in fact arose from statements made by LF in the third interview.
I turn to explain why I have reached that conclusion.
The kissing allegations made by LF during her interviews were as follows:
·The accused would take her into a bedroom in his house, pull down her pants and ‘would try and kiss [her]’ (first interview[34]);
·The accused ‘kissed [her] on the lips’ while at his home. After she ‘came out’ (presumably from a room) she told her nanna, who then said to the accused ‘why did you do that she’s only little?’[35]
[34] First interview p3.
[35] Third interview p7.
The evidence LF gave at trial in respect of kissing was confined to the following passage in cross-examination: [36]
QDid Hank ever kiss you with an open mouth? Yes or no?
AYes.
[36] TT 130.
The evidence given by CD was as follows. She said that there was an occasion when LF complained to her that Hank had stuck his tongue down LF’s throat and told her not to worry because it was just a kiss. CD said that the conversation took place in the hallway of the accused’s home at Salisbury North. CD testified that she then went into the lounge room with LF and confronted the accused in the presence of his wife. According to CD, LF repeated her complaint to Mrs Sears in the accused’s hearing. CD then ‘whacked’ the accused and said: ‘What the fuck do you think you are doing to [LF]? She is only a little girl’. The accused did not reply but gave a big smile.[37] The prosecution contended that the accused’s failure to deny LF’S allegation amounted to an implied admission that her allegation was true.
[37] TT 235-238.
On the hearing of 6 September 2017 the prosecution argued that the evidence given by LF and CD in relation to an ‘open mouth’ kiss was admissible because it was not based on what LF said in her third interview namely that the accused had kissed her on the lips. The prosecution submitted that the evidence was based on CD’s ‘open mouth’ kissing allegation which, it should be observed, was first made by CD in her second statement to police dated 11 April 2017.
In my view, there is a real risk that the allegation contained in CD’s second statement was made in response to her being asked by the officer who took the statement whether the accused had ever kissed LF, or something to that effect. Furthermore, there is a risk that such a question was asked only because LF had told police for the first time a few weeks earlier, in the third interview conducted on 17 March 2017, that the accused had kissed her. If that is the way CD’s allegations arose then it cannot be said that her allegations were not tainted by the contents of LF’s inadmissible third interview.
In the absence of evidence negating this possibility, I have decided to err on the side of caution and treat the open mouth kissing evidence given by LF and CD as inadmissible. The consequence of my decision is that there is no evidence to support the allegation contained in particular ‘k’. Accordingly, the only alleged acts of sexual exploitation particularised in the information to which I have had regard in considering my verdict are those set out in particulars (a)-(h).
Application for mistrial
Apart from the issue discussed above, the evidence presented at trial which had been contaminated by the third interview could be clearly identified. This was accepted by Ms Mansfield. Nevertheless, at the hearing conducted on 6 September 2017, Ms Mansfield applied for a mistrial on the basis that my consideration of the case had been compromised by the introduction of evidence inadmissible against, and prejudicial to, the accused.
I rejected Ms Mansfield’s application. The interests of justice required that the trial proceed. The undesirability of a young child being required to give evidence a second time is obvious. It was also in the interests of the accused, who had almost completed his evidence–in-chief, for the trial to go on. The fact that inadmissible allegations had been put before me did not warrant aborting the trial. In a case of trial by judge alone, the judge is expected when considering relevant evidence to have the capacity to ignore inadmissible evidence or put aside the prejudicial effect of admissible evidence. Indeed, it is primarily for that reason that defendants elect for trial by judge alone.
The following remarks of King CJ in Abrahamson v The Queen are germane:[38]
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. The learned judge in this case was quite able to discard any prejudicial effect of evidence of this kind and to focus on such probative weight as he considered that it properly bore. In my opinion therefore, the evidence was properly admitted.
[38] (1994) 63 SASR 139 at 143.
In considering my verdict I have carefully sifted through the evidence and ignored the evidence tainted by the third interview.
PROSECUTION CASE
Background
The following background facts were not in dispute.
LF was born on 29 September 2007. Her father and mother (FD) separated shortly before LF’s birth. FD already had a son (KF) from an earlier relationship. From the date of LF’s birth until September 2014, LF lived with her mother and stepbrother at Enfield. In 2012, when LF was five years of age, FD formed a relationship with OF (LF’s current stepfather). OF moved in to live with FD and her children. His relationship with FD produced a son (SF), who was born in 2014.
In 2012 LF attended reception at a school in Northfield. In 2013 she commenced a fresh reception year at the Good Shepherd School. In 2014 she was in year 1 at Good Shepherd. In September of that year, only a few weeks before LF turned seven years of age, LF and her family (except her stepbrother KF) moved to Queensland, where her stepfather had secured employment. KF remained in South Australia with his biological father. In May 2015, LF and her family returned to South Australia and resided with her maternal grandmother (CD) and grandfather (GD) at Wallaroo for about five months. They then commenced living at Northfield.
During the relevant period the accused lived with his wife June and their three sons Samuel, Liam and Benjamin (Benny) at Salisbury North. The accused and his wife also leased a plot at the Maslin Caravan Park upon which they had constructed a holiday shack annexed to a caravan. Throughout the period of the alleged offending, the accused was unemployed and received a Disability Support Pension.
In 2007, when LF was born, the accused was aged 39 years. Samuel, Liam and Benny were aged 11, 9 and 2 years, respectively. Each of the boys suffered from Attention Deficit Hyperactivity Disorder (ADHD), the relevance of which will become apparent later.[39]
[39] Accused TT 346-347.
For about 20 years the accused and his wife were close friends of LF’s grandmother, CD. The friendship continued until the accused was arrested in relation to the present matter. The accused and his family had known LF since she was born. From then until late 2015 they regularly saw LF. They often stayed with CD in her home at Wallaroo and, on some occasions, while LF was also staying there. Conversely, CD often stayed with the accused and his family at their Salisbury North home and Maslin Beach shack. On some of those occasions CD took LF with her. The accused also visited LF and her family at their former Enfield home.
On 14 December 2015 LF complained to her mother that she had been sexually abused by the accused.
On 19 December 2015 LF was interviewed by SC Horley (first interview). That evening Detective Sergeant (DS) Jessica Dickenson and other members of the Elizabeth Criminal Investigation Branch (CIB) attended and searched the accused’s home at Salisbury North. The accused was arrested and conveyed to the Elizabeth Police Station where he was charged.
As earlier stated, LF was further interviewed by SC Horley on 3 April 2016 (second interview).
Layout of relevant premises
Before discussing the evidence presented at trial in any detail, it is appropriate to broadly explain the layout of the complainant’s grandparents’ home at Wallaroo and the accused’s home at Salisbury North. For reasons which will become apparent later, it is not necessary to refer in any detail to the layout of LF’s home at Enfield or the accused’s holiday shack at Maslin Beach.
The accused’s home at Salisbury North originally contained three bedrooms, namely: a main bedroom occupied by the accused and his wife; and, two further bedrooms occupied by their sons.[40] In about 2004 Mr and Mrs Sears built an additional bedroom at the rear of the house which CD used whenever she stayed with them (‘the built on bedroom’).[41] The room was furnished with a Queen size double bed and other items of furniture.[42]
[40] See sketch floor plan of accused’s home drawn at Salisbury North drawn by Sergeant Allen at 9.30 pm on 19 December 2017 (Exhibit P7- tendered by consent).
[41] CD TT 205, 214.
[42] CD TT 216, 218
The door to CD’s bedroom was located in the lounge room. On the opposite side of the dining/lounge room, a hallway led to a door which provided access to a smaller hallway (‘the small hallway’). The doors to the other three bedrooms and the door to the laundry, bathroom and toilet (separate from one another) were located in the small hallway. The ‘main bedroom’ was occupied by the accused and his wife. The other two bedrooms were occupied by their sons.[43]
[43] CD TT 214.
The lounge room and the main bedroom each contained a television. There was a conflict in the evidence as to whether the television in the lounge room was connected to a DVD player. It was the case for the prosecution that the accused played pornographic DVDs to LF on the lounge room television. The defence contended that no such movies were played and that, in any event, there was no DVD player, or any other device capable of playing DVDs in the house at any relevant stage. The conflict will be discussed in more detail later.
CD’s home at Wallaroo contained four bedrooms.[44] The front door provided access to a hallway which ran down the centre of the house. There were two bedrooms on either side of the hallway. The first bedroom to the right of the front door, upon entering the house, was occupied by the accused and his family whenever they stayed over (‘the Sears bedroom’).[45] The room contained a double queen sized bed and a bunk bed which consisted of a double bed on the bottom and a single bed on top.[46] The next bedroom on the right was used by FD when she visited her mother and contained a Queen sized double bed and single bed (FD’s bedroom).[47] The first bedroom on the left side of the front door was occupied by CD (CD’s bedroom).[48] The second bedroom on the left was used as a storage or ‘junk’ room.[49]
[44] See sketch floor plan of CD’s home at Wallaroo drawn by her daughter FD on 12 April 2017 (Exhibit P13 –tendered by consent).
[45] FD TT 150; CD TT 210.
[46] FD TT 150-151; CD TT 211-212.
[47] FD TT 151; CD TT 210, 212.
[48] CD TT 211.
[49] FD TT 152.
The hallway led to the kitchen, the bathroom, the laundry and the lounge room. The lounge room was located at the very rear of the house contained a spa. The lounge room and each of the bedrooms contained a television connected to Foxtel.[50] The Sears bedroom and FD’s bedroom each contained a DVD player as well.[51]
[50] FD TT 245.
[51] FD TT 254-246.
COMPLAINANT’S EVIDENCE
Not surprisingly, having regard to LF’s age, the account she provided in each of the interviews conducted by SC Horley was not given in chronological order and, at times, lacked detail and context. I will refer to the contents of each interview separately and summarise the alleged acts of sexual exploitation by reference to the particulars in the information. I will also summarise LF’s allegations of uncharged misconduct on the part of the accused. In the course of canvassing the allegations I will refer to some relevant aspects of LF’s cross-examination.
First interview: 19 December 2015
The interview conducted by SC Horley commenced at 4.07pm and concluded at 5.16pm.
In the course of the interview LF alleged that she had been sexually abused by the accused on multiple occasions. Most of the alleged acts of sexual abuse she described fell within one or more of the categories of sexual exploitation particularised in the information. However, LF described other acts which amounted to ‘uncharged’ sexual acts. LF also alleged that the accused engaged in non-sexual acts, such as giving the child gifts, which the prosecution argued involved grooming her for sexual abuse.
Before I begin with the allegations referable to the acts sexual exploitation particularised in the information, it is appropriate to make the following general observations. During the interview, and after having described acts of the accused allegedly attempting to kiss her, putting her hand on his ‘willy’ and putting his ‘willy’ in her vagina, SC Horley asked when ‘it’ first happened and when ‘it’ last happened. LF said that it first happened when she was ‘really little, like four or something’ but added that she did not have a good memory.[52] She believed that the last time ‘it’ happened was when she was when she was ‘six or seven’.[53]
[52] First interview transcript p3.
[53] First interview transcript p6.
Unfortunately, SC Horley failed to ask LF what she was referring to when she used the word ‘it’. It is reasonable to infer from the balance of the allegations she made during the interview that she was probably referring to some form of sexual misconduct or what she perceived to be sexual misconduct. However, without particulars of what LF was referring to it is not possible to be satisfied beyond reasonable doubt that she was referring to an act constituting one of the alleged acts of sexual exploitation particularised in the information or that she was even referring to an act that in fact constituted an offence under the CLCA.
Charged conduct
I turn to the allegations of sexual misconduct referable to the particulars in the information. In canvassing the interview I will refer to relevant aspects of LF’s cross-examination.
LF described various forms of charged sexual acts having occurred at the accused’s home at Salisbury North but failed to describe any charged acts having occurred at any other location. The allegations which she alleged occurred at the accused’s home consisted of acts particularised in the information (a)-(f). No allegations were made by LF in respect of the accused having penetrated her anus with his penis (g) or finger (h).
Particular (a) - attempted kisses
The prosecution’s contention that the accused attempted to kiss LF on her mouth on more than one occasion is based exclusively on the following allegations made by LF in the first interview:
(i)LF said that when she was little, Nanna (CD) took her to Hank’s house and Nana would stay too. The accused would take her into the bedroom and ‘abuse [her] and try to pull down [her] pants and kiss [her]’. He told her not to tell anyone.[54]
(ii)When asked to give further details of the accused’s conduct, LF said that she was probably six when it occurred. LF said that the accused would bring her into the ‘bed’ and ‘try’ to kiss her on the lips.[55] LF described the bed as a king size or queen size bed which the accused and his wife slept in. She added: ‘It had a picture up, like Mary and Jesus, so Mary was that way and I think Jesus was that way’.[56]
(iii)LF said she believed the accused did that on two occasions, ‘when everyone’s in the lounge room’, ‘or when everyone’s outside’.[57]
[54] First interview transcript p3.
[55] First interview transcript p7.
[56] First interview transcript p7.
[57] First interview transcript p7-8
There was no evidence, independent of LF, as to whether or not there was a picture of Jesus Christ and the Virgin Mary in the main bedroom at the time of the alleged events. There were, however, several religious pictures, in the accused’s home when police searched and photographed the premises on 18 December 2015.[58] The pictures included one of Jesus Christ hanging on a wall in the entrance hallway and another picture possibly of the Virgin Mary, hanging on a wall in the accused’s lounge room. There was also evidence that the Sears sometimes re-arranged furniture and pictures within their home.[59] Indeed, the picture of Jesus Christ was not hanging in the hallway when family photographs were taken inside the Sears’ home on 13 April 2015.[60]
Particular (b)-watching pornography
[58] Exhibit P8 (photographs of accused’s home taken on 19 December 2015 by Brevett Sergeant Allen), photographs 2 and 3.
[59] J Sears TT 519.
[60] Exhibit P23 (Photographs taken on 13 April 2015) photograph 1.
The prosecution contended that on more than one occasion the accused committed an act of gross indecency by causing LF to watch pornographic DVD movies on a television in his lounge room at Salisbury North. This contention is based primarily on the following allegations made by LF in the first interview:
(i)LF said that sometimes when everyone was asleep the accused ‘would wake me up and then he would take me down to the lounge room and put on, like sex movies, people having sex’.[61] She believed that occurred ‘three times’.[62]
(ii)LF said that the movies were on a ‘disk’ which the accused obtained from a cabinet in the lounge room.[63] The sex movies were played ‘when everyone was like dead asleep like snoring and everything’. LF added that her Nanna snored. She said the accused would turn down the volume on the television.[64]
(iii)LF said the sex movies showed ‘[p]eople naked. Girls and boys having sex’. The people in the movies were ‘old like in their 20s with …men that’s 50 something’.[65] The disk had a ‘picture’ and some writing on it. However, LF could not remember the content of either.[66]
[61] First interview transcript p3.
[62] First interview transcript p9.
[63] First interview transcript p8.
[64] First interview transcript p8.
[65] First interview transcript p8.
[66] First interview transcript p9.
In cross-examination LF reiterated that the accused showed her sex movies or ‘sex tapes’ in the lounge room of his home. LF said that the accused was the only person to have shown her such movies and that she never saw pornographic movies at any other location.[67] She was not further cross-examined on this topic.
Particular (c) - penis touching
[67] TT 129, 130.
The prosecution case was that there were occasions at the accused’s Salisbury North home when he caused LF to touch his penis thus committing an offence of indecent assault or compelled sexual manipulation. This allegation is based entirely on the following statements made by LF in the first interview:
(i)LF said that when the accused put on sex movies he would pull down her knickers. Sometimes he also took off his pants and jocks and grabbed her wrist. He then got her to touch his ‘private part’ or ‘willy’ in a manner she described as ‘rubbing, wanking’. During the interview LF indicated TO SC Horley the location of the accused’s ‘willy’ by pointing to her own genital area.[68]
(ii)LF said that the act of rubbing the accused’s private part occurred ‘twice’.[69]
[68] First interview p4.
[69] First interview p11.
In cross-examination, LF maintained these allegations.
Particular (d) - rubbing body against LF’S body
The prosecution contended that there were occasions at the accused’s Salisbury North home when he rubbed his body against LF’s body. The contention is based solely on the following statements made by LF in the first interview:
(i)LF said that when the accused put on sex movies he would ‘lean’ her on the couch and lay on top of her. She could not move because he was heavier than her. He would then move up and down. She did not know what that was called when she was little but she now thinks it is called ‘humping’.[70] She said that this occurred ‘heaps of times’.[71]
(ii)LF said that on these occasions she was wearing a ‘nightie’ because sometimes she had to sleep at the accused’s home because Nanna was there.[72]
[71] First interview transcript p10.
[72] First interview transcript p 9.
As discussed below (see [ ]), LF alleged that there were occasions when the accused inserted his penis into her vagina. It is unclear from LF’s statements whether or not the acts of ‘humping’ occurred in the course of such acts of sexual intercourse. There is a clear risk that when LF described the accused ‘humping’, she was in fact referring to an act of sexual intercourse. No clarification was sought from LF on this issue in the second interview or when she gave evidence at trial.[73] In the circumstances, the prosecution has failed to establish that the acts of ‘humping’ and the acts of sexual intercourse were necessarily separate and distinct acts. For these reasons, I have not had regard to the alleged acts of ‘humping’ as discrete acts of sexual exploitation.
Particular (e)-penile penetration of LF’s vagina
[73] The only questioning that occurred on this topic consisted of the following passage in cross-examination (TT 130):
Q. Did Hank push himself on you and rub himself on you when he had clothes an and you didn’t ?
A. No.
Note: the question failed to properly address the allegation. LF had never alleged that the acts of ‘body rubbing’ or ‘humping’ occurred while the accused was wearing clothes and LF was naked.
The prosecution case that the accused had unlawful sexual intercourse with LF at his Salisbury North home by inserting his penis into her vagina was based exclusively on the following statements made by LF in the first interview.
(i)LF said, as earlier mentioned, that when the accused put on sex movies he sometimes got her to rub his ‘willy’. When asked ‘what happened next?’, LF replied ‘sometimes he would lay on top of me and…put his willy in my rude part’ which she proceeded to explain was her ‘vagina’. She added that she would ‘get really scared’.[74] LF said that the accused would also say to her ‘I love you’ and ‘don’t tell anyone or I’ll do it harder’.[75]
(ii)LF said that that the accused put his ‘willy’ in her vagina more than once. When asked if she could recall the last time that occurred, or a time she could clearly remember, LF admitted that she could not clearly remember but estimated that it las happened when she was about six or seven.[76]
(iii)LF said that she sometimes cried when the accused put his penis in her vagina and that when she did he would put his hand over her mouth to prevent anyone hearing her. She said that he would stop, and get off her when he heard ‘someone come’, and say to her ‘sshh’.[77]
[74] First interview transcript p 4; see also p 10.
[75] First interview transcript p 10.
[76] First interview transcript p 10.
[77] First interview transcript p 11.
The first of the passages summarised above [(i)], suggests that the act(s) of vaginal occurred in the lounge room of the accused home when he had shown her pornographic movies. As earlier discussed, LF said that that was the only room in the accused’s home where he showed her such movies. However, when the interview as a whole is examined it is far from clear that LF was necessarily asserting that the acts of vaginal intercourse occurred on the occasions when she was shown pornographic movies.
In cross-examination, LF confirmed that the accused had inserted his penis into her vagina. The evidence she gave in cross-examination was as follows:[78]
[78] TT 131-133.
QWhat part of your rude bit, what part of your vagina, did Hank put his rude bit in?
AIn the middle.
QAnd when you say 'in the middle', are you talking about in between the bits of skin, or did it go inside you?
AInside me.
QAre you sure that happened: yes or no.
AI'm sure, yes.
HIS HONOUR
Q[LF], can you describe - first of all, did you see Hank's willy when he did that?
ANo.
QWhat was happening at the time?
AWhat do you mean?
QWhereabouts were you: were you on a bed, on a floor, on a couch. Just tell me what was happening.
AOn a bed.
QAnd what position were you in.
AI was lying down.
QWere you lying on your tummy or on your back?
AOn my back.
QWhat did Hank do?
AHe pulled his pants down and then put his penis into my vagina, but he did it, but the covers were over his back.
QSo when you say he put his penis in your vagina, you couldn't see his penis?
ANo.
QBut you could feel something in your vagina, is that right?
AYes, yes.
QAnd what made you think it was his penis?
ABecause it couldn't have been his finger.
QWhy couldn't it have been his finger?
ABecause it was too big.
QDid that cause you any discomfort. Do you know what I mean by that?
ANo.
QDid it hurt you in any way?
AYes.
QHow did it hurt you?
AIt just didn't feel nice.
QBut did it cause you any pain, or is it simply the case that it just didn't feel nice.
AIt just didn't feel nice.
QAfterwards did you have any bleeding?
ANo.
QDid that happen once or more than once?
AMore than once.
QWhere you think he put his penis in your vagina.
APardon?
QDid it happen once or more than once when you think he put his penis in your vagina?
AMore than once.
QCan you tell us how old you were the first time it happened?
AI was five.
QAnd the last time.
AIn that same year.
QWhat, when you were five.
AYeah.
QHow many other times did it happen?
AProbably twice.
QNow, is that a guess or do you have a memory of it happening on another two occasions.
AA memory of another two occasions.
QAnd where did these things happen - and I'm talking about the times when he put his penis in your vagina.
AI don't remember the day.
QDo you know where it happened, whose house?
AYes.
QWhere.
AHis house.
In the above passage LF indicated that acts of vaginal intercourse occurred in a bed in the accused’s home. She was not asked to identify the room in which the bed was located. Taking into account LF’s first interview it is not clear whether the acts of vaginal intercourse occurred in the lounge room as well as the bed.
Particular (f) - touching LF’s vagina
The prosecution contended that, on occasions at his Salisbury North home, the accused indecently assaulted LF by touching her vagina. This contention is based on the following allegations made by LF in the first interview:
(i)LF said he would use his hands to rub her ‘private part’[79] or ‘minnie’ which she explained were expressions she used to describe her vagina.[80] She further said: ‘sometimes I would cross my legs really hard so he can’t do it’.[81]
(ii)LF said that when the accused touched her vagina she felt scared and wanted to tell people what he was doing and that she did not want ‘get hurt more’.[82] In cross-examination LF was asked whether there was any occasion when she suffered an ‘injury’. She proceeded to explain that when the accused rubbed her on the outside of her vagina ‘it really hurt’. She was asked ‘how far inside’ and replied: ‘probably just the second layer’. LF added ‘the pressure of his hand rubbing on the outside hurt my inside’.[83]
(iii)LF was asked in the first interview how she felt when the accused rubbed her Minnie with his hands and replied:[84]
I felt scared and I felt like I was being raped. But I wasn’t bleeding and I always thought when he did it to me, he did everything to me, like I, I would think that I am pregnant ‘COS …I asked mum when she did know, ‘could you get pregnant when you’re six or eight, mum?’ and well I think one time she said yes, but… And then one time when she knew, I asked her again and she said no, and I always thought it was because of my weight and…. (my underlining)
[79] First interview transcript p 11.
[80] First interview transcript p 12.
[81] First interview transcript p 12.
[82] First interview transcript p 11.
[83] TT 128.
[84] First interview transcript p 12.
The effect of LF’s answer, set out in (iii), is that she spoke to her mother twice about pregnancy. On the first occasion, her mother told her that she could pregnant at the age of 6-8 years but on the second occasion said that she could not get pregnant at that age. In relation to the underlined remarks, LF was not asked to explain what it was that her mother ‘knew’. In my view, it is likely that she was seeking to explain that the conversations took place at a time when her mother knew of LF’s allegations of sexual abuse.
LF was cross–examined in relation to her use of the word ‘raped’, in the answer quoted in (iii). LF said that she understood that the word meant that ‘it hurts’. She recalled hearing the word for the first time, sometime before the first interview, while she and her mother were watching a television show called ‘Dr Phil’.[85]
[85] TT 114.
In the following passage, LF described her recollection of the show:[86]
[86] TT 115.
QCould you tell us at all what you remember about this Dr Phil show being about and what was on that show?
AWell, that - this girl had been sexually assaulted and she didn't know that she's been raped and she thought she was sexually assaulted but she was raped and I think the - that the man got her pregnant.
QHow old was this girl?
A25.
QDid she describe at all exactly what the man did to her?
AYeah.
…
QWhat sort of things did she describe happening?
AShe said that he covered her mouth and he - he had, as I said, sexually assaulted her, but he did it hard, and it hurt her.
QOkay. Just one more question about words, you've used the words 'sexually assaulted'. Can you describe to us what you mean by that or what you understand that to be?
ASo assaulted - I think assaulted means that, just from saying that you've been punched in the face by someone you don't know, and the sexually means if they like - I can't really explain it.
QDid they give any more details on the Dr Phil show?
ANo.
Uncharged conduct
In addition to the alleged acts of sexual exploitation particularised in the information, LF asserted, in the first interview, that the accused engaged in other alleged misconduct not covered by the charge. In particular, LF alleged that on occasions the accused chased her around, put her over his shoulder and then looked at her ‘bum’.[87] She added that when he got her up on to his shoulders he blew ‘raspberries’ on her ‘belly’ while holding onto her legs.[88]
[87] First interview transcript p 13.
[88] First interview trasncript p 14.
However, LF described other conduct which, on the prosecution case, involved grooming her for sexual abuse and/or disclosed a prurient interest in the child.[89] In particular, LF said that the accused enjoyed buying her things such as dolls, games, books and lollies. She remarked to SC Horley: ‘I think he wants to get my trust’.[90] She also said that the accused told her that he used to change her nappies.[91]
[89] Prosecution closing address TT 540, 544.
[90] First interview transcript p 5.
[91] First interview transcript p 5.
LF further alleged that her nanna had told her that the accused had engaged in similar conduct with another girl (T) who lived ‘down the street’. In cross-examination LF reiterated that CD had spoken to her about T. She that CD told her that the accused would bath T and take her to the caravan park.[92] The hearsay rule excludes evidence of an out of court statement made by a person if the evidence is tendered to establish the truth of any fact or opinion asserted in the statement.[93] Accordingly, the statements allegedly made to LF by CD could not be used to prove the truth of the facts asserted in the statements. However, for reasons to be discussed later, the statements are relevant for a non-hearsay purpose.
Cessation of alleged abuse
[92] CD was not questioned as to whether she had any such conversation with LF.
[93] Subramanianv Public Prosecutor [1956] 1 WLR 965 at 969; Walton v R (1989) 166 CLR 283 at 288 (Mason CJ).
As earlier discussed, LF said that she believed that the last time ‘it’ happened was when she was when she was ‘six or seven’.[94] In the relevant passage LF went on to say that the accused, at some later stage, ‘tried to do it again’. However, she told him to stop or she would ‘tell nanna and June’.[95] LF said that, that occurred ‘probably last year [2014] when she was ‘seven or eight’.[96]
[94] First interview transcript p 6.
[95] First interview transcript p 6.
[96] First interview transcript p 6.
LF said that she last saw the accused when he dropped off some perfumes at her home. She did not specify which December she was referring to but there is no dispute that the accused delivered some perfumes to her home in December 2015.
Second interview: 3 April 2016
The interview conducted by SC Horley commenced at 5.08 pm and concluded at 6.35pm.
Notes
LF brought to the interview handwritten notes[97] in which she had recorded certain allegations. In cross-examination, LF said that she complied the notes sometime between the dates of the first and second interviews because her mother had suggested that she write down what she could recall.[98] Shortly after the second interview commenced, SC Horley asked LF to read out the notes. She replied:[99]
Yeah, so it says what “H” did to me, I didn’t write umm Hank I just did a ‘H’ dot dot dot. He did to me, he touched me at five (5) when I was like in Good Shepherd and tried to touch me at [Enfield address] and touched me at their house, nanna’s house, and the caravan park, I know he touched me for my whole life because umm he changed my nappy and he bathed me, so yeah, he used to buy me burger rings and put them on my fingers and he would make me eat them but I don’t like burger rings at all and I always had to have a bath with his son Benny and he would always wash me, umm at the caravan park he would wake me up in the middle of the night and bring me down …from the bunk bed and take me to the bottom bunk and his oldest son Samuel said to me while I was watching a cartoon he said if you pull down your pants I’ll pull down mine, and I said ‘No’ and I was four (4) then, umm umm ‘H [the accused]’ told me that if someone touched you I would hunt them down and he was the one touching me so yup. He would take me …and make me watch sex tapes and put his finger up my bum and it really hurt and I said stop and his son Liam would touch his willy and put his hand on me and put and ‘H’ put his willy up my bum, I don’t really I don’t really want to go to Nan’s because it happened at her house.
[97] The notes were not tendered at trial but were initially marked for identification but were subsequently admitted into evidence (Exhibit P9) by reason of Ms Mansfield cross-examining on the document.
[98] TT 116-117.
[99] Second interview transcript p 3.
LF continued the answer by recounting dreams that she had experienced:[100]
[A]nd these are some of the dreams I had, umm so one (1) time I was famous and I was on this road trip but them umm my …bus slowed down so I had to hide in this wood thing and it was a tree top and then then I just heard them I just heard their voice and their car pulling up and I was like what the ‘H’ and then then Benny the youngest he took down my thing and then umm Hank he he pushed me onto the road and then he started beating me up and then he just threw my bus in the trees and it was broken and then this my car came rolling down but it was like no one was controlling it but then it just stopped it was like it had a mine of its own to get to me and then he …broke that and then he… tried to choke me on the road and like his family was just looking at me and then yeah that’s it and my other one (1) was, I didn’t have this too long ago, about Friday I think and umm I cracked time and I went back and then I got my and then I bought my phone with me so if anything went wrong someone could use my time travel thing and come here and umm there was I went back in time and we were like small like that small and then umm you could just we opened this door and it was about humongous and then it was it wasn’t that hard to push actually and then you could just see me but this was scary because I was drugged and you could just see me like like drugged and looked like I was dead and he was just doing it to me and then I got my phone and just started videoing it and then the time travel went wrong and we went back in time to that same thing but he saw us and then it happened again and this time he grabbed us and threw us outside and then that was it and he became a monster.
[100] Second interview transcript pp 3-4.
I make the following observations about the first part of LF’s answer, as set out above. First, LF alleged that the accused tried to touch her at her Enfield home and touched her at the accused’s home at Salisbury North, CD’s home at Wallaroo and the caravan park at Maslin Beach whereas in the first interview LF specifically referred only to the accused’s home as a location where the offending had taken place.
Secondly, LF said, consistent with the first interview, that the accused showed her sex tapes (particular (b)). LF was not further questioned during the second interview about the circumstances in which this occurred. Nor was she further questioned about the allegations she had made in the first interview in respect of particulars (a), (c), (d), (e) and (f). The second interview focussed on fresh allegations made by LF that the accused had penetrated her anus with his penis (particular (g)) and finger (particular (h)).
Charged conduct: particulars (g) and (h)
The prosecution case in respect of the acts particularised in (g) and (h) is based solely on the following statements made by LF in the second interview.
First, LF said in the course of her answer quoted above:[101]
He would take me …and make me watch sex tapes and put his finger up my bum and it really hurt and I said stop …and ‘H’ put his willy up my bum , I don’t really want to go to Nan’s because it happened at her house…
[101] Second interview transcript p 3.
I should point out that, in the case of the accused, I have not used any of these lies as discrete lies probative of guilt; in other words, as implied admissions of guilt. The extent of the significance of his lies is that they reflect adversely on his credibility and reliability.[295]
[295] See Edwards v R (1993) 178 CLR 193.
Of course, mere rejection of the accused as a witness of truth does not equate to proof of guilt. The prosecution must prove his guilt beyond a reasonable doubt on the basis of the evidence which the trier of fact does accept. As the High Court said in Douglass v The Queen:[296]
The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant. It is not enough that the accused’s evidence was rejected. Even if the judge was not persuaded by the appellant’s evidence, he could not convict the accused unless satisfied that it was not reasonably true.
[296] [2002] HCA 34.
Prosecution witnesses (other than LF): credibility and reliability
There was no dispute about the credibility and reliability of Dr Tee and the police officers who gave evidence. The only challenge to the police officers related to whether there was a DVD or similar device in the accused’s home. As I have indicated I am satisfied that their evidence was correct. I am also satisfied that CD, GD, FD and JF were honest witnesses and gave substantially accurate evidence except where I have already indicated.
Complainant: credibility and reliability
Warnings
LF was the key witness for the prosecution. The accused could not be found guilty of the charge unless I accepted her evidence beyond reasonable doubt. I have already indicated that I have reminded myself as to the reasons why LF’s interview evidence was unsworn and warned myself of the need for caution in determining whether to accept the interview evidence and the weight to be given to it.
In addition, I bear in mind that LF is a young child. The law does not regard the evidence of children as inherently less credible or reliable than the evidence of adults.[297] However, I have warned myself to carefully scrutinise LF’s evidence (interviews and testimony at trial) and not to act on it unless completely satisfied of its truth and accuracy. I have examined her evidence with special care.
[297] See s12A(2) Evidence Act 1929 (SA).
Forensic disadvantage
Section 34CB (1) of the EA abolishes a trial judge’s common law duty to give a Longman[298] warning. However, where the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a ‘significant forensic disadvantage’ to the accused, the trial judge must: (a) explain to the jury the nature of the forensic disadvantage; and, (b) direct that the jury must take the forensic disadvantage into account that when scrutinising the evidence (s 34CB(2)).
[298] Longman v The Queen (1989) 168 CLR 79.
The section is expressed in terms which suggest that it is not intended to apply to a judge sitting without a jury. However, the existence of circumstances that would give rise to the obligation to give a warning to a jury may also be relevant to an assessment of evidence by a trial judge sitting without a jury.[299] In my view, it is appropriate to have regard to the forensic disadvantages that confronted the accused in this case. I do not regard them as insignificant.
[299] R v Bakhuis (2012) 112 SASR 536 at 547-8 [58].
It is unclear on LF’s evidence as to when the accused’s alleged offending came to an end. However, it is reasonably possible that it stopped some time during 2014 some 12 months before she complained to her mother. A delay of 12 months is not long in comparison to many sexual cases that come before the courts. However, it is necessary to bear in mind that some of the offending of which she complained took place when she was four years of age or possibly younger.
Furthermore, most of LF’s allegations lack detail and context. It must be acknowledged that the accused has been hampered by a loss of chance to explore the circumstances of the individual acts of offending (charged and uncharged) the subject of LF’s evidence; to identify the occasions of the alleged offending; to make any defence other than a simple denial; and to test the events that may have affected LF’s recollection or reliability. Furthermore, a complaint proximate to the allegations of anal and vaginal penetration may have resulted in a medical examination that could throw more light on whether or not such acts had been performed.
Such factors are common to many cases involving charges of persistent sexual exploitation of a child. It is clear that Parliament considered that the existence of such factors should not be an automatic bar to a conviction under s 50(1). However, that policy does not derogate from a judge’s obligation to take into account forensic disadvantages suffered by an accused person. In accordance with that obligation I have taken into account the factors of forensic disadvantage to which I have referred.
Motive to lie
Ms Mansfield submitted that it was reasonably possible that LF’s allegations against Mr Sears were fabricated or the unwitting product of dreams or a creative imagination. No specific motive to lie was asserted by Ms Mansfield although the accused had alleged that he refused to give LF $200.
I have found that what the accused said on that point was untrue. Of course, there is no onus on the accused to prove that LF had a reason for making false allegations against him. Furthermore my rejection of that one possible motive does not make LF’s evidence any more credible.[300] There may of course be many reasons for a false complaint.[301]
[300] Palmer v R (1998) 193 CLR 1; R v N [2004] SASC 409.
[301] R v Van Der Zyden (2012) 261 FLR 419.
Assessment of LF
Overview
I turn to my assessment of LF. I was impressed by LF. She was a pleasant, intelligent and gave her evidence in a straight forward manner. There was no hint of prevarication or exaggeration on her part. Her descriptions of the sexual acts performed on her by the accused rang true, for example the sensation she experienced as a result of anal penetration. She had received no sex education from her mother. Her knowledge of sexual matters as disclosed in her interviews with SC Horley is consistent with her having been exposed to sexual acts of the kind she described. The possibility that she may have picked up information about such acts from other sources cannot be dismissed but the possibility seems remote.
Furthermore, LF performed well under cross-examination. She did not deviate from her allegations. Her evidence was substantially consistent with the content of her interviews which, I note, were carefully conducted in the sense that LF’s answers were invariably elicited with non-leading questions. The questioning by SC Horley was impeccable in that regard.
Importantly, LF’s evidence on various matters was supported by evidence from other witnesses who I have found to be credible and reliable. They supported her on matters in respect of which I have found that the accused and his wife have lied. In short, I believed LF. I am satisfied beyond reasonable doubt that LF gave a truthful account. She also gave a substantially reliable account except for allegations of penile penetration which I believe she may have been mistaken about.
Criticisms
Before I turn to my findings in relation to the individual acts of sexual exploitation particularised in the information, it is appropriate to discuss the principal criticisms of LF’s evidence put to me by Defence Counsel and several additional matters.
First, Ms Mansfield submitted that while LF’s evidence identified the commission of acts amounting to sexual offences it was difficult to identify them by time, date and circumstances. I accept that many of her allegations were of a general nature and sometimes it was difficult to determine whether she was talking about one or more of a particular type of act having occurred. However, I was satisfied that the accused committed the types of offences except as I have mentioned the acts allegedly involving penile penetration.
Mr Mansfield also argued that some of LF’s statements suggested that she was repeating what other people had discussed with her prior to being interviewed by SC Horley. In particular, Ms Mansfield stressed the following statements made by LF:
·First interview (p5) – ‘he likes to buy me things. I think he wants to get my trust
·First interview (p5) -‘Why is he buying me stuff? I think that was like he might try to make me think, like, I can trust him’.
·Second interview (p9) -‘he bought me trips and treats and like he would tickle my leg to get my trust’.
Ms Mansfield argued that those comments by LF about the accused trying to gain her trust were too sophisticated for a child of her age. She submitted that LF may have learned that expression from discussing the case with members of her family say her mother or grandmother. It should be observed that CD, FD and GD were not cross-examined as to whether there were any discussions between them and LF which might have caused LF to make those remarks to the police.
I followed up this point with Ms Mansfield during her closing address:[302]
[302] TT 582-583.
In my submission, you might think that at that age children regard relationships in terms of liking people, not liking people, having friends, having people who are not their friends, but these deeper issues of the question of another individual obtaining or attempting to obtain their trust is perhaps a little more sophisticated than you might expect coming from a child of that age if this was a spontaneous account of them speaking only of their own thoughts and observations of their relationship with Mr Sears.
HIS HONOUR: So, what are you suggesting?
MS MANSFIELD: I suggest your Honour might think that it indicates that what she is recounting in terms of her relationship with Mr Sears and his, for example, taking her shopping at garage sales and everything, does not arise solely from her observation but might indicate that there has been some discussion of that topic with others who might have introduced to her the idea of him attempting to gain her trust. I don't take it any further than that.
HIS HONOUR: You have raised that as a possibility. Did you question her about that, as to why she used that expression?
MS MANSFIELD: I didn't question her on that exact expression, no.
HIS HONOUR: Did you question her as to whether her mother, her grandmother, or anyone else may have contaminated her mind with thoughts of their own?
MS MANSFIELD: There was questions certainly regarding her grandmother and she gave an account that she hadn't discussed sexual matters with her grandmother.
In terms of her mother, I don't think it has ever been explicitly put to her that sexual matters have been contaminated by conversations with other members of her family, no.
HIS HONOUR: If this is a possibility that you are asking me to seriously consider, should that have been put to [LF] and her family?
MS MANSFIELD: Yes. I don't suggest there has been contamination in terms of the sexual allegations themselves.
HIS HONOUR: I want to be clear about what you are saying. You are saying that the expression 'get my trust' implies that she has had discussions with someone and they have planted in her mind the concept of trust and its importance, is that what you are saying?
MS MANSFIELD: I was but only in terms of the surrounding relationship and the idea that someone might have been trying to get her trust. I certainly don't make any suggestion that there has been any active contamination by anyone in terms of the sexual allegations.
In my view it would not be surprising, and indeed it would have been quite natural, for LF’s mother to have spoken to her about the accused’s alleged conduct before and after each of the interviews with SC Horley. In the course of such discussions she may have queried or suggested that the accused may have done things to gain LF’s trust. But it does not follow that any such discussions would have contaminated the LF’s account of the alleged offending. Indeed, as I understood Ms Mansfield’s submission above she expressly disavowed any reliance on such an argument. In any event, I am satisfied that there was no such contamination.
Ms Mansfield also submitted that LF may have unwittingly alleged against the accused sexual acts which she had dreamed. Ms Mansfield sought to gain support for this submission from the statements that LF made shortly after the second interview commenced in which she described nightmares that she had had about the accused. I am satisfied beyond reasonable doubt that none of LF’s sexual allegations were the product of dreams. Interestingly, the dreams LF recounted to SC Horley did not involve the accused sexually interfering with her in any way.
Ms Mansfield also contended that LF is a child with a fertile imagination who had the ability to fabricate the allegations made against the accused. She said that evidence of her fertile imagination can be found in her referring to the accused in the second interview as ‘snake attack’ and saying he was like ‘the devil’. These comments by LF do not cause me to doubt that she was a truthful witness.
Additional allegations
A matter that I have carefully considered in evaluating LF’s honesty is the fact that she first made allegations of anal penetration in the second interview. LF was not questioned at trial as to why she had failed to previously refer to those acts.
I am satisfied that her allegations in the second interview were not a recent invention. In my view, there are several possible innocent explanations namely:
·First, she first recalled them some time after the first interview.
·Secondly, that she had always remembered that she had been anally penetrated but failed to mention the acts in the first interview because she was too embarrassed.
·Thirdly, that she failed to mention the anal acts in the first interview because of the manner in which the interview unfolded. After being invited to tell SC Horley about her being abused,[303] LF proceeded to tell him about various sexual acts. The questions and answers naturally focussed on those acts.
[303] First interview transcript p 2.
Towards the end of the interview SC Horley asked LF if there was anything else that she wanted to tell him. She proceeded to tell him how the accused would lift her onto his shoulders and blow raspberries etc. The officer then indicated that he would terminate the interview but give her an opportunity to speak to him later if there was anything further that she wanted to raise.
QWe’ve obviously talked about a lot of things today.
AYes
QWe can talk again
AOkay
QIf there is something else that you, you want to tell me, just let your mum know that you want to tell me something and mum can give me a call.
…
Q[I]f you remember something we can make, make a time to talk again, but is there anything else that …you want to talk about today?
AM’mm
QNo? Okay
The answer ‘m’mm’ was followed by a pause which suggests that there may have been something else that LF wanted to speak about but she decided against disclosing it. Be that as it may, the manner in which the interview came to an end is consistent with LF declining to disclose acts of anal penetration at that time because she knew that she could talk about them later if she chose.
It should also be remembered that during the first interview when LF said that the accused did ‘it’ to her, or words to that effect. In relation to one or more of those answers was she in fact referring to an act of anal penetration. As I have pointed out LF was never asked to explain what she meant when she used the word ‘it’.
Whatever, might be the explanation for the failure to mention the acts of anal penetration in the first interview I am satisfied that her allegations in that regard were not a dishonest fabrication.
Brazen behaviour
It must be accepted that there was an element of brazenness in the accused sexually abusing LF in the houses at Wallaroo and Salisbury North, when there were other people inside the house at the time; for example, interfering with LF in the Sears’ bedroom at Wallaroo while other people were in the lounge room watching television or lifting LF out his bed, while Mrs Sears was asleep, and taking her into the lounge room to show her pornography and sexually interfere with her. However, the remarks of Doyle CJ in R v Corrigan[304] should be borne in mind:[305]
In my opinion the Court must be careful when considering a submission that the circumstances of the offence are inherently unlikely or improbable. In the nature of things, the jury, and a court of appeal subsequently are required to consider conduct that, if it did occur, is abnormal and unusual. In my opinion it is wrong to approach the assessment of the evidence in such a case on the basis that a person who commits an offence, such as that which K alleged, would commit an offence only in circumstances that suggested a carefully planned event, involving little risk of detection. The Court cannot fully understand the thinking of a person who would commit an offence such as this, nor is it easy to assess the effect upon a person of a strong desire to commit an offence such as that alleged here. Moreover, it is an unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think an attempt to commit the offence would be unlikely because of the risk of detection.
This does not mean that the jury, or the Court on appeal, is to suspend judgment and to consider the facts on the basis that anything is possible or plausible. But, on the other hand, the Court should be careful before it treats evidence of a sexual offence as inherently implausible because the Court would not have expected the offender to commit the offence in the circumstances described.
[304] (1998) 74 SASR 545.
[305] (1998) 74 SASR 545 at 468.
Furthermore, it should be remembered that on LF’s evidence, when the accused made her watch pornography at night, the other people in the house were ‘dead asleep’. This is not surprising. I have already pointed out that CD took sleeping tablets and pain killers. Each of the Sears children were administered medication each night for their ADHD which included drugs to help them sleep.[306] Mrs Sears took anti-depressant medication and medication for high blood pressure. She denied taking sleeping tablets but regularly took pain medication in the form of Panadeine Forte for a knee problem.[307] It is also reasonable to infer that it would have been very tiring for Mrs Sears to care for three boys with ADHD. I do not regard it as improbable that Mrs Sears and the other occupants of the house may have slept through the accused’s nocturnal misconduct either at Salisbury North or Wallaroo.
[306] Accused TT 423-424; J Sears TT 500-501.
[307] J Sears TT 499.
Before I leave matters relating to LF’s credibility and reliability it is necessary to say a few words about evidence concerning scars on the accused’s body. The accused testified that when he was three years of age he sustained burns in a fire that left scars on his right leg, on both arms below the elbows, around his ‘belt line’ and a ‘little bit on his face’.[308] He said there were no burns on any other part of his body including, by implication, his genitals.
[308] Accused TT 345-346.
LF gave similar evidence in the first interview about the accused’s burns. She said that he had some burns on his face and legs and indicated on the audio-visual record that he also had burns on his arms.[309] She also commented that he had ‘black feet’. In cross-examination LF explained that she was not suggesting that his feet had been burnt but rather that his feet were dirty. She said that she also thought that he had some burns on his chest and one finger but was not sure. She could not remember him having burns anywhere else on his body.[310]
[309] First interview transcript p 11.
[310] LF TT 111.
In examination-in-chief of FD, the prosecutor elicited from the witness that she had a conversation with LF the day after her first interview and that she said that the accused had been ‘burnt on his rude parts and also on top of his thigh’.[311]
[311] FD TT 185.
I queried with counsel the admissibility of LF’s alleged out of court statement. I was informed by Ms Gray that the evidence was adduced as a result of an agreement she had reached with Ms Mansfield to presumably establish a prior inconsistent statement.
This was an unconventional and unsatisfactory way of establishing a prior inconsistent statement. If the defence wanted to establish that LF made a prior inconsistent statement to her mother then it should have complied with the requirements of s 28 of the EA. It is mandatory that before a witness may be contradicted he or she must be given an appropriate opportunity to say whether he or she made the statement. LF was denied that opportunity.
Furthermore, if it is assumed that she made the statement described by FD what does it mean? Did she see a mark on the accused’s penis or did someone tell her that he had a burn on his penis? Did he jokingly tell her that he had a burn mark there? If she did see a mark what made her think it was a burn mark? What was its size and location? Might the accused have some mark on his penis which she mistakenly interpreted to be a burn mark? Might she have interpreted the colour of his erect penis as a burn?
These issues could not be explored because of the unfortunate way in which this evidence was put before the court. The evidence does not cause me to doubt the truthfulness and reliability of LF’s evidence. I note that by the end of the trial the ‘burn mark’ issue had apparently receded into insignificance on the defence case because it was not mentioned at all in defence counsel’s closing address.
Findings regarding sexual allegations
Before I set out my findings in relation to each category of acts of sexual exploitation alleged against the accused, it is appropriate to discuss what use if any can be made of the uncharged acts.
Uncharged acts
For evidence of uncharged acts to be admissible in a sexual case it is not sufficient for the prosecution to assert that it is relevant to show the nature of the relationship that existed between the accused person and the alleged victim. The evidence must have a specific relevance to an issue in the trial.[312]
[312] See Gipp v The Queen (1998) 194 CLR 106 at [11]-[13] (Gaudron J); R v Nieterink (1999) 76 SASR 56 at [45] (Doyle CJ).
Depending on the issues in a case, evidence of uncharged sexual abuse has a number of potential uses. The evidence may be relevant, for example: to demonstrate that the defendant has a sexual interest in a child; to enable the trier of fact to understand that the charged incident did not ‘come out of the blue’; to explain how the victim might have come to submit to the first charged act; and, to assist in understanding why the victim might not have earlier complained about the charged incidents.[313]
[313] Gipp v The Queen (1998) 194 CLR 106; Roach v The Queen (2011) 85 ALJR 558; R v Nieterink (1999) 76 SASR 56 at [41] (Doyle CJ); R v MJJ (2013) 117 SASR 81 at [139] Gray J.
In the present case, while I accept that LF was a truthful witness, I am not satisfied that the uncharged acts are relevant or have sufficient probative value to justify their admission into evidence. First, in the interviews conducted by SC Horley, LF said on several occasions that the accused ‘did it to her’ or words to that effect. She did not explain, and was not asked to explain, the nature of the acts the accused performed. The evidence is so vague that it is not possible to determine the nature of the sexual offence or whether it was even a sexual offence. Furthermore, even if it was sexual in nature, the lack of detail and context makes it impossible to identify a potential use i.e. ground of relevance.
LF alleged with a little more specificity other uncharged acts. LF said that the accused put her on his shoulders and looked at her bum and blew raspberries on her belly. There is no evidence as to how old she was or whether anyone was present when these things occurred. The evidence is not inconsistent with the accused picking up LF when she was a toddler and blowing raspberries on her stomach in the presence of her mother or grandmother. I do not regard such conduct as necessarily demonstrative of a sexual interest in the child. In relation to her allegation that the accused ‘looked at her bum’ there is no evidence as to whether she was dressed at the time, the context in which this occurred or how she was able to say that the accused was looking at her bottom. Did she assume that he was looking at her bottom because he had hoisted her above his shoulders?
LF said that at Enfield the accused touched her legs and did ‘it’ to her. I have already commented on the inadequacy of the expression ‘it’. In relation to the allegation that the accused touched her legs LF was not asked to explain how or where he touched her on the legs or the context in which that occurred. The evidence is too vague to identify a ground of relevance.
In summary, none of the allegations of what I have referred to as uncharged acts were of any assistance in determining whether or not the accused was guilty of the charged offence. I have discarded the evidence of uncharged acts. I have not used the evidence for any purpose adverse to the accused or for any purpose, whatsoever.
Particular (a) - attempting to kiss her on the mouth on more than one occasion
This contention is based on LF’s statements in the first interview that the accused would ‘try to pull down [her] pants and kiss [her]’ and that he would bring her into the ‘bed’ and ‘try’ to kiss her on the lips.[314] LF estimated that this conduct happened on two occasions.
[314] First interview transcript p 7.
I accept that the accused engaged in conduct which LF interpreted as the accused ‘trying’ to kiss her. The issue, however, is whether the accused intentionally attempted to kiss LF on the lips by the performance of acts which if they had not been interrupted either by the accused voluntarily desisting or by some other cause would have resulted in the accused kissing her in circumstances of indecency.
There is no evidence from LF of what acts the accused performed which caused her to think that he ‘tried’ to kiss her. Plainly, LF’s description is consistent with the accused having engaged in conduct which in law amounted to an attempt to kiss her; for example by placing his lips close to hers and then pulling away because he heard someone coming. However, LF’s description is not necessarily inconsistent with conduct falling short of an attempt in law to kiss her on the lips. The accused may have merely said or motioned that he wanted to kiss her or engaged in some other form of conduct falling short of an actual attempt in that regard.
While I accept that LF genuinely believed that the accused was ‘trying’ to kiss her, in the absence of evidence of what he in fact did, it is not possible to be satisfied beyond reasonable doubt that his conduct in law constituted an attempt in that regard.
Particular (b) - causing LF to watch pornography on more than one occasion
I am satisfied beyond reasonable doubt that the accused committed acts of gross indecency contrary to s 58 of the CLCA by intentionally showing LF pornographic movies in the lounge room of his home on more than one occasion as alleged by LF. Playing ‘adult pornography’ to consenting adults may not be regarded as contrary to contemporary standards of modesty and privacy. However, there is no doubt in my mind that ordinary right thinking members of the community would regard the playing of such material to young children as offensive and depraved. His conduct was grossly indecent.
Particular (c) - causing LF to touch his penis on more than one occasion
I am satisfied beyond reasonable doubt that the accused on more than one occasion caused LF to touch or rub his ‘willy’ or ‘private part’ in the manner she described i.e. ‘rubbing’ or ‘wanking’. I am satisfied that in using the expressions ‘willy’ and ‘private part’ L was referring to the accused’s penis.
The accused’s conduct constituted an indecent assault contrary to s 56 of the CLCA because he intentionally applied force against LF (taking hold of her wrist or hand) in circumstances that ordinary right thinking members of the community would regard as indecent having regard to contemporary standards of morality (putting her hand on his penis).
Particular (d) - rubbing his body on her body on more than one occasion
I have discarded this particular as a relevant consideration, for reasons previously expressed.
Particular (e) - inserting his penis into her vagina on more than one occasion
I am satisfied beyond reasonable doubt that the accused had unlawful sexual intercourse with LF on more than one occasion, contrary to s 48 of the CLCA, by penetrating her vagina or labia majora with a part of his body. However, I am not satisfied, to the requisite degree, that he used his penis. I find that he is more likely to have used his finger for the following reasons.
LF’s allegation that the accused inserted his ‘willy’ or penis into her ‘minnie’ or vagina was based on statements she made in the first interview and further evidence given in cross-examination. In cross-examination LF said that the accused ‘pulled his pants down and then put his penis into [her] vagina... but the covers were over his back’. She said that while she was lying on her back, the accused ‘would put his penis in my vagina’. LF conceded that she did not see the accused’s penis when he performed the acts of vaginal penetration but believed it must have used his penis ‘because it was too big’ to be his finger.
This evidence does not persuade me that the accused necessarily put his penis rather than a finger into her labia majora. Having regard to LF’s tender age, and lack of sexual experience, it is reasonably possible that the accused used his finger rather than his penis. It is true that LF said that the accused pulled down his pants but that also might be an assumption on her part. In other words, when the accused had the covers over him that he lowered his pants in order to have penile intercourse.
I also take into account that when asked if the act of penetration hurt, LF did not say that it did rather she replied ‘it just didn’t feel nice’. She also said that she never experienced any bleeding after the acts of sexual intercourse. Dr Tee said that if there had been penile penetration of LF’s vagina it would have resulted in damage to her hymen though that damage could have healed to such an extent that she would not have been able to detect it when she examined LF. However, Dr Tee further said that if subjected to penile penetration (beyond the hymen) she would have expected there to have been some bleeding. LF never noticed any bleeding and apparently never complained to her mother of genital blood loss.
For these reasons, I am satisfied beyond reasonable doubt that on the occasions when LF said she was subjected to acts of penile penetration that she was in fact the victim of unlawful sexual intercourse, however, it is more likely that the accused used his finger than his penis. Of course, for the purposes of the offence of persistent sexual exploitation, it does not matter that the subject acts were digital rather than penile.
Particular (f) - touching her vagina on more than one occasion
I am satisfied beyond reasonable doubt that the accused indecently assaulted LF on more than one occasion, contrary to s 48 of the CLCA, by intentionally touching or rubbing the outside of her ‘minnie’ or vagina with his hands as LF alleged. Such conduct performed on a minor is obviously a contravention of standards of morality.
Particular (g) -inserting his penis into her anus on more than one occasion
I am satisfied beyond reasonable doubt that the accused had unlawful sexual intercourse with LF on more than one occasion, contrary to s 48 of the CLCA, by penetrating her anus with a part of his body. However, I am not satisfied that he used his penis on the occasions described by her. In my view, it is reasonably possible that he used his finger. In cross-examination LF conceded that she did not see the accused’s penis on any of the relevant occasions and, once again, assumed that he used his penis ‘because it was too big’ to be his finger.
Particular (h) -inserting his finger into her anus on more than one occasion
I am satisfied beyond reasonable doubt that the accused had unlawful sexual intercourse with LF, contrary to s 48 of the CLCA, by inserting his finger into her anus on more than one occasion as she alleged.
Particulars (i) (j) and (k)
For reasons previously indicated, the accused had no case to answer in respect to each of these allegations.
Conclusion
The prosecution has proved beyond a reasonable doubt that the accused, an adult, has committed more than one act of sexual exploitation against a particular child under the age of 17 years. I am satisfied that that the acts of sexual exploitation must have been committed over a period of not less than three days. Indeed, I am satisfied beyond a reasonable doubt that the offending commenced when LF was about 4 years of age and continued until at least some time before LF went to Queensland to live in September 2014, at which stage was almost 7 years of age. Accordingly all of the elements of the charged offence have been established.
Verdict
I find the accused guilty of the offence of persistent sexual exploitation of a child.
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