PAUL CLIFFORD BEDDOES v THE KING [2023] SASCA 53

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER) DCCRM-21-1148; [2022] SADC 130 Applicant: PAUL CLIFFORD BEDDOES Counsel: MR A CULSHAW - Solicitor: MATTHEW MITCHELL SOLICITORS Respondent: THE KING Counsel: MR D PETRACCARO SC WITH MS I KIMBER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/04/2023 File No/s: SCCRM-22-012816 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: 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. BEDDOES v THE KING [2023] SASCA 53 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice David) 25 May 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD Appeal against conviction. The applicant was convicted, on trial by judge alone, of the offence of maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The applicant relies on three grounds of appeal: 1. The verdict is unsafe and unsatisfactory. 2. The trial Judge erred in failing to exclude beyond reasonable doubt an innocent explanation as to the presence of the applicant’s DNA on the inner crotch of APC’s underwear, or in the alternative the Judge’s reasons for so finding are inadequate. -- 1 of 27 -- 3. The trial Judge erred by permitting APC to give unsworn evidence in circumstances where the pre-conditions in s 9(2) of the Evidence Act 1929 (SA) were not met. Held (by Kourakis CJ, Lovell and David JJA agreeing): 1. Permission to appeal is granted on Grounds 1 and 3. 2. The appeal is allowed on Ground 3. 3. The applicant’s conviction is set aside. 4. The matter is remitted for re-trial. Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 9, referred to. -- 2 of 27 -- BEDDOES v THE KING [2023] SASCA 53 Court of Appeal - Criminal: Kourakis CJ, Lovell and David JJA 1 KOURAKIS CJ: The applicant, Mr Beddoes, seeks leave to appeal against his conviction for the offence of maintaining an unlawful sexual relationship with a child, APC, between 30 November 2019 and 19 December 2020 at Kilburn. The unlawful sexual acts alleged against Mr Beddoes were that he kissed and touched APC’s vagina and engaged in cunnilingus. The trial of Mr Beddoes proceeded before a judge sitting alone. Mr Beddoes was also charged with an aggravated indecent assault of ARC, the sister of APC. The Judge acquitted Mr Beddoes on that count. Mr Beddoes minded APC and ARC from time to time, including for sleepovers, ostensibly to allow their parents time to themselves. 2 The prosecution opened its case contending that the evidence of each complainant was cross admissible because it was strongly probative for a propensity purpose, and in establishing an improbability of concoction or fabrication. During the course of the trial the prosecution eschewed reliance on the testimony of one complainant to prove any count charging Mr Beddoes with an offence against the other. 3 The prosecution evidence comprised the testimonial accounts of APC and ARC and two lines of circumstantial evidence. The first was evidence of a forensic examination of the underwear worn by APC when she returned from visiting Mr Beddoes on the last visit before she made any complaint. The underwear was found to have traces of DNA matching Mr Beddoes’ DNA profile on the waist band and on the inner crotch area. The DNA profile which matched Mr Beddoes’ DNA profile was most improbable to match the DNA profile of anybody else. However, APC did not give an account of any sexual conduct in the course of that visit which would account for the presence of DNA matching Mr Beddoes’ DNA profile on her underwear. 4 Secondly, there was evidence that, on a search of Mr Beddoes’ premises, a police officer found a pair of underwear in a drawer in Mr Beddoes’ bedroom. A picture of a ladybug was printed on the front of the underwear. On forensic examination that underwear was found to have traces of Mr Beddoes’ semen and other biological matter which bore the DNA profile of APC. APC gave evidence that on one occasion when visiting Mr Beddoes, with his assistance, she tried on, and then removed, underwear which he had purchased for her. After she had tried on the underwear, Mr Beddoes placed it in a drawer in his bedroom. 5 In apparent discharge of its duty to call all relevant evidence the prosecution called Ms Goodridge, Mr Beddoes’ romantic partner, who sometimes stayed overnight at his home during the period in which Mr Beddoes would occasionally care for APC and ARC. Ms Goodridge testified that the brief found in Mr Beddoes’ bedroom belonged to her. She claimed that she stored clean -- 3 of 27 -- [2023] SASCA 53 Kourakis CJ 2 underwear in that drawer for the occasions on which she stayed over but could not explain why soiled underwear was placed there. 6 The prosecution led evidence from APC, her mother, Ms A, and from ARC as to the occasion on which APC first complained of any conduct referable to the charged offending against her. However, the Judge was unable to decide which of a complaint made by APC to Ms A, or one made to ARC, was the first in time. The Judge was, therefore, unable to have regard to any evidence of initial complaint in reaching her verdict with respect to the count of offending charged against APC. 7 The applicant seeks leave to appeal against his conviction on the following grounds: Ground 1 1. The verdict is unsafe and unsatisfactory. 1.1. The Judge erred in accepting the reliability of the evidence of APC beyond reasonable doubt. 1.2. The Judge erred in relying upon the DNA evidence to support the evidence of APC. Ground 2 2. The Judge erred in failing to exclude beyond reasonable doubt an innocent explanation as to the presence of Mr Beddoes’ DNA on the inner crotch of APC’s underwear, or in the alternative the Judge’s reasons for so finding are inadequate. 8 The first limb of Ground 2 is no more than a particular of Ground 1 and will be treated as such. The burden of the second limb is that the Judge inadequately explained how the evidence of the presence of Mr Beddoes’ DNA on the inner crotch of APC’s underwear supported her finding of guilt. 9 I would grant permission to appeal but dismiss the appeal on Ground 1. The Judge had the benefit of evaluating the paucity of detail in APC’s account and the inconsistencies in aspects of her account of the offending, against her impressions of APC’s demeanour when giving her account. The Judge accepted APC as reliable having regard to her age, level of formal education and the embarrassing subject matter of her testimony. The Judge’s reasoning in that respect is coherent, persuasive and does not disclose any express error or misuse of her advantage as a trial judge. On the face of the transcript of APC’s evidence I, too, find it credible and reliable. Even if I were minded to think otherwise, I would defer to the Judge’s assessment of APC’s account given the advantage her Honour enjoyed in hearing APC give it. The presence of DNA, the profile of which matched Mr Beddoes, in the inner crotch of APC’s underwear when she returned from -- 4 of 27 -- [2023] SASCA 53 Kourakis CJ 3 visiting him supports the account of APC, even in the absence of any account from APC of offending on her last visit. So too the finding of the soiled underwear in the drawer. Any innocent explanation which can be imagined for those combined circumstances is most improbable. I elaborate on my reasons below. 10 There is no utility in considering the second limb of Ground 2 because, for the reasons appearing immediately below, a new trial must be ordered on another ground. I, therefore, refuse permission to appeal on Ground 2. 11 By the written submissions filed in support of the appeal, Mr Beddoes sought permission to add an additional ground that the trial Judge erred in permitting APC to give unsworn evidence in that s 9 of the Evidence Act 1929 (SA) (the Evidence Act) conditions the giving of permission on the Judge reminding a witness who cannot give sworn evidence of the importance of telling the truth. The DPP accepted that the Judge had overlooked doing so. Accordingly, permission to amend the notice of appeal and to add that ground must be given. The appeal must be allowed and a new trial ordered, subject to the proper disposition of the appeal in respect of the first ground. On that question, a preliminary point was raised by the Director of Public Prosecutions (SA) (the Director). The Director’s contention was that the unreasonable verdict ground could not be determined by this Court because the account given by APC to the trial Judge was neither sworn nor unsworn evidence. That contention has not previously been considered by this Court. Counsel have not referred the Court to any binding authority on the question. I would reject the Director’s contention and proceed to hear and determine the unreasonable verdict ground for the following reasons. 12 First, if this Court were bound to proceed on the basis that there was no evidence from APC, sworn or unsworn, given at the trial, and that the only evidence was the forensic evidence, the logical conclusion of the Director’s submission must be that the verdict was unreasonable and a verdict of not guilty must be entered. An error of the kind made here could not sensibly lead to that conclusion when the account of the complainant is otherwise credible, reliable and supported by independent evidence. 13 Secondly, the Judge did permit APC to give unsworn evidence. True it is that that permission was wrongly given and exceeded the statutory power and authority of the Judge. It is an error of law which must result in the setting aside of the conviction. However, the unreasonable verdict ground can be considered on the unsworn account of APC which the Judge, albeit wrongly, permitted APC to give. 14 The account given in accordance with the permission of the Judge is unsworn evidence which the Judge, as the trier of fact, was bound to consider in reaching her verdict even though the permission had been erroneously given. As the evidence has been given, this Court may determine whether the Judge could have been satisfied beyond reasonable doubt of Mr Beddoes’ guilt. -- 5 of 27 -- [2023] SASCA 53 Kourakis CJ 4 15 I interpolate here, by contrast, that a Court of Appeal is unlikely ever to confirm a conviction by applying the proviso, notwithstanding the demonstration of an error of law, by satisfying itself of the guilt of the appellant on the basis of unsworn evidence, alone, which was given without an admonition to tell the truth. As a matter of law there is no unsworn evidence given in accordance with s 9 of the Evidence Act on which the Court of Appeal could act to confirm the verdict. Moreover, a Court of Appeal could not be satisfied, as a matter of fact, that if the admonition were given, the same evidence or account would have been given by the witness. It could not, therefore, be satisfied that, notwithstanding the failure to tell a witness of the importance of telling the truth, guilt was established by unsworn evidence given without that admonition. That position may be contrasted with the position on an appeal against the verdict on the ground that it is unreasonable. A Court of Appeal can proceed to consider that ground on the premise that the unsworn evidence would not have been anymore incriminating if there had been an admonition of the importance of telling the truth. 16 Thirdly, there is an alternative route by which the same conclusion can be reached. On this Court accepting that the Judge erred in law in granting APC permission to give unsworn evidence, s 158 of the Criminal Procedure Act 1921 (SA) confers on this Court a discretion to order a new trial or simply set aside the conviction. In the exercise of that discretion, the Court can have regard to the account given by APC. If, on that account, the Court were to form the view that no reasonable jury could convict, even if APC’s account were properly received as unsworn evidence, together with such other evidence as there may be, the Court may decline to order a new trial on the ground that it would be inutile to do so. The evidence 17 APC was born on 8 February 2014, was between five and six years of age at the time of the alleged offending and was eight years of age when she gave her evidence. The Judge was satisfied that she understood the difference between the truth and a lie and allowed APC to give unsworn evidence but, as we have seen, without first telling APC that it is important to tell the truth. 18 APC said that when living in Adelaide she and ARC had ‘sleepovers’ with Mr Beddoes, to whom she referred as Paul. A child called Mark (a pseudonym) would sometimes come over from next door to play. APC slept either in Mr Beddoes’ bed or sometimes in the room reserved for Mr Beddoes’ son, who was not living at home when they stayed over. The sleepovers would last for more than one night at a time. Mr Beddoes would drop APC and ARC back home. 19 APC said that Mr Beddoes bought her a pair of pyjamas to wear when she stayed over. They were orange and pink in colour with pictures of mangoes on them. Pyjamas of that kind were found at Mr Beddoes’ home. APC said that Mr Beddoes had also bought her a dress and some underwear. Mr Beddoes helped APC try on the underwear and then put it in a drawer. She was unable to detail how Mr Beddoes helped her put on, or remove, the underwear. At the time of that -- 6 of 27 -- [2023] SASCA 53 Kourakis CJ 5 incident ARC was playing outside with Mark. APC gave evidence that she tried on underwear on a couple of occasions in Mr Beddoes’ room but denied that ARC was in the room on any of those occasions. However, ARC gave evidence that she saw APC try on underwear when Mr Beddoes was in the loungeroom listening to music. 20 In summary, APC said that on the first occasion on which Mr Beddoes indecently assaulted her, they were alone in Mr Beddoes’ bedroom. At Mr Beddoes’ request APC took off her underwear and got into the bed. The conduct then followed. The conduct was repeated on the following day. She described a third occasion on which the same conduct was engaged in. 21 At the commencement of her examination, APC was asked repeatedly whether Mr Beddoes had touched her on the body when she had slept over or whether anything had happened at the house generally or in Mr Beddoes’ bedroom in particular. She often replied, ‘I don’t know’ and in answer to one question denied that Mr Beddoes had touched her body. Only when APC was asked to identify body parts, she identified the part of her body which she used to urinate as her ‘willy’, was she then asked if anything had happened to her ‘willy’ at Mr Beddoes’ home. It was then that APC gave the following account of the first time that Mr Beddoes had committed the particular sexual acts charged. I set out the evidence at some length so that Mr Beddoes’ complaint that the verdict was unreasonable can be properly understood: Q. Did anything ever happen to your willy at Paul's house. A. He licked it. Q. Who licked it. A. Paul. Q. I want you to tell me about that; where were you when this happened. A. In his bedroom. Q. Did this happen once or more than once. A. More than once. Q. I should have been more clearer, was it more than once on the same day or different days. A. Different days. … Q. Different days, thank you. Where in Paul's bedroom - sorry, I withdraw that. Can you tell me about the first time that he did this, that he licked your willy. A. He did it on the bed. -- 7 of 27 -- [2023] SASCA 53 Kourakis CJ 6 Q. Was anyone else in the bedroom. A. No. Q. What were you wearing. A. No clothes. Q. No clothes. What about underwear. A. Took off the underwear. Q. Why did you take off your underwear. A. He told me to. … Q. Do you remember how old you were when this happened. A. No. Q. Why did you go onto the bed. A. He told me to. Q. Can you tell me in your own words what actually happened when you got onto the bed. [A detailed account of Mr Beddoes’ conduct is then given] A. Couple of hours. Q. Now, how long do you think a couple of hours is APC. A. Maybe two seconds. 22 I interrupt APC’s account to record that Mr Beddoes’ counsel placed much emphasis on APC’s grossly deficient temporal sense manifested by the last two answers which I have underlined. He contended that those answers, in themselves, undermined the reliability of APC’s account. The answers do not cause me to have any reservations about the reliability of APC’s account of Mr Beddoes’ conduct, even though, plainly enough, they do not allow any safe conclusion about the period of time over which the acts were committed. It does not surprise me that an eight year old’s sense of the passage, and measurement, of time might be so deficient. Nor do I have any reservations about the reliability of APC’s description of Mr Beddoes’ conduct. A child’s difficulty in fixing conduct within a temporal dimension may be a product of that part of the child’s cognitive development that is quite unrelated to the capacity to recount physical conduct to which he or she was subjected. APC’s account continued: Q. Thank you. Do you remember where your sister was. -- 8 of 27 -- [2023] SASCA 53 Kourakis CJ 7 A. Playing with Mark. … Q. Were there any other times that Paul did anything to your willy. A. No. Q. Was that a 'no'. [APC was asked more questions about Mr Beddoes’ conduct on the first occasion but gave little by way of further detail] Q. Were there any other days that he licked your willy. A. Day after. Q. The day after. Is that the day after the time you just told me about. A. Yes. 23 Mr Beddoes’ counsel relied on what can be accepted is a clear inconsistency between the underlined answers. However, it is also possible that the first of the underlined answers was the result of misunderstanding or inattention. The account which followed strongly suggests the latter having regard to APC’s age: Q. What do you remember about that day, the day after. A. He, he sucked his finger and put it on my willy. Q. He sucked his finger and did what to your willy sorry. A. Wiped my willy. Q. Wiped. A. Wiped my willy. Q. Where were you when this happened. A. In his bedroom. Q. Whereabouts in his bedroom. A. On the bed. Q. In what position were you on the bed. A. Laying. Q. And how were you laying. A. On my back. Q. How did you know to lay on your back. -- 9 of 27 -- [2023] SASCA 53 Kourakis CJ 8 A. He told me to. Q. Did you have any clothes on before you lay on the bed. A. No. Q. When did you take your clothes off. A. Before I got on the bed. Q. Was it in Paul's bedroom or was it somewhere else in the house. A. In Paul's bedroom. Q. How did you know to take your clothes off. A. He told me. Q. Tell me what happened once you lay down on the bed. … Q. Can you tell me what happened once you lay down on the bed. A. I don't know. Q. So you had your clothes off before you lay down on the bed, was that what you said. A. Yes. Q. And you talked about him licking his finger and swiping it on your willy. A. Yes. Q. So how long after you lay down on the bed did that happen. A. It would be two hours. Q. Once you'd laid down on the bed did he say anything to [you] about what he was going to do. A. No. Q. And once he'd sucked his finger and swiped it down your willy, what happened after that. A. He kissed my willy. Q. Kissed your willy, and then what happened. A. Nothing else. 24 I interpolate here that at trial the reliability of APC’s evidence in the last underlined answers was impeached by evidence of an inconsistent statement made in a proofing session to which I refer below. APC’s account continued: -- 10 of 27 -- [2023] SASCA 53 Kourakis CJ 9 Q. Did you stay on the bed or did you get up. A. Got up. Q. Then what did you do. A. Put my clothes on. Q. Do you know where your sister was when this happened. A. Outside, playing with Mark. … Q. Were there any other times that he touched your willy with his fingers. A. No. Q. We've talked about something that he did to your willy one on one day and one on the next day, is that right. A. Yes. Q. Were there any other times when he did anything to your willy. A. The next day. Q. Okay. Just so I'm sure what you're talking about, you talked about one day and then the next day something happened. A. Yes. Q. Are you talking about another day again. NOT ANSWERED Q. I think you nodded APC, was that a 'Yes'. A. Yes. Q. What happened this time. A. He kissed my willy. Q. Where did this happen. A. In his bedroom. Q. Whereabouts in his bedroom. A. On the bed. Q. How was it that you were positioned on the bed. A. Laying on my back. -- 11 of 27 -- [2023] SASCA 53 Kourakis CJ 10 Q. How did you know to lay on your back on the bed. A. He told me. Q. Were you wearing any clothes. A. No. Q. What had happened to your clothes. A. He told me to took them off. Q. Where were you when that happened. A. In his bedroom. Q. What happened once you took off your clothes. A. I took off - I went onto the bed. Q. You went onto the bed and then what happened. A. And he grabbed me on my ankles. Q. And then what did he do. A. He kissed, he was kissing my willy. Q. Did he kiss it once or more than once, on this day. A. More than once. Q. Do you know whether it was daytime or night-time. A. Daytime. Q. Do you know whether the door was shut or the door was open. A. Shut. Q. Do you know where your sister was. A. Playing with Mark. 25 I pause here to draw attention to APC’s underlined answer that the explanation for ARC not being around at this time was again that she was playing with Mark from next door. These answers are not necessarily evasive nor do they necessarily suggest that APC has constructed a false memory and/or an explanation for the purpose of her account. It may be that either APC recalls that ARC and Mark were playing or that her memory is a more general one that the only occasions on which ARC was not with her were when Mark was over. -- 12 of 27 -- [2023] SASCA 53 Kourakis CJ 11 26 An interview with Child Protection Service was received as the evidence of ARC. ARC, too, said that Mark was at Mr Beddoes’ home when she was sexually assaulted by Mr Beddoes: L Mmhm that's a good idea. Um so ARC last time when we spoke you said that you heard foot tapping, and that APC was outside with Mark, where did you know Mark from? A From our school, old school L Ahh I see ok, how did you meet Mark? A APC ……. When we, I was playing in the playground ……. L Oh and how old was Mark? A I don’t remember L Ah was he a child or an adult? A A child. L A child ok and when Paul wiped his hand down your willy was there any other adults in Paul's house? A No, no one at all L And when you and APC visited Paul’s house did you ever see or play with Mark one time or more than one time? A One time L One time, so it was just the one time A Mm 27 In another interview ARC said: L All of his hand, okay. Okay. And ARC you told me that afterwards Paul told you to go and play. What, what did Paul say to you. A Um go play with Mark. L Go play with Mark. Okay. A Mm. 28 I again observe that the recollections of both APC and ARC, that the other was playing with Mark, is not necessarily indicative of fabrication or unreliability. It may reflect the reality that Mr Beddoes opportunistically took advantage of those occasions. Alternatively, it may be that both APC and ARC were relying on a general recollection that the only times they were not in each other’s company were when Mark visited. -- 13 of 27 -- [2023] SASCA 53 Kourakis CJ 12 29 APC was questioned about a prior inconsistent statement she had given in a proofing session at the Director’s office: Q. Do you remember when you spoke to Lisa - sorry, I will ask you a different question. You told us today that there were three times that things happened in Paul's room. HER HONOUR: I won't allow that question, I don't think we have got that degree of precision. MR MARCUS: I will be clearer. XXN Q. APC, do you remember telling Lisa the days that you say things happened in Paul's room. A. No. Q. Do you remember anything that you told to Lisa. A. No. Q. So if I asked you questions about some of the things you said to Lisa you wouldn't be able to say whether you said it or not. A. I don't know. Q. Sorry, did you say you don't know. A. I don't know. Q. Would you like to try one or do you just think you don't know. A. I don't know. Q. So if I said, APC, that you told Lisa that Paul touched your willy on the 7th, 10th, 13th and 18 December do you have any memory of saying that. A. No. Q. Do you remember - sorry, APC, do you not remember anything that Lisa said to you. A. No. 30 However, Senior Constable First Class Aaron Doyle, who was present when APC was proofed, gave the following evidence: Q. Senior Constable Doyle, you need to take a moment to have a quick look at that statement to satisfy yourself that is the statement we're talking about. A. Yes, that's my statement. Q. If you could attempt to answer the questions if you can from memory, but if you need to refer to your statement please do. Is it the case in that proofing session APC -- 14 of 27 -- [2023] SASCA 53 Kourakis CJ 13 was asked to describe the times that she says Paul either touched or licked or kissed her willy. A. Yes. Q. How many times did she say that it happened. A. In - HER HONOUR Q. Was this inconsistency put to the witness. MR MARCUS: Yes, it was. A. There was three counts, three times which she describes. XXN Q. If I can turn your attention to one of those times, it's the time that APC said that she said 'Paul sucked his finger and swiped it on her willy'. A. Yes. Q. On that occasion, did she also say that he did not kiss or lick her willy on that occasion. A. Yes, 'did not kiss or lick'. Q. And there is no other occasion she said that he sucked his finger and swiped it on her willy. A. No. 31 In cross-examination APC denied that she needed help with wiping herself after toileting and said that she did not know Ms Goodridge. APC also denied that her parents had ever shared with her information about their own sexual abuse as children. APC maintained her account of the offending against her: Q. APC, I'm going to ask you some questions now, can you please tell me whether you agree with them or not. If I said to you that Paul never licked your willy what do you say about that. A. I don't know. Q. So if I said Paul didn't actually do that what do you say. A. He did. Q. And if I said that Paul never wiped your willy. A. He did. Q. And if I said Paul never kissed your willy. -- 15 of 27 -- [2023] SASCA 53 Kourakis CJ 14 A. He did. Q. And if I said that Paul never got you to try on lots of pairs of underwear in his room. A. He did. 32 Mr Beddoes’ counsel relied on the inconsistencies between APC, ARC and Ms A on the making of a complaint by APC. 33 APC was asked about when she first complained: Q. APC, who was the very first person that you told about Paul doing these things to your willy. A. ARC. Q. Is that your sister ARC. A. Yes. Q. Where were you when you told her. A. At the front. Q. At the front of where. A. At the front of Paul's house. Q. Who was there when you told ARC. NOT ANSWERED Q. Who was there nearby listening to what you were saying, is what I mean sorry. A. No-one. Q. What about ARC. A. I told her everything. Q. Do you remember what it is that you told her, as best you can, can you tell us what it was that you told her. A. Paul licked my willy and swiped my willy and kissed my willy. Q. Did ARC say anything. A. No. Q. When you finished telling ARC about what Paul had done to your willy what did you do. A. We went home. Q. And then what happened next. -- 16 of 27 -- [2023] SASCA 53 Kourakis CJ 15 A. Then ARC told mum. Q. Is that something that you heard, or something that you would - sorry, I withdraw that. Did you hear ARC telling your mum. A. Yes. 34 However, ARC denied that APC complained to her: Q. ARC, if I could ask you to think about times when you were at Paul's house, when APC came to talk to you, okay. Can you think about those times. A. No. Q. Are you able to remember any time that APC talked to you at Paul's house. A. Yes. Q. Do you remember a time when APC said something to you about Paul wiping her willy. A. No. Q. Or licking her willy. A. No. Q. Or kissing her willy. A. No. Q. ARC, do you remember the last time you went to Paul's house, that is - and then you didn't go there again; do you remember that time. A. Yes. Q. Do you remember that, from when that happened, you didn't go to Paul's house any more. A. Yes. 35 Ms A gave evidence that she first heard of the offending from APC: Q. Are you able to say about how long it was between 4 July and when they stopped staying there. A. Not really, no, I can't. Q. Do you know when it was that they stopped staying there. A. The 18th; he dropped them off on 18 December, so it was from 18 December. Q. So 4 July - A. Yes. -- 17 of 27 -- [2023] SASCA 53 Kourakis CJ 16 Q. - 2020, was it. A. Yes. Q. Was the first time, 18 December. A. Was the last time, yes. Q. What year. A. 2020. Q. Why did the arrangements stop. A. Because APC came out and told me what was happening. Q. Where were you when she told you what was happening. A. I was sitting on the couch doing my 5D Diamond Painting. HER HONOUR Q. 5D Diamond painting. A. Yes. XN Q. And APC came and told you something. A. Yes. Q. What did she tell you. A. That Paul touched her on, what she called is a 'willy', and she liked it. 36 The Judge’s consideration of the credibility and reliability of APC’s evidence is set out below:1 APC was examined and cross-examined in the usual way. A recorded interview was not tendered as part of her evidence. She was a bright, intelligent eight -year-old who appeared to understand the questions being asked of her. She easily answered introductory questions about her family, her living arrangements and the general activities that she would participate in when she visited the accused. The ease of answering clearly and quickly changed when the topic turned to whether anything happened at the accused’s house that she did not like. A number of questions aimed at eliciting evidence of the offending conduct prompted answers denying that anything had occurred or avoided the question. It was only once the questioner had established the language for APC’s genitals (her ‘willy’) that she became responsive to questions about anything happening to her ‘willy’. Thereafter she was engaged and responsive to the questions on that topic. 1 R v Beddoes [2022] SADC 130 at [46]-[53]. -- 18 of 27 -- [2023] SASCA 53 Kourakis CJ 17 I do not consider that her initial reluctance undermines her credibility. It was submitted by counsel for Mr Beddoes that her unresponsiveness evidenced an inability on her part even to recall the reason she had come to Court, despite having been proofed by the prosecutor and watched her investigative interview the day prior to being called. I conclude that her unresponsiveness was attributable to embarrassment about the topics that she was being asked about, and a desire to avoid speaking about those matters. I do not consider that it evidenced a deficit of capacity which reflects on her credibility or reliability. Counsel for Mr Beddoes also submitted that APC’s evidence lacked detail, and she was unable to describe aspects of her experience such as how long the accused licked her genitals for. I agree that the evidence given by APC was not detailed. However, I considered that her description was credible and consistent with her having experienced the events, rather than repeating a fabricated story. APC’s capacity to describe concepts of time and number was poor. For example, when asked how long the accused licked her ‘willy’ for she said, “a couple of hours”. When asked how long a couple of hours was, she said it was “maybe two seconds”. When asked to place the occasions of sexual abuse into some time sequence (when the next occasion was) she said, “the day after”. APC’s time sequencing was inconsistent with what she had told an interviewer in an investigative interview. It was agreed between the parties that on 4 January 2021, a police interviewer asked APC about the last time that the accused touched her ‘willy’. She said “mmmm on the 7th, and the 10th, and the 18th then the 13th then the 14th”. The out of court statement as to dates is inconsistent with the evidence given by APC which suggested that each occasion occurred on the day after the last. The dates given in the out of court interview were also inconsistent with the evidence given by APC’s Father Mr C as to when the children stayed with the accused. His evidence was that the children last stayed with the accused on 16-18 December 2020, and prior to that, 4-7 December 2020. I bear in mind that APC is only eight years old. It is important to assess what weight to give the suggested deficits in her capacity to describe her experiences in that light. It is also important not to ignore or minimise genuine infirmities in a witnesses’ evidence, on the basis of their age or immaturity. I consider however, that the difficulties with concepts of time and date identified above, are consistent with the complainant’s age and cognitive development, and do not undermine her credibility or reliability on the matters that must be proved. (Footnotes omitted) 37 The Judge gave close consideration to the inconsistency between APC’s account in court that Mr Beddoes had also kissed her genital area on an occasion in which he had touched it with his fingers and her statement in the proofing session:2 … I do not consider the inconsistency, when viewed in light of the nature of the allegations, the witness’s presentation, and her age and cognitive development, to be significant. 2 R v Beddoes [2022] SADC 130 at [55]. -- 19 of 27 -- [2023] SASCA 53 Kourakis CJ 18 38 The Judge then considered the inconsistencies between the accounts of APC and ARC on APC trying on underwear. The Judge concluded:3 … I have considered whether APC’s denials of the events described by her sister undermines her evidence about the underwear specifically, or more generally. I do not consider that the nature of the occasion described by ARC would necessarily stand out to APC. Her denial of the occasion does not, to my mind, undermine my assessment that she was an honest and reliable witness as to the charged conduct. 39 Finally, the Judge considered the inconsistency between the evidence of APC and ARC on the question of the frequency of Mark’s visits. As we have seen, ARC’s evidence was that she recalled playing with Mark only on one occasion. The Judge concluded:4 … I am satisfied that the discrepancy is explicable by ARC’s young age, and the fact that the number of times she played with the child next door is unlikely to have been a matter of significance to her in all the circumstances. It does not cause me to doubt the honesty and reliability of the evidence of APC. 40 The Judge’s approach to the inconsistencies is sound and one which I, too, adopt. 41 The evidence of Ms Goodridge about her relationship with Mr Beddoes and her belongings in his bedroom is difficult to follow on the transcript. However, it appears that she met Mr Beddoes in 2005 when they were both volunteers in a charitable community organisation, which is known as Faithworks, which provides food to the impoverished. They became partners soon after they met in 2005. As best as I understand Ms Goodridge’s evidence she would visit Mr Beddoes at his home about twice a week, and on occasion the complainants were also there. 42 Ms Goodridge testified that APC and ARC slept in the room which was once occupied by Mr Beddoes’ son, CJ, but he no longer visited his father. 43 However, Ms Goodridge was not always there when APC and ARC stayed over. She testified that she overhead a conversation between Mr Beddoes, APC and ARC whilst speaking to Mr Beddoes on the phone. Her evidence was that she overheard ARC insist that she be allowed to sleep in Mr Beddoes’ bed against his objection. However, Ms Goodridge also gave evidence that on the occasions on which she stayed over when the children were present, she slept on the lounge and not in Mr Beddoes’ bedroom. The reason for that particular sleeping arrangement is not clear. 44 Ms Goodridge gave the following evidence: Q. You talked about CJ's room, is CJ Paul's son. 3 R v Beddoes [2022] SADC 130 at [58]. 4 R v Beddoes [2022] SADC 130 at [62]. -- 20 of 27 -- [2023] SASCA 53 Kourakis CJ 19 A. CJ is Paul's son but Paul doesn't see him anymore but Paul still calls it his room. Q. What about when the children were staying, was CJ ever there. A. No. Q. Were you ever there when the children were staying. A. At times, yes. Q. Would you spend the night there. A. On and off occasions yes, but at times no. Q. On any of the occasions that you stayed the night, did any of the girls sleep in the bed with Paul. A. No. Q. Where would you sleep there at the house. A. On the lounge. HER HONOUR Q. Sorry, I didn't catch that answer. Is that you would sleep on the lounge. A. I would sleep on the lounge. Q. When you slept over. A. Yep. Q. But on that those occasions the girls weren't in Paul's bed. A. No. 45 Ms Goodridge was not asked and did not give evidence about whether, on any of the occasions when she slept over, APC slept in Mr Beddoes’ bedroom. She did give evidence that she had advised Mr Beddoes that it was not prudent for APC nor ARC to sleep in his bed. 46 The underwear bearing the picture of a ladybug located in Mr Beddoes’ bedroom was found in the top drawer of a chest of drawers. There was no other clothing in that drawer. On the top of the chest of drawers was a clutter of items which included two cuddly toys. 47 Ms Goodridge testified that the briefs were hers and that she had purchased them from K-Mart. She testified that they were a lady’s, not a child’s, size 8, but the briefs were not put into evidence. Ms Goodridge explained that she kept some underwear in the drawer so that she would have a change of clothes when she visited but the soiled briefs were the only underwear found in the drawer by police. On further questioning by Mr Beddoes’ counsel, Ms Goodridge testified that there -- 21 of 27 -- [2023] SASCA 53 Kourakis CJ 20 was another cupboard in the room, not shown in the exhibit photographs, in which she would also keep clothes. 48 Ms Goodridge said that her dirty clothes were ordinarily left in the washing basket which can be seen in the exhibit photographs at the foot of the chest of drawers. Ms Goodridge also testified that a ‘dressing gown’ with the mango motif found in that basket belonged to her. Ms Goodridge did not offer any explanation as to how it came to be that the soiled underwear was placed in the drawer and not the washing basket. 49 The Judge was unable to reach a conclusion beyond reasonable doubt that the underwear did not belong to Ms Goodridge despite rejecting Ms Goodridge’s unimpressive and partisan testimony:5 Kerrie-Anne Goodridge, the accused’s partner, gave evidence that the underwear belonged to her, and that she had purchased it from K-Mart. Ms Goodridge was an unimpressive witness. She used every opportunity to paint the accused as ‘put upon’ by ARC and APC’s parents in a way that was not welcomed by him. She gave evidence that it was ARC and APC who repeatedly asked to sleep in the accused’s bed, and that he resisted their requests, but ultimately capitulated. When pressed about how she knew this, she said she had overheard the exchange when on a phone call with the accused. She also said she had overheard the complainants’ parents ask the accused to take care of the children. I do not consider her evidence on those matters plausible and her allegiance to the accused was evident in her language and approach to her evidence. The proposition that the underwear with the ladybird on them belonged to Ms Goodridge seemed unlikely given their style. However, no evidence was called about their size and the briefs themselves were not tendered in evidence. Ms Goodridge was of slight build, and I could not exclude the possibility that children’s underwear would fit her comfortably. I cannot exclude as a reasonable possibility that the semen on those briefs was deposited when Ms Goodridge wore them after sexual contact with the accused. In those circumstances, I do not draw any inference against the accused in relation to them and I do not regard them as relevant to the resolution of the issues in the trial. 50 The Judge’s approach was unduly favourable to Mr Beddoes. How the underwear with Ms Beddoes’ semen on it came to be in the drawer was not an ultimate fact, proving, or constituting, an element of the offence. The ultimate onus of proof beyond reasonable doubt did not apply to the provenance of the underwear. It was an item of circumstantial evidence. It was open to the Judge to consider that Ms Goodridge’s account was implausible having regard to the absence of any clean underwear, and the unexplained placing of the soiled underwear in the drawer instead of the adjacent dirty clothes basket. The Judge was entitled to accept, as more probable, APC’s explanation for the briefs being in the drawer and to use that improbability to support APC’s account. The very presence of the underwear in the drawer described by APC circumstantially 5 R v Beddoes [2022] SADC 130 at [132]-[134]. -- 22 of 27 -- [2023] SASCA 53 Kourakis CJ 21 supports APC’s account, notwithstanding Ms Goodridge’s evidence that it was hers. 51 The forensic scientist, Ms Windram, gave evidence of her analysis of the underwear found in the drawer. The inner crotch of those underpants gave a positive reaction to a presumptive test for semen and sperm was observed on the microscope smear. The semen staining revealed a DNA profile which matched Mr Beddoes, and was unlikely by a factor 100 billion to be the profile of another person. A tape lift of the outer waist band revealed DNA with a profile which matched Mr Beddoes and was unlikely to be the same (by a factor of 100 billion) as the profile of another person in the community. APC and ARC were excluded as possible contributors. A tape lift of the inner waist band revealed DNA which matched Mr Beddoes and was unlikely to be the same as the DNA profile of another person in the community by a factor of 100 billion. ARC was very unlikely to be a contributor. Some of the DNA material extracted bore a profile which matched APC’s profile and was unlikely to be in common with the DNA of another member of the community, by a factor of only three. Nonetheless, the presence of APC’s DNA profile supports her account even allowing for the possibility that Ms Goodridge may also be in that subgroup of one in three persons who share the same profile. 52 The forensic scientist, Ms Windram, also analysed the underwear worn by APC on her last visit and sleepover with Mr Beddoes. The inner crotch area gave a negative result to a presumptive test for semen but a positive reaction to a presumptive test for saliva. The presumptive test for saliva does not exclude other bodily secretions. A tape lift of the inner crotch area was taken and, on analysis, revealed the DNA of APC and one other person. The profile of the DNA which was not APC’s matched the DNA profile of Mr Beddoes and was unlikely, in the order of 1.4 million, to be the same as the profile of another person. A cutting of the inner crotch area was also analysed. Three contributors, including APC, to the DNA found on that cutting were identified. There was a probability, in the order of two, that Mr Beddoes was one of the other contributors. 53 It follows that the forensic evidence of the DNA analysis of the underwear worn by APC showed a very high probability that Mr Beddoes was a contributor to the DNA found in the crotch area. The relatively low probability of two in respect of the DNA found on the cutting from the underwear is of little significance given that the DNA found on the tape lift, of the same general area, showed that the profile of the DNA found there was highly likely (by a factor of 1.4 million) to be that of Mr Beddoes, and not someone else. Moreover, a tape lift of the outer waist band of the same underwear found DNA material contributed by four persons including APC. The profile of the DNA of one of those other persons was found to be more likely, by a factor of 100 billion, to be Mr Beddoes than some other person in the community. -- 23 of 27 -- [2023] SASCA 53 Kourakis CJ 22 54 Mr Beddoes’ defence was that material with his DNA profile may have been left on the underwear by secondary transfer. Ms Windram gave the following evidence about the possibility of the secondary transfer of DNA material: Q. Ms Windram, you were asked some questions about the method for which DNA might get onto a given surface, you mentioned direct transfer, that would be direct contact between the source and the object. A. Yes. Q. You mentioned secondary transfer, what does that mean. A. Secondary transfer might be where I shake her Honour's hand and then she touches the glass then if that glass is swabbed you may detect my DNA even though I personally have not come into contact with that glass, it's been transferred through my contact with her Honour. Q. Is it possible, using that example, that her Honour's DNA might not be detected on that glass even though yours is. A. Yes. We could detect just my DNA, just her Honour's DNA or a mixture of both of our DNA. Q. Is there such a thing as tertiary transfer. A. Yes, there is. Q. What's that. A. That's another stage of transfer again. Q. So that's effectively DNA being transferred throughout the environment by various means. A. It's three stages of transfer, yes. Q. To use our glass example, that would be you touched the glass, her Honour touched the glass and then, say, I touched it? A. So if I shook hands with her Honour, she touched the glass and then you touched the glass and we swabbed your hand, my DNA may be detected on your hand. Q. You mentioned, when you were explaining DNA, that there's no way of working out when the DNA was deposited. A. That's correct. Q. By that you mean that there's no measurement of time that it was in the environment. A. That's correct. Q. Indeed, we know DNA can last hundreds of years. A. Yes, in stable conditions DNA can last many years. -- 24 of 27 -- [2023] SASCA 53 Kourakis CJ 23 Q. You mentioned that it doesn't give you any idea of the method by which it was deposited. A. No, it doesn't. There's studies that can indicate possibilities, but there's so much variation in those studies that we can't use it to make a conclusive statement. Q. Do we also understand from that that also the DNA gives you no idea of the duration that the source was in contact with, either the surface it's detected upon or some other method. A. That's correct. Q. I want to ask you to consider a scenario; if somebody slept in a bed, would you expect to find that person's DNA in the bedclothes of that bed. A. It's possible to detect their DNA, yes. Q. If another person were to sleep in that same bed, would you expect to find the first person's DNA on that second person. A. That's variable and that's unfortunately not a question that I can answer. … Q. And if there was a particular location that that person frequented, like say their bed, would you expect it to be more likely than not the trace DNA would have been in that location. A. DNA can accumulate in a location over time. Q. Again this is a hypothetical scenario that I ask you to consider, but if a person was regularly sleeping in their bed and had not washed the sheets for say a week, would you expect there to be their trace DNA in that bed. A. It's likely that we would detect their trace DNA and in their profile that we have obtained, we would assume them to be a contributor. Q. As well, that same scenario, if that person kept sleeping in that bed and the bedclothes were not washed, would you expect more and more of their DNA to accumulate in that location. A. Yes, each contact can involve a transfer of DNA and so therefore it's likely that DNA would accumulate. Q. If there was a substantial quantity of someone's DNA in a location such as in the bedclothes, would that increase or decrease the chances of someone else collecting some of that DNA if they also were in that bed. A. The more DNA there is available the more there is to transfer. It would depend on the activities of that other person as to how likely the DNA is to transfer. If they're moving about in the bed and there's lots of friction, it can increase the chance of DNA transferring, rather than if they are stationary or passive. Q. Also would the duration of time they spent in that bed increase or decrease the likelihood of collecting trace DNA. -- 25 of 27 -- [2023] SASCA 53 Kourakis CJ 24 A. Again the length of time can increase the chance of DNA, but due to the studies and the very natures in studies, I can't make a conclusive statement on those questions. 55 The questioning of Ms Windram did not deal with the specific circumstances affecting the likelihood of secondary transfer in the particular case of APC’s underwear. It is sound, in the absence of expert evidence to the contrary, to take into account the evidence that APC wore pyjamas to discount the possibility of secondary transfer from biological material in Mr Beddoes’ bed. It is also sound to have regard to the multiple positions on the underwear at which Mr Beddoes’ DNA profile was found. Similarly it is not obvious how APC removing her underwear would leave DNA material of Mr Beddoes on the inside crotch of the underwear. Finally if the transfer postulated is from APC’s hands the activities in which she had engaged which might have removed DNA material from her hands before she took off her underwear must also be considered. The ultimate question is whether the most likely explanation for the presence of biological material with a DNA profile which matched Mr Beddoes, and was unlikely to be shared with any other persons, was left both on the waist band and the inner crotch by secondary transfer when APC removed her underwear, or because of Mr Beddoes’ sexual offending which involved the use of his saliva. The improbability of secondary transfer accounting for the presence of biological material bearing Mr Beddoes’ DNA profile on both the waist band and crotch, together with the possible presence of saliva on the underwear, strongly supports the latter. 56 The Judge concluded as follows:6 Counsel for Mr Beddoes submitted that the presence of DNA on underwear seized from APC was consistent with the complainant having slept in the same bed as him, and transfer having occurred in that way. That may be consistent with the DNA located on the outer waistband. That explanation is less plausible in the case of the DNA tape-lifted from the inner crotch. It is theoretically possible that in the storage of the underwear DNA from the outside of the briefs was transferred to the inner crotch. However, I do not consider that the possibility of an innocent explanation for its presence, means that I must disregard the evidence as a relevant piece of circumstantial evidence. I consider the presence of the accused’s DNA on the inner crotch of APC’s underwear, seized after she returned from a sleep over at his home, a significant piece of evidence which circumstantially supports her account, that the accused had licked, kissed or touched her genital area. (Citation omitted) 57 The Judge’s conclusion is, with respect, sound. Conclusion 58 The verdict was neither unreasonable nor unsatisfactory. A verdict of acquittal cannot be substituted. The acceptance of the reliability of APC’s account, 6 R v Beddoes [2022] SADC 130 at [135]-[137]. -- 26 of 27 -- [2023] SASCA 53 Kourakis CJ 25 and the weight of the evidence supporting her account, must result in an order for a new trial. 59 LOVELL JA: I agree with the Chief Justice and the orders he proposes. 60 DAVID JA: I agree with the Chief Justice and the orders he proposes. -- 27 of 27 --