R v W, J - [2011] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, J
Criminal Trial by Judge Alone
[2011] SADC 91
Reasons for the Verdict of His Honour Judge Millsteed
30 June 2011
CRIMINAL LAW
Trial by judge alone - accused charged with Unlawful Sexual Intercourse with a person under 14 contrary to s 49(1) of the Criminal Law Consolidation Act 1935 - complainant four years of age at the time of the alleged offence and six years of age at the time of trial - permitted to give unsworn evidence pursuant to s 9 of Evidence Act 1929 - no evidence given by complainant in relation to alleged offence - prosecution case based entirely on out of court statements made by complainant to mother, step father and counsellor that were admitted pursuant to s 34 CA, Evidence Act - accused gave sworn evidence - verdict: not guilty.
Criminal Law Consolidation Act 1935 s 49(1); Evidence Act 1929 s 9, s 34 CA; Juries Act 1927 s 7, referred to.

R v W, J
[2011] SADC 91
Introduction

The accused is charged on information with the offence of Unlawful Sexual Intercourse with a Person Under 14, contrary to s49 (1) of the Criminal Law Consolidation Act, 1935. The accused pleaded not guilty and elected to be tried by a judge, sitting without a jury, pursuant to s 7 of the Juries Act 1927.
Background
The complainant (“C”) was born on 5 November 2004. The charged offence is alleged to have been committed on the evening of 31 October 2009 when she was almost 5 years of age. At the time she lived with her mother (“M”) and her stepfather (“SF”). The accused and his partner (“P”) knew the complainant and her family. Indeed, his partner and the complainant’s mother were close friends. The accused and P lived in a semi-detached sleep-out at the back of a house occupied by her parents.
At about 7pm, on 31 October 2009, M was admitted to the Women’s and Children’s Hospital (“the hospital”) to give birth to her second child. He was born the next day. Before attending hospital M arranged with P for C to stay with her and the accused that night. The complainant was taken to their home in the course of the afternoon and left in their care.
On 1 November P, following the birth of M’s child, attended the hospital and returned C to her mother and stepfather.
On or about 3 November 2009 M was readmitted to hospital. She was subsequently discharged on 10 November 2009. On the same day C spent some time with the accused and P as part of a delayed celebration for her birthday. She was collected that night from the accused’s home by her stepfather and driven home. During the drive home she is alleged to have complained that the accused put his finger in her vagina on the occasion she spent the night at his home. C is alleged to have elaborated on the complaint to her mother following her arrival home.
On 11 November 2009 the incident was reported to the police. On the same day the complainant was examined by her general practitioner, Dr John Campbell. She was examined again on 13 November 2009 by Dr Janine Kelly from Child Protection Services (“CPS”). The medical evidence neither proved nor disproved the alleged act of digital intercourse.
On 16 December 2009 Ms Julie-Ann Donovan, a social worker from CPS conducted a video-taped interview with the complainant. C repeated her allegations against the accused.
The accused was arrested on 2 February 2010 by Constable Morton. He declined to answer questions.
At trial the prosecution called the following witnesses: M, SF, Dr Campbell, Dr Kelly, Ms O’Donovan, Constable Morton and the complainant. The accused gave evidence and called his partner.
The prosecution case
Voir dire issues
At the time of trial C was only 6 years of age. I conducted an inquiry to determine whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence pursuant to s 9(1) of the Evidence Act 1929. I considered that she did not have sufficient understanding. However, I was satisfied that she should be permitted to give unsworn evidence under s 9(2) of the Evidence Act and so ruled.
I ruled, over the objection of defence counsel, that each of the statements made by C to her stepfather, mother and Ms Donovan was admissible under s 34CA of the Evidence Act as evidence that could be used to prove the truth of the facts asserted in the statement.
Complainant’s evidence
The evidence C gave in examination-in-chief was very limited. She gave evidence of her age, the school she attended and details of her family. No attempt was made to explore with her the circumstances of the alleged offence. Instead, the prosecution sought to rely upon her out of court statements that were admitted under s 34CA.
Her cross-examination was also very short. In essence, it was confined to attempting to establish that there was an occasion after 31 October 2009 (date of alleged offence) and before 10 November 2009 (date of first complaint) when the complainant went to the beach with the P and later went to the accused’s house for a short time were she sat on the couch next to him. C agreed that that occurred.
Mr Miller, counsel for the accused, submitted that C’s willingness to sit next to the accused was behaviour inconsistent with the accused having digitally penetrated her 10 days earlier. I do not accept that such behaviour on the part of very young child is necessarily inconsistent with the truth of her allegations.
Stepfather’s evidence .
SF confirmed that on 31 October 2009 C stayed the night at the accused’s home and that she was returned to her mother at the hospital on the following day. He further confirmed that on 10 November 2009 (the day that M was discharged from hospital on the second occasion) he collected C from the accused’s home and drove her home, stopping on the way to purchase food from Hungry Jack’s.
SF testified that during the drive home C spontaneously said: “When I was at [the accused’s] house [he] stuck his hands down my pants and stuck his finger in my fanny and it hurt because he had long fingernails”. SF said that C appeared serious when she made the complaint.
Upon their arrival home SF went into the main bedroom where P was in bed with her new child. SF said that he told the complainant to tell her mother what she had said to him in the car. He said he stayed in the room for a short while and then went into the kitchen to get a drink.
Mother’s evidence
P agreed with the chain of events that took place on 31 October -1 November 2009 as described by SF. In relation to the events on 10 November she confirmed that she was in the bedroom with her baby when SF returned home with C. Consistent with SF’s evidence, M said that he asked C to tell her mother what she had told him. According to M, her daughter said that the accused had put his hand down her pants and put his finger in her fanny. Her daughter also told her that the incident occurred when she was staying at the accused’s home at a time when she was about to go to sleep on the couch. P was in the kitchen at that stage. C said that she wanted to scream but did not.
Medical evidence
On 11 November 2009 the alleged offence was reported to the police. On the same day C’s mother and stepfather took her to their general practitioner, Dr John Campbell. He examined the child’s genital area and saw no external signs of injury. He also parted the vaginal lips but observed no obvious injury to the hymen. He thought that the opening in the hymen was more open than often would be seen in a pre-pubertal child. However, that was not necessarily indicative of digital penetration.
On 13 November 2009 C was examined again by Dr Janine Kelly from CPS. She performed a more detailed examination of the inside of the child’s vagina. Dr Kelly found no abnormality but pointed out that digital penetration would not necessarily result in an injury to the child’s hymen or some other area of the vagina less still an injury that would have been detectable some two weeks later when Dr Kelly conducted her examination.
As I earlier indicated the medical evidence neither proved nor disproved the alleged act of digital intercourse.
Donovan’s evidence
On 16 December 2009 C was interviewed by Ms J. O’Donovan from CRPS.
At the outset C was asked some general questions including her understanding of the names of the male and female genitalia. She explained that she called the vagina a “fanny”. She initially said that no-one had touched her fanny or had done “bad stuff” to her. However, as the interview progressed C disclosed that she could recall staying with P and the accused and volunteered that he was “really bad”. When asked why he was bad C complained that the accused put his hands down her pants and put his finger in her fanny. She said that the incident hurt because the accused had sharp nails. She said that while the accused was doing that he remarked that she was going to have a baby brother and that she should go to sleep. She added that she was on the couch and that P was in the kitchen at the time.
Defence case
The accused
The accused testified that C had stayed with him and P overnight at their home on 3 - 4 occasions before 31 October 2009. He said that he had a good relationship with her and described her as “great”.
The accused said that on the night of 31 October 2009 C spent a large part of the evening playing and watching television in the sleep-out. He agreed that there were times when he was left alone with C but in the main P was with them. He said C slept the night on the couch and was put to bed at about 8-9pm. Both the accused and P said goodnight to her and remarked: “Go to sleep and tomorrow morning you’ll have a baby brother”. Both he and P went to bed at about midnight. The accused said that at some stage before P went to bed she went inside the main house to go to the toilet. Although he had no specific recollection of having done so he believed that he may have also gone outside to have a cigarette as was his habit. He denied that he sexually assaulted C during the night or on any other occasion.
The following morning P woke C and took her to the hospital after breakfast. He did not notice anything about C’s behaviour that morning which was unusual.
In relation to C’s description of his fingernails the accused said that he had a “bung” fingernail but insisted that he always kept them trimmed.
The accused confirmed that on 7 November 2009 P took C to the beach and later brought her back to their house. He said that she stayed about 5-15 minutes and sat next to him and watched television.
The accused’s partner
P testified that C was dropped off at her home at about 4.30pm on 31 October 2009 and spent most of the afternoon and evening watching television in the sleep-out. At about 6.30pm, P went inside the kitchen in the main house and collected the evening meal which her mother had prepared for them. She said that she left C with the accused in the sleep-out but insisted that she was absent for only a few minutes.
P claimed that it was possible to see the couch in the sleep-out by looking through the kitchen window and the windows at the front of the sleep-out. She had no memory of looking into the sleep-out from the kitchen that night. However, the implication of her evidence was that the accused would have been very brazen to have sexually interfered with C on the couch given that P may have been in a position to see him from the kitchen.
P said that at about 7.30pm she took C into the main house and gave her a bath. At about 8.30pm she put the child to bed on the couch and remarked: “the sooner you go to bed, the sooner you will have a brother in the morning”. She and the accused went to bed together at about 10-30pm. P could not recall leaving the sleep-out but said that she may have gone inside the house to get a drink. She had no recollection of either her or the accused getting up during the night.
P said that she got up at about 7.30am the following day. She woke up C about 30 minutes later and then, after having breakfast, drove C to the hospital where she was returned to the care of M and SF. P remained at the hospital until after M gave birth at about 4pm. There was nothing unusual about C’s conduct on that day or on 7 November 2008 when she took C to the beach and later back to her home where she spent time sitting on the couch next to the accused.
Findings
The prosecution bears the onus of proving the accused’s guilt beyond reasonable doubt. The complainant gave unsworn evidence. No attempt was made to examine or cross-examine her before me about the critical events. The prosecution’s case depends upon an acceptance by me of the truthfulness and reliability of C’s out of court statements.
I was impressed by C’s demeanour in the witness box and the way she presented during the interview with Ms O’Donovan. Her allegations against the accused were not the product of leading questions. They unfolded naturally without any form of prompting. I also accept that C made the complaints attributed to her by her mother and stepfather. The fact that she did not make a complaint until 10 November 2009 does not undermine her credibility in my eyes.
On the other hand the accused also gave credible evidence. So did his wife. There was nothing inherently implausible about their accounts. The combined effect of their evidence was that the accused was alone with the child for only a brief time when P collected the evening meal and possibly when she went to the toilet. Their evidence did not preclude the accused having an opportunity to commit the alleged offence. However, the opportunities were very limited.
Furthermore, the complainants unsworn evidence and unsworn out of court statements stand alone. There is no independent evidence which supports them. That is not necessarily fatal. However, the onus is on the prosecution to prove the accused’s guilt beyond reasonable doubt. I am not satisfied that the prosecution has proved his guilt. I am not satisfied that the accused penetrated the child’s vagina with his finger or that he indecently touched her in any way.
Accordingly, I find the accused not guilty of the charge of unlawful sexual intercourse. I also find him not guilty of the alternative offence of indecent assault which is available pursuant to s 79 of the Criminal law Consolidation Act 1935.