R v Singleton No. DCCRM-97-213 Judgment No. D3619
[1997] SADC 3619
•5 June 1997
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Reasons For The Verdicts of His Honour Judge Bishop
Hearing
12/05/97 to 15/05/97.
Catchwords
Unlawful sexual intercourse offences alleged to have been committed by a step-father against his 22 year old step-daughter from when she was aged between eight and 15 years old - relationship evidence - delay of between seven and 14 years in the allegations being tried - death of the accused's wife (the mother of the complainant) six years after the allegations were initially withdrawn and three months before they were renewed - application for stay of prosecution dismissed - legal authorities referred to - formulation of appropriate legal directions, including as to separate offences; relationship evidence; delay in making and prosecuting complaint; absence of recent complaint; absence of independent supporting evidence; warning to scrutinize with care; discrepancies, inconsistencies and peculiarities in evidence; disadvantageous effects upon accused of delay and death; conflicting versions - whether complainant's evidence of complaint is admissible in absence of evidence from recipient - consideration of the evidence - verdicts of not guilty entered - accused discharged.
Representation
R:
Counsel: Mr P F Muscat - Solicitors: Director of Public Prosecutions
Accused Brian John Singleton:
Counsel: Mr M T Boylan - Solicitors: Hume Taylor &; Co (Whyalla)
DCCRM-97-213
Judgment No. D3619
5 June 1997
(Criminal)
RvSINGLETON
Criminal
Judge Bishop
Background
Brian John Singleton ("the accused") was tried before me sitting as judge alone at Port Augusta between Monday 12 May 1997 and Thursday 15 May 1997 for three alleged offences of unlawful sexual intercourse with his step-daughter ("M") at Whyalla between 1981 and 1991, namely,
count 1- unlawful sexual intercourse with a person under 12 - in that, between about 7 March 1981 and 6 March 1984, he had sexual intercourse with M, a person under the age of 12 years, by causing her to perform an act of fellatio upon him: contrary to section 49 (1) of the Criminal Law ConsolidationAct, 1935 ("the Act");
count 2- unlawful sexual intercourse - in that, between about 7 March 1987 and 6 March 1988, he had sexual intercourse with M, a person of the age of about 12 years, by inserting his finger into her vagina: contrary to section 49
(3) of the Act; and
count 3- unlawful sexual intercourse - in that, between about 1 April 1990 and 1 January 1991, he had vaginal sexual intercourse with M, a person of the age of about 15 years: contrary to section 49 (3) of the Act.
Being satisfied that special reasons here existed for dispensing with compliance with the time requirements of the Juries Rules 1996, as to election for trial by judge alone, namely, funding problems and the late supply by the Crown of a detailed statement from M, both of which resulted in the accused not being able to obtain the considered advice of counsel until the day before the trial was listed to commence, such dispensation was here granted.
Application for stay of proceedings
As a preliminary application, Mr. Boylan, counsel for the accused, sought an order that trial of these alleged offences be stayed as an abuse of the process of the court.In outlining his submissions, Mr. Boylan explained (because I had not, and still have not, perused the declarations contained on the judge's file):
- that M's allegations were first brought to the attention of the police in September 1990;
- that M first made a statement to the police in November 1990, more than nine years after the commencement date in relation to the first alleged offence;
- that M decided in 1990 not to proceed with these allegations, about which the police did not then speak with the accused;
- that M's mother died in April 1996, when M was 21 years old;
- that M made a further statement to the police in July 1996, in which she resurrected these allegations which she had previously made and not proceeded with in 1990;
- that the police first spoke with and charged the accused with these alleged offences in August 1996;
- that the accused was committed for trial in October 1996; and
- that the accused's solicitor was first supplied with the statement that M had made to the police in November 1990 on the day before this trial commenced, that is about six and a half years after the statement was made.
Throughout the whole of the period of time during which these three offences (and other similar offences which were not here charged, but with regard to which the Crown proposed here to adduce evidence) are alleged to have occurred, the accused and his wife (M's mother) were living together in the family home at Whyalla.M was born on 7 March 1975.In relation to the first alleged offence, M was then as young as six years old; in relation to the second alleged offence, she was then as young as 12 years old; and, in relation to the third alleged offence, as young as 15 years old.She is now 22 years old.
In Mr. Boylan's submission, because of the death of the accused's wife last year (about six and a half years after M first complained to the police and then declined to proceed with these allegations, and about three months before M resurrected these allegations), fair trial of the accused is not now possible, as the accused has been deprived of the opportunity of calling the witness most pertinent to his defence, who lived in the house where and when these offences (and other incidents) are alleged to have occurred and who could have assisted in rebutting M's allegations (including the allegation that the accused had what appeared to be a lump on his penis) and in addressing any motive which M might have had for giving false evidence against her stepfather.
That the right of an accused person to receive a fair trial is one of several entrenched rights in our legal system, in the interests of seeking to ensure that innocent people are not convicted of criminal offences, was recognized by Mason C.J. in Jago v The District Court of New South Wales and others (1989) 168 CLR 23, at 29.It is inconceivable, his Honour there remarked, "that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process."However, his Honour continued (at 31), the inherent power to order that a criminal prosecution be stayed will be used only in most exceptional circumstances.
"The test of fairness which must be applied" (Mason C.J. there stated, at 33), "involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial ...At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed ... will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused".
In Jago's case (supra), Brennan J. (as he then was) referred (at 47) to obstacles that are often encountered in the way of a fair trial as including adverse publicity, adverse public revelations, absence of competent representation or the death or unavailability of a witness but said, "they do not cause the proceedings to be permanently stayed."The responsibility cast on a trial judge to avoid unfairness is discharged, his Honour there observed, "by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer."
In Jago's case (supra), Deane J referred (at 58) to circumstances which can arise where delay produces a situation in which "any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process" as possibly including,
"Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution ... where the relevant material had been available to the prosecution from the outset and depending on the particular facts".
(My emphasis.)
In there alluding (at 60 and 61) to relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed because the effect of delay on the part of the prosecution was such as to produce a situation, "where any trial will necessarily be an unfair one from the accused's point of view", Deane J referred to the length of the delay, reasons given by the prosecution to explain or justify the delay, the accused's responsibility for and past attitude to the delay, proven or likely prejudice to the accused and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.Those considerations and that test (namely, whether "any trial will necessarily be an unfair one from the accused's point of view") are, to my mind, also here pertinent and applicable.
Upon the necessarily limited material of which I had been informed (because I was sitting as a judge alone) and in application of the legal principles enunciated in Jago's case (supra), I was not persuaded that trial of the accused would necessarily here be unfairly prejudiced because of the death of his wife last year.In my view, any disadvantage to the accused by the death of his wife may fairly be counterbalanced by the giving of appropriate directions in due course.For these more comprehensive reasons, the application that this trial be stayed was dismissed (see transcript, at pages 32 and 33).
Examination in chief of M
Essentially, the Crown case against the accused depended upon the unsupported evidence of M who, as previously indicated, is now 22 years old.M is the youngest of four children.Her parents separated when she was six and divorced when she was seven.Her father then moved to Sydney.M and her three siblings continued to reside in Whyalla with their mother.There her mother formed a relationship with the accused.They lived together.In October 1982, twins were born to them and, in June 1983, they married.M and her siblings continued to reside with their mother and the accused.
(Count 1)
According to M, when she was seven years old and after the twins were born but before her mother and the accused were married (that is, between October 1982 and June 1983, when she was aged between seven years and seven months and eight years and three months), the accused first committed a sexual offence against her.Of that alleged offence (which is here the subject of count 1), M was asked (at 47),
"Do you remember how long before they married that he first did anything to you",
to which she answered,
"I'm not quite sure; couple of months ...I know that, I remember the twins being born."
(Two months before that marriage, M was eight years and one month old.)
In describing that first alleged offence, M said that the accused had told her to go into the toilet and there wait for him.She could not remember that anyone else was in the house at the time.The accused entered the toilet and closed the door.At his direction, she sat on the toilet seat.He pulled down his pants, exposed his penis, told her to open her mouth and placed his penis inside her mouth.With his hand on the back of her head, he moved her head backwards and forwards over his penis.She could not remember if the accused ejaculated "that first time".(In opening the Crown case, Mr. Muscat indicated (at 34) that, M thought that the accused had then ejaculated inside her mouth.) The accused told her not to tell anyone, saying that, "it was our little secret and that, if I did, I would be the one that would get in trouble" (evidence, at 50).He told M to go to the bathroom and wash out her mouth, which she did. She did not tell anyone what had happened, because she was too scared.
(Relationship evidence)
M then described, in evidence, how the accused subsequently and "quite often" ('it just seemed like all the time') repeated that behaviour, sometimes in the toilet, sometimes in other rooms and once in the toilet at the house of family friends, Mr. and Mrs. Jones.On every occasion, the accused told M not to tell anyone.She did not tell anyone, because she was too scared.
(That subsequent conduct and other conduct not here charged was lead in in evidence, without objection, for the purpose of indicating the nature of the relationship that allegedly existed between the accused and M and to place these alleged offences into a proper context of what, on the Crown case, was a prolonged course of sexual misconduct by the accused towards his step-daughter. I shall later return to that evidence.)
In 1984, when M was about nine and a half years old, she went to Sydney with her elder brothers and there lived with her father and his de facto wife for about three years.It was, she said (at 56),
"supposed to be a holiday, but we decided not to come back. ...I had been told by my two brothers that my mother didn't want me any more and I didn't want to come back, because of [the accused]. ...Because I didn't want him to do the things that he was doing to me."
In Sydney, she did not tell her father of what the accused had been doing to her, because she was too scared and because the accused had told her that she would get into trouble if anyone knew (evidence, at 57).
(Count 2)
In 1987, when M was twelve years old, she returned to Whyalla and again lived with her mother, the accused, her elder sister (Julie) and the twins.She could not recall for what reason she had then returned to Whyalla.However, she was not then concerned that the accused would continue his misbehaviour towards her, because she was older.Less than two weeks after her return, the accused allegedly reoffended.(That alleged offence is here the subject of count 2.)
M said that there was held at their house a celebration because a Pug dog owned by her mother and the accused had won the Australian championship at a dog show.M was in bed wearing "pyjamas".Her mother was, "Out in the carport with her friend."The accused came into M's bedroom, sat down on the side of her bed and said, "I'm not going to hurt you".He told her to take off her pants, to which M replied, "No".He pulled her pants down (she thought she was wearing a nightie), put his hands between her legs, began playing with her vagina, put his finger into her vagina and kept moving it in and out, during which time neither she nor the accused said anything.
According to M, her elder sister, Julie (who was sleeping in the sleepout)
then walked past the bedroom.The accused quickly pulled the covers over her, got up and stood near a recess in the room.(In opening, Mr. Muscat said (at 36) that M quickly pulled the bed covers over herself.)Julie came into the bedroom and asked where was the accused.The accused stepped out and said, "I was playing hide and seek with her", to which Julie replied, "Oh, that's all right" and walked out.The accused then left the bedroom.
Later that night (within half an hour, M thought), Julie returned to the bedroom and asked what was going on, to which M replied, "Nothing", because, she said in evidence (at 65), the accused might come back.Julie said, "Don't lie to me" and kept asking what was going on.At Julie's request, M then went to Julie's room where M told her sister what had been going on.According to M (at 65 and 66), she there told her sister:
"that [the accused] had been touching me, and she asked me what he did, and I said that he had been playing with my vagina, and that when I was younger he used to make me suck his penis....Julie said, 'We have to tell someone', and I said 'No', and she said to me that we could tell Auntie Lila [Mrs. Jones], and I said 'Okay'."
M said (at 66) that she did not tell her mother what had happened that night,
"Because we had agreed we were going to tell Lila [and] I didn't want Mum to know [because] I was just too scared, I thought she wouldn't believe me."
She also said that she was scared of "rejection".(Mr. Boylan objected to the reception in evidence of what was there allegedly said between M and her elder sister, Julie.I shall later consider that objection.)
Next day, M and her sister spoke with Mrs. Jones.The three of them then spoke with M's mother.(Mr. Boylan's objection to evidence of what M had said to Mrs. Jones and her mother was upheld.)At the time, the accused was at work as a security guard at Santos.M's mother and Mrs. Jones then drove to Santos to speak with the accused.When they returned, M was told by her mother that she was going back to Sydney to live with her father.That day she flew back to Sydney.She did not tell her father what had happened between the accused and her because, she said (at 70), she "didn't see any point....There was nothing I could do about it now."For the next two and a half years, M resided in Sydney with her father.
(Further relationship evidence)
On 1 May 1989, M's sister, Julie, gave birth to a baby in Whyalla.The following day, when M was 14 years old, she returned with her father and his new family there to live.She began to become friendly with her mother.After six months, her father and his family returned to live in Sydney.M then resided with Mr. and Mrs. Jones.She did not return to Sydney, because she was beginning to become close to her mother again and did not want to go there. She was then in Year 10 at High School.
After living with Mr. and Mrs. Jones for about four or five months and soon after her fifteenth birthday in 1990, M returned to live with her mother, the accused and the twins because, she said (at 74) her mother wanted her to come home and she wanted to be with her mother.She did not have any continuing concerns about the accused, "Because I thought I was older."According to M (at 74), before she returned home, the accused spoke to her and said,
"the condition of moving back into his house is that I would have to do what he wanted.",
by which she understood was meant that she "would have to welcome his [sexual] advances."Asked (at 74),
"If that was your understanding, why did you agree to return to ... with your mother and stepfather",
M replied,
"[The accused] told me that, if I didn't agree with this, he would tell my mum that I couldn't live there, and I thought he couldn't very well tell her that he wouldn't let me live there because I wouldn't let him touch me, so I thought, once I was living in the house, I wouldn't let him touch me."
Upon returning home, M thought that she shared a bedroom with her younger (then about eight years old) half sister (Danielle), who was one of the twins.
According to M, within a couple of weeks of returning home, the accused again reoffended.(This alleged offence was one of the other occasions not here charged.)In her evidence (at 75),
"[The accused] had asked me to go into his bedroom, so I did, and I was sitting on the bed and he came in and he undid his trousers and told me to open my mouth and I said 'No'.And he told me to use my hand then, so I did.And he made me masturbate him until he ejaculated."
M did not tell anyone about that incident, because she thought that she was old enough to handle it, by which she meant that she could 'stop it herself'.
(Count 3)
The next (and last) offence (which is here the subject of count 3) occurred, M said, "quite a while" after that incident.The accused told her to go into his bedroom.He came in after her and told her to take off her clothes.She told him that she did not want to do so.(This occasion, it would appear, was the first time that the accused had ever asked her to take off her clothes.It would also appear to be the only occasion on which penile vaginal penetration is alleged to have occurred.)That day she had been to school.Again the accused told her to take off her clothes.She would not do so.The accused then lay her down on the bed and told her to take off her pants.She did so, because the accused "kept telling me to."He began playing with her breasts and kissing her on the mouth.In her evidence (at 78),
"[The accused] undid his trousers and I noticed he had an erection, and he just kept kissing me and everything, saying it was all right, then he laid on top of me and ... he pushed his penis inside my vagina.I asked him to stop, because it hurt.And he did.And he got off."
She continued (at 78 and 79),
"I got up and put my knickers back on....After he went out the room, I followed him and we were in the kitchen and I asked him why he was doing this and he said it is because I enjoyed it....I said [that] I didn't."
M said that she then went for a walk, until her mother came home.She did not tell her mother what had happened because, "I knew she wouldn't believe me... Because she didn't before", referring to when she was twelve years old and her mother had sent her back to Sydney.
Next day, M said that she told her school friend, Victoria O'Connor, what the accused had done to her."I just told her that [the accused] had been making me do things that I didn't want to" (evidence, at 80).(To that evidence, Mr. Boylan objected.I shall later consider that objection.)A couple of hours later, she spoke to her male science teacher.The Department for Family and Community Services (FACS) was informed and, a couple of weeks later, in September 1990, she was removed from home.Before she was removed, 'quite a few times' the accused came up behind her, she said, and grabbed her on the breasts.Of those occasions, she did not tell anyone because (at 83),
"They already knew that he'd been doing things to me.There didn't seem a point in saying anything else."
M said (at 83 and 84) that, during the time when the accused was sexually abusing her, she had noticed that there was a lump on the side of his penis, which was a little larger than a pimple and which she thought was a wart.She also said that she had approached her sister, Julie, who lives in Whyalla, here to give evidence, but she did not want to become involved.
Cross-examination of M
In cross-examination, M agreed that she had made a statement to the police on 15 November 1990, a couple of months after she had spoken to her science teacher.She agreed (at 89) that, in that statement, she had said that, about the time when her mother and Mrs. Jones went to Santos, her mother had had a female friend at the house.She agreed with the suggestion (at 89) that the dog had won the championship in July 1987, but disagreed that the celebration had been held at the house of Mr. and Mrs. Kirk, who had bred the dog.She did not agree (at 91 and 92) that the dog celebration was not close to the occasion when her mother and Mrs. Jones had gone to Santos.
M said that she thought that Julie, who had encouraged her to complain about the second alleged offence, was "kicked out" from home on the same day that M returned to Sydney, because Julie was not allowed to see her boyfriend, who later became the father of her child.She did not think that the carport had a roof in 1987, "but it was still where they parked the cars."(She agreed (at 94) that she had told the police, in 1990, that she had seen the carport light turn on, but that, in fact, there had never been a light there, "it could have been the porch light or a car door light."She also agreed that there had never been a carport at the house.
M accepted that Danielle, her younger half-sister, sometimes slept with her during the two weeks in 1987 when she lived in Whyalla.She did not know whether Danielle (who was then about five years old) was sleeping with her in the single bed on the occasion of the second alleged offence, although "Possibly, yes."There was no door to the bedroom.The bed was directly in line with the doorway.
M agreed, in cross-examination (at 104), that "every kid's wish" is for their real parents to get back together and that that was her wish.However, she denied having resented the accused's relationship with her mother.She could not remember the reason for which, in 1987, she returned to Whyalla.She 'did not know' and 'did not remember' whether she had made any suggestions that somebody in Sydney had sexually abused her.She did agree, however, that she had there complained to her father that her stepmother had physically abused her.
M agreed that, in a statement that she made to the police in July 1996, she had said, in relation to the first alleged offence, that the accused had taken her back into the toilet, but that was not correct.She also agreed that she had there said, in relation to the second alleged offence, that the accused had put his mouth on her vagina.(Of that allegation, she did not here give any evidence.)She further agreed that, in her statement to the police in 1990, she had said (contrary to her evidence here given) that the second alleged offence occurred after Julie had left the bedroom.That error she here sought to explain by saying (at 109), "When I wrote this statement last year [sic], I was going by my memory" and, (at 110), that she did not know whether it occurred before or after Julie came into the room.
In cross-examination (at 113), M agreed that, when she spoke to the police in 1990, she did not mention that she had spoken to Victoria O'Connor after the third alleged offence; and that she had first told the police of that conversation in 1996.She also agreed (at 114) that, when she had spoken to an officer from F.A.C.S. in October 1990, she had said (incorrectly) that there had been no sexual penetration on the occasion of the third alleged offence.M agreed, also, that when spoken to by an officer of the Child Protection Services in November 1990, she did not say that the accused had ever inserted his penis into her vagina.
M explained, in cross-examination (at 116 and 117), that after making her statement to the police in 1990, she then instructed the police that she did not wish to proceed with the matter, but after her mother's death (from cancer), in 1996, she did proceed with the matter, with Mrs. Jones' encouragement.When she spoke to the police last year, she understood that Mrs. Jones' grandson had made allegations about the accused.Upon becoming aware of those allegations, she decided to renew her 1990 complaint against the accused.
Re-examination of M
In re-examination, M explained:
- that she had not told the police in 1990 of having spoken to Victoria O'Connor because, "at the time we were just kids; I didn't think they would be interested in me telling another child";
- that she did not tell the officers from F.A.C.S. and the Child Protection Services in 1990 that the accused had placed his penis into her vagina because, "I felt ashamed enough, I didn't think they needed to know about that ...I didn't want them to know about that";
- that she did not want to proceed with the matter in 1990, "Because I had lost everything anyway.My mum didn't want to know me.I just thought I may as well get on with my life"; and
- that after her mother's death last year, she had approached the police and indicated that she wanted some action taken, "Because, when I was 15 years old, I swore to myself, if I had any suspicion that [the accused] did this to any other child, that I would do something about it" and last year, when she went to the police, she had such a suspicion.
A necessary legal direction
It is here appropriate that reference be made to a matter of considerable importance in relation to the information, upon the first three counts of which the accused is here being tried by me without a jury.(This matter I drew to the attention of counsel, at pages 184 to 186 of the transcript, when appreciating the importance of it.)
When the accused first appeared before me, at the commencement of this circuit session on 21 April 1997, he was arraigned upon an information which alleged against him the three offences of unlawful sexual intercourse with M, upon which he is now being tried.The information also alleged four offences of indecent assault, two of which related to his daughter, Danielle, and two of which related to a young boy who is the grandson of Mrs. Jones.Upon his arraignment before me that day, in the absence of legal representation, the accused pleaded not guilty to the offences alleged against M and his daughter, Danielle, but guilty to the two offences of indecent assault alleged against Mrs. Jones' grandson, at Whyalla,on or about 30 June 1996 - that is, about two months after M's mother died and (more importantly) 14 days before M made her further statement to the police on 13 July 1996.
Knowledge that the accused has pleaded guilty to those two offences (a suspicion about which was promptly followed by M resurrecting her 1990 allegations against the accused) would, in my view, necessarily have resulted in disqualification of a juror from sitting on this trial, were the case being tried with a jury.Of my knowledge, I informed counsel and indicated that, were the trial to continue, I would certainly put that knowledge out of my mind.Upon Mr. Boylan then indicating that he was not instructed to make application for a mistrial, I confirmed that I shall direct myself not to make any use of that knowledge of which a jury would not be permitted to make use.
Effectively, therefore, as the jury, my knowledge is here confined to the undisputed fact that M resurrected these 1990 allegations against the accused within three months of the death of her mother in 1996 and, on her evidence, when she had become aware that Mrs. Jones' grandson had made allegations against the accused and she 'suspected' him of having offended against another person.
Other prosecution evidence
With that diversion, returning to the evidence, Mrs. Jones (the second witness for the prosecution) had been a friend of M's mother for about 20 years. Unlike M, she could not recall an occasion when M returned to Whyalla by herself.(Indeed, she was quite emphatic that that had not occurred.In her evidence, M had returned to Whyalla with her father and his family.)
Mrs. Jones recalled the occasion when, after M and Julie had spoken to her and then to M's mother, M's mother and she drove to Santos and there spoke with the accused.According to Mrs. Jones (at 125),
"Mrs. Singleton turned around and said [to the accused] that M had made allegations that he had sexually assaulted her and [the accused] turned around and said words something like 'That's just rubbish.Don't be stupid.'And, 'I'll deal with it and speak to you when I get home.'"
When the two women returned to Whyalla, M's mother made telephone calls and arranged for M that day to fly back to New South Wales.According to Mrs. Jones, M had then been living in Whyalla for about ten months (about six months, she said in cross-examination) and had been living with her mother and the accused for 'only two or three weeks'.
Mrs. Jones said that M then remained in Sydney for about three years, before returning in 1989 with her father and his family, when Julie's son was born. After M's father and his family again returned to Sydney, M resided with Mrs. Jones for 'almost 12 months'.She then lived with her mother and the accused for 'three weeks to a month', before being housed in foster homes in Whyalla.
In cross-examination, Mrs. Jones denied that, when M's mother was speaking with the accused at Santos, the accused had said words to the effect that, "How could I possibly have done that because Danielle was sleeping in the same bed as M that night".Mrs. Jones said that the other children's names were not there mentioned.Her recollection was that they were only at Santos for about 20 minutes and that they had gone there in the car belonging to M's mother and the accused.
A medical practitioner examined the accused on 1 August 1996, after he had been arrested.No palpable lumps in the accused's genital area were observed. When arrested, the accused lawfully declined to answer any questions until he had spoken with a solicitor.
Twice the police have approached M's sister, Julie, who indicated that she did not here wish to give either a statement or evidence.(M here said that Julie is friendly with both the accused and her.)Police efforts to locate Victoria O'Connor were unsuccessful.
Submission of no case to answer
At the conclusion of the Crown case, Mr. Boylan submitted that there was no case for the accused to answer in relation to the first alleged offence. During the whole of the period there alleged (that is, between about 7 March 1981 and 6 March 1984), section 76a of the Act was in force and provided a statutory period of three years within which a sexual offence could be charged. (That section was repealed by the amending Act which came into operation on 1 December 1985.)
In Mr. Boylan's submission (at 136 to 138), based on R v Pinder (1989) 155 LSJS 65,
"so long as it remains a reasonable possibility that the offence alleged in count 1 had been committed before 1 December 1982, then ... the accused had an accrued right ... of a substantive defence to the charge ... the cut-off date for the benefit of the old section 76a was 30 November 1982, and here the Crown cannot prove that count 1 did not occur before that date."
In response to that submission, Mr. Muscat replied that, upon M's evidence (at 47) that, although she was not quite sure, the first alleged offence occurred a "couple of months" before the marriage of her mother and the accused in June 1983, there is evidence upon which a finding could be made that that alleged offence was committed after 30 November 1982 and before 1 December 1985 and, therefore, was not statute barred.
In acceptance of Mr. Muscat's submission, I indicated (at 148) that, in my view, there was evidence in relation to each element of each of the three alleged offences sufficient to make out a case to answer.Although 'fellatio' was not specifically provided for in the Act until 1985, with the amending Act 83 of 1976, "sexual intercourse" was defined as including the introduction of the penis of one person into the mouth of another, that being the offence here alleged in count 1.
The evidence of the accused
In his defence, the accused, who is 44 years old and now unemployed, gave evidence and did not call any other witnesses. He lived with M's mother from late 1981 until her death last year.Generally speaking, he agreed with the historical account here given by M.In his evidence, about three months after he married M's mother in June 1983, the four children from her previous marriage went to live with their father in Sydney, because he had had enough of the boys' fighting and his wife agreed to send the children to their father for a while.
The accused recalled that, for about three weeks in 1987, M returned from Sydney because she wanted to be with her mother and him.She went back to Sydney on the day that his wife and Mrs. Jones visited him at Santos.That day, he recalled, was Sunday 20 September 1987, the day of the local football grand final.On the previous Friday night, he had gone to the Buff Lodge with Mr. Kirk.Afterwards, Mr. Kirk had returned home with him and remained there until about 1 a.m. on the Saturday morning.Mrs. Kirk was not there present. There was no carport on the property.The carport was not erected until 1992.
On that Friday night, the accused said that M slept in a bedroom with his daughter, Danielle; he remembered that, he said (at 157), "because allegations were made against me by M and I said [when his wife and Mrs. Jones came to Santos], 'It's impossible because she was sleeping with her sister who is a light sleeper'."He said that he took the family car to the football grand final on the Sunday.When he returned home, M was standing on the front verandah.He did not speak to her.She then left the house to return to Sydney.
The accused denied having been in M's bedroom on the Friday night when she was in bed.He said (without objection) that he had recently contacted Mr. Kirk, who was unable here to attend and give evidence but did recall being in the accused's lounge room that Friday night.
The accused said that the dog had won the championship in July 1987, when M was not living with them, rather, he thought, with Mrs. Jones.(In cross-examination (at 171), he said that M must then still have been living in Sydney.)The championship certificate (dated 28 July 1987) was here tendered. His wife was present at the championships.A celebration was held not at their house, but at that of Mr. and Mrs. Kirk.
The accused said that he has never had a lump on his penis.He confirmed that Julie did not want here to become involved.
Before M returned to live with her mother and the accused in 1990, the accused said that there was a conversation at which his wife, M and he were present. According to the accused (at 162),
"My wife and I said to M, 'If you want to come back and live with us, you may do so if you stick to the conditions of the house",
by which was meant, "Just do as she was told to do, no hassles and things like that."
The accused denied having committed these three alleged offences and denied having ever sexually interfered with M.
In cross-examination, the accused said that, when his wife and Mrs. Jones came to Santos, his wife was obviously upset.He told her that M's allegation was untrue and that they would discuss it when he came home that night.The accused said (at 175),
"I took the allegations seriously, we sat for an hour and discussed it, and when she left she wasn't crying, I was upset, and I thought the matter had been solved in the hour in the office."
He then watched the last quarter of the football grand final, "because I thought the matter had been solved at work."When he returned home, his wife said to him, "To save any hassles we'll just send M back to her father."M's allegations, he said, did not have any effect on his relationship with his wife.
Of M's allegations in relation to count 2, the accused said that he was "shocked" and, in relation to count 3, that her removal from their house by F.A.C.S. came as a "big surprise".
Directions as to the law
Upon the evidence and the issues that here arise, I give myself the following legal directions.
(1) The prosecution bears the onus of proving beyond reasonable doubt each element of each alleged offence, separately considered.There is a presumption of innocence in favour of the accused.
In this context, the words "reasonable doubt" have the meaning which they ordinarily bear in the English language.
(2) The accused is not obliged to undertake to prove anything.He may do so if he wishes, but at all times the prosecution bears the onus of proving the accused's guilt of each alleged offence, separately considered.
(3) Each alleged offence is to be considered separately; that is, the evidence relating to each alleged offence.The evidence with regard to any one alleged offence must not be confused or considered when considering the evidence relating to another alleged offence.It does not follow that, because the verdict may be that of guilty or not guilty with regard to any one alleged offence, the verdict should be the same with regard to another alleged offence.
However, because proof of the case for the prosecution with regard to each alleged offence is necessarily dependent upon an acceptance of M's evidence, I should consider what effect a verdict of not guilty with respect to one alleged offence may have upon my ability sufficiently to rely on the evidence of M to convict the accused of any other of the alleged offences.
(4) The offences alleged in these three counts are created by section 49 (1) and (3) of the Act which provide:
"49 (1) A person who has sexual intercourse with any person under the age of twelve years shall be guilty of an offence",
and
"49 (3) A person who has sexual intercourse with a person of or above the age of twelve years and under the age of seventeen years shall be guilty of an offence".
Consent to sexual intercourse is not a defence to a charge against that section.At the times of these three alleged offences, that is, between about 7 March 1981 and 1 January 1991, M was under 17 years.
At the times of these three alleged offences, the meaning of "sexual intercourse" included penetration of the vagina by any part of the body of another person or by any object, and included the introduction of the penis of one person into the mouth of another person.
As here presented, the issues are clear:did the accused insert his penis into M's mouth (count 1), did he insert his finger into her vagina (count 2) and did he insert his penis into her vagina (count 3), as she has alleged and he has denied?
(5) This case is primarily concerned with the separate commission of alleged offences between about 7 March 1981 and 1 January 1991 at Whyalla.However, in addition to there having here been received evidence relating to those alleged offences, there was also here received evidence relating to other incidents, which were said to have occurred between the accused and M on other occasions and which are not here the subjects of any alleged offences.
Generally speaking, a jury is not informed of alleged behaviour or misconduct of an accused person on any occasion other than the occasions which are the subjects of the charges being tried.The evidence relating to those other occasions may here be described as evidence of the relationship which is said to have existed between the accused and M during the commission of these alleged offences.It is important that I be directed as to the uses which I (as the jury) am entitled to make of such evidence and, even more importantly, the uses to which such evidence must not be put by me.
That evidence, the evidence of what is said to have occurred between the accused and M on occasions which are not here the subjects of alleged offences, was here received or admitted into evidence as indicating, if I (as the jury) accept that evidence or any part of that evidence as having been established beyond reasonable doubt, the nature of the relationship which existed between those two persons around the times in question, and as establishing, again, if I (as the jury) accept that evidence or any part of that evidence as having been established beyond reasonable doubt, the context and setting in which these alleged offences are said to have occurred - a relationship, context or setting which was not of an innocent character but which pointed strongly to the commission of the offences in question - a relationship, context or setting that I (as the jury) would be entitled to conclude was improper, as between a step-father and step-daughter, and in which the accused was sexually attracted to M to the extent that he gave physical expression to that attraction (see B v The Queen (1992) 175 CLR 599, at 619, per Dawson and Gaudron JJ.).
That evidence was also here admitted for the purpose, again, if I (as the jury) accept that evidence or any part of that evidence as having been established beyond reasonable doubt, of enabling me properly to appreciate and evaluate the evidence of both M and the accused with regard to these alleged offences.Without the knowledge that these alleged offences are alleged to have occurred in the context or setting of that relationship (whatever that relationship really was, and that is for me (as the jury) to determine), I would not be able properly to appreciate and evaluate the evidence of the two participants as to these alleged offences.
Moreover, the significance of M's failure to complain of the alleged conduct for some years must be evaluated in the light of the relationship which I (as the jury) find to have existed between the participants, including the course of alleged sexual misconduct (see King C.J. in R v Dolan [1992] 58 SASR 501).
Those, therefore, are the proper or permitted uses or purposes which I (as the jury) am entitled to make of that evidence of the relationship which previously existed between the two participants.However, as indicated, it is also important, even more important, that I (as the jury) be directed as to the uses or purposes to or for which that evidence must not here be put by me.
The accused can here be convicted of one or more of these alleged offences, separately considered, only if I (as the jury) am satisfied beyond reasonable doubt that the conduct alleged in the offence that I am separately considering did occur.It is not permissible for me to convict the accused of any one or more of these alleged offences on the basis that, although the conduct identified in any one or more of the alleged offences has not been proved beyond reasonable doubt, nevertheless I am satisfied (as the jury) that some other, discreditable conduct (that is, conduct described in the evidence of the relationship which existed between the two participants) has been proved.That would be a quite improper or impermissible manner for me to approach consideration of these alleged offences.
Evidence of what is alleged to have occurred between M and the accused on those other occasions which are not here the subjects of any charges must not be used by me (as the jury), when considering each of these alleged offences, as indicating a propensity, inclination or disposition of the accused to commit a crime or crimes of a particular kind, or as indicating that, from his previous behaviour, he is the kind of person likely to have committed these alleged offences, separately considered, and, therefore, that he did commit these alleged offences, separately considered.Such an approach by me to this case would be quite improper.
(6) Just as evidence of a recent complaint made by an alleged victim to another person of what allegedly occurred during the commission of a sexual offence may be introduced into evidence and regarded, if I (as the jury) accept that evidence as having been established beyond reasonable doubt, as evidence consistent with or not contradictory of the alleged victim's evidence, and as being relevant to her credibility as a witness (but not as evidence of the truth of her evidence of what occurred during the commission of the alleged offence), so also the absence of a recent complaint, or a delay in complaining, may be taken into account in evaluating the evidence of an alleged victim.
However, in the case of an alleged sexual offence against a child or young person by a person who had that person's trust or confidence, it should be borne in mind, when assessing that person's evidence and credibility, that he or she might have been reluctant to resist or protest against the person and, for that reason, reluctant also to complain."As well, a child [or young person] in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the [alleged] offender ...And if approached on that basis, the argument with respect to the absence of [or delay in] complaint and with respect to the complainant's apparently normal conduct ... loses all force" (Gaudron J. in M v The Queen (1994) 181 CLR 487, at 515).
(7) The case for the prosecution here depends entirely upon the evidence of M. Her allegations have been denied by the accused.This case is, essentially, one of M's oath against the oath of the accused.There is no independent evidence supportive or confirmatory of M's evidence as to the commission of any of the three alleged offences or the commission of any of the other alleged incidents (the relationship evidence).
Although M is not now a young person (she was 22 years old when she gave her evidence), she was considerably younger when the alleged offences and alleged course of sexual misconduct by the accused towards her commenced.M has here given evidence about events which are alleged to have occurred as long ago as when she was about seven years old.For many years, she did not tell anybody about the accused's alleged continued sexual misconduct.That revelation was only publicly made by her in September 1990, at first to a school teacher and then to the police.At that stage, one may think, the matter had passed beyond M's control and she became locked into the situation which had then arisen, namely a police investigation of her allegations.Moreover, M then did not pursue her allegations against the accused until after the death of her mother in 1996.
In all of those circumstances, and because there exists the possibility of M having been susceptible to the influences of other persons (for example, Mrs. Jones who encouraged her to resurrect these allegations), the possibility of her imagination having run away from her (that is, of her confusing fact with fantasy) and the risk of youthful irresponsibility, which might have prompted a person in M's state of mind to make false accusations, either for an improper motive or purpose, or without pausing to attain an appreciation of the seriousness of the consequences of such a course, it is necessary that I be given a warning with regard to my acceptance (as the jury) of M's evidence.
Such a warning I therefore give myself, namely, that it would be dangerous or unsafe for me (as the jury) to act upon the evidence of M, alone, and to find the accused guilty of any of these alleged offences.In my consideration of these alleged offences, I should scrutinize, consider and evaluate M's evidence most carefully, cautiously and critically, because her evidence is crucial to the case.In so doing, I should consider the possibility of fabrication, fertile imagination, immaturity, irresponsibility and any underlying motive or purpose as possible reasons for M having given false evidence against the accused.
If upon such a cautious scrutiny, consideration and evaluation, I (as the jury) were to conclude that I cannot rely on, or do not accept, M's evidence, then that is an end of the matter and I must find the accused not guilty of any offence.If, however, upon such a cautious scrutiny, consideration and evaluation of M's evidence, and particularly in relation to any motive or purpose for which she might falsely have given evidence, I were to conclude or be satisfied that her evidence was accurate and reliable, then I (as the jury) am entitled to, and may, act upon her evidence and find the accused guilty of these, or any of these, alleged offences, even though or notwithstanding that there is no independent evidence supportive or confirmatory of M's evidence, provided, of course, that all of the elements of each offence have been established.
(8) In assessment of a witness's evidence, I should bear in mind that, "It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events.The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts.Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident.In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be.But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue.If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning detail are of little moment" (McHugh J. in M v The Queen (supra, at 534; my emphasis).
(9) This is a case in which the requirement of a fair trial requires, in my view, that I give myself (as the jury) a strong warning of the potential for error in M's testimony.In application of the observations of McHugh J. in Longman v The Queen (1989) 168 CLR 79, at 108, I warn myself that, in evaluating her evidence, I should bear in mind the following factors:
- that her evidence was independently unsupported;
- that more than 15 years have elapsed since the first of the alleged offences occurred and more than six years since the last alleged offence;
- that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors;
- that the likelihood of error increases with delay;
- that M has testified concerning incidents which allegedly occurred when she was a young child;
- that no complaint was made to her mother (or to anyone else) throughout most of this alleged misbehaviour of the accused; and
- that by reason of the delay which has here occurred in M prosecuting these allegations, and also by reason of the death of his wife last year, the accused has been disadvantaged from being able to explore or examine the circumstances surrounding the alleged offences and other misconduct to ascertain whether those circumstances contradicted or were inconsistent with M's testimony, and that the accused was thereby handicapped in his ability to meet these allegations.
(Legal authorities from which these directions have been derived include: Bromley v The Queen (1986) 161 CLR 315; R v Pahuja [1987] 49 SASR 191; Longman v The Queen (1989) 168 CLR 79; B v The Queen (1992) 175 CLR 599; R v Bryce and Dewar (1993) 170 LSJS 52; Question of Law Reserved on Acquittal (No. 1 of 1993) [1993] 59 SASR 214; Pix v R (1993) 171 LSJS 41; M v R, reasons for decision of the Court of Criminal Appeal delivered on 18 August 1993; Warner v R (1994) 62 SASR 403; M v The Queen (1994) 181 CLR 487; and Jones v The Queen, oral reasons for decision of the High Court delivered on 14 March 1997.)
(10) In a case such as this, where there are conflicting versions by the only two participants on matters central to the case (here the sworn evidence of M, on the one hand, and the sworn evidence of the accused, on the other) there are, for practical purposes, three possible conclusions available to me (as the jury); that is, any one of the three conclusions.
First, I may be satisfied, upon the evidence for the prosecution (that is, the evidence of M), that each and every element of one or more of the alleged offences has or have been proved or established beyond reasonable doubt (and that, of course, is the essential question in the case), in which event my verdicts should be those of guilty with regard to that or those alleged offences.
Secondly, I may consider at the end of the day, having considered all of the evidence (including the sworn evidence of the accused and the evidence presented on his behalf and in cross-examination of the Crown witnesses), that there remains a reasonable hypothesis consistent with the accused's innocence - that is, that there is a reasonable possibility that he is not guilty of any one or more of the alleged offences (that is, that I am not satisfied of his guilt beyond reasonable doubt) - in which event my verdicts should be those of not guilty of that or those offences.
Thirdly, after full and careful consideration of all of the evidence, I may come to the conclusion that I am not able to say where the truth lies, or that I am unable to say which of the two participants is telling the truth (bearing in mind that this is not a question of preference, and that the accused does not here have any burden of proof to discharge; the burden rests on the Crown throughout).If that were to be the conclusion to which I arrive then, of course, my verdicts should also be those of not guilty because, in that situation also, it would mean that I am not satisfied of the accused's guilt beyond reasonable doubt.
Evidence of complaints
As previously indicated, Mr. Boylan objected to the reception of evidence relating to what was said between M and her elder sister, Julie, concerning the second alleged offence, because (he submitted) that evidence was not capable of being regarded as a spontaneous recent complaint by M of that incident, and because Julie was not here called as a witness in confirmation of what M allegedly told her.Objection was also taken, for similar reasons, to the reception of evidence relating to what was said by M to Victoria O'Connor concerning the third alleged offence.
To determine whether a recent complaint made by an alleged victimto another person concerning a sexual offence is capable of demonstrating spontaneity of response and consistency of account, and thereby buttressing the complainant's credit as a witness, it is necessary to consider all of the surrounding circumstances, including the content of any questions asked by the other person and the responses made by the complainant (see R v Gallagher [1986] 41 SASR 73, at 78).Where the person to whom a recent complaint has allegedly been made is not called as a witness, determination of this question may be difficult to resolve.
In relation to the asserted recent complaint by M to Julie, of what allegedly occurred in the commission of the second offence, M's evidence that she only told her sister about that offence in response to Julie saying, "Don't lie to me" and repeatedly asking her 'what was going on', is hardly a satisfactory basis, in my view, upon which to conclude that this evidence has the capacity of demonstrating the necessary spontaneity of response, particularly in the absence of evidence from Julie.
In R v Duell [1964] Qd R 451, at 456, Philp J. (with whom Jeffriess J. agreed) considered that evidence of a woman as to her making of a complaint (and as to the details thereof) was clearly admissible as being relevant to the issue - was or was not a complaint made.His Honour then continued,
"How can that evidence cease to be admissible because the person to whom the complaint is alleged to have been made is dead or cannot remember it being made or denies that it was made?
Whether in fact complaint was made is a matter for the jury.If the woman's evidence of complaint stands alone the jury may think it has no weight but all the circumstances are for their consideration."
(My emphasis.)
Stanley J., after there observing that "it is material for the Crown to prove fresh complaint - like any other fact, beyond reasonable doubt" (at 461); that the complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as being inconsistent with her consent to that of which she complains (at 464); and that "Her sole evidence of fresh complaint might in such cases seem to be a mere self-supporting statement made to bolster up her evidence as to the facts of the offence charged" (at 469), also indicated that a complainant's sole evidence of fresh complaint was admissible.His Honour referred to "the apparent uselessness" of such evidence and remarked,
"In some cases there may be circumstances shown in the evidence which would properly lead a jury to accept the girl's sole evidence that she made complaint with itsparticulars."
In relation to the asserted recent complaint made by M to her sister, Julie, concerning the second alleged offence, I do not consider (as a question of law) that there is evidence sufficient to have the capacity of being regarded by me (as the jury) as a recent complaint.M's evidence of that complaint will, therefore, not here be admitted.Were I to be wrong in that regard, in the circumstances which have now been shown to exist - namely, that although M's sister is still resident in Whyalla, she does not want to become here involved, and she has not been called to give evidence - I do not consider (as the jury) that any weight should here be attributed to M's evidence of that complaint.
Similarly in relation to the asserted recent complaint made by M to her school friend, Victoria O'Connor, concerning the third alleged offence, while I do consider (as a question of law) that there is evidence sufficient to have the capacity of being regarded by me (as the jury) as a recent complaint and her evidence is, therefore, admitted for that purpose, I do not consider (as the jury) that any significant weight should here be attributed to that evidence.
Findings
Having seen and heard M give evidence, I found her to be an intelligent, articulate and forthright young woman.She gave her evidence directly and without any hesitation or reluctance, although occasionally she appeared to be under stress.
In assessing her evidence, I have taken into account the everyday experience (alluded to by McHugh J in direction (8), above) that honest witnesses are frequently in error about the details of events.As Brennan J. (as he then was) colourfully expressed the position in M v The Queen (supra, at 507),
"Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth."
In a case such as this, which is concerned with allegations of child sexual abuse, the focus, as Brennan J. there observed, must be on the veracity of the witness and the assessment made by the jury.
In a number of respects, there were demonstrated some discrepancies, inconsistencies and peculiarities in what M has said about these alleged offence, some of those features being of more or less significance than other features.Briefly I shall refer to some of a number of those features in generally surveying her evidence.
Accepting M's evidence that the first offence (fellatio) is alleged to have occurred around April 1983, a "couple of months" before her mother married the accused, that offence occurred 14 years ago, when M was eight years old.She here said that the accused told her to wait in the toilet.Last year she told the police that he had taken her there.Such a discrepancy, although minor, is of very recent origin.
Most of the 'relationship' evidence was confined to the period of about 18 months before M went to Sydney in 1984, about the age of nine and a half years. That evidence, which was entirely confined to further acts of fellatio, derived solely from M, without any independent confirmation or support.When she went to Sydney in 1984 for three years, she did not tell her father of the accused's misconduct, because she was too scared and the accused had told her that she would get into trouble if anyone knew about it.
In 1987, when she was 12 years old, M returned to Whyalla and lived with her mother, the accused and their twin children for about two weeks.When the second offence (digital penetration) is alleged to have occurred, M was in a bedroom without a door, in a single bed directly in line with the doorway and her five year old step-sister was also "possibly" asleep in that bed.M here said that the offence occurred before Julie entered the bedroom.In 1990, she told the police that the offence occurred after Julie had left the bedroom. Last year she told the police that, on that occasion, the accused had put his mouth on her vagina.She did not here give evidence to that effect.She accepted that, contrary to her evidence, there was not then a carport next to the home.(She said that her mother was in the carport at the time.)When she returned to Sydney, she did not tell her father what had happened, because there was nothing she could do about it.However, she did there complain to him that her step-mother had physically abused her.
In 1989, when she was 14 years old, M returned to Whyalla.In 1990, when she was 15 years old, she resided with her mother, the accused and the twins for about a month.Although she understood that she was permitted to live there providing she acceded to the accused's sexual advances, she felt that she was old enough to cope with the situation.Within two weeks, she was required to masturbate him, having refused his request for fellatio.She did not tell anyone.
'Quite a while after' that incident, the third offence (penile vaginal penetration) is alleged to have occurred (for the first and last time).M did not tell her mother of that offence, because she knew that her mother would not believe her.She here said that next day she told her girlfriend, Victoria O'Connor.She did not tell the police of having told Victoria until last year. She spoke with an officer of F.A.C.S. and incorrectly said that vaginal penetration had not occurred.She also spoke with an officer of the Child Protection Services and did not tell of any vaginal penetration.Her reasons for that misstatement and omission were that she felt ashamed and did not think that there was any need for those persons to be informed.
Having made complaint to the police in 1990 about these alleged offences, soon thereafter M indicated that she did not desire to proceed with them.Last year, soon after the death of her mother, she made another statement to the police and these old allegations were renewed because, M said, she suspected that the accused had offended against Mrs. Jones' grandson and Mrs. Jones had encouraged her to renew these allegations.
In assessment of the accused, he also presented as an alert and direct witness.He was not detected in any falsehood.Bearing in mind the allegations that had been made, he gave his evidence in a somewhat detached manner.The only respect in which I had difficulty in following his account was in understanding why, in view of the allegations with which he was presented by his upset wife at Santos in relation to the second alleged offence, the accused did not speak with M upon returning home and before she returned that day to Sydney.His explanation was that, by then, the matter had been resolved.In that regard, for a person wrongly accused of serious misconduct towards his step-daughter, to my mind his sangfroid was somewhat surprising.
With regard to the long delay of between seven and 14 years in these alleged offences being tried, which delay has resulted from M's decision not to pursue the allegations that she made to the police in 1990, such a delay can be disadvantageous to an accused person.However, as Deane J. observed in Longman's case (supra, at 100-101),
"In the context of the criminal onus of proof, it can be even more disadvantageous to the prosecution" because, "in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinised with very great care indeed."
Certainly, in my view (as the jury), the accused has here been disadvantaged, both by this long delay and the death last year of his wife, from being able to explore and examine the circumstances surrounding these alleged offences (and the other alleged misconduct) and to ascertain whether those circumstances contradicted or were inconsistent with M's testimony.Were his wife to be alive, the accused would have been able to explore, examine and, possibly, confirm the history of their relationship with her four children and the troubles which led to these children being sent in 1984 to live with their father in Sydney.
In relation to the second alleged offence, the accused has been further disadvantaged, in my view (as the jury), by the long delay and the death of his wife.According to both M and the accused, when she was told of this allegation his wife immediately that day returned M to Sydney.According to M, her mother did not believe her allegations.Were she to be alive, the accused's wife could have deposed about whether Danielle had slept in the bed with M that night.She could also have given evidence as to whether, when she went to Santos, the accused did explain that the allegation was impossible because Danielle had slept in the same bed that night (about which explanation there was conflict in the evidence of Mrs. Jones and the accused).
In relation to the third alleged offence, in my view (as the jury) the long delay and the death of his wife have here further disadvantaged the accused.M has said that she was allowed to return home, in 1990, in consequence of a conversation between only the accused and her.The accused has said that his wife was present at and party to that conversation.Had his wife been alive, she could possibly have resolved that conflict.(She could also have assisted upon whether the accused ever had a lump on his penis, as asserted by M.)
Upon all of the unsupported relationship evidence, I am not satisfied that the purpose for which that evidence was here adduced has been established. Accordingly, I shall disregard that evidence in considering these alleged offences.
Although neither the accused, nor his counsel, sought to attribute any reason or motive to M for having decided to resurrect these allegations in 1996, to my mind the close temporal conjunction (less than three months) of that resurrection with the death of her mother (who, thereafter, was not able to give evidence in relation to any of these renewed allegations), with M's understanding that the accused was alleged to have offended against Mrs. Jones' grandson, with her suspicion that he had offended against another person and with the encouragement of her by Mrs. Jones to renew these allegations, could together have provided a reason, motive or purpose for M soon thereafter having resurrected false allegations against the accused.To my mind, the long delay in her renewing these allegations should also be taken into account in view of my assessment of M and notwithstanding the cautionary considerations alluded to by Gaudron J. in direction (6) (above).
After earnest scrutiny of all of the evidence, and in application of the legal directions here given, when these are combined with all of the considerations to which reference has here been made, including:
. the discrepancies, inconsistencies and peculiarities in M's presentation;
. the improbability of the accused having acted as he is alleged to have acted in committing the second offence;
. the absence of any evidence confirmatory or supportive of M's evidence;
. the warning which I have given and heeded;
. the careful scrutiny of the evidence which has been made;
. the long delay in M pursuing these old allegations;
. the disadvantages here suffered by the accused both in consequence of the long delay and the death of his wife;
. the failure here to have discredited the accused;
. the possible motive or purpose for which M might have resurrected false allegations; and
. a general feeling of anxiety and discomfort that I entertain about the case,
I am not able to conclude that the guilt of the accused, upon any of these three alleged offences, has been established beyond reasonable doubt.
Verdicts
For these reasons, which are now published, I return three verdicts of not guilty.The accused is discharged.
To both counsel, I express gratitude for the high degree of skill, care and moderation with which the trial was conducted.Their mutual cordiality and assistance on legal matters were commendable and most appreciated.
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