R v Y-B, P - [2007] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Y-B, P
Criminal Trial by Judge Alone
[2007] SADC 120
Reasons for the Verdict of His Honour Judge Soulio
9 November 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of unlawful sexual intercourse with a child under the age of 12.
Evidence Act 1929 s9; Criminal Law Consolidation Act 1935 s5; R v Randall (1991) 55 SASR 447; Longman v R (1989) 168 CLR; R v RWB [2003] SASC 420, referred to.

R v Y-B, P
[2007] SADC 120
Introduction
1The accused is the natural father of C. C alleges that in the period from 1 August 1997 to 31 December 1997 the accused performed an act of unlawful sexual intercourse with her. At the time of the alleged offence C was a person under the age of 12 years. The Crown case also alleged that a series of indecent assaults, which were not the subject of any charge, occurred both prior to and subsequent to the charged act.
2The accused elected for trial by judge alone pursuant to s7 of the Juries Act 1927.
3At this point I pause to make comment that the defence case was run on a somewhat unusual basis. The accused gave evidence that he was, at the time of trial, in custody as a result of being sentenced in respect of sexual offences committed against another daughter and step-daughter. He was first incarcerated on 21 January 2003. He is due for release on 21 January 2010. He denied the present offence and said that if he was guilty he would have confessed to this offence at the same time as he confessed in full and frank terms to the allegations which led to him being sentenced to imprisonment previously.

The charges
4The Information charged the accused as follows:

Statement of Offence
Unlawful sexual intercourse with a Person under 12. (s49(1) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
PY-B between the 1^st day of August 1997 and the 31^st day of December 1997 at Woods Point, had vaginal sexual intercourse with C, a person of the age of 9 years.

Elements of the Offence
5It is necessary to give consideration to the elements of the offence and to the onus of proof. In addition it is necessary to consider the use which may be made of evidence of uncharged conduct; the warning which is necessary given the delay in bringing attention to the matters the subject of the present trial; and the use if any to be made of the original “complaint” by C.

6The accused is charged with unlawful sexual intercourse with a person under the age of 12 years of age. The Crown must first prove beyond reasonable doubt that the accused had sexual intercourse with C during the period charged. The second element of the charge to be proved beyond reasonable doubt is that C was under the age of 12 years at the time the sexual intercourse occurred. This element of the charge was not disputed, C having been born in 1988 and the offence alleged to have occurred when she was eight or nine years of age. Consent on the part of C is not a defence to the charge. The charge is proven if the two elements are established regardless of whether C consented.

Directions

The accused is of course presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. The burden of proving each element of the charges lies wholly on the prosecution. The accused is not obliged to prove anything. The accused in putting forward a defence is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In using the term “satisfied” in this verdict, I mean satisfied beyond reasonable doubt.
I also remind myself that in considering the charge it is not simply a question of preferring one version of events over another but rather determining whether or not the Crown has proved each of the elements of the offence to the requisite degree.
The offence here is alleged to have occurred almost ten years ago. The first time the matter was raised by the complainant was in 2005. As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint[1].
[1] Evidence Act s34I(6a)
However the lapse of time is such that there is a risk that the accused has suffered a forensic disadvantage. Because of the delay, there is the potential that the accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence, if he chose to do so, to counter the allegations as he would have been closer to the time they are said to have happened. In those circumstances and as the case against the accused is C’s unsupported evidence, I must scrutinize her evidence with great care and be aware that unless I am completely satisfied of its truth and its reliability, it would be dangerous to convict the accused[2].
[2] Longman v The Queen (1989) 168 CLR 79
For the same reason I must also exercise a similar caution when considering the evidence of uncharged acts, and be aware that it would be dangerous to find those acts proved unless after the same close scrutiny of her evidence, I am satisfied of its truth and accuracy[3].
[3] R v RWB [2003] SASC 420 per Besanko J at par 60
The Evidence
The Crown case comprised the evidence of C. In addition Detective Brevet Sergent Husdell gave evidence, principally being the record of interview of the accused. The video of the record of interview, and a transcript were tendered, together with a bundle of photographs of the house at which the offence is alleged to have occurred.
The accused gave evidence in his own defence and was the only defence witness. He denied that the offending took place. A bundle of letters and envelopes sent by the complainant to the defendant were tendered as part of the defence case.
The Prosecution Case
The complainant, C, gave sworn evidence. At the time of trial C was 18 years of age. I made an order that she give evidence on closed circuit television. I further ordered that the court be closed whilst she gave her evidence. The accused is her natural father. He is also the natural father of her full sister, P. During the course of his marriage with C’s mother but prior to C’s birth, the accused fathered a daughter J, with another woman, WB. After the birth of P, the accused left his wife, C’s mother, and took up a permanent relationship with WB, and fathered a fourth daughter, T. WB had another daughter, N, the step-sister of C.
C gave evidence that the incident, the subject of the charge, occurred at a farmhouse which her father occupied. At that time her father had a job repairing outboard motors. The house, and his workshop, were in the Murray Bridge area. C gave evidence that at the time of the incident, when that particular property was her father’s residence, C was in year three or four at school. She said that the incident occurred after her parents separated. She went to visit her father. There was a routine whereby she and the accused and some of her siblings would watch movies on video, on Saturday nights.
On the night in question she said that she had watched a video. She recalled the accused and WB drinking from a large bottle of port. She said that she went to sleep and later woke to go to the toilet. The accused came out of the bedroom he shared with WB. She said that the accused was naked and often walked around the house naked. C was wearing a nightgown. She said that the accused said that he had to show her something in the rumpus room. She accompanied him to the rumpus room, a detached room in the backyard. She assumed that he had purchased a puppy. She said they entered the room and the accused locked the door. He asked her for a kiss. He removed her clothes and lay her on a sofa. She said that the accused touched her on the vagina both on the outside and on the inside and assured her that they were doing nothing wrong. She said that he then inserted his penis into her vagina, which caused her pain and she started to cry. She said that whilst he was engaging in intercourse she was looking out the window at the moon. The accused suddenly stopped the sexual activity, kissed her on the forehead, and said goodnight. C said that after the accused had left she noticed blood on her legs. She dressed again, and then went to the bed she shared with her stepsister N.
Uncharged acts
The complainant gave evidence that prior to the incident which is the subject of the charged act the accused had put his hand inside her underpants on a number of occasions. She said that it felt wrong. She said that nevertheless she liked going to visit the accused because she liked playing with her stepsister N. Following the incident constituting the charged act, she said that the accused continued, on various occasions, to touch her nipples, or touch her vagina. In cross-examination prior statements, inconsistent with her evidence, were put to her. I will return to discuss the significance of those prior statements.
The Accused’s evidence
As I have said, the accused denied that there was any sexual contact between him and the complainant. He conceded the allegations that were put to him in relation to the matters which led to him being imprisoned. Indeed he said that he was so anxious to avoid the complainants in the previous matter having to give evidence, and so anxious to have the matter concluded, that he pleaded guilty to a variety of matters including offences which he in fact had not committed. He was subjected to a sustained cross-examination in relation to that issue, and ultimately I have some reservations about his evidence as to the extent of his admissions upon being interviewed, and about his evidence regarding pleas of guilty being entered in relation to offences not committed.
Findings
In general terms I preferred the evidence of the complainant to that of the accused. The submission was made by counsel for the accused that the manner in which she gave her evidence, hesitantly and with her eyes down, was suggestive of the fact that she was not telling the truth. In fact I formed the view that she was embarrassed. Evidence from the police officer who first interviewed her was to the effect that extracting her version of events was difficult, she presented in a similar manner, and the process took several hours. The fact that I preferred the evidence of the complainant to that of the accused is not, however, the end of the matter.
Although I preferred her evidence, ultimately there were a number of aspects of that evidence which result in the conclusion that I cannot be satisfied that the accused is guilty beyond reasonable doubt. They are as follows:
In evidence the complainant said that the incidents constituting uncharged acts continued after the incident in question. In her statement to police signed on 30 October 2005 the complainant said, after describing the incident relating to the charged act, “this was the first time this happened but he always touched me before that. He never touched me again after it” and “I kept going to Dad’s every fortnight because N and I were so close and I wanted to see her but I avoided Dad and he never touched me again after that.”
I am left with a doubt as to the occurrence of the uncharged acts, and in particular the uncharged acts alleged to have occurred subsequent to the charged acts.
In circumstances where allegations against the accused in respect of his other daughters had emerged, the accused’s mother, with whom the complainant enjoyed a good relationship, enquired on more that one occasion as to whether the accused had sexually interfered with her. The complainant denied to her that that had ever happened.
In July 2002 the complainant was interviewed by officers from Family and Youth Services. The complainant was aware that her father had committed offences against the complainant’s sister J, and stepsister N, and said to the FAYS officers that the accused had never attempted to touch her or make her feel uncomfortable in any way. She told them that if her father or anyone else had attempted to do or say anything inappropriate to her she would have screamed at him and told someone straight away. Further she told them that had anything occurred she had a number of people whom she could tell, including her mother, and that at no time had the accused ever touched her inappropriately or made her feel uncomfortable.
After the accused was imprisoned in 2003 the complainant continued to write to him. That of itself does not cause me to doubt her evidence. It is quite understandable that the natural daughter of the accused, in circumstances where, if the evidence were to be accepted, she had been subjected to ongoing contact of a sexual nature, might nevertheless continue to communicate with him following his imprisonment. However, in one of the letters she speaks of past traumatic family relationship issues and makes reference to her half-sister, J, turning 16. The letter then continues, “I wonder what else could happen? well ....then I found out my beloved daddy is a pedophile.” That is an apparent reference to the accused being arrested and subsequently incarcerated in relation to sexual offences committed against J and N.
There is a reasonable possibility that had the charged act occurred, C would not have written to the accused in those terms given that she could not have “found out” the accused was a paedophile as that would have been well known to her. Whilst she may not have been aware of that term at or around the time of the alleged offence, she was obviously aware of its meaning at the time of writing the letter.
Conclusion
For the reasons I have outlined, I have come to the view that the charge has not been proved beyond reasonable doubt and accordingly I find the accused not guilty.