R v Swa No. DCCRM-03-565

R v SWA
[2004] SADC 35
CHIEF JUDGE WORTHINGTON

The accused is charged with persistent sexual abuse of a child contrary to s74(1) of the Criminal Law Consolidation Act 1935. It is alleged that between 1 January 1995 and 31 December 1999, at St Agnes and other places, he engaged in persistent sexual abuse of D, his stepson, then aged between 5 and 9 years. It is alleged in the information that the relevant conduct included sexual intercourse with D by inserting his penis into D’s anus and mouth, and indecently assaulting D. It is alleged also that there are at least three separate incidents falling on separate days, in which the accused committed a sexual offence against D. As required by s74(10) the Director of Public Prosecutions has consented to the prosecution. The accused has pleaded not guilty and elected to be tried by judge alone.
As relevant to the trial s74 reads as follows:
74(1)     A person may be charged with and convicted of the offence of persistent sexual abuse of a child.
(2)     Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).
(3)     A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.
(4)     A charge of persistent sexual abuse of a child -
(a)     must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and
(b)     must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct,
but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence.
(5)     Before a jury returns a verdict that a defendant is guilty of persistent sexual abuse of a child -
(a)the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days, between the time when the course of conduct is alleged to have begun and when it is alleged to have ended in which the defendant committed a sexual offence against the child; and
(b)the jury must be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred).
(6)     The judge must warn a jury, before it retires to consider its verdict on a charge of persistent sexual abuse of a child, of the requirements of subsection (5).
(7)     ..............................
(8)     ..............................
(9)     ..............................
(10)A prosecution on behalf of the Crown for persistent sexual abuse of a child cannot be commenced without the consent of the Director of Public Prosecutions.
(11)   In this section -
child means a person under the age of sixteen years;
sexual offence means an offence against section 48, 49, 56, 58, 58A, 68 or 72, or an attempt to commit, or an assault with intent to commit, any of these offences.
For the Crown to obtain a verdict of guilty it must prove beyond reasonable doubt that there were at least three separate incidents, falling on separate days, and that on each such occasion the accused committed a sexual offence against D. Although the Crown does not need to establish the dates of these incidents or the order in which they occurred, it must establish the material facts of three such incidents so as to prove on each occasion the commission of a sexual offence of the nature described in the information. The sexual offences relevant here are against s49, unlawful sexual intercourse, and s56, indecent assault - refer s74(11).
The prosecution called D, Ms C, his guardian, Dr Woodard-Knight, a medical practitioner, and Detective Senior Constable Blocki who interviewed the accused on 5 February 2001. An order was made under s13 of the Evidence Act 1929 so that D could give evidence from another room in the courthouse by closed circuit television with a companion in the room. To the extent that it is necessary to mention it, I am aware that these special arrangements neither affect the weight to be given to his evidence nor give rise to any inference against the accused - s13(7). The defence called no evidence.
D is now 13 years of age and is in First Year of secondary school. His mother married the accused in April 1995. She suffered from serious illness for much of her life and died on 5 April 1997. She and the accused had met in about April 1994 and at some stage during the year before they married, they began to live together with D at a house in St Agnes. They continued to live there until after D’s mother died. At some time after her death, probably only a short time, the accused formed a friendship with another woman, A, who had three children, and he and D set up house with them in Seaton. That arrangement continued until about the end of 1999 when they all moved to a suburb of Melbourne for about 6 months. In about June 2000 the accused and D returned to Adelaide and lived with the accused’s step-sister, Ms C, in her two bedroom unit. By January 2001 the accused had left the unit but D remained there with Ms C who took over his full time care.
D said that the accused sexually abused him on many occasions. Although he could not say when this began or identify the first occasion, he described an incident that occurred in his bedroom at St Agnes. He was asleep and the accused woke him. The accused pulled down D’s pants and began playing with D’s penis. The accused moved his hand up and down on D’s penis. The accused made D touch the accused’s penis and move his hand up and down on it until the accused ejaculated. After that, the accused turned him over on the bed so that he was lying on his stomach (Tx37) and “put his penis up my bottom”. That hurt and D began screaming, so the accused pushed his face into the pillow and told him to “shut up”. He was unable to remember for how long the accused’s penis was in his anus but after that stopped, the accused made D suck his penis, and the accused also sucked D’s penis.
D said that this occurred at the St Agnes house before his mother died and that it happened again at St Agnes both before and after she died. He was unable to give dates for these incidents but said: “Sometimes he left it for a week, sometimes a fortnight or even in a couple of days” (Tx43). The description of the subsequent incidents is practically identical to the one already mentioned. He said that they all occurred in the bedroom and were all at night-time. At the conclusion of each incident, the accused would say: “It’s okay, you don’t have to tell anyone, it’s the right thing”(Tx45) or words like that.Whether that was said on every occasion, including the first one described, is not clear but the thrust of D’s evidence is that it was said on a number of occasions. Although he said that he could not be sure about the exact order in which things occurred during each incident, his descriptions leave no doubt that he meant that masturbation of the accused to ejaculation occurred before anal intercourse on every occasion, whether at St Agnes or elsewhere.
D said that when they moved to Seaton, he and the accused shared a bedroom. He described an identical incident at Seaton starting with mutual masturbation that included ejaculation by the accused, anal intercourse while D was on his stomach on the bed, screaming and having his head forced into the pillow so that his screams would not be heard, and mutual fellatio. D said that after this incident, the accused went further in what he said and threatened him. His evidence was (Tx52-53):
“When he was finished he - because he knew I was getting older and he knew I started to understand - he said ‘If you tell anyone - ’ [interruption] ‘If you tell anyone I will hurt you or kill you’ - he threatened me - ”.
In evidence-in-chief when D was asked whether that was the only time this had happened at Seaton, he said (Tx55) “I am not sure”. However, in answer to an earlier question (Tx54): “Can you remember which particular day this occurred at Seaton”, he had answered “It was mainly night”. I shall return to this in due course.
D gave evidence of this sexual abuse continuing while D and the accused were in Melbourne in the first half of 2000. He described an incident that was the same as those in Adelaide, and in evidence-in-chief said that this occurred “A couple of times” (Tx56). I shall return to this topic in more detail later, but at this point it is important to note that the first time D complained of any sexual misconduct by the accused while they were living in Melbourne was on Friday 13 February 2004, i.e., less than three clear days before the trial commenced on Monday 16 February. This was also the first time that D complained of the accused putting his penis into D’s mouth and of the accused taking D’s penis into his mouth.
Before the accused was arraigned Mr Weir, for the DPP, applied to make two amendments to the information. The first was to add the particular of causing D to perform fellatio and the second was to extend the period during which the offending is alleged to have occurred by a further six months, i.e., from December 1999 to June 2000. There was some discussion and as a result, the application to extend the period of the offending was abandoned. Thus, the evidence of what occurred in Melbourne is of uncharged acts. The Crown made it clear that it did not seek to lead that evidence by way of similar fact or propensity evidence: Pfennig v The Queen (1995) 182 CLR 461; R v Nieterink (1999) 76 SASR 56. However, there was no opposition by Mr Boucaut, for the accused, to the Crown leading it for the limited purpose of explaining, if it could, why D did not complain of any sexual abuse by the accused until January 2001.
The evidence of Ms C, which I accept, is that while the accused and D were living in her unit, where they again shared a bedroom, she noticed, as she put it, that they “were having quite a hard time” (Tx90). By that she meant they were both arguing and yelling at each other, D seemingly unable to do anything right, and complaining of not being fed and being picked on. She thought she could help, and eventually it was agreed between herself and the accused that she would take over the care of D. By early January 2004 the accused had moved to an address at Modbury leaving D with Ms C. She signed guardianship papers on 4 January 2001. A few days before that, and after the accused had left the unit, D first complained to her about the accused’s conduct. D was interviewed by a woman police officer later that month. When D was asked in evidence-in-chief why he had not told anyone earlier, he said that he was too afraid.
In its present form s74 only operates from 28 July 1994, so any incident relied on by the Crown must be after that date. As has been mentioned already D’s mother died on 5 April 1997, and his evidence is clearly to the effect that incidents occurred at St Agnes on a regular basis both before and after her death. Given that D, his mother and the accused lived in that house for two years after the marriage in April 1995, I understand him to be saying that there were multiple and regular incidents of the type described after April 1995. Therefore, subject to his evidence being accepted, D’s account is of many more than three such incidents on separate days after the commencement of s74. In short, it is his evidence that essentially identical incidents happened on numerous occasions between January 1995 and December 1999 at St Agnes and at Seaton.
Section 74(5)(b) makes it clear that the prosecution does not have to establish the dates of the incidents or the order in which they occurred, but the Crown case is that there was no incident during which there was anything less than three sexual offences, i.e., that each incident comprised those three offences as described. D made it absolutely clear in his evidence that this was so and he made no suggestion of anything else - for example, that any incident was made up of only one or two of those offences. Thus, for the Crown to succeed it must prove beyond reasonable doubt that on three separate days there were separate incidents, and because of the case presented, each one of which encompassed one offence of indecent assault (mutual masturbation) and two offences of unlawful sexual intercourse (anal intercourse and causing D to perform fellatio).
The accused did not give evidence and no adverse inference will be drawn against him for making that election. In the course of an interview with the police on 5 February 2001, he was emphatic in his rejection of the allegations of sexual misconduct, and the video-recording of that interview is in evidence. At the end of the interview Detective Senior Constable Blocki asked if there was anything the accused wanted to say now that he had heard all of the allegations and he replied: “No. I can’t believe it.” In fact, of course, unknown to Detective Blocki the accused had not heard all of the allegations.
Dr Woodard-Knight has been a medical practitioner for 24 years and has spent the last 12 years dealing with child protection and paediatric emergency at the Women’s and Children’s Hospital. She is experienced in the examination of children following allegations of physical or sexual abuse. She saw D on Thursday 12 February 2004 and an examination of his anus showed that it looked completely normal with no signs of scarring. It was her evidence that even after multiple acts of anal intercourse on a young boy aged between 5 and 9 years, on examination, his anus would appear to be normal, although if there was an examination of a child within about 48 hours of anal penetration, it might be possible to see minor changes. However, she would expect any such changes to heal without any scarring because the anatomy of the anus is such that it would be rare for it to be damaged by penile penetration. There is therefore no expert evidence that assists one way or the other.
The first time the accused was given any details of allegations being made against him by D was during the interview with Detective Senior Constable Blocki on 5 February 2001. Given that the alleged period of offending was January 1995-December 1999, the time between when any one incident may have occurred and his becoming aware of the complaint about it could be as little as about 1 year and as much as about 6 years. As I have said, however, the full extent of the allegations made by D was not revealed to the accused until a few days before trial, 13 February 2004. In other words, it is somewhere between 4 and 9 years between when any one incident is said to have happened and his being made aware of what is alleged in relation to it.
The delay by D in making a complaint, and particularly in making known the full extent of the allegations, was the subject of cross-examination of D and a matter of comment in Mr Boucaut’s closing address. In considering that issue, I am conscious that this delay does not necessarily mean that any of the allegations are false, and I am conscious also that there could be good reason why D might delay the making of such a complaint: Evidence Act s34I(6a). As to that, there is evidence from D that he was scared to make a complaint while he was subject to the authority of his stepfather, the inference being that once the accused left Ms C’s unit, D felt able to unburden himself to her and, in turn, to the police. However, the question of delay gives rise to another consideration namely whether a Longman warning is called for. In Longman v The Queen (1999) 168 CLR 79 the High Court said that a warning must be given by the trial judge to a jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”: per Brennan, Dawson and Toohey JJ at 86.
As there is no other direct or circumstantial evidence here, the case against the accused is principally D’s unsupported evidence. Therefore, I must scrutinise his evidence with great care and unless I am completely satisfied of its truth and its reliability, there could be no question of a finding of guilt. So much was common ground, but that level of caution would be insufficient if a Longman warning is called for: R v BFB [2003] SASC 411 per Doyle CJ at [47] - [48]. If such a warning is needed, I am required to approach his evidence on the basis that unless I am so satisfied, it would be dangerous to convict. Mr Weir submitted that there was no need for that warning.
A Longman warning is not called for purely because of delay but rather because the circumstances, which may include delay, are such that there is a risk that the accused is likely to suffer forensic disadvantage: R v BFB per Doyle CJ at [38]-[30] and Mullighan J at [55]. In my opinion there are 4 matters that are relevant to this consideration. They are not raised by way of criticism of D but rather, from the point of view of whether there is the potential for forensic disadvantage to the accused.
1. The accused’s wife, D’s mother, was living in the house at St Agnes until she was hospitalised a short time before her death in April 1997. All incidents are said to have occurred at night-time. Part of her disability was loss of vision and she was unable to move around easily. It is reasonable to assume that she would have been at home on most occasions that the accused was at home. With regard to incidents said to have occurred between early 1995 and, say, a few months before her death, the accused has lost the opportunity of obtaining evidence from her that might have assisted in his defence. What she may have been able to say if there had been a complaint before her death is, of course, unknown. The relevance here is the loss of opportunity.
2. If a complaint is made shortly after an incident is alleged to have occurred, there is a greater likelihood of specificity - e.g., fixing a date or an approximate range of dates. Although there is no need for the Crown to establish dates for the purposes of a conviction under s74, the relevance of specificity here is that it gives an accused greater opportunity to account for his whereabouts at the relevant time. That opportunity has been lost.
3. Even after a complaint was made and the accused was charged (February 2001) it was not until three years later, and on the very eve of trial, that he was made aware of the full nature of the complaints on which he was about to face trial within a few days. In my opinion, the mere fact of that state of affairs has disadvantaged him in an orderly preparation for trial.
4. It was not until 13 February 2004 that there was a complaint that the incidents continued until mid 2000 while they were in Melbourne. This led to an application on the first day of trial to amend the information. Although that application was withdrawn the Crown still led that evidence, albeit for a limited purpose. Notwithstanding that this was not opposed and indeed, the evidence was used by the defence to attack D’s credibility, the accused was not in the same position in February 2004 to account for his actions in Melbourne during 2000 as he would have been in January 2001.
In my opinion, these matters mean that the delay has resulted in a forensic disadvantage to the accused, and a Longman warning is therefore necessary to avoid the risk of a miscarriage of justice. With that in mind, I turn to D’s evidence. In scrutinizing his evidence closely, I am conscious that he is only 13 years old and that he is having to cast his mind back to a time when he was even younger. Nonetheless, however, it became apparent during the trial that there were some deficiencies in D’s evidence that are of major concern. They are as follows.
1. Melbourne

In evidence-in-chief D gave a detailed description of an incident, identical to the others, which occurred in Melbourne, and he said that this happened “a couple of times” (Tx56). In cross-examination he was asked how often this happened in Melbourne and he replied “I can’t say how many times” (Tx65). A little later he said that, although he could not count how many times, “it was a couple of times” (Tx67). In my opinion it is clear from the way D used the word “couple” that he did not necessarily just mean twice but rather, more than once and probably, more than twice. This is to be contrasted with what he told the woman police officer in January 2001. After speaking about the incidents in Adelaide he said: “And then we went to Melbourne. He didn’t do it at all, and then we went to [Ms C’s]” (Tx68).
I can understand that D could be vague about the number of times something occurred in Melbourne and unclear about what he intended to convey by “a couple”. He is, as I have remarked, a 13 year old boy and, indeed, a 13 year old boy whose knowledge of an event would have been gained at about age 10. But there is no reasonable explanation for the stark conflict between his volunteering to the police in January 2001 that nothing happened in Melbourne and his detailed description in evidence of such an incident in Melbourne, insisting that it had occurred a number of times.
2. Seaton
Having described in detail an incident that occurred at Seaton, D was asked whether that was the only occasion at that address and he said “I am not sure” (Tx55).In itself that is not remarkable but it was in the context of having just been asked if he could remember on which particular day that incident occurred at Seaton and he had said “It was mainly night” (Tx54).The ambiguity continued in cross-examination. When asked how many times it happened at Seaton he said “I am not sure” (Tx66) and when asked again a little while later, he said “A couple of times, but I don’t know how many” (Tx69).
Although his evidence about how many times these incidents occurred at Seaton is ambiguous, the thrust of it is that it was twice or more. But that is not the main problem. The real difficulty is trying to reconcile that evidence with him telling the woman police officer emphatically in January 2001 that it only happened once at Seaton. Her relevant questions and the answers are as follows (Tx69):
Q“Alright, so he was still doing this to you in Seaton.
AYeah, but he wouldn’t, there was a lady then. He did it once there.”
and a little later:
Q“You were nine at Seaton ..........
AYeah, he did it once, that’s all.”
3. Fellatio
D made no mention of fellatio, either by the accused of D or the accused forcing D to do it to him, until Friday 13 February 2004. There can be no doubt from D’s evidence about the incidents that he regarded this activity as a significant and traumatic part of each episode. He emphasised that he was either “made” to do it or “forced” to do it.
Just before a lunch adjournment it was pointed out to him in cross-examination that he did not say anything to the female police officer in January 2001 about the accused sucking his penis or about him sucking the accused’s penis, and he volunteered the comment “I forgot the first time” (Tx70). After the court resumed he twice confirmed that this was the truth. Mr Boucaut then pressed him on how he could possibly forget such a thing and he said “Because I wasn’t thinking right then, I was a bit embarrassed” (Tx74). Then came the following:
"QWhat is it, that you forgot or you were a bit embarrassed.
AA bit embarrassed.
QSo you did remember but you were too embarrassed to tell them.
AYes.
QIs that the position.
AYes.”
He was then reminded that earlier in the day he had said that he forgot and he replied “Yes, I forgot and I was embarrassed .........”.
I accept that a child could be so embarrassed as to not want to mention something like this to the police. I can also see, as was submitted by Mr Weir, that it is quite possible that a child, only 10 years at the time of the police interview, would talk about acts where in their own mind the child is clearly a victim and not an active participant (e.g., anal intercourse) but might be reluctant to mention something where they might be seen to have had a more active role (e.g., sucking a penis). But that is not what happened here. When pressed on how he could have forgotten such a thing while talking to the police it was clear, not only from what D said but from how he said it, that he saw that he was trapped and that it was expedient to move from talking about forgetting it to saying that he had remembered but was too embarrassed to say anything. Having got to that point, it was also clear that he lost his way and tried unsuccessfully to reconcile the two contradicting versions.
With regard to Mr Weir’s point that it would be reasonable to think that D might be reluctant to talk about those acts where he thought he might be seen as a perpetrator rather than a victim, the submission does not sit with the fact that he told the police officer about mutual masturbation, and on his own description of it D took an active role, albeit that he was forced to do so, in masturbating the accused to ejaculation. Moreover, his description of the accused performing fellatio on him did not suggest any active participation on D’s part. It is hard to think that he could not have believed himself to be a victim during that activity. Neither of these sit comfortably with the explanation suggested by the Crown to account for the very late mention of fellatio.
These 3 topics must be viewed in the context of two further matters of concern.
4. The accused’s employment
D was asked some questions in cross-examination about how he used to get to and from school while he was living at St Agnes. In itself this was an innocuous topic, but it was raised in the context of D saying that the incidents at St Agnes only occurred at night and questions about whether the accused worked during the day or at night-time. His answers to a series of questions (Tx62-63) clearly demonstrated prevarication. When asked how he got to school and how he got home he stated that he had no memory of that at all. He repeated that a number of times. When pressed further he said “I think I walked to school, I think”. In answer to further questions he emphasised that he only thought he walked. However, this then developed over the next few questions and answers to the point where he said that he not only walked to school but walked home from school and that the accused would walk with him:
"QSo [the accused] would always pick you up from school
AHe walked me to school, picked me up from school.”
I do not believe that he had a sudden recovery of memory during the questions. I have no doubt from his reactions when he was asked those questions and his answers, that he was hedging, He was uncomfortable about agreeing with the proposition that the accused walked him to and from school each day because of his perception of a looming inference that the accused could do that only if he was not at work during the day.
He was also asked some questions about what work his stepfather did at that time. He could remember details of his mother’s restrictions at that time. He also remembered that before his mother’s death the accused worked for Coles as a baker and that he stopped this work when D’s mother died. However, although asked a number of times, he said he had no idea whether the accused worked during the day or at night.
I can well understand that D would not know the times that his stepfather worked, but given that he recalled relevant surrounding circumstances, it is difficult to accept that he genuinely had no idea at all whether the accused worked days or nights. It is not that he indicated an imperfect memory; he affected to have no memory of that whatsoever. It is even harder to accept this at face value when it followed immediately on his prevarication about going to and from school.
5. What was said after an incident at Seaton
I have already referred to D’s evidence about what was said by the accused after the description of an incident at Seaton (Tx52-53) but I will repeat it for ease of reference:
“When he was finished he - because he knew I was getting older and he knew I started to understand - he said ‘If you tell anyone’ - [interruption] ‘If you tell anyone I will hurt you or kill you’ - he threatened me - ”.
The comments he volunteered in the course of giving that answer show a significant element of reconstruction. That does not mean that the evidence should be disregarded but when taken in conjunction with the other matters I have mentioned, it raises a question about how much of it is recollection and how much is reconstruction. That goes to reliability.
Conclusion
As I have said, the Crown relies principally on D’s evidence to prove that the relevant incidents occurred and that each such incident establishes the elements of the offences necessary to constitute a breach of s74. Unless that evidence withstands close scrutiny and can be regarded as completely reliable, there can be no conviction. The combined effect of the inconsistencies and shortcomings referred to in the 5 areas above is such that D’s evidence does not provide a sound base on which to make findings. Whatever concerns his evidence might raise it has not withstood the necessary level of scrutiny, and thus it would be dangerous to base a finding of guilt on it. Therefore, the prosecution must fail.
For these reasons I find the accused not guilty and direct that a verdict of acquittal be entered.

[2004] SADC 35

27 February 2004