R v W
[2010] SADC 153
•10 December 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W
Criminal Trial by Judge Alone
[2010] SADC 153
Reasons for the Verdict of His Honour Judge Chivell
10 December 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Charges of unlawful sexual intercourse with a person under 17 (3 counts) indecent assault on a person over 12 (3 counts) gross indecency (1 count) and indecent assault on a person under 12 (2 counts). Trial by judge alone.
Two complainants - first complainant alleged offences (counts 1-7) committed when she was between the ages of 12 and 14 years old. Second complainant alleged offences committed when she was about 6 years old. All counts tried jointly without objection. Prosecution expressly disavowed cross-admissibility of complainants' evidence. Uncharged sexual acts alleged. Initial complaint made about 5 years later. Evidence not corroborated. Significant inconsistencies in complainants' evidence. Accused's denials supported by other witnesses. Verdicts - Not Guilty, all counts
Criminal Law Consolidation Act 1935 SA s 278(2a)(a); Juries Act 1927 SA s 7; Evidence Act 1929 SA ss 13, 34, 34M(3), 34M(4), 34M(4)(a)(ii), 34M(5); Statutes Amendment (Evidence and Procedure) Act 2008 SA, referred to.
R v Seigneur [2009] SASC 59; R v R, R & R, LJ [2008] SASC 35; R v H, S [2004] SASC 300; R v Liddy (2002) 81 SASR 22; R v H, T [2010] SASCFC 24; R v J [2009] SASC 401; Kilby v R [1973] HCA 30; Palmer v R (1998) 193 CLR 1; Goldsmith v Sandilands (2002) 76 ALJR 1024; R v Musolino [2003] SASC 203; R v Franco [2010] SASC 132; R v Weetra [2010] SASCFC 52; R v Porter (2003) 85 SASR 581, considered.
R v W
[2010] SADC 153Introduction
W is charged on information dated 9 August 2010 with unlawful sexual intercourse with a person under 17 (counts 1, 2 and 3), indecent assault on a person over 12 (counts 4, 6 and 7), gross indecency with a person under 16 (count 5), and indecent assault on a person under 12 (counts 8 and 9). It is alleged that the victims of these offences were, as to counts 1 to 7, his older daughter (“C1”), and as to counts 8 and 9, his younger daughter (“C2”).
Counts 1 to 7 and Counts 8 to 9 were joined on the one information, as is authorised by s 278 (2a)(a) of the Criminal Law Consolidation Act, 1935. There was no application for severance of any count so that it might be tried separately from another.
Counsel for the Director of Public Prosecutions, Mr Powell, informed me that he was instructed that it was not the prosecution case that the evidence of C1 and C2 is cross-admissible. I will therefore regard the evidence in relation to each complainant separately.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act, 1927.
The Information which commenced the proceedings in this Court was dated 21 December 2009. Accordingly, the provisions of the Statutes Amendment (Evidence and Procedure) Act 2008 apply (see R v Seigneur[1]). This is so, even though a subsequent Information dated 9 August 2010 was filed.[2]
[1] [2009] SASC 59
[2] R v Franco [2010] SASC 132
Both complainants gave evidence from a remote location via closed circuit television, were accompanied by a Victim Support Officer from the Office of the Director of Public Prosecutions, and while the courtroom was closed to the public, pursuant to s 13 of the Evidence Act, 1929. A screen was installed between the dock and the witness box when certain other witnesses gave evidence, pursuant to the same section. I declined to close the Court when these witnesses gave evidence, and the screen was intended to screen the witness from the gallery in the courtroom, rather than from the accused.
I have not drawn any inference adverse to the accused as a result of these measures, nor have I allowed them to influence the weight to be given to the evidence given by these witnesses.
General Directions
The Court of Criminal Appeal has stated that it is not necessary that I should set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[3]
[3] R v R,R & R,LJ [2008] SASC 35
However, 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;
·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;
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or a probability of guilt is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict on that count is “not guilty”;
·each count must be considered separately. In the event that I were to find the accused guilty of a count, the evidence and that finding may not be used in proof of the other counts.[4] The evidence in other counts may be used for the same limited purpose as the evidence of so‑called “uncharged acts”. I will discuss this issue as a separate topic in due course. Conversely, if I am not satisfied about the credibility and reliability of the complainant in relation to one count, and the other counts rely on the uncorroborated evidence of the complainant, then that doubt should be taken into account in determining whether I am prepared to accept their evidence on other counts.[5]
[4] R v HS [2004] SASC 300
[5] R v Liddy (2002) 81 SASR 22 at [181-193]
Background
On W’s evidence, he and the complainants’ mother K, began living together in 1987 or 1988. Initially they lived at Raukkan, an Aboriginal community near Point McLeay on Lake Alexandrina. The couple had 6 children, 4 boys and 2 girls. C1, the second eldest child, was born on 8 April 1991, and C2, the second youngest child, was born on 1 October 1997. C1 commenced her schooling at Raukkan in 1995.
In 2000 W and K separated, and he moved to Adelaide where he obtained accommodation in a unit on Churchill Road, Kilburn, not far from the house of his mother. The children remained at Raukkan with their mother.
W later reconciled with K and he obtained the lease of a house in Kilburn. The whole family moved in on 5 February 2001. There was another separation at the end of 2001, and K left the children in the care of W.
In July 2002, all of the children began living with K at a women’s shelter, and later at a house in Woodville North. They all returned to live with W, first the eldest brother, then C1 and another brother, and later the three younger children. By 20 June 2003, they had all returned to live with him.
The sexual offending is alleged to have commenced after this time, when W was a sole parent of the children.
Prosecution Case
Elements of Offences
1. Unlawful Sexual Intercourse with a person under 17 (Counts 1, 2 and 3)
Matters which must be proved by the prosecution beyond reasonable doubt are:
1.1an act of sexual intercourse occurred between the accused and the complainant. For the purposes of this case “sexual intercourse” includes cunnilingus, and digital penetration of the vagina;
1.2the act was unlawful – because the complainant was under the age of 17 years.
2. Indecent Assault (Counts 4, 6 and 7)
Matters which must be proved by the prosecution beyond reasonable doubt are:
2.1the accused assaulted the complainant by touching her;
2.2the touching occurred in circumstances of indecency. “Indecency” is to be judged according to contemporary community standards.
3. Gross Indecency with a person under 16 (Count 5)
Matters which must be proved by the prosecution beyond reasonable doubt are:
3.1the accused performed an act with or in the presence of the complainant;
3.2the act was grossly indecent. “Gross Indecency” is to be judged according to contemporary community standards.
4. Indecent Assault on a person under 12 (Counts 8 and 9)
Matters which must be proved by the prosecution beyond reasonable doubt are:
4.1the accused assaulted the complainant by touching her;
4.2the touching occurred in circumstances of indecency. “Indecency” is to be judged according to contemporary community standards;
4.3at the time of the offence, the complainant was under the age of 12 years.
The particulars of each count on the information are as follows:
Count 1 - Unlawful Sexual Intercourse with a Person Under 17
Particulars of the allegation are:
Between 2 November 2000 and the 31st day of December 2003 at Raukkan, (W) had sexual intercourse with C1, a person under the age of 17 years, by performing an act of cunnilingus on her.
It is alleged that this offence occurred during a trip to Raukkan in 2003.
A number of photographs which C1 said were taken on that trip are dated 8 August 2003[6] in W’s handwriting. He said the trip was on a weekend, as did MK, his cousin, who went with them. 8 August 2003 was a Friday. C1 said they stayed at Raukkan for about a week and she was supported in this by her cousin SW.
[6] Exhibit P1, Nos 2 and 4
In any event, C1 said that they stayed at the house of W’s sister MW, and her partner. She said she was sharing a bedroom with MW’s daughters and her sister, C2. Her father had been out, she heard him come back, and then heard him vomiting. He came into the bedroom. She was not sure if anyone else was in the room. W took off her tracksuit pants and underpants, and began licking her vagina, and inserting his tongue into her vagina. She said nothing, and pretended to be asleep.
C1 said that next morning W told her to clean up his vomit but his sister intervened and told him to do it himself. MW confirmed this, but W had no memory of it, or of cleaning it up next morning. Clearly, on his own admission he had been drinking heavily and has little memory of the events of that night.
It was put to C1 in cross-examination that on the first night at Raukkan, because the adults were making so much noise, the children asked to go and sleep at the house of their grandmother, GS. C1 denied that happened on that night, saying:
No, I slept in the girls’ room that night. I remember it clearly.[7]
[7] T131 at 36-37
There is a possibility that this night may have been confused or conflated with another night when the children did stay at GS’s house. It was there that C1 alleged that the behaviour in Count 2 occurred. Little turns on this issue which impacts on the credibility of the witnesses.
Count 2 – Unlawful Sexual Intercourse with a Person Under 17
Particulars of the offence alleged are:
Between the 2nd day of November 2000 and the 31st day of December 2003, at Raukkan, (W) had sexual intercourse with C1, a person under the age of 17 years, by performing an act of cunnilingus on her.
This offence is also alleged to have occurred during the trip to Raukkan, on a night when C1 and at least some of her brothers and her sister stayed at the house of her grandmother, GS. C1 said she slept in a bedroom of the house, on a mattress on the floor. She thought at least some of her siblings were also sleeping in the room, but she was unable to remember who.
C1 said she was laying in bed “ready for sleep”. This is somewhat inconsistent with her statement to the police on 22 June 2008 that she was “asleep”. I do not regard this inconsistency as significant.
C1 said that at some stage when it was dark, her father came into the bedroom. She could not see him, but she knew it was him. She could not remember how he removed her tracksuit pants or underpants. He began licking her vagina and put his tongue inside her vagina. It did not last as long as the previous time. She said nothing, and pretended to be asleep.
C1 said that after this act, W said to her that it was “a secret”. [8]
[8] T37 at 11
Count 3 – Unlawful Sexual Intercourse with a Person Under 17
Particulars of the offence alleged are:
Between the 7th day of April 2003 and the 8th day of April 2005 at Murray Bridge, (W) had sexual intercourse with C1, a person above the age of 12 years and under the age of 17 years, by inserting his finger into her vagina.
This offence is alleged to have occurred at a place called “Frahn’s Farm” near Murray Bridge. This was a drug and alcohol rehabilitation facility associated with the Aboriginal Sobriety Group (“ASG”). W was employed by ASG for various periods from January to December in 2003. [9]
[9] Exhibit D15
C1 said that her father worked on weekends at Frahn’s Farm and the children often went with him. On this trip, she said her two older brothers, P and J, came too. Her “uncle” R worked there during the week. She said that they all slept in one room, including R.
C1 said that she was in bed, it was dark, but she could still see. Her father came to her bed, he was touching her on the breasts and vagina, he inserted two fingers into her vagina, and then he licked her vagina. She could not remember what she was wearing, or how her clothing was removed. She pretended to be asleep, and said nothing.
R was called by the prosecutor. He confirmed that he worked at Frahn’s Farm from 2001-2006, and that W and his children came on weekends.
R denied that he ever slept over with W and his family. He said he always went home to Meningie on weekends – he would quickly hand over to W and be on his way. He said that, in any event, he slept in a different room next to the shed in 2003, not in the main building. [10]
[10] T223 at 15-18
Uncharged Acts
C1 said that W sexually abused her “a lot of times” when they lived at the Kilburn house. She said she could not remember how many times but it “felt like a lot of times”.[11] She said it happened over the space of about a year, when she was about 13.[12] She said it usually happened in the lounge room, or in W’s bedroom.
[11] T59 at 16
[12] T59 at 19-21
C1 said that she often slept on a mattress on the lounge room floor. She said her father often slept next to her.
On one such occasion she said she woke up and found that she way lying on her side, her pants were off, her legs were apart, and W was rubbing his penis between her vagina and her “bum”.[13] She said he did not insert his penis into her.
[13] T72 at 11-13
It seems to me that this is among the most serious of all the allegations made by C1 against her father. It is surprising, then, that it was not the subject of a specific count in the information.
This evidence was led without objection. None of it was the subject of specific cross-examination, although W’s counsel Ms Spence, did, put to C1 that no sexual abuse ever occurred.
The evidence is relevant and admissible because it tends to show that W had a sexual interest in C1, that the offences did not occur “out of the blue”, that he would take opportunities to engage in sexual behaviour in the house, and that he was confident that she would not complain. It also tends to explain why C1 did not protest or struggle, and why she did not complain.
I remind myself that the evidence is only admissible for those purposes, and that, if I find the acts proved, I may not use the evidence to infer a propensity on the part of the accused to commit sexual acts with children.
Count 4 – Indecent Assault
Particulars of the offence alleged are:
Between the 7th day of April 2003 and the 8th day of April 2005 at Kilburn, (W) indecently assaulted C1, a person of or above the age of 12 years.
It is alleged that on this occasion W asked C1 to sleep with him in his bedroom. She said he took her to McDonalds and said he would buy her a sundae if she agreed to massage him.[14]
[14] T66
She said she massaged his back, and after that he touched the outside of her vagina. She said he remarked that she was “growing”.[15]
[15] T67
Count 5 – Gross Indecency
Particulars of the offence alleged are:
Between the 7th day of April 2003 and the 8th day of April 2005 at Kilburn, (W) performed an act of gross indecency in the presence of C1, being a person under the age of 16 years.
C1 alleged that while laying in the lounge room on mattresses, her father would watch “adult movies” and masturbate in her presence. She said that she could recall two such occasions. She could not remember whether he ejaculated,[16] which is somewhat inconsistent with the prosecutor’s opening address when Mr Powell indicated that she would say that on one of these occasions W ejaculated on the leg of C1’s pyjama pants.[17] In fact, this evidence was elicited in re-examination.[18]
[16] T64
[17] T13
[18] T153-154
Count 6 – Indecent Assault
Particulars of the offence alleged are:
Between the 7th day of April 2003 and the 8th day of April 2005 at Kilburn, (W) indecently assaulted C1, a person of or above the age of 12 years.
C1 said that this offence occurred while she was still at Kilburn Primary School. It was agreed that she was enrolled at Kilburn Primary School in the 2003 school year. She turned 12 on 8 April 2003. The day in question was the day when she had her first “period”. She said she was “late 13, about 14, I think”.[19] If this is correct then it was probably in late 2003.
[19] T68
C1 said that on that day, her father came and picked her up from school and took her home to the Kilburn house. He told her he had rung Aunty B to come and drop off some pads. She said that before Aunty B came, she was sitting on the couch when W came into the lounge room, spread her legs apart and touched her vagina. She said it was “outside of my clothing”.[20] She said he stopped when Aunty B arrived with the pads. She said when Aunty B arrived, she hugged her and told her it was “normal for all girls to get your period” and told her how to use pads.[21]
[20] T70
[21] T71
When C1’s attention was drawn to photograph No. 6 in Exhibit P1, she was unable to recall when it was taken. However, she agreed that she told the police:
I remember this day because Aunty (B) had come over to drop off the pads I needed when I got my first period and dad took me home from school.[22]
[22] T119
C1 also said that photographs Nos. 7 and 8 were taken on the same day. On the back of photograph No. 7, in W’s handwriting, it is noted that the photograph was taken on 7 January 2004. Clearly, that could not have been a school day. C1’s explanation for this discrepancy was unconvincing.[23]
[23] see T119-124
W denied that he picked C1 up from school that day. He said he found bloodstained toilet paper behind the toilet seat, so he asked her about it and she told him she was having her period. He said he spoke to Aunty B and another Aunty, A, about what to do. He denied that either Aunty came to the house. He said he and C1 went to the supermarket together to buy sanitary napkins.
Aunty B gave evidence. She denied ever taking sanitary pads to C1 or ever discussing her first period with her. Indeed, she denied speaking about that topic with W as well, so she also contradicted his evidence that he telephoned her for advice.[24]
[24] T377
Count 7 – Indecent Assault
Particulars of the offence alleged are:
Between the 7th day of April 2003 and the 31st day of April 2005 at Kilburn, (W) indecently assaulted C1, a person of or above the age of 12 years.
C1 said that this was the last occasion on which her father sexually abused her. She said she had been living with her Grandmother at Point McLeay, and had returned to live with her father at Kilburn. She said she was asleep on a mattress in the lounge room. She awoke to find that her pants were down, her father had moved her legs apart with his hand, and he was looking at her vagina. She said he did not touch her vagina, nor did he say anything. She said she pretended to be asleep, and remained silent.[25]
[25] T76
Initial Complaint
C1 said that in 2008, she told her brother, J about the events. She and her siblings were living with her mother at Ingle Farm. She said the conversation was, in summary:-
·I told him that something happened to me a few years back;
·he asked what I meant;
·I said I was interfered with by someone close in the family;
·he asked who it was;
·I couldn’t say it;
·he began guessing, and then he asked if he could guess one last person;
·I said “Yes”;
·he asked if it was Dad?;
·I said “Yes”;
·“We just cried” after that;
·he said we have to tell somebody else;
·we decided to tell my Mum next day;
·he helped me tell my Mum next day;
·we then told two of my aunties;
·and then the police were informed.[26]
[26] T77-78
J also gave evidence of this conversation. His evidence was consistent with that of C1 to this extent:-
·it happened in 2008;
·C1 told him in his bedroom;
·she was initially reluctant to tell him;
·he eventually guessed it was their father being accused;
·she said it went on for about a year;
·they agreed to tell their mother next day.
I accept that this conversation occurred, in the circumstances described by these two witnesses.
This evidence was admitted pursuant to s 34M(3) of the Evidence Act, 1929. In conformity with s 34M(4) I remind myself that:
·the evidence is admitted to show me how the allegation first came to light;
·it is admitted to show consistency of conduct of C1;
·it is not admitted as evidence of the truth of C1’s allegations;
·there may be varied reasons why C1 made the complaint of these offences at that time.
Section 34M(5) establishes that it is a matter for me to determine the significance (if any) of the evidence in the circumstances of this case. In R v H, T,[27] Kourakis J thought that “consistency of conduct in s 34M(4)(a)(ii) should be read as the “degree of consistency of the complaint’s conduct”. White J agreed,[28] saying that it is a matter for the jury to determine whether the evidence is consistent with the complainant’s conduct or not.
[27] [2010] SASCFC 24 at [105]
[28] at [81]
In R v J[29] Duggan J said that if evidence of consistency of conduct is admitted, it “buttresses the credit of the complainant”, quoting Kilby v R.[30]
[29] [2009] SASC 401 at [92-93]
[30] [1973] HCA 30
I accept that the evidence of the initial complaint in this case is consistent with the offences having occurred. As Kourakis J said in H,T: [31]
Moreover it is my view that a complaint however late is consistent with the allegation of an assault it makes. The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted.
[31] at [106]
It is therefore necessary to assess the degree to which C1’s evidence was buttressed by the complaint she made. To do that it is necessary to refer to the surrounding circumstances.
Counsel for W, Ms Spence, put to C1 in cross-examination that:
·she alleged to S, her cousin, that her brother J had performed oral sex on a man they knew;[32]
·she asked S if he had been molested by somebody;[33]
·she “used to take the dictionary and look up sexual words and show them to S;[34]
·her Aunty MW had spoken to her about her saying such things;[35]
·at a birthday party at Raukkan in June 2008, she told S that L, another cousin, had been molested by C1’s father;[36]
·about a month before the 21st birthday mentioned above, she asked L to make up allegations that W had molested her, that if she didn’t do so she would “never speak to her again, and that she could not come to her (C1’s) funeral when she died”.[37]
[32] T105
[33] T105
[34] T105
[35] T105
[36] T106
[37] T107
C1 denied all of these allegations.[38]
[38] T105-107
In answer to counsel’s questions, C1 did say that L told her she had been molested by W, that this had occurred after she had spoken to the police about her own allegations, but before the 21st birthday party mentioned above.
C1 said that at the 21st birthday party mentioned above, S had asked her if the stories he had heard about her being molested by her father were true, and she said that they were. She said S told her he did not believe her.[39] She said that L was present at the time, and that she “came out” and told S she had been molested too. She denied she had been the one to tell S about L.[40]
[39] T112
[40] T112
Ms Spence also put to C1 that:
·she had told L that her father was “not going to come between her and her boyfriend”. She denied that, saying she did not have a boyfriend in 2008, and that her relationship with a boy named N started after she reported these offences to the police;[41]
·her father had opposed her having a boyfriend because he wanted her to do Year 12 and go to University. She did not deny that;[42]
·she told L to lie because she felt that nobody was believing her allegations. She denied that;[43]
·she did the same thing with her sister C2 (i.e. asked her to lie against her father). She said that she did suspect that something happened to C2, and suggested to her mother that she ask C2 about it, but said:
I (had) never, ever spoken to C2 about it, ever – before I went to the police.[44]
·She told S that she wanted to “ruin the (family) name”, and that she wanted to “put W behind bars”, and that if he was in prison he couldn’t stop her having a boyfriend. She also denied these allegations.[45]
[41] T108
[42] T109
[43] T109
[44] T110
[45] T113
Other Prosecution Evidence
I have already mentioned that C1’s brother J gave evidence of the initial complaint. Like C1, he also denied that she had ever suggested to him that he had been involved in an incident involving fellatio with a person they knew, or that S had been molested.
J was also cross-examined about L. He said that L had told him that she had been molested by W.
I had considerable reservations about the admissibility of this evidence. The defence allegation that C1 prevailed upon L to make similar, false, allegations against W go purely to C1’s credit. It seems to me that evidence contradicting her answers on this issue was inadmissible. The issue of whether L was abused by W, whether she told anybody and, if so, whom, and whether C1 prevailed upon her to make a false allegation about that are collateral issues to the main issue here, which is the truthfulness of C1’s allegations. Further, the answers to these questions do not necessarily affect C1’s credibility on this main issue.
I raised this issue with counsel during the trial. Ms Spence asserted that the evidence was relevant to show “some sort of obsession with molestation and sexual themes”.[46] Mr Powell, for the prosecution, did not object to the evidence on the basis that it supported a submission by the defence that C1 was “prone to making up lewd stories of sexual matters and has therefore made up the allegations in relation to the accused.”[47]
[46] T402
[47] ibid
In my view, and upon further reflection, those assertions do no more than confirm that the cross-examination of C1 on these topics was an attack on her credibility, and that evidence contradicting her answers should not have been admitted.[48] It having been admitted without objection, in my view the evidence carried no weight.
[48] see Palmer v R (1998) 193 CLR 1, at [51-52] per McHugh J, Goldsmith v Sandilands (2002) 76 ALJR 1024 at [3] per Gleeson CJ , R v Musolino [2003] SASC 203 per Lander J
R was called by the prosecution. R is W’s first cousin. He contradicted C1’s evidence that he slept in the room with W and his family at Frahn’s Farm.[49] He said by that time he was sleeping in an outside room next to the shed. He said that, in any event, he never stayed on weekends – he went home to Meningie on weekends, and was always keen to get away as soon as W arrived to relieve him.[50]
[49] Count 3
[50] T227
MK is a second cousin of W. They were close friends. He accompanied W and his children to Raukkan in 2003.[51] He said that on the first night they were there both he and W drank heavily and became intoxicated. On the second day they started drinking in the morning and drank all day. He became intoxicated, but he couldn’t remember if W did too. He said on the third day they returned to Adelaide.
[51] Counts 1 and 2
K is C1’s mother. She confirmed that C1 spoke to her in J’s presence, about these allegations. She also spoke to C2 later the same day. I will discuss this later.
Evidence in relation to C2
Counts 8 and 9 relate to W’s younger daughter C2.
C2 was born on 1 October 1997. She was 12 when she gave evidence, turning 13 on the Friday of that week.
C2 alleged that both counts occurred when she was living with her father and siblings at Kilburn.
Count 8 – Indecent Assault
Particulars of the offence alleged are:
Between the 30th day of January 2005 and the 4th day of February 2006 at Kilburn, (W) indecently assaulted C2, a person under the age of 12 years.
C2 said that this occurred when she was 6 or 7 years old, that it happened in the lounge room, at night. She said she was laying on a mattress near the heater. Her younger brother was sleeping on the mattress next to hers. She was almost asleep. Her father was lying on another mattress next to her on the other side. She said:
“He started to touch my private part and then he tried to put his finger in my mouth”[52]
[52] T163
She elaborated that he touched her vagina, on the skin and not through clothing, and his fingers were moving around.[53] She said he stopped and went to the toilet, and she rolled over onto her younger brother’s mat “so he wouldn’t do it anymore”.[54]
[53] T165
[54] T163
In cross-examination, C2 accepted that she told the police on 6 June 2008 that five people were in the room at the time, 3 of her brothers, her father and herself.[55] I do not accept this as inconsistent with her evidence in examination-in-chief, when she said in relation to her brothers:
I don’t remember if it was all of them, but I remember my little brother H was in the lounge room sleeping there.[56]
[55] T181
[56] T162
Other inconsistencies arising from the earlier statement were also put to the witness:
(1) whether she had brown pants on rather than Barbie pyjamas;
(2)whether W tried to put his hand in her mouth, or tried to get her to put her fingers in his mouth.
(3)whether she told the police there was only one occasion of sexual abuse.
As to (1), I do not regard that as an inconsistency of any significance.
As to (2), C2 said to the police twice on 6 June 2008 that W tried to put his finger in her mouth after he touched her vagina.[57] It is agreed that, in another statement given on 9 November 2008, C2 said “he tried to, um, tell me to put my finger in his mouth”.[58] There is some room for confusion about this. In that second interview, the interviewer was referring to an incident in the bathroom. It is not clear whether or not a different occasion is being referred to.
[57] T188
[58] T188
As to (3), C2 agreed that after describing the incident in count 8 on 6 June 2008, she said to the police:
That’s the only time we did it and I don’t know any more”.[59]
[59] T194
When she was cross-examined about that, she explained:
Yeah, that’s because I didn’t remember the rest of it then I couldn’t. I told my Mum to ring the detective to come back and tell the rest of the story about it.[60]
[60] T194
C2 made a further statement the next day, 7 June 2008. She denied that she spoke to C1 about “making up lies against your dad” in the interim. She said:
I didn’t ever talk to my sister about lying because I didn’t want to talk about it any more because it was upsetting me.[61]
[61] T194
Count 9 – Indecent Assault
Particulars of the offence alleged are:
Between the 30th day of January 2005 and the 4th day of February 2006 at Kilburn, (W) indecently assaulted C2, a person under the age of 12 years.
C2 said that on the second occasion, the following occurred:
It was daytime and I was laying on the mattress watching television, and he came up and told me to be quiet and then he touched my private (part) and then he asked me to – ‘Do I need to stop or not?’, and I told him ‘Yes, I want you to stop’.[62]
[62] T185, lines 17-21
She said this happened in the lounge room, during the daytime, while she was watching television with her brothers, C and H. She said she was lying on a mattress, and her father came in and lay next to her. She said he pulled her pants and underwear down to her knees before touching her vagina.[63] She said she didn’t notice what C and H were doing when this occurred.[64]
[63] T166-167
[64] T168
Uncharged Act
C2 described another occasion when she said she and her brother H were massaging W’s legs. She said W told H to go outside and play, then:
I was massaging his legs and he told me to go up towards his thighs, so I did, and he wanted me to go a bit up to touch his private (part), but I refused to, and then he said that ‘I will take you to the shops if you do’, but I said ‘No’. so he said he would get my older sister to do it.[65]
[65] T168, lines 14-19
She couldn’t say when this happened, although it was a different day from when Counts 1 and 2 occurred.
This behaviour was not the subject of a charge. Again, it was led without objection. I will regard it in the same way as the uncharged acts evidence led in relation to C1. I remind myself that I may not infer propensity from it. Further, once Mr Powell expressly disavowed cross-admissibility of evidence, I do not draw any inferences unfavourable to W in relation to C1 from this evidence, particularly in relation to Count 4.
Initial Complaint
C2 said that the first person she told about these events was her mother. She said her mother called her into the backyard at the Ingle Farm house:
"Q“She asked me if anybody, like, done anything bad to me like touched my privates or anything, and at the time I knew this was the only chance I could tell my mum so I told her.
AWhat did you say to her.
Q‘Yes’.
AAnd she said ‘Who?’.
QAnd I said ‘Daddy’.[66]
[66] T170, lines 26-33
In cross-examination, C2 denied that she’d spoken to C1 about these allegations before she spoke to her mother.[67] She said that her mother then told her about C1.[68]
[67] T173
[68] T174
Her evidence was confusing, because C2 also said:
"A“Yes, I knew because my mum, I knew that C1 got touched before I told my mum.
QBecause C1 told you.
ANo.
QWho told you that.
AMy mum.
QYour mum told you that your dad had touched C1.
AYeah, because I asked her.
QYou asked your mum.
AYep, because I had a bad feeling.
QYou had a bad feeling about what.
ABecause my mum randomly asked me that and I had a feeling so I asked her ‘Why did that happen to C1?’ and she said ‘Yes’.[69]
[69] T174, lines 6-19
C2 agreed that she had previously told the police on 6 June 2008:
And yeah, but my sister told my mum before and I thought if my mum already knows my sister did it I should tell her as well so we can get it over and done with.
She explained:
Yeah, and I meant as in because my mum knew one of my sisters from my family member got molested and my mum is going to do something about it and if I don’t tell her I am not going to get any help. I thought if I told my mum I could get this secret over and done with so I don’t have to be sad any more.[70]
[70] T178, lines 10-15
C2 seemed not to appreciate the significance of her inconsistency. She asserted that she had no knowledge of C1’s complaint before she complained, and then acknowledged that she was aware of C1’s complaint before she complained. C2 denied that C1 had asked her to lie for her, or that she knew anything about L’s complaint before she complained.
K gave evidence to the same effect about C2’s initial complaint. She said:
I said to her ‘(C2), I’ve got a very important question to ask you and it’s really important that you tell me the truth, don’t lie’ and she goes ‘Yes mum, what?’ and I go ‘Do you know what your private parts are?’ and she said ‘Yes’ and I said ‘Has anyone ever touched your private parts?’ and she said ‘Yes’ and I said ‘Who?’ and she said ‘Dad’ and then she started crying and I just left it at that. I didn’t want to pressure, get any more information, you know what I mean, and I just told her that she was very brave to tell me and it’s not her fault that it happened, yeah.[71]
[71] T247, lines 9-19
On the basis of this evidence, I accept that C2 made the initial complaint to her mother in the manner described above, and that this demonstrates consistency of conduct in the manner previously discussed in relation to C1.
As to the degree to which the evidence bolsters C2’s evidence of the offences, however, I am concerned about the inconsistency in C2’s evidence as to whether she knew about C1’s complaint before she made her own complaint. I think it is at least likely that she already knew. I therefore regard the initial complaint evidence as adding little to the strength of the prosecution case.
Interview with Police
Detective Senior Constable Trina Bentley interviewed W on 29 June 2009 about these matters.
The videotape of the interview is Exhibit P12. W vehemently denied that any behaviour of a sexual nature occurred in relation to C1 or C2. He chose to answer many of the police officers’ questions even after he had obtained legal advice. At one point,[72] he became confused between the trip to Raukkan being referred to by C1, and another, earlier trip. I accept this was a genuine error, and does not detract from the credibility of W’s evidence.
[72] Indicated on transcript, MFI P12A at p 28
Although this evidence is unsworn and self-serving, I am entitled to give W some credit for choosing to answer the police officers’ questions after getting legal advice that he need not do so. I am also entitled to have regard to W’s answers and take them into account along with the other evidence, and to give them such weight as seems appropriate in the circumstances.[73] Although I accept that W did become, in Mr Powell’s words, “belligerent” during the interview, to the extent that he raised his voice and used aggressive language, that was in the course of a particularly vehement denial and in my opinion did not detract from the credibility of his evidence.
[73] R v Weetra [2010] SASCFC 52, R v Porter (2003) 85 SASR 581
Agreed Facts
I received a document consisting of 8 pages in which a total of 84 facts were agreed and I accept them as having been established without further proof pursuant to s 34 of the Evidence Act 1929. There is no need to set them out in full, but they provide very useful background information, particularly the dates on which certain events occurred.
Case for the Accused
W gave evidence on oath. Of course he had the right to remain silent, and was under no obligation to give evidence. I remind myself that the onus of proof always remains on the prosecution, and the accused undertakes no onus to prove or explain anything by giving evidence. Further, his evidence should be assessed in the same way as that of any other witness, bearing in mind the presumption of innocence.
W described the family background, the breakup of his relationship with K, the various moves made by the family, and the schools attended by the children.
I have already outlined much of W’s evidence in relation to the specific allegations made by C1. He denied each and every one of the allegations quite vehemently.
W admitted that he was a demanding parent, both in terms of education and sport. He was aware that C1 was resistant to that and was not interested in going to university.
Other Defence Witnesses
I have already mentioned that Aunty B, contradicted C1 about Count 6. She denied ever having spoken to C1 about her period, about sanitary pads or any such thing.
SL, L’s mother, gave evidence that she attended at the Ingle Farm house at K’s request three times. Initially, it was about C1’s complaint, but she said she had a conflict of interest between her family responsibilities and her employment with the Department for Families and Communities. The second occasion was about the same thing. The third occasion involved the alleged complaint by her daughter L. I will not discuss that evidence further, as I do not consider it relevant.
MW confirmed that W and his children came to stay in Raukkan in 2003. She confirmed C1’s evidence that W vomited in the bedroom where he slept and that he asked C1 to clean it up next day. She said she intervened and told him to clean it up himself.
S gave evidence, ostensibly to contradict C1’s evidence denying the attacks on her credibility referred to earlier. I regard this evidence as irrelevant, for reasons expressed earlier.
S was at Raukkan during the 2003 trip. He said that on one evening the adults were noisy and the children asked to go down to ‘Nanna’s House’ to watch a movie. However, this evidence was given in answer to a leading question from Ms Spence after she had shown him a photograph[74] of the men playing darts:
QIs this the time when you say that they were making too much noise and you wanted to go to Nanna Grace’s.
AYes.[75]
[74] Exhibit P1, photograph 1
[75] T407
The suggestion was made that this evidence contradicted C1’s evidence that they were at MW’s house on the first night when Count 1 occurred. I am not prepared to conclude that from such inconclusive evidence.
L gave evidence. She is C1’s first cousin, the daughter of SL. Her evidence was also led to contradict C1’s answers to the attack on her credit, and for that reason I consider it largely irrelevant. In short, she denied ever having been sexually interfered with by W.
That said, L admitted that she falsely told K she had been molested by W and, after SL was called to the Ingle Farm house, she repeated the false allegation to her mother. In evidence, she contradicted her mother. SL said that when they were with K and C1 at the house, when she was asked whether W had abused her, L “just hung her head down”.[76] SL said that when they were on their way home in the car, the following conversation occurred:
A….. (L), what the f…’s going on? Can you tell me what’s going on? And she said ‘Nothing’.
QSo had (L) ever said to you, ‘(W) sexually abused me’.
ANo.[77]
[76] T384
[77] T385
SL admitted that even after she had heard these allegations, she did nothing to investigate whether or not her daughter had been sexually abused.[78]
[78] T385
I am deeply suspicious about these allegations. I had a poor impression of both SL and L as witnesses.
I find the whole scenario described by them lacks credibility. I reject this evidence whenever it conflicts with that of C1 and C2. It does nothing to detract from their evidence, even if it is admissible.
Analysis and Conclusions
As to C1, I was generally impressed by her evidence. Subject to what follows, there was nothing inherently implausible or apparently false in her version of these events.. She gave an appropriate amount of detail having regard to the circumstances.
I make the same comments about C2’s evidence. She is much younger, of course, and due allowance must be made for that, but there was nothing in her evidence or cross-examination which led me to conclude she was being deliberately untruthful.
C1 became quite emotionally distressed at certain passages of her evidence, and I agree with the submission of Mr Powell that it would be difficult to feign such behaviour in the witness box.
However, there are a number of matters which give rise to concern about the prosecution case:
·the allegations made by both C1and C2 are essentially uncorroborated;
·the allegations have been denied on oath by the accused and although it is true that he was at times belligerent, and on certain issues obviously mistaken (for example about which of the two trips to Raukkan were being referred to), his evidence was unshaken in the course of a thorough and searching cross-examination;
·C1’s evidence has also been directly contradicted on oath in material respects: first by R about whether he was present at Frahn’s Farm in relation to Count 3: secondly by Aunty B in relation to Count 6; and thirdly by the writing on the back of photograph No. 7 of Exhibit P1 (admittedly written by W) that photographs 6, 7 and 8 were taken on 7 January 2004 which could not have been a school day;
·the inherent implausibility of C2’s assertion that her father pulled down her pants and underpants and touched her vagina (count 9) when it was daylight and two of her brothers were present, and they had all been watching TV;
·the previous inconsistent statements made by C2, particularly the one concerning whether she was aware of C1’s complaint before she made her initial complaint to her mother.
Conclusion
These concerns are such that I find that I am not satisfied beyond reasonable doubt that the allegations made by C1 and C2 are true and that W’s denials are false. My verdicts are therefore:
Count 1 - Not Guilty
Count 2 - Not Guilty
Count 3 - Not Guilty
Count 4 - Not Guilty
Count 5 - Not Guilty
Count 6 - Not Guilty
Count 7 - Not Guilty
Count 8 - Not Guilty
Count 9 - Not Guilty
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