R v W, LS - [2015] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, LS
Criminal Trial by Judge Alone
[2015] SADC 23
Reasons for the Verdicts of His Honour Judge Cuthbertson
6 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
INDECENT ASSAULT - RAPE
Accused charged with three counts of Indecent Assault and two counts of Rape against step-daughter.
Verdict: Accused not guilty of all offences.
Evidence Act 1929 s 34M, referred to.

R v W, LS
[2015] SADC 23

The defendant is charged with three counts of Indecent Assault and two counts of Rape of his step-daughter.
She is aged 31 years having been born on 6 January 1984. Her mother and her biological father separated when she was aged 2 years, but when she was aged 9 her mother met the defendant and married him in 1994 about a year later.
The complainant says that the defendant was in all respects a proper step-father to her until she turned 13 years of age when his behaviour towards her changed. He would act towards her in an overtly sexual fashion and committed various acts of sexual impropriety against her.
When she was aged 17 further sexual activity occurred between her and her stepfather over a lengthy period of time. By this stage, as she had attained the age of consent that issue becomes relevant.
The complainant denies that any of the sexual activity against her was consensual.
The defendant did not give evidence. The defence, however, point to certain factors which they say cast doubt on the complainant’s claim that she was not consenting and hence whether any offending is proved from the time she was 17 years old.
The defence argues that if I should have some doubts about the issue of consent and the complainant’s claimed lack of consent concerning the activities allegedly occurring after she was 17 years old it should necessarily colour my assessment of her evidence in the period before she was 17 and when consent was no defence for the defendant.
I do not propose to discuss the allegations and the evidence in detail having regard to the decision that I feel constrained to make.
I should say at the outset that there was nothing wrong or inherently lacking in the evidence the complainant gave. There were, however, a number of issues that arose during cross-examination of the complainant which tend to raise a possibility that the sexual activity deposed to by the complainant was consensual.
The complainant would have had strong reasons, namely her relationship with her mother and husband, to deny any suggestion she was conducting consensual sexual activities with her step-father.
After she turned 18 years old the complainant remained living at the defendant’s premises for a period of time when sexual activities were allegedly occurring.
Taking into account the emotional and psychological ties which may have had a tendency to keep her attached to her mother and her home I am concerned that, given her social competence and her ability to hold down responsible jobs for significant employers it indicates to me that she is socially competent and reasonably intelligent, such that there is a reasonable probability that she could have extracted herself from her environment and moved elsewhere in order to be safe from the defendant if she wanted to. This calls into question the issue of consent.
On one occasion the complainant indicated that the defendant phoned her and required her to shave her vagina in preparation for when he came home. She claims she rang the police and complained and was told that because she was 18 years old nothing could be done immediately and essentially she would have to stay at the premises and attend at the police station to make a complaint.
The complainant failed to attend the police station and made no further complaint.
In my view this is an initial complaint within the meaning of s 34M of the Evidence Act 1929. Although the particular offence had not yet occurred i.e. concerning the shaving of the vagina, the complainant says she disclosed some previous sexual abuse.
I bear in mind the provision of s 34M(2) of the Evidence Act which provides as follows:
34M—Evidence relating to complaint in sexual cases
(1)...
(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. (my underlining)
The lack of complaint “of itself” is not of probative value in relation to the complainant’s credibility or consistency of conduct. It is with this background of her social competence and the taking of tentative steps to complain and the failure to proceed further that I am concerned. I have doubts too about the responses she says she received from police which are inherently unlikely. Her failure to proceed with the complaint once the initial steps had been taken causes me disquiet.
I am further concerned that a search revealed no records in the police department that a complaint had been made.
The complainant eventually moved out of the defendant’s home into a unit in Gawler South. This tends to confirm my view that she probably had the social and economic skills to move out whenever she wanted to.
She claims that the sexual activity by the defendant continued while she lived in the unit with him attending on various occasions and threatening to cause trouble. The defendant is a large person, and not easy to miss. It concerns me that there is no corroborative evidence from any neighbour as to a person matching that description being heard in the vicinity of the unit and behaving in a threatening manner as described by the complainant. I am concerned also that there is the possibility she could simply lock the door and prevent him from entering her house or take other remedial steps like informing the police or another person.
It is true that many victims of sexual exploitation are not able, through fear of the perpetrator, or his overwhelming influence, to take the necessary steps to avoid the exploitation. I have considered that possibility but still cannot avoid a feeling of unease.
Again, it is not the lack of complaint “of itself” that is of probative value. It is the fact that here a socially competent person does not take any of the steps to protect herself that one might expect if the sexual activity was as she asserts, given her relative freedom to act which I find to exist as a reasonable possibility.
I am further concerned that, notwithstanding that the complainant says sexual activity was occurring in a non-consensual fashion, she elected to move back into the defendant’s premises. It is true that she claims he asserted that he would provide her with a granny flat type arrangement and that that was in fact done. Nevertheless, the fact that she moved in and thus put herself within his power again causes me further concern as to whether the relationship was truly non-consensual.
At this stage the complainant commenced a relationship with a friend. Yet she claims the sexual activity between the defendant and herself continued notwithstanding that this person was someone to whom she could have unburdened herself.
In March of 2007 she met her present husband, S, and they moved into premises next door to the defendant. It again concerns me that when the complainant is asserting that she continued to have a non-consensual sexual relationship with her step-father she should move next door with her fiancé rather than to a location well out of his reach.
Even when the defendant and complainant’s mother moved to new premises at Blakeview, the complainant attended the property at the request of the defendant and further sexual abuse allegedly occurred.
The complainant explains that her acquiescence was enforced by ongoing threats made against her mother and brother. I do not say this is not true but her claimed acquiescence concerns me sufficiently to cause me to have disquiet.
The conduct alleged against the defendant of sending photos of himself by mobile phone, if true, was dangerous in the extreme. It would readily have provided corroborative evidence should the complainant have complained. If the defendant thought the complainant was not a cooperative partner, he was placing himself very much in her power.
Further, I note also that notwithstanding that non-consensual sexual conduct was being alleged against the defendant in June 2006 the complainant changed her surname to that of the defendant.
The complainant has a history of making a number of complaints to the police about various matters but at no stage did she take the opportunity to complain about the defendant’s alleged sexual misconduct
A final complaint leading to the taking of a statement did not occur until August 2012.
My disquiet is caused by the lack of complaint in the context of the complainant having had the opportunity and taking up the opportunity to complain in relation to other matters and, in my view, being fully aware and capable of using the police as a source of redress of wrongs.
The complainant finally told her husband on 28 December 2009 of the defendant’s behaviour. She claims this was a result of him confronting her about some pictures he had found on the defendant’s computer. She only told him of offences having occurred from when she was 18 and not about offences having occurred earlier. I find this perplexing as one might have expected her to unburden herself with the entire history.
I find it strange also that, even after making the disclosure to her husband, the following day the complainant went to the defendant’s house and submitted to a further alleged sexual assault.
Further matters of concern to me are that she gave a different description to the police about the sexual incident of September 2006 to the description given in Court.
The complainant finally complained to the police on 10 August 2012. Yet even on that occasion she did not pursue the complaint.
While living with her boyfriend she claims she had to lie to him on a number of occasions and make up excuses to visit the defendant for non-consensual sexual purposes.
When there was a confrontation with her husband concerning things he saw on the defendant’s laptop the complainant initially denied all knowledge to him about any sexual activity. There was a similar confrontation with respect to the text messages received by the complainant from the defendant.
I am not saying that I disbelieve the complainant’s allegations. I am sufficiently concerned however that I cannot conscientiously reach the state of mind that I am satisfied of the guilt of the defendant beyond reasonable doubt.
My lack of satisfaction beyond reasonable doubt extends also to the evidence of offending occurring when the complainant was a child as the allegations depend entirely on the credibility of the complainant.
There will be a verdict of acquittal on all counts.