R v Sica
[2013] QDC 39
•08 March 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Sica [2013] QDC 39
PARTIES:
R
v
Massimo Sica
FILE NO/S:
692/2010
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
08 March 2013
DELIVERED AT:
Brisbane
HEARING DATE:
12,14,19-22 November 2012; 4-8,11-15,18,20,22,25 February 2013
JUDGE:
Shanahan DCJ
ORDER:
Verdicts of not guilty on each count. Accused discharged
CATCHWORDS:
COUNSEL:
Mr T Fuller SC for the prosecution
Mr S DiCarlo for the accused
SOLICITORS:
Director of Public Prosecutions (QLD)
Howden Saggers Solicitors for the accused
The accused is charged with 21 counts of sexual offences alleged to have been committed against the one complainant. On 18 October 2012 it was ordered that the trial be a “no jury trial”.
As these reasons are to be published, I will refer to the complainant as Ms A. Two of her relatives, her mother and her aunt gave evidence on the trial. I will refer to them as Ms B and Ms C respectively. There were also a number of preliminary complaint witnesses who were children. I will refer to them with letters as well.
The charges
The charges on the indictment are:
1. that between the 15th day of November 2004 and the 10th day of September 2008 at Brisbane in the State of Queensland, Massimo Sica, being an adult, maintained and unlawful relationship of a sexual nature with A, a child under 16 years.
2. that on a date unknown between the 15th day of November 2004 and the 26th day of April 2005 at Brisbane in the State of Queensland, Massimo Sica raped A.
3. that on a date unknown between the 19th day of October 2005 and the 26th Day of April 2007 at Brisbane in the State of Queensland, Massimo Sica raped A.
4. that on a date unknown between the 17th day of April 2006 and the 26th day of April 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
5. that on a date unknown between the 31st day of December 2006 and the 1st day of January 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
6. that on a date unknown between the 31st day of December 2006 and the 1st day of January 2008 at Brisbane in the State in Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
7. that on a date unknown between the 15th day of November 2004 and the 10th day of September 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
8. that on a date unknown between the 15th day of November 2004 and the 10th day of September 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
9. that on a date unknown between the 16th day of April 2007 and the 1st day of September 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
10. that on a date unknown between the 16th day of April 2007 and the 1st day of September 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
11. that on a date unknown between the 16th day of April 2007 and the 1st day of September 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
12. that on a date unknown between the 16th day of April 2007 and the 1st day of September 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
13. that on about the 26th day of April 2007 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
14. that on a date unknown between the 31st day of December 2007 and the 1st day of February 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
15. that on a date unknown between the 31st day of December 2007 and the 1st day of February 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
16. that on a date unknown between the 31st day of December 2007 and the 1st day of February 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
17. that on a date unknown between the 31st day of March 2008 and the 1st day of May 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
18. that on a date unknown between the 31st day of March 2008 and the 1st day of May 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
19. that on a date unknown between the between the 31st day of December 2007 and the 10th Day of December 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
20. that on a date unknown between the 31st day of December 2007 and the 10th day of September 2008 at Brisbane in the State of Queensland, Massimo Sica unlawfully and indecently dealt with A, a child under 16 years.
21. that on a date unknown between the 31st day of December 2007 and the 10th day of September 2008 at Brisbane in the State of Queensland, Massimo Sica had unlawful carnal knowledge of A, a child under 16 years.
The particulars in relation to count 1 (exhibit AA) are that the complainant alleges that the accused started touching her about 2-3 weeks after she moved to Brisbane with her mother towards the end of 2004. The accused engaged in sexual activity with the complainant (penile and digital penetration as well as oral sex and the use of a vibrator) on multiple occasions at various locations from late 2004 to early 2008. It happened mostly once a week but sometimes twice a week.
Count 2 concerns an allegation of digital penetration. This allegedly occurred in the accused brother’s room of the family home (“The Hug Time”). The interviewing police gave a name to each incident for ease of reference.
Count 3 involved an allegation of penile penetration at an address in Ferricks Street, Stafford Heights at night time (“The Ferricks Street Time”).
Count 4 involves an allegation of penile penetration at night time at a “grassy hill” somewhere off South Pine Road, Everton Hills (“The Hill Time”).
Counts 5 and 6 involve allegations of penile penetration and oral sex performed upon the accused in a park somewhere along South Pine Road at night time (“The Bushy Area Time”).
Counts 7 and 8 involve allegations of penile penetration and oral sex upon the accused on a park bench at night time somewhere in Ashgrove (“The Bench Time”).
Counts 9 to 12 inclusive involve allegations of penile penetration, digital penetration, masturbation of the accused and oral sex performed upon the complainant in the shower and in the “computer room” in the family home (“The Shower/Computer Time”).
Count 13 involves an allegation of penile penetration in the accused parents master bedroom at the family home (“The 12th Birthday Time”).
Count 14 involves an allegation of oral sex upon the accused in a downstairs room of the family home (“The Can Time”).
Counts 15 and 16 involve allegations of the insertion of a vibrator in to the complainant’s vagina and penile penetration in a bedroom at the family home (“The Nanango Time”).
Counts 17 and 18 involve allegations of penile penetration and masturbation of the accused in the room between the kitchen and the lounge room in the family home (“The Armidale Time”).
Counts 19 and 20 involve allegations of penile penetration and insertion of the vibrator into the complainant’s vagina in the lounge room and in the upstairs spare room in the family home (“The Late Home from School Time”).
Count 21 involves an allegation of penile penetration in a downstairs room between the kitchen and the living room in the family home.
The counts of rape are alleged because the complainant was under 12 at the relevant time.
The complainant’s evidence
The case for the prosecution depends on the assessment of the complainant’s credibility. There is no independent evidence that supports her allegations with respect to any of the alleged offences.
The allegations came to light after the complainant told several of her school friends about her having a sexual relationship with an older man. That occurred in September 2008. Each of those preliminary complaint witnesses gave evidence on the trial. The school friends advised school authorities and the police were contacted.
The police first interviewed the complainant on 10 September 2008. The complainant denied any sexual activity and told the police she had said those things as a ruse to manipulate one of her friends, Ms W, into disclosing further details of her own sexual abuse at the hands of an adult. Those allegations had in fact been investigated by the police in May and June 2008. The interview with the complainant was recorded and the audio tape became exhibit M for identification in the trial.
Over the next day the complainant again spoke to her school friends about the allegations. Police were again contacted and interviewed the complainant at the school on 12 September 2008. In that interview, admitted on the trial, pursuant to s 93A Evidence Act 1977 (exhibit B), the complainant disclosed generalised complaints of sexual behaviour by the accused towards her and some details of the first occasion anything untoward happened. That alleged incident did not found any charge on the indictment and was called “the BEBO Time” by the police. It was described by the complainant as play contact with the complainant pretending to choke the accused by placing her legs around his neck in some sort of wrestling move and him trying to rip her pants off using his teeth. The complainant was asked further about that incident in her next interview with the police on 25 September 2008. The complainant was at pains to tell the police that nothing else happened on that occasion (interview 12 September 2008, page 14; interview 23 September 2008, page 2). In the later interview she described the accused trying to take her pants off as “a joke” (interview 23 September 2008, page 4). In her evidence taken pursuant to s 21AK of the Evidence Act 1977, on 1 November 2010 (exhibit F), the complainant described this incident as the accused biting her pants near her vagina (Transcript 1-29). This was the first time she disclosed that detail and when challenged, her evidence was that she had no reason as to why she did not tell the police. It was a traumatic time and stressful for the complainant (T 1-32-31). This was a relatively significant addition to her account considering the many opportunities the police took to question her about that initial contact.
On 19 September 2008 the complainant was taken by her mother for a medical examination by a general practitioner Dr M Chand.
On 19 September 2008 the complainant travelled to NSW to reside with her farther. On 23 September, 21 October and 31 October 2008 further interviews were conducted by the police with the complainant. Those interviews became exhibits C, D, and E for identification on the trial. Those interviews took place in the presence of the complainant’s aunt, Ms C.
During those extended interviews the complainant disclosed details of the alleged acts which found the charges on the indictment in relation to the specific incidents. She also disclosed sexual activity had occurred on many other occasions. The specific charges and those other allegations are the foundation of count 1.
In the interview of 12 September 2008 (page 4) the complainant described “it started to happen” within two to three weeks of moving to Brisbane. The complainant then described the incident of the play choking as occurring when she was nine years of age. She was turning 10 in five months. Her birthday is on 26 April. Her mother was working and she was home alone with the accused (interview 23 September 2008, page 2). The second incident, “The Hug Time”, occurred a couple of weeks after that incident (interview 23 September 2008, page 2). This involved the accused putting his finger in her vagina (interview 23 September 2008, page 2).
The complainant’s account of the incident called “The Hug Time” changed under cross examination. Under cross examination she recounted that incident as involving an act of penile/vaginal intercourse. In her police interview of 23 September 2008 she recounted digital penetration but couldn’t recall detail (she used the term “black out”) (pages 11-16). In cross examination on 1 November 2010 she was asked open ended questions about the first time the accused had intercourse with her. She referenced that as to the first time she went onto the BEBO website (a social networking site). She nominated the time as a week or so after the play wrestle (T 1-21 to 23). She was asked to give further details and did so (T1-42 to 44). She confirmed that again in further cross examination the next day (T2-4 to 5: 69). On each occasion she nominated this incident as the first occasion on which the accused entered her vagina with his penis.
From the timing of the first incident, it must have occurred shortly after the complainant and her mother travelled to live in Brisbane, after her mother had separated from her father. This occurred some time in November 2004 as the complainant commenced school in Queensland on 15 November 2004. The complainant and her mother stayed at the accused parents’ house (“the family home”) after an initial arrangement of accommodation failed. The complainant and her mother spent some six months in the family home until they moved to other accommodation over the ensuing years. They remained in close contact with the Sica family at the family home and indeed, the mother helped out and worked at the family’s pizza restaurant for much of that time.
It should be noted that the complainant was a difficult person for the police to interview. She could not disclose much detail. She stated she could not remember much detail from when she was 9 or 10 but more about when she was 11, 12 and 13 (interview 23 September 2008, page 3). In the interview of 12 September 2008 (page 14) she stated that, at the start (of the offences), she didn’t understand and she “didn’t remember most of it”. On many occasions she stated that she couldn’t remember detail. In relation to four of the incidents she used the term “I blacked out” to explain her lack of recall of detail. Those incidents were “The Hug Time” (interview 23 September 2008, page 3), “The Ferricks Street Time” (interview 23 October 2008, page 9), “The Hill Time” (interview 21 October 2008, page 15) and “The Late Home From School Time” (interview 21 October 2008, page 51).
As noted above, the complainant also gave evidence in accordance with the procedure in s 21 AK Evidence Act 1977. That evidence was pre-recorded and played on the trial. It became exhibits F, G, I, J and K for identification. There was extensive cross examination proceeding over four days from 1-4 November 2010. As a result of a disclosure made in a victim impact statement supplied to the prosecution in November 2012, I ordered that the complainant be subject to further cross examination. That occurred on 30 November 2012. Again that was pre-recorded and played on the trial. That became exhibit L for identification.
Although it is the recorded conversations in the interviews and the pre-recordings which are the evidence in the trial, the parties have agreed that the corrected transcripts are accurate and for ease of reference I will refer to the pages of the transcript as the evidence.
The complainant frequently became emotional and had difficulty responding during the course of the police interviews and the extensive cross examination. My perception of that is that it occurred when she was being asked to relate detail of the actual sexual acts. It may simply have been from embarrassment about talking about such intimate things, but it makes it difficult to assess the detail. On numerous occasions she responded that she could not remember and perhaps retreated to the rubric of “blacking out”. That may simply have been a way for her to explain her lack of memory about events alleged to have occurred years in the past when she was only 9 or 10 or as a consequence of the numerous times she said sexual conduct occurred. It does, however, pose a difficulty in the assessment of her credibility.
During her police interviews and cross examination the complainant gave a history of sexual acts on more numerous occasions than is contained in the specific counts (counts 2-21). On 23 September 2008 she told police of him having sex with her “a lot of times” (page 9). At page 26 she stated that it (having sex with the accused) happened a “lot of times” when Shiv (the accused’s wife) was up stairs at the family home. On 21 October 2008 she stated there were a few times at parks “when they had sex” (page 30). She stated there were other parks where “it happened the exact like” (page 37). At page 38 she told the police it (intercourse and oral sex) happened a “lot of times” and that it was “like sometimes once a week, mostly once a week but sometimes twice a week”. That was from the end of 2004 to early 2008. The accused then moved away from the family home and there was less opportunity. She confirmed this account on numerous occasions during her cross examination (T 2-47; 2-58). At T 2-15 she stated “it would happen mostly once a week or sometimes twice a week but mostly once a week”. She was not sure how many times sexual intercourse occurred but agreed that it was most likely to have occurred more than 100 times. This should be contrasted with what she told the police in the interview of 12 September 2008. At page 16 she said “it didn’t happen much”.
There was a clearly perceivable change in the attitude of the complainant to the accused during the course of her disclosures to the police and her evidence. As noted above, on 10 September 2008 she denied any wrong doing by the accused. On 12 September she made general disclosures but spoke of the accused with some affection (pages 12, 15 and 16). She was defensive about him with regard to the suspicions that he was involved in a triple murder. She stated “I could talk to him about anything, I felt safe, I told him everything…” (page 12). At page 14 she states she felt safe around him and he “never ever touched me if I didn’t want to”. In the interview of 21 October 2008 at page 25 she told police that she never ever spoke to the accused. She “wasn’t shy” but “I don’t know why, I tried to force myself but I just couldn’t, some weird reason” (for not speaking to him). At page 35 she stated that she was scared of the accused because he was a paedophile and could be a serial killer. At pages 39-40 she describes the accused as manipulative and that he pretended to care for her. She alleges the accused used to sell her brother drugs. She said she didn’t talk to the accused but she used to hug him a lot. In the interview of 31 October 2008 she states that she wants the accused to rot in jail (page 10). During her cross examination she plainly had great antipathy towards the accused particularly in her evidence on 30 November 2012.
During the course of the police interview the complainant maintained that the accused never forced her to do any of the acts or had ever been violent to her. In the interview of 12 September 2008 she stated “…course he never hurt me” (page 12). At page 14 she states “I felt safe when I was around him and he never ever touched me if I didn’t want to”. In the interview of 23 September 2008 she volunteers that the accused was not forcing her to participate and that she chose to touch him (pages 39-40). In cross examination she was asked specifically whether the accused had ever hurt her or used physical violence to her. She replied he “never really hit me when it was happening or anything”. This becomes important when considering the evidence of two of the preliminary complaint witnesses that the complainant had told them that the accused had grabbed her and caused bruises to her arms when she wouldn’t do as he requested.
The change in the attitude of the complainant is explicable by her exposure to the responses of other members of her family once they became aware of the allegations. It may show a growing awareness in her from some sort of infatuation from the accused to a realisation of the serious nature of the accused alleged behaviour towards her. Rather than detracting from her credibility, in my view, it supports it. If these allegations are fabrications, it appears unlikely that the complainant would have changed her attitude in this way. It supports a scenario that the complainant was infatuated with the accused and was a reluctant discloser in the first interviews. Whilst this issue is positive in relation to her credibility, it is of only minor assistance in the consideration of whether the prosecution has proved its case beyond a reasonable doubt.
With respect to the numerous counts of vaginal penetration, as well as the generalised account of such acts occurring on a weekly basis referred to above, the complainant was asked to re-count much detail of the type of penetrative conduct that had occurred. This included details of what was used, the depth of penetration that she felt, any lubrication or condoms that were used and any pain or other effects that she felt. It is important to deal with these in some detail because of the medical evidence in this case.
The complainant gave an account of numerous instances of digital penetration of her vagina. It commenced when she was nine “The Hug Time” (interview 23 September 2008, page 14). It occurred during “The Shower Time” (interview 23 September 2008, page 23). In cross examination (T 2-19) she described she felt his middle finger go into her vagina and it went “all the way down”. It would hurt sometimes. He did not penetrate her as often digitally as he would have intercourse with her (T 2-20).
She described numerous instances of penile penetration. The particulars of counts 3, 4, 5, 7, 8, 13, 16, 17, 19 and 21 all involve penile penetration. In her cross examination the complainant also alleged that count 2 involved penile penetration. In relation to “The Shower/Computer Time” her evidence was that she felt his penis go inside her vagina and not just on the outside (T 2-36). In relation to “The Nanango Time” her account was that he put his penis in her vagina and it hurt (interview 23 September 2008, page 26). She got stomach cramps for a couple of hours (interview 23 September 2008, page 26). On another occasion in the lounge room (an uncharged incident), whilst the accused’s wife was upstairs, he had sex with her (interview 23 September 2008, page 28). In relation to “The Hill Time” she told police that he put his penis in her vagina and it hurt and she felt really sick (interview 21 October 2008, page 15). In cross examination about that incident her evidence was that he first tried to insert his penis as she was sitting on top of him in the driver’s seat of the car (T 2-45-46). She could tell the difference from his putting his penis against the lips of her vagina and inserting it into her vagina (T 2-46). In relation to “The Ferricks Street Time” she was on top of him and he inserted his penis into her vagina (interview 21 October 2008, page 9). This occurred when she was 11 (page 12) and she felt his penis inside of her (T 3-13). In relation to “The Bushy Area Time” he took her from behind and his penis was in her vagina (interview 21 October 2008, pages 23 and 27). In relation to “The Bench Time” she was positioned on a park bench facing the accused and he put his penis in her vagina (interview 21 October 2008, page 37). In relation to “The Armidale Time” he had sex with her for a short time but she pulled away. He took her from behind and inserted his penis in her vagina (interview 21 October 2008, page 45). In relation to “The Late Home From School Time” the accused put her on top him in the lounge room and had sex with her. They then went up stairs. She felt cramped and sick and sore. Two days later she had a “urine infection” and told her mother (page 47). In relation to “The 12th Birthday Time” he had sex with her on his parent’s bed and it hurt for a bit (interview 21 October 2008, page 56). The acts of intercourse occurred in various positions and no lubrication was ever used (T 2-20; 2-47). The accused did not use condoms much (interview 23 September 2008, page 51). The only recorded instance in the evidence was in “The Armidale Time” (interview 21 October 2008, page 42). When she had her first period at age 12 she told the accused and he said something like “I’m going to have to control myself now” (interview 23 September 2008, pages 52-53). On occasions she was nervous when her period was late (interview 23 September 2008, pages 50-52).
The complainant gave evidence that the accused was the first person she told that she had got her first period. That occurred while she was at school and she felt sick. The accused came to pick her up from school and took her to her mother’s house. She told him it was her first period. This occurred a couple of days after “The Shower/Computer Time” (interview 23 September 2008, page 52) which was in about August 2007 (page 53). She repeated this account under cross examination and stated the accused said “we’ve got to be careful from now on”. She told her mother she had her period when she got home (T 3-53). This account is supported by the evidence of her mother. Ms B gave evidence that one day she had a phone call from the accused. The school had called and the complainant was sick. He had picked her up and was bringing her home. He brought the complainant to the front door and asked Ms B if the complainant was fine and if Ms B had everything she needed for her. That was in the context of the complainant having her menstrual cycle start (T 11-28 to 29).
The complainant’s evidence was that on occasions the accused would penetrate her with a vibrator. Counts 15 and 19 relate to such incidents. In relation to count 15 (“The Nanango Time”) she described him using a vibrator on her for the first time (interview 23 September 2008, page 24). At page 36 she described it as “long and purple” and said it was taller than a glass she had in front of her. In relation to count 19 (“The Late Home From School Time”), after he took her upstairs he put the vibrator inside her vagina (interview 21 October 2008, page 51). In cross examination the complainant’s evidence was that the use of the vibrator started in 2008 onwards. She didn’t think he used it on her very often and it was “not that many times” (T 3-59). The vibrator was inserted into her vagina and she remembered feeling it go into her. He moved it back and forth but not for long. There was no lubrication used (T 4-11). She felt it on the outside and a “bit on the inside” of her vagina. She thought she might have felt pain (T 4-12).
In relation to incidents at the family home, the complainant nominated a number of different rooms in which they allegedly occurred. Count 2 was in the accused brother’s bedroom, Counts 9 to 12 were in the upstairs bathroom and the computer room (upstairs). Count 13 was in the accused parent’s bedroom. Count 14 was in the kitchen (downstairs). Counts 15 and 16 were in the accused son’s bedroom. Counts 17 and 18 were in the lounge room/TV room (downstairs). Counts 19 to 21 were in the lounge room.
The complainants account was that on a number of occasions sexual activity occurred whilst other people were in the house. In the interview of 12 September 2008 she said at page 3 “even when people were there he’d still try to touch me”. The accused wife Shiv was present on occasions (interview 23 September 2008, page 28). The complainant also said that it happened a lot of times when Shiv was upstairs (page 29). She was cross examined about that. The complainant’s evidence was that on many occasions at least Shiv was home. Her response was that it was “most of the time” (T 2-64). It was a lot of times (T 2-65). On one occasion they were almost caught by the accused son coming downstairs (interview 23 September 2008, page 46). On “The 12th Birthday Time” they were interrupted by hearing her mother open the front gate (interview 21 October 2008, page 53). On one occasion, “The Can Time”, when the complainant performed oral sex upon the accused in the kitchen, the accused placed a can outside the door of the computer room because his son was using the computer (interview 21 October 2008, page 60). In relation to “The Armidale Time” she was not sure whether anybody was home (T 3-61). The complainant’s mother gave evidence that she and the complainant were at the house the night that the accused and Shiv and their child left for Armidale (T 11-27). From admissions, the residential school at Armidale attended by the accused’s wife occurred between 15-18 April 2008 (exhibit Y). In cross examination the complainant agreed that it happened lots of times when there was either Shiv or other people home in other parts of the house (T 4-22).
The complainant gave evidence of keeping a diary in which she kept coded entries of the dates and types of sex acts that were occurring. She destroyed it, presumably after the police became involved (interview 23 September 2008, page 30). She said she destroyed it “after coming up here” (NSW). She alternately said she had shredded it or tore all the pages out and threw them in the bin (pages 31-32). In her interview with the police on 23 September 2008, she said her reason for the destruction was because she didn’t want anybody to find it (page 32). In cross examination, her evidence was that she destroyed the diary “because Mum wanted to read it” (T 4-62). Her evidence was that she didn’t give it to the police because she “didn’t think it was that important”. She went on that she was only young then and it was a very complicated situation (T 4-63). After the police interview on 12 September she showed the diary to the accused’s father, Carlo Sica (page 31). The complainant’s mother gave evidence that Carlo Sica had conversations with the complainant after the police involvement on 12 September 2008. The complainant’s mother saw the complainant with a book on one of those occasions (T 11-49). Carlo Sica gave evidence that he had had a number of conversations with the complainant after the police became involved. On one occasion she showed him a book but he did not read its contents, although she showed him a couple of passages (T 16-65).
After the police involvement the complainant was taken to a general practitioner (Dr Chand) for an examination. That occurred on 19 September 2008 and it was not a forensic examination. Dr Chand took swabs but made no forensic examination of the hymen. There was no evidence of trauma (T12-11). Dr Chand did not say to the mother or to the complainant that the complainant had definitely had sexual intercourse. The doctor did not consider her examination was sufficient to make that statement (T 12-12). In an interview with the police on 23 September 2008 (page 50) the complainant said, “I went to the doctor’s on the Friday and they gave, they said that I’ve definitely been having sexual activities, and, and they gave, they told mum to get me tests like blood tests and stuff”. Dr Chand’s evidence was that she told the complainant and her mother that blood tests should be sought.
The preliminary complaint evidence
There were five witnesses called whose testimony related to preliminary complaints made by the complainant prior to the first complaint to the police. Such evidence is not proof of the facts of the incidents complained of but may bolster or detract from the credibility of the complainant in relation to her evidence. Each of those witnesses was a juvenile and I will refer to them by the letters V to Z in the order in which they gave evidence. Again, in each case, the evidence consisted of an interview with police and the pre-recording of the cross examination. The recordings of those procedures became exhibits N-W for identification.
The complainant first spoke to her best friend Ms V about a week prior to 10 September 2008. In broad terms the account matched the evidence of the complainant: the complainant had been having a sexual relationship with an older man, Max. She loved him. It started when the complainant was in grade 4 when Max was babysitting her. At first she thought it was just a game. On one occasion Max has asked to take photographs of her but she refused. On one occasion he tried to make her do it in a park at night time (interview 24 November 2008, pages 2-3; 6). At first Ms V was not sure whether the complainant was joking because she started laughing (page 7). In cross examination Ms V recalled that the complainant said Max “made her do stuff that she didn’t want to do” (T 5-4). The complainant showed Ms V obvious bruises on the top of both of her arms and told her that “one time she didn’t do what Max said and he grabbed her really hard” (T 5-8 to 9).
The complainant then spoke to her friend Ms W. Again what the complainant said to Ms W was broadly consistent. The complainant told her that Max had been having sex with her from when she was 9 or 8. She then cried (interview 2 October 2008, page 5). The complainant also said she didn’t want it to stop because she found out that she truly loved him. She didn’t want him to go to jail (pages 6-7). In cross examination Ms W said that a couple of times the complainant had told her that he had bruised her or hurt her harms. She said if she wouldn’t do something he asked, he would grab her until she did. The complainant did not show Ms W the bruises (T 5-26). It was Ms W who had earlier complained of being sexual abused by another person in an unrelated incident.
The complainant then seems to have spoken to a group of girls including Ms V and Ms W and three others. The first of those three to give evidence was Ms X. She described the complainant telling her that she was having an affair with a 38 year old man. She later told Ms V that she had made it up (interview 30 September 2008, page 6). She seemed really giggly when she first told her (page 13). In her evidence in chief at the pre-recording, Ms V stated that the word “affair” was her own word and the complainant may have used the word “relationship” (T 4-83; 88).
Ms Y gave evidence that the complainant said to her that she and a guy who was “like 35” had sex with her when she was 9 or since she was 9 and it was “kind of like rape” but it wasn’t because she said that she fell in love with him and she said yes to sex again because she didn’t really know what it was and she said that it happened again a few months ago (interview 1 October 2008, pages 2-3). In her pre-recorded evidence Ms Y added that the complainant also said that it had been happening since she was 9 years old, that the man was named Max and that he had been raping her when he was looking after her (T 3-68 to 70). The complainant had also said that it had happened a lot (T 3-79).
Ms Z gave evidence that the complainant had told her what had been happening with her mum’s best friend, Max. When she was “like 9” she had been having “like affairs” with Max. She had been going over to this guy’s house (interview 25 November 2008, pages 2-4). In the pre-recording, Ms Z’s evidence was that the complainant told her that there was a man called Max and that she usually went over to his house because one of her friends is his daughter and they play. The complainant told Ms Z that something bad was happening, that he was “doing stuff to her” but the complainant never told her “what” (T 4-73). The complainant had been pretty upset but after she told Ms Z she was “really happy” (page 74).
Evidence of the complainant’s mother
Ms B gave evidence as to the living arrangements in the Sica household and she and her daughter’s ongoing contact with the Sica family and the accused from late 2004 until September 2008. She gave evidence about a period of employment in early 2005 for herself and ongoing work at the pizza restaurants owned by the Sica family. She gave evidence of the attendance by the complainant on the restaurants and her staying at the Sica household on occasions when her mother was working (T 11-22). It was the accused who was the person in the household who helped her the most with looking after the complainant (T 11-71). The accused would sometimes take her to school (T11-10). On occasions the complainant would be at the house with the accused (T11-12). Sometimes the accused would take the complainant to the Ashgrove restaurant when it was busy (T11-13). The complainant had a close relationship with the accused. She would show physical affection to him by putting her arms around him (T 11-18). The complainant was probably closest to Carlo Sica but spent the most time with the accused (T11-18). The mother confirmed that on occasions the accused’s wife Shiv would move out of the family home (T11-17; 25). On one occasion she remembered the accused, Shiv and their child leaving for Armidale for Shiv’s university course (T11-27). The mother’s evidence was that she recalled being at the house the night they left. She recalled the complainant travelling on occasions with the accused and Shiv to Nanango (T 11-27). She confirmed that the complainant’s 12th birthday party occurred at the Sica household after which she and the accused’s mother went to work at the Zillmere pizza restaurant (T 11-29 to 30). She recalled that on one occasion the complainant had difficulties on urination. A doctor’s appointment was made but later cancelled when the complainant said that she was better (T 11-34). She recalled the occasion when the complainant was late home from school and the argument that she and the complainant had at the Sica household. The accused was present. The complainant was crying. Ms B left for work and the complainant stayed with the accused (T 11-35). After the police involvement on 12 September 2008, Ms A went to the Sica household and spoke with the accused about the allegations. The accused insisted on telling his wife and parents (T 11-38). She recalled that her daughter was in the habit of keeping diaries (T 11-49). She had not read them. She recalled Carlo Sica speaking to the complainant on several occasions after the police involvement and on one occasion saw the complainant holding a black book (T 11-49). On one night after the police involvement the accused rang her. He was yelling at her. He said “tell fucking (A) to wake up to herself or I’ll see you all in court, photos and all” (T 11-41). In cross examination she denied that she would almost always leave the complainant with the accused and Shiv when she went to work (T 11-75). Apart from the one time when the complainant complained of pain when urinating, she made no other complaints about her private areas over the four years (T 11-82). The door to the computer room opened inwards (T 12-41). On occasions there had been discussions in the Sica household about listening devices being in the house because of the police investigation of a murder case. She didn’t take those discussions seriously (T 14-61).
Evidence of Carlo Sica
The accused’s father gave evidence as to the layout of the family home, the various people who were living there at various times and the numerous visitors to the house. When the complainant and her mother moved into the family home, his relationship with the complainant was “very good”. That continued over the four years (T 16-47to 48). He gave evidence of the various hours of work of himself, his wife, the complainant’s mother and others in the house. He was of the view that the accused was never alone with the complainant (T 16-54). He confirmed that Shiv had moved out on occasions (T 16-59). His evidence was that, after the accused and his wife moved to Toorbul in 2008, the accused had little contact with the complainant (T 163-59). He confirmed that on one occasion the complainant complained of pain on urination and the making of a doctor’s appointment that was later cancelled when the complainant said that she was better (T 16-77). He gave evidence of a conversation with the complainant when she held a peach/apricot coloured book but he did not read the contents (T 16-65). His evidence was that there were many discussions in the house about all rooms in the house being bugged and that the complainant was present for some of those (T 16-76 to 77).
Evidence of the complainant’s aunt
Ms C gave evidence that she was the aunt of the complainant. She had a lot of contact with the complainant after the police involvement and sat in as a support person in police interviews of 23 September, 21 and 31 October 2008. Over the four years the complainant would constantly tell her aunt how much she loved the Sica family including the accused (T 13-21). Her perception was that over the course of the interviews the complainant had a change in understanding of the process that the police had to go through in the interviews. She wasn’t as uncomfortable in the later interviews (T 13-36; 45). She had spoken with the complainant about the incidents over the time but had never suggested anything to her (T 13-24 to 26; 37). The complainant had spoken of the bugging of the Sica household some 12 months prior to the allegations coming to light (T 13-30). The complainant had never alleged that the accused had snuck up on her in the dark in the computer room or anywhere else (T 13-50).
Other relevant evidence
Ms M Reeves gave evidence about the address in Ferricks Street where count 3 is alleged to have occurred. Her evidence was that she was the lessee of those premises from October 2005 to February 2008. She was a friend of the accused. On two occasions when she travelled overseas, she gave the accused the key to her front door so that he could take care of her car. Those two trips were for two weeks from 17 January to 1 February 2006 and for four weeks from 11 September to 2 October 2006 (T 15-8 to 9). She had neighbours who kept an eye on the house and they had in fact advised her on one occasion when the accused visited while she was away (T 15-13). She had lost much of her furniture and only had a double bed mattress on the floor in the main bedroom (T 15-7). The house was high set and it would be impossible to see into the bedroom from the doors or windows without the use of a ladder (T 15-7; 19). After she moved out the mattress from the house was disposed of (T15-10). Photos of the house were tendered (exhibit 3) and a diagram of the house was tendered (exhibit 9). Ms Reeves had never seen the complainant come to her house although she had met her (T 15-4). It was no secret in the Sica household that Ms Reeves had lost most of her belongings (T 15-19).
The complainant had given evidence that the accused had taken her to the Ferricks Street house. The accused had told her that a friend lived there and that he had the key while she was overseas for two weeks. He parked on a side street and lifted her over a gate in a metal fence at the side. She was really little at the time. They entered through the front door with the key. It was at night and no lights were turned on as it would “look sus”. The accused had sexual intercourse with her on a double bed mattress on the floor of one of the bedrooms. He used a torch on his mobile for illumination. They were only there for a short time. The complainant’s evidence was that she had walked past the house on occasions with Shiv who told her that the female occupant was having an affair with the accused (interview 21 October 2008, pages 3-13; T 3-8 to 21).
The evidence indicated that there had been many discussions in the Sica household about listening devices being installed in the house. The complainant knew of those concerns. Listening devices were in fact installed during part of the relevant period. Listening devices were installed and conversations were monitored and recorded in the accused’s bedroom from 17 September to 27 October 2006 and in the kitchen/dining room from 17 September to 27 October 2006. A listening device had been installed in the accused’s car at an earlier time. The listening device recordings do not disclose anything of assistance to the Crown case (admissions 12-14; exhibit Y).
After the allegations came to light in 2008, searches were conducted by police on the Sica household and the residence of the accused and his wife and items were taken for a forensic examination. There was nothing found of assistance to the Crown case. No purple vibrator was found.
Photos, a DVD recording and an interactive DVD of the Sica house were tendered (exhibits 5-8). During the course of the trial a view of the house was conducted. The ground floor of the house consists of a number of large rooms with archways between. There is an open rectangular window in the wall between the living room and the entrance foyer. Upon entering the front door one can see into that living room, although the view through the window was, at the relevant time, partly obscured by plants. One corner of the living room could not be seen from the front door. There was another entrance to the living room through another archway from the kitchen side of the house. The entrance foyer was large and open with a staircase leading to the second story. The door to the computer room opened inwards. There was evidence from the police that the layout of the house had not changed from the relevant time period.
During the first days of the trial in November 2012, a victim impact statement under the hand of the complainant was supplied to the defence. It was tendered as an item for identification (exhibit H). After legal argument about one paragraph I ordered that the complainant be recalled for further cross examination as it appeared to raise a new allegation. That paragraph reads,
“I live in constant fear that he will manipulate someone to come and hurt me again. I sleep with the curtains closed and the windows shut and I always sleep with the light on. I panic when I am in the dark as those were the times where he would sneak in and touch me inappropriately and have sex with me. These are memories that will never go away. I have nightmares and run into my mum’s bed during the night. I am scarred for the rest of my life.”
It was the passage “I panic when I am in the dark as those were the times he would sneak in and touch me inappropriately and have sex with me” that caused me concern. There was never any allegation containing that detail. The further cross examination occurred on 30 November 2012 pursuant to s 21AK of the Evidence Act 1977 and was played on the trial (exhibit L). When cross examined about that paragraph the complainant’s responses were that it was the present position because of her fear of the accused. She said “when I’d be in the computer room or he’d just come in and touch me, he’d just do it” (T 1-37). Her evidence was that she wasn’t talking about her bedroom, she meant the computer room because it was dark (T 1-38). She was asked about whether she had been warned about the fact that she had said something inconsistent in the victim impact statement. She replied “No”. As to the term “snuck” she meant “he just came in. Like it wouldn’t always be like – but whenever people weren’t there. That’s what I meant” (T 1-42).
After the complainant answered that she hadn’t been warned, during the pre-recording and again at the trial, the Crown prosecutor disclosed that he had had a conference with the complainant on 29 November 2012. The complainant had been advised that there was something in the victim impact statement which she hadn’t previously said and she was directed to the relevant paragraph in her victim impact statement (T 9-25). The paragraph was read to her. There was no questioning of her about it (T 10-30).
The complainant’s credibility
As noted above the complainant’s credibility is fundamental to the prosecution case.
The complainant impressed me as a witness. She was subject to extended interviews by police during which she volunteered specific incidents. Her lack of recall of detail would be consistent with her history of numerous incidents over a four year time period commencing when she was only nine. She was subject to extensive cross examination during which she was consistent in the detail of the specific incidents, except in relation to one of them (“The Hug Time”). I have already noted that the change in her attitude over time to the accused is consistent with her description of real incidents as apposed to fictional ones. Her infatuation with and protection of the accused in the early police interviews is obvious. This is consistent with her account of how the alleged offences developed and were continued by the accused. There are some concerns in that, particularly her odd statements to the police that she never spoke to the accused compared to her earlier statements that she could talk to him about anything. It is arguable that the later statements were attempts by her to explain why no incidents were captured on the recording devices believed to be present in the family home.
The complainant also did not exaggerate the accused’s offending when she had the opportunity to do so. For instance, her account of the first alleged incident (the play wrestling) involved her maintaining with the police the account that nothing untoward happened. That needs to be contrasted with her adding a detail during cross examination that the accused’s teeth on her pants were near her vagina rather than just him trying to remove the pants with his teeth (as she had told the police earlier). On one occasion during the police interviews she was at pains to tell the police that she didn’t want to say anything she wasn’t sure of (interview 23 September 2008, page 12).
There were also instances in her evidence where the complainant seemed to be talking about real memories rather than fabrications. Principal among those was when, under cross examination, she was asked to give details of the size of the accused’s penis. She spontaneously used hand gestures which, to me, seemed to indicate she was recounting a real event (T 2-13). Her appreciation of the incidents, recounted in her interview with the police on 12 September 2008 is also indicative of her speaking of real events and their impact upon her thought processes. She said “I thought I could keep a secret forever but eventually everybody found out” (page 14). Her account of the accused asking to take photos and she declining (interview 23 September 2008, page 15) also had the ring of truth and was an unusual detail to have made up, although, at this time, according to her mother’s evidence, the accused had said something to her about photographs in a telephone call. It also needs to be noted that the complainant had mentioned photographs to one of the preliminary complaint witnesses at a time earlier than this. The accused’s alleged use of the term “play” for sexual acts (interview 21 October 2008, pages 46 and 60) was also a detail that would be unusual to make up. Her recount of “The 12th Birthday Time” also had the accused promising her a present which turned out to be sex and her disappointment at that. That also had the ring of truth (interview 21 October 2008, page 53).
Her recount of the detail of some of the incidents also indicated that the incidents actually happened. For instance, her description of the detail of the difficulty the accused had in achieving penetration whilst she sat on top of him in the drivers seat of a car (“the Hill Time”) (interview 21 October 2008, page 18) that it “wasn’t really comfortable”, was a significant detail. Her detail about “The Can Time” when, because she had her periods and told the accused, so that only an act of oral sex occurred, also has some unusual detail but also sounded like a real event rather than a fabrication. After the act the accused gave her a red icy pole. When she dribbled some the accused said something like “you’re leaking” (T 3-53). This is an unusual thing to make up.
The complainant’s account of the accused being the first person she told that she had had her first period (interview 23 September 2008, page 52), which was confirmed in the evidence of her mother (T 11-28 to 29), is also indicative of an intimate relationship with the accused.
The most important factor of the complainant’s credibility is her detail of the Ferricks Street house. Her description of a double mattress on the floor is confirmed by the evidence of Ms Reeves. There was no way that the complainant could have seen into the bedrooms from outside the house. There is no evidences that Ms Reeves spoke in front of the complainant about a double mattress on her floor, although she conceded that it was general knowledge in the Sica house hold about her loss of her furniture. Details about the accused possession of the front door key and the statement to the complainant about the occupant being a friend who was overseas for two weeks are also supported by Ms Reeves. The entry from the side street and leaving the lights off are consistent with knowledge that neighbours kept an eye on the house. The allegation that the accused lifted her over the side fence is also an unusual detail to have made up. Those details in my view lend credence to the complainant’s account.
The detail (although scant) which she gave to the preliminary complaint witnesses also supports her credibility. However, the complaint she made of violence and force used by the accused to her such as to leave bruises, is inconsistent with every thing she said to the police and in court. Those statements may simply have been to conceal from her friends that she had been acquiescent in what the accused was doing to her.
There are a number of other issues that tell against the credibility of the complainant. Her change in the detail of the wrestling incident to the accused having his teeth “near her vagina” increases the seriousness of the alleged conduct. This was a detail she did not tell the police although the incident was canvassed by them on several occasions. Her answer as to why she did not tell the police in terms of it being a stressful time (T 1-30) is unsatisfactory in terms of the repeated attempts made by the police to get full detail of the incident. This may be a later embellishment volunteered by the complainant.
The change in the detail about “the Hug Time” from a digital penetration to an act of penile penetration of the vagina is also a concern. That detail was volunteered in cross examination to a series of open ended questions directing her to the first time that she alleged actual penile intercourse had occurred. The detail was repeated when returned to the following day. It is difficult to accept that this was simply confusion on her part owing to the convoluted style of the cross examination and the numerous times that she said that intercourse occurred over the four year period. I am of that view because the first time penile penetration occurred would have been a significant event, particularly if it occurred when she was nine years old.
There are two issues of concern raised in relation to the paragraph in the victim impact statement. Firstly, it seems to me, that the passage plainly indicates an impact from the accused sneaking in and doing things to her in the dark. That is not something ever alleged in the extensive police interviews which sought to get all possible detail of incidents, the exhaustive cross examination and the account given to her aunt in the period during which disclosures were made to the police. I found the complainant’s explanation that she was talking of incidents in the computer room to be unconvincing. Only one of the incidents in the family home seems to have occurred in the dark, the intercourse in the shower in “The Shower/Computer Time” (T 3-45) with the latter part of that incident allegedly occurring on a mattress in the computer room. There are no incidents alleged to have occurred with the accused “sneaking in”. This may simply be a reconstruction on the complainant’s part after the passage of some years to explain the present difficulties she suffers after years of abuse by a person of whom she is now fearful, but it is a concern as to her credibility.
The second issue of concern is her response to the question of whether she had been told of the inconsistency before the cross examination. She clearly had been told on the day before and the paragraph had been read to her. Not only did that allow her time to find a reason for the apparent change, but her response was clearly untrue. It could hardly have been a mistake on her part because the event had occurred only the day before. It may be explicable by panic considering the long days of cross examination that occurred some two years previously and the length of the cross examination she had been subject to on that day. It was also only one answer to a single question. However it does raise an issue as to her credit.
There are a number of other minor matters which impact against her credibility. The change in her account that she never spoke to the accused mentioned above is one. Her position in cross examination (T 1-20) that what the accused was doing to her caused her to be upset in the early days is not consistent with what she told the police. These may simply be reconstructions to explain her acquiescence in the conduct. In relation to “The Can Time”, the placing of a can behind a door that open’s inwards makes little sense. This may simply have been something she was told by the accused. Her statement to the police that at the initial doctor’s consultation that she had been told she had “definitely been having sexual activities” (interview 23 September 2008, Page 50) when clearly that had not been said, is also a concern. This however may have simply been a misunderstanding of the doctor’s suggestion as to further blood tests to test for sexually transmitted diseases. The destruction of the diaries at a time when police were clearly investigating is also a concern. I do not accept that she thought they were unimportant. It may be that this was part of her attempt to protect the accused at that time.
As noted above, the claims of “blacking out” may simply have been her way of dealing with the erosion of memory by time or her unwillingness to speak of detail that embarrassed her.
It is submitted that the account of the complainant that so many incidents occurred whilst others were present in the family home is unlikely. It is submitted that the accused would not risk discovery, particularly in an act of full intercourse with a child, if others, including his wife were present at the house. It is also submitted that the layout of the house made it unlikely that such activities occurred because they could easily be seen by others coming into the lower part of the house. It is submitted that the evidence of the number of residents in the house and the presence of numerous visitors makes the complainant’s account unlikely. That evidence does not persuade me that the accused did not have the opportunity to commit offences. The large number of them alleged (on a weekly basis over four years) does however raise the issue. That the accused may have taken some risk in the alleged offences also does not persuade me that they did not happen.
It is further argued that the knowledge that the occupants of the house had of police listening devices in the house, makes it unlikely that the accused would have indulged in such behaviour with a child if he suspected that the house was bugged. There is some weight in that argument, particularly in the light of the evidence as to the number of times such matters were spoken of in the presence of the complainant. Of course, the occupants would not have known of the actual times that the listening devices were installed or where they were. The complainant’s account had many offences occurring in the lounge room area of the house over a lengthy period of time. It is also important to recognise that the lounge room area did have a listening device installed from 17 September to 27 October 2006. It did not record any relevant activity. The extensive number of incidents alleged by the complainant in the downstairs area is unusual in this context.
As noted above the complainant’s credibility is fundamental to the prosecution case. Although there are a number of issues of concern, they do not cause me to dismiss the complainant’s account. This may be based on making some allowance for her evidence in the light of her age. How many allowances should be made in a criminal case where the prosecution bears the onus of proving the guilt of the accused beyond a reasonable doubt and the accused is presumed innocent is a concern. There is, however, one factor which causes me significant concern. That is the medical evidence as to the state of the complainant’s hymen in a medical examination conducted on 22 October 2008. That examination revealed a hymen with no abnormalities.
The medical evidence
On 19 September 2008 the complainant was taken by her mother for an examination by a general practitioner, Dr M Chand. Dr Chand had no training or experience in the forensic examination of patients who complained of sexual assault (T 12-7). Dr Chand was given a history by the complainant’s mother that the complainant had been having intercourse from the age of nine with a family friend. The complainant had been complaining of some redness and discomfort on urination. The doctor examined the complainant. She noted some redness inside the vulva adjacent to the vagina close to the labia minora (T 12-8). The doctor took a swab to test for abnormal bacteria and used a speculum partially inserted to take the swab. The complainant was uncomfortable with that examination so the doctor did not fully insert the speculum (T 12-9). Dr Chand was of the view that the complainant gave no sign of the examination hurting “a lot” (T 12-17). The doctor made no internal examination other than taking the swab. She made no observations with respect to the hymen or the opening of the vagina. The cause of the redness was some bacterial irritation, probably thrush (T 12-8). It was probably not trauma (T 12-11). There was nothing unusual in the testing of the swab results (T 12-15).
The complainant was next examined by Dr C Stevenson, medical coordinator of the Richmond Sexual Assault Services in Lismore. In 1995 Dr Stevenson had worked at the Sexual Assault Service in Brisbane and from 1997 the Richmond Sexual Assault Service. Her Brisbane experience related to examining adult victims of recent sexual assault. That continued when she commenced in Lismore but, after some time, she was required to examine children as well. From about 2000 she personally examined about six children per year.
The examination of the complainant by Dr Stevenson was arranged by the police. It occurred on 22 October 2008. She took a history from the complainant. That history was that “an assault” occurred over four years and there was penile penetration of the vagina but not the anus, and that the last episode had been six weeks before (which she later said was seven to eight weeks). At times the complainant had pain in the vagina and pain on urination. Penetration occurred with fingers and penis. She had had her first period about a year before and had been having regular menstruation. She saw a general practitioner in Brisbane five to six weeks previously and that examination “hurt a lot” (T 14-29 to 30). In relation to that history, the doctor understood it was continuing occurrence over time. She did not seek further details of how regularly it was alleged to have occurred. The doctor sought no more detail about the vaginal penetration. She did not ask whether any objects were used in the penetration (T 14-40 to 41).
The doctor’s opinion from her physical examination of the complainant was that she was highly developed and classified her as Tanner stage 5 or fully developed. The start of puberty was around 2.5 years before the first period but that was subject to much individual variation (T 14-12 to 13).
The doctor examined the genitals of the complainant with particular reference to the hymen. The hymen was well oestrogenised and very redundant. The hormones had caused the hymen to become very thick and folded in on itself. It was quite difficult to examine that type of hymen. She carefully visually examined the hymen with a cotton bud under a light. There was no way to tell from the condition of the hymen when puberty began (T 14-13).
In the prepubescent female the hymen, which is a structure of tissue just inside the entrance to the vagina, is less elastic. At the onset of puberty and the release of oestrogen the tissues become thicker and more distensible (T 14-15).
The examination of the hymen revealed that it did not have a complete transaction, so she classified the hymen as normal. She was not expecting to see any minor injuries. A complete transection would heal with a persistent defect (T 14-16). Any scarring from the healing of a partial transection might not be visible to the naked eye. She didn’t find any injury to the hymen whatsoever, although signs of a partial transection would be very difficult to see (T 14-25). There were no abnormalities found (T 14-12). In the doctor’s opinion, the hymen was completely intact (T 14-46).
Dr Stevenson’s opinion was that a normal examination (ie no abnormalities found in the hymen) was a common finding following a complaint of sexual penetration in a child or adolescent so the findings did not confirm or deny the history of penetrative acts that were alleged to have occurred (T 14-17). In evidence at the committal the doctor agreed that she had said that it was a possibility that if a girl between the ages of 9 and 13 had been penetrated, that there would be no abnormalities seen in the hymen. The doctor was of this view from her research and study of papers (T 14-30 to 33). She rejected the contention that after repeated acts of penetration, it would be unlikely to find no injury, on the basis that there was insufficient research evidence to indicate whether it was possible or unlikely (T 14-30 to 31). A transection of the hymen becomes more likely as more acts of penetration occur, although some studies showed that, of pregnant adolescents who were sexually active, only a small proportion had a transection of the hymen (T 14-49). The study shows that the hymen was often intact after repeated acts of penetration. In one study, relying on self reporting, the average number of acts of penetration was five (T 14-52). The doctor rejected the contention that very few of the studies dealt with repeated events of penetration.
Dr J Connors, director of the Child Protection Unit at the Mater Children’s Hospital was called as an expert by the Crown. She was a specialist paediatrician and had been since 1991. She was the senior consultant paediatrician to the child protection unit. She had been specifically working in child protection since 2010. Her main area of practice had been child development and behavioural paediatrics. She had currently enrolled in a Masters of Forensic Medicine course at Monash University. She had done specific training in examining for physical abuse and child sexual abuse. She had personally conducted 30 to 40 examinations of hymens in her career (T 16-13). Many of those examinations had not involved allegations of penetration. Dr Connors had seen the material from Dr Chand and Dr Stevenson and had been provided with the transcripts of the complainant’s evidence. She had not examined the complainant.
Dr Connors described the hymen as a circular area of tissue with an opening in it which sits just within the vaginal space (T 16-4). It’s a slightly internal structure situated just beyond the opening of the labia. It sits between millimetres to 1 centimetre inside the vaginal opening (T 16-14). With a petite child it would be a matter of millimetres. In a pre pubertal child, it is a thin membrane of tissue with an opening. As the child goes through puberty with increasing oestrogen, the membrane thickens and folds and becomes more distensible. That change occurs “so that there is an expectation of the hymen being able to accommodate an erect penis and allow for enough stretch and distensibility for that to occur” (T 16-5). That development occurs over a continuum over time and there are many variables. On average there was two to two and a half years of oestrogen before menarche but again that varied with the individual. Puberty continued on after menarche (T 16-31). From a later physical examination it would be difficult to determine when the affect of oestrogen commenced (T 16-32). The closer a child gets to menarche the more oestrogen affect there is on body development (T 16-13).
Tanner staging was a way of describing in five stages the development of a child through puberty. Tanner five was the most mature level of pubertal development. Tanner staging was measured in two ways: breast tissue development and pubic hair development (T 16-6). It was a little unusual for a 13 year old girl to be fully sexually mature at that age. It, however, was not unheard of. The complainant reported menarche at around the age of 12 so that there had been some significant sexual development at that point. Even if, at the time of Dr Stevenson’s examination, the complainant wasn’t quite at Tanner five, she had significant sexual maturity.
With respect to the hymen, like any other bodily tissue, it was liable to injury. On any occasion where there was forced penetration of that tissue, it would be subject to possible trauma or injury. The hymen was a substantial tissue and so a fair amount of stretch would be required to traumatise it. Injury from blunt force trauma (such as the entry by a penis) could cause abrasions, bruising or tearing. Tearing of the hymen is referred to as transection (T 16-7). That can be a complete transection which is through the whole width of the hymen down to the base of the vaginal floor and anything less would be a partial transection or tear. Hymenal injuries heal quite quickly and very well. There is no scarring with the healing of hymenal tears. If there is a complete transection of the hymen, there will not be healing and evidence of that can be seen at a later examination (T 16-7). It is seen as an absence of tissue to the base (T 16-12). If the transection occurs up to 50% of the width of the hymen, it is likely to heal without any signs of previous trauma. Between 50% and 100%, there may well be some sort of defect or notch left once the healing has occurred (T 16-8). Those notches may be observable but with a mature hymen it may be very difficult, if not impossible to tell the difference between a partial defect and normal variation of a mature hymen (T 16-9). There is a lot of variation and, even in a pre pubertal child, what looks like a partial tear could still be a natural variation. A lot of older studies and papers are invalid on that basis and also because the ages of the children involved in the studies are very mixed, so that it is hard to apply those papers to an individual case.
When a hymen is mature and developed it is able to accommodate penetration and therefore injury is less likely than with a more fixed tissue such as in a pre pubertal child (T 16-9). Healing of the hymen occurs quite quickly, within day or weeks of a hymeneal tear (T 16-10). Even with a small tear injury occasioned pre-puberty, it may be difficult or impossible to find in a physical examination post puberty. Any repeated penetration would interfere or potentially slow down the healing but would not stop the healing.
In relation to the complainant, it was not unexpected that an examination conducted some weeks after the last alleged act of penetration, that there would be no finding of recent trauma (T 16-11). If penetration had occurred when the child was nine and a half, then there were two variables involved: the oestrogen affect that may have been going on with her hymen at that time and the degree of penetration.
Any partial transection of the hymen would result in pain and bleeding. In a pre pubescent child any trauma to the point of tearing would be a very painful experience and would result in bleeding (T16-14). You would expect more bleeding if it was a full transection (T 16-16).
The doctor was asked her opinion as to the findings of no abnormality in the hymen of the complainant in the light of her allegations of penetration. She responded that she thought the findings were consistent with the allegations given the variations that can occur with respect of the state of the hymen when the penetration occurred and also to the degree of penetration. It would be quite possible to have penetration and not have significant trauma if the penetration was not complete through the hymen or if the hymen was able to accommodate that penetration (T 16-16).
Under cross examination Dr Connors agreed that in relation to allegations of sexual abuse of a child, it was important for the examining doctor to take a thorough history of the allegations (T 16-18). Dr Stevenson had only taken a limited history (T16-19). Dr Connors agreed with the proposition that the literature was clear about the possibility of vaginal penetration leaving no physical signs of trauma post puberty, although reports of frequent penetration were not available (T 16-22). She also agreed with the proposition that the literature about pre pubertal girls and penetration is far less clear. She agreed with the proposition that repeated full penetration of a pre pubertal hymen by an adult erect penis would be likely to result in injury to the hymen that would be subsequently evident at age 13. It was, in fact, her own words (T 16-23).
With respect to allegations of repeated penetration form the age of 9 to 13 on a weekly basis, sometimes more often, by finger, penis and an object, the doctor was asked whether it was probable that an injury could be seen and responded that it hinged on the depth of penetration. If the evidence of the child was clear that there had been full hymeneal penetration of an erect male penis then it was likely that there would be some abnormalities (T 16-23). That depended on the clarity of the child’s account about the degree of the penetration.
Children might refer to penile penetration involving any penetration up to the hymen or involving interlabial intercourse. The degree of penetration here depended on the interpretation of the complainant’s account (T 16-38). It was quite conceivable that there was progressive increasing penetration over time. That was merely a possibility the doctor had taken into account. Another possibility was that the offences hadn’t occurred (T 16-40).
Dr J A Gall was called as an expert witness for the defence. Dr Gall had completed a bachelor of science, a doctorate in pathology, and then completed his medical degree. He was a senior consultant in the Child Protection Unit at Monash Medical Centre and a senior consultant at the Royal Children’s Hospital in Victoria. He was also the senior consultant at the Victorian Paediatric Forensic Medical Service which provided tertiary referral service for child abuse cases in Victoria. He examines children who are the alleged victims of sexual abuse in both hospitals. The children ranged in age from newborn to 18 (T 17-5). He had practiced in the area for 15 to 16 years. Prior to that, from 1993, he had worked in areas of adult sexual assault and adult forensic medicine. He held various teaching positions involving both undergraduate and postgraduate medical practitioners in relation to forensic medicine. He was involved in setting up the Masters degree at Monash University. He had published 30 to 40 articles in peer review journals and edited and contributed to two text books on forensic medicine.
A major part of his employment has been the examination and assessment of both adults and children with respect to physical and sexual assaults (T 14-7). In any one year he examined about 50 children and about half of those would be in relation to allegations of sexual assault (T 17-12). Whilst at the Institute of Forensic Medicine and it predecessors for a number of years from 1993 he saw some 100 to 200 cases per year of which of about half would have been sexual assault cases. He claimed a “very significant understanding” of the injuries which might be seen on the hymen. He had given evidence as an expert witness on numerous occasions, principally for the prosecution.
His view was that, until about 1990 the hymen was a misunderstood organ. Some of the changes that were diagnosed as abnormal were, in fact, normal (T 14-13). The organ underwent a significant series of changes under the affects of oestrogen. Prepubertally, the hymen tended to be fairly thin, inelastic tissue, opaque and highly sensitive to touch. When puberty begins there is an increased release of oestrogen into the blood stream and the hymen changes from a very thin inelastic organ to a thicker, more fleshy and elastic organ. At the first period it has become quite thick and elastic. It continues to develop a little more and redundant folds develop. Full development of maturity depends on the individual but usually ranges between the ages of 15 to 16 to the early 20’s (T 17-14).
Dr Gall was of the view that taking a very thorough history was a very important aspect in any case of child abuse (T 17-15). Any objects used and the repetition of the penetration were important issues (T 17-16).
Dr Gall had been provided with the various medical reports, the evidence given at the committal, the recorded statements and evidence of the complainant and had viewed them all (T 17-18). He conducted a search of the literature in relation to injuries to the hymen and felt that none of the literature was relevant to this particular case because none of them related to allegations of repeated penetration. His understanding of the allegations was that penetration had occurred somewhere between 100 and 200 times. There was no literature that dealt with that (T 17-18). Any assessment thus relied on experience.
He was of the view that Tanner stage five as reported by Dr Stevenson was most unusual for a 13 year old girl in the absence of any medical condition and he thought it more likely a Tanner stage four at her age was more appropriate (T 17-19). The visual examination of the complainant by Dr Stevenson was an appropriate procedure (T 147-15).
Dr Gall was asked his opinion that, if a girl between the ages of 9 and a half and 13 was penetrated by an adult male penis, digitally and with a vibrator on 35 occasions, whether the hymen would remain intact. The doctor thought it was highly unlikely (T 17-19).
He could never exclude it 100% but based on his experience of seeing people who have had multiple penetrations, the hymen would usually have abnormalities. As sexual activity goes on, the hymen becomes thinner. There is less of it and in some cases the hymen is not seen at all (T 17-19). He could not say that the absence of abnormalities in the hymen of the complainant after that history could not happen but that it was highly improbable (T 17-20). He was asked whether his opinion would change if more penetrations occurred as the hymen was becoming more oestrogenised. His opinion was that, based on his experience with pre pubertal and post pubertal girls and young females, given the number of penetrations that had been alleged, he thought it highly unlikely that the hymen would have remained intact (T 17-20). This was particularly the case if, as alleged, no lubrication was used. When the oestrogen had had its affect and the hymen was more elastic, there’s less likelihood of an injury occurring by comparison with the inelastic pre pubertal hymen (T7-21). He concluded “…given the number of penetrations, the absence of any form of lubrication, the description of the object that’s been used, I think the presence of a normal hymen under those circumstances is highly improbable”.
In cross examination Dr Gall agreed that unless some longitudinal study was taken on an individual’s hymen, it would be difficult to determine what was its normal state.
That was because a hymen was different at different stages of life (T 17-22). However the presence of some features, such as a cleft or notch which went all the way to the vaginal wall, indicated that penetration may have occurred. The term “normal” used by Dr Stevenson meant that there were no notches or clefts.
Issues that impacted were the Tanner stage of development of the child when the first act of penetration occurred, the degree of force used in the penetration, whether lubrication was used and the degree of penetration. The degree of penetration was relative to the hymen itself and penetration would go past the hymen to cause injury to it (T 17-32; 37). The hymen was positioned a matter of millimetres just inside the labia. Other factors as to whether there was a discernable injury included whether healing had occurred and the nature of the injury as to whether or not it involved a full transection.
The doctor noted that all hymen are susceptible to damage (T 17-31). The doctor reiterated that the history taken by Dr Stevenson was not very useful and that if the history had been that there had been penetrations of the vagina in excess of 100 times in the course of four years, his opinion of the likely hood of penetration would have been completely different than if penetration was alleged on only a relatively small number of occasions. He would then agree that the finding neither supported nor refuted the allegations. However the position was different in the present case (T17-34).
Consideration
The prosecution submit that the medical evidence is neutral. That it neither supports nor contradicts the complainant’s evidence. I disagree. The prosecution argue that the complainant’s evidence should be regarded as being that much of the sexual activity occurred when she was 12 or 13 and that not many penetrative acts occurred when she was 9 or 10. It is also submitted when the complainant spoke of penetration of her vagina, it may not have been to a sufficient depth to damage the hymen to an extent that would be discernable in a medical examination years later.
My appreciation of the medical evidence is that the more often that penetration occurs, the more likely that injury to the hymen would occur. This does not have to be full depth penetration of the vagina but penetration past the hymen which, of course sits just inside the labia minora, to a depth of a maximum of 1 centimetre.
The submission that perhaps the complainant was not speaking of penetration or significant penetration down plays her clear evidence to a significant degree. It makes allowances to explain a negative in order to convict the accused. That is contrary to the onus of proof and presumption of innocence. The complainant’s evidence is clear. She describes vaginal penetration occurring soon after she and her mother’s arrival in Brisbane in 2004. She was nine and a half years of age. She describes penetrative acts occurring on a weekly basis, until it started to diminish in 2008 when the accused moved away from the family home. Isolated acts were then still occurring. She describes frequent digital and penile penetration of the vagina. She describes a number of occasions of penetration with a vibrator. On no occasion was lubrication used. In relation to many of the penetrations she describes feeling the penis or vibrator as being inside her vagina. On occasions this caused pain and stomach cramps. After she began her periods, the accused apparently was concerned about her becoming pregnant. The described penetrations occur in different positions, sometimes from behind and sometimes with her on top of the accused. She estimated the frequency of penetrations and sexual acts as occurring on a weekly basis. In my view it is not possible to down play this evidence. On the complainant’s account there was regular penetration of her vagina to an extent and in circumstances that would be thought to have damaged her hymen.
Whether the penetrations occurred pre puberty or not, they plainly commenced when she was about nine and a half years old, approximately three years before her first period. The medical evidence is clear that with penetration before the effect of oestrogen impacts on the hymen, it is more likely for damage to be occasioned.
In the absence of any studies involving a history of repeated penetration, I accept the evidence of Dr Gall that, with the history of penetrative acts given by the complainant, that the hymen remaining undamaged was highly unlikely and improbable.
Considering the medical evidence I can not be satisfied beyond a reasonable doubt that the penetrative acts occurred as described by the complainant, particularly in relation to their frequency. This causes me significant concerns about the credibility of the complainant. The complainant’s account of numerous acts of penetration having occurred since she was 9 years of age is not only not supported by the medical evidence, it makes her account highly unlikely. In those circumstances, I do not accept her evidence as to the number of penetrations. As this is fundamental to the prosecution case and has a significant impact on the complainant’s credibility, I am left with what, to my mind, is a reasonable doubt about the guilt of the accused. As there is a maintaining count, based on all the alleged conduct, and as there is no appropriate way to distinguish particular acts which might have occurred, that finding applies to each of the counts alleged, even those that do not involve vaginal penetration. The doubt that this causes me in relation to the numerous alleged acts involving penetration by the complainant must be applied to all of the specific allegations.
I am not satisfied beyond reasonable doubt that any of the counts have been proved to the required standard.
Verdicts of not guilty are entered in relation to each of the 21 counts. The accused is discharged from any further proceedings in relation to this indictment.
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