R v T, TL
[2012] SADC 156
•20 November 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, TL
Criminal Trial by Judge Alone
[2012] SADC 156
Judgment of His Honour Judge Stretton
20 November 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with aggravated inducing a child to expose a body part and indecent assault. It is alleged that on 11 December 2011 he took the nine year old complainant to his nearby house where he got her to take off her clothes by telling her she could not go home until she did, also indecently assaulting her by pushing his tongue into her mouth. The complainant audibly protested, and rushed out of the accused's house and complained to her grandmother, and gave a detailed statement to police three days later. The complainant was 10 at the time of the trial and in light of her age an inquiry was held pursuant to section 9 of the Evidence Act as to whether she was capable of giving evidence on oath. The prosecution also sought to lead evidence of recent complaint and of her statement to police. The accused pled not guilty and denied the charges on oath.
Held: On inquiry by the court, the complainant understood the obligation to be truthful entailed in giving sworn evidence and hence the presumption of capability pursuant to section 9 of the Evidence Act is not displaced, and she is accordingly capable of giving evidence on oath. The complainant gave evidence on oath.
The evidence of recent complaint to her grandmother was admissible pursuant to section 34M of the Evidence Act. The evidence of her statement to police was admissible pursuant to section 34CA of the Evidence Act. Some corroboration of the complainant is apparent in the audible protests heard by her grandmother and in her distress in rushing out of the accused's house.
The complainant was a compelling, truthful and reliable witness.
Both charges are proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 ss 56(1), 62, 63B(1)(b)(i); Evidence Act 1929 s 9(1), s 34M, s 12A, ss 34CA, 34CA(1)(B)(ii), 34CA(3), 34CA(5), referred to.
R v Nesbitt [1953] VLR 298; R v Court [1989] AC 28; Knuller v DPP [1973] AC 435; Robertson v Samuels (1973) 4 SASR 465; R v Drago (1992) 63 A Crim R 59; Eades v DPP (NSW) (2010) 77 NSWLR 173; R v Jones (2011) 209 A Crim R 379; Bromley v The Queen (1986) 161 CLR 315; Robinson v The Queen (1999) 197 CLR 162; R v Murray (1987) 11 NSWLR 11 at 19; BRS v R (1997) 191 CLR 275 at 284; R v Kuster (2008) 191 A Crim R 449 at [17], considered.
R v T, TL
[2012] SADC 156Introduction
T, TL (“the accused”) is charged with making his 9 year old niece (“R”) expose her breasts to him and indecently assaulting her by inserting his tongue into her mouth.
In November 2011 R lived with her grandmother in a South Australian country town. R’s father lived just out of town, visiting R and his mother/her grandmother regularly.
The accused lived about 100 metres away from R and her grandmother. There had been little contact between the accused and R’s grandmother for many years and communication was restricted to the occasional wave and “hello” as he had walked past their house. Apart from seeing her playing in the distance, the accused had never met R.
On Sunday 11 December 2011 the accused knocked on the door and asked R’s grandmother to contact R’s father for him. The accused wanted to borrow money for alcohol. R’s grandmother contacted R’s father who drove over and provided the accused with money whereby alcohol was purchased, although there is some dispute about how that actually happened. R’s father then went home.
The accused started drinking the alcohol, listened to music and played some games with R. After a while discussion occurred whereby the accused took R to his house a short distance away. It is alleged that while there the accused repeatedly told R to take her clothes off which she reluctantly did, and then while sitting R on his lap pushed his tongue into R’s mouth.
The circumstances surrounding taking R to his house, whether the alleged conduct occurred at all, and what occurred surrounding the alleged events are in dispute.
The two charges
The accused is charged[1] with the offence of aggravated causing or inducing a child to expose a body part.[2] It is alleged that on 11 December 2011, for a ‘prurient purpose’, he caused or induced R to expose her breasts. It is alleged that the offence was aggravated in that he knew she was under 14 at the time.
[1] Count 1 in the Information dated 3rd October 2012.
[2] Section 63B(1)(b)(i) of the Criminal Law Consolidation Act 1935.
He is also charged[3] with aggravated indecent assault,[4] it being alleged he pushed his tongue into her mouth. It is alleged the offence was aggravated as R was under 14 at the time.
[3] Count 2 in the Information dated 3rd October 2012.
[4] Section 56(1) of the Criminal Law Consolidation Act 1935.
Elements of these charges
To prove any offence, the prosecution must prove each of the elements of that offence beyond reasonable doubt. Each offence must be considered separately.
The elements of the offence of causing a child to expose a body part are:
1.That on the date of the alleged offence R was a child under the prescribed age. The prescribed age is 17.
2.That the accused caused or induced R to expose any part of her body, in this case her breasts.
3.That the accused acted for a prurient purpose. A prurient purpose means to satisfy a desire for sexual arousal or gratification.[5]
[5] Section 62 of the Criminal Law Consolidation Act 1935.
4.The offence is aggravated if the accused knew that R was under 14 when he committed the offence.
The elements of the offence of indecent assault are:
1.That the accused assaulted R. An assault is an intentional application of force without lawful excuse.
2.That the assault was accompanied by, or occurred in circumstances of indecency. Indecency is what right thinking members of the community regard as indecent, in other words what the ‘reasonable man (and woman)’ would regard as indecent.[6]
3.The offence is aggravated if R was under 14 at the time of the offence, although the prosecution does not have to prove the accused either knew or was reckless about that.
[6] R v Nesbitt [1953] VLR 298, R v Court [1989] AC 28, Knuller v DPP [1973] AC 435, Robertson v Samuels (1973) 4 SASR 465, R v Drago (1992) 63 A Crim R 59, Eades v DPP (NSW) (2010) 77 NSWLR 173, R v Jones (2011) 209 A Crim R 379.
Consent is no defence to either offence as a child cannot legally consent to the conduct alleged to constitute either of these offences.
The issues in the case
There was no dispute that R was 9 years old on 11 December 2011, and little dispute that it would have been plain to anyone, including the accused, that she was under 14. There was no dispute that the accused was at his house that day with R, nor any suggestion of mistaken identity.
The issue is whether the acts alleged occurred at all.
The accused pled not guilty and gave evidence on oath flatly denying the allegations. Whilst there is never any obligation on any accused to prove or suggest a motive for a complainant to lie, he did suggest that R may have been told by her grandmother to make false allegations against him.
Whilst accordingly some elements of the charged offences were more in dispute than others, it is important to remember that it always remains for the prosecution to prove each and every element beyond reasonable doubt.
Particular legal considerations in this case
In light of the fact that R was 10 at the time of giving evidence, I conducted an enquiry pursuant to section 9 of the Evidence Act to determine whether R was capable of understanding the obligation to be truthful entailed in giving sworn evidence. R came across as an intelligent and alert child who I found clearly understood the obligation to be truthful entailed in giving sworn evidence. The presumption in section 9(1) of the Evidence Act was accordingly not displaced, and she was therefore entitled to give evidence on oath.
As well as R giving evidence on oath, the prosecution led evidence of what she told her grandmother after the event, and also what she told a police officer in a detailed statement given on 14 December 2011 three days after the alleged events.
Evidence of what R told her grandmother was led pursuant to section 34M and also 34CA of the Evidence Act.
The evidence of what R told the police officer in her detailed statement given on 14 December 2011 was led pursuant to section 34CA alone.
Section 34M provides that a person’s initial complaint of an alleged sexual offence is admissible to inform the court how the allegation first came to light and as evidence of the consistency of conduct of the alleged victim. An initial complaint is not admitted pursuant to 34M as evidence of the truth of what was alleged. The section also provides that the court must bear in mind that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person.
Section 34CA provides that where certain criteria are satisfied the court may admit evidence of the nature and contents of a statement made by a child under the age of 12[7] outside of court from the person to whom the statement is given, as the truth of the facts asserted in the statement.[8]
[7] Section 34CA refers to the evidence of a “protected witness”, defined in 34CA(5) to include a “young child”, which is in turn defined in section 4 to mean a child under the age of 12 years.
[8] Section 34CA(3).
Upon consideration I was satisfied that what R told her grandmother satisfied the criteria for admission as evidence of an initial complaint pursuant to section 34M.
Upon consideration I was satisfied that the criteria for admission of the two statements pursuant to section 34CA were met. In short, each statement had a high degree of potential probative weight, being on the direct topic of the alleged offending and made at times proximate to the events when the facts would have been much fresher in R’s mind than at trial nearly a year later. Having regard to that and all the surrounding circumstances and all relevant factors I was satisfied that each statement had sufficient probative value to justify its admission. I was also satisfied, as required by section 34CA(1)(b)(ii), that R had been called to give evidence at trial and that permission had been given, as indeed it was given, for her to be cross examined on matters arising from the evidence.
Where a statement is tendered pursuant to section 34CA, section 34D requires the court to have regard to some specific matters. The court, in estimating the weight if any to be attached to such statement, must have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement. In particular, the court must consider whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. Importantly however, such a statement cannot be treated as amounting to corroboration of any other evidence given by the maker of the statement. I have applied section 34D in approaching and assessing the section 34CA evidence in this case.
Although evidence of R’s initial complaint was led, and her detailed section 34CA statement to police was tendered, the case against the accused was substantially based on the sworn evidence given by R in court. I bear in mind that neither the initial complaint evidence nor the section 34CA statement can amount to corroboration of that sworn evidence.
R’s evidence was in most respects uncorroborated, in that there were no witnesses to the alleged conduct apart from R. There was however evidence that as R’s grandmother was approaching the accused’s house she heard R cry out ‘Leave me alone, don’t do that’, and then R rushed out of the house appearing stressed, upset, crying and angry. This evidence does potentially provide some support for R’s evidence that the accused committed the alleged offences.[9]
[9] BRS v R (1997) 191 CLR 275 at 284; R v Kuster (2008) 191 A Crim R 449 at [17].
Section 12A of the Evidence Act provides that a jury should not be warned that it is, and hence a judge trying the case alone should not regard it as, unsafe to convict on a child’s uncorroborated evidence unless there are in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child’s evidence and a party asks that the warning be given. The section also makes it clear that where a warning is given, it is not to be suggested that the evidence of children is inherently less credible or reliable or requires more careful scrutiny than evidence of adults. A warning should, however, still apply where for reasons not related to the established categories of witnesses, a warning is needed to avoid a miscarriage of justice.[10]
[10] Bromley v The Queen (1986) 161 CLR 315, per Gibbs CJ at 319 and Brennan J at 325, Robinson v The Queen (1999) 197 CLR 162.
Whilst after considering all the evidence in the case, I do not regard there as being any features which would require a warning that it would be dangerous to convict even on the uncorroborated evidence of R, it is appropriate in this case, as in any case where the commission of a serious crime is largely dependent on the evidence of a single witness, to scrutinize her evidence with great care.[11] In particular I bear in mind R’s young age, all the surrounding circumstances, and that her evidence as to the allegations themselves, is largely uncorroborated.
[11] R v Murray (1987) 11 NSWLR 11 at 19; Robinson v The Queen (1999) 197 CLR 162 at 169.
The prosecution case
R gave evidence on oath. She told the court how she lived with her grandmother, her “Nan”, at her grandmother’s house in a (named) country town, and had been there for about 3 years. Her father lived just out of town. She gave her birth date, indicating thereby that on 11 December 2011 she was 9 years old, and said that she is currently in year 5 at school.
She said she met the accused for the first time on the day of the alleged offence. She said he was her uncle and he was called “Uncle Tamby”. She was alone with her grandmother when he came over. She remembers that he stayed a while and was listening to music. She said that after a while he asked her, and then kept saying to her, “do you want to go up to my house when it gets dark?” She went with him to his house. She said his house was not far away, and it did not take long for them to walk there.
When they got there they went inside. When she got inside she said she put down the stuff he had asked her to carry there. She said he took his boots off. She said he then started speaking softly, and started telling her to take her clothes off. She said she panicked. She said she initially said no. She said he told her she wasn’t allowed to go home until she did it, so she did take her clothes off. She was wearing underwear, and he told her to take them off as well, so she did. As she explained later on in cross examination, and in her 34CA statement to police, what she did, was to take the items off then put them quickly back on.
While they were in the house she said he was sitting in a chair, which he kept moving towards her, and at one stage he slung her onto a mattress that was lying on the lounge room floor. She also said that when he was sitting on the chair he asked her to sit on his lap. She described events at that stage in the following terms:
A.Well, when we were sitting on the chair, because he asked me to sit on his lap, I said ‘How about we just get this over and done with and I’ll just give you a kiss on the cheek’ and I gave him a kiss on the cheek and he said ‘Oh, is that what you go around giving people?’. And then he pointed to his lips so I went to lean forward to kiss him and he stuck his tongue in my mouth.
…
Q. So what happened after the kiss.
A.Then I said ‘Oh, yuck. Gross’ and then, like, I started running around, panicking again and I went towards the door to try and get out. I kept trying to go to the door but he kept blocking it with his hand.
Q. Did you manage to leave the house.
A.Yes. Nan came up, like, because she heard me scream because I screamed and she heard me, so she rushed up the stairs and knocked on the door and he opened it and I ran out and I told her what happened.[12]
[12] T 47-48.
R gave evidence that the accused followed them back to their house, came in and listened to more music until her grandmother told him that he had to leave.
R said that what she told her grandmother about what the accused did to her was the truth. She also said that what she told the police a few days later about what the accused did to her was the truth, but that she forgot to mention to them about the kiss. I asked her why she forgot to mention about that to the police and she replied:
…Because I was thinking about the other things that he did and I might not have been thinking about that.[13]
[13] T 50. In cross examination she also said she forgot about it when telling the police what happened, that she wasn’t thinking about that when she spoke to police; T 101.
R was cross examined at length by defence counsel.
She was taken through the events in considerably more detail, and she was reminded in some detail of what she had told police in her statement. She said that she had gone with the accused to his house without her grandmother, and entered through the back door. She said it was night time, and it was dark. She put down a green shopping bag containing CD’s and a photo that her grandmother had given the accused and which she had been carrying to the house for the accused, and the accused turned the light off. At that she was scared so she screamed, and the accused said “Oh, all right, I’ll put the light back on” and did so. She said he then started to tell her to take her clothes off, which she refused and told him she wanted to go home, but he said she had to take her clothes off first.[14]
[14] T 55-57.
R said that he hadn’t done anything to upset her before that, although back at her grandmother’s he had kept telling her to sit closer to him and that had made her feel a bit uncomfortable.[15]
[15] T 58-59.
R repeated that after he turned the light back on he started and then kept asking her to take her clothes off “in a real soft kind of voice”. She said no but he kept asking her, and he said she couldn’t go home until she did. She was asked exactly how that happened, and she said that she pulled her shorts down then quickly back up, but he said “all the way” so she took them off. The second time he also told her to do the same with her underpants, which she did, then she held them up, and then she quickly put them back on again. She said he was sitting down next to the table in the kitchen while this was happening.[16]
[16] T 60.
R said that after that, the accused asked her to take her top off, which she did. She said she took it completely off but then quickly put it back on. At around that time the accused also asked her to dance, which she did. While she was dancing she said he also asked her several times to lift her top up which she did until she told him “No, it can’t go any further”. She could not remember whether this was before or after the point where she had taken her top off.[17]
[17] T 62-63 and 67.
R said that she started running away from him and he kept moving his chair closer to her.[18] She also recalled, although she could not be sure if it was before or after she was dancing and he asked her to lift her top up, that he;
…kind of slung me onto this mattress that was lying on the floor in the lounge room and, like, I jumped up quickly and he pushed me onto this lounge and I, like kicked him back onto the mattress.[19]
[18] T 64.
[19] T 67.
Then she said she ran off and he came after her. She said she thought it was not long after that that he sat on the chair and asked her to sit on his lap. She said she remembered him saying something about loving her that she can’t really now remember and she replied “I love you but I just don’t like what you’re doing now.”
Defence counsel took R over her various efforts to get out of the house, to the time when her grandmother knocked at the door and subsequent events, including walking home with her grandmother, the accused following them back, and over the accused returning as well and staying listening to music back at their house.[20] R said that when she ran out of his house she told her grandmother that the accused tried to make her take her clothes off, and that he had replied “Nah, nah, bullshit”. She said when her grandmother had asked the accused “what did you do to my granddaughter”, she told her grandmother what had happened and he said “bullshit”.[21]
[20] T 68-81.
[21] T 81.
R said that when the accused followed them back to their house and was listening to music he was also singing to the music and drinking from a carton with a little tap on it, mixing it with a little lemonade in a glass her grandmother gave him. She said he didn’t stay for long because her grandmother wanted to go to bed and she had to go to school in the morning so her grandmother said to him “Can you turn the music off because I need to go to bed and (R) needs to go to sleep for school tomorrow?”, to which the accused said “Nah, you can go to sleep and I’ll listen to music”, to which her grandmother responded “No” because it (the music) reminded her of her mum. R said that, at that, the accused left saying he was going to go up to his house but in fact when he left he went in the other direction.[22]
[22] T 82-83.
Defence counsel then cross examined R about what she said, and to whom, about these events. She said she told her aunty a little bit more about it but ‘didn’t tell her like heaps of it that night’. She was asked whether she talked to the police and she responded that she had talked about it to her aunty and it was her aunty who had told them to go to the police, and so that is when she talked to the police. She agreed with defence counsel’s suggestion that she would have talked to the police on the date of her statement, three days later, on 14 December 2011.[23]
[23] T 83.
R was cross examined at length over her statement, and taken through the alleged events a further time. In the course of this, defence counsel asked R if the accused had used the words “strip off” to her and she said that she didn’t think he did, then defence counsel put to her that she had said to police “…he kept saying strip off, take your clothes off”. In response R gave evidence that:
Well, he kind of – I don’t think he exactly said ‘strip off’. I think he said it in a way like that.[24]
[24] T 89.
Much of the cross examination over the statement was over the exact dynamics of what happened at her house and the accused’s house, and the exact words that were said to have passed between R and the accused. Whilst there were some small differences in recalled wording, and the exact order and dynamics of events, R’s responses remained consistent with what she had said happened to her at the hands of the accused. R admitted that she knew a couple of things that her grandmother had told her, like that her grandmother knew that when the accused was drinking mixed with lemonade, he was putting more drink in than lemonade.[25]
[25] T 93.
R was cross examined about exactly what was said before they had gone up to the accused’s house, and she said that her grandmother offered to come too but that the accused had said “No” to her, that she R had asked if her grandmother could come too and the accused had responded that he and R would drop the stuff off and the accused would bring R straight back.[26] R agreed with the suggestion that when the accused was initially at her house they had played a hand slapping game.[27]
[26] T 93-94.
[27] T 96.
Defence counsel then put to R a passage from her statement to police, at one of the various points in that statement where she described some of the events in her own words. The following portion of the interview was put:
He shut the door behind us and he asked – I put his stuff down and he asked if I could – he kept asking to strip off and I said “No”, but I kept saying “No” because I said – and I said that it was sexual abuse and he said – and I said “No”, and he said “Why”, and he kept saying “Oh, I thought I loved – I thought you loved your uncIe” and I said – “I yeah, I love you but I just don’t want to do it”.
When defence counsel suggested that “sexual abuse” might have been a term someone else said to her afterwards, R responded as follows:
ANo. I said that to him.
QThat’s not a grown-up –
AThat’s what I thought.
Q.That’s not a grown-up’s words that you got after you went back to your nan’s and he left. That’s what you thought at the time.
A. When I was in the house, I thought it was.
Q. And you said that to him.
A. Yes.[28]
[28] T 96.
Shortly after, R was cross examined about this part of her statement, in which she had also said that the accused said to her ‘Don’t you love your uncle?’ notwithstanding that it was the first occasion that he had met her. R responded:
A.Like, because, at the house, like we were playing games and all that and, like, I thought that he was nice, so that’s why I went and then when he said that, like, because - I liked him but I didn’t like what he was doing.[29]
[29] T 97.
At this point R became visibly upset and needed a break. This sequence gave the distinct impression of a young child being genuinely upset at being taken back to a point when she realised a new uncle who she genuinely liked was suddenly doing things to her which she didn’t like. It had all the appearance of a wholly genuine reaction.[30]
[30] T 97.
R was cross examined about why she did not mention the kiss in her statement to police, and was taken to question 161 and following in her statement. R responded that there was no reason why she did not mention the kiss to police apart from that she forgot about it. In the statement the police had asked if the accused had touched her in any areas that were private to her and she had said no. In answer to questions from the bench she explained which areas of her body she regarded as private, and indicated her chest and between her legs. She repeated that she responded to him kissing her by saying “That’s gross, that’s yucky”, and that she didn’t like it.[31]
[31] T 101-102.
The overwhelming impression she gave was that while she did not like him kissing her because it was “gross” and yucky”, she did not regard that as relating to parts of her body that were private to her, or as sexual abuse, so that may well be why she did not think to tell the police about it.
R was cross examined about what her grandmother had told her about the accused, and R said that she knew nothing about him before that day, but she knew her grandmother would come over to the accused’s house because her grandmother would be wondering what happened to her and why she was taking so long. She admitted she told the police that her grandmother knew that the accused would be up to something, because her grandmother told her that her grandmother knew the accused in the past and there was an incident a long time ago when her grandmother went to kiss him on the cheek and he moved her head and also stuck his tongue in her mouth. R said her grandmother told her this some day or days after the day in question, but she could not remember how long after.[32] In re-examination she said it might have been a couple of weeks later, after she had told her grandmother that the accused had done it to her.[33]
[32] T 106.
[33] T 122.
R was taken back to when the accused first arrived and said that when the music was on her grandmother asked her if she wanted to dance and they were just joking around and she was dancing.[34] When it was put to her that she pulled her t-shirt up at that stage, she said she did not remember doing that and she did not usually do that, nor does she remember anything about the accused saying “knock it off” to her, but she might have got a bit teary-eyed when mention was made of her mother because she has problems with her mother.[35]
[34] T 113-114.
[35] T 115-116.
R denied that her grandmother went with the accused and R to his house, that her grandmother was at the accused’s house the whole time, that it was not dark at the time, that nothing untoward happened and that she was put up to making the allegations by her grandmother.[36]
[36] T 116-122.
I have not mentioned everything R said in evidence or that was raised with her in cross examination, but I have considered it all. My provisional impression of R was of an intelligent, alert child who gave evidence extremely well for her age. Her answers were consistent throughout a long period in the witness box, and her overall demeanor and presentation was excellent.
R’s grandmother gave evidence. She initially explained the family background, saying that she lived alone with R, who she took care of. Her son, R’s father, lived just outside town, about 10 minutes’ drive away. The accused is her cousin, in that the accused’s father is her uncle. She said she had known the accused since he was a boy. She said that R had been living with her for 3 to 4 years, and that the accused lived close by, about 100 metres away.[37]
[37] T 124-125.
R’s grandmother said she recalled the day late last year when the accused came around in the late afternoon, wanting to see her son, R’s father. He came to the door and asked her to phone R’s father up to ask him to come in and see him, which she did. She said the accused came in and sat listening to music. R sat in a little chair in the lounge also. Soon after, her son arrived and took the accused down the street. They returned with alcohol in the form of moselle, and her son departed back to his house. Initially the accused then sat outside with his moselle but then wanted to come in, whereupon he sat on the lounge and listened to more music. She said he was drinking his alcohol but she noticed he was, as she put it, drinking it ‘too strong’, in that while he was mixing it with lemonade, there was a fair bit of moselle compared to the amount of lemonade. They talked. She said that went on for about 30 minutes. Then he said he wanted R to take some CD’s to his house for him. R’s grandmother initially said ‘I don’t know’ but R said ‘I’ll be all right, Nan’. She said that the accused said ‘Would it be all right if (R) carried the tapes up for me?’ and that R said ‘I’ll be okay’, and so she said ‘Okay’ and let R go with the accused. The accused said he would bring her straight back.[38]
[38] T 125-129.
R’s grandmother waited for them to return, and kept looking for them to come back. She became concerned so she rang R’s father to come in and see if there was anything wrong, but she couldn’t get him to come so she decided to go over to the accused’s house herself. As she approached the house she heard R’s voice saying ‘Leave me alone, don’t do that’, so she rushed up the steps and knocked on the door. She said the accused opened the door straight away and R rushed out. R’s grandmother said ‘What did you do to this little girl?’, to which the accused said ‘Nothing’. She said that R was stressed, upset, crying and a bit angry. She said that R told her ‘He made me do it’, to which R’s grandmother asked ‘What’, and R replied ‘He made me lift up my top and pull my shorts down’ and that she R had told the accused ‘I got private parts just like you got private parts’, saying that the accused had seen her private parts. She said they walked home quickly, as R wanted to get home and was pulling her along by the hand.[39]
[39] T 129-132.
R’s grandmother said that shortly after they returned home the accused arrived and knocked on the door. She said she let him in, and when asked why she let him in said ‘Because I know the kind of guy he is’. She said he sat down and kept looking at R, who R’s grandmother made sure was with her. She said he stayed about 15 minutes, then she told him he had to go, and told him ‘This little girl is still upset, (R) is still upset’, and that the accused did leave. She said that R wanted to tell her more of what happened. She said that R told her that the accused also threw her on the mattress but that R got up straightaway, and that he kissed her on the cheek and that he stuck his tongue down her throat. She said R said she had said ‘Ooh yuk’. She said she told R not to worry, that they would do something about it.[40]
[40] T 132-133.
R’s grandmother was cross examined at length as well. She was taken through the events again in detail, and whilst there were some small inconsistencies and she filled out some further detail, she was generally consistent with what she said in examination in chief about the overall events of the day.
I mention a couple of matters arising from cross examination that were particularly emphasized by defence counsel.
R’s grandmother said that R was singing and dancing with the music during the accused’s first visit, but that she had not asked R ‘to get up and dance for him’ as suggested by defence counsel, nor did she take R and stand her in front of the accused at any stage, as also suggested by defence counsel.[41]
[41] T 138.
R’s grandmother said there was an incident between the accused and her over 10 years before when ‘He done the same thing he done to (R)’ in that ‘He stuck his tongue in me mouth’. She said her son was present on that occasion. She said she didn’t tell R that. She agreed that she was frightened of the accused, although she wasn’t when he was ‘straight’, which I interpret to mean when he was not drunk. She said that she did not ask her son to stay because she thought she could trust the accused and at that stage it seemed a happy time with the music playing.[42]
[42] T 142-144.
She said that at the stage when the accused and R had not come back from the accused’s place she rang her son to go and check on R because he was more or less her guardian, and at that stage she was a bit frightened to go up there on her own as he had been drinking moselle and she had had to put up with a lot of drunks in her childhood. She said she hesitated to go by herself because ‘- if he swiped me once I would go over’. She said she did speak to her son but that he would not come over because he said he was too tired.[43] She was again asked why she let him in after he followed her and R back to the house, and amongst other things she said she was frightened because she had had a lot to do with, and had had problems with people that drink but also that he was a cousin and she had to be nice to him, and also that he was ‘wrapped up with’ her brother John, who she had lost in years gone by.[44] Whilst she did not say so in as many words, I also had the overall impression that she may have been concerned that it would have made matters worse if she had tried to prevent him coming in.
[43] T 146-149.
[44] T 161.
R’s grandmother repeated under questioning that the accused had stuck his tongue down her throat many years before, and that as a result she does feel uncomfortable about him.[45] She also said she told R to be careful in front of the accused;
QDid you tell her to be careful of Tamby in front of him.
A.The only reason I told her that was because when little girls dance they’ve got body language, if you know what body language means. I don’t want her to have body language. I keep mentioning it to her.
…
Q. And did you tell her why she should be careful or what she shouldn’t do.
A. She knows what ‘be careful’ means. I’m always telling her.[46]
[45] T 163.
[46] T 164.
She agreed she had had a grudge against the accused for what he did to her[47] but that after a little while she had let it go when she didn’t see him around for a period, and that things were back to normal at the time of the incident before the court.[48]
[47] T 171.
[48] T 172-173.
R’s grandmother said that right at the end when she told the accused he had to go she told R to ‘Give uncle Tamby a hug’. She said she did that when she was telling the accused he had to go, as she was trying to make him feel good when he left.[49]
[49] T 166-167.
R’s grandmother gave evidence that she did not make the decision to take R to the police, rather R’s aunt spoke to R on the phone and as a result she had to take R to the police station.[50]
[50] T 172.
R’s grandmother is a 60 year old woman, who in many respects has had a difficult life. She indicated she had had a serious car accident in 1989 involving multiple injuries which gave her ongoing disability, pain and discomfort. She also has a heart condition and is on medication. These factors caused her to tire, which she plainly did during the course of her evidence. She had obvious difficulties just getting up and down the few steps to the witness box. At some stages she appeared to get a little confused about the order of some events, and when things were said, but overall she presented well. My provisional impression was of a dedicated grandmother who despite her significant physical limitations and very hard life was fiercely protective of her granddaughter, but whose memory of events was not as clear and consistent as R’s. My provisional impression was also of an honest witness who on occasion struggled with her recollection of the detail and order of events, particularly conversations.
R’s father, who I will refer to as “C”, was also called to give evidence. He gave evidence that R was indeed his daughter and that she had indeed been living with his mother, her grandmother, for several years. C knows the accused, who is indeed related to him. He knew him as ‘Tamby’, and would bump into him now and again, occasionally having a drink with him.[51]
[51] T 177-178.
C gave evidence that on 11 December 2011 he got a call from his mother saying that the accused wanted to see him. He said he did not really want to come in to town as his back was playing up, but that he ended up going in. When he got to his mother’s house the accused asked him if he had enough for a drink for the night, so they both got in C’s car and together drove to the local Corana bottle shop. There he paid for a cask of wine and a bottle of lemonade which they returned with to C’s mother’s house. When they returned the accused poured a glass for himself, but C did not have anything as that was not his drink. He said his mother and R were there, and he said to his mother ‘I have to go’ and asked her if it would be alright if he went, which he did. He thought he left at something like 5 or half past 5.[52]
[52] T 178-180.
In cross examination C said he got another call from his mother ‘I think it was an hour or something after that’. His mother was worried that R had gone with the accused to his house and she was a bit concerned ‘because it was a bit long because he was supposed to bring her straight back’, and she wanted him to go and get her. He said his mother sounded worried about where R was. He replied to his mother that his back was playing up and that he couldn’t come.[53]
[53] T 180-181.
C was taken through the events again in cross examination. He denied the suggestion made to him that in fact he went by himself to the bottle shop. He said he next spoke to his mother the next day when he called around to see her as he regularly did, and that is when he found out what had happened. He was asked what R said about what had happened to her, and he could recall that she said something about pulling her top up, and that there was a mattress there and there was something about laying down on the mattress. He said he could not really remember much after that, as it was that long ago now. He said he did not think he got told that the accused stuck his tongue down R’s throat. He said he had seen the accused kiss his mother before, but mostly on the cheek as a normal greeting.[54]
[54] T 185-186.
My provisional impression of C was of a matter of fact, straightforward witness who gave evidence well.
Detective Rutschack gave evidence about the accused’s house and the local area, and through him photos and a diagram of the house were tendered.
Detective Hudsell was the officer to whom R gave a statement on 14 December 2011 at a CIB office. That statement was admitted pursuant to section 34CA. Whist no objection was taken, I indicate I carefully considered all the relevant criteria for admission of that statement pursuant to section 34CA and the relevant authorities, and found that those criteria were satisfied and that the statement should be admitted. Counsel agreed that questions 168-172 not be admitted, however they said that due to editing issues it was difficult to excise them from the video. Accordingly it was agreed between counsel that the video would be admitted but that the court would simply ignore questions and answers 168 to 172.[55]
[55] T 189. For convenience and reference counsel agreed that the court could have regard to an aide memoire of the interview, in which the questions are numbered. The document was marked for identification MFIP4.
The statement is, per 34CA, evidence of the truth of its contents, but of course it cannot be corroboration of R’s evidence in court. I have carefully viewed the statement recorded on video. R told her story at the outset in a spontaneous and unprompted way. For example, I set out her first answer about the actual events.
Q15. OK. And er, so, just in your own words, can you just tell me what happened?
AWell, um, he came to nan’s house and he brang a Fruity Gordon drink, wine and um, he brang that and he brang this, he put this much wine in it and that much lemonade, um and um, I thought he um, he asked if I could carry his stuff, so I carried his stuff ‘coz I thought he was nice and I carried his stuff into his house and then he shut the door behind, behind us and he turned the light on and then he turned the light off and then I started screaming, started yelling and then he turned “Oh, he said, oh, I’ll turn the light on” and he kept saying “oh, strip off, take your clothes off” and he forced me to do it um and and he was trying to force me to get on the mattress and I kept saying “no” and um I was, he pushed me onto the lounge and then came and I kicked him off onto the mattress and then I kept trying to get out and kept yelling um and trying to get out and I was (inaudible) there was a table in his house, in the kitchen and I was going around the table ‘coz he kept moving his chair closer and then I screamed um and Nan was coming around, she goes she rang um Dad up and she came round the corner and um she heard me scream, ‘coz do you know where the broken fence is, and you go through the um, trees, you know where the broken fence is? She heard me scream there and she hurried up, she hurried up, up the steps and knocked on the door and then I came rushing down the steps and I told Nan, I kept yelling and told Nan what um happened, I told her that he tried to make me strip off and then I jumped over the fence and I kept saying “Nan, hurry up, Nan, hurry up” because he was coming behind us and then um, Nan let him in the house and it just seemed like he didn’t do anything ‘coz when we were at the door, he was like “Nah, nah, B”, he said um “B” and a swear word.
The police officer said it was OK to say what the swear word was, and so R said the swear word was “Bullshit”, and so R continued:
A.…. And um then, yeah and Nan let him in the house and he sat down on the lounge and listened to the music again, ‘coz he was just listening to music at the start and he kept um, he was listening to music and Nan said “oh, um, um, I, (inaudible) can you stop, you can only listen to a couple of songs ‘coz I want to go to bed and (R) needs to go to bed for school in the morning”…… And he said, oh, um youse can go to bed and I’ll play music” and Nan said, “no, um I want to go home and, ‘coz I don’t want to listen to it back at night time ‘coz it reminds me of my mum”, Nan’s mum………’Coz she passed away and um then he went out and he said that he was gonna go um, home which is up the hill but he went down the hill.
The detective then took her through the events in step and sequence. Her answers appear spontaneous, immediate and entirely unrehearsed. She was not prompted or improperly led in terms of the questions asked. There is more detail in the statement about the events she describes than she gave in court nearly a year later, which is what one would expect of a statement taken closer to the events in question. On face value, it appears straightforward and credible.
I scrutinized the statement, having particular regard to the requirements of section 34D, that the court must consider whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
The statement was made quite contemporaneously with the alleged occurrence, being only three days later. I could not detect any motive that R might have to conceal or misrepresent facts, however I bore closely in mind the motive suggested by the defence case that R’s grandmother had, due to an historical grudge on her part, put R up to making all of it up, and that R may have for that reason made everything up. In particular I looked for pauses that might indicate R was working out what to say or trying to remember what her grandmother had told her to say, or any evasiveness, or any inconsistencies within the interview over the course of the interview or with her evidence in court that might indicate fabrication on her part or that might indicate pressure from her grandmother. There were no such obvious indications.
The statement does however make no reference to the kissing incident the subject of count 2, and so I have given particularly careful scrutiny to R’s evidence on oath concerning count 2. In particular at questions 161-164 the detective asked R whether the accused touched her in any way that he should not have done, in any areas that were private to R, and she said no. I note however that in evidence R said that her private parts were her chest and between her legs, and that it is accordingly likely that R thought she was being asked about those parts of her body, rather than if he kissed her at all. It is plain from the evidence of both R and her grandmother that hugs and kisses, albeit of a benign type, were commonplace and expected between extended family members and that the children were taught that this was part of respect for elders, so it is likely that R did not understand that she was being asked to recount anything about the kiss. The allegation about the kiss came to be part of the prosecution case as it arose in a proofing session with a DPP person in August 2012, after which R was then asked to re-attend police to give a further statement.[56]
[56] T 191-192.
The prosecution case closed with three agreed facts:
1. (R) was born on (date given – establishing that R was 9 on the date of the alleged events).
2. Senior Constable Dianne Gale arrested the accused on 19 December 2011.
3. On 14 December 2011 (R’s grandmother) told Senior Constable Morley that ‘Tamby stayed at the house for about 5 minutes’ before leaving with (R) to go to the accused’s house.
The defence case
The accused gave evidence on oath.
It is important to bear in mind that there is no obligation on an accused person to give evidence and that accordingly the accused is entitled to credit for adopting a course which he was not in any way obliged to take. Having given evidence, the accused’s evidence is to be treated and assessed like that of any other witness. Whether or not an accused person gives evidence, it must always be borne in mind that there is no obligation on an accused person to prove anything, and that it always remains for the prosecution to prove every element of any charge against an accused person beyond reasonable doubt.
After describing a little about his background, the accused gave evidence about his relationship with R, her father and her grandmother. He said he had known R’s father (“C”) and grandmother for many years, but only knew of R as one of the kids who he noticed in the street while passing by the house.
The accused said that he had little contact with R’s grandmother due to her having made an accusation against him one night at least 15 years before, that he had been ‘Trying to get onto her and kiss her’. He said that such a thing had never happened.[57]
[57] T 202.
He recalled the day in question. He said he went around to R’s house to look for C to seek a loan to buy alcohol. He asked R’s grandmother to contact him, which she did. He said it was the first time he really talked to R’s grandmother since the accusation had been made over 15 years before, apart from the occasional ‘hello’ or ‘goodbye’. He said he stayed outside while she went inside to make the call. He said it took about 10 minutes for C to arrive. While waiting he sat in the lounge with R and her grandmother, and asked if she had any cassettes to play some music, and asked if she had any photos of a particular deceased relative. He listed to music, and he noticed R playing a hand slapping game which he also knew. At that he said that R’s grandmother grabbed R and ‘distinctly walks her in front of the coffee table. So for some reason stands there and whispers something in her ear that is just how things became to feel uncomfortable along the line’.[58]
[58] T 206.
The accused said he asked whether C had returned yet, and R’s grandmother said that it was on the verandah outside, C having apparently gone to the bottle shop by himself, dropped the alcohol on the verandah and left, all without coming back inside. He said he just grabbed the alcohol, whereupon R’s grandmother said ‘drink it inside’ and got him a cup, so he started drinking inside.[59]
[59] T 206.
The accused said that before that had happened, when R had been stood in front of him, before even the music had started playing, R started dancing in front of him and raising her top. He said that R’s grandmother made several trips to another room getting a few cassettes at a time, and put music on. He felt annoyed because she was taking too long to do that, with ‘this character standing in front of me’. He said that R was raising her top, moving the top of her shorts down and dancing in ‘ways that I just didn’t seem (sic) right’. He said he therefore raised his voice for all to hear, saying ‘Behave. Sit down. Knock it off. Don’t be stupid. Just behave’.[60]
[60] T 208-209.
The accused said that, at that, R’s grandmother returned to the room and started questioning what he had done to R, to which he told her to get R to sit down and behave, as R was standing there and dancing around and he was feeling uncomfortable. She said nothing to R, however R didn’t do or say anything after that and he just continued listening to music and talking to R’s grandmother for another 20 minutes. The accused said he then decided to go home, whereupon R’s grandmother started offering that he could have the tapes and photos she had brought out.[61]
[61] T 210.
The accused said he asked the two of them whether they wanted to come for a walk, because R had been questioning where he lived, which he found surprising, as it was odd that a kid would want to know where a total stranger lives. He said that the three of them walked to his house together. When they got there he went in the back door and opened the front door for R’s grandmother. She came in and looked at photos on the wall and R looked around the house, while he filled up a Sprite bottle with a mix of alcohol and lemonade. He told them ‘I will go for a walk now’.[62]
[62] T 212.
The accused said they were probably at his house for 5 minutes. They then walked back to R’s house. He said that at no stage was R crying. He said he was at R’s house the second time for about 10 or 15 minutes, just talking about family members in general, people, deceased relatives and the like, before leaving to go to his girlfriend’s house.[63]
[63] T 212-213.
The accused said he came back the next day to give R’s grandmother a CD in thanks for the cassettes she had given him, and to talk to C about ‘men’s business’, which he described as ‘the odd characteristics that I felt in (R’s grandmother’s) home whilst being present there’.[64]
[64] T 214-215.
The accused also gave evidence in chief that he has had to put up with a lot of false accusations over time around the town for things which he did not do, including accusations which he could not have done as he was in custody. He was asked by his counsel for any explanation as to why it might be that R and or her grandmother would make false accusations against him and he responded that sometimes he thought his life had turned out to be a political game, or just a game, and ‘It’s a game. In respect to (R’s grandmother), due to my past incident of accusations that she’s made, it is just like you said, it’s a mind game’.[65]
[65] T 215-219.
The accused concluded by saying that R’s grandmother had never discussed the allegations with him and that he never went to his house alone with R. He denied turning the light off on her in his house, denied that R screamed at any time, or that he made her take her clothes off or get on his lap.
During examination in chief, as mentioned, there was reference to the accused being in custody. Whilst I take it into account for the purpose it was led, as relevant to the accused’s evidence that there was a background of false allegations made about him, it is otherwise of course entirely irrelevant to the charges before this court. The fact a person may be in custody and may accordingly have been charged or convicted of some other offence is completely irrelevant to the charges before this court, and in that respect I disregard it entirely.
The accused was cross examined and taken through his recollection of events and his contact with and relations with the various protagonists. He also said he was not there that day for any sort of vengeance on R’s grandmother for the accusations he thought she had made about him in the past, he was there to see her son, and then waiting for him to turn up.[66] He agreed that he knew R was ‘only a kid’, and when asked if he knew she was definitely under 14, replied ‘I would say so. I don’t know. I’m just – yeah’.[67]
[66] T 229.
[67] T 242.
The accused was broadly consistent throughout cross examination with the evidence he had given in examination in chief, giving explanations for and expanding on some of the issues.
The defence called no other evidence.
Assessment of the evidence
I have carefully assessed and indeed re-read all the evidence. I have carefully considered the addresses of counsel. In particular I have carefully considered what both counsel have said about the witnesses and their evidence, their helpful analyses of the evidence overall, and what each counsel argued were the significant likelihoods of their cases and the serious unlikelihood of the opposing cases.
Since the prosecution case rests substantially on the evidence of a single witness who was 9 at the time of the alleged events and 10 at the time of trial, I have scrutinized her evidence with special care.[68]
[68] R v Murray (1987) 11 NSWLR 11 at 19; Robinson v The Queen (1999) 197 CLR 162 at 169.
Counsel for the DPP submitted that R should be believed. The thrust of her submission was that when an assessment of the demeanour, content, and detail of the prosecution witnesses’ evidence, particularly the evidence of R, is undertaken, the result is compelling. She submitted that how the complaint came to light was significant, and also that the defence evidence, in particular the defence hypothesis that the grandmother had put R up to make a completely false complaint, was quite unbelievable.
Counsel for the defence emphasized a number of aspects of the evidence given by R and her grandmother which he submitted were unbelievable, even bizarre and which he submitted in some respects beggared belief. A central theme was to highlight aspects of the evidence where R and her grandmother did things in relation to the accused which counsel for the defence submitted were inconsistent with the alleged behaviour having occurred, for example in particular where at the very end R’s grandmother was trying to get the accused to leave her house after the alleged events, she told R to give Uncle Tamby a hug before he goes. Defence counsel argued that events such as that were fundamentally inconsistent with any suggestion that the accused had behaved badly towards R as alleged. He also emphasized some inconsistencies in the prosecution evidence, for example where R said to police that the accused had told her to ‘strip off’, when in this court she had said he used different terminology when telling her to take her clothes off. That is one of many examples he cited. He emphasized the grudge that R’s grandmother admitted having had against the accused in the past, and submitted it was a possibility that she had indeed put her granddaughter up to it.
I do not repeat everything both counsel submitted, however I have considered it all, and have carefully borne it in mind when assessing the witnesses.
R was, in the final analysis, an excellent witness. She was an intelligent, alert young girl who gave spontaneous, responsive, to the point evidence in this court without any apparent pause or apparent evasiveness. There was no significant material inconsistency with what she said in her complaint evidence, or in earlier police statements put to her by defence counsel, nor with her section 34CA statement. There were some inconsistencies and differences in detail, but they were with one exception minor, and exactly what you would expect to see in a child remembering somewhat traumatic events that occurred some time ago. She was a compelling witness on her oath in this court.
In light of that, I would potentially find it unnecessary to have material regard to the initial complaint evidence and the detailed section 34CA statement in support of the prosecution case, however I have closely scrutinized them to assess whether there is any direct or indirect support therein for the defence case, or whether any aspect of them amounts to inconsistency that might throw doubt or question over R’s evidence on oath or any other aspect of the prosecution case.
There was only one significant omission from R’s section 34CA statement given to police three days after the alleged event: any reference to the accused kissing her and putting his tongue in her mouth. I have carefully scrutinized her statement and also her evidence on oath and her explanations as to why she did not mention it. It is plain that she thought that it was wrong for the accused to make her take her clothes off, for him to see her private parts, and was very upset at his attempts to get her onto the mattress, and that she had a conception of what ‘sexual abuse’ was. It is plain that she did not think her mouth was one of her ‘private parts’.
It is likely that what R was concentrating on telling the police about when she spoke to them was conduct that she thought amounted to sexual abuse. She was never asked if he kissed her, or whether he did anything with his tongue or her mouth, or similar. I accept her explanations about the omission. Accordingly in all the circumstances, I do not regard that omission as adversely affecting the honesty and credibility of R.
Whilst there is no obligation on the defence to prove anything, or indeed to suggest a motive to lie, where one is suggested it must be carefully considered. It was suggested that it was possible that R lied because her grandmother put her up to it. It was suggested this may have happened because her grandmother had a grudge against the accused over a kissing incident that in fact, according to the accused, did not occur, over 15 years earlier.
In my view it would be almost impossible for R to have been rehearsed into making such a long, detailed and entirely fabricated set of allegations, and repeating them on oath in court so accurately throughout examination in chief and through an extended cross examination, and present in the convincing way that she did present. R also came across as an honest and forthright child who I assess to be very unlikely to go along with any such suggestion to lie about her uncle, had it been made to her. Further, it seemed from the evidence of both R and her grandmother that neither of them actually proposed to take the matter to police, rather it was an aunt who was a health worker that told them to report the matter to police when she found out about it. Finally, if allegations were to be fabricated, there are far simpler, more serious indecent assault allegations that could have been made, and indeed it would have been a simple matter for R’s grandmother to purport to have witnessed them herself, were she at all motivated to revenge herself on the accused over historical events.
Overall, in the end, R was a palpably honest, reliable and in the end quite compelling witness in this court.
R’s grandmother was, in the final analysis, an honest witness. She came across as a ‘battler’ who lived alone with R and had brought her up for several years on her own. She was fiercely loyal and protective of R, and in my view there is no possibility that she would use R and put her at risk by coaching her to wrongly accuse a relative of committing an offence against her and commit perjury in support of that, and all because he kissed her the wrong way over 15 years earlier.
She gave evidence well, and she was in the main consistent and I find credible and reliable about the major aspects of the day, although I conclude that her memory as to the detail of events, their order, and who said exactly what and in what terms was not perfect. There were some inconsistencies in her evidence with R, and I have in particular closely considered the matters raised in that regard by defence counsel in his comprehensive address. In the end I find that where there were these inconsistencies, R’s grandmother is likely to have forgotten or honestly mistaken her recollection of events and that R’s recollection is to be preferred. I have concluded that they do not cause me to doubt the honesty of either R or her grandmother, nor the accuracy and reliability of R.
I have given close consideration to defence counsel’s submission that much of what R’s grandmother did was inconsistent with abuse having happened, for example letting the accused into her house a second time, and getting R to give the accused a goodbye hug when he was about to leave at the very end of the evening. She said variously at different stages of her evidence “I know the kind of guy he is”, and that she had had to deal with drunks all her life. In my view these actions are all explicable as, indeed likely to be, the behaviour one might well expect of a palpably frail 60 year old grandmother with medical infirmities attempting to protect her 9 year old granddaughter when dealing with and managing an obviously large, drinking, male relative, while trying not to provoke anger, violence or further bad behaviour. Much of what was argued by defence counsel to be inexplicable behaviour on R’s grandmother’s part is completely understandable when seen as the behaviour of a frail woman with a lifetime’s experience in dealing with drunk people. I do not regard any of the matters so raised by defence counsel as casting any doubt over her honesty or reliability.
C was an honest and straightforward witness, who I found to be credible and reliable. He did not embellish anything and frankly admitted his lack of memory for detail. He was clear and unshaken that he had gone together with the accused to purchase alcohol, not by himself as claimed by the accused, and that his mother had rung him later quite concerned about the fact that the accused had not brought R back from the accused’s house as expected. He did not recall seeing the accused inappropriately kissing his mother years before, however I do not regard this as casting doubt on either his or her credibility, as she did not purport to say that C saw it, rather just that C was present when it happened. He may well have been present at the same location and looking the other way, or had his view obscured by others, or just not have been facing in the right direction.
The accused gave evidence on oath and as mentioned deserves credit for doing so.
The accused gave evidence in a relatively straightforward way. He denied both charges. He came across as quite an intelligent and articulate person. The accused’s presentation and demeanour were not particularly good, slumping to the side and avoiding eye contact for much of the time in the witness box. However, I make allowances for that, as that might conceivably be his normal way of speaking.
His evidence of some events was contradicted by both R’s grandmother and C, in particular whether C went by himself to get the alcohol for the accused. Also, by R’s grandmother’s evidence that she did not go with the accused and R to the accused’s house initially, but became concerned and rung C to go. Her evidence about that is supported by her phone call to C which was also recalled by C. This evidence is quite inconsistent with the accused’s version of events that had R’s grandmother present with R at all relevant times
The accused’s version of events is, I find, less objectively credible than R’s. I find it strains credulity that after a perfectly friendly visit whereby cassettes and photos were given to him, an agreeable visit occurred to his house, and he went back the next day to present a CD in thanks, R would, for any reason whatsoever, fabricate the specific allegations in this case against the accused. Further, his version of events itself flows less clearly and credibly.
I observe that the accused was drinking prior to the alleged offences, and this may well have lowered his inhibitions towards R, and it may have impaired his memory of events.
I remind myself that there are two wholly inconsistent versions of events in this case. They cannot sit together. It is of course not an either/or situation or a matter of picking one or another version of events. A court might wholly accept the prosecution witnesses, in which case it would convict, or wholly accept the defence evidence in which case it would acquit. On the other hand it might be impossible to tell where the truth may lie, or the court may simply have a single reasonable doubt, in which case the case has not been proven to the requisite standard and the accused must be acquitted.
Importantly, the court must bear in mind that the prosecution bears the onus at all times, and must establish each element of a charged offence beyond reasonable doubt. In particular in a case such as this, the court must bear in mind that it is not for the defence to prove anything, and there is no obligation to prove or even suggest a reason why a complainant or a prosecution witness may lie. Indeed complainants and prosecution witnesses may lie for any number of reasons, and in fact may lie for no reason.
In the end, notwithstanding the accused’s evidence, I accept the evidence of R, her grandmother (except where inconsistent with R), and C beyond reasonable doubt. R was an excellent witness whose evidence I accept beyond reasonable doubt as both honest and accurate. R and C were both honest and reliable witnesses, with less accurate recall for detail than R. Whilst R’s grandmother does corroborate R’s evidence in some respects, in that I find that she did hear R cry out from the accused’s house while he was pursuing her, and that R did show palpable distress when she rushed out of the accused’s house, I would accept R’s evidence on oath in this Court beyond reasonable doubt without such support, so compelling a witness was she on oath in this court.
I do not accept the accused’s denials of the alleged offending as a reasonable possibility, nor does his evidence create a reasonable doubt.
I find that in the totality of the proven circumstances as described by R, the only possible motivation the accused could have had to induce R to take off her clothes was for his own sexual arousal and gratification.
I find that in the totality of the proven circumstances as described by R, right thinking members of the community would regard an adult pushing his tongue into the mouth of a 9 year old girl as indecent.
Conclusion
I find proven beyond reasonable doubt:
·That on 11 December 2011 R was a child under the prescribed age of 17.
·That the accused knowingly caused or induced R to expose part of her body, in this case her breasts.[69]
·That the accused acted for a prurient purpose to satisfy a desire for sexual arousal and gratification.
·That the accused knew that R was under 14 when he committed the offence.
[69] Only R’s breasts are particularised in the Information.
I also find proven beyond reasonable doubt:
·That on 11 December 2011 the accused assaulted R by pushing his tongue into her mouth, which constituted a deliberate application of force for which he had no lawful excuse.
·That the assault was accompanied by, or occurred in circumstances of indecency in that right thinking members of the community would regard an adult pushing his tongue into the mouth of a 9 year old girl in the proven circumstances as indecent.
·The offence is aggravated as R was under 14 at the time of the offence.
Accordingly the prosecution has proven both offences charged against the accused beyond reasonable doubt.
Verdicts
Count 1: Guilty.
Count 2: Guilty.
0
11
1