R v Wjm No. DCCRM-03-937

R v WJM
[2004] SADC 75
CRIMINAL – VERDICT
JUDGE DAVID SMITH
Introduction

The accused is charged on Information with six sexual abuse offences – two against TLM and four against MRC. Both complainants are the stepdaughters of the accused. He pleaded not guilty to all six charges and duly elected to be tried by a Judge without a jury (see s7 Juries Act 1927 (SA)). He then applied pursuant to Rule 9 to sever Counts 1 and 2 from Counts 3, 4, 5 and 6 on the basis that he would “be embarrassed and prejudiced by the conduct of his defence if the charges were heard together”. I query the appropriateness of such an application given that the offences were to be tried by a Judge without a jury (R v Abrahamson (1994) 63 SASR 139). Nonetheless, the Crown consented to the severance prior to the argument and so the trial proceeded before me as to Counts 3, 4, 5 and 6 which were offences alleged against MRC. The offending alleged in Count 3 is alleged to have occurred between July 1986 and December 1987 and the offending alleged in Counts 4, 5 and 6 is alleged to be one ongoing incident said to have occurred between 1^st January 1990 and 31^st January 1991.
The Charges
So the trial proceeded before me in respect of Counts 3, 4, 5 and 6, which, as amended at the close of the Crown case, charged the defendant as follows:
“Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 7^th day of July 1986 and the 31^st of December 1987, at Whyalla, had sexual intercourse with MRC, a person under the age of 12 years, by inserting his finger into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 1^st day of January 1990 and the 31^st of December 1991, at Whyalla, had sexual intercourse with MRC, a person under the age of 17 years, by inserting his finger into her vagina.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 1^st day of January 1990 and the 31^st of December 1991 at Whyalla, indecently assaulted MRC.
Sixth Count
Statement of Offence
Attempted Unlawful Sexual Intercourse. (Section 49(3) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 1^st day of January 1990 and the 31^st of December 1991 at Whyalla, had vaginal sexual intercourse with MRC, a person under the age of 17 years.”
Preliminary Directions
Before I turn to the evidence on both sides, I direct myself as to the elements of the individual offences and further, remind myself that the Crown must prove the elements of each offence beyond reasonable doubt. There are a number of more crucial matters arising from the evidence in this matter which demand my special attention such as:
·in respect of Count 3, whether or not the Crown has sufficiently identified or particularised the occasion of the alleged offending;
·the permissible use of evidence of uncharged conduct;
·the standard of proof required before it is permissible to act on evidence of uncharged conduct in proof of the offences charged;
·the extent to which a warning is necessary as to the evidence of the complainant having regard to the delay in bringing these allegations to the attention of the authorities; and
·the use, if any, to be made of the fact of the complaints by MRC to her mother in 1991 and 2002.
I will deal with these matters in due course.
Evidence
The Crown case consisted of evidence from MRC and her mother, DE. The accused gave evidence in his defence. He was the only Defence witness. He denied the offending and, amongst other things, he deposed to his own good character.
The alleged offending against MRC is said to have occurred in the family homes at, firstly, 5 Sutcliffe Street, Whyalla Stuart, and then at 10 Jeffries Street, Whyalla Playford.
I begin by setting out some matters about which there was no real dispute in the course of the trial.
Uncontentious Evidence
MRC is one of the four children of DE. MRC was born in Mildura on the 6^thJuly 1978 and so at the time of trial was 25 years old. DE’s other children are RC now aged 31, TLM now aged 29 and KC now aged 22. DE’s first three children were born in Mildura of the relationship between her and one RS. That relationship ceased after some seven years and at a time just prior to 1981 DE and her three children RC, TLM and MRC moved to Whyalla. A relationship commenced in Whyalla with LC. DE married LC in 1981. KC was the only child of that relationship. LC had a daughter of a previous relationship named J. The family lived at 5 Sutcliffe Street, Whyalla Stuart. In 1986 DE and LC separated and LC moved to Jabiru in the Northern Territory. The child J remained in Whyalla and for a short time lived at Sutcliffe Street. The children attended school in Whyalla though in June 1987 MRC and KC joined LC in Jabiru and while there attended the Jabiru school.
As at 1986, DE worked as a chef at Derham’s Foreshore Motor Inn at Whyalla. She worked a split shift, that is, she “would do the breakfast shift or the lunch shift, either one, and then go back of an evening for the dinner meal” (119). She would finish in the evening at about 11.00pm or midnight. Further, there were times when DE, in the course of her work at Derhams, would be required to travel to Adelaide and stay overnight for a “workplace meeting” (120).
The accused met DE in 1987 and moved in to live with her at the house at 5 Sutcliffe Street later in that year. In May 1989, the accused and DE, and the three youngest children, moved into the house at 10 Jeffries Street, Whyalla Playford.
Such are the background circumstances about which there is no dispute.
The offence charged in Count 3 which is the first alleged offending against MRC is alleged to have occurred at 5 Sutcliffe Street. The remainder of the Counts, namely 4, 5 and 6, are alleged to have occurred on the one occasion at 10 Jeffries Street, that time being the last occasion of offending against MRC. Further, there are allegations of sexual abuse which are not the subject of charges, but which are alleged to have occurred at 10 Jeffries Street.
I now turn more particularly to the evidence.
Prosecution Case
Count 3 - Unlawful Sexual Intercourse – insertion of finger into vagina – at Sutcliffe Street – between 7^th July 1986 and 31^st December 1987
MRC said that the first time something unusual occurred between her and the accused was at Sutcliffe Street. She said she was then about 8 years old (23). She shared a bedroom with KC, the youngest of her siblings. It was night time and KC was asleep. MRC described the incident as follows:
“I woke up and somebody was laying in my bed. I was facing the wall and I rolled over – because I had been awoken, I thought my mum must have got home from work, so I said her name. It was WJM there. I felt him remove his finger from inside me and he told me that mum would be home soon and he left” (23).
She explained that she felt his finger inside her vagina and awoke as he removed it from inside her vagina. She insisted the accused’s finger was “inside” her vagina (26).
As to more particularly identifying this occasion, MRC said:
·she was “around 8years old” (23). (NB she turned 8 on the 6^th July 1986);
·it was before she went to Jabiru (43, 45). (NB she attended Jabiru School in June of 1987; see Exhibit P2 Jabiru School Report);
·it was in the house at 5 Sutcliffe Street (22, 23).
She said that she did not say anything to anyone next morning and when asked why, she said “Uncomfortable situation. I don’t know” (25). She said that the experience was “all weird” (26).
MRC was not categorical about the timing. She said that she was “pretty sure” it was before she went to Jabiru (43, 45). Further, she was not categorical about it being the only time it happened at Sutcliffe Street. When asked if anything like that had happened before she answered “No, not that I know of” (23). What she meant by that was not made clear. She may have been there inferring that the accused interfered with her whilst she was asleep or that there may have been other occasions about which she has no memory.
Uncharged sexual misconduct at 10 Jeffries Street in about 1989, 1990
MRC said the family, including the accused, moved to 10 Jeffries Street when she started in Year 6, which she agreed was in early 1989 (21). There, she again shared a bedroom with KC. TLM had her own bedroom. She said that more sexual touching occurred at 10 Jeffries Street. When asked if she could estimate how often it occurred she said that she could not as “It happened too often” (26). She explained that at the start it was not often but then became “a more regular thing; at least a couple of times a week” (26, 27).
She described this regularly touching as “He would mainly touch my breasts, put his finger inside me, put my hand on his penis and make me masturbate him” (27). She said it happened always at night and KC was in the room. She said that when it happened she would be awakened, but out of fear would not say anything or even disclose that she had woken up (28, 29). As to more particularly identifying the period of this uncharged conduct, MRC said:
·it happened after the move to Jeffries Street; (27)
·it happened regularly through Years 6 and 7 (ie 1989 and 1990) (27); and
·it happened at night in the bedroom she shared with KC (27, 28).
Counts 4, 5 and 6 – Unlawful Sexual Intercourse – finger in vagina – indecent touching – attempted Unlawful Sexual Intercourse – between 1^st January 1990 and 31^st December 1991
MRC then described the last occasion. She said that on this last occasion she was sleeping alone in the bedroom as KC was sleeping in TLM’s room. Further, she said that her mother was away overnight. She said that she was 11 or 12 years old and in Year 7 (ie 1990) (27). She said that she awoke to find WJM laying on the bed. She said he had his finger inside her vagina. She said “I just – I laid still, like I always did” (30). She said that he then placed her hand on his penis and caused her to masturbate him (30). She then said that the accused got up on the bed and he was “in between my legs and he put his penis in my vagina and was trying to put it inside me” (30). MRC described how he was positioned so that he was supporting his weight on his arm. She said that she felt his penis was hard (30).
She described what happened in the following terms:
“A.I was trying not to cry, I was trying to still pretend that I was asleep, but I’d started shaking really badly and it started to hurt a lot and so I yelled out or I cried, so – I was trying to hold it in crying, because I was just making all these noises, but I just – I couldn’t anymore and I pushed him away, I pushed his chest. I said, like, ‘Stop it’ or ‘No’ or something.
Q. Did WJM say anything.
A.When I’d started whimpering and stuff he was saying ‘Shush’, like, to comfort me, but he kept doing it, and when I pushed him and told him to get off, he did.”
(31)
She said that he left the room and she lay there crying and unable to move. She said that the accused then came back into the room, sat on the bed and started rubbing her breast, and the following conversation took place:
He said “You wouldn’t make any trouble for me would you?”
She said “What do you mean?”
He said “You know what I mean”. (32)
MRC said nothing like that happened to her again. (32)
It is not without significance, say the Crown, that this incident constituting the three offences, including the attempt at sexual intercourse, took place when KC was not in the bedroom and DE was away in Adelaide overnight.
First Complaint –1991 alleged admission by accused
MRC said she did complain to her mother about what the accused did on the last occasion at Jeffries Street. She said that it could have been up to a year later. She said that she thought it was when she was in Year 8, that is 1991 (32, 33). DE confirmed that MRC complained to her “around 1991” (124). She later suggested that this conversation with MRC took place about 12 months before her marriage, which was the 4^th January 1992 (124). That would make the conversation about January 1991. However, the accused categorically said that the confrontation over MRC’s complaint occurred in early August 1991 (194). In any event, DE said that MRC said to her “that he tried to have sex with her” (124). DE made it clear that this allegation, on her understanding, related to an event at 10 Jeffries Street (135). She said that she did not seek any detail, but having heard it immediately confronted the accused in his office in the computer room (125). She said she “I asked him if it was true what MRC had told me” (126). Later in her evidence she said “I just asked him if he had touched her or if he had tried to get into bed with her” (126). According to DE, the accused admitted what MRC said was true. She said that, further, he explained that he had been drinking, he apologised and he apologised to MRC. DE said that he indicated that he would get counselling and that it would never happen again. Further, DE said he said he was sorry and had learnt his lesson (126). Later she said he was “crying and upset” (151). She explained that she did not consider going to the police “Because I loved him” (126). She said that the accused said that he would never touch MRC again and she believed him (127). She said that she asked MRC “to try and live with it” (127).
Aborted trip to Mildura – 1991
The next day DE packed up the car, and with MRC and K, left Whyalla heading off to Mildura (33). DE’s evidence about when she did this is a little imprecise (127). However, MRC, and indeed the accused, fixed the time of this event as the “day after” (31, 197). In any event, DE remembered the event itself, namely the departure and the return and what occurred. She said that she did not want to leave the accused (127). En route to Mildura at Port Augusta DE had MRC ring the accused from a public phone box and the end result was that she turned around and returned to Whyalla, where she resumed cohabitation with the accused (128).
MRC accepted that she spoke to the accused on the telephone from Port Augusta. She agreed that she told the accused that they all wanted to come home and in particular that she was sorry about the trouble she caused (34). DE herself emphasised that the reason she returned was not because MRC told her in the course of the car trip that she had made up the allegation against the accused (152). She said that MRC had “never ever” said that she had made anything up (152). Further, DE said that she never conveyed to the accused either that she disbelieved MRC or that MRC had admitted making the allegation up. Indeed, she made the point in connection with questions about this topic that the accused had admitted the allegation to her (153). She said that at Port Augusta MRC wanted to keep driving to Mildura (152). She asserted that she “asked MRC if she could work things out”. She said:
“I know that I asked MRC if she could learn to live with it, because I wanted to go back because I loved him and I asked her if she could – I was only thinking about myself”. (152)
So DE and her children returned to Whyalla. The accused and DE became engaged to be married around the time of the return from Port Augusta (154). They were indeed married on the 4^th January 1992. MRC said that when she heard the news of her mother’s pending marriage “I cried myself to sleep that night because of it” (36).
A Further Complaint early 2002 – further alleged submissions by accused
DE gave evidence of another complaint to her by MRC. She said this occurred in early 2002 when her marriage to the accused had broken down and she told the girls, including MRC, that she was leaving Whyalla and moving back to Mildura (128, 135). DE did leave Whyalla in March or April 2002 (137). She said that MRC told her that the accused had interfered with her when she was very young “when we were still in Sutcliffe Street” (135). She said that MRC told her that “... he used to go into her room at night-time and touch her” (135). She said she became very upset and as the accused was not at home she telephoned him and demanded that he come home which he did (136). According to DE, she put MRC’s further allegations to him and he responded as follows:
“He told me that he’d already – that it was already sorted out and worked out between us, that I’d already known about that, and I said ‘No, I only knew about the incident in Jeffries Street’, and he said ‘No’, he said ‘It’s already discussed’, and I said ‘Well, MRC can’t get over this’, and he said ‘Tell her to come around any time she likes and I’ll talk it through with her and I’ll try to help her through it.” (136)
Report to Police March 2003
MRC said that she complained to the police as late as March 2003. She did so as late as that because “... my sister was still having nightmares about what he did to her and I was still having nightmares. I wasn’t getting over it. Life doesn’t get any easier like you think it does with time. It doesn’t” (97).
This topic was revisited after much argument about its admissibility. MRC said about the late report as follows:
“Q.What was it about that telephone conversation that caused you to decide to go to the police, and tell us about the conversation if you need to.
A.She rang me because she didn’t want to go to sleep because, when she does, she has nightmares. We didn’t talk about anything relating to the incidents. She just wanted something – you know, just a chat about nothing, really, and it was just frustrating for me to know that she’s 28 and she still has nightmares and I’m now 25 and, still, it’s still there everyday. I just – it’s just wrong and something had to be done about it.
Q.Were you having nightmares at the time you had this conversation with TLM.
A.I have them on a regular basis.
Q.What are those nightmares about.
A.They involve WJM doing things like chasing me or just – in some sort of like a position of power over me, that he’s got this control over me of what he’s done. It’s always dark and just the things like he puts that terror into me, like chasing me, like somebody being attacked and just things that would scare a woman, you know what I mean? It just scares the crap out of me.
Q.How did you think that going to the police might help with your situation.
A.I just want justice. I’m hoping for some sort of closure, that this might help me to deal with it, that if he can pay for what he did to me. Nobody should get away with that.”
(114-115)
In summary, and much abbreviated, the above was the Crown evidence. I now turn to the Defence evidence.
Defence Case
The accused gave evidence.
He said that he first me DE in March 1987 and first went out with her in April 1987 (178). He said he moved into 5 Sutcliffe Street “around about the 23^rdJuly 1987” (178). He said that he first started “staying over” later in June and July 1987 (181). He accepted that he may have “babysat” the children prior to moving in (181, 182).
He denied that he molested MRC as she alleged at 5 Sutcliffe Street either before or after she and KC’s time in Jabiru (182).
He said that he found a house at 10 Jeffries Street, Whyalla Playford, purchased it and the family moved in on the 19^th May 1989 (188).
Again, the accused categorically denied MRC’s allegation of ongoing sexual assaults at Jeffries Street. Further, he denied the conduct the subject of Counts 4, 5 and 6 and the alleged conversation about “making trouble” (190, 191). He accepted that there were occasions when KC would sleep in TLM’s room (192).

In particular, the accused said that in the years up to 1991 the house functioned normally and in particular he noticed nothing untoward about MRC’s demeanour. There were the usual family outings, birthdays, Christmas and Father’s Days which passed happily (193). He said that in 1991 DE confronted him with an allegation concerning MRC. He said this was in August 1991 (193-195). He said DE came into the kitchen and asked him he had “tried to do it” with MRC and angrily proceeded to hit him. He said he denied it and an argument proceeded for hours (195). He said the argument developed into a dispute about their relationship. He said that eventually DE indicated that she was thinking about going back to Mildura to consider her position with him (196). The next day the accused said that whilst he was at work DE indeed left in the car and headed off to Mildura with KC and MRC. As indicated, the accused said this occurred in August 1991 (194, 195).
Then whilst at work he said he received a phone call from MRC who said “I’m sorry about all the trouble I caused. I want to come home” (197). According to the accused, his response to MRC was “I want to make sure it’s fully sorted out with your mother before you come home” (197). He said that he then spoke with DE on the telephone and she too wanted to come home and sort it out. According to the accused, DE indicated to him on her arrival back at Jeffries Street that she believed that MRC had made it all up and that she didn’t believe her (198). The crisis ended with the matter “all sorted out” and the accused said that they all hugged and kissed (199).
In particular, the accused denied that he admitted to DE any impropriety at all with MRC such as DE alleged (199, 200). He said that on the same date DE proposed to him. He said he accepted after a few moments of consideration and that again the family, including MRC, all hugged and kissed each other (200).
The accused then described the ensuing years as being normal and happy. He pointed to an array of photographs and a video film as indicating happy family gatherings in which MRC, for instance, appeared as a happy, unperturbed growing child. He said that the problem of August 1991 had definitely been sorted out and “... we were all happy. It had definitely been sorted out. We had a good relationship” (204). The accused then pointed to a number of ongoing examples of him having a happy comfortable relationship with MRC, which by implication was inconsistent with him having committed any sexual improprieties against her such as:
·MRC arranging for him to copy the video camera films of the birth of her baby T from the camera tape to a VHS cassette (209);
·Purchasing for MRC a washing machine and money to assist her setting herself up in rented accommodation (210);
·Paying for MRC, her baby and her furniture to be brought back from Leeton, New South Wales, after she had gone there with her abusive boyfriend (211);
·Babysitting MRC’s baby T;
·Scanning family photographs and in particular MRC’s photographs (214, 215);
·Paying, on behalf of MRC, a bond for premises being leased by her at Tyler Crescent (216);
·Assisting MRC with her assignments for her TAFE studies (217); and
·Finally, paying MRC’s $100 training fee to assist her with a job at BHP should one materialise (218).
The accused then said that by the middle of 2001 his relationship with DE was deteriorating (218). There was strife between DE and himself concerning, amongst other things, his relationship with a certain CN (220). He said that MRC had seen him and CN together and was reporting such behaviour to DE (220). He said that he and DE talked about separation and in particular a property settlement (220, 221). The accused said that “the girls”, namely MRC and TLM, were siding with their mother against him (221). In particular, the accused said that the confrontation with DE in early 2002 when he was angrily summonsed home from the hotel by DE was not about allegations against him of sexual abuse against MRC at Sutcliffe Street, but was about the property settlement he had struck with DE. He said that DE was motivated to confront him by the fact that “the girls” thought that DE deserved more (222). The accused specifically denied that any allegations as to sexual impropriety at Sutcliffe Street were ever put to him by DE, much less admitted by him (222).
Then the accused said that even after DE had left Whyalla in April 2002 she telephoned him and threatened that if her son R – who worked in the accused’s firm – were to lose his job, they, and TLM in particular, would fix him up (223). The accused said that TLM had indeed sent him threatening text messages (223).
So in summary the accused’s evidence in chief came to a conclusion with him alleging broadly against his wife DE and against both his step daughters MRC and TLM a mounting resentment about his relationship with CN and about the inadequacy of the property settlement concluded between him and DE (226, 227).
In early March 2003, the accused said that RC’s job was in jeopardy and that RC had been very vocal at one of the workers’ meetings (229). In the end, but well after March 2003, RC’s job became more secure. On the 19^thMarch 2003 the accused was arrested. He acknowledged that and said that on legal advice he declined to answer any questions (229). He gave evidence of his own good character by drawing my attention to the fact that he had neither been charged nor convicted of any offences (229).
So that in summary was the Defence evidence.
Issues Arising from the Crown Case
There are a number of issues which I have already flagged which arise out of the Crown Case and which constrain the way in which I should weigh up the Crown evidence. I turn to those now.
Whether Count 3 is sufficiently particularised in the evidence – duplicity
In the course of the trial there was some discussion about whether or not the conduct was sufficiently identified particularly in relation to Count 3. The Court must be able to identify and precisely relate the conduct alleged in a particular charge on the Information with the evidence in the trial (see Johnson v Miller (1937) 59 CLR 467 per Dixon J at 489; S v The Queen (1989) 168 CLR 266). Clearly there cannot be multiple instances of alleged misconduct any one of which is capable of being referable to a particular charge (see S v The Queen (supra) at 273-275; see also R v Clifford [2004] SASC 104).
So the allegations or evidence of offending must sufficiently:
·identify the occasion;
·fit the description of the offence charged; and
·be distinguishable from similar incidents of, for instance, uncharged conduct suggested by the evidence.
There are some difficulties with Count 3 which I will come to in a moment.
Permissible use of evidence of uncharged conduct – standard of proof
I turn to the evidence of MRC as to the uncharged criminal conduct alleged by her at 10 Jeffries Street prior to the last occasion, the subject of Counts 4, 5 and 6. The accused denies these allegations.
I remind myself, as I would a jury, that a person is not to be convicted upon the evidence of a mere disposition or propensity to commit a crime based on other unlawful conduct. This evidence of uncharged conduct, if I accept it to be true, can be used by me in proof of Counts 4, 5 and 6 in the following ways:
·it is evidence that the offending, the subject of Counts 4, 5 and 6, was not an isolated instance, but was the last occasion of a continuous pattern of escalating sexual activity;
·it is evidence that the accused was sexually attracted to MRC;
·the pattern or course of such conduct is evidence which may explain the ongoing submission of MRC without complaint even to her roommate; and
·the established pattern is evidence which would be capable of explaining the confidence the accused would have felt in sexually handling MRC in a household of other family members, there being in place an established code of silent submission which he could count on continuing.
I will not act on or rely on such evidence unless I am satisfied that it has been proven to have occurred (see R v Nieterink (1999) 76 SASR 56 per Doyle CJ at 72, 73). I doubt in this case whether this conduct is an indispensable link in reasoning to guilt bearing in mind that there is evidence of admissions by the accused capable of corroborating MRC’s testimony. Nonetheless, I will not act on this evidence of uncharged conduct unless I am satisfied of its truth beyond reasonable doubt (see Nieterink (supra) per Doyle CJ at 73).
I direct myself as to the mischief of propensity and similar fact reasoning. In particular, I remind myself, in the end, that I cannot convict unless satisfied beyond reasonable doubt as to the elements of each of the Counts considered separately.
Complaint Evidence 1991 and 2002
The Crown specifically did not lead the fact of the complaints by MRC to her mother in 1991 and then in 2002 as “recent contemporaneous complaints”, which could be used in assessing the credibility or consistency of the complainant. It was before me only as part of the context and in particular to put the accused’s alleged admissions into the appropriate context.
So the complaints by MRC to her mother in 1991 and 2002 are neither evidence of the truth of the contents of the complaint nor evidence going to MRC’s believability or consistency.
Of course I heard the content of the complaint from the recipient DE in order to make sense of the alleged admission of the accused.
Separate Consideration of the Counts
There are four counts to consider. I must separately consider each count. Having said that, there is some cross admissibility. The evidence as to Count 3, if proved beyond reasonable doubt, can be used by me in proof of the remaining counts in the same way as I would use or act upon the uncharged conduct at the Jeffries Street house. So that evidence, as to Count 3, is admissible to prove the other counts in those ways and those ways only.
Counts 4, 5 and 6 are discrete parts of the one occasion. So, there is evidence common to each count such as the circumstances in which the accused came into the bedroom and the soothing and then later threatening conversation. Indeed, the progression itself, from the digital penetration of the vagina and other touching, to the attempt at intercourse, is all cross admissible one count to the other as is the fact of increasing regularity.
Having said that, the focus must be on the individual charges and whether or not the Crown has proved beyond reasonable doubt the elements of each offence.
Of course a view held by me about the credibility or reliability of any one of the three witnesses as to evidence given with respect to one count might in practical terms affect his or her credit on another.
Delay – s34I(6a) Evidence Act 1929 (as amended) – warning - Longman
MRC finally complained to the police in March 2003. The first of the alleged offending was approximately 16 years earlier.
On the Crown case there was a complaint by MRC to her mother in 1991, about the conduct alleged to have taken place in 1990, that is the conduct the subject of Count 6. If the Crown witnesses are accepted, the allegation of attempted sexual intercourse was suppressed by MRC under pressure from her mother. Then in 2002 there was a complaint by MRC to DE about the 5 Sutcliffe Street offence, (ie Count 3).
Accordingly, on any view of the facts there is a substantial delay. This does not necessarily mean that the allegations are false and further, in this case, there are arguably valid reasons for delay in making the complaint (see s34I(6a) Evidence Act). In relation to the allegations in respect of Sutcliffe Street, MRC said she was very young and mystified by what had happened. In respect of the allegations of what happened at Jeffries Street, there was on the Crown evidence a limited complaint within, at the most, 12 months. Taking the matter further to the authorities was, on the Crown evidence, effectively suppressed by MRC’s mother. Also the Crown evidence would support the contention that until disharmony arose in the marriage there existed considerable pressure on MRC to remain silent.
The question is whether a warning is necessary such as that articulated in Longman v The Queen (1989) 168 CLR 79.
The Longman warning, which necessarily is predicated upon the avoidance of the risk of a miscarriage of justice, is triggered by delay between the time of the alleged offence and the first complaint about it and any consequential risk of forensic disadvantage to the accused arising therefrom (see R v BFB (2003) 87 SASR 278 per Doyle CJ at para 38). It is enticing in this case to reason that no such warning needs to be given because the Crown case is not wholly dependent on the evidence of MRC. The evidence of DE of the accused’s response to her accusations in 1991 and 2002, if accepted, corroborates much of MRC’s testimony as to the offending. His responses, as recounted by DE, if accepted, amount to admissions of the attempted sexual intercourse in 1990 and the unlawful sexual intercourse at Sutcliffe Street in 1987. However, the existence of evidence capable of corroborating the allegations does not necessarily eliminate the need for a Longman warning (see Doggett v The Queen (2001) 208 CLR 343 per Gaudron and Callinan JJ at 357; see also BWT (2002) 129 ACrimR 158 per Sully J at 195). The risk of the accused suffering forensic disadvantage is the primary focus (see R v BFB (supra) per Doyle CJ at para 38; see also R v RWB (2003) 87 SASR 256 per Besanko J). Here the delays are all significant. There is the potential therefore for the accused to suffer a forensic disadvantage.
Accordingly, I warn myself that it would be dangerous to convict the accused, even in part, on the basis of the evidence of MRC without having first scrutinised the evidence and in particular her evidence with great care. And further, I warn myself that it would be even more dangerous if I found the evidence of DE, as to the alleged admissions, to be unacceptable either by itself or by reason of the accused’s evidence raising as at least a reasonable possibility that no such admissions were made. In such an event, the Crown case would be wholly reliant on MRC’s testimony.
Further, I give myself that warning not only in respect of the charged conduct, but also in respect of the uncharged conduct (see R v RWB (supra) per Besanko J at 19, 20).
Issues Arising from the Defence Case
In considering the Defence evidence I direct myself as follows:
·that nothing adverse is to be inferred against the accused for declining to answer questions of the police when arrested;
·that the accused was not obliged to answer the charges by giving evidence but has done so exposing himself to cross-examination and so his evidence is to be considered by me on the same basis as other evidence in the trial; and
·that I have evidence before me of the accused’s good character and so I direct myself in accordance with the principles set out in the R v Trimboli (1979) 21 SASR 577.
Finally, I alert myself to the fact that the exercise is not to evaluate the respective versions but rather to determine whether or not the Crown has proved the elements of each charged considered separately beyond reasonable doubt.
Findings - Reasons for Verdicts
I have considered the arguments of Crown and Defence. I will canvass the crucial contentions hereunder.
Since I am here turning to an examination of the evidence, I particularly acknowledge the directions I have previously averted to. As to the Longman warning, the direction to myself could be usefully set out in the following propositions which I have distilled from the judgment of Sully J at 189 in BWT (supra):
·because of the passage of time the accused has lost the opportunity, adequately, to test the evidence of MRC and DE;
·it would be dangerous to convict on the basis of their evidence;
·however, I am entitled to act upon that evidence if satisfied as to its truth and accuracy;
·I cannot be so satisfied with having first scrutinised it with great care taking into account evidence in the case which bears upon the truth and accuracy of MRC’s evidence and to a lesser extent the evidence of DE; and
·at every stage of scrutinising the Crown evidence I must take serious account of the warning as to the danger.
I say at the outset that I accept that both MRC and DE were truthful witnesses. MRC’s evidence as to some detail was at times, understandably, a little vague, particularly as to Count 3, but in respect of other matters it was not lacking in any crucial or material respects. In particular, I reject the overall contention of the Defence that MRC and her mother, DE, were in a “joint enterprise” to fabricate a case against the accused. In all, I consider their evidence consistent and wholly convincing.
I consider that the delay in the emergence of these allegations began with an unfortunate family agreement to suppress the allegation of attempted sexual intercourse. I reject the accused’s denials of sexual misconduct alleged against him. In my view, his evidence does not raise a reasonable possibility that the misconduct charged did not occur.
I turn to the main contentions put to me by Defence counsel, Ms Powell QC.
The following contentions were effectively that the evidence of MRC, supported as it is by that of DE, is untenable and intrinsically unlikely.
I turn firstly to what Ms Powell QC characterised as the Crown’s “fundamental problem”. The argument was essentially that MRC complained to her mother of something materially different to what she told the Court. In summary form, the argument was as follows:
·the source of DE’s knowledge of what happened to MRC was MRC;
·in 1991 MRC told her mother that the accused had tried to have sex with her (124) at Jeffries Street (135);
·DE then immediately confronted the accused with that allegation (125);
·in early 2002 DE was told by MRC that the accused “used to go into her room at night time and touch her” (135) at Sutcliffe Street;
·DE then immediately telephoned the accused at a hotel demanding that he come home, and on the Crown case, then confronted him with that allegation (136);
·but in evidence MRC said there was only one incident at Sutcliffe Street and numerous incidents of sexual assault culminating in attempted sexual intercourse in 1990 at Jeffries Street.
Counsel, Ms Powell QC, said this constituted such a fundamental inconsistency that the Crown case simply could not discharge its onus. I do not agree.
In grappling with this submission I need to remind myself about the admissibility of the evidence here involved. MRC said in evidence that in 1991 she complained to her mother in the following terms:
“I told her that WJM had been touching me” (33).
She explained that she told her mother it was sexual touching (33). She was not cross examined about this. What she said, on its face, cuts across Ms Powell’s QC submission because it implies more than one incident of sexual impropriety at Jeffries Street. As to the content of the second complaint to her mother concerning what happened at Sutcliffe Street in early 2002, there was no evidence directly from MRC.
As a matter of strict principle the content of MRC’s complaints to her mother, both as to the truth of them and also as to the fact of them, are inadmissible. Firstly, the fact of what was said by MRC, either from her or from her mother, cannot be received by me as evidence going to her consistency and credibility because the complaint is not a “recent complaint”. Further, the contents of the complaints, as deposed to either by MRC or her mother, cannot be received for their truth because to do so would offend against, respectively, the rule against self corroboration and hearsay.

So is it the case that in weighing up the submission I am confined to considering only what DE says was the content of the complaint?
In my view, this is unfair to the witness whose credit is being impugned, namely MRC. The submission is effectively a plea that I should use the statements made by MRC as deposed to by her mother as prior inconsistent statements without the witness whose credit is impugned thereby, namely MRC being given an opportunity to address the alleged inconsistency.
Further, I was told by counsel for the Crown, Mr Crowe, that the content of the statements of complaint were before me only to make sense of the alleged admissions of the accused.
I think if the Defence wish to impugn MRC in this way then what is put to the tribunal of fact as achieving this should also have been put to her. I say this conscious that the accused bears no overall onus. However, serious unfairness to the complainant arises if the technical view of the rules of evidence are applied as I have suggested.
Having said all that, resolving this difficulty is unnecessary in this case because it is my view that this submission is only marginally compelling for the following reasons.
That MRC conveyed to her mother in 1991 only that the accused attempted to have sexual intercourse with her at Jeffries Street when her evidence alleged other sexual activity, whilst inconsistent is neither inexplicable nor alarming. After all, MRC was then only 12 or 13 years old. She had on her evidence tolerated an ongoing regime of sexual touching commencing in 1987 and increasing in frequency. However, the single activity which immediately preceded the complaint was the first time she had been hurt by the accused when he attempted to insert his penis into her vagina. It was the last time on MRC’s evidence that the accused had sexually abused her. She said it “hurt a lot” so much so, for the first time in her encounters with the accused, she cried and pushed him away (31). So it is little wonder she reported that to her mother. Indeed, DE said that MRC was “scared” when she came to her (150). The fact that MRC volunteered no further information about the alleged long history of abuse is again not surprising. It is not unreasonable to infer that she could not tolerate this new hurtful abuse. Further, her mother did not seek further detail from her. In my view, there would be an understandable reluctance on the part of the child to volunteer the long history of distasteful happenings to her mother who plainly liked the accused. As to the 2002 complaint, I consider that the witness DE was, in recounting that episode, concerned not so much with the details of what was alleged to have happened, but the place where it happened, namely Sutcliffe Street. Further, to find that the Crown case was fundamentally flawed in the way contended for would be to give to the evidence fuelling the submission a cogency which is simply not warranted by the hesitant way in which it was treated by both Crown and Defence counsel.
Then Ms Powell QC asked why in 1991 the 13-year-old MRC did not make full disclosure to her mother but only complained of attempted sexual intercourse. Again, I do not regard that as a compelling indication of unreliability. I repeat that DE neither sought nor waited for any detail but immediately went to confront the accused (125). It is probably not without significance that the last offence on MRC’s evidence hurt her. DE, I accept, was in love with the accused. This was plainly not welcome news to her and MRC must have been aware of that.
Ms Powell QC then contended that I should infer that when MRC rang the accused from Port Augusta at the instigation of her mother and said words to the effect that she was sorry for all the trouble she had caused, that she was there withdrawing her allegation. I decline to draw such an inference. For a start it does not reasonably arise from those words. Rather, what was plainly obvious from all the circumstances surrounding the trip from Whyalla in 1991 was that, despite the revelations, DE loved the accused and did not want to leave him. So she induced the 13-year-old MRC to make the call. What is also clear is that what MRC said to her mother was causing the disintegration of the household. In my view MRC’s expressed sorrow is more likely to be due to that.
So I do not equate the expression of sorrow as amounting to an admission that the earlier allegation was false. Indeed, it appears that the accused himself did not draw such an implication from the telephone call from MRC. He did not contend that MRC ever, personally at least, withdrew any of her accusations (266). DE also made that point (152).
The next contention by the Defence was that I should regard it as intrinsically unlikely that the accused would and DE agree to marry in the wake of the accused having admitted sexually abusing MRC. I agree that what occurred following the return from Port Augusta, namely the engagement to be married is a little mystifying, but not necessarily improbable bearing in mind that DE was in love with the accused and bearing in mind also his abject apology and undertaking as to the future. Indeed, on the basis of the accused’s evidence, his agreement to marry in the wake of such a distasteful allegation without procuring a categorical withdrawal from MRC and without putting in place some measures to protect himself from further such allegations, is equally mystifying. Indeed, it could be said that agreeing to marry DE was some guarantee that the allegations would remain suppressed.
I was asked to give myself a Jones v Dunkel direction on the basis that the Crown did not explore with MRC an explanation of the trip to Mildura or the reason for returning upon reaching Port Augusta. I was asked to infer that what MRC might have said on these topics “would not have helped the Crown case”. The current state of law in relation to such direction suggests that it would be inappropriate to do so (see R v Alexander (2002) 6 VR 53 and Dyers v R (2002) 210 CLR 285). I do not propose to explore the necessity for doing so because I do not agree with the premise. The evidence of MRC and her mother as to the circumstances of the trip to Mildura and the return from Port Augusta make the whole event entirely explicable. As indicated it was provoked by the admission of the accused. The return from Port Augusta was provoked by DE’s change of heart due to her feelings for the accused coupled with MRC’s acceptance of her mother’s wishes. I accept DE when she said that as at 1991 she and the accused had a “good relationship” (151). So disharmony in the relationship did not provoke the trip to Mildura other than that which was caused by MRC’s revelation. The fact that TLM did not accompany DE, MRC and KC on the trip is certainly not adequately explained. I note that both DE and MRC would not readily accept the proposition that TLM was left at home with the accused (see MRC 108; see also DE 151). TLM was then 17 years old. I am not deflected from my conviction about this issue by this point concerning TLM.
Then it was contended that in the years from 1991 to 2002 there was no objective evidence indicating disquiet in the family. I was referred to the photographs and video and the evidence of the instances of personal help provided to MRC by the accused. MRC and DE did not agree with some of the claimed instances of personal help. They are small matters. It was said that such evidence puts a lie to MRC’s claims that she was revolted by the accused. It was said that this material showed a normal happy growing child. However, I was struck by and accept the cogency of MRC’s repeated retorts to that proposition, namely that for the sake of her mother she was “trying to be normal” (62, 97). I accept for instance that though MRC’s infant daughter T was left at Jeffries Street, DE confirmed MRC’s evidence that she, MRC, had stipulated that the child was not to be left alone with the accused.
Ms Powell QC contended that by early 2002 when MRC complained to her mother again, there were in place grounds for false accusations. She pointed to the accused’s infidelity, the fracturing of the marriage and the alleged wrangle over matrimonial property. She drew attention to the evidence that “the girls”, namely TLM and MRC, were “siding” with their mother. All of that I accept is arguable and by itself would cause me concern, but it does not adequately explain the events of 1991. Further, if DE, when she finally departed from Whyalla for Mildura in April/March 2002, was a woman scorned who was hell bent on revenge because of her husband’s infidelity and an inequitable property settlement and her daughters were in cahoots with her, why did it still take a further year, (ie March 2003), for the matter to come to the attention of police? In my view, the most acceptable explanation is that given by MRC as to why, finally, she reported the matter, namely that she was continuing to have emotional difficulties with what had happened to her and learned then that TLM claimed to be experiencing the same problems (97, 114, 115). Clearly by then MRC was free of the shackles of the accused living with her mother, but that, in my view, does not erode my conviction as to the true motivation. In this respect, I also take into account and dismiss the rather weak suggestion that it was at about the time of the police report that RC’s employment with the accused was in some jeopardy.
I turn to the charges and my assessment as to whether, on the Crown evidence, which I accept, the charges have been proven beyond reasonable doubt.
Count 3
As to Count 3, fixing the time of the offending other than putting it within a broad timeframe cannot be done. Was it before or after the month or so at Jabiru? MRC said a number of times that she was pretty sure it was before she went to Jabiru (43, 45), which was June 1987. On that basis, to coin Ms Powell QC’s phrase, there was but a “small window of opportunity” for the accused to commit the offence. The accused said, and DE did not say otherwise, that he first went out with her on 20 April 1987 and did not move into Sutcliffe Street until July 1987. DE said however that the accused was “staying over” before he moved in (143) and further, that he looked after the children when she was at work (143, 144). She said he would stay over “fairly regularly” (145). MRC also said that the accused “Even if he wasn’t living there, he was certainly there a lot and stayed there most nights” (44).
Ms Powell QC contended that even given the earlier “staying over” it is unlikely that the accused would so early in his relationship with the family be brazen enough to enter MRC’s bedroom and do what is alleged. Ms Powell QC made the compelling point that such behaviour, given no real time to build up any relationship or semblance of trust, was inherently unlikely.
I am convinced, based on my acceptance of MRC’s evidence, and the evidence of her mother, that the offending did take place and at Sutcliffe Street. However, placing it within the period charged, namely 7^th July 1986 and 31^st December 1987, is not possible, at least with any conviction, given the necessity to do so beyond reasonable doubt and bearing in mind the warning. If I was convinced that it was a single occasion at Sutcliffe Street, then I would have entertained an application to amend to widen the charge period; but I am not so convinced, based on MRC’s reserved response to whether there was only the one occasion of improper touching at Sutcliffe Street (23). So, Count 3 is not proved beyond reasonable doubt.
I turn to the uncharged conduct at Jeffries Street.
Uncharged Conduct
I am satisfied beyond reasonable doubt that this conduct occurred, escalating in regularity, in the course of a year or so as MRC said. I use this conduct in the way I have already alluded to. The fact that it became more frequent is probative of in particular Count 6 in the sense that it is evidence that the accused had a growing sexual attraction for MRC which then progressed to a new stage, namely that of attempting penetration. Notably this was at a time when KC was not in the bedroom and DE was away overnight.
I warn myself in accordance with Longman as to this conduct as well.
I now turn to Counts 4, 5 and 6.
Counts 4, 5 and 6
I am satisfied that the Crown have proved beyond reasonable doubt Counts 4, 5 and 6. Necessarily I am convinced that there is no reasonable possibility that the accused’s denials of the offending are true.
It is not incumbent upon me to identify the central evidence upon which I act and the basis upon which I prefer the evidence of MRC and DE to that of the accused (see R v Keyte (2000) 78 SASR 68 per Doyle CJ at 80, 81). What I have said of the Defence contentions indicates some of my views. Further to that, I indicate that the evidence of MRC and DE had a cohesive consistency about it and a clear ring of truth to it. The admissions by the accused were an important part of the Crown case and were important to my considerations. DE’s evidence of the 1991 admission was not only itself convincing but also it was supported by the fact of and the circumstances surrounding the aborted trip to Mildura. The accused was driven, falsely, to claim that the trip to Mildura was motivated by DE’s wish to review their relationship, rather than a conviction, given the admission that her daughter’s complaints were justified. I accept DE’s retort that the relationship was otherwise good in 1991. The engagement supports all that. She said there had been previous talk of marriage. Again the accused denied, falsely, that the confrontation in about March 2002 was about MRC’s further allegations of sexual misconduct at Sutcliffe Street but claimed it was about DE’s disenchantment with the property settlement. Again, I accept the evidence of DE that such was not the case. The sudden angry summonsing of the accused from the hotel does not fit in with this. DE said, and I accept it, that whilst the break up was not pleasant she left on “good terms” (137). Certainly, whilst the understandable anger provoked by the accused’s infidelity and perhaps even the property settlement was capable of providing a motive for a false accusation, what emerged from the accused’s evidence and the cross-examination of MRC and DE failed to establish as a reasonable possibility that provoked by such matters MRC and her mother fabricated the allegations. Indeed, the responses of MRC and DE to the penetrating cross-examination served to reinforce my views about the cogency of the Crown case, given the need for careful scrutiny.
Finally, I accept that a witness’s demeanour can be an elusive aid to credibility and reliability. However, after the most careful scrutiny I am satisfied that both MRC and DE were patently credible and save for the matters addressed by me in relation to Count 3 they were reliable.
I am convinced beyond reasonable doubt that the Crown has proved the elements of each of Counts 4, 5 and 6 beyond reasonable doubt. I reject the evidence of the accused as to these counts.
CONCLUSION
Accordingly, my verdicts are as follows:
·Count 3:    Not guilty
·Count 4:    Guilty
·Count 5:    Guilty
·Count 6:    Guilty.

[2004] SADC 75

21 May 2004