R v Thomson - [2014] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THOMSON
Criminal Trial by Judge Alone
[2014] SADC 70
Reasons for the Verdict of Her Honour Judge Davey
1 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with the offence of Aggravated Indecent Assault. The accused elected for Trial by Judge Alone. The complainant was 13 years old at the time of the alleged offence. She and a friend had a 'sleepover' at the home of the accused and his wife. It is alleged that the morning after, the accused lay down behind the complainant and touched her to the vaginal area under her clothing.
The offence has been proved beyond reasonable doubt.
Verdict: Guilty of offence charged.

R v THOMSON
[2014] SADC 70
Introduction

Shane Patrick Thomas Thomson is charged with Aggravated Indecent Assault. It is alleged that in March 2012 he indecently assaulted GA and that that offence was aggravated because of the complainant’s age (under 14). It is alleged that on one occasion the accused touched the complainant to the vaginal area; the touching was under her clothing and underwear. For the reasons set out hereunder, I find that the offence has been proved beyond reasonable doubt and I find the accused guilty.
Background Factual Circumstances
GA was born on 8 January 1999. She was 15 years old when she gave evidence before me and she was 13 at the time of the alleged offence.
At the relevant time, GA was living with her parents and two siblings; an older sister and younger brother, at Sellicks Beach. The accused and his family lived next door to the complainant’s household. The complainant’s family moved from Melbourne to Adelaide into the Sellicks Beach address in about November 2011. The accused and his family were already living next door. The accused was living with his partner, PW, and their three children. Those children were aged about 2 years, 3 years and their eldest child was about 6 or 7 years old at the relevant time. That eldest child, a son, was a playmate with GA’s younger brother.
The two families became friendly. There was a good deal of interaction between the children and members of the households.
The alleged offence occurred the morning following a night when GA and a girl friend stayed overnight at the Thomson house.
Evidence of GA
GA said that during March 2012 a friend of similar age, LW, came from Melbourne and stayed with the complainant’s family. One night, the two young boys (one from each family) slept at the complainant’s house and LW and GA stayed at the Thomson house. The two girls watched movies with the accused and his partner and then slept on a Queen sized mattress on the living room floor.[1]
[1] Plan of lounge – Exhibit P1.
The house had two storeys. The children’s bedrooms were on the ground floor. The main bedroom, kitchen and living room were on the first floor.
GA said that after LW left to return to the complainant’s house on the following morning, she was still lying on the mattress on the living room floor. The accused lay behind her on the mattress and put his hand down her pyjamas and underwear and touched her vaginal area.[2] GA said that when the accused lay behind her, after a few seconds he pulled her close to him; he put his hand down her pants and underpants and touched her vaginal area for a couple of seconds. She said that she couldn’t remember what he did because she was really scared. She got up and went to the toilet. When she came out, the accused was in the kitchen making a drink and breakfast. She told him that she should probably go home and left. She said that she wanted to tell her mother but didn’t know what to do about it; she was going to leave it until LW had left but never ended up telling her mother at that stage.[3]
[2] T22.
[3] T23, T24.
GA said that she told her mother about the touching some time later but couldn’t remember when that occurred. GA said that she told her mother that on the night LW and she stayed at the Thomson house the accused had come up behind her and touched her inappropriately. GA said that her mother had told her that the accused had done something to her sister RA and asked whether he had done anything to GA. The evidence of the mother’s question was not led as the truth of an allegation by RA but to explain the question asked. GA said that she told her mother the ‘basic details’.[4] Later evidence established that GA’s disclosure occurred in November 2012.
[4] T25.
I asked GA how she felt when the accused touched her. GA said:
AI didn’t like – I had never – being my age, of course, I had never experienced that before and I was really scared, I didn’t know what to think or what to do about it and I just knew that I didn’t want that. I was really embarrassed about it as well.[5]
[5] T25-26.
GA said in cross examination and re-examination that there was a blanket on top of her when the accused lay down behind her.
During cross examination GA was asked about her interactions with the Thomson household. She admitted continuing contact with the household including babysitting on several occasions after the alleged incident. She admitted actively seeking babysitting via PW. GA said that she didn’t think there was a risk that she would be alone with Shane when she babysat. GA agreed that she babysat for the Thomson’s on 29 June 2012 (she babysat with her mother);[6] 3 August 2012 (couldn’t remember if it was her alone);[7] and 8 October 2012 (couldn’t recall if her sister went too; she said that may have occurred on the second occasion).[8]
[6]    T32.
[7]    T33.
[8]    T33.
GA was asked whether she was concerned about being near the accused.[9] She said:
[9] T34.
AWell, like I said, I was really scared. I didn’t know what really totally was going on. I didn’t know much about sexual assault and that sort of stuff at that time and I didn’t completely understand what had actually happened to me, so – [10]
[10] T34-35.
…
QYou said just now you didn’t understand what had happened, is that fair to say.
AYes.
QWhen did you come to understand what had happened.
AAfter telling mum, then went to the police and talked to them about it, I kind of learnt what about it and I didn’t seriously understand how serious it was and what had actually happened to me, but after talking to the police I did understand more about it.
QAre you really sure about what happened.
AI am.[11]
[11] T35.
GA was also asked:
QWhy did you continue going round there at that same rate.
AWell, there was a little break before when I didn’t go over there for quite a couple of weeks but then it got back into that once a week routine and it’s mostly because I really enjoyed hanging with Penny and the kids but also, like I said, I know what he did to me but I didn’t completely understand the whole gist of it and everything and I was just really confused.
QWhat was it exactly at the time that you didn’t understand.
AWell, most people when they look at this situation, they consider it, well, rape, sex and stuff, so I didn’t completely understand that what he had done was sexual assault and a crime. I just thought it was inappropriate and wrong until I finally like understood when I talked to my parents.
QYou were 13 at the time.
AYes.
QYou knew that your vagina was a private part.
AYes.
QYou knew that it was not okay for someone to touch it.
AYes.[12]
…
ALike I said, I know what he did to me but I just didn’t – I didn’t know what to think. I was shocked, scared, didn’t think it would ever happen to me or I would ever have to even think about it. I just didn’t – I wasn’t thinking about it. I didn’t know what had happened because I didn’t want to think about it. I kind of shut it out. I was just really scared.[13]
[12] T36.
[13] T37.
GA also described two of the Thomson children sitting on the floor nearby, watching TV, when the sexual touching occurred.
The evidence as to GA’s ongoing contact with the Thomson household and babysitting was relied upon by the defence as important evidence of conduct inconsistent with the alleged indecent assault.
It was put to GA that PW was the first up and went into the kitchen. GA denied seeing PW at all that morning.[14]
[14] T38, 39.
GA could not recall the details of her complaint to her mother.
Evidence of Complaint
GA’s mother, AA, gave evidence that in December 2012 she spoke to GA and said that ‘Shane has done something inappropriate to RA; has he ever done anything inappropriate to you?’ AA said that GA ‘straightaway, she said “yes” and that he had put his hand down her pants’ and she showed how he did that.[15]
[15] T51.
In cross examination AA said that she had to ask GA whether Mr Thomson touched her vagina, as GA’s words were that he put his hand in her pants. She said that GA demonstrated her hand at her crotch.[16]
[16] T54.
There was no dispute that the complaint was made nor as to the content of the complaint.
The evidence of complaint is not evidence of the truth of the contents of the complaint and I may use this to understand how the allegation came to light and as evidence of consistency relevant to GA’s credibility. In the circumstances, given the delay and the way in which the complaint was made, I think that it has little positive weight as to GA’s credibility but it was important to know how and when the allegation came to light and therefore understand other aspects of the evidence.
The defence case; Ms PW
The accused did not give evidence. That is his right and I draw no adverse inference from this matter.
The accused called his partner, PW. PW has been the accused’s partner for almost 10 years. They have three children, AT (8 ½ years); BT (5 years) and CT (nearly 4 years).[17]
[17] T56, 57.
PW confirmed the living arrangements next door to the complainant’s family. She described GA’s visiting the house, every day after school, and on weekends. She described GA as keen to help and generally welcome although sometimes she was at the Thomson home ‘a bit too much’.[18] PW described GA’s attendances as constant. She also said that her youngest son was very attached to GA.[19]
[18] T59, 60.
[19] T61.
PW gave evidence about the sleep-over when LW and GA stayed at the Thomson house. She described the events of the morning when GA alleged the sexual assault occurred. PW said that on that morning she awoke at around 6 am. She heard her youngest child (who was sleeping downstairs) via a baby monitor and she went to settle him. She said that she came back upstairs and then later that BT yelled from downstairs that CT was crying. She said that GA said that she would go and get him. PW said that she got up from bed and went to the kitchen and she crossed paths as GA went downstairs. She said that GA came upstairs with CT and BT and just after that, the accused came out of the bedroom and came into the kitchen.[20]
[20] T65-68.
In essence, PW’s evidence was that the events described by GA could not have occurred. Her evidence was that the accused was in the main bedroom at all times until he came into the kitchen where PW was and that no incident described by GA occurred.
Discussion and findings
GA was a straightforward, impressive witness. I find her to be credible and reliable in all important matters. She presented as forthright and honest. I find her to be consistent in material respects. Her account of events, particularly her description of the sexual touching, her feelings at the time and the circumstances of her disclosure to her mother, had the ring of truth. She was plainly trying to recall events accurately. There was no hint of guile. There was no prevarication. Notwithstanding the evidence of PW (which I will discuss hereafter) I accept her evidence of the sexual touching by the accused beyond reasonable doubt.
If I accepted PW’s evidence of the events of the morning, or even found this to be possible, it would mean that I should have a doubt as to the guilt of the accused. Whilst PW’s evidence appeared at ‘first blush’ to be clear and consistent, I do not find her to be credible or reliable.
PW described events of a weekend morning which, at the time, were of no particular significance or consequence. The only unusual matter was the sleepover. That occurred in March. The first time that PW knew of the significance of the events of the relevant morning was in December 2012. Notwithstanding the uneventful and nondescript events, PW asserted a detailed memory which I do not believe or accept. For example, she recounted a detailed recollection of going downstairs to re-settle CT.[21] She described seeing both girls asleep, going downstairs, picking up CT, re-wrapping him, putting him down, giving him a pat. She recalled that she did not feed him, just re-settled him. That PW would recall these specific details after over six months had elapsed was incredible. Another example was her description of when she returned to bed and her recollection that she stayed awake for about two hours and that her husband was asleep beside her, snoring. She said that he didn’t usually snore but that ‘sometimes he does’ and she specifically recalled his snoring on that morning saying ‘that’s why I didn’t really go back to sleep’.[22] She said she recalled the manner in which her daughter BT came up the stairs ‘handprinting all the way up the wall’.[23] I do not believe that she recalled the events that she described in this detail. I do not believe her account of events of that morning.
[21] T65, T76, T77-78.
[22] T78.
[23] T68.
I do not know and cannot say whether PW was deliberately giving false evidence or whether she was describing a reconstruction which she believes to be true. Either way, I do not think she was a credible witness. My finding in that regard does not mean that the accused is guilty; I must be satisfied beyond reasonable doubt of the credibility and reliability of GA about the material issues.
I have given careful consideration to the excellent submissions made by counsel for the accused. I note the behaviour of GA subsequent to the alleged incident. I do not find that matter causes me to doubt her evidence. There is no suggestion of any particular interaction with the accused after the alleged incident. I do not find her continuing presence at the Thomson household and babysitting surprising given her age, the circumstances of the families and the offending. I do not find that her answers in cross examination about that topic cause me to doubt her reliability. I do not find the submissions as to ‘a progression’, shifting ground or change in her evidence to be persuasive.
It was submitted that GA’s description of the offending occurring in the presence of the young children (who were seated nearby) was incredible. In my view that matter is not of particular significance nor does it cause me doubt. There was a blanket on the bed. The children were very young.
It was submitted that there was a significant inconsistency in GA’s evidence. She said that immediately prior to the touching, the accused pulled her closer after he lay on the mattress.[24] GA admitted that this was the first time she had said that the accused pulled her closer. The defence says that this is not a peripheral matter and that, together with other issues, should cause me to doubt GA’s evidence. I have reflected on this matter and, in light of all other criticisms of GA’s evidence, but I do not doubt her account of the sexual touching.
[24] T40.
I note the submissions made on behalf of the accused about the evidence of PW. I have given careful consideration to those arguments as I have reflected on PW’s evidence. Nonetheless, I do not accept PW’s evidence as reliable or credible and I do not accept it as even a possibility.
There is no lesser test of veracity because a complainant is a young person. I note the defence submissions in that regard. Nonetheless, the complainant is a young person and when weighing and considering her evidence, matters of her age, relative lack of sophistication and experience are relevant to my assessment of her evidence.
This is not a case where there is room for misunderstanding or mistake on the part of the complainant. She is either lying or telling the truth about the sexual touching. Of course I do not have to find that she was deliberately untruthful or unreliable in her account; a doubt about that or her reliability would mean that I should acquit the accused. I have no doubt.
I find the charge proved beyond reasonable doubt.