R v Wasley - [2017] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WASLEY
Criminal Trial by Judge Alone
[2017] SADC 135
Reasons for the Verdict of Her Honour Judge Schammer
5 December 2017
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
Accused charged with one count of persistent sexual exploitation - whether accused mentally unfit to stand trial pursuant to s 269H of the Criminal Law Consolidation Act - accused suffering from Vascular Dementia - neuropsychological assessment and psychiatric examination - whether accused is able to understand or respond rationally to the charge and the allegations upon which it is based - whether accused is able to exercise (or give rational instructions about the exercise of) procedural rights - whether accused able to understand the nature of the proceedings or to follow the evidence during the course of the proceedings.
Held: Accused mentally unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA) s 269A(1), s 269H, s 269I, s 269M, referred to.
R v Leach [2002] SASC 321; R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230; Ngatayi v The Queen (1980) 147 CLR 1; R v Stevens (2010) 107 SASR 456; R v Taylor [2014] SASCFC 112, considered.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Accused voluntarily submitted to a record of interview with police - accused not placed under arrest - accused warned as to his right to silence - whether accused understood that right - application for the audio visual recording of the record of interview to be excluded from evidence in the exercise of the fairness discretion.
Held: Application refused. The admission of the audio visual recording of the record of interview into evidence is not unfair to the accused.
Summary Offences Act 1953 (SA) s 75, s 79A; District Court (Criminal) Rules 2014 r 49, referred to.
R v Arnott (2009) 26 VR 490; R v Kageregere [2011] SASC 154; R v D, JE [2017] SADC 83; The King v Lee (1950) 82 CLR 133; R v Pfitzner (1996) 66 SASR 161, considered.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The trial proceeded on the objective elements - accused was the god-father of the complainant's mother - alleged offending over a period spanning eight years.
Held: Objective elements not found proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 5, s 20, s 49, s 50, s 56, s 57(2), s 269M(B)(2), referred to.
R v Doyle [1957] SASR 182, considered.

R v WASLEY
[2017] SADC 135
Introduction

Ronald John Wasley is charged on an Information dated 9 November 2015 with one count of persistent sexual exploitation of CF, a person under the age of 17 years, over a period of not less than three days between 11 March 1998 and 11 March 2006 at Elizabeth Downs and at Kilburn.
There is an issue as to whether or not Mr Wasley is mentally unfit to stand trial pursuant to s 269H of the Criminal Law Consolidation Act 1935 (‘the Act’). Counsel for the accused exercised his independent discretion under s 269W of the Act and elected for that issue to be tried by judge alone.
Pursuant to s 269M of the Act, I determined to first proceed with the trial of Mr Wasley’s mental fitness to stand trial.
After hearing the relevant evidence and representations put to the court on that issue, I found that it had been established on the balance of probabilities that Mr Wasley was mentally unfit to stand trial. My reasons for that decision follow.
On a further election for trial by judge alone, I heard evidence and representations relevant to the question as to whether a finding should be recorded under s 269M of the Act that the objective elements of the offence are established.
For the reasons that follow, I am not satisfied that the objective elements of the offence are established beyond reasonable doubt.
I find Mr Wasley not guilty of the offence as charged.
Fitness to stand trial
The law
Section 269I of the Act provides that a person is presumed to be mentally fit to stand trial unless he or she rebuts such a presumption.
It is not sufficient to rebut that presumption simply by the fact that a doubt is raised as to the person’s fitness, rather I am required to determine whether it has been established on the balance of probabilities that Mr Wasley is mentally unfit to stand trial.[1]
[1] R v Leach [2002] SASC 321 at [10] and the specific wording of s 269M(A)(3) of the Act.
Pursuant to s 269H of the Act:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a) Unable to understand, or to respond rationally to, the charge or the allegations on      which the charge is based; or
(b) Unable to exercise (or to give rational instructions about the exercise of) procedural         rights (such as, for example, the right to challenge jurors); or
(c) Unable to understand the nature of the proceedings, or to follow the evidence or the         course of the proceedings.
It is accepted that s 269H of the Act restates the common law test, which requires a consideration of a person’s ability to:
(1)     Understand the nature of the charge(s);
(2)     Plead to the charge and exercise the right of challenge as to jurors;
(3)     Understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence charged;
(4)     Follow the course of the proceedings, so as to understand what is going on in the      general sense;
(5)     Understand the substantial effect of any evidence that may be given in support of     the prosecution against them; and
(6)     To make a defence or answer the charge.[2]
[2]    R v Presser [1958] VR 45 as per Smith J; Kesavarajah v The Queen (1994) 181 CLR 230.
As to the final criteria, a person who is represented needs to be able to do this through counsel by providing any necessary instructions and letting counsel know his or her version of the facts. The person must have sufficient capacity to be able to decide what defence he or she will rely upon and to make that defence and the facts relied upon known to their counsel and the court.
The test is to be applied in a reasonable and common sense fashion.
In determining a person’s fitness to stand trial, the complexity of the charge faced by the person is a relevant consideration, as is whether or not the accused is represented by counsel.[3]
[3] R v Taylor [2014] SASCFC 112 at [13].
It is inappropriate to confuse an accused’s inability to understand the complexities of the law, on the one hand and the facts of the case on the other.
In Ngatayi v The Queen[4] Gibbs, Mason and Wilson JJ said:
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence ... In deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence.
[4] (1980) 147 CLR 1 at 9.
Mr Wasley
Mr Wasley is now aged 70 and resides in a nursing home at the Karoonda Hospital. He is in receipt of an aged pension.
Mr Wasley appeared at the commencement of the investigation as to his fitness to stand trial by way of video link from the Karoonda Hospital and was not physically present in court at any time during the trial.
In 2013 Mr Wasley was diagnosed as having a frontotemporal and vascular dementia following an admission to the Modbury Hospital.
The results of an MRI of the brain undertaken on 20 May 2013 were reported to include evidence of ‘some periventricular white matter changes in-keeping with small vessel ischaemia. Similar small foci within the pons. Appearance is in-keeping with cerebral atrophy beyond that expected for the patient’s age’.
At the same admission Mr Wasley was diagnosed with hypertension, type II diabetes and hypercholesterolemia.
Mr Wasley also suffers from ischaemic heart disease and a degree of heart failure and has suffered heart attacks in the past.
Mr Wasley has no history of prior offending and as at 13 January 2015 had never been arrested for offending.
Medical evidence
Counsel for Mr Wasley called evidence from Dr E Scamps, Clinical Neuropsychologist and Dr H Nguyen, Consultant Psychiatrist.
Both Dr Scamps and Dr Nguyen expressed the opinion that Mr Wasley was mentally unfit to stand trial having regard to the criteria as set forth in s 269H of the Act.
There was no medical evidence led to the contrary.
As outlined by Sulan J in R v Stevens[5] and reiterated by Stanley J in R v Taylor,[6] in considering a person’s fitness to stand trial, while the trier of fact is to have regard to any expert medical or psychological evidence on this issue, that is but one factor to consider. The whole of the evidence as to the facts and circumstances relevant to the issue as to fitness to stand trial must be considered.
[5] (2010) 107 SASR 456 at 469.
[6] [2014] SASCFC 112 at [34].
Dr Scamps saw Mr Wasley on 9 November 2016 and thereafter produced a report dated 15 November 2016, which report was tendered. Dr Scamps estimated she spent approximately two hours with Mr Wasley at that time and confirmed that was the only occasion she had met with him.
Dr Scamps had available certain materials relating to Mr Wasley as set forth on pages 1-2 of her report. Those materials included a copy of the transcript of a record of interview conducted between Mr Wasley and the police on 13 January 2015 (’the ROI’). Dr Scamps had not seen the audio visual recording of the ROI.
Dr Scamps described Mr Wasley’s presentation at her assessment as that of a frail elderly man, who appeared older than his stated years, whose movements were slow and unsteady. He had a bandage on his head covering an injury from a recent fall. Although Dr Scamps explained to Mr Wasley the purpose of the interview at its outset, during the interview Mr Wasley asked Dr Scamps when she was going to look at his head, indicating to her that he had forgotten that purpose.
She said that at times during the interview Mr Wasley appeared to doze off, in particular during that part of the interview where Dr Scamps asked him about the seriousness of the alleged offending. Dr Scamps deliberately asked mostly ‘closed’ questions of Mr Wasley, so as to elicit a ‘yes’ or ‘no’ response as she found that his responses to open questions were quite brief and lacked elaboration.
At the commencement of the interview Dr Scamps explained to Mr Wasley the fact that the usual confidentiality that applied to discussions between a patient and doctor did not apply and that the information he shared with her would be outlined in a report which would be made available to his lawyer and to the court. She said Mr Wasley appeared to understand this and if she had had concerns about whether or not he understood that, or the concept of confidentiality, she would have taken further steps before proceeding with the interview.
Mr Wasley was able to provide to Dr Scamps details of his schooling (including the fact that he had left school at the age of 17 and had not completed his final year), where he had lived from time to time and his employment history. With respect to the latter, Dr Scamps noted that Mr Wasley was uncertain as to his role with some of the companies he had worked for. She was also uncertain as to how long he had worked at some places and the sequence in which he had worked, given what he had told her.
Mr Wasley presented with a contracted left hand. When he was asked how this had happened, Mr Wasley told Dr Scamps that his father had pushed his mother down the stairs when she was pregnant. He later denied there being any discord or domestic violence in his parents’ relationship. Later in the interview he stated that his left hand had not always been contracted. Dr Scamps referred to this, and the information Mr Wasley had offered as to his employment history, as specific examples of why she perceived him to be an unreliable historian.
Dr Scamps said Mr Wasley could not recall the name of his lawyer and although he knew his next court date he did not appear to understand why he was required to attend court on that date.
She asked Mr Wasley if he knew the offence with which he had been charged and he was unsure. She then read to him details of the charge (and she believed she did so by reference to the Information). He told her he understood what sexual exploitation was and that he knew CF, being his god-daughter’s daughter. He had also stated ‘Well I’m in trouble, aren’t I?’
Dr Scamps estimated Mr Wasley’s pre-morbid level of intellectual functioning to be below average and within the 9^th to 24^th percentiles (although more likely towards the upper end of that range). However, his performance on tests for intellectual and cognitive functioning indicated that he was performing well below average when compared to others of the same age, with his results on verbal abstract reasoning being in the 2^nd percentile.
Dr Scamps referred to a particular test which required Mr Wasley to sort 12 different shaped and coloured cards. While he was able to sort the cards by colour, he was unable to find another way to sort them despite considerable prompting, indicative of very impaired cognitive flexibility.
Testing for new learning and memory also revealed considerable impairment, with Mr Wasley performing in the 5^th percentile. Dr Scamps explained this testing included being read two short stories, one longer than the other and then being asked to recall facts from those short stories after a period of delay. In one such story there were 30 pieces of information. After hearing the story Mr Wasley could recall only four of those pieces of information and after a 30 minute delay he could recall only one. He performed slightly better on a test involving the recollection of words in a list.
Importantly, Mr Wasley demonstrated very significant impairment in naming simple objects. Out of 60 simple objects he was able to identify only 35, in circumstances where Dr Scamps expected that he would be able to name at least 50 or 55, meaning he has difficulty ‘finding words’. On another test which involved being asked to list items beginning with a certain letter, he was also very compromised.
Based on her overall examination of Mr Wasley and her review of the materials provided, Dr Scamps expressed the opinion that Mr Wasley’s presentation was consistent with a subcortical dementia, which is characterised by a decline in complex attention and frontal-executive dysfunction, such that he was suffering ‘mental impairment’ as defined in s 269A(1) of the Act.
She considered that Mr Wasley understood the charge when explained and read to him, but was concerned at his ability to respond rationally to the charge, given her perception that some of his responses during the examination were not consistent or reliable. She highlighted the information he had provided as to the cause of his left hand contracture and aspects of his employment history as examples.
Dr Scamps was not confident in Mr Wasley’s understanding of the charge (despite his response being ‘yes’ when asked of his understanding) and she was concerned that many of his responses were not spontaneous, lacked detail and required clarification. He was not able to articulate details of the charge in his own words and although Dr Scamps accepted there may have been reasons unrelated to his mental state (such as embarrassment) which could explain this, she pointed to his general lack of understanding of the nature of her interview as supporting her concerns in this respect.
Dr Scamps acknowledged that she was not instructed and did not know whether anyone else had previously provided a detailed explanation of the charge to Mr Wasley, stating she assumed that this would have been undertaken by his solicitor.
Dr Scamps was of the opinion that Mr Wasley was likely to be able to understand his procedural rights if explained and repeated to him (as he had with respect to the issue of confidentiality pertaining to her assessment) but noted he would be heavily reliant on counsel in this respect. However, based on the results of her testing, she considered Mr Wasley would have great difficulty in understanding the consequences of the various decisions he would be required to make, properly weighing those options and making such decisions.
Mr Wasley had a basic understanding of the court process and the respective roles of his counsel, the prosecutor and the judge. However, Dr Scamps considered Mr Wasley’s quite marked cognitive impairments would impact significantly on his ability to follow the evidence and the course of the proceedings and she did not consider those difficulties could be overcome, for example, by having breaks after every 20 minutes or so of the evidence, with counsel repeating important aspects of the evidence to Mr Wasley and then seeking instructions.
Dr Scamps reiterated that during the course of her two hour assessment Mr Wasley demonstrated confusion at times, lost concentration and at times appeared to be dozing off. She did not think he could cope even with a one day trial.
It was explained to Dr Scamps that the evidence from CF was likely to be in quite general terms, consistent with the contents of earlier statements, which had already been made available to Mr Wasley, meaning there would be very little new information for him to absorb. However, given Mr Wasley’s very poor performance on tests for short term memory and recall, Dr Scamps remained concerned at Mr Wasley’s ability to remember the information presented, even if prompted.
Dr Nguyen saw Mr Wasley on 4 January 2017 and thereafter produced a report dated 25 February 2017, which was tendered. Dr Nguyen estimated he had spent approximately 60 to 90 minutes with Mr Wasley at that time and confirmed that was the only occasion he had met with him.
Dr Nguyen had available various materials relating to Mr Wasley as set forth on page 2 of his report. Those materials included a copy of the transcript of the ROI. Like Dr Scamps, Dr Nguyen had not seen the audio visual recording of the ROI.
Dr Nguyen also had the benefit of reviewing some hospital discharge summaries which provided further background information with respect to Mr Wasley’s mental (and physical) health and the reason for his admission to the Modbury Hospital in May 2013, which led to the diagnosis of vascular dementia.
Many of Dr Nguyen’s findings mirrored those of Dr Scamps.
Dr Nguyen considered that Mr Wasley understood that his assessment was limited in terms of its confidentiality as explained by him.
Dr Nguyen expressed the opinion that it was probable Mr Wasley was both an unreliable and inconsistent historian. In this respect he noted he had received different information from Mr Wasley (to that given by him to Dr Scamps) with respect to aspects of his employment history. I also note that Dr Nguyen took a history from Mr Wasley that he had only completed school to Year 7, seemingly inconsistent with the information Mr Wasley provided to Dr Scamps.
Dr Nguyen said Mr Wasley did not maintain eye contact and kept a downward gaze throughout the assessment. He demonstrated deficits including deficits in orientation and time sequencing, occasional word finding, attention, concentration, short term memory, conceptualising information and motor programming.

When first asked by Dr Nguyen for details as to the charge, Mr Wasley was unable to say what he was charged with or name the complainant. Dr Nguyen accepted there may have been a degree of reluctance to do so on Mr Wasley’s part.
Mr Wasley initially denied any knowledge of CF, although he later acknowledged a memory with respect to CF’s mother, his god-daughter (and therefore CF). Dr Nguyen considered whether there was a degree of malingering (or exaggeration of deficit) involved in this aspect of Mr Wasley’s presentation, although he did not conduct a formal test for malingering. Despite this, he considered Mr Wasley’s overall presentation fit with the previous diagnosis of vascular dementia.
Mr Wasley could explain to Dr Nguyen, in a basic way, the roles of the participants in the court process and knew the difference between the concepts of ‘guilty’ and ‘not guilty’. Although Dr Nguyen considered Mr Wasley was able to understand the charge, he was concerned at his ability to rationally respond to the charge and the allegations. This opinion was premised on Mr Wasley’s overall presentation during the assessment, the manner in which his account was provided, his performance on a cognitive screening test and the results of Dr Scamps’ testing. Dr Nguyen also took into account the background information contained in the materials provided to him.
Dr Nguyen assumed someone (such as a lawyer) would have already provided Mr Wasley with a detailed explanation both of the allegations and of his procedural rights.
He described Mr Wasley as demonstrating difficulties with short term memory. He did not know the date or the season (although he knew it was a Wednesday) and he did not know what medications he was prescribed.
Mr Wasley also demonstrated problems with time sequencing for more distant memories (such as those relating to his employment history).
Dr Nguyen was of the opinion that Mr Wasley was at a significant disadvantage in exercising his procedural rights because of his difficulty in conceptualising abstract concepts and linking them together and his short term memory problems. This meant that Mr Wasley would struggle to make decisions as to which option was best for him to choose.
Having regard to Mr Wasley’s severe cognitive impairment and problems with short term memory Dr Nguyen considered he would ‘significantly struggle’ to understand the nature of the proceedings and to follow the evidence, even assuming the trial was a short one of only one to one and a half days’ duration. He did not consider there were any techniques that could be adopted or changes in usual procedure that would overcome those difficulties. When asked if there would be some benefit in stopping the evidence after every 20 minutes for instructions to be obtained from Mr Wasley, he expressed the opinion that this may in fact make it more difficult for him.
In cross-examination Dr Nguyen acknowledged that when he read the particulars of the offending to Mr Wasley from the Information, Mr Wasley had denied the offending, as he had to the police in the ROI. As such while he accepted Mr Wasley could respond to the charge, he thought he would have much greater difficulty responding to the broader allegations and, for example, a multi-stepped chain of events. He considered Mr Wasley would have difficulty in maintaining consistent responses in light of his short term memory issues.
Although neither Dr Scamps nor Dr Nguyen had had the benefit of seeing Mr Wasley recently, both gave evidence that vascular dementia was a disease which progressed in a step-like fashion. This meant that although it was possible Mr Wasley’s condition was similar now to that it was at the time of his presentation to them (respectively), it may have deteriorated. Given the nature of the disease, his condition would not have improved in that period.
Record of interview
The ROI was conducted on 13 January 2015, therefore nearly two years and 10 months before the date of trial.
There is no dispute that vascular dementia is a degenerative condition and that Mr Wasley’s condition would not have improved during the period since the ROI was conducted.
Dr Scamps stated that from her reading of the transcript of the ROI, at the time the ROI was undertaken Mr Wasley appeared to have a better ability to access his past memories and to participate in the interview than he had demonstrated during the course of her examination approximately 22 months thereafter. As such she considered it likely there had been some deterioration in Mr Wasley’s condition since the ROI was conducted.
Dr Nguyen said it was difficult to assess Mr Wasley’s condition from reading the transcript of the ROI given that many of his responses to questioning were brief and he had not seen the recording. Nevertheless he doubted that viewing the recording would have assisted him in expressing an opinion on Mr Wasley’s fitness to stand trial as at the date he saw him, given that date was nearly two years after the ROI was conducted.
By reference to the audio visual recording of the ROI, while Mr Wasley attended in a wheelchair and was physically frail, he seemed to be able to maintain eye contact during the ROI (in the sense that his gaze was not kept consistently downward as described by Dr Nguyen) and despite appearing to tire throughout the ROI, he demonstrated an ability to maintain a degree of concentration and attention throughout, contrary to that observed by both Dr Scamps and Dr Nguyen.
Having regard to the nature of Mr Wasley’s condition, and the period of time which has passed since the ROI was conducted, I consider that Mr Wasley’s presentation in that ROI is of limited assistance in determining whether he is now fit or unfit to stand trial.
Complexity of the charge
Counsel for Mr Wasley did not rely on the complexity of the charge as being a factor with weight in terms of the issue of fitness. However, it is of note that the offending is said to have occurred over a period of eight years, some 11 to 19 years ago, when CF was aged between four and 11 and Mr Wasley was aged between 51 and 59. The offending is said to have involved multiple acts over that period of time and therefore is of a very different nature to, for example, the two discrete acts such as that under consideration by the court in R v Taylor.[7]
[7] [2014] SASCFC 112.
Findings as to fitness
Mr Wasley suffers from vascular dementia, first diagnosed in May 2013.
Both Dr Scamps and Dr Nguyen observed Mr Wasley to have marked difficulty with short term memory and problems with time sequencing for more distant memories (such as those relating to his employment history).
Dr Scamps saw Mr Wasley in November 2016 and Dr Nguyen saw him in January 2017. Given the nature of vascular dementia, Mr Wasley’s condition will not have improved since then and may have deteriorated.
Mr Wasley’s short term memory problems as identified upon testing are such that neither expert thought those deficits could be overcome, even during a short trial, with 20 minute blocks of evidence and substantial recall and prompting by counsel.
Although Dr Nguyen had some doubt as to whether Mr Wasley performed to the best of his ability during his assessment, that doubt did not impact on his opinion as to Mr Wasley’s difficulties and capacities, having regard to his overall assessment of Mr Wasley and the supporting materials.
Both Dr Scamps and Dr Nguyen explained that Mr Wasley’s difficulties with abstract reasoning as demonstrated by testing showed he would have difficulties evaluating the consequences of various decisions, weighing those consequences in terms of their impact upon him and then making a decision.
Both experts described Mr Wasley’s problems maintaining focus and attention during their respective assessments.
As Mr Wasley is represented, he has the benefit of experienced counsel to guide him through the court process and the trial. He maintained a denial of the charge when questioned by Dr Nguyen, as he did at the outset of the ROI. He appears to have understood the concept of confidentiality as explained to him both by experts.
I find that Mr Wasley is able to understand the nature of the charge, with appropriate advice and guidance from counsel.
However, Mr Wasley’s significant short term memory and cognitive deficits as identified by Dr Scamps and Dr Nguyen, consistent with his diagnosis of vascular dementia, are in my view such that the reliability of Mr Wasley’s memory, insofar as it may be contrary to the details of and incidental to the allegations, is uncertain. The allegations are historical. While Mr Wasley’s memory for earlier events is better than for those which have occurred more recently, there are inconsistencies in his memory for important events in earlier years relating to his employment.
Mr Wasley’s presentation to Dr Scamps and to a degree his presentation in the earlier ROI, indicated a tendency for him to immediately respond ‘yes’ to questions posed of him. Indeed he initially replied yes to the question posed of him in the ROI as to whether he understood his right to silence, when his understanding of this concept was mistaken.
I note Dr Scamps’ evidence that it is common for people with dementia to respond in this manner because it is the easy response and it assists them to look competent in the eyes of another.
I also note Dr Nguyen’s evidence that it is common for people with vascular dementia to confabulate or make up information so as to compensate for deficits in their memory.
I accept the experts’ assessment that Mr Wasley was an unreliable historian.
I find that due to the effects of vascular dementia on Mr Wasley’s cognitive functioning, he is unable to respond rationally to the allegations on which the charge is based.
With the assistance of counsel, Mr Wasley is likely to be able to understand that he has certain procedural rights and what those rights comprise. However, the results of the testing undertaken by Dr Scamps show that Mr Wasley can become fixed in his thinking and unable to ‘change course’. Further they show he has significant difficulties making decisions, even if options are properly explained in terms of their advantages and disadvantages.
I find that Mr Wasley will be unable to properly exercise his procedural rights, even with the assistance of counsel, in light of his cognitive impairments.
Although Mr Wasley appears able to maintain and communicate the basic concept of his claimed innocence, given his short term memory problems I find he will be unable to properly follow the evidence and the course of the proceedings such that he will be unable to contribute meaningfully in any way to the trial process by properly instructing counsel as to the evidence as it unfolds.
In addition, I find Mr Wasley is likely to be unable to properly communicate, by way of appropriate word finding, the nature and content of any memory held by him which may differ to that outlined in the evidence of others. The reliability of that memory must also be in considerable doubt.
I agree with the experts’ opinion that despite the trial in this matter being of short duration, Mr Wasley’s cognitive impairments are such that there can be no modification of the usual court procedures which will adequately compensate for these deficiencies.
I accept the evidence of both Dr Scamps and Dr Nguyen as to Mr Wasley’s lack of mental fitness to stand trial.
There is nothing in the other evidence presented which leads to a contrary conclusion to that as expressed by them.
Having regard to the criteria as set forth in s 269H of the Act I find that it has been established on the balance of probabilities that Mr Wasley is mentally unfit to stand trial.
I record a finding to that effect pursuant to s 269M of the Act.
Objective elements
The Charge
The offence charged on the Information dated 9 November 2015 is:
RONALD JOHN WASLEY is charged with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ronald John Wasley between the 11^th day of March 1998 and the 11^th day of March 2006 at Elizabeth Downs and Kilburn, over a period of not less than three days, committed more than one act of sexual exploitation of CF, a person under the age of 17 years, by:
(a)    inserting his tongue inside her mouth on numerous occasions;
(b)    licking her nipples;
(c)    forcing her to touch his penis on numerous occasions;
(d)    licking her vagina on numerous occasions; and
(e)    touching her vagina on numerous occasions.
On 24 October 2017 (and therefore before the commencement of trial) s 50 of the Act was amended by the Statutes Amendment (Attorney-General’s Portfolio) (No.2) Act 2017 (‘the amending Act’). The Director elected to proceed on the Information dated 9 November 2015.
Elements of the offence
The offence of persistent sexual exploitation of a child pursuant to s 50(1) of the Act (as in force before the commencement of s 6 of the amending Act), is made up of the following elements, each of which must be proved by the prosecution beyond reasonable doubt:
1.That at the time of the alleged offending against CF, namely between 11 March 1998 and 11 March 2006, Mr Wasley was an adult.
There is no dispute that Mr Wasley is now aged 70 and that he was an adult during the relevant period.
2.That Mr Wasley committed at least two acts of sexual exploitation against CF, being acts of a kind that if properly particularised could be the subject of a charge of a sexual offence. The two or more acts must be among the acts particularised in the Information, but need not be sexual offences of the same type.
‘Sexual offence’ is defined in s 50(7) of the Act to mean:
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of these offences; or
(c)a substantially similar offence against a previous enactment.
I do not need to be satisfied beyond reasonable doubt of all of the acts alleged; it is sufficient for the prosecution to prove at least two acts of sexual exploitation.
3.That the acts of sexual exploitation occurred over a period of not less than three days.
That simply means that the time between the first and the last acts which must be proved, must be three or more days.
4.That CF was a child at the time of the alleged offending.
CF’s birth certificate was tendered as Exhibit P2 and establishes that CF was born in March 1994 and was therefore aged between four and 12 at the time of the alleged offending.
Directions
The prosecution bears the onus of proving each element of the offence beyond reasonable doubt. There is no onus on Mr Wasley to prove anything.
I must assess each witness as to their truthfulness and their reliability and in doing so I can reject or accept all or a part of a witness’s evidence.
Mr Wasley did not give evidence and no evidence was called on his behalf. I must not draw any inference adverse to him as a result of him exercising his right not to give evidence, particularly in light of my findings as to his fitness to stand trial.
Although there was no evidence to this effect, it was submitted by the prosecutor and not disputed by counsel for Mr Wasley, that Mr Wasley had no prior criminal history and that as at the date of the ROI he had never been arrested. I must bear in mind Mr Wasley’s previous good character when considering the conclusions I make from the evidence. I must bear it in mind as a factor affecting the likelihood of him having committed the acts as charged.
The allegations relate to a period spanning eight years from March 1996 to March 2004, meaning there has been a period of delay of over 13 years between the alleged offending and the trial.
That delay has resulted in a significant forensic disadvantage to Mr Wasley in terms of challenging and responding to allegations so long in the past.
Since the alleged offending, Mr Wasley’s wife Beverly has passed away. CF alleges that various acts of sexual exploitation occurred at the home at Elizabeth Downs shared by Mr and Mrs Wasley. She alleges some of the alleged offending occurred at a time when Mrs Wasley was either at the home or in the same room, albeit in circumstances where she may have been unable to see the offending.
Perhaps more importantly, as previously outlined, in 2013 Mr Wasley was diagnosed with vascular dementia with resulting memory and other cognitive deficits meaning he is now mentally unfit to stand trial. He is unable to respond rationally to the allegations on which the charge is based, or follow the evidence so as to meaningfully instruct counsel as to his version of events where there may be any discrepancy.
The alleged acts of sexual exploitation were not witnessed by others, meaning an acceptance of CF’s evidence as being both reliable and credible is critical to my findings on the objective elements. Due to the delay, CF could not recall certain details of the alleged offending (for example when was the first and last alleged act of sexual exploitation, whether the acts occurred during the day or the night, what time of the year (in terms of the season) the acts occurred).
But for the delay, Mr Wasley may have been in a position to remember back to the relevant occasion or occasions of the alleged acts and remember what, if anything, happened, or remember if circumstances were such (for example, whether others were present, or he was elsewhere) to attempt to discount CF’s evidence. If there had been a prompt complaint, he may have been able to point to other persons or other evidence which would have shed light on a particular alleged incident.
I must take those forensic disadvantages into account when scrutinising the evidence for the prosecution and take them into account when assessing whether the prosecution has proved each element of the offence beyond reasonable doubt.
Finally, I remind myself that I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
The Evidence
The prosecution called evidence from CF (who gave her evidence in a closed court pursuant to s 69 of the Evidence Act 1929), CF’s mother, VF and Detective Brevet Sergeant C Taylor.
No evidence was led on behalf of Mr Wasley.
The following exhibits were tendered by the prosecution:
Exhibit P1          Statement of Detective Taylor dated 12 July 2015.
Exhibit P2          CF’s Birth Certficate.
Exhibit P3          Copy of the Certificate of Title – Volume 5070 Folio 110.
Exhibit P4          Booklet of photographs taken by Detective Taylor.
Exhibit P5          Statement of Senior Constable Hawgood dated 6 July 2015.
Exhibit P7          Floor plan of Mr Wasley’s home at Elizabeth Downs.
Admissibility of audio visual recording of the ROI
The evidence on the voir dire
The prosecution sought to tender the disc containing the audio visual recording of the ROI.[8] Counsel for Mr Wasley applied for an order seeking to exclude this material from evidence pursuant to Rule 49 of the District Court (Criminal) Rules 2014. By agreement between the parties, Detective Taylor’s evidence on this issue which ought to have been heard on the voir dire was heard in conjunction with his evidence on the objective elements and I heard submissions on the application just prior to closing addresses. I reserved my ruling.
[8] MFI-P6.
The ROI was conducted on 13 January 2015 at the Elizabeth Police Station. Mr Wasley attended voluntarily at the station, with his carer, Mr Burford, who remained present as a support person during the ROI.
As to the chronology of events, Detective Taylor gave evidence that CF reported the alleged offending to the Salisbury Police Station on 25 October 2013 as a result of which a Police Incident Report was raised. On 11 November 2013 CF provided a detailed statement to Sergeant T Sheldon and thereafter the matter was referred for investigation to a member of the Elizabeth Criminal Investigation Branch. Sometime later Detective Taylor was allocated the investigation following the transfer of that member, thus explaining part of the delay in the commencement of the investigation.

On 26 March 2014 Detective Taylor first contacted CF. At that time he was told that Mr Wasley may be deceased and there was a further delay while he conducted enquiries (including enquiries interstate) to clarify whether Mr Wasley was still alive.
After receiving that confirmation, on 10 October 2014 Detective Taylor obtained a full statement from VF. That statement provided some corroboration in terms of the surrounding details of the alleged offending, including VF’s (and therefore CF’s) relationship with Mr Wasley, the potential opportunity for the alleged offending to have occurred during periods when Mr Wasley cared for CF and had her sleepover at his home at Elizabeth Downs. VF also verified that some years earlier CF had made a ‘complaint’ to her with respect to Mr Wasley’s alleged offending.
On 14 December 2014 Detective Taylor attended at Mr Wasley’s home at Elizabeth Downs in the company of other officers (including then Senior Constable Hawgood) for two purposes; to obtain evidence at the scene including photographs and a floorplan to ascertain if that corroborated certain aspects of CF’s statement and to speak to Mr Wasley in relation to the allegations.
The home was unoccupied at the time. A key was obtained from a neighbour to enable police access to the property under the authority of a general search warrant. The neighbour informed police that Mr Wasley had resided in a nursing home for some time. Detective Taylor took a number of photographs of the inside and outside of the home (Exhibit P4) and Senior Constable Hawgood prepared a floorplan of the home (Exhibit P7). This material corroborated aspects of CF’s statement including the location of the bedrooms, Mr Wasley’s connection with the Wingfield Football Club and with a person named Kelly.
On Christmas Day 2014 Detective Taylor received a call from Mr Burford who had been informed by the neighbours of the police attendance at the home. Detective Taylor said that during this conversation he explained only that he needed to speak to Mr Wasley in relation to a criminal investigation and did not provide details of the alleged offending. He said Mr Burford was very cooperative and was willing to bring Mr Wasley into the station and arrangements were made for that to occur in the new year. Detective Taylor said he told Mr Burford that it was a criminal matter and that he should seek advice if required.
Detective Taylor gave evidence that in light of the evidence already obtained with respect to the investigation prior to conducting the ROI, he determined that he was going to report Mr Wasley for the alleged offending, regardless of whether Mr Wasley spoke to him or not. He said he had determined not to arrest Mr Wasley, as none of the four arrest criteria set out in the general orders issued to police were met, namely; whether it was necessary to prevent the continuation of the offences, to prevent the commission of other offences, to ensure the appearance of the person in court and/or to prevent the loss of or destruction of evidence.
The first portion of the audio visual recording of the ROI was played during Detective Taylor’s evidence and I have watched the recording in full. I have also had the benefit of a typed transcript of the ROI as an aid.
Detective Taylor explained that as Mr Wasley was not under arrest and had attended the station of his own volition, he did not give him the arrest rights as set forth in s 79A of the Summary Offences Act 1953 (‘SOA’). As such at no time during the ROI was Mr Wasley informed of his right to have a solicitor present during the ROI. Detective Taylor gave evidence that he had assumed that having told Mr Burford about the possibility of seeking legal advice during their earlier telephone conversation, Mr Burford would have explained this to Mr Wasley. He acknowledged that at no time did he raise this directly with Mr Wasley.
Near the start of the ROI Detective Taylor explained to Mr Wasley that he was not under arrest and when asked whether he understood that, Mr Wasley replied ‘yes’ and agreed that he was there voluntarily.
Thereafter Detective Taylor explained that he was going to ask him some further questions and stated ‘You are not obliged to answer those questions’ to which Mr Wasley replied ‘yes’. Detective Taylor then said ‘Anything you do say is going to be recorded on the video…’ to which Mr Wasley interjected and said ‘And held against me’. Detective Taylor continued and said ‘and may be used in evidence’ to which Mr Wasley replied ‘yes’.
Detective Taylor then asked Mr Wasley if he understood that, to which he replied ‘yes’. Detective Taylor asked Mr Wasley to explain in his own words what he understood were his rights as to answering questions, to which Mr Wasley stated ‘Well, I gotta answer as much as I can’.
Detective Taylor then explained again to Mr Wasley that he did not have to answer questions if he did not want to and it was up to Mr Wasley whether he answered the questions posed by him or not. Mr Burford explained to Mr Wasley that meant he could say if he did not want to answer a question. Detective Taylor then repeated that if Mr Wasley chose to answer a question the answer would be recorded on the video to which Mr Wasley replied ‘OK then’. Detective Taylor sought further confirmation from Mr Wasley if he understood that and Mr Wasley said ‘yes’.
Detective Taylor gave evidence that it was his personal practice to ask a person being interviewed whether they understood the right to silence by asking them to explain back to him what they understood it to mean in their own words. He said it was common for there to be some misunderstanding in this respect. He acknowledged that in this case, having heard Mr Wasley demonstrate an initial lack of understanding of the right, he did not seek to again clarify the extent of Mr Wasley’s understanding by asking, a second time, for him to repeat in his own words what that right meant.
However, Detective Taylor then asked Mr Burford whether as carer and guardian he believed that Mr Wasley understood the caution as to answering questions to which Mr Burford responded ‘yes’. As is evident from the ROI, Detective Taylor sought this clarification from Mr Burford because he knew Mr Wasley was a nursing home resident. Mr Wasley also told Detective Taylor that he was in the nursing home because of ‘loss of memory’ and Mr Burford added that Mr Wasley had suffered a fall.
Detective Taylor disagreed with a proposition put to him that the reason he asked this question of Mr Burford was because he was unsure whether Mr Wasley understood his right to silence. Detective Taylor maintained that in his mind it was clear Mr Wasley understood his right to silence and he said he had asked Mr Burford because he ‘wanted confirmation from a second person so it was confirmed in a legal sense that the interview was appropriate’. Having formed this view, Detective Taylor continued with the ROI.
Submissions
Counsel for Mr Wasley submitted that it was unfair to admit the audio visual recording of the ROI in circumstances where Mr Wasley may not have understood his right to silence. He highlighted Mr Wasley’s lack of understanding by reference to his failed attempt to explain the right to Detective Taylor and the fact Detective Taylor had seen fit to ask Mr Burford whether Mr Wasley understood the right. He noted Mr Wasley’s diagnosis of vascular dementia in mid-2013 and submitted that little weight could be attached to Mr Wasley’s various responses of ‘yes’ when asked if he did understand his right to silence.
He noted Detective Taylor had observed Mr Wasley to be in frail physical health, that Detective Taylor knew Mr Wasley had problems with his memory and required nursing home care. He submitted that therefore there must be some doubt as to the reliability of Mr Wasley’s responses.
Counsel referred to the decision of the Victorian Court of Appeal in R v Arnott[9] in confirming the courts’ discretion to exclude, in the exercise of the fairness discretion, admissions made by someone who was incapable of understanding that they had a right to remain silent or was incapable of exercising sufficient volition to give effect to what they knew was their right to silence or if a confession demonstrated a sufficient extent of unreliability.
[9] (2009) 26 VR 490.
I was also referred to R v Kageregere[10] wherein Kourakis J stated:
[55] In R v Swaffield (Swaffield) the High Court emphasised that the discretion to exclude statements elicited from an accused by police questioning is exercised to ensure the fair trial of the accused. The fairness of a criminal trial is ensured under Australian law by a matrix of common law and statutory rules, both substantive and procedural in nature. The privilege against self incrimination and the heavy onus of proof imposed on the prosecution are rules of primary importance in that matrix. The admission of statements, elicited from an accused in circumstances which materially compromise his or her capacity to choose to speak or remain silent, would subvert the procedural and substantive rules to which I have referred.
[56] The common law rule of evidence excluding involuntary statements buttresses the privilege against self incrimination where the capacity to choose is completely overborne. In less extreme cases a discretion may be exercised to protect the privilege. In the exercise of that discretion the public interest in the efficient police investigation of offences is given substantial weight by striking a balance between it and the competing public interest in fair trials. An evaluative judgment is called for having regard to a number of considerations including: the extent to which the interviewee’s capacity to choose has been compromised, the likelihood, at the time that the statement was made, that he or she would be prosecuted, impropriety associated with the questioning and the reliability of the statement. The admission of answers to a comprehensive police interrogation of a person who is likely to be charged, and is under substantial psychological pressure to answer police questions, would significantly undermine the privilege against self incrimination. It is for that reason that the admission of such a statement may be procedurally unfair and is liable to be excluded in the exercise of the discretion.
(Footnotes deleted).
[10] [2011] SASC 154 at [55]-[56].
It was submitted that in this case I could be satisfied on the balance of probabilities that Mr Wasley lacked an appropriate understanding as to his right to silence, thus enlivening my discretion to exclude the evidence and that in all the circumstances I should exercise that discretion.
In the alternative it was submitted that at the time of conducting the ROI, police had sufficient evidence to charge Mr Wasley with the alleged offending and that Detective Taylor acknowledged he intended to report Mr Wasley for the alleged offending irrespective of what was said by Mr Wasley during the ROI. Despite that, at no time did Detective Taylor inform Mr Wasley of his right to speak to a lawyer or have a lawyer present during the ROI, being information that Detective Taylor was statutorily obliged to give Mr Wasley if he was under arrest at the time of interview. Counsel referred to R v D, JE,[11] wherein reference was made to previous decisions dealing with the time at which a caution should be given.
[11] [2017] SADC 83.
The prosecutor submitted that there was no obligation upon Detective Taylor to arrest Mr Wasley, either pursuant to s 75 SOA or as set forth in any police general orders, meaning that s 79A SOA was not enlivened. It was submitted that in this instance, where the investigation related to historical offences which had allegedly ceased many years prior, involving a frail elderly resident of a nursing home, there were sound reasons why Detective Taylor elected not to arrest Mr Wasley.
The prosecutor highlighted Mr Wasley’s interjection during Detective Taylor’s initial explanation of the right to silence, namely that anything he said may be ‘held against me’ as indicating he had at least a rudimentary understanding of the right to silence. While it was acknowledged that Mr Wasley could not explain in his own words the meaning of the right, the right was then explained to him again on multiple occasions and when asked if he understood that right, Mr Wasley responded ‘yes’. Further the prosecutor directed me to the balance of the ROI wherein Mr Wasley was seen to engage in appropriate dialogue with the police, demonstrated appropriate responses to questions indicating his understanding and provided a seemingly accurate recollection of various details.
The prosecutor confirmed that he was not relying on the ROI for any admission, prior inconsistent statement and/or consciousness of guilt on the part of Mr Wasley, meaning the ROI was of limited probative weight in any event.
Findings as to admissibility
It is for Mr Wasley to establish on the balance of probabilities the reason or reasons for the exclusion of the evidence.[12]
[12] The King v Lee (1950) 82 CLR 133 at 152-153.
The findings of Dr Scamps and Dr Nguyen were made following examinations of Mr Wasley nearly 22 months and two years (respectively) after his participation in the ROI and therefore are of little, if any, assistance in the determination of this issue.
Although Mr Wasley was diagnosed with vascular dementia in mid-2013 and, as a nursing home resident, was likely incapable of attending to his activities of daily living sufficiently to continue to live alone, this of itself does not lead me to conclude that Mr Wasley did not understand the caution as explained to him.
Further I note my earlier observation that Mr Wasley appeared to engage well during the ROI and despite tiring, did not present in a confused manner or struggling with concentration (or to stay awake) as he presented during those more recent assessments.
Given the degenerative nature of vascular dementia it is likely that Mr Wasley’s condition did deteriorate during the period between the ROI and the assessments undertaken by Dr Scamps and Dr Nguyen.
However, Detective Taylor knew Mr Wasley was living in a nursing home and had problems with his memory. Following Mr Wasley’s explanation of the right to silence to be ‘Well I gotta answer as much as I can’ he must have known that Mr Wasley did not properly understand his right to silence, albeit demonstrating some knowledge that whatever he said could be held against him.
Although Detective Taylor then repeated, in plain language, the nature of the right to silence, I do not accept his evidence that Mr Wasley’s subsequent positive responses as to whether he properly understood that right were in fact reliable and indicative of him having a proper and accurate understanding. I say this because Detective Taylor then sought confirmation from the carer, Mr Burford, as to whether, in fact, Mr Wasley did understand. While Mr Burford may have had a better understanding as to Mr Wasley’s capacity than Detective Taylor, he is not a medical practitioner and as a lay person, who was not at that time living with Mr Wasley, could not have known whether in fact Mr Wasley did have the requisite understanding. Despite Detective Taylor’s evidence to this effect, Mr Burford could not provide any confirmation ‘in a legal sense’ that the interview was appropriate.
Further, if Mr Wasley did have the requisite understanding at one part of the interview, given his acknowledged memory problems as at that date, neither Detective Taylor, nor Mr Burford, could be satisfied that he continued to remember the fact of that right or what it was, as the interview unfolded.
Mr Wasley’s responses throughout the ROI are indicative of a man doing his best to remember and to answer Detective Taylor’s questions and at no time does he appear to take the time to consider whether it is appropriate to answer the question, being consistent with his earlier claimed understanding that he needed to answer as much as he could. Further, at no time did Mr Burford ‘jump in’ and remind him of the right as the interview progressed.
Despite Mr Wasley’s claimed understanding of his right to silence, I am satisfied on the balance of probabilities that he did not have a proper understanding of the caution given to him by Detective Taylor.
Further, Detective Taylor knew he was intending to charge Mr Wasley with the alleged offending prior to commencing the ROI and held sufficient information at that time on which to charge him. He knew of Mr Wasley’s memory problems and that he was in a nursing home. He must have suspected that there was at least a possibility that Mr Wasley’s responses during the ROI would not be reliable.
It is only where the court is satisfied that answers are inherently unreliable from the mental incapacity of the defendant that they are to be excluded as distinct from being possibly unreliable, being a matter for the jury.[13] Further, there was no obligation on Detective Taylor to arrest Mr Wasley and therefore no statutory obligation under s 79A SOA to give him his arrest rights. However the matters identified above, when considered in light of Mr Wasley’s demonstrated misunderstanding at the outset of the ROI as to the nature of the right to silence and having regard to the seriousness of the allegations raised against Mr Wasley, are such that in my view Detective Taylor at the very least ought to have informed Mr Wasley of his right to have a solicitor present during the ROI.
[13] R v Pfitzner (1996) 66 SASR 161 at 177.
However, in determining whether or not to exclude the audio visual recording of the ROI from evidence in exercise of the fairness discretion, regard must be had to the actual unfairness to the accused and to the probative value of the evidence relative to its prejudicial effect and relevant public policy considerations.
During the ROI the allegations were put to Mr Wasley and initially he denied them. Later in the interview Mr Wasley was asked again whether those things had happened and his response was that he did not know and when asked if the alleged acts had happened, his response was that he could not remember. At one stage when asked if the offending had occurred Mr Wasley’s response was ‘I don’t think so’.
While these apparently equivocal responses may be some cause for concern in the ordinary case, having regard to Mr Wasley’s known memory problems as at 13 January 2015 and the fact of his diagnosis in mid-2013, very little weight, if any, can be attached to these subsequent responses.
Mr Wasley did not make any confessions or incriminating statements as such during the ROI. He did confirm his knowledge and interactions with CF, the fact of his ownership of the home at Elizabeth Downs and several vehicles, the layout of the home and the fact that others may have been present at his home at various times when CF slept over, together with those sleeping arrangements. He confirmed that sometimes CF would stay over at his house without her brothers being present and that the sleepovers usually occurred in the holidays. The information provided by Mr Wasley in the ROI as to relevant background information is consistent with that of CF (and VF), corroborating the fact that there was the opportunity for the offending to occur.
Mr Wasley’s ability to remember this information indicates that as at the date of the ROI, his memory for events during the relevant period was not inherently unreliable and with respect to certain matters, was in fact reliable.
The exhibits tendered by the prosecution include documents confirming Mr Wasley’s ownership of the home at Elizabeth Downs and various motor vehicles consistent with CF’s evidence. Similarly the floorplan of the home at Elizabeth Downs and several of the photographs within Exhibit P4 corroborate aspects of CF’s evidence pertaining to that home, its occupants from time to time and Mr Wasley’s connection with the Wingfield Football Club. As to these matters, the ROI adds very little to the prosecution case.

When all of these matters are carefully considered, I am not persuaded that the admission of the audio visual recording of the ROI is unfair to Mr Wasley.
Ruling
The application to exclude the audio visual recording of the ROI from evidence is refused. The disc containing the recording will be admitted to evidence as Exhibit P6.
Evidence of CF
CF gave evidence that she had two brothers, one 16 months older than her and one 16 months younger than her.
Until she was in about Year 3 (and approximately eight years old), CF and her brothers lived with their parents at a house at Kilburn. CF attended Kilburn Primary School. Thereafter the family moved to live in Salisbury North and CF changed primary schools. CF left school at the end of year 10. Although she has started three courses of study since then (through TAFE and Workskil), she has not successfully completed any of those courses.
CF gave evidence that she had known Mr Wasley for her whole life, as he was her mother’s god-father. Mr Wasley did not have children of his own. She said she and her brothers treated him as if he was their grandfather. Mr Wasley and his wife Beverley would look after her and her brothers at her family home in Kilburn (and later at Salisbury North), taking them to the playground, the beach and the park. She would also sleepover at Mr and Mrs Wasley’s home ‘somewhere in Elizabeth’, sometimes by herself, sometimes in the company of her brothers, generally during school holidays and very occasionally during the week. These sleepovers were usually for about a week but could also be just for one or two nights.
CF explained that when she slept over at Mr Wasley’s house, she would occasionally sleep in the lounge room with her brothers, or share a room with an older girl called Kelly who was also staying with Mr Wasley. However she recalled that she often slept in a room by herself that she described as the ‘toy room’, being a bedroom located off the hallway between the main bedroom and a third bedroom generally occupied by Kelly. She said the floorplan of Mr Wasley’s home at Elizabeth Downs prepared by Senior Constable Hawgood (Exhibit P7) was consistent with her memory of the layout of that home.
By reference to Exhibit P7, the ‘toy room’ is the room marked ‘Bed 2’ and Mr Wasley’s bedroom (the main bedroom) is that marked ‘Bed 1’. Kelly’s room is that marked ‘Bed 3’.
CF recalled that Mr Wasley had two cars, one being a red Toyota sedan and one being a silver van. By reference to Exhibit P1 (and the evidence of Detective Taylor), Mr Wasley was the registered owner of a red Mitsubishi Nimbus station wagon acquired in 2001 and last registered in his name in May 2013. He was also the registered owner of a red Ford XE sedan between 2001 and April 2006. Mrs Wasley was the registered owner of a Silver Nissan Nomad station wagon between February 2003 and April 2005.
CF said she ceased contact with Mr and Mrs Wasley when she was about 10 or 11 and still in primary school. She had only seen Mr Wasley twice since then – once at a hospital and once at a shopping centre and on neither occasion had she spoken to him.
CF gave evidence that Mr Wasley had touched her inappropriately at her family home in Kilburn and at his home in Elizabeth Downs. She said that this had occurred at each location, on more than one occasion, however there had been no similar touching at her family home in Salisbury North.
She could not remember when Mr Wasley first touched her inappropriately (either by reference to her age or the year this occurred), nor could she remember the season, the time of day, or whether the first such occasion had occurred at her home in Kilburn or at Mr Wasley’s home in Elizabeth Downs. She could not recall the last occasion Mr Wasley had touched her inappropriately, although on her evidence it must have been prior to when she ceased contact with Mr Wasley when she was aged either 10 or 11.
CF gave evidence that when she was about five, she walked into the kitchen of her home at Kilburn and Mr Wasley was sitting at the table. She said her mother was in the lounge room at the time although she could not recall if anyone else was home.
She said Mr Wasley pulled her onto his lap, lifted up her shirt and kissed and licked one of her nipples. She could not recall him saying anything to her either during or after this incident.
When asked if there was any reason why she believed she was five at this time, CF explained that she remembered being quite young and said she had already started school. She said she commenced reception when she was aged five.
In cross-examination she said her memory of her age at the time of this incident was not strong but she had a very strong memory that her mother was in the lounge room at the time.
CF agreed that in a statement provided by her to police in November 2013, signed on 24 April 2014, she had stated this incident occurred when she was four and that her mother had walked into the kitchen when Mr Wasley was licking her nipple.
She was unable to say why she had told the police she was four although she had told the court she was five. She explained that she had not told the court about her mother walking in because it had slipped her mind and she did not think her mother saw anything as ‘she had her head down’.
CF gave evidence that Mr Wasley had also touched her inappropriately in other ways at her Kilburn home.
She said Mr Wasley would come into her bedroom when he was looking after ‘us’, lay her down and remove her underparts. He would then kiss and lick her vagina and touch her vagina with his fingers, while he knelt on her bed. She said he never penetrated her vagina with his finger. She could not remember which hand he used to touch her vagina. When he was finished he would ask her for a kiss. She would try to kiss him on the cheek, but he would make her kiss him on the lips and then he would insert his tongue in her mouth. She said she would freeze when he put his tongue in her mouth. When he was finished he would get up off the bed and leave.
CF estimated that conduct of the type she had described occurred more than 15 times at the Kilburn home and said that no particular occasion stood out in her mind as they all blurred together. The conduct had occurred at times Mr Wasley was simply visiting the home and at times when he was babysitting her. She explained that on some such occasions her parents (or one of them) were home at the time this conduct occurred (although it was more common for it to occur when they were not home) and said her brothers were never home at the time.
She was unable to say when was the last such occasion Mr Wasley had touched her in this way at the Kilburn home, although she stated Mr Wasley had never touched her in this way at the family’s Salisbury North home.
CF gave evidence that the same conduct had occurred at Mr Wasley’s home at Elizabeth Downs and that it had happened more than 20 times over a period of a number of years. Again she could not recall the first or last such occasion that Mr Wasley had touched her this way at his Elizabeth Downs home. She said it generally occurred when she was sleeping alone in the ‘toy room’ and it had never happened at a time when she was either sharing a room or a bed with anyone else at his home. However conduct of this type had happened when she was sleeping either in the lounge room or in Kelly’s room, albeit alone at the time.
In cross-examination CF agreed that when she first gave her statement to Sergeant Sheldon in November 2013, the only incident involving Mr Wasley that she had described as occurring at the family home at Kilburn was the incident in the kitchen when Mr Wasley licked her nipple. In that statement she had outlined the many occasions Mr Wasley had come into her room while she was staying at his home at Elizabeth Downs, when he licked, kissed and touched her vagina and then forced his tongue into her mouth.
CF was asked why she had not described any similar incidents occurring at the Kilburn home in the first statement she gave to Sergeant Sheldon, when in evidence she had said such incidents occurred at least 15 times. She explained that she was extremely nervous when she met Sergeant Sheldon. She said Sergeant Sheldon made her feel very uncomfortable and as such she was unable to “get a lot out”.
She qualified that she did not feel so uncomfortable that she could not talk about the alleged sexual abuse at all and she acknowledged she talked to Sergeant Sheldon about the alleged sexual abuse that had occurred at Elizabeth Downs.
CF gave a second statement to Detective Taylor in November 2016, at which time she provided the address of the Kilburn home. The second statement contains no reference to any incident involving Mr Wasley occurring at the Kilburn home, other than the incident in the kitchen. When asked why she had not told Detective Taylor about the other (at least) 15 incidents which had occurred at the Kilburn home, CF explained that she did not think to mention it, she did not think it mattered and she thought it was implied. She also said that she had never been asked by police about any other incidents that may have occurred at the Kilburn home. She maintained these incidents had occurred.
CF also described being forced by Mr Wasley to touch him in an inappropriate way. She said that this would only occur in the lounge room at his home in Elizabeth Downs, when she was sitting on the couch to the right of Mr Wasley, watching old movies (generally John Wayne, cowboy-type movies) on television. She said he would put his right hand on her thigh, grab her left hand, move it to his thigh and then slowly position it over his crotch. She said Mr Wasley would then apply downward pressure onto her hand to force her to rub his penis through his pants, keeping his hand on top of her hand throughout. She described feeling his erect penis through his pants.
She said this type of incident occurred many times over a period of years, although she could not say how many times. This type of incident was occurring during the same period of time that Mr Wasley was coming into the toy room and licking and touching her vagina and forcing his tongue into her mouth.
CF said that on occasions when Mr Wasley forced her to touch him inappropriately, Mrs Wasley was also present in the lounge room. CF recalled that Mrs Wasley would be sitting on another couch adjacent to them, but with her back to them, facing the television.
CF was asked to draw on the floorplan the respective positions of each couch and the television in the lounge room. Her markings are apparent on Exhibit P7. The couch on which CF and Mr Wasley sat is parallel with the front wall of the home, while Mrs Wasley’s couch is to the left, parallel to the wall between the lounge room and the kitchen/dining area. The position of the television is marked in the far right hand corner of the room, with the television slightly on an angle, when viewed from either couch.
In cross-examination, CF agreed that on those occasions that Mrs Wasley was in the lounge room when this occurred, Mrs Wasley was sitting less than 2 m away from her.
CF said that the first person she had told about Mr Wasley’s conduct was her mother. She said she and her mother were alone in her mother’s bedroom at the Salisbury North home and her mother had just received a phone call. Her mother had asked her if Mr Wasley had ever touched her inappropriately and she said yes. Her mother had asked her where she had been touched and CF pointed to her vagina and said that Mr Wasley had touched her there. She said she thought this conversation took place about six months after she and her family ceased contact with Mr Wasley. She had first reported the matter to police in 2013, being several years later.
Evidence of VF
VF gave evidence confirming that Mr Wasley was her godfather and that she had left her three children in his care on numerous occasions, both at the family homes at Kilburn and Salisbury North and at his home at Elizabeth Downs. Often the children slept over at Mr Wasley’s home, more usually during school holidays, long weekends or during the Christmas break. Usually they would stay with Mr Wasley for a week.
She said that in about 2005 she had a falling out with Mr Wasley over ‘something silly’ to do with her children’s football and that she (and her family) ceased contact with him thereafter.
She said when CF was around 12 or 13 years old, about 12 to 18 months after the falling out with Mr Wasley, she had a conversation with CF in her bedroom. They were alone at the time. She said she asked CF whether she had ever been touched by Mr Wasley in any of her private areas, to which CF replied yes. She then asked CF where he had touched her and she pointed between her legs. She said she ‘lost it’ and CF did not tell her anything more. In 2013, when CF was ready to report the matter, she took her to the police station to report the alleged offending.
Record of interview
Mr Wasley did not give evidence. Although I have admitted the audio visual recording of the ROI into evidence, I refer to my earlier comments as to its contents and the fact Mr Wasley’s responses are of limited assistance to my findings of fact.
Assessment of the Evidence/Findings
In assessing the evidence of each witness I must determine first, whether the witness is honest, that is, whether he or she was honestly attempting to tell the truth.
If I decide that a witness is an honest witness, the next step is to decide whether the evidence given by that witness is reliable and accurate.
I may believe all, some, or none of a witness’s testimony. It may be that a witness whom I find to be generally acceptable is honestly mistaken about a matter whilst being entirely reliable about other matters.
The evidence given by Detective Taylor as to his role in the investigation and the information he had gathered to corroborate aspects of CF’s evidence was not contentious and I accept that evidence.
VF gave very brief evidence. She did not seek to exaggerate the reason for her family’s falling out with Mr Wasley or to link it in any way with the alleged offending. She gave very matter of fact and plausible evidence about the conversation she had with CF wherein CF revealed to her that Mr Wasley had touched her inappropriately.
CF’s evidence is obviously critical to my findings as to the objective elements, there being no independent witnesses called to corroborate CF’s evidence. While CF did make a complaint with respect to the alleged offending to her mother, she did so in the context of responding to a specific closed question asked of her by her mother. The complaint is not evidence of the facts complained of and as it was elicited, rather than volunteered, it may not have the capacity to demonstrate consistency on the part of CF. It was led only to establish how the allegations came to light.
The objective elements which are in dispute are whether, over a period of at least three days, Mr Wasley committed at least two acts of sexual exploitation against CF.
An act of sexual exploitation is an act of a kind which when properly particularised could be the subject of a ‘sexual offence’.
The offending alleged by CF comprises four separate types of incidents (and offending), namely:
1.   That at the Kilburn home when CF was aged about five, Mr Wasley pulled up her top and licked her nipple (‘the kitchen incident’);
2.   At least 15 occasions when Mr Wasley came into CF’s bedroom at the Kilburn home, knelt on her bed, removed her undergarments, licked, kissed and touched her vagina and then forced his tongue into her mouth (‘the Kilburn series of events’);
3.   At least 20 occasions when Mr Wasley came into a room where CF was sleeping alone at his Elizabeth Downs home and removed her undergarments, licked, kissed and touched her vagina and then forced his tongue into her mouth (‘the Elizabeth Downs series of events’) and
4.   The incidents described by CF as occurring in the lounge room of Mr Wasley’s Elizabeth Downs home when Mr Wasley forced her to touch him inappropriately (‘the lounge room incidents’).
Pursuant to s 56 of the Act, a person who indecently assaults another is guilty of an offence, being an offence against Division 11 and therefore a ‘sexual offence’ within the meaning of the Act. To establish a person is guilty of such an offence, the prosecution must prove beyond reasonable doubt that the person intended to ‘assault’ the victim, they knew the victim was not consenting or was recklessly indifferent as to consent and that the assault was accompanied by circumstances of indecency.
An assault is defined in s 20 of the Act to include intentionally making physical contact (either directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances, whether or not the victim was at the time aware of the contact.
For an assault to be ‘indecent’ it requires an element of sexual lewdness, or a ‘sexual connotation’.
Pursuant to s 57(2) of the Act, no person under the age of 17 years shall be deemed capable of consenting to any indecent assault.
If I accept CF’s evidence that the kitchen incident occurred, I can be satisfied beyond reasonable doubt that an act of sexual exploitation was caused against her by Mr Wasley, being the offence of indecent assault.
Similarly, if I accept that any of the lounge room incidents occurred, namely that through some compulsion by Mr Wasley, CF was forced to touch Mr Wasley’s erect penis through his clothing, I can be satisfied beyond reasonable doubt that an act of sexual exploitation was caused against her by Mr Wasley, being the offence of indecent assault.[14]
[14] R v Doyle [1957] SASR 182.
Pursuant to s 49 of the Act, a person who has sexual intercourse with any person under the age of 14 years is guilty of an offence, being a ‘sexual offence’ within the meaning of the Act.
‘Sexual intercourse’ is defined in s 5 of the Act to include cunnilingus.
If I accept CF’s evidence that at any time during the period prior to her ceasing contact with Mr Wasley that an incident of the type described by CF as comprising either one of the Kilburn series of events and/or one of the Elizabeth Downs series of events occurred, I can be satisfied beyond reasonable doubt that an act of sexual exploitation was caused against her by Mr Wasley, being the offence of unlawful sexual intercourse.
If I accept CF’s evidence that Mr Wasley committed at least two sexual offences against her, with such incidents occurring over a period of several years and therefore over a period of at least three days, the second and third elements of the charge against Mr Wasley will be proved beyond reasonable doubt.
The prosecutor submitted that CF gave her evidence truthfully and despite having very limited recollection of events surrounding the alleged offending, gave a compelling and reliable description of Mr Wasley’s conduct. It was submitted that she had not sought to embellish or exaggerate her evidence. She conceded her lack of memory in terms of when the offending had first occurred and when it had last occurred and had not attempted to guess. It was submitted she was frank in acknowledging there had been no offending at her family’s Salisbury North home and that given her likely age and the number of occasions the alleged offending occurred, it was not unusual that she could not recall specific details and that instead of embellishing the details she candidly conceded the limits of her memory.
It was submitted that in terms of the lounge room incidents, CF had a very clear memory of precisely where she and Mr Wasley were sitting when this type of offending occurred and the fact he always used his right hand to move her left hand onto his crotch. It was submitted that this demonstrated that where CF did have a clear memory of important facts she was prepared to share that memory.

Further CF was able to accurately recall certain matters, despite the passage of time, suggesting her memory was reliable – for example the layout of Mr Wasley’s home at Elizabeth Downs, the cars he had during the relevant period and his association with a football club.
The prosecutor conceded that the nature of the allegations was such that this was not a case where CF may have simply ‘misremembered’ an incident or incidents and therefore that the issue of her credibility was central to my deliberations.
Counsel for Mr Wasley submitted that given the historical nature of the charges and the fact there was no evidence to corroborate that of the complainant, that I should scrutinise CF’s evidence with great care. He highlighted those aspects of CF’s evidence which it was submitted should cause me to have some doubt about both CF’s reliability and credibility. I will deal with each of these in turn.
CF’s inability to recall when the alleged offending first occurred is, in my view, of little weight. Having regard to CF’s evidence, the offending must have started when she was aged five (or earlier) and it is to be expected that an adult witness is likely to have difficulty accurately recalling events that occurred at such a young age.
However, CF was unable to recall when the offending ended. She could recall moving house from Kilburn to Salisbury North when she was in about grade three. She acknowledged that no offending occurred at the Salisbury North home. She could not recall, by reference either to her age, her year level at school, or the location, when the last alleged incident occurred. Specifically she could not say whether Mr Wasley was still offending against her at the Kilburn home up until the time the family moved house.
By implication, she could not say if the alleged offending at Mr Wasley’s home at Elizabeth Downs continued after the family had moved from Kilburn to Salisbury North, being a detail which one may expect would be remembered having regard to the fact that not only did CF move homes, but she also moved schools at the same time. These are significant life events which one may expect could have assisted to provide a reference point to CF in terms of recalling whether the alleged offending continued after the family’s move to Salisbury North.
It is obviously distressing for a witness to recount events of this nature and CF was clearly distressed at times when giving her evidence.
However, CF’s evidence was mostly confined to the specific acts perpetuated against her by Mr Wasley and she was unable to provide other ancillary details, except with respect to the type of movies on television at the time of the lounge room incidents.
In this respect I note that in her first statement to police CF stated that her mother had walked into the kitchen when Mr Wasley was licking her nipple. If this was so, then CF’s failure to recall this detail when giving her evidence is unusual as one would expect that to be something at the forefront of her memory.
It was submitted that in addition, CF’s claimed memory of her mother having her head down as she walked into the kitchen, thus explaining why her mother did not see the incident, was said to be inconsistent with her inability to recall how old she was at the time. This is a specific and unusual memory of something ancillary to the alleged offending. If CF’s mother did walk in to the kitchen during the incident, with her head down, then I would have expected CF to describe the incident in a way which included that clear and important memory. She did not do so until prompted as to her omission.
It was submitted that if the kitchen incident did occur, when VF was present at the Kilburn home, albeit in another room, this was very brazen offending and therefore difficult for a court to accept in terms of its truthfulness. Similarly, it was submitted that the lounge room incidents that allegedly occurred when Mrs Wasley was sitting on the adjacent couch, simply could not have occurred in the manner as claimed. On its own, the fact Mr Wasley may have been brazen in his offending as described by CF, does not, in my view, necessarily cast doubt on the truthfulness and accuracy of CF’s accounts.
However more importantly, CF did not describe the Kilburn series of events either to Sergeant Sheldon when she first provided her statement to police, nor did she add this to her second statement provided to Detective Taylor, despite that second statement providing further detail with respect to the Kilburn home.
The Kilburn series of events represents a substantial component of the alleged offending. As CF described the Elizabeth Downs series of events in detail to Sergeant Sheldon, her explanation that she was uncomfortable and nervous with Sergeant Sheldon and unable to get a lot out, is difficult to accept. Further, the fact she made a second statement to Detective Taylor, elaborating on her first statement, was the perfect opportunity for her to add anything that was omitted on the first occasion. Her failure to inform Detective Taylor at that time as to the Kilburn series of events is extremely difficult to reconcile.
While CF explained that she did not think it mattered and she did not think to mention it, it must be understood that CF only reported the alleged offending to police in 2013, several years after it ceased, when she felt ready to do so. In those circumstances it is difficult to conceive that she would either forget to tell police about the Kilburn series of events or not think those many serious incidents mattered. In such circumstances, having lived with these memories for so long, one may have expected CF to tell as much of her story as possible to police, having waited for that period of time to do so.
If she felt uncomfortable or intimidated by Sergeant Sheldon, CF had the opportunity to correct the omission when she spoke to Detective Taylor in November 2016, but did not do so.
In my view, CF’s failure to include any mention of the Kilburn series of events either in her statement to Sergeant Sheldon or in the statement provided by her to Detective Taylor in November 2016 is a significant omission which causes me to have a doubt as to both the reliability and credibility of CF’s evidence.
I am required to scrutinise CF’s evidence with great care. Having done so, while it is possible that some or all of the incidents occurred as she described, I have sufficient concerns as to the reliability and credibility of CF’s evidence such that I am unable to find that the prosecution has proved the second and third elements of the offence beyond reasonable doubt.
Conclusion
I am not satisfied beyond reasonable doubt that the prosecution has established the objective elements of the offence as charged.
Pursuant to s 269M(B)(2) of the Act, I find Mr Wasley not guilty of the offence as charged and discharge him.