R v Tancock
[2014] SADC 54
•11 April 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TANCOCK
Criminal Trial by Judge Alone
[2014] SADC 54
Reasons for the Verdicts of His Honour Judge Chivell
11 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with three counts of aggravated assault causing harm and three counts of aggravated indecent assault. Complainant lived with his father – accused was the partner of the complainant’s mother – alleged offending took place over a three-month period when complainant on access visits to his mother. Complainant was four years old at time of alleged offending and five years old at time of trial – unsworn evidence permitted pursuant to s 9(2) Evidence Act – permission given for cross-examination of complainant pursuant to s 34CA(1)(b)(ii) of the Evidence Act. Evidence of what complainant said to various health professionals admitted. Issues of cross-admissibility and credibility.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 s 20(4), s 56; Juries Act 1927 s 7(1); Evidence Act 1929 s 9, s 34CA, referred to.
R v S, PC (2008) 102 SASR 199; R v Maiolo (No 2) [2013] SASCFC 36; R v Hare [2007] SASC 427; R v Dolan (1992) 58 SASR 501; HML v R (2008) 235 CLR 334; R v C, CA [2013] SASCFC 137; R v Byerley (2010) 107 SASR 517, considered.
R v TANCOCK
[2014] SADC 54The Charges
Toby Tyrone Tancock is charged with the following offences:
·Count 1 – Aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (‘CLCA’). The particulars are that:
Toby Tyrone Tancock between the 16th day of November 2012 and the 20th day of November 2012 at Salisbury Heights, assaulted [SA], and thereby caused him harm.
It is further alleged that Toby Tyrone Tancock used an offensive weapon when committing the offence.
It is further alleged that Toby Tyrone Tancock committed the offence against [SA], a child under the age of 12 years.
It is alleged that Mr Tancock hit SA, then aged four years, on the buttock with a wooden spoon, causing bruising.
·Count 2 – Aggravated indecent assault, contrary to s 56 of the CLCA. The particulars are that:
Toby Tyrone Tancock between the 6th day of January 2013 and the 10th day of January 2013 at Salisbury Heights, indecently assaulted [SA], a child under the age of 14 years.
It is alleged that Mr Tancock flicked the penis of SA, thereby causing bruising and/or abrasion.
·Count 3 – Aggravated assault causing harm. The particulars are that:
Toby Tyrone Tancock between the 25th day of January 2013 and the 29th day of January 2013 at Salisbury Heights, assaulted [SA], and thereby caused him harm.
It is further alleged that Toby Tyrone Tancock committed the offence against [SA], a child under the age of 12 years.
It is alleged that Mr Tancock forcibly pulled the ear of SA, thereby causing bruising.
·Count 4 – Aggravated indecent assault. The particulars are that:
Toby Tyrone Tancock between the 17th day of February 2013 and the 21st day of February 2013 at Salisbury Heights, indecently assaulted [SA], a child under the age of 14 years.
It is alleged that Mr Tancock flicked the penis of SA, thereby causing bruising and/or abrasion.
·Count 5 – Aggravated indecent assault. The particulars are that:
Toby Tyrone Tancock between the 22nd day of February 2013 and the 26th day of February 2013 at Salisbury Heights, indecently assaulted [SA], a child under the age of 14 years.
It is alleged that Mr Tancock flicked the penis of SA, thereby causing bruising and/or abrasion.
·Count 6 – Aggravated assault causing harm. The particulars are that:
Toby Tyrone Tancock between the 1st day of January 2013 and the 26th day of February 2013 at Adelaide, assaulted [SA], and thereby caused him harm.
It is further alleged that Toby Tyrone Tancock committed the offence against [SA], a child under the age of 12 years.
It is alleged that Mr Tancock forcibly pulled up the underwear of SA, thereby causing abrasion of the skin.
Mr Tancock elected to be tried by a judge sitting without a jury, pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Stratton-Smith. Mr Powell appeared for the Director of Public Prosecutions.
Introduction
SA was born on 26 May 2008. His mother is KF and his father is DA. KF and DA had been in an ‘on and off’ relationship during 2006 and 2007. SA was born well after the relationship ended.
DA took over the responsibility for SA’s care when SA was five months old. His status as father was legally recognised on SA’s birth certificate when SA was six months old.
Since that time, SA has lived with DA and his mother and other members of his family.
At all relevant times, Mr Tancock and KF were in a relationship. Although Mr Tancock lived with his mother, he would often spend the night at KF’s premises when SA was there.
The issue of KF’s access to SA has been the subject of acrimony. In late 2012/early 2013, the agreement, which had been arranged through the Family Court, was that KF would have overnight access to SA on alternate weekends between Saturday and Monday, and on alternate weeks between Monday and Wednesday.
DA said that the arrangement was that on weekends, he would deliver SA to a neutral spot, usually a shopping centre, on Saturday afternoon, and pick him up from day care the following Monday afternoon. For weekday access, DA would deliver SA to day care on Monday morning, KF would pick him up from day care that afternoon. DA would collect SA from day care on Wednesday afternoon.
From these arrangements, it can be seen that once every two weeks, there was a gap of only three days between KF’s weekday access, which ended on Wednesday afternoon, and the following weekend access, which commenced the following Saturday afternoon.
It is the prosecution case that the six instances of offending by Mr Tancock against SA occurred during periods when KF had overnight access to him pursuant to these arrangements.
General Directions
I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·Mr Tancock elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to cross-examination by Mr Powell. He denied each of the charges, and answered questions about the surrounding circumstances.
Mr Tancock also chose, without legal advice and after being cautioned, to answer questions in interviews with police on 6 March 2013 and 30 March 2013. I give him credit for making these choices in the circumstances.
·Mr Tancock’s evidence should be assessed in the same way as the evidence of any other witness and, in particular, it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence.
·Even if I reject his denials beyond reasonable doubt, that does not in any way bolster the prosecution case. For Mr Tancock to be convicted of any of these offences, I must be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each count on the information must be assessed separately, and the evidence relevant to that count assessed in isolation from the other counts. The outcome of one charge does not necessarily require a similar outcome on the others.
Cross-Admissibility
The appearance of injuries on SA’s penis, the subject of counts 2, 4 and 5, is strikingly similar in each case. Mr Stratton-Smith accepted that if one count is proved beyond reasonable doubt, and there is a striking similarity between that count and another, it can be used as a piece of circumstantial evidence in relation to the other count.
Further, in my view, the evidence which is admissible in all of the six counts on the information is admissible on the other counts if:
·it provides a context, or a background to the commission of each count;
·it provides a means to assess the credibility and/or reliability of SA’s evidence, and DA’s evidence for that matter;
·it shows that Mr Tancock has a particular propensity to behave in a certain way towards SA.[1]
[1] R v S, PC (2008) 102 SASR 199, referred to in R v Maiolo (No 2) [2013] SASCFC 36 per Peek J at [98]-[99]
It has not been argued that the provisions of s 34P of the Evidence Act 1929 apply to this evidence. There is a distinction between cases where evidence of uncharged conduct is being led, and cases where conduct in one charged count is also relevant to another (R v Hare[2]). Further, in Hare, Vanstone J also held that there is no general rule requiring the giving of a propensity warning in every case (see [26]).
[2] [2007] SASC 427 at [25] per Vanstone J
However, in this case, I think it appropriate to warn myself against what has been described as ‘general’ propensity reasoning. Accepting that Mr Tancock has committed one count on the information, it does not necessarily follow that he has committed the other counts as well (R v Dolan[3]), or that he must necessarily have acted upon that propensity and committed the other counts (HML v R[4]).
Elements of the Offence
[3] (1992) 58 SASR 501
[4] (2008) 235 CLR 334 at 354
As to each charge of aggravated assault causing harm (counts 1, 3 and 6), the prosecution must prove each of the following elements of that charge beyond reasonable doubt:
(1)an assault by the accused on the complainant. An assault is any intentional application of force. Touching is sufficient. It need not have caused injury;
(2)the assault was without lawful excuse;
(3)harm was thereby caused;
(4)circumstances of aggravation:
(i)an offensive weapon was used to commit the offence (count 1 only);
(ii)at the time of the offence, the complainant was under the age of 12 years (counts 1, 3 and 6).
Proof of either or both circumstances of aggravation is sufficient. There is no doubt that circumstance (ii) has been proved in each case. A copy of SA’s birth certificate, tendered by consent (Exhibit P20), shows that SA’s date of birth was 26 May 2008. It remains an issue as to whether circumstance (i) has been proved in relation to count 1.
As to each charge of aggravated indecent assault (counts 2, 4 and 5), the prosecution must prove each of the following elements of that charge beyond reasonable doubt:
(1)an assault by the accused on the complainant (see above);
(2)the assault was without lawful excuse;
(3)the touching was in circumstances of indecency - that is, unbecoming, or offensive to common propriety;
(4)circumstance of aggravation: that at the time of the offence, the complainant was under the age of 12 years.
There was no dispute that if the alleged facts which are said to constitute each of counts 1 to 6 in the information are proved beyond reasonable doubt, then all of the elements of each of the offences charged will have been proved beyond reasonable doubt. The issue for determination in this case is whether the prosecution has proved those facts beyond reasonable doubt.
Rule 15 Application
Mr Tancock applied for various orders by notice, pursuant to rule 15 of the District Court Criminal Rules 2013, dated 3 January 2014. In the event, many of the issues raised in the notice were resolved between counsel. I had no overriding duty to look further into those matters (R v C, CA[5]). My ruling as to the unresolved matters is at T 29.
[5] [2013] SASCFC 137 at [54]
After further discussion, counsel agreed that the out-of-court statements of SA, which I purportedly admitted pursuant to s 34CA of the Evidence Act 1929, should be excluded unless I was satisfied that the requirements of s 9(2) of the Evidence Act had been met (see R v Byerley[6]).
[6] (2010) 107 SASR 517 at [36]-[39]
I was initially sceptical that a five-year-old child could satisfy the requirements of s 9 of the Evidence Act. That section provides:
9—Unsworn evidence
(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)tells the person that it is important to tell the truth; and
(b) the person indicates that he or she will tell the truth.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a criminal trial, the judge—
(a) must explain to the jury the reason the evidence is unsworn; and
(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5) …
It was agreed between counsel that it was appropriate to reconsider the admissibility of this evidence, since I had not previously considered the question of whether the requirements of s 9 had been met. The judgment of the former Chief Justice in Byerley at [35], with whom White J substantially agreed, made it clear that this was a pre-requisite to admission of the evidence under s 34CA.
It was also agreed by counsel that it was appropriate that an inquiry pursuant to sub‑ss 9(2) and (3) should be undertaken, even at that later stage of the proceedings.
This inquiry was undertaken on the morning of 4 February 2014. SA attended court and I spoke with him. We were both in a room which was remote from the courtroom, but connected with it via closed-circuit television.
Despite my initial scepticism, I was satisfied that SA understood the difference between the truth and a lie. SA told me that it was important to tell the truth, and promised to do so (T 211).
In forming my conclusion, I had regard to the answers SA gave to my questions, and also to his answers and demeanour during the long interview with Ms Madgen at the Women’s and Children’s Hospital on 4 March 2013.
I made clear then, and now repeat, that SA’s understanding of these issues was appropriate for a boy of five years, but that was, in my view, sufficient to satisfy the test in s 9(2)(a)(i) of the Evidence Act (T 217).
I therefore gave permission to SA to give unsworn evidence pursuant to s 9(2) of the Evidence Act.
After hearing further from counsel, I gave Mr Stratton-Smith permission to cross-examine SA pursuant to s 34CA(1)(b)(ii) of the Evidence Act.
The pre-conditions in s 34CA(1)(b) having been met, I admitted into evidence the contents of the interview between SA and Ms Madgen at the Women’s and Children’s Hospital on 4 March 2013, the evidence of Dr Nolan about what SA said and did in her presence on 25 February 2013, and the evidence of DA about what SA said to him on the various occasions referred to in his evidence (T 221).
I then gave Mr Stratton-Smith permission to cross-examine SA pursuant to s 34CA(2) of the Evidence Act on the matters he foreshadowed to me. The cross-examination appears in the transcript at T 223 to T 230.
I will refer to that cross-examination later in these reasons, when considering the evidence of the interview with Ms Madgen.
Prosecution Case
- Evidence of DA
Count 1
DA said that he delivered SA to the shopping centre for weekend access in the afternoon of Saturday, 17 November 2012 and KF collected him. DA collected SA from day care on Monday, 19 November 2012 at around 4 p.m. He took him home and was changing his clothes so that they could go swimming. He noticed a bruise on SA’s ‘butt cheek’ (T 60). It was about two inches in diameter. He took photographs of this bruise with a digital camera (Exhibit P1). The date showing on the photographs (20 November 2012) is incorrect, the photographs were taken on 19 November (T 65).
The photographs demonstrate that the bruise was on SA’s left buttock.
DA said that he said to SA, ‘How did you get that?’ and SA replied ‘Toby hit me with a spoon’. SA then showed DA a wooden spoon in the kitchen drawer and said ‘He hit me with this’ (T 61).
DA was not asked whether the spoon indicated by SA was red, or had any other identifying characteristics.
When SA was interviewed at the Women’s and Children’s Hospital on 4 March 2013 by Ms Madgen, he told her that the spoon he was hit with was ‘red’ (Exhibit P9A, page 22, lines 23, 27). When asked to get a ‘red’ pencil out of the box, SA selected a red pencil (ibid, line 29).
No doubt on the basis of this answer, the police looked for a red spoon when they searched KF’s unit on the afternoon of 6 March 2013. No such spoon was located.
I do not regard the fact that the police did not find a red spoon as a significant issue. On DA’s evidence, KF and Mr Tancock had been aware since 19 November 2012 that SA was alleging that he had been hit with a spoon. If that evidence is accepted, and the allegations are true, it is not surprising that the spoon was not found more than three months later.
Alternatively, SA might simply have been mistaken about the colour. When asked by Ms Madgen to describe it, ‘red’ might have been the closest, or the first, colour he could think of.
I do not consider that this issue detracts from the credibility or reliability of SA’s statements and evidence.
DA said that he telephoned KF and asked for an explanation of the injury to SA’s buttock. KF responded that SA had fallen over in the laundry. SA heard this conversation, as DA’s mobile phone was on ‘loudspeaker’. He said that SA said ‘No, I was hit with a spoon’. KF said ‘No you didn’t, you fell over’. SA said ‘Yes, Mummy’ (T 65).
DA said that after this incident, they went swimming as planned. After swimming, he took SA to the Modbury Medical Clinic but no treatment was administered and the bruise healed normally.
DA said that he refused to cooperate with access for about three weeks after that until access resumed, under the auspices of the Family Court, in late December 2012.
DA denied the allegation that there was no red bruise on SA’s bottom when he picked him up from child care on 19 November 2012. He denied the suggestion that it was in fact him who had hit SA ‘on the backside’ (T 96). It was put to DA that he had told SA to say that Toby had hit him with a spoon. He denied this (T 97). This cross-examination does not sit comfortably with the evidence of Mr Tancock and KF, as I will discuss later in these reasons.
Count 2
DA said he collected SA from day care after weekday access on Wednesday, 9 January 2013 at around 4.30 p.m. He took SA home and they had dinner. When he was undressing SA for his bath after dinner, SA said ‘Don’t flick my willy’. DA saw small spots of bruising on SA’s penis. It was around the ‘stem’, by which I take him to mean the shaft of the penis. DA asked ‘What happened?’ and SA said ‘Toby flicks it’. SA demonstrated by restraining his middle finger with his thumb and then flicking the finger outwards (T 69).
DA took two photographs of the marks on SA’s penis (Exhibit P2). Once again, DA said that the dates on the photographs were wrong and that they were taken on 9 January 2013, not 11 January as marked (T 70). In the witness box, DA marked the photographs with what he said were the bruises he had noticed.
DA accepted that SA had some kind of condition on his penis which caused it to be itchy and that he scratched it and manipulated it often. He was aware that KF had taken SA to the doctor about that condition, but this was back in August 2012. He agreed that KF had sent some ointment with SA and also agreed that he did not put it on SA’s penis because the ointment was ‘out of date’ (T 99).
It is agreed that, as he stated in Exhibit P19, Dr Andrew Jin-Wei Lok has seen SA on a few occasions since he first saw him on 10 June 2008 for his two-week baby check.
Relevant to this matter, Dr Lok said:
During 2012, [SA] was seen on the 16th of August 2012 by me and I hadn’t seen him for 2 years prior to that date. He presented with his mother on the day, she is [KF]. He was complaining of a sore penis. I noted that he was uncircumcised and he had a slight redness on the tip of his foreskin but otherwise it retracted well and painlessly. There was no discharge and I saw no other abnormalities pertinent to that. I thought he might have had a mild foreskin infection so he was prescribed a mild antibiotic for that. He was prescribed Chloromycetin ointment, to be administered twice daily for 5 days to the area. I cannot recall seeing anything concerning or suspicious. I would have told his mother to bring him back in if there were any ongoing problems but I did not see him again.
(page 2)
Dr Lok said that on Christmas Eve 2012, SA was seen at the practice by his father, Dr Chai Lok, in relation to an upper respiratory tract condition. He then observed:
There are no other notes in his patient record regarding any concerns from mum with regard to injuries or unexplained soreness.
(page 3)
Count 3
DA said that he collected SA from day care on Monday, 28 January 2013 at about 4 p.m. after weekend access. When they arrived home, SA complained that his ear was sore. He examined SA’s ear and said ‘How did this happen?’ and SA said ‘Toby pulled it’ (T 74).
DA said he took three photographs that day on his mobile phone, which are Exhibit P3. In the witness box, DA marked the photographs with the bruising he said he had noticed.
In cross-examination, DA agreed, surprisingly, with the suggestion that on 26 January 2013, at the time when he handed over SA to KF for access, SA’s ears looked as they were depicted in the photographs Exhibit D8, namely bruised. In re-examination, DA said he did not understand the question, and could not explain why he gave that answer. He specifically disagreed with the proposition that SA’s right ear was already red when he dropped him off on that weekend (T 101).
I accept that DA was confused about the question, and that his answer was inadvertently incorrect. Mr Stratton-Smith’s surprise at the answer was also apparent (T101, lines 2-9).
It was specifically suggested to DA that it was he who had pulled SA’s ears, or that he had squeezed a pimple on his ears. This was denied (T 101).
Count 4
DA said that he collected SA from day care after weekday access on Wednesday, 20 February 2013. He said that on Thursday, 21 February, he noticed bruises on SA’s penis as SA was getting ready for his bath (T 78). He asked SA ‘Has Toby been flicking your willy again?’ and SA said ‘Yes’.
DA said he took photographs of the bruising (Exhibit P4). He noticed about four different bruises (photograph number 10).
Count 5
DA said that he delivered SA for weekend access on Saturday, 23 February 2013 at about 5.30 p.m. Before doing so, he took photographs of SA’s penis in order to demonstrate SA’s condition before he left his care (T 81). These photographs are Exhibit P5. He said that the bruises from the 20 February incident were still there.
When DA collected SA from day care on Monday, 25 February 2013 at about 4.30 p.m., he asked SA ‘Have you got any more bruises?’ and SA said ‘Yes, I do’ (T 83).
DA said that he took SA directly to the Northern Medical Clinic, where he saw Dr Banovic. Before Dr Banovic saw SA, DA took him to the toilet and saw more bruises on his penis. He took two photographs of these bruises in the toilet. These are Exhibit P6. In the witness box, DA marked the photographs in Exhibit P6 with what he said were the fresh bruises he noted – four bruises on photograph number 13 and five bruises on photograph number 14.
Count 6
DA said that, at Dr Banovic’s suggestion, he took SA to the Modbury Hospital, where he was examined by Dr Ashleigh Nolan. Dr Nolan gave SA a full examination, during which she noted that, in addition to the marks on his penis, there was a ‘rash or a cut’ and redness of the skin in the area above and below his anus (T 92).
The police were called and attended later, and arrangements were made for SA to be examined at the Child Protection Service at the Women’s and Children’s Hospital the following day.
DA said in re-examination that he had not been aware of the injury to the area around SA’s anus until he was examined by Dr Nolan on 25 February 2013 (T 113).
- Evidence of SA
On 4 March 2013, SA was interviewed by Ms Carly Madgen, a psychologist.
The DVD of the interview is Exhibit P9 and the transcript, to be used by me as an aide-mémoire, is Exhibit P9A. I will also use Exhibit P9A to provide relevant references. The interview was admitted pursuant to s 34A of the Evidence Act.
After a lengthy period of general discussion interspersed with play, the following relevant conversation occurred:
Q… So [SA], you went to the doctor? And the doctor took photos of you because you had some sores on your body. Can you tell me about that?
A(Shrugged shoulders)
QCan you show me on this boy where the sores were? On your body? Where were the sores?
AThere was a smack up there.
QThere was a smack on your bum? And what other…
AThere were spots on my willy.
QThere were dots on your willy? Anything else?
ANo.
QNup? And what happened to get dots on your willy? Who put dots on your willy? Remember this is a really safe place, you can talk about…
A(shrugged shoulders)… Don’t know.
QYou don’t know? What about the smack on your bum? Who did the smack on your bum?
AI don’t know.
QYou don’t know? What do you think might happen if you tell me about who did the smack on your bum? And the spots on you willy? What…
AToby.
QOh, Toby? Whose Toby?
AToby, mummy’s boyfriend.
QToby mummy’s boyfriend? Oh, ok. And coz I wasn’t there, can you tell me everything you can remember about when Toby gave you spots on your willy?
AFlicking it.
QCan you tell me in a big voice?
AFlicking it.
QFlicking it? And what’s a flick? Can you show me with your fingers?
A(indicated flick with his right index finger)
QOh, flicking it. And so where were you when he flicked it? Flicked your willy? Where were you?
AAt mummy’s.
QAt mummy’s? And whereabouts in mummy’s, at mummy’s were you? Whereabouts?
AI don’t know.
QMmm?
A(INAUDIBLE)
QCan you remember what room you were in at mummy’s, when Toby flicked your willy?
A(briefly shook head No)
AWhen am I going to see daddy?
QYou’re going to see daddy soon, yeah. It’s just really important that I know this information, that you tell me all the things you can remember about this. And how did you feel when Toby flicked your willy? Did you feel happy, sad, angry or scared?
AAngry.
QAngry? Yeah. And did Toby say anything to you when he flicked you [sic] willy?
A…
QNo? Did you say anything to Toby when he flicked your willy?
AAh nup.
QNup? Ok. And what were you doing when Toby flicked your willy?
AMm, nothing.
QWhat were you doing?
ANothing.
QNothing? Did you have your clothes on or off or something else when Toby flicked your willy?
AUm, on.
QAnd did Toby flick your willy one time or more than one time or something else?
AMm, one time.
QOne time? Or did he flick your willy lots of times or one time?
AOne time.
QOne time? Ok. And can you remember what you were wearing when Toby flicked your willy?
A…
QCan you remember if it was daytime or night-time?
ADaytime.
QIt was daytime? And where was mummy when Toby flicked your willy?
AIn bed.
QOh, she was in bed? And where were you, when Toby flicked your willy?
AIn my bed.
QOh you were in your bed? Mmm. And what happened after Toby flicked your willy?
AMummy get up.
QMummy get up? And what did mummy do?
ANothing.
QShe did nothing?
AShe just dropped me at school…
Q…She dropped you at school?
A…and Daddy picked me up.
QAnd daddy picked you up? Yep. Did you tell anyone that Toby flicked your willy?
AWell Toby said, “Don’t tell mummy when I flick you in the willy”.
QToby said, “Don’t tell mummy I’m flicking your willy”? Is that right? Did I get that right?
A(Nodded head yes)
QMm-hmm. And when Toby flicked your willy, did it hurt a little bit, or a lot or something…
A…A little bit.
QA little bit hurt? Yep. And did you tell mummy that Toby had flicked your willy?
AToby said don’t tell her…
Q…Uh huh, yep. And what did Toby flick your willy with?
AHis hand.
QHis hand? Yep. And did he do anything else to your willy?
AMm-mm…
QNo? Ok. And did anybody else see Toby flick your willy?
AMm-mm.
QNo? Ok.
AThen he stopped doing it.
QAnd then he stopped doing it?
A…then mummy just (INAUDIBLE)
QSo he stopped doing it and then mummy phone up, and what did you say?
A(INAUDIBLE)
QOk. Didn’t quite hear the end of what you said. And how did it feel on your body when Toby flicked your willy?
AI don’t know.
QYou don’t know? Yep. And has Toby hurt you any other times? On your body?
A…
QWhat about the smack on the bum that you said before? Who did the smack on the bum?
AToby.
QToby did that? Yeah.
AWith the spoon.
QWith the spoon? Uh-huh. And, coz I wasn’t there, can you tell me everything you can remember about when Toby smacked you on the bottom?
ADon’t know.
QYou don’t know? Where were you when Toby smacked you on the bottom with the spoon?
AUm, on the couch.
QOn the couch? Whose house were you at?
AMummy’s.
QMummy’s house? And did Toby say anything to you when he smacked you on the bottom with the spoon?
ANo.
QNo? And did you say anything to Toby, when he smacked you on the bottom with the spoon?
ANo.
QNo? How did you feel when Toby smacked you on the bottom with the spoon? Happy, sand [sic], angry or scared?
AScared.
QScared? Was mummy, where was mummy when Toby smacked…?
AIn her bed.
QIn her bed? Yep. Did you tell anyone that Toby smacked you on the bottom with a spoon?
AHe said, “Don’t tell mummy”.
QHe said, “Don’t tell mummy”? Yep. And what happened before you smacked Toby, what happened before Toby smacked you on the bottom with the spoon?
ADon’t know.
QDon’t know? Are you a bit tired? Big yawns. And did Toby smack you one time with the spoon, or more than one time with the spoon or something else?
AOne time.
When asked whether he had told anyone at school that Toby had flicked his willy, SA said that he had told ‘Cheryl … my teacher’ (Exhibit P9A, page 23, line 6). He said he did not know what he had told Cheryl, and that Cheryl had said ‘Nothing’ (ibid, line 11).
The statement of Cheryl Busuttil (Exhibit P18) was tendered by consent. Ms Busuttil deposed that she is a permanent/casual child care worker at SA’s child care centre. She described SA as a quiet and withdrawn child when dealing with staff, and that he interacts well with the other children. Ms Busuttil said that SA has never made any disclosure to her of having been abused, and had he done so, she would have notified the matter to the Child Abuse Line (page 2).
I accept that there is an apparent inconsistency between Ms Busuttil’s statement and SA’s answers to Ms Madgen. However, much depends on what SA might have said to Ms Busuttil, and whether she would have recognised it as a ‘disclosure’ of abuse. Having regard to his age, I do not regard this as a significant issue affecting the credibility or reliability of SA’s statements in the interview with Ms Madgen.
In cross-examination (T 223-230), SA gave some answers which Mr Stratton-Smith emphasised in his address. For example, when asked about DA’s use of powder after a bath, SA said: ‘Yes, then he flicks the powder off like Toby does’ (T 226.5).
When it was put to him that Mr Tancock did not hit him, SA said ‘He did. When I got a bruise on my bum’ (T 226.10).
Later, SA said ‘When I was little I saw dots. He pulled the skin back and he flicked it’ (T 227.22-3).
After each of these statements, SA was asked ‘Is that something [someone, or] your dad has told you to say?’ On each occasion, SA nodded in the affirmative.
I am not prepared to infer from that response, however, that SA’s answers are therefore untrue. On one occasion, SA explained ‘My dad remembered that I told him, because he remembered’ (T 227.15-16).
My interpretation of this statement is that SA had told his father about these events previously, and his dad had told him to tell the court about it. In any event, SA’s evidence was made abundantly clear in re-examination:
At transcript 227.27 to 228.2:
Q.You said that you had fun with mummy and Toby but not at night-time, you remember saying that.
A.Yes.
Q.Why didn’t you have fun at night-time.
A.‘Cause Toby, he was hurting me.
Q.What did he do to you.
A.He flicked me on the willy and he got me a big bruise and pulling my ear.
Q.I want to ask you what he did to your willy. Can you show what he did to your willy. Can you use your hand.
A.Flicked (DEMONSTRATES). He was trying to get – he got mummy’s thong and he slapped it.
Q.What did he get.
A.He got my mum’s thong and he slapped it.
At transcript 228.11 to 228.19:
Q.Which room did it happen.
A.In the lounge room.
Q.When Toby flicked your willy who was in the lounge room.
A.Just me and Toby.
Q.Where was your mummy.
A.Sleeping. She didn’t see Toby flicking my willy.
Q.Can you say that again.
A.When mummy was getting up and Toby kept flicking my willy.
At transcript 228.26 to 228.38:
Q.Did you do anything.
A.No, I didn’t do anything naughty, he just flicked me and I didn’t do anything.
Q.Did that happen at night-time.
A.Yep.
Q.What about in the day, did it ever happen in the day.
A.Nuh, only at night-time. Not the day because people will see him.
Q.You said that Toy did something with a thong.
A.Yeah.
Q.Whose thong.
A.The thong. What mummy wears. Her thongs. What she puts her big toe in and she walked in it.
At transcript 229.13 to 229.28:
Q.You said something happened to your ear.
A.He pulled it.
Q.Who pulled it.
A.Toby.
Q.Where were you when that happened.
A.I was inside too.
Q.Where was your mummy.
A.She was in the bathroom doing her hair.
Q.Did you say you had a bruise on your bottom.
A.Yeah.
Q.How did you get the bruise on your bottom.
A.He got the spoon out of the drawer and he smacked me with it.
Q.Why did he do that.
A.Because I didn’t do anything. He just got it out and then smacked me.
I regard SA’s responses to these questions as particularly probative. I do not accept that they are the responses of a child who has been ‘put up to it’ by his father. The initial reluctance to speak, then the opening up in cross-examination, then the clarifying responses in re-examination, are particularly credible and compelling.
- Evidence of Dr Nolan
Dr Ashleigh Nolan gave evidence that on 25 February 2013, she was working as the paediatric resident medical officer at the Modbury Hospital. At that time, Dr Nolan was on rotation in that area of specialty as part of her residency, and was supervised by consultant paediatricians and others in the emergency department where she was based.
On that day, Dr Nolan examined SA. SA had been brought to the hospital by his father with a referral letter from a Dr Banovic. Although they had attended the hospital at around 6 p.m., Dr Nolan did not commence examination until 7.40 p.m. She obtained a history from DA in a room which was separate from where SA was located with his grandmother. Dr Nolan did not take a history from SA (T 121).
As to count 3, on examination, Dr Nolan noted no injuries on SA’s head, in particular his ears. Dr Nolan said:
As I was looking at his ears [SA] pulled the ears quite roughly up and outwards … and commented ‘Toby pulls my ears like this’. (T 122)
What is notable is the spontaneity and impulsiveness of SA’s statement, completely unprompted by either his father or Dr Nolan. Dr Nolan said that DA had mentioned that he had seen bruising to SA’s ears, but she did not recall him saying anything further about that, and in particular how the bruising was caused (T 123).
Dr Nolan noted a shallow healing wound on SA’s back on the left side. DA commented that this was an old injury when SA had stood up and hit a kitchen cupboard (T 122).
As to counts 4 and 5, after SA rolled onto his back, Dr Nolan noted multiple small bruises on his penis. His left testicle was also tender.
As to count 6, Dr Nolan proceeded to examine SA’s buttocks. She did not see any bruising or injury there. SA, who was lying face-down on the examination bed, pulled his buttock cheeks quite wide and exclaimed ‘But look here’. DA then exclaimed:
Oh, I knew Toby must have been giving him wedgies.
(T 126)
Dr Nolan could not recall whether DA had mentioned ‘wedgies’ in their previous, private conversation (ibid).
Dr Nolan said that what she saw was quite unusual, so much so that she arranged for a camera to be provided. Dr Nolan’s description of SA’s injury was as follows:
I saw an area of red and very raw skin just above the anus. It was about 3 cm above from the anus and 2 cm wide. It was very red. The skin looked very raw and quite damaged and it looked like a very painful injury.
(T 122-3)
Dr Nolan took two photographs of the injury to the anal area, two photographs of the penis and scrotum, and a photograph of the healing wound on the back. That group of photographs is Exhibit P10.
After her examination, Dr Nolan referred SA to the Child Protection Services at the Women’s and Children’s Hospital. The appointment was made for the following morning.
- Evidence of Dr Edwards
Dr Jane Edwards is a consultant paediatrician whose sub-specialties are in paediatric emergency medicine and child protection. Dr Edwards has held the position of staff specialist in paediatric emergency medicine and child protection at the Women’s and Children’s Hospital, in both the Emergency Department and in the Child Protection Services, since 2003.
There is no doubt, on the evidence, that Dr Edwards is well qualified to give expert evidence in this matter. This was not challenged by the defence.
Dr Edwards examined SA at the Women’s and Children’s Hospital on 26 February 2013. Before she saw SA, Dr Edwards spoke to DA for the purpose of obtaining a history. SA was not present when this was done.
Dr Edwards’ examination of SA revealed the presence of injuries in eight different locations on his body. These injuries were photographed and the booklet of 32 photographs is Exhibit P14.
The injuries noted were as follows:
Relevant to counts 2, 4 and 5:
·approximately 10 petechial (small, ‘red dot’) bruises to the superior aspect – that is, the top of the penile shaft, near the tip of the penis (photographs 3, 4, 5 and 6);
·a cluster of petechial bruises on the left aspect of the penis (photographs 11 to 14);
·an area of similar bruising – that is, a cluster of small bruises of similar size – to the right side of the penis (photographs 15 to 17);
·a further area of small bruises on the under surface of the penis (photographs 18 to 22);
Relevant to count 3:
·two petechial bruises to the upper aspect of the right ear (photograph 10);
Relevant to count 6:
·an area of abrasion symmetrically around the insertion of the scrotum into the perineum (photographs 23 to 26);
·a laceration, or deeper abrasion, in the middle of the gluteal cleft above the anus (photographs 27 to 29);
·a small separate reddened area or abrasion next to the injury to the gluteal cleft (photographs 29 to 32).
Dr Edwards expressed the view that the small bruises to SA’s penis (counts 2, 4 and 5) were caused by ‘blunt trauma’. She said:
The fact that the bruising was multiple and involved different tissue planes of the penis led me to the conclusion that there had been multiple episodes of impact to that region.
(T 140)
Dr Edwards explained that the skin on the penis is quite unique in the sense that there is no fat underneath, and the skin is quite thin and mobile, and it is a vascular area, so that the blood vessels within the skin move quite significantly from a single impact. This makes it possible that more than one bruise could result from a single impact.
As there was no such bruising elsewhere on the body, and SA was otherwise well, Dr Edwards was of the opinion that the bruising did not result from a medical condition. Scratching or rubbing of the area would cause abrasions rather than bruises, and this was not apparent.
Dr Edwards explained that bruising to the penis in young children is very uncommon. She said:
It’s very well recognised that if a child is seen by any doctor and they have bruising, particularly if it’s multiple, that it would be suspicious and they would need to be concerned that it has been caused to the child by somebody else.
(T 142)
Dr Edwards acknowledged that a young boy is likely to handle his penis quite regularly and:
… stretching it out to quite an alarming extent sometimes and it’s never been recognised that self-manipulation of the penis has caused bruising.
(ibid)
Dr Edwards concluded:
I believe the pattern and appearance of the bruising, the lack of any accidental explanation, indicated it highly likely the bruising had been inflicted.
(T 143)
Dr Edwards gave the opinion, from her experience and from the literature, that bruising to this area of the body appears ‘virtually immediately’ (T 144).
In relation to the photographs taken at various stages during these relevant events, the following question and answer occurred:
Q.When I ask you to consider, if you would, three different episodes in which bruising was caused to the boy as depicted in these photographs: this one I have taken you to just now at 9 January [2013], the bruising that can be seen in the photographs for 21 February that I have also taken you to and the photographs closest in time to your examination of 25 February 2013, do those separate depictions of injury at those particular dates indicate anything that you can comment on about how many different episodes of impact were caused to this boy.
A.I think they demonstrate that there has been three separate times where [SA] has had multiple areas of bruising on his penis. They have gone away and it has been seen again on three separate occasions. As I mentioned before, I don’t know how many applications of force would have occurred at each time but there have certainly been three applications where application of force has been inflicted on his penis.
(T 150)
As to the injuries to the area between the scrotum and the perineum, and in the area of the gluteal cleft (count 6), Dr Edwards expressed the opinion that they had all been caused by a single mechanism, namely, the forceful upwards pulling of underpants or bathers (T 151). As to the timing of such an injury, Dr Edwards suggested that the presence of an early infection in the area suggested that the injury had been present for more than 24 hours, up to a couple of days (T 152).
As to the injury to SA’s ear (count 3), Dr Edwards said that injuries in this area are also uncommon and ‘not something that happens … during a child’s normal activities and that’s because it is in a very protected location’. Dr Edwards added:
… so there’s two common mechanisms: one is there is impact over the ear onto an object or somebody striking the child to the side of the head and the other mechanism is by grabbing and pulling of the ears. You can’t always differentiate between the two mechanisms. If there is bruising on the scalp behind the ear you can ascertain there has been impact over the ear. In this case photograph 7, allowing for the fact that these photographs are not of optimal quality, there is no obvious bruising behind the ear so there is quite a possibility that that ear had been pulled and grabbed to cause that bruising but you couldn’t completely exclude the fact that there has been an impact to that area as well.
(T 153)
As to the injury to SA’s buttocks (count 6), Dr Edwards said that it was impossible to be definitive from photographs. Assuming that injury appeared and then remained and slowly disappeared over a few days, she expressed the opinion that:
… children rarely get bruising on their buttocks, again because it is a protected area of location and also because there is a lot of soft tissue. The blood vessels are supported and protected from impact. A child falling on their bottom very uncommonly would get a bruise as a result … What I observed from this photograph is that there was a larger area than I would expect from a child falling onto their bottom. Slightly higher. It had some fairly linear edges to it. In my opinion it was probably more likely as a result of him being struck by something rather than him falling over but without knowing the type and dimensions of a spoon I couldn’t conclude that it was caused by a spoon. (T 155)
When cross-examined, Dr Edwards refuted the suggestion that one of the marks on SA’s penis (counts 2, 4 and 5) was ‘possibly a small, round excoriation’ (T 158). This question was obviously based upon the opinion of Professor Winskog, a defence witness whose evidence I will discuss shortly. Dr Edwards replied:
When I examined [SA], part of my examination is always to check whether red marks are abrasions or bruises, so if the skin is intact, it’s a bruise, if it’s an abrasion it’s an excoriation; I assume he means an abrasion as well. In my opinion, all the injuries on the penis were bruises, not abrasions.
(T 158)
Mr Stratton-Smith had only recently elicited from Dr Edwards that assessing bruising from photographs was particularly difficult (T 156).
It follows that a person physically examining a child as Dr Edwards did, would be at a great advantage in assessing whether a mark was a bruise or an ‘excoriation’, when compared with the ability of a person looking at photographs to make that distinction, as Professor Winskog did.
It was also put to Dr Edwards that Professor Winskog was of the opinion that the appearance of the bruising could also suggest that the injuries could have been caused by ‘pinching’ rather than ‘flicking’. Dr Edwards replied that pinching causes a distinctive pattern of bruising and that:
… I have seen pinch bruises on penises before, but nothing with this sort of scattered pattern of small bruises – it didn’t look to me like a classical pinch mark, so I wouldn’t have looked at this and said it was a pinch mark.
(T 160)
Dr Edwards said she could not rule pinching out, however (ibid).
As to the injury to the area of the scrotum where it joins the perineum (count 6), Dr Edwards conceded that it could have been caused by rubbing in the ordinary course, perhaps when the underwear is wet (T 160). However, as to the injury to the gluteal cleft:
I think the friction from a single motion, given the proximity of the skin to the underlying bone, would be sufficient to cause that injury.
(T 161)
- Evidence of Professor Winskog
Associate Professor Carl Winskog was called by the defence. I discuss his evidence here for convenience but, of course, his evidence was not part of the prosecution case.
Professor Winskog is Associate Professor of Pathology at the University of Adelaide. He trained in Sweden, and has acted as a consultant for various governments in Sweden, Australia and other countries.
Professor Winskog’s opinions were based upon his view of photographs, the quality of which he was quite critical (T 168).
Based upon those photographs, Professor Winskog expressed the opinion that the bruising to SA’s penis could have been caused by flicking, or pinching (T 169). He suggested that the possibility of pinching arose from the small size of the bruises, and the appearance of them. When asked for his reason for preferring pinching over flicking, Professor Winskog said:
The size of the bruises and the amount of bruises as well. They are multiple, small bruises. That is basically it. That would be the reason for my opinion.
(T 171)
Dr Winskog conceded that Dr Edwards had an advantage in examining SA’s injuries in a clinical setting, and conceded in cross-examination that the choice between the two possible causes was ‘finely balanced’ (T 174).
When all things are considered, I do not think that Professor Winskog’s evidence detracts in any way from the credibility or the reliability of the opinions expressed by Dr Edwards. The fact that Dr Edwards had the opportunity to view SA’s injuries first-hand, rather than through photographs, leads me to accept Dr Edwards’ opinions wherever they conflict with Professor Winskog’s.
- Interviews with Police
Mr Tancock was interviewed by police on 6 March 2013 and 20 March 2013. The later interview was made necessary by the need to have to hand Dr Edwards’ detailed findings from her examination, which were not available when the first interview was conducted.
I take into account that Mr Tancock was appropriately cautioned, and chose to answer the officers’ questions. Indeed, some of their questions crossed the line into persistent and fairly aggressive cross-examination, particularly in the later interview. Mr Tancock denied inflicting any of the injuries on SA, denied hitting him with a spoon, flicking his penis or giving him a ‘wedgie’ at any time. A brief summary of Mr Tancock’s answers follows.
As to count 1, Mr Tancock suggested it was DA who had caused the mark on SA’s buttock (page 23).
As to counts 2, 4 and 5, Mr Tancock suggested that SA had told him and KF that DA put powder on his penis and then flicked it off (page 17), he was not aware of any bruising to SA’s penis (page 15), the marks on SA’s penis had ‘been like that for months’ (page 17), and that SA ‘always flicks and plays with it coz obviously the powder irritates him’ (page 32).
As to count 3, Mr Tancock said that SA had told KF and him that he had pimples on his ears and ‘daddy’s been squeezing them’ (page 18).
As to count 6, Mr Tancock denied ever giving SA a ‘wedgie’, and suggested that the injury to his anal area came from either wearing wet bathers the day before, or riding his bike (pages 33-4).
Defence Case
- Evidence of Mr Tancock
Mr Tancock gave sworn evidence. I remind myself of what I said at the beginning of these reasons about the way in which I should deal with this evidence.
Mr Tancock gave evidence of an occasion when he saw DA in the Somerset Hotel at Para Hills in around September 2012. DA was playing the pokies and drinking at the hotel. He confronted DA about him drinking and playing on the pokies. DA had been saying earlier that he did not have the money for SA to get a haircut or to buy new shoes for him. DA ‘got mad’ and Mr Tancock left and rang KF and told her what had happened.
Mr Tancock said that he was always present when KF had access to SA because she did not have a driver’s licence and so he would drive her to collect SA for access.
Mr Tancock described his relationship with SA as ‘fine’. He said he taught him to spell his name and to count. He and KP took SA out on the weekends on various outings, and shopping on Sundays. SA was never naughty when he was with him. Neither he nor KF ever had to discipline him.
Mr Tancock said that in August or September 2012, he and KF took SA to see Dr Lok. He said they saw Dr Lok about ‘the dots on [SA’s] willy’. In cross-examination, Mr Tancock confirmed that the ‘dots’ were of the same appearance as those in the photographs (T 268). He denied that they looked like bruises, he said the ‘dots’ were a ‘real light colour’ (T 271). He said that Dr Lok prescribed some ointment, which KF applied to SA’s penis (T 243).
Since Dr Lok’s evidence was agreed by counsel, and since it is in conflict with that of Mr Tancock, I disbelieve Mr Tancock about this. I do not accept that there were ‘dots’ on SA’s penis when they went to see Dr Lok, and it follows that I do not believe Mr Tancock’s evidence that SA had said to him that his father had flicked his penis, thereby causing any such injuries.
Mr Tancock said that KF began taking photographs of injuries to SA in about September or October (of 2012) because she said that DA was saying that he had been injured in their care. He said that these pictures were taken ‘as soon as he comes into the door’ (T 241).
As to count 1, Mr Tancock denied hitting SA ‘on the backside’ with a spoon (T 245, 255). He said that on the weekend in question, SA had been in the bath. His usual routine was to get out of the bath by himself, dry himself, put his toys away, and then go into the laundry to put his wet towel in there.
Instead, he came running out of the laundry crying, and said that he had slipped over (T 247).
Mr Tancock said, ‘The next day there was like a real faded mark, like, nothing’. He said the faded mark was on the ‘side of his butt there’. He said that SA also complained that his elbow hurt (ibid). He recalled that after that incident, access was stopped for six weeks.
In cross-examination, Mr Tancock said he had ‘never’ seen a mark on SA’s buttocks like the one in photographs Exhibit P17, numbers 1 and 2 (T 273). He agreed that such an injury would not have occurred from falling on his bottom (T 276). He had seen SA fall on his bottom from time to time but had never seen a mark like that as a result (ibid).
Mr Tancock sought to shift the blame to DA. He said:
But next day [KF] dressed him and he was fine and then all of a sudden this is detected, looks like it’s been done immediately.
(T 277)
As to counts 2, 4 and 5, Mr Tancock said that KF showed him the marks on SA’s penis when she was bathing SA. She asked him what he thought they were and he said, ‘I don’t know, I reckon they might be bed bugs, I don’t know’ (T 242). He said that KF asked SA where they were from and that SA said, ‘Daddy puts powder on there and flicks it off’ (ibid).
Mr Tancock said that the ‘spots’ on SA’s penis would ‘come and go’ over the four-month period leading up to the end of February 2013. He denied ever flicking SA’s penis during that time (T 245).
As to count 3, Mr Tancock remembered one occasion when KF gave SA a haircut and he noticed that one of his ears was a ‘dark colour’ (ibid). He said KF took a picture of that. He said KF asked SA what happened to his ear and SA replied, ‘Daddy said there was a pimple on there so he squeezed it, same as on my chin’ (ibid). He said that SA had given the same explanation when they had previously noticed little dots or scabs on the bottom of SA’s chin.
Mr Tancock denied ever pulling SA’s ear.
In cross-examination, Mr Tancock agreed that the bruising to SA’s right ear was similar to that depicted in the photographs taken by DA (Exhibit P3, numbers 5, 6 and 7). He said he was present when those photographs were taken (Exhibit D8). He said that neither he nor KF looked to see if there was a pimple, or the remnant thereof, on SA’s ear (T 293).
As to count 5, on the occasion of 23 to 25 February 2013, Mr Tancock could recall the day because it was the day after KF’s birthday. The following day, he said, they picked SA up at about 5.30 p.m. and took him to KF’s house (T 249). He said that as soon as they went inside, KF changed SA’s clothes and then took a picture of his ‘willy’. He said that KF said, ‘There’s more dots on here’ (T 250).
Mr Tancock agreed that KF had taken a photo of SA’s penis on Saturday, 23 February 2013 (Exhibit P11) at the commencement of access. He also agreed that in the two photos KF took of SA’s penis on Monday, 25 February 2013 (Exhibit P12), at the conclusion of access, the appearance of SA’s penis is worse (T 295). He also agreed that the appearances in Exhibit P12 are similar to the marks shown in the photos DA took on 25 February 2013 (Exhibit P5, photos 11-14) (T 287).
That concession was unavoidable. The differences are obvious. The injuries represented by these marks must have been received over the period when KF and Mr Tancock had access that weekend. KF’s own photos demonstrate that.
When asked about this evidence in cross-examination, the following passage occurred:
Q. Did you wonder how it happened, how did that red mark come to be there.
A. It’s hard to say. I would have thought how would it have got there. Obviously it’s got on there – obviously pain – over the period we had him, yeah but it’s hard say like exact time and exact what.
(T 297-8)
Mr Tancock then said he saw SA playing with his penis when in the swimming pool on the Sunday afternoon of that weekend, but then withdrew that and said:
Not playing with his penis … saying he was playing with it, saying obviously he’s adjusting it afterwards, pulling his shorts back up after swimming sort of thing … On the outside, yeah, only the one time in the pool, after he’s got out, that’s the only one time I saw him touch it then. That’s all I can recall, that’s it.
(T 298)
I formed the strong view that Mr Tancock was being untruthful when he gave that evidence. On Dr Edwards’ evidence, in any event, that behaviour could not possibly have explained the injury to SA’s anal area that she saw.
Mr Tancock said that on the Monday of that weekend, he woke up to SA crying. He said ‘What’s wrong?’ and that SA said ‘I wet the floor’. He said he woke KF up, she ran a shower for SA and Mr Tancock started cleaning up the floor. He said that after this incident, SA was a bit ‘sad’, a bit ‘sulky’. He said SA told him he was worried that his mother would be mad. Mr Tancock told him that she would probably tell his father (T 252).
In cross-examination, Mr Tancock said that KF told him ‘It’s red’ when she took the photos (Exhibit P12). He said ‘Yeah, I know it’s red’. He said:
Then we were running late, jumped in the car, took off, that was it.
(T 296)
As to count 6, Mr Tancock denied that he had ever given SA a ‘wedgie’, or anything else that may have caused a laceration between his buttocks (T 253). He said that at one stage SA had told him that he had played a game with his dad when they were ‘playing wedgies’. He said ‘I didn’t think nothing of it’ (T 254).
- Evidence of KF
KF gave evidence that SA was born on 26 May 2008. She and DA had separated in January of that year. She said that she was having relationship trouble with a former partner and her parents were going to take care of SA as she was not coping with him. DA volunteered to take care of him and so SA commenced living with him when he was about five months old. She started back at work at about the same time and had been in full-time employment since then.
KF met Mr Tancock in September or October of 2011. They are now engaged.
During the four-month period between November 2012 and February 2013, KF was living in a unit at Salisbury Heights. She described it as a three-bedroom, small house (T 308).
When asked whether SA ever reported to her anything ‘concerning’ about Mr Tancock, she replied ‘Never’ (T 311).
As to count 1, KF said that she remembered SA having a bath on the weekend of 17 to 19 November 2012. She had washed his hair and was then getting dinner ready. Mr Tancock was in the lounge room. She heard SA get out of the bath. She presumed that he dried himself. He would put his toys in the basin to dry them. He would walk to the laundry and put the towel in there. She heard him call out and make a ‘sooky’ noise. She walked into the hallway and saw that he had slipped on the laundry floor. She said that he was ‘on his bum, elbows down, leaning to get up’ (T 313). She said:
He said he hurt his right elbow and I remember he had a bit of a red mark on one of his bum cheeks but I didn’t think anything of it. Kids hurt themselves all the time.
(T314)
KF did not remember showering or washing SA the following morning before child care.
Later that afternoon, KF said, DA called her and said that SA had told him that Toby had hit him on the bum with a spoon. KF said that that was ridiculous and an argument developed, after which DA hung up. KF said she explained to DA that SA had fallen over in the laundry, but he said ‘You are not going to be seeing [SA] again’. After that he stopped access (T 315).
Although KF insisted that, after SA fell on his bottom in the laundry, he had a red mark on his ‘bum’, she did not think to look the next day to see whether the red mark was any worse or any better (T 334). She had never seen a red mark on SA’s bottom like the one depicted in Exhibits P1 and P2 (T 335). When it was put to her that, in her statement to the police of 6 March 2013, she had said ‘I helped him get back up and I turned around and I checked his bottom and I couldn’t find anything’, KF began to equivocate, saying, ‘It wasn’t like a full-on big mark so I wouldn’t really class it as anything’ (T 336). She said it was a ‘really faint mark’ and that it was ‘barely there’ (T 337). She explained that she had said to the police ‘there was nothing there because there was barely anything’.
I formed a very poor impression of KF’s credibility in answering these questions, and in her subsequent cross-examination on pages T 337 to T 341. I found her to be a witness whose evidence lacked credibility at the most basic level. KF tried to make a point about the fact that the police, when they searched the unit on 6 March 2013, did not find a red spoon. However, she admitted that she knew from the telephone call with DA on 25 or 26 February that SA was saying that Mr Tancock had hit him with a spoon. I found her argument about this disingenuous (T 341).
As to counts 2, 4 and 5, KF said that SA started complaining about his penis in late 2012, ‘maybe October’ (T 318). She said she took SA to the doctor, Dr Lok. He gave her some cream to stop the ‘dots’. She said:
He thought it was a rash or some sort of irritation from washing powder or something like that.
(ibid)
KF said that on one occasion when she was bathing SA, he kept touching his ‘willy’. She said that she asked him about the dots and he said ‘Dad flicks my willy’.
KF said that the following day she rang DA and told him what SA had said and that DA said ‘Funny that because he said Toby has done the same thing’ (T 319). KF said that the marks would ‘come and go often’ after that. She did not think that she had asked SA again about them (ibid). This is, to say the least, surprising if it is true. If she thought the marks were from ‘flicking’, then the marks returning indicate fresh injury. Yet KF would have me believe that she did not inquire after that. This is in the context where she was taking photographs of SA on legal advice.
As to count 3, on one occasion SA came to the house and his left ear was ‘quite purple, quite red. Reddish purple’. Then she said ‘but then again I didn’t think of anything nasty that [DA] did’ (T 316). I find this surprising for the same reason expressed in the last paragraph.
The photographs that KF took of SA’s ear are Exhibit D8. One can only wonder why, if she thought nothing of this issue, she bothered to take the photographs.
KF said she asked SA what had happened to his ears and that SA had said:
‘Daddy pulls my ear’, but laughed afterwards. I didn’t think [DA] was going to pull his ears, I didn’t think [DA] was like that. I left it at that.
(T 317)
I do not accept that anything KF said about this issue is true.
As to count 5, KF continued to take photographs of the marks on SA’s penis. It is agreed that KF took Exhibit P11 on Saturday, 23 February 2013 after collecting SA from DA. Exhibit P12 are two photographs she took of SA’s penis on the morning of Monday, 25 February 2013 before taking him to child care (T 321).
KF said that she collected SA on Saturday, 23 February 2013 at 5 p.m. in the usual way. She said they planned to go out for dinner that night for her birthday, which was on Friday, the 22nd. She said they took photograph P11 because ‘the dots were still there’ (T 321).
On Sunday, 24 February, they went swimming at Mr Tancock’s sister’s house. SA did not complain of any pain or discomfort that day. At no stage did he report that anyone gave him a ‘wedgie’ (T 324).
KF said that on Monday, 25 February, SA was ‘fine. He seemed normal’ (ibid).
KF said that SA did not complain of Mr Tancock ‘flicking’ his willy, and that if SA was scared of him, she would have expected him to say so, or at least ‘stay clinging to me’, but it was ‘nothing ever like that’ (T 322).
KF recalled that on that Monday morning, SA had wet the bed. She said that Mr Tancock had been up before her and he came and woke her up and told her that this had occurred. She said when she went into SA’s bedroom:
[SA] was in there, Toby was on the floor with Pine O’Clean and paper towel and [SA] was standing there in his wet pyjamas.
She said to SA, ‘Okay, why did you do it?’ and that SA said ‘I don’t know’. She said that SA was ‘a little bit scared … a little bit teary because I obviously yelled at him about it, but apart from that, everything else was normal’. She said she did not notice any marks on SA’s body when he got in the shower (T 324).
When confronted with the photographs of SA’s penis, and in particular comparing the photograph taken on the afternoon of 23 February with the one taken on the morning of 25 February before SA was delivered back to child care, and in particular that there were marks on his penis on the Monday morning which were not there on the Saturday, all KF could offer was:
They were always like that. Like I said, the dots would come and go on a regular basis. [SA] would be in the bath, pulling it, and I would catch him pulling his skin back. Whether they occurred by that way on the weekend, I don’t know.
(T 344)
Having regard to the fact that there was no dispute between the experts that these marks were caused by trauma, whether by ‘flicking’ or even, as Professor Winskog suggests, by pinching, KF’s concessions that there were more marks there on the Monday morning are inescapable. In my view, this is conclusive evidence that SA suffered trauma between the time that KF collected him on Saturday afternoon, 23 February 2013 and when she delivered him to child care on the morning of Monday, 25 February 2013.
As to count 6, KF said she did not see the laceration on SA’s gluteal cleft that was noticed later by Dr Edwards, even though she helped to bathe him that morning (T 325).
KF was vague and somewhat evasive when, in cross-examination, she was asked to be specific, for example, about whether the condition of SA’s penis was any different in August 2012, when she took him to see Dr Lok, and in February 2013, when it was examined by Dr Edwards. She initially answered that ‘the dots have always remained the same’ then, when pressed, said that she did not remember (T 330).
When pressed about the appearance of these marks, she said that ‘I don’t remember calling them bruises, no’ and then when her statements to the police dated 2 April 2013 were put to her, and in particular that in the second statement she referred to the marks as bruises, she said:
A. It’s hard because I think about it and I think, like I explained to you before, the difference between a bruise and obviously a bruise on his willy. I didn’t – now I think about it, it doesn’t really seem like it was a bruise. Bruises are dark purple, the dots weren’t dark purple.
(T 332)
KF’s insistence that the marks on SA’s penis were of the same appearance as were present when she went to see Dr Lok is, of course, contradicted by Dr Lok’s evidence, which is agreed. As I said in relation to Mr Tancock, I must therefore accept the agreed evidence in preference to KF’s evidence about that.
KF’s evidence had a strange ambivalence. On the one side, she suspected that the dots were inflicted by DA, hence the photographs. On the other, if the circumstantial evidence suggested that Mr Tancock may have inflicted it, she reverted to the original story that the dots were the result of irritation or self‑inflicted. She tried to conflate SA’s condition when she took him to Dr Lok in August 2012, with the dots she saw later. But Dr Lok saw no dots. That is agreed. Both KF and Mr Tancock could not seem to come to grips with this contradiction.
I totally reject both KF’s evidence and Mr Tancock’s evidence, for these reasons. Not only were they very poor witnesses, their evidence does not make any logical sense in light of the proven circumstances, proven by KF’s own photographs.
Analysis
In his address, Mr Stratton-Smith submitted that the prosecution case relies on the process of reasoning whereby Mr Tancock must have caused SA’s injuries on 23-25 February 2013 because Dr Edwards’ opinion is that these marks are the result of blunt force trauma. Because DA told the court that SA had told him that Mr Tancock had ‘flicked his willy’, we must accept that was what happened on 23-25 February.
I do not accept that submission. SA’s statements to DA are not necessary in that chain of logic. The evidence of Dr Edwards, that these were unusual injuries and that flicking the penis was a likely mechanism of injury, when considered in combination with the circumstantial evidence of the photographs (Exhibit P11) taken on Saturday, 23 February and the photographs (Exhibit P12) taken on the morning of Monday, 25 February, is sufficient to support that conclusion by itself.
Mr Stratton-Smith also argued that the prosecution’s position is that because Mr Tancock cannot offer a reasonable explanation for SA’s injuries, he must be guilty.
I also reject that argument. At no stage did Mr Powell’s arguments suggest a reversal of the onus of proof.
I accept that DA has a motive to lie, in that he was involved in bitter Family Court proceedings, and he disliked Mr Tancock. However, DA’s evidence is supported in a number of material respects by other evidence which I will discuss shortly.
Mr Stratton-Smith suggested that SA’s behaviour, for example when he said ‘but look here’ to Dr Edwards and demonstrated the injury to his anal area, when combined with DA’s exclamation ‘Oh, I knew Toby must have been giving him wedgies’, suggests that DA had been coaching his son.
I reject that submission. SA’s behaviour during the interview with Ms Madgen suggests the opposite. It took a high degree of patience and skill to encourage SA to ‘open up’ to her about these issues. The spontaneity of SA’s outburst to Dr Nolan about his ears is also inconsistent with that, as are his answers during cross-examination in court. SA was only four to five years old during this period – in my view, any coaching would have been obvious had it occurred.
Mr Stratton-Smith also sought to conflate the condition of SA’s penis, when he went to see Dr Lok in August 2012 for ‘irritation’, with the marks, which are bruises, in the photographs, but, for the reasons I have already expressed, Dr Lok’s evidence, which is agreed, contradicts that.
Mr Stratton-Smith submitted that the evidence is ‘abundantly clear’ that SA’s ears were already red when he arrived for access because KF took photographs soon after he arrived. This, however, requires me to accept the evidence of KF and Mr Tancock about this, which I do not. Neither KF nor Mr Tancock raised this at the time with anybody, despite the fact that KF was supposedly taking these photographs on her solicitor’s advice.
I accept Mr Stratton-Smith’s submission that some of the things DA told SA are consistent with an attempt to turn him against KF and Mr Tancock. For example, DA freely admitted that he told SA that his mother loved Mr Tancock more than him (T 105). Clearly, this was a bitter relationship, and no doubt all involved have said and done things which are not to their credit. It is for that reason that I have made clear that SA’s evidence alone would not be sufficiently reliable to justify a conviction.
Mr Stratton-Smith criticised SA’s evidence on the basis that he said he had told ‘Cheryl’ about the abuse, but Ms Busuttil denied that. I have already dealt with this point.
Similarly, Mr Stratton-Smith criticised SA’s evidence on the basis that he had never complained to his mother about Mr Tancock’s alleged behaviour. I reject that criticism. SA’s behaviour must be seen in the context of the family dynamics at work here. SA took a long time before he felt safe enough to speak to Ms Madgen at the Women’s and Children’s Hospital. Clearly, KF supported Mr Tancock throughout this entire period and, on DA’s evidence, tried to overbear SA during the telephone conversation after the spoon incident, telling him he fell in the bathroom. I do not accept the criticism of SA on that account.
For the same reasons, I reject Mr Stratton-Smith’s criticism of SA’s evidence on the basis that he did not complain to KF on the morning of 25 February 2013 about the injury to his anal area.
On the contrary, I agree with the submissions of Mr Powell that SA’s evidence was about a fairly complex series of events, and he gave it clearly and spontaneously. His evidence and statements to his father are consistent with what he said to Dr Nolan on 25 February 2013 and Dr Edwards on 26 February 2013, and to Ms Madgen on 4 March 2013.
It is incontrovertible that SA suffered the injuries to his penis between 23 and 25 February 2013 while he was in the care of Mr Tancock and KF. KF’s own photographs (P11 and P12) demonstrate that. Accepting as I do the evidence of Dr Edwards and the defence expert, Professor Winskog, that these injuries were deliberately inflicted, the outcome of count 5 is therefore clear. I am satisfied beyond reasonable doubt that Mr Tancock deliberately inflicted those injuries.
The evidence relevant to count 5 is also clearly relevant to counts 2 and 4, since the injuries to SA’s penis were so unusual and so similar as to be almost identical. There is evidence that the injuries were also incurred during a period when SA was with KF and Mr Tancock. Any doubt based on DA’s evidence as to when he took the photographs, or based on SA’s evidence on account of his age, is removed by the similarity of the injuries, and the certainty that they were caused in the same way, by the same person.
I find counts 2 and 4 proved beyond reasonable doubt.
Having found those counts proved, it is appropriate to conclude that Mr Tancock had a propensity to behave in a very specific, unusual and sadistic way towards SA. The reasons for this are unclear, but the propensity is clearly demonstrated. I regard this propensity as specific and particularly relevant to the charged behaviour, and not simply ‘bad person’ propensity, of the type referred to by Kourakis CJ in R v C, CA[7].
[7] [2013] SASCFC 137 at [76]
In addition, the finding of those three charges proved removes any doubt which might have arisen as to the credibility or reliability of the evidence of DA or SA.
In those circumstances, the nature of the injury to SA’s buttock, the nature of the injury to his right ear, and the nature of the injury to his anal area, all of which, on Dr Edwards’ evidence, were deliberately inflicted, when seen in combination with SA’s various statements to DA, Dr Nolan, Dr Edwards and Ms Madgen, satisfy me beyond reasonable doubt of Mr Tancock’s guilt on counts 1, 3 and 6 as well.
Conclusion
My verdicts are as follows:
Count 1 - Guilty
Count 2 - Guilty
Count 3 - Guilty
Count 4 - Guilty
Count 5 - Guilty
Count 6 - Guilty
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