R v Turner
[2004] SADC 85
•7 June 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TURNER
Criminal Trial by Judge Alone
Decision of His Honour Judge Lunn
7 June 2004
CRIMINAL LAW
Trial by Judge alone - 7 counts of sexual abuse not proved beyond reasonable doubt - acquitted on all counts.
R v TURNER
[2004] SADC 85REASONS FOR VERDICTS ON TRIAL BY JUDGE ALONE
The alleged victim (“V”) was born on 8 July 1983. Her mother (“the Mother”) had suffered brain damage in a motor vehicle accident. V did not meet her natural father until she was about fifteen years of age. When V was aged about four her mother entered into a defacto relationship with the accused. He became a defacto father to V and she called him “Dad”. A child (“M”) was born out of the relationship between the Mother and the accused. When V was about ten her mother and the accused separated and the accused went to live on his own in another house.
In 1995, when V was twelve, her relationship with her mother broke down completely and she left home to live with her grandmother. From there she went to live with her step-grandfather, who was separated from her grandmother, and from there she went to live with the family of her school friend, Sarah.
In April 1997 V came to live with the accused in his house, apparently at the instigation of Sarah’s parents. She was leading a fairly wild and uncontrolled lifestyle. She was regularly truanting from school, drinking alcohol, smoking marijuana and otherwise misbehaving. In about August 1997, when she was fourteen, she commenced a relationship with a boy who was then nineteen. It became a sexual relationship. On several occasions she moved out of the accused’s house and lived with various other people, but after short periods she always returned to live with the accused in his house.
In 2001 M came to live with the accused. By 2002 there were contested custody proceedings in the Family Court between the Mother and the accused about M. At about this time V’s relations with her mother improved.
By mid 2001 V had regular part time employment and was looking to rent a house for herself and to move out of the accused’s house. However, she was unable to find affordable housing for herself. In June 2001 and March 2002 she approached Southern Junction Youth Services about them arranging a house for her. This eventuated in about July or August 2002 and she then left the accused’s home. On 14 October 2002 she made her first complaint to the police about sexual abuse by the accused.
In this trial the accused faces the following seven counts of sexual offences against V:
“First Count
Statement of Offence
Procuring an Act of Gross Indecency. (Section 58(1)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ian Peter Turner between the 1st day of September 1997 and the 30th day of November 1997 at Hackham West, procured the commission of an act of gross indecency by (V), a child under the age of 16 years, by causing her to masturbate his penis.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ian Peter Turner between the 1st day of October 1997 and the 31st day of December 1997 at Hackham West, had sexual intercourse with (V), a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Ian Peter Turner between the 1st day of December 1997 and the 31st day of December 1997 at Hackham West, had sexual intercourse with (V), a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Ian Peter Turner between the 1st day of January 1998 and the 28th day of February 1998 at Hackham West, had sexual intercourse with (V), a person under the age of 17 years, by inserting his finger into her vagina.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Ian Peter Turner between the 1st day of January 1998 and the 28th day of February 1998 at Hackham West, had sexual intercourse with (V), a person under the age of 17 years, by performing an act of cunnilingus upon her.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Ian Peter Turner between the 1st day of June 1998 and the 8th day of July 1998 at Hackham West, had sexual intercourse with (V), a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Ian Peter Turner between the 1st day of June 1998 and the 8th day of July 1998 at Hackham West, had vaginal sexual intercourse with (V), a person under the age of 17 years.”
The accused has pleaded not guilty to all seven counts. He has duly elected for a trial by Judge alone which I have conducted.
Prior to the trial I had read the depositions. A significant amount of material in the depositions was not made the subject of evidence at the trial. I decide this matter only on the evidence given at the trial and I ignore anything else which was contained in the depositions. In 1984 when I was a Master of the Supreme Court I had heard a contested custody matter concerning V. I remember nothing about the evidence in that case and I ignore what I have recently read in a law report of an appeal against my decision.
The accused elected not to give evidence at the trial. I draw no inference about his guilt, or otherwise adverse to him, from him having taken that course. There was no evidence about anything which he had said concerning the alleged events which are the subject of the charges. Accordingly, the exercise for me is to determine whether the prosecution has proved the guilt of the accused beyond reasonable doubt on the evidence which is before me.
On each of the seven counts the prosecution must prove beyond reasonable doubt that the accused perpetrated the sexual acts alleged in the counts on V. If it is not so proved on any count, the accused must be acquitted on that count. The prosecutor properly conceded in her final address that no act of cunnilingus, which is the subject of count 5, had been proved. In her evidence V merely said that the accused had asked to perform cunnilingus, but she did not say that he had ever done so. Accordingly, the accused must be acquitted on count 5. In relation to count 4 V did not say in her evidence that there had been any digital penetration of her vagina by the accused on any occasion which was remotely within the time frame of the particulars given in count 4. She did speak of digital penetration on the later occasion on which she said counts 6 and 7 occurred. The prosecutor properly conceded that her evidence about that occasion could not be treated as proof of count 4. Accordingly, there will also be an acquittal on count 4.
On each of the remaining counts I need to determine whether the oral evidence of V, in conjunction with the other evidence which I have, proves that the sexual act, which is the subject of the count, was performed by the accused on V. This proof is proof beyond reasonable doubt. There is no relaxation of this high degree of proof because of V’s immaturity or vulnerability. I do not need to comment on whether any different result would have followed if only a lesser degree of proof was required. V’s evidence about the accused’s alleged sexual abuse of her is not contradicted by any other evidence, but it is also not corroborated by any other evidence. Thus it turns on my view of V’s general credibility in the light of all of the evidence which I have.
On the whole of the evidence before me my conclusion is that it has not been proved beyond reasonable doubt that the accused performed any of the sexual acts alleged in the remaining counts. While proof beyond reasonable doubt does not require any dissection or analysis of particular grounds of doubt the following matters were significant in the light of the whole of the evidence in my not finding that the evidence of V about the sexual acts in question proves beyond reasonable doubt the actus reus of each of the remaining counts:
1.While V was reasonably articulate and plausible in most of her evidence she substantially departed in her evidence-in-chief from what she must have previously told the police and the prosecutor about the alleged sexual acts which were the subjects of counts 4 and 5. Her failure to tell a consistent and coherent story about the allegations in counts 4 and 5 casts doubt on her general credibility about the other counts.
2.V admitted that she sometimes had problems with her memory because of regular use of cannabis.
3.On 26 February 1997, while she was only thirteen, V made elaborate arrangements for another person to break into her mother’s home and steal about $2,000 in cash which she knew her Mother had secreted in a wardrobe. She told police she did this because she hated her mother. Previously she herself had also stolen money from this secret cache kept by her mother. A girl capable of such offences could also be capable of making false allegations of sexual abuse.
4.On the evidence, the first complaint which V made of the sexual abuse which is the subject of the present charges was to a counsellor at the Southern Junction Youth Services in or shortly after March 2002. The effect of making this allegation that the adult with whom she was then living had sexually abused her was to have her placed on a priority list for housing which resulted in her being allocated a house shortly afterwards which she had not been able to obtain previously. There is at least a reasonable possibility that she made a false allegation to achieve this goal. The next person she told was apparently her mother and that led to her mother having her give a statement to the mother’s solicitor apparently for potential use against the accused in the custody dispute about M. Again there is some possibility that this was done to ingratiate herself with her mother with whom she was then on increasingly good terms. She only first spoke to the police about these allegations on 14 October 2002.
5.Frequently V has not been a truthful person. She readily admitted having told lies at various times to the accused when she was truanting from school. When she made her initial complaint to the police on 14 October 2002 she told Detective Foley that she had reported the incidents in question some years before when she was fifteen. I find that she did say this, and I reject her explanation that she was talking about a belief that a Diane Karlsberg, whom she said she had told about the allegations, had reported them to the police. No such earlier report was ever made. It was a lie by V to deflect any criticism from her for delay in reporting the alleged abuse. In 2003 she lied to the SA Housing Trust about her boyfriend living with her in her house. V is not a person with a high regard for the truth and is capable of telling lies when it suits her.
6.It is appropriate in the circumstances of this case for me to give myself, and act upon, a “Longman” warning that it would be dangerous to convict the accused on any count on the uncorroborated evidence of V unless after giving that evidence close and careful scrutiny I was convinced beyond reasonable doubt that the sexual abuse on each count was proved. The warning is necessary because there is a perceptible risk of a miscarriage of justice arising in the circumstances of the case that the delay in reporting the incidents in question to the police might have prejudiced the ability of the accused to refute them: R v RWB (2003) 87 SASR 256; R v BFB (2003) 87 SASR 278. The dates pleaded in the various counts for the offences were fairly broad. The complaint about count 1 was made about five years after it occurred. The delay in reporting count 7 was just over four years. The accused may have been under a forensic disadvantage after October 2002 in obtaining evidence to refute allegations of events which had occurred between four and five years previously. While a “Longman” warning is not a direction to acquit it is a significant factor in my overall conclusion that there has not been proof beyond reasonable doubt of the acts of sexual abuse alleged.
Counsel for the accused submitted that an inference adverse to V’s credibility should be drawn from her delay in complaining about the subject matter of the counts to the police. I am not prepared to draw that inference. The significance of the delay is equivocal. If any sexual abuse did occur, V may well have been too scared and/or embarrassed, as she claimed, to report it to the authorities. While she was still under age she feared that if she complained about sexual abuse from the accused it might lead to her boyfriend also being prosecuted for having had sexual relations with her. On V’s own story there were occasions on which she initiated sexual activity with the accused in order to get money from him. If she had made contemporaneous complaints about such sexual activities, that source of money, on which she claimed she was fairly dependent, would have ceased.
Accordingly, verdicts of not guilty are entered on all seven counts and the accused is acquitted on each count.