[2024] SADC 127

Prosecution: R Counsel: MR R KANE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: WAYNE JOHN HELMONS Counsel: MR P TOTHILL - Solicitor: EDGE LAW Hearing Date/s: 16/09/2024, 17/09/2024, 18/09/2024, 19/09/2024, 20/09/2024 File No/s: DCCRM-23-046959 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v HELMONS Criminal Trial by Judge Alone [2024] SADC 127 Reasons for the Verdict of her Honour Judge Telfer 16 October 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - UNLAWFUL SEXUAL INTERCOURSE WITH A CHILD UNDER 14 The accused was charged with unlawful sexual intercourse with a child under 14, the complainant being his stepdaughter. The prosecution alleged that the accused was inappropriately affectionate towards the complainant and relied on a number of uncharged acts of sexual abuse which were alleged to have been committed during outings that the accused took the complainant on. It was common ground that the complainant often slept in bed with the accused and his wife. It was alleged that on one occasion when they were sharing a bed the accused engaged in penile intercourse with the complainant. The complainant disclosed the matter to her mother after the relationship between her and the accused had ended, but had previously expressed affection for and emotional reliance on the accused. Verdict: Not Guilty. Criminal Law Consolidation Act 1935 (SA) s 49(1), referred to. R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68, considered. -- 1 of 13 -- -- 2 of 13 -- R v HELMONS [2024] SADC 127 R v HELMONS 1 The accused Wayne John Helmons is charged with one count of unlawful sexual intercourse. He elected for trial by judge alone on the first day of the trial and I granted the application to make a late election. I granted that application being satisfied, by evidence on affidavit from his solicitor, that the accused had not been given any legal advice at all about his right to elect for trial by judge alone at any time. 2 The complainant in the matter is the accused’s former stepdaughter who I will refer to in these reasons as Lilly. Lilly was 13 at the time of the alleged offence. The accused met Lilly’s Mother Ms R in about 2015 and the two were married in February 2018. Lilly is the eldest of Ms R’s three children, the younger two both being boys. The blended family lived in a number of different houses together, including a home at Shelley Avenue Marion, where the offence is alleged to have occurred. 3 It was common ground that by 2020 Lilly was regularly sharing a bed with her mother and the accused. The accused would be positioned in the middle and Ms R and Lilly to each side of him. It is alleged that one night in these circumstances the accused engaged in an act of penile vaginal penetration with Lilly. Lilly did not complain about the matter until sometime in 2023 when she told her mother. By that time the marriage had ended and the accused was in custody on other matters. 4 The prosecution relied on a number of uncharged acts of sexualised behaviour to place the charged behaviour into a proper context and to explain Lilly’s reaction to the charged conduct and why she did not complain. They also relied on evidence that the accused was violent towards Ms R and this created an environment where Lilly felt unable to complain about the conduct. Preliminary Directions 5 In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:1 It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which 1 R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54]. -- 3 of 13 -- [2024] SADC 127 2 might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required. The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge’s orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal. (References omitted) 6 With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter. Vulnerable Witness Provisions 7 Lilly gave evidence from a remote location with the assistance of a court companion. Her evidence was recorded, and the court was closed while she gave her evidence. Ms R also gave evidence from a remote location. 8 I remind myself that I must treat the evidence given in these circumstances the same as any other kind of evidence. I have not taken into account any aspect of the way that the evidence was presented, in determining what weight to give the evidence. 9 Secondly, I note that the procedures are very common and say absolutely nothing about the accused. I draw no inference against the accused from the fact that the evidence was given in this way. Elements of the Offence 10 The accused is charged with Unlawful Sexual Intercourse with a child under the age of 14.2 11 Unlawful sexual intercourse requires proof of the following two elements: 1. The accused had sexual intercourse (here, penile vaginal penetration) with the complainant. 2. The complainant was under the age of 14. 12 If the evidence of the complainant is accepted to the necessary standard then the elements of the offence charged will be have been proved. Lilly did not turn 2 Criminal Law Consolidation Act 1935 (SA) s 49(1). -- 4 of 13 -- [2024] SADC 127 3 14 until after she moved out of the house at Shelley Avenue Marion. The issue for resolution on this trial is whether the evidence can be relied upon to reach that standard. Presumption of Innocence and Right to Silence 13 The accused has the presumption of innocence in his favour. He is presumed innocent of the charge unless and until the prosecution prove his guilt beyond a reasonable doubt, and he need not prove anything. The accused cannot be convicted unless the evidence proves the elements to the requisite standard. 14 I must assess the evidence of each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can accept or reject the evidence of a witness in whole or in part. 15 In this matter Mr Helmons did not give evidence. He was under no obligation to do so, and I draw no inference from the fact that he exercised his right to silence at trial. Background relationships and circumstances 16 Lilly was born in 2006 and when she first met the accused she was between nine and 11 years of age. She was living with her mother Ms R and her two younger brothers David and Ian (pseudonyms). The accused began to stay regularly overnight at their home and then eventually he moved in with the family to premises at Aberfoyle Park. The blended family then all moved to an address at Amberly Drive Happy Valley, then to a second address at Shelley Avenue Marion where the offending was alleged to have occurred. They lived at the Shelley Avenue address between 8 February 2019 and July 2020. During that period Lilly was 12 or 13 years of age. She finished Primary School in 2019 and began High School in 2020.3 17 The house at Shelley Avenue had three bedrooms. When the family first moved to that house, Lilly’s brother David was not living with the family but had moved to live with his biological father. Mr Helmons and Ms R shared the master bedroom, Lilly had her own room, and her youngest brother Ian also had his own room. Lilly’s brother David then moved home to live at Shelley Drive, necessitating a shuffle of who occupied which bedrooms. David moved into Lilly’s room, and Lilly took the master bedroom at the front of the house.4 The accused and Ms R moved their bed into the rumpus room which was made into a makeshift bedroom for them. Because there was a television in the rumpus room, the positioning of the bed made it an ideal location for watching movies in bed. 3 Exhibit P2, Agreed Facts 4 and 5. 4 Exhibit P1, House Plan. -- 5 of 13 -- [2024] SADC 127 4 18 Lilly’s brother David had some behaviour issues and could be violent and damage property from time to time. His behaviour was challenging for Ms R and affected the family dynamic. 19 Lilly began to sleep in the bed with Ms R and the accused on a regular basis. She said she did so initially because she liked watching movies in bed and she would be on her phone interacting with the accused about things she saw on social media. She also believed that being in that bed helped her to get closer to her mother, Ms R. Lilly did not have a close relationship with her mother, and she wanted more attention from her.5 She would sleep in her own bed only on occasions when Ms R and the accused wanted private time in the bed.6 Lilly did not like the position of her room at the front of the house and she was worried at times about violence from her brother David.7 20 In July/August 2020 the family moved to premises at Kingston Street Plympton Park. That house burned down a matter of weeks after the family moved in. The accused was arrested as a result of the fire and was remanded in custody. Uncharged Acts – Grooming 21 Lilly described the accused as ‘overly affectionate’ towards her. She said he often tried to hold her hand or place his arm around her shoulders.8 He often tried to be physically close to her and kissed her on the lips (clarified as a peck).9 She said he behaved in this way when she was in year seven at school. 22 Lilly said she and the accused would spend a lot of time together without Ms R or her two brothers. They would take trips almost every weekend to the city, to the Marion Shopping Centre or to Port Power football games at Adelaide Oval.10 By the time she was about 12, the accused had Lilly sit on his lap when they used public transport. She said this occurred every time they used a bus or a train. He would not permit her to sit on a seat next to him and would hold her on his lap so she could not get up. In this position Lilly often noticed that the accused’s penis would get hard.11 23 In respect to sleeping arrangements Lilly said that she was happy to sleep in bed with the accused at first, but as she got older that changed. She did not feel she could tell the accused or Ms R that she wanted to sleep in her own bed. The accused would make popcorn so they could watch a movie together late at night, and then she would fall asleep in the bed.12 She said the accused would “make sure” she stayed in the bed by cuddling her, holding her arm and making sure she 5 TS 62. 6 TS 62. 7 TS 63. 8 TS 32. 9 TS 33. 10 TS 33. 11 TS 38. 12 TS 44. -- 6 of 13 -- [2024] SADC 127 5 fell asleep with him.13 Lilly said Ms R fell asleep quite early in the playing of the movie. 24 Lilly said the movies that the accused selected were quite unusual. They were not pornography but were either horror movies or graphic “sex movies”. Lilly said Ms R would not be awake when movies of that type were played.14 On occasions while Lilly was in bed with the accused, he would lie against her, and she noticed that his penis was hard.15 25 Lilly’s evidence was that Ms R slept on the other side of the accused in the bed. Ms R fell asleep early and did not wake during the time Lilly interacted with the accused. 26 The uncharged acts described above have a permissible and impermissible use. They are relevant to understanding that the charged acts did not come out of the blue but represented an escalation of sexualised contact with Lilly. The acts, if proved, have the capacity to explain why Lilly responded to the charged act as she did, and why she did not complain. The prosecution did not rely on those acts as proving a sexual interest in Lilly and I have not used them in that way. Further, I have not used the acts to prove the accused has a generalised propensity or is a bad person, thus making him more likely to have committed the charged act. 27 There was evidence led at this trial of the accused sharing medication with Ms R. I have used this evidence only insofar as it is relevant to Ms R’s attention to the welfare of her child and for no other purpose. Evidence was led that the accused went to prison for a period of time. That evidence was relevant to the fact that Ms R and Lilly continued to have contact with him when they were under no obligation or pressure to do so. That evidence is relevant for that purpose and no other. The Charged Act 28 Lilly gave evidence that one evening at Shelley Avenue when she was in Year 8 (2020), she was in bed with Ms R and the accused. Ms R was asleep, and she and the accused were watching a “sex movie”.16 Lilly was drifting off to sleep laying on her side.17 She felt the accused’s arm on her wrist, and she felt him pull the shorts she was wearing down to her knees. She saw him pull his own shorts down and she felt him get on top of her. He then put his penis into her vagina for about two minutes. She described his penis getting hard once it was inside her.18 She said it felt uncomfortable, physically and emotionally, when his penis was 13 TS 43. 14 TS 46. 15 TS 47. 16 Exhibit P2, Agreed Fact 6, Lilly was in Year 8 in 2020. 17 TS 77. 18 TS 47- 48, 78. -- 7 of 13 -- [2024] SADC 127 6 inside her.19 Once he took his penis out, he turned over and went back to cuddling Ms R on the other side of the bed.20 29 Lilly said all she could think about was that Ms R would wake up and have no idea of what had happened. Lilly said she knew she would not be able to tell anyone because she was too scared. She eventually went to sleep in the bed, but went to her own bed after she woke up in the morning. Lilly’s relationship with the accused 30 In examination in chief Lilly described her relationship with the accused as characterised by being in constant fear of him, trying to avoid him and walking on eggshells around him.21 She attributed this to violence he perpetrated against her mother that she witnessed.22 She also described the accused as being “overly affectionate” towards her.23 She said he was often drunk, controlling and prevented her from being near her mother. 31 In cross examination Lilly gave a more nuanced account of a complex relationship with the accused. From June 2019 Lilly began consulting with a clinical psychologist to assist her to manage the complexities of her family dynamics and the effect that her brother David was having in that context.24 She was cross examined about things she said in that context about her feelings and her relationships. 32 Lilly agreed in her evidence that during the relevant period she wanted a closer relationship with her mother than she had. She observed that Ms R was frequently so occupied with the situation created by the other children that she had little time for Lilly. Lilly said that there were times in her relationship with the accused which were good, and she liked sleeping in the bed with him initially. She agreed with the proposition that the accused at the relevant time was the closest parental figure that she had in her life.25 33 Lilly agreed that she had told her psychologist that hanging out with the accused made her feel better, and that he was funny. She agreed those statements reflected her relationship with the accused at some times.26 34 On 14 February 2020 Lilly told her psychologist that “besides [David] there were no issues of significance”.27 On 29 August 2020, the accused attempted to take his own life in an incident that resulted in him being arrested and remanded 19 TS 53. 20 TS 48. 21 TS 34. 22 TS 31- 32. 23 TS 32. 24 TS 58. 25 TS 74. 26 TS 70. 27 Exhibit D3, Agreed Fact 3.3. -- 8 of 13 -- [2024] SADC 127 7 in custody.28 After that incident Lilly continued to see the psychologist and spoke about her feelings about the accused not being physically present in her life. She agreed in evidence that she felt sad about the accused not being around.29 She told the psychologist her mood was down.30 35 Ms R and Lilly continued to visit the accused in person and via Zoom calls between September 2020 and December 2021.31 During that period she expressed positive feelings about that contact. 36 Lilly was aware by August 2021 that Ms R had ended her relationship with the accused. 37 I do not consider Lilly’s evidence about the different aspects of her relationship with the accused to reveal inconsistencies or implausibility. Lilly was a young girl living in unstable circumstances who longed for a closer bond with an adult care giver. She was not close to her mother who was occupied (understandably) with the other stressors of her life. 38 I accept that the accused gave her the time, understanding and affection that she was missing. She enjoyed opportunities to spend time with him. On the other hand, I accept her evidence that he was violent towards Ms R and that made her frightened of him. That emotional conflict is a common experience for children raised in abusive households. The Evidence of Ms R 39 Ms R gave evidence about the length of her relationship with the accused and the different addresses that they lived in together as a family. She confirmed Lilly’s evidence about sleeping in bed with her and the accused in the rumpus room of the home at Shelley Avenue Marion.32 Ms R said Lilly slept in the bed at the insistence of the accused who would say “she’s Daddy’s little girl and that’s what she wants to do”.33 40 While she was living at Shelley Avenue Ms R regularly took medication to help her to sleep. Some of the medication was prescribed to her and some was not. When she was medicated, she typically slept about 12 hours without waking. Her evidence explained why it may be possible for the accused to abuse Lilly in the way alleged, in the bed, without her waking. 28 TS 72. I infer, although it was not made explicit, that the accused’s arrest was for arson – setting the family home on fire. 29 TS 75. 30 Exhibit D3, Agreed Fact 3.6. 31 Exhibit D3, Agreed Fact 5. 32 TS 93. 33 TS 94. -- 9 of 13 -- [2024] SADC 127 8 41 Ms R said there was physical abuse within the household associated with her not going along with what the accused wanted, and that at times Lilly witnessed that.34 42 In cross examination Ms R was taken to statements she had made on other occasions that were contrary to her claim that the accused was violent to her in the course of the relationship. 43 Ms R agreed that she had given a statement to police investigating the house fire. She agreed that in that sworn statement she said that the accused’s mental health had been deteriorating, and she was worried about him self-harming. She said “[the accused] has never been violent towards me”.35 Ms R said that statement was a lie. 44 Ms R agreed that when the accused came before the court to be sentenced for lighting the housefire she wrote a letter addressed to the sentencing judge. Ms R agreed that she told the judge that she intended to support the accused on his release from prison and that the time he had been away from the family had been hard.36 She agreed she said “[the accused] would benefit most by being home with his family”, and that the accused had been a positive role model for the children.37 Ms R said all those things were lies. 45 Ms R said by way of explanation that she told those lies because she was embarrassed about the abuse she had been enduring and it had become important to her, over time, to protect his character at all costs. She said she was frightened of the implications if she did not support him.38 46 Ms R’s lies were about important issues and were lies told which had serious consequences. The police statement was sworn and obviously intended for use in legal proceedings and the letter was obviously designed to be relied on by a judge sentencing the accused. While her explanation might be plausible, the fact that she was prepared to tell lies in those circumstances makes me very cautious about relying on her evidence at all. I have not had regard to her evidence about the accused being violent or abusive although I have relied on her evidence about sharing the bed and taking sleeping medication, as that evidence did not appear to be controversial. Initial Complaint 47 Evidence was led from Lilly that the first person she told about the charged act was her Mother, Ms R. She was in her bedroom and she sent a text message to her Mother saying “I need to talk to you”.39 When Ms R came to the bedroom 34 TS 95. 35 TS 102. 36 TS 105. 37 TS 105. 38 TS 107-108. 39 TS 52. -- 10 of 13 -- [2024] SADC 127 9 Lilly was crying and Ms R asked her what was wrong. Lilly told Ms R that the accused had raped her. They held one another and a decision was made to report the matter to police. 48 Lilly said she decided to tell her mother in that moment because “I just figured she needed to know”.40 In cross examination, Lilly agreed that for possibly as long as a year prior to her making her complaint her mother had been asking her “if anything was going on, if anything had happened”.41 Lilly had repeatedly denied the suggestion, even after the accused was taken into custody after the housefire. 49 Lilly agreed that she had a close and trusting relationship with her psychologist. She spoke with her about the nature of her relationship with the accused. Lilly agreed she had not told her psychologist about the sexual conduct. She agreed that the psychologist had specifically asked Lilly about sleeping in the bed with the accused and she had told the psychologist “He never tried anything”.42 50 Lilly said she had not told her psychologist because she felt she had to tell her mother first. Lilly said she was aware that the psychologist had a duty to breach confidentiality if Lilly told her something that meant that she was at risk of harm. Lilly said she feared the process that would follow if she opened up and told anyone about the accused’s conduct.43 51 Lilly told the court that the initial complaint to her mother had been that she had been raped. She agreed that when interviewed by the police she had said that she disclosed to her mother only that the accused had touched her. She agreed she said “I told her he touched me because she asked me for a while ‘has he ever done anything’ because she always thought that he had always just denied it”.44 She said the truth of the matter was that she told her mother both that the accused had touched her and that he had raped her. No evidence was led from Mrs R as to her recollection of that conversation. 52 I remind myself that the evidence of what Lilly disclosed to Ms R is not evidence of the truth of the allegation. I have considered that evidence as relevant only to the credibility of Lilly. I have used the evidence to understand how the allegations first came to light and to assess whether Lilly’s conduct is consistent with her allegations. 53 I have taken into account that there are many reasons why Lilly told her mother about these matters at the time that she did and why she chose to tell her rather than another person. 40 The transcript records Lilly continued to say, “I just felt like it had been sent to her”. I am not convinced that accurately records Lilly’s evidence. 41 TS 86. 42 TS 84. 43 TS 88. 44 TS 86. -- 11 of 13 -- [2024] SADC 127 10 54 I consider Lilly’s explanation for not having told her psychologist plausible in circumstances where she had been made aware of the psychologist’s duty to notify others. Lilly’s delay is plausibly explained by her fear of what process would follow if she disclosed the offending to the psychologist. Even in the circumstances where Lilly was regularly speaking about issues with her family to a trusted person, I do not consider the delay undermines the credibility or reliability of her allegation. 55 The inconsistency in Lilly’s recollection of the nature of the complaint to Ms R however does concern me. My concern is heightened by the evidence that Lilly’s disclosure was made against a background of Ms R asking more than once if the accused had done anything. Counsel for the accused submitted that the complaint to Ms R was not the truth, but an attention needing or approval seeking disclosure. This potential motive to lie was not put to Lilly for her response. It should have been. Notwithstanding, the evidence does raise that hypothesis as a relevant concern. Concluding Analysis 56 Lilly was 17 years of age at the time she gave her evidence. She was a good witness who had no difficulty understanding the questions asked of her or describing her complex personal circumstances. In cross examination she was open about the positive aspects of her relationship with the accused, and challenges of her relationship with Ms R. 57 Lilly’s description of the uncharged acts was plausible. 58 Her description of the charged act however, had some unusual features. Lilly was only 13 at the time these events are alleged to have occurred, so her report of the act must be understood with that in mind. Her description of the charged act lacked sufficient detail and description to enable a proper assessment to be made about its plausibility. As described, it occurred out of the blue, unconnected to any other indecent behaviour in the bed. There was no evidence about whether the accused said anything during the incident or thereafter. Lilly said that the accused’s penis became hard once it was inside her, but that proposition was not explored to enable a proper understanding of what she meant by that. The uncharged acts did not include the accused indecently touching Lilly with his hands, but rather involved being excessively affectionate, and pressing his erect penis against her when the opportunity arose. The isolated act of sexual intercourse is unusual in those circumstances. 59 To find the charge proved I must be satisfied beyond a reasonable doubt of the reliability and credibility of Lilly’s evidence. 60 In light of the issues associated with the very limited description of the charged act, and the potential motive to lie which arises in Lilly’s complex family circumstances, I cannot be satisfied to the relevant standard. -- 12 of 13 -- [2024] SADC 127 11 61 I therefore find the accused not guilty of count one, Unlawful Sexual Intercourse with a child under 14. -- 13 of 13 --