R v W, J - [2018] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, J
Criminal Trial by Judge Alone
[2018] SADC 95
Reasons for the Verdict of His Honour Judge Millsteed
13 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with maintaining an unlawful sexual relationship with a child under the age of 17 years contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) - prosecution alleged that over a period of 4-5 years the accused committed sexual offences against his grandson - prosecution case based on the evidence of complainant - prosecution failed to prove accused's guilt beyond reasonable doubt.
Verdict: Accused not guilty of charged offence.
Criminal Law Consolidation Act 1935 (SA) ss 5, 20(1), 49(1), 49(2), 49(7), 50(1), 50(2), 50(12), 56(1), 57(2); Evidence Act 1929 (SA) ss 13A(1)(12), 34M(4), 34CB(1), 34CB(2), referred to.
R v Nesbitt [1953] VLR 298; R v Court [1989] AC 28; R v Harkin (1989) 38 A Crim R 296; Drago v R (1992) 8 WAR 488; R v C, M (2014) 246 A Crim R 21; R v Johnson [1968] SASR 132; Petty v Maiden (1991) 173 CLR 95; R v Maiolo (No2) (2010) 109 SASR 46; R v Trimboli (1979) 21 SASR 577; Howe v R (1980) 32 ALR 478; Longman v The Queen (1989) 168 CLR 79; R v Bakhuis (2012) 112 SASR 536, considered.

R v W, J
[2018] SADC 95
INTRODUCTION

The accused JW was tried before me sitting without a jury[1] on one count of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA). The prosecution alleged that over a period of about four to five years the accused performed multiple sexual acts on his grandchild, RB.
[1] The accused elected to be tried by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA).
For the reasons set out herein, I find the accused not guilty of the charge.
THE CHARGE
Particulars
The particulars of the offence contained in the information, dated 13 February 2018, allege that between 1 May 2009 and 1 June 2014, at Aldinga, McLaren Vale and Port Elliot, the accused maintained an unlawful sexual relationship with RB, a child under the age of 17 years engaging in two or more unlawful acts with or towards RB namely:
(a) touching her vagina;
(b) looking at her vagina;
(c) inserting a finger into her vagina; and,
(d) causing her to touch the accused’s genital area.
The complainant, RB, was born female but since the alleged offending identifies as a male. In accordance with RB’s transgender identity, I will refer to RB as a male person throughout these reasons.
Maintaining unlawful sexual relationship: elements of offence
Pursuant to s 50(1) of the CLCA an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. An ‘unlawful sexual relationship’ is defined as ‘a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period’ (s 50(2)).
Section 50(12) defines an adult as a person over 18 years; and, a child as a person who is under 17 years or a person under the age of 18 years if the adult is in a position of authority in relation to the child. Sub-section (12) further defines ‘sexual offence’ to include offences against the CLCA contained in Pt 3, Div 11 (Rape and other sexual offences) subject to certain exceptions which are not relevant.
The prosecution contended that the sexual acts committed against RB constituted the following offences under the CLCA:
·particular (a) – indecent assault, contrary to s 56 ;
·particular (c) – unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1);
·particular (d) – indecent assault (s 56) or procuring a child to commit an indecent act, contrary to s 63B.
During the trial it became apparent that the prosecution’s reliance on particular (b) (looking at the complainant’s vagina) as a further type of sexual act was unnecessary because the alleged act of ‘looking’ occurred in the context of the accused allegedly touching or handling the complainant’s vagina, as particularized in (a).
An Information charging a person with an offence under s 50(1) is not required to contain the level of particularity which is demanded by the common law. The section relevantly provides:
(3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)     However—
(a)     the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b)     the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature of character of those acts; and
(c)             if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
In order to establish the accused’s guilt the prosecution was required to prove beyond reasonable doubt the following elements:
(i)The accused was an adult at the time;
(ii)RB was a child at the time;
(iii)The accused committed two or more sexual acts (offences under the CLCA) with or towards RB.
Elements of ‘sub-offences’
I turn to the elements of the offences under the CLCA which the accused is alleged to have committed by performing the acts particularised in the Information.
Indecent assault
The prosecution contended that the accused performed two types of acts on RB each of which constituted the offence of indecent assault, namely:
·touching his vagina - particular (a)
·holding RB’s wrist and causing him to touch the accused’s penis - particular (d)
Pursuant to s 56(1) of the CLCA ‘a person who indecently assaults another person is guilty of an offence’. The CLCA does not define an indecent assault but it is well established that it constitutes an assault accompanied by circumstances of indecency.[2] Section 20(1) of the CLCA provides that ‘a person commits an assault if [inter alia] the person, without the consent of another person (the “victim”),…intentionally applies force (directly or indirectly) to the victim…’. By force of s 57(2) of the CLCA ‘no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault’.
[2] R v Nesbitt [1953] VLR 298 at 300.
In order to establish that the accused committed an offence of indecent assault against RB, the prosecution needed to prove the following elements:
1.The accused applied force (directly or indirectly) to RB.
·       in relation to an act particularised in (a) by touching RB’s vagina.
·       in relation to an act particularised in (d) by applying force to RB by holding his wrist while putting RB’s hand on his penis.
2.      The force was applied intentionally.
3.      The force was accompanied by circumstances of indecency.
4.      RB was under the age of 17 years, rendering consent irrelevant.
In relation to the requirement of indecency, it is for the trier of fact to ‘decide whether right minded persons would consider the act indecent or not … whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent’.[3] Put another way it must be determined whether the act is ‘contrary to the ordinary standards of morality of respectable people within the community’.[4] Furthermore, the element of ‘indecency’ must have a sexual connotation.[5] In other words, it requires an element of ‘sexual lewdness’.[6] By indecency is meant conduct that right thinking people will consider an affront to the sexual modesty of a person.[7]
[3]    R v Court [1989] AC 28 at 42 (Lord Ackner).
[4]    R v Harkin (1989) 38 A Crim R 296 at 299-301 (Lee J).
[5]    R v Court [1989] AC 28 at 42 (Lord Ackner); Harkin (1989) 38 A Crim R 296 at 301 (Lee CJ); Drago v R (1992) 8 WAR 488 at 497-8 (Nicholson J).
[6]    R v C,M (2014) 246 A Crim R 21 at [19] (Peek J).
[7]    R v Court [1989] AC 28 at 34 (Lord Griffiths); Harkin (1989) 38 A Crim R 296 at 299-300 (Lee CJ), Ackner.
Where an accused’s conduct is unequivocally indecent it is not necessary for the prosecution to prove that the accused had a sexual intention or motive. However, where the accused’s conduct is equivocal (consistent with both an innocent and indecent interpretation) the accused’s motive is relevant to the question of whether right minded people would regard his conduct as indecent.[8] In other words, the case law in this area draws a distinction between acts of indecency that are (i) unequivocal, in which case an inference of indecency arises; or (ii) equivocal, in which case the conduct may become indecent if the accused has a sexual purpose or motive.[9]
[8] Where an act is not in itself indecent, and is not committed in indecent circumstances, secret sexual gratification cannot convert the act into one of indecent assault. For example, in R v George [1956] Crim LR 52 the fact that the accused secretly obtained sexual gratification from merely removing a woman’s shoes did not make his conduct indecent. See also R v Johnson [1968] SASR 132.
[9] See S. Bronnit and B. McSherry, Principles of Criminal Law, Lawbook Co, 4th ed at 643.
Unlawful sexual intercourse
The prosecution alleged that the accused engaged in unlawful sexual intercourse with a child under the age of 14 years, namely:
·inserting his finger or fingers into RB’s vagina - particular (c)
Pursuant to s 49(1) of the CLCA ‘a person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life’. [Section 49(2) stipulates that ‘a person who has sexual intercourse with any person under the age of 17 years shall be guilty of an offence’. The sub-section provides for a maximum penalty of 10 years imprisonment.]
Sexual intercourse is defined in s 5 of the CLCA as follows:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving-
(a) penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunniligus
By force of s 49(7) consent to sexual intercourse is not a defence to a charge under the section.
To establish that the accused committed an offence of unlawful sexual intercourse against RB, the prosecution was required to prove each of the following elements:
1. The accused had sexual intercourse by penetrating RB’s vagina or labia majora with his finger or fingers.
2. RB was under the age of 17 years at the time, rendering consent irrelevant and the act of sexual intercourse unlawful.
PROSECUTION CASE
The prosecution called RB, DB (RB’s mother) and SS (RB’s friend).
Background
RB was born on 26 May 2003 and has a sister CB and brother BB born on 26 January 2001 and 18 November 1998, respectively. From 2003 until 2010 he lived with his mother and siblings at Aldinga. Since 2010 they have lived at Port Elliot.
The accused is the grandfather of DB’s children. He was married to their grandmother but subsequently remarried. The accused and his second wife FW purchased a house at McLaren Vale on 5 December 2006 and sold the property on 1 September 2014.
The evidence established that the accused lived in their home at McLaren Vale from about 5 December 2006 until 30 June 2010 when they moved into a smaller home at Willunga. They remained at Willunga until about November or December 2012 when they moved into their house at McLaren Vale. Whilst they were living at Willunga they rented out their McLaren Vale property.
Over the years the accused often babysat RB and his siblings and had care of them on other occasions.
The complainant’s allegations against the accused were first reported to South Australian Police (SAPOL) on 19 April 2016.
The accused was arrested on 15 July 2016 and declined to answer questions.[10]
[10] In accordance with established legal principle, I have drawn no inference adverse to the accused because he exercised his legal right to remain silent: see Petty v Maiden(1991) 173 CLR 95.
Complainant’s evidence
RB was 14 years of age at the time of the trial. He gave sworn evidence.
Pursuant to section 13A(1) of the Evidence Act 1929 (SA) (the ‘EA’) special arrangements were made for taking the evidence of the complainant by reason of him being a vulnerable witness for the purpose of that provision. RB gave evidence inside the courtroom with the assistance of a screen. This evidence was recorded within the courtroom and the court was closed for the duration of his evidence.
Section 13A(12) provides that if, in a criminal trial, a court makes special arrangements, the judge must warn the jury not to draw any inference adverse to the defendant and not allow the special arrangements to influence the weight to be given to the evidence. The section does require a judge to give him or herself such a direction when sitting without a jury. However, I have given myself such a direction.
RB said that he could first remember visiting the accused’s home at McLaren Vale after he started school at about the age of 5 years and last visited those premises when he was about 10 years of age. He estimated that during that period he visited the accused and FW once every ‘couple of months’. RB testified that he could recall the accused living in another house for a while when he was about 6-7 years of age. He remembered that the house had mudbrick walls. Whenever he visited the ‘mudbrick house’ he was always with at least one of his siblings.
First incident
On RB’s account the first incident involving the accused occurred at the McLaren Vale house during the day time when he was staying there with his siblings when he was about six years of age.
RB testified that he and the accused were alone in the lounge room at the time. He believed his brother BB was outside playing and that his sister CB and his grandmother FW had gone out together somewhere, possibly church. RB said that while he was playing with some toys on the floor the accused, who was sitting in a lounge chair, asked him to come over and sit across his lap. RB said that he sat sideways on the accused’s lap so that his legs were hanging over one side of the chair. The chair had arm rests and was made of black leather (‘grandad’s chair’). At the time RB was wearing a top, short pyjama pants and ‘jocks’ underneath.
RB said that while he was sitting on the accused’s lap, the accused placed his right hand inside RB’s pants and underwear. The accused then rubbed the outside of his vagina in a circular motion for about 3-5 minutes using one or two fingers. RB said that he could not remember the accused’s fingers going in between the vaginal lips. When the accused eventually stopped, he told RB not to tell anyone about the incident. The accused then went into the kitchen and RB returned to playing with his toys.
In examination-in-chief RB said that there were other times when he would sit on the accused’s lap when nothing bad would happen. He estimated that this happened a couple of times. In cross-examination RB gave evidence that he would sometimes watch television with the accused and sometimes sit on his lap. He said that these interactions were sometimes requested by the accused but were voluntary at other times. In cross-examination RB was shown a photograph of a black leather chair (Exhibit D5) and identified it as the chair in which he was sexually assaulted.
If RB’s evidence was accepted the accused’s conduct would have constituted an indecent assault contrary to s 56 of the CLCA because he intentionally applied force against RB (rubbing RB’s vagina) in circumstances that ordinary right thinking members of the community would regard as indecent having regard to contemporary standards of morality (fondling the genitals of a child); and (taking hold of his wrist) in circumstances that ordinary right thinking members of the community would regard as indecent having regard to contemporary standards of morality (putting his hand on the accused’s genital area).
Second incident
RB testified that the next incident he could recall happened on an occasion when he and his brother BB had spent the night at the accused’s home at McLaren Vale. The children slept alone in separate bedrooms whilst the accused and FW slept in the main bedroom. RB could not remember how old he was at the time of the incident.
RB said that during the night he was woken by a person taking hold of one of his wrists which was hanging outside the bed. There was no light on in the room and he could not see the person responsible. The person then put RB’s hand inside the person’s pants and kept it there for a few minutes. RB said that he could feel hair and was ‘pretty sure’ he felt a penis. The person removed RB’s hand from his pants and then left the room.
After a few minutes, the person’s hand again grabbed hold of RB’s wrist and lifted it out of their pants. RB heard the door shutting but did not see where the person went because his eyes were closed. RB wondered who the person was but did not open his eyes at any stage and therefore did not see them. Neither RB nor the other person said anything throughout the incident. He was unsure as to the location of the person’s hand whilst his hand was inside their pants.
If RB’s evidence in relation to the second incident was accepted, then the accused’s conduct would have constituted an indecent assault contrary to s 56 of the CLCA because he intentionally applied force against RB (taking hold of his wrist) in circumstances that ordinary right thinking members of the community would regard as indecent having regard to contemporary standards of morality (causing a child to put his hand on an adult’s genital area).
RB said that the first and second incidents were the only occasions he could remember of the accused sexually abusing him at McLaren Vale. The only other incident he could recall happened in his home at Port Elliot, to which I now turn.
Third incident
RB said that one morning when he was about 10 years of age the accused drove him and his brother BB from McLaren Vale to a business in Victor Harbor where BB was working casually at the time. Presumably the two boys had spent the night with their grandparents. RB said that the accused must have dropped BB off at his place of work by 11am because that was when BB started his shift. The accused then drove RB to his home at Port Elliot where they remained until BB completed his shift that afternoon. Throughout that period neither his sister nor his mother were at home. He could not remember where they were.
RB said that after they arrived at his home they went into the lounge room and watched television. RB lay on a couch and the accused sat next to his feet. The couch was described at trial as a “boomerang couch”. The upholstery was creamy in colour and patterned with coloured squares.
RB said that while they were watching television the accused asked him to pull down his pants and underwear. After he pulled them down to his ankles, the accused used his hands to prise them apart. The accused then knelt on the floor or couch, placed his face between RB’s legs, opened the lips of RB’s vagina and looked inside it for a few minutes. Neither the accused nor RB said anything while that was happening. The accused then got up and told RB to pull up his pants. Although RB was unsure where the accused went, he remembered hearing a tap running and said the accused was probably washing his hands.

RB went on to testify that the incident on the boomerang couch would have occurred the day before he reported the accused’s alleged conduct to the police. If that is correct then, at the time of the third incident, RB would have been 12 years and 11 months of age and not 10 years old, as he had earlier testified.
If RB’s evidence in relation to the third incident was accepted, then the accused’s conduct would have constituted an indecent assault contrary to s 56 of the CLCA because he intentionally applied force against RB (holding and opening RB’s legs and touching RB’s vagina) in circumstances that ordinary right thinking members of the community would regard as indecent having regard to contemporary standards of morality (fondling and inspecting a child’s vagina for sexually prurient purposes).
Complaint
RB explained that for several months in early 2016 he attended Lesbian Gay Bisexual Transgender Intersex Questioning (LGBTIQ) group sessions conducted by Future Learning Options (FLO) at Victor Harbor. RB said that attendees received sex education and participate to “help each other out”. The sessions covered self-masturbation and masturbating another person. RB said that as a result of the sessions he felt he needed to tell someone about what the accused had done to him.
In the result he made a complaint to his friend SS the day before he reported his allegations to South Australian Police (SAPOL) on 19 April 2016. He said that he complained to SS at Goolwa at the ‘Saltwater Café’ but later explained that he in fact made the complaint in a park across the road from the café. The park contained a rose garden. He said that another friend E was with them at the time. However, E was not privy to the complaint because RB communicated the complaint to SS by way of mobile phone text messages.
In examination-in-chief RB was vague about the terms of the complaint he made to SS. He said that he told SS what the accused had done but could not remember what he told SS about what happened, when it happened or where it happened. In cross-examination RB said that he tried to tell SS what he was feeling and how it occurred. He said he told SS about the two incidents that occurred at the accused’s home.
RB said that SS encouraged him to speak to his mother about what the accused had done.
Together with SS and E, RB then went to the shops. He then went with SS to SS’s home where both of their mothers were present. RB then spoke to his mother about the accused.
On the following day, 19 April 2016, RB accompanied by his mother attended a police station and reported the accused in respect of this matter.
Inconsistencies with prosecution case
Before I turn to the other prosecution witnesses, it is appropriate to point out at this stage that RB’s evidence was inconsistent with the prosecutor’s opening address in two important respects. First, the prosecutor Ms M Barnes submitted that it was the prosecution case that the accused subjected RB to a course of sexual misconduct spanning years, however, RB was only able to remember four specific incidents. RB gave evidence of only three incidents. Secondly, Ms Barnes said, in relation to the first incident, that the accused put his hands inside RB’s underwear and touched the child’s vagina and then inserted his finger or fingers inside RB’s vagina. The complainant gave evidence that the accused touched the outside of his vagina but did not allege that his vaginal canal or labia majora was penetrated. He said he could not recall that happening.
DB
The complainant’s mother confirmed various background factual matters which were not in dispute.
Babysitting
DB separated from the father of her three children in about 2004 when RB was one year of age. Since the separation DB has raised the three children by herself. From the time that RB was about 6 years of age the accused assisted DB by babysitting the children.
During that period the accused would babysit all three children at his home. After DB moved to Port Elliot in 2010, he also babysat the children there. DB said that the accused continued to babysit RB until he was about 12 years of age, at which stage RB indicated that he did not want to visit him anymore.
DB said that the children would stay overnight at the McLaren Vale house, usually on a Friday and Saturday night. The visits often lasted two nights to give DB a chance to rest. They would also stay with the accused at McLaren Vale. DB said that all three children would usually stay with the accused. However, sometimes only one or two of them would stay with him.
Furniture
DB testified that the black leather chair in the photograph Exhibit D5, being the chair in which RB said he was sexually assaulted, was one of two identical chairs the accused had in the lounge room of his home at McLaren Vale. In cross-examination DB said that she could not say whether, as defence counsel put to her, the black leather chairs were acquired by the accused in February 2011, when he was residing at Willunga.
DB testified that in about 2012 she obtained a cream coloured ‘boomerang’ couch which she placed in the lounge room. She kept the couch for 12 months and then replaced it with a ‘rounded couch’. In cross-examination DB agreed that she acquired the boomerang couch in 2015 and replaced in in early 2016 with a brown, velvet lounge suite comprising two chairs and a sofa.
Report to police
DB confirmed that in April 2016 she and RB attended a police station and reported the accused. DB was not questioned about the events which led up to her attending the police station.
Other matters
DB gave evidence about other general matters including RB’s friendship with SS and RB’s attendance at LGBTIQ meetings or sessions. She said that RB had attended monthly meetings since 2013. However, she also said that the meetings were initially weekly and then became fortnightly. DB admitted that it was fair to say that her recollections about the meetings were somewhat hazy.
DB confirmed that when BB was at school he commenced working for a business at Victor Harbor on a part-time basis. He held the position for about 12 months and then became a full-time employee.
As earlier mentioned DB said that RB stopped visiting the accused’s home at McLaren Vale when he was 12 years of age, at which stage he indicated that he did not want to visit the accused anymore. However, DB said that despite not wanting to visit the accused anymore, the accused continued to see RB. She said he would watch RB play soccer, take him cockling at Goolwa and visit him on birthdays.
SS
SS was 13 years of age at the time of trial. He gave sworn evidence.
SS testified that RB was a close friend and that they spent a lot of time together.
SS confirmed that RB complained to him about the accused on 18 April 2016. He said the conversation took place at Goolwa in a park which was near the ‘rose garden’ and the ‘Saltwater Café’. SS said that they had a private conversation and later met up with a mutual friend. He did not name the friend but I assume the person was E. SS did not suggest that his conversation with RB in the park involved an exchange of text messages. I find that SS had an oral conversation with RB and that the exchange of text messages probably occurred when the two boys later caught up with E.
According to SS, RB said that he had wanted to tell people and had been thinking about ‘it’ for a long time. SS reassured RB that he could be trusted. RB then told him that he had been touched by his grandfather, “fingered” and told to “strip” in front of him. RB also complained that when he was younger his grandfather grabbed his hand, thinking he was asleep, and put it down his pants. RB told SS that the offending occurred at his grandfather’s house over a period of time when he was aged about 8 to 10 years.
SS said he had a further conversation with RB about the accused’s alleged sexual misconduct. He said that RB told him that the offending also happened in his home. SS gave confusing evidence as to when the second conversation occurred. He suggested at times in his evidence that it happened before RB went to the police but at other times his evidence suggested that it is likely to have occurred after RB went to the police.
Admissibility of complaint evidence
This a convenient point to deal with admissibility of the complaint evidence.
Section 34M of the Evidence Act 1929 (SA) governs the admissibility of such evidence. The section provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
It is clear from the terms of s 34M(4) that evidence of an initial complaint is admitted both to inform the trier of fact as to how the allegation first came to light and as evidence of the consistency of conduct of the alleged complaint. However, the complaint does not constitute evidence of the truth of the facts alleged by the complainant.
The expression ‘initial complaint’ includes information provided by way of elaboration of the initial complaint, whether provided at the time of the initial complaint or at a later time: s 34M(6). The court must be of the view that the evidence constitutes an initial complaint and that it is capable of demonstrating ‘consistency of conduct’ before it can be admitted.[11] However, it is a matter for the trier of fact to determine the significance (if any) of the evidence.
[11] See R v Maiolo (No.2) (2010) 109 SASR 46 at [109].
I accept the evidence given by RB and SS that RB made a complaint to SS at the park in Goolwa on 18 April 2016. Although there were differences between their recollections of the conversation I accept that each made an honest attempt to recall the discussion.
RB was vague about the terms of the complaint but I accept that he at least told SS of the two incidents, which I have referred to as the first and second incidents, that allegedly occurred at his grandfather’s home at McLaren Vale. I accept SS’s evidence as to the terms of the complaint RB made to him. RB’s statement that his grandfather grabbed his hand, thinking he was asleep, and put it down his pants generally accords with RB’s evidence in relation to the second incident. The statement that his grandfather had touched him is generally consistent with all three incidents. However, RB’s complaint that his grandfather “fingered” him and told him to “strip” does not accord with his testimony. RB never alleged in evidence that the accused had engaged in such conduct.
Notwithstanding that discrepancy, I am satisfied that the complaint made by RB to SS is capable of demonstrating consistency in conduct and satisfies the definition of an initial complaint for the purposes of s 34M. Defence counsel did not contend otherwise. However, I am not satisfied that the second conversation described by SS is admissible. I accept that SS gave truthful evidence in relation to the second conversation. I further accept that the conversation constituted information ‘provided by way of elaboration of the initial complaint’ making it prima facie admissible under s 34M as an initial complaint. However, I am not satisfied that the second conversation occurred before RB went to the police on 19 April 2016. I find that the conversation may have occurred later, indeed after RB gave his statement to police on 26 April 2016. In the circumstances, the second conversation cannot qualify as admissible complaint evidence.
Having determined that RB’s conversation with SS in the park is admissible under s 34M, it is necessary for me, as trier of fact, to determine the significance, if any, of the evidence.
RB’s complaint is consistent with his allegations and there may be a legitimate explanation for why he complained of having been ‘fingered’ and ‘told to ‘strip’ though he made no such allegations in his testimony. An obvious explanation is that he was in fact subjected to such conduct but had failed to recall it when giving evidence. Indeed, I note that the prosecutor Ms Barnes in her opening address alleged that during the first incident the accused inserted his finger or fingers in RB’s vagina. Furthermore, there may be cogent reasons why RB never complained to anyone earlier than he did. However, the complaint evidence is not inconsistent with fabrication. Other than explaining how RB’s allegations first came to light I have derived no meaningful assistance from the complaint evidence, one way or the other.
DEFENCE CASE
The defence called the accused, CC (accused’s stepdaughter) and SH (accused’s friend).
The accused (JW)
The accused was 71 years of age at the time of trial and had been retired for 20 years.
There is, as mentioned, no dispute that the accused and his second wife FW purchased the house at McLaren Vale on 5 December 2006 and sold the property on 1 September 2014.
The accused testified that for about three years from 2010 until 2012 he and FW resided at Willunga in a house that belonged to CC (FW’s daughter). During that period the accused and FW rented out the house at McLaren Vale. This was corroborated by the tender of bank statements relating to a joint bank account used by the accused and FW. The statements showed rent payments by the tenants into the joint bank account during the relevant period. In December 2012, when the tenancy came to an end, the accused and FW resumed living in their home at McLaren Vale. They remained in the house until it was sold in 2014 and then moved to Aldinga.
Contact with RB
The accused denied ever having sexually interfered with RB.
The accused agreed that he had a substantial amount of contact with his children which included taking them on various activities, attending birthday celebrations and the like and babysitting them. He said that he would babysit the children at their Port Elliot home and his home at McLaren Vale. Sometimes the babysitting involved the children staying the night at his home. He could not recall an occasion when RB stayed at McLaren Vale without, at least, one of his siblings.
Evidence relevant to alleged first incident
As mentioned RB testified that during the first incident he was sexually assaulted while sitting on the accused’s lap in the lounge room at McLaren Vale. He claimed that, at the time, the accused was sitting in the black leather chair depicted in Exhibit D5. This was denied by JW.
JW testified that the chair RB identified was one of two matching chairs he purchased from Harvey Norman. DB produced a tax invoice from Harvey Norman (Exhibit D9) in relation to the purchase of ‘black chairs’ and two footstools. The invoice indicated that the items were purchased on 28 January 2011 for delivery to his home at Willunga and were subsequently delivered or collected on 19 February 2011. The accused testified that he used the chairs at Willunga and took them with him when he moved back to McLaren Vale.
The accused did not dispute that there were occasions when RB sat on his lap. He said this occurred during the time RB was attending primary school when he was about 6-8 years of age. The accused also said that on more than one occasion RB sat on his lap after he had acquired the black leather chairs and had moved back to McLaren Vale in 2014. The defence contended that the tax invoice served to show that the accused could not have sexually assaulted RB in the black leather chair when he was six years of age, as RB deposed.
Evidence relevant to alleged second incident
The accused denied taking hold of RB’s hand while he was in a bedroom at McLaren Vale and putting the boy’s hand on his penis. He further suggested that RB wrongly identified, on a sketch plan of the house (Exhibit P2), the bedroom he used when he slept the night. Even if the accused’s evidence on this topic is true, the discrepancy is of a minor nature.
Evidence relevant to alleged third incident
The accused agreed that when BB was about 15 years of age he worked part time on Saturdays for a business at Victor Harbor. He recalled an occasion when he drove BB and RB from his home at McLaren Vale to Victor Harbor where he dropped off BB at his place of work. Consistent with RB’s evidence he said that he then drove RB to his home at Port Elliot and that DB and CB were not there. He said that at some stage he took RB to a cake shop in Port Elliot where they waited for BB to finish his shift. He agreed that while they were at the house he may have sat on the boomerang couch with RB but denied asking RB to pull his pants down and then examining RB’s vagina.
CC
CC is the daughter of FW and stepdaughter of the accused.
CC testified that she owned a house at Willunga which the accused and her mother lived in from 30 June 2010 (FW’s birthday) until November 2012. She confirmed that they then returned to live in their house at McLaren Vale.
SH
SH gave character evidence in relation to the accused.
SH described herself as FW’s best friend and said that she has known the accused since FW married him in 1997. She said that over the years that she regularly saw them and often stayed with them at their home. She said that she knew all of their friends.
In examination-in-chief SH was asked about the accused’s reputation. She said that he had a reputation for ‘honesty’ and for being ‘a very hard worker’, ‘extremely polite’ and a ‘good husband’ to FW.
Relevance of character evidence
Evidence of an accused person’s good character, if accepted, may be relevant in two ways: first, as a factor affecting the likelihood of the accused committing the charged crime; and, secondly, in assessing the credibility of the accused’s evidence and his or her denials of the prosecution case.[12]
[12] See R v Trimboli (1979) 21 SASR 577 at 577-578 (King CJ).
The mere fact that a person has been of previous good character cannot alter proven facts of guilt, it can only help the trier of fact in determining whether or not those facts have been proven. Furthermore, even people of good character can commit a crime for the first time. Indeed, it is a notorious fact that many paedophiles in the community hide behind masks of decency.
ANALYSIS OF EVIDENCE
Burden of proof

The accused was to be presumed innocent of the charged offence. The prosecution carried the onus of establishing his guilt beyond a reasonable doubt by establishing the essential elements or ingredients of the charge to that standard. The presumption of innocence applied unless and until the prosecution discharged that onus. The accused was entitled to the benefit of any reasonable doubt and did not have to prove his innocence.[13]
[13] Howe v R (1980) 32 ALR 478 at 483.
In the present case the prosecution case was based on the testimony of RB. The accused could not be found guilty of the charge unless I accepted RB’s evidence beyond a reasonable doubt.
Forensic disadvantage.
Section 34CB(1) of the EA abolishes a trial judge’s common law duty to give a Longman[14] warning. However, where the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a ‘significant forensic disadvantage’ to the accused, the trial judge must: (a) explain to the jury the nature of the forensic disadvantage; and, (b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence (s 34 CB(2)).
[14] Longman v The Queen (1989) 168 CLR 79.
The section is expressed in terms which suggest that it is not intended to apply to a judge sitting without a jury. However, the existence of circumstances that would give rise to the obligation to give a warning to a jury may also be relevant to an assessment of evidence by a trial judge sitting without a jury.[15] In my view, it is appropriate to have regard to the forensic disadvantages that confronted the accused in this case. I do not regard them as insignificant.
[15] R v Bakhuis (2012) 112 SASR 536 at 547-8 [58].
It is unclear on RB’s evidence as to when the accused’s alleged offending came to an end. However, it is reasonably possible that it stopped sometime up to 2-3 years, maybe longer, before RB reported the matter to police. A delay of that order is not long in comparison to many delays that occur in many sexual cases that come before the courts. However, it is necessary to bear in mind that some of the offending of which he complained may have taken place when he was as young as six years of age, or possibly younger.
It must be acknowledged that the accused has been hampered by the loss of a chance to explore the circumstances of the individual acts of offending; to identify the occasions of the alleged offending; to make a defence other than a simple denial; and, to test the events that may have affected RB’s recollection or reliability. If the accused had been interviewed at a time more proximate to the alleged offence then, irrespective of whether or not he chose to answer questions, his attention would have been drawn to the precise nature of RB’s allegations. As a result, he would have been in a better position to provide a relatively contemporaneous recollection of the nature of his interaction with RB at the time of the alleged incidents.
Such factors are common to many cases involving charges of maintaining an unlawful sexual relationship with a child. It is clear that Parliament considered that the existence of such factors should not be an automatic bar to conviction under s 50(1). However, that policy does not derogate from a judge’s obligation to take into account forensic disadvantages suffered by an accused person. In accordance with that obligation I have taken into account the factors of forensic disadvantage to which I have referred.
Of course the factors of the problems created by the effluxion of time may also have impacted adversely on the ability of RB to provide detailed and precise recollections of the incidents in question. However, it must be remembered that the prosecution carries the onus of proving that RB gave truthful and reliable evidence.
Criticisms of RB’s evidence
Counsel for the accused, Mr Ey, submitted that the prosecution had failed to prove beyond reasonable doubt that RB was a truthful and unreliable witness. Mr Ey submitted that there were internal inconsistencies in RB’s testimony; inconsistencies between his testimony and his statement to police; and, inconsistencies between his evidence and the evidence given by other witnesses.
The primary points Mr Ey emphasised were as follows:
·RB gave evidence of three specific incidents, whereas he had previously alleged four specific incidents.
·RB testified, in relation to the first incident, that the accused rubbed the outside of his vagina, whereas he had previously alleged digital vaginal penetration in addition to external vaginal touching.
·RB testified that the first incident occurred in the lounge room of the accused’s home at McLaren Vale while the accused was sitting on the black leather chair depicted in Exhibit D5 and at a time when RB was about 6 years of age. However, there is evidence, which I accept, that that chair was one of two chairs purchased by the accused in early 2011 when he was living at Willunga. The chair was placed in the house at McLaren Vale after the accused returned to those premises back in November or December 2012 when RB was 9 years of age.
·RB testified that to the best of his recollection the offending took place in the period he was aged 6-10 years but in his statement to police he said he was aged 8-10 years.
·RB testified that he did not think that, after he complained to SS in the park on 18 April 2016, he further discussed the incidents with SS which was inconsistent with the evidence given by SS.
·RB was vague, in examination-in-chief, about the terms of the complaint he made to SS and mentioned for the first time in cross-examination that he told SS about the first two incidents. Furthermore, there were differences between the evidence given by RB and SS as to the terms of the complaint.
None of these criticisms caused me to think that RB was necessarily untruthful. The alleged discrepancies are not inconsistent with RB having done his best to give truthful evidence about matters that have become blurred in his mind due to the passage of time.
Mr Ey further relied upon a passage in RB’s statement to police in which he said that at the LGBTIQ meeting, which motivated him to speak to SS, he learned about masturbation and people touching each other which “reminded me of all the stuff that grandad did”. Mr S Ey, suggested that RB had used the word “reminded” because his memories of sexual abuse were “formed” as a result of matters discussed at the meeting. In other words, as I understood Mr Ey’s argument, the meeting may have implanted in RB’s mind a false memory or that his explanation for why he had decided to speak up at that late stage was simply a lie. These insinuations were denied by RB. He said that he did not know why he used the word “reminded” and that the meeting merely prompted him to think about the offending and to discuss it with SS. RB’s explanation was not implausible.
Conclusion
I was reasonably impressed by RB. He was pleasant and gave his evidence in a straight forward manner. There was no hint of prevarication or exaggeration on his part. I do not accept that he was necessarily untruthful. Indeed, he may well have told the truth.
On the other hand the accused was also a sound witness. There was nothing inherently implausible about his account. He also stood up well under cross-examination.
After a careful consideration of the evidence, I was left in a state of uncertainty. Put simply, I have been unable to determine where the truth lies. The prosecution of course carries the onus of proving JW’s guilt beyond a reasonable. Accordingly, he must be found not guilty.