R v W - [2021] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W
[2021] SADC 20
Reasons for the Verdicts of her Honour Judge Chapman
9 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is charged with one count of unlawful sexual intercourse with a person under 12 years (count 1), one count of aggravated indecent assault (count 2) and one count of unlawful sexual intercourse with a person under 14 years (count 3). The offending is alleged to have occurred in 2004, 2009 and 2010. The complainant is the daughter of friends of the accused's family.
Verdict: Not Guilty on all counts

R v W
[2021] SADC 20

The accused is charged with three sexual offences alleged to have been committed between 2004 and 2010. The alleged victim of the offences is the daughter of family friends. At all relevant times, the accused’s family were close friends with the complainant’s family. The complainant was aged between five and 11 at the time of the alleged offences.
It is alleged that when the complainant was five or six in 2004 or 2005, the accused committed the offence of unlawful sexual intercourse with a person under 12 years (count 1). The prosecution case is that the accused put his penis in the complainant’s mouth on an occasion when she had been sleeping on a couch at his home.
The next occasion occurred in 2009 in the swimming pool at the complainant’s home when she was about 10 years old. It is alleged the accused pushed her under the water and put his penis inside her mouth. The accused is charged with aggravated indecent assault (count 2).
The last occasion is said to have occurred at the accused’s home during a game of hide and seek in 2010 when the complainant was 11 years old. It is alleged the accused caused the complainant to perform an act of fellatio when she was hiding in a wardrobe. The accused is charged with unlawful sexual intercourse with a person under 14 years (count 3) in relation to that last occasion.
No uncharged sexual acts are alleged.
The prosecution called the complainant, the complainant’s mother and the investigating officer. The prosecution also tendered statements of witnesses and agreed facts.
The accused did not give or call evidence.
The elements of the offences
In order to prove the offence of unlawful sexual intercourse with a child under 12 years (count 1), the prosecution must prove the following elements beyond reasonable doubt:
1.That there was an act of sexual intercourse between the accused and the complainant. The act of fellatio is an act of sexual intercourse.
2. At the time of the act, the complainant was under 12 years of age.
The same two elements must be proved for unlawful sexual intercourse with a child under 14 years (count 3), except that the prosecution must prove that the complainant was under 14 years at the time of the act.
In order to prove the offence of aggravated indecent assault, the prosecution must prove the following elements beyond reasonable doubt:
1. The accused assaulted the complainant.
2.The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
3. At the time of the act, the complainant was under 14 years of age.
Whether or not the complainant consented to any of the acts the subject of the charges is irrelevant because she was a child.
In relation to each of the counts, there is not dispute that the act alleged would amount to the respective offence charged. The issue for each count is whether the prosecution has proved that the act did in fact occur.
Proof
The prosecution has the burden of proving each the offences. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of each offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty.
The accused exercised his legal right to decline to give or call evidence. I do not draw any inference adverse to him, or the case he puts forward, from his exercise of that right. His silence cannot be used to fill any gaps in the prosecution case. He is not required to prove anything.
The prosecution case
The complainant is now 22 years old. She is the youngest of three children. During her childhood, her family spent a lot of time socialising with the accused’s family. The accused’s family comprised his wife and three children. Two of his daughters were older than the complainant. His youngest daughter was younger than complainant. The complainant called the accused ‘Uncle [first name of accused]’.
The two families regularly spent time together, including at each other’s houses, celebrating birthdays, having picnics in the park and going on holidays together. There were two other families (‘Family C’ and ‘Family D’) who often joined in those gatherings. Each of those two families comprised a wife, husband and two children.
Count 1
The complainant gave evidence about a time when she was five years old. On that occasion, her family was at the accused’s family home. She was sleeping on the couch in the study. She thinks she was tired because it was later in the day. She was woken up by the noise of a zipper and then feeling the accused’s penis in her mouth. She opened her eyes and could see his waist. He was wearing jeans. He was holding his penis in his left hand and stroking her with his right hand. He said ‘shoosh, go back to sleep’. She closed her eyes. She heard him do his zipper up.
The complainant’s mother gave evidence that there were times she put the complainant to sleep on the couch in the study when they were visiting the accused’s family home and staying late. It was part of the routine for the time that the children went to bed.
In his affidavit, the complainant’s father stated that when the complainant was very young, they would put her to sleep on a lounge in the family room. The adults were either in the kitchen or outside in the rear yard, having a drink or chat. She would either wake before they left or they would wake her when they were to leave.
Count 2
The complainant gave evidence about an occasion when she 10 years old in the summer of 2009 which occurred in the swimming pool at her house. Her family was present, as was the accused’s family, Family C and Family D. Some of the dads were swimming in the pool with the children. The mums were around the pool talking. They all played lots of different games in the pool during the day.
The accused was in the shallow end of the pool. His two daughters were hanging off each of his shoulders. The complainant swam towards them. The two daughters swam off. The complainant felt the accused’s penis brush against her leg. He then undid his pants, pushed her under the water with his right hand and guided her down. His penis went inside her mouth for two seconds. She swam up for air because she could not breathe.
The complainant’s mother confirmed they had a swimming pool at their house and there were times when the accused was in the pool with the children throwing them around in the water and having fun. The complainant’s father provided an affidavit to similar effect.
The parents in Family C and Family D provided affidavits in which they confirm that the children often played in the pool. The adults were also regularly in the pool. The children played the usual games in the pool amongst themselves and with the adults. The accused joined in those games, including picking up the children and throwing them in the air. Everyone appeared to have fun. The pool was visible to adults who were not in the pool. There was no behaviour of the accused toward the complainant or the other children which caused any concern.
Count 3
The complainant gave evidence about an occasion in Easter 2010 when she was 11 and her family was visiting the accused’s family home after that home had been renovated. It was a couple of days after an earth tremor that had been felt in Adelaide, which is agreed to have occurred on 16 April 2010.
The complainant gave evidence her family had been there for a few hours and it was night time. She was playing hide and seek with two of the accused’s daughters. She was to hide from both of them. The adults were sitting around the dining table. She could not remember what her own sisters were doing at the time.
When the accused was sitting around the dining table, he told the complainant to hide in his wardrobe. She went to his bedroom and hid in the walk‑in wardrobe. She shut the sliding door to the wardrobe and knelt down on the floor in the dark.
The accused came into the wardrobe, closing the sliding door behind him. He unzipped his jeans and pulled them down. He put about 1.5cm of his penis in her mouth. She froze. He started moving it his penis in and out of her mouth. She pulled back, fell on top of the suitcase, got up and ran out. The family stayed for another half an hour or so then went home.
The complainant’s mother gave evidence the children played hide and seek at the accused’s family home. The complainant’s father and the adults in Family C and Family D confirmed that to be the case.
Complaint to school friend in 2005
The complainant gave evidence that she did not tell anyone after the occurrence of count 1 because ‘I wasn’t sure what was happening, if it was normal’.[1] She did not tell anyone immediately after count 2 because she was scared that if she told her parents they would not believe her and if they confronted the accused, he would get angry.
[1] T50.
The complainant gave evidence that she made a complaint to a friend at school when she was in year 5. It was a couple of months after count 2. She told her friend during recess or lunch because they had just been in a sex education class where they were talking about oral sex and sex. She told her friend that her uncle put his penis in her mouth. She gave evidence that her friend said, ‘ugh, what the fuck’. The complainant then said, ‘just kidding’.[2]
[2] T57.
During her evidence, she explained she told her friend that she was ‘just kidding’ because her friend’s response was quite judgemental and made her feel gross.
The complainant’s school friend gave evidence about a conversation that occurred when she was in year 5. She was sitting with the complainant and another friend during what she thought to be recess time. The other friend had found a book about puberty and sex and those sorts of things. The complainant then spoke about a situation where a family friend of hers was involved. She thinks the complainant mentioned inappropriate touching or touching particular areas, but she could not recall any specific words. Her main memory is of being taken aback and saying something like that doesn’t sound like what we’ve experienced. She described the complainant becoming getting embarrassed and brushing if off.
Complaint to mother on 27 April 2011
The complainant gave evidence that when she was 12 she told her mother about what had happened. She typed out a message on her phone to send to her mother but could not send it because she did not have any credit on her phone. The next morning, she went into the lounge room and slid the phone across the tiles to her mother.
She made the complaint because the accused and his wife had suggested that the complainant and her sisters sleep over at their house. She did not want to sleep over because she did not want anything else to happen.
A copy of the message that the complainant wrote to her mother was tendered as an exhibit[3]. She wrote the following:
XMum i dont know any better way that to write this to you but it is very disturbing and upsetting for me!
As i get older and wiser i now understand things more as an adult, kinda thing. I havent told anyone this because i didnt know if it was real and i was scared that you wouldnt believe me!
She here is some stories..
4 years ago when uncle [first name of accused] and auntie [first name of accused’s wife] had their OLD house i was sleeping on their couch and i felt something in my mouth and i didnt know what it was but it didnt feel like a thumb and i woke up and i saw uncle [first name of accused] standing there next to my head and i heard a zipper... I wasnt sure if it was a NIGHTMARE?
another 2 years on our whole family/friends came to our house for a get together and we all were in the pool and uncle [first name of accused] came in and i was swimming and the same thing happened but i was under water i still wasnt sure though.
And then last year around when the earth treamer haQqsppened we were at their house and me [name of accused’s daughter] and [name of accused’s daughter] were playing hide and seek and i hid in the wardrobe and then uncle [name of accused] came in the wardrobe!
And i was sitting down and the same thing happened…
That was the last time that happened and i didnt tell anyone because whenever i thought about it i cried and i dont know what to do but all i do is to act normal and tpretend like nothing happened. Like i don’t even know what that wad it was disgusting and has haunted me all these years! I trust you so please dont tell anyone!:( o try not to think about it but i dont know if it is real like i think it was but i wish it wasnt i dont even know what that was… Please dont tell anyone it was hard enough typing this to you and dont ever talk to me about it text it to me if you want to say something. I also forgot about it! Can you not tell anyone not even dad.[4]
[3] Exhibit P4.
[4] Verbatim from Exhibit P4.
The complainant’s mother gave evidence that on 27 April 2011, the complainant asked her to read what she had put in the notes section of her mobile phone. She asked her mother to read it on her own. The complainant’s mother gave evidence that she did that in her bedroom. She then spoke to and supported her daughter who was crying. She recalled her daughter told her about the time in the wardrobe when they were playing hide and seek. She said the accused went in there. She said it happened again and he had her hand on her head and said ‘shoosh, shoosh’ and that’s when she ran out. She took the complainant to the police.
The night before the complainant gave her the message, they had all been at the accused’s home. The complainant told her she went past his daughter’s bedroom which caused her to remember it all. She confirmed that in 2008 the complainant said she began having nightmares about the accused. Those nightmares lasted for years.
Section 34M
The defence submitted that the evidence of the complaints to the school friend in year 5 and to the complainant’s mother in 2011 are not admissible pursuant to s 34M Evidence Act 1929. No evidence was led from the complainant that either was an initial complaint. The prosecutor agreed she did not ask the complainant the direct question (‘who was the first person you told’), but submitted that it may be inferred from all the evidence.
The prosecutor relied upon the part of the complainant’s written statement (exhibit P4) to her mother in which she said ‘I haven’t told anyone this’. I do not consider I can use that part of the statement in that way. First, it is hearsay. Second, even if it the statement was admitted as an exception to the hearsay rule as an initial complaint, the content cannot be used for the truth of what was said.
The prosecutor also referred to the complainant’s evidence explaining why she did not tell the police in 2011 about the school friend. She gave evidence she ‘forgot that I told her until a couple of years later’.[5] When she gave her evidence about a complaint to her school friend, no evidence was led that the school friend was the first person she told. The complainant was later asked, ‘At some point have you told anyone else about what [accused’s name] has done to you’. She replied, ‘I told my mum when I was 12’.[6]
[5] T109
[6] T64
I do not consider there is sufficient evidence from which I can infer that the complaint to her school friend was an initial complaint (counts 1 and 2) and that the complaint to her mother was an elaboration (counts 1 and 2) and an initial complaint (count 3). There is no admissible evidence from the complainant that they were the only two people to whom she complained, that is, there is no evidence that she told no one else.
The only use I make of the evidence is regarding prior inconsistent statements made by the complainant.
Contact with police
The complainant was interviewed by the police on 7 May 2011. She was then 12 years old and did not want to proceed with criminal charges.
In 2018, she wished to have the investigation re‑opened. She gave a statement to the police on 11 July 2018.
Discussion
In order to prove each of the counts, the prosecution case relies upon the evidence of the complainant.
Due to the passage of time since the alleged offences, I consider the accused has a significant forensic disadvantage in testing the allegations through cross‑examination. That disadvantage includes the inability to know and address the timing of the particular occasions, the nature of the relevant gatherings and the presence of others at those gatherings. The recall of witnesses is limited to generalisations. The layout of the accused’s home relevant to count 1 has changed due to renovations. The delay is not in any way an adverse reflection upon the complainant, but is a necessary legal recognition of the significant disadvantage to the accused in testing the prosecution case.
The complainant’s evidence has been tested by cross‑examination on statements she made to her mother in 2011, to the police in 2011 and to the police in 2018. That cross-examination has elicited some inconsistency between her evidence and those prior statements.
I have carefully scrutinised the complainant’s evidence.
I agree with the prosecution submission that the complainant was a composed and articulate witness. I do not consider she has deliberately given false evidence. Her recall appeared genuine. As submitted by the prosecution, when considering prior inconsistent statements to her mother and to the police in 2011, I have borne in mind that she was only 12 when she was expressing herself. Nevertheless, the standard of proof required for a criminal charge is a high one. There are aspects of the complainant’s evidence which give rise to doubt about the reliability of her recall of each of the alleged acts such that I am unable to be satisfied beyond reasonable doubt that they did in fact occur.
General recall
The complainant has a basic recall of the context for each alleged act, including being asleep on the couch at the accused’s home (count 1), a day in the swimming pool at her home (count 2) and a hide and seek game at the accused’s home (count 3). She has no memory of circumstances surrounding the core allegations, for example, she has no memory of the reasons for the gatherings of the families on the three occasions alleged, including what happened before or after the alleged act. Such a limited recall is not surprising given the passage of time since those alleged events and would not, on its own, cause me to doubt her credibility. Not only were the alleged events a long time ago, she was young. She was only five years old when the first act is alleged to have occurred and eleven when the last act allegedly occurred.
Brazen conduct
A theme common to the three counts is that each is alleged to have occurred in the context of others being in the vicinity of the house or pool.

On the occasion the subject of count 1, there were four other children in the house and three other adults. In her affidavit, the mother in Family D stated that there were times at the accused’s family home when the complainant would get tired and the complainant’s mother put the complainant down to sleep in the family room on the couch. The complainant was visible on the couch as there was only a half wall separating the two rooms.
On the occasion the subject of count 2, there were other children in the pool (including two of the accused’s children) and adults around the pool (including the complainant’s parents).
For count 3, there were three other adults and four other children in the house. Two of those children (the accused’s daughters) were looking for the complainant as part of a game of hide and seek.
The defence submitted that those circumstances make the acts alleged highly improbable. There is some force to that submission. In addition, there is no suggestion that the accused engaged in any type of prior grooming behaviour prior to count 1. The alleged act was bold and very risky. Nor was there any grooming of the complainant during the approximate five years between count 1 and count 2. That makes the circumstances of the alleged act the subject of count 2 bold and very risky. The brazen nature of the circumstances of the alleged acts does not make them impossible, but does give rise to a need to closely scrutinise the evidence.
The evidence of the complainant about the timing of events is inconsistent with some of her prior statements.
First, she gave evidence that count 1 occurred in 2004. When she made the complaint to her mother and spoke to the police in 2011, she said the first occasion occurred four years earlier. That would make the date 2007. In her evidence, she explained that she was mistaken in 2011 about the timing of the first incident. She was not sure about the timing when she spoke to the police. She agreed that she never specifically told the police that she was not sure.
Second, the complainant gave evidence that she complained to her mother about a year after count 3. She agreed that in her statement to police in July 2018 she said she told her mother the day after count 3. In that statement, she went into some detail explaining that at the end of the night of count 3 there was a conversation about sleeping over at the accused’s house. She felt uncomfortable and was scared about what would happen if she slept over. She further described that whilst driving home she felt the need to tell her mother about what happened. She stayed up late that night and wrote a message to her mother. The next morning, she slid the phone across to her mother who was sitting in the lounge room. She gave evidence that she made a mistake when she gave her statement to the police in 2018. She maintained her evidence that it was a year after count 3 that she complained to her mother, not the next day.
Those inconsistencies give rise to some concern about the reliability of the complainant’s evidence. In particular, she gave considerable detail about the events surrounding the complaint to her mother which are now said to be wrong by one year.
Count 1
There are prior statements made by the complainant which are inconsistent with her evidence in relation to count 1. The complainant gave evidence that the accused put his penis inside her mouth. She agreed that when she spoke to her mother and then the police in 2011 she said she was unsure and thought it could have been his thumb.
In her evidence, she explained that she is older now and knows what a penis feels like so she is able to say that the accused placed his penis in her mouth. She then acknowledged that when she spoke to her mother and the police in 2011, she did know what a penis was. She had earlier told her school friend that her uncle put his penis in her mouth. The complainant’s school friend could not recall that level of detail about what was said. Nevertheless, if I accept the complainant’s evidence that she told her school friend that the accused put his penis in her mouth, her evidence that she was young when she spoke to her mother and the police in 2011 does not readily explain the inconsistency in her telling them it could have been his thumb.
She gave evidence that the accused told her ‘shoosh, go back to sleep’. She agreed that in 2011 when she was interviewed by the police she never mentioned that he said, ‘go back to sleep’. She only said that he said ‘shoosh’. I do not consider this difference has any significance.
She agreed that when she spoke to the police in 2011, she did not give them detail about the accused holding his penis in his hand. She only told the police that she saw his pants. The inconsistency does have some impact upon the reliability of the evidence.
Her evidence was that the curtains in the study were closed. She agreed that when she gave her statement in 2018 she thought there were curtains in front of the window, but they were open. I consider this difference is minimal in terms of the complainant’s reliability.
The prosecution submitted the evidence that there were at least three other adults in the house and five children running around should not be a basis for doubting the allegation. Whilst it was risky behaviour, a busy house meant that no‑one would be paying attention.
The defence made a submission that the accused was over six foot tall, which makes the allegation that he put his flaccid penis inside the mouth of the complainant as she lay on the sofa impossible, or at least, highly improbable. I have considered that submission. It highlights the generality of the complainant’s evidence. She was unable to recall much detail. Then again, on her evidence, she was only five years old.
I have carefully scrutinised the evidence in relation to count 1. Various aspects of the evidence [the absence of any prior grooming behaviour, the alleged occurrence of the act in a relatively open plan area with other members of the accused’s family and complainant’s family in the house, the basic and generalised nature of the recall of the act itself, the prior inconsistent statements, but mainly the inconsistency in the act itself (thumb in her mouth) together with the extra detail never before mentioned (holding his penis in his left hand and stroking her with his right hand)] are such that, when considered in combination, I am unable to be satisfied beyond reasonable doubt that the act in fact occurred.
I find the accused not guilty of count 1.
Count 2
The complainant gave evidence that the accused grabbed her head in the swimming pool, pushed her under water and put his penis in her mouth. The complainant agreed that when she spoke to the police in 2011 she did not give them that account. Rather, she only told the police that she felt his penis on her leg. In re‑examination concerning count 2, the complainant explained that she did not tell the police in 2011 about the accused pushing her head underneath the water because she suppressed a lot of the memories. She said she spoke to the police in 2011, the day after she told her parents and she was still scared to talk about it.
There is further inconsistency in her evidence, however, because when she gave her statement in 2018, she said the accused pushed her head under the water and she felt his penis brushing against her lips. She told the police ‘I don’t recall seeing anything as I must have closed my eyes, but I then felt what I believe was his penis brush up against my lips’.
Before she spoke to the police in 2018, the complainant made notes. One of her notes records ‘he pushed my head underwater and put his penis in my mouth’. She does not know why she did not mention that to the police in 2018 when she gave her statement. She thinks she was just stressed.
The prosecution submitted that the complainant’s evidence is that the accused’s penis was only in her mouth for a few seconds. That brief duration may explain why she described in 2018 that his penis brushed up against her lips.
The prior inconsistent statements about the act itself, the lack of any grooming of the complainant between the age of five and 10, and the highly risky surrounding circumstances (the complainant’s daughters were on the accused’s shoulders as the complainant swam towards them and were then only one metre away during the incident itself; other children were in the pool; and adults were metres around the pool) when considered in combination are such that I am unable to be satisfied beyond reasonable doubt that the act in fact occurred.
I find the accused not guilty of count 2.
Count 3
There were some prior statements made by the complainant about count 3 which were inconsistent with her evidence.
She gave evidence that she was certain it was the accused who told her to go and hide in the wardrobe. Her parents were also sitting at the table, as well as his wife. When she spoke to the police in 2011, she said she thought it was another child (one of the accused’s daughters) who told her to hide there. She did not say that it was the accused. That prior statement is also inconsistent with her evidence that both of the accused’s daughters were the seekers in the game of hide and seek. It makes no sense for the seeker to tell the person who is hiding where to hide.
When she gave her statement to the police in 2011, she told them that his penis was ‘just on my mouth, just on’. She agreed she never told the police that his penis went inside her mouth. Nor did she tell them that his penis moved in and out of her mouth. In response to a question from the police about whether she felt anything else on her mouth, she said she did not.
She also told the police that she did not know if it was actually real.
The prior inconsistent statements about the act itself are significant. Those inconsistencies, together with the highly risky nature of the act (a game of hide and seek in which the accused’s own daughters were looking for the complainant and the evidence that the accused told the complainant where to hide in the presence of the other adults) and the doubt expressed by the complainant to the police in 2011 about whether it was real (the complainant gave evidence she had nightmares about the accused) are such that, when considered in combination, I am unable to be satisfied beyond reasonable doubt that the act in fact occurred.
Verdicts
I find the accused not guilty of counts 1, 2 and 3.