Director of Public Prosecutions (NSW) v SA - [2018] NSWLC 27

Local Court

New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v SA [2018] NSWLC 27
Hearing dates: 16, 17 April 2018, 4 July 2018
Decision date: 10 August 2018
Jurisdiction: Criminal
Before: Magistrate Tsavdaridis
Decision:
The Defendant is found guilty of aggravated indecent assault, contrary to s.61M(2) of the Crimes Act 1900 (NSW) (Sequence 1)

Catchwords:
CRIMINAL LAW - indecent assault - standard of proof - onus of proof - cautionary criminal trial directions applicable in summary prosecution - defence case - whether Defendant’s act intentional or accidental

Legislation Cited:
Crimes Act 1900 (NSW) ss.61M(2), 61HA, 77, 428D
Criminal Procedure Act 1986 (NSW) ss.291, 306M(1), 306S(1)(a), 306U(1), 306ZB
Evidence Act 1995 (NSW) ss.12, 13, 141(1) and (2)

Cases Cited:
Attwood v R (1960) 102 CLR 353; [1960] HCA 15
Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Harkin v R (1989) 38 A Crim R 296
R v Brooks (1988) 44 NSWLR 121
R v Ciantar (2006) 16 VR 26; (2006) 167 A Crim R 504; [2006] VSCA 263
R v Murphy (1985) 4 NSWLR 42
R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45
Woolmington v DPP [1935] AC 462

Texts Cited:
Criminal Trial Courts Bench Book, Judicial Commission of New South Wales (Oct 2017)

Category: Principal judgment
Parties: Director of Public Prosecutions NSW (Crown)
SA (Defendant)
Representation: Solicitors:
Mr E Freelander (Crown)
Mr M Blair (Defendant)

File Number(s): 2017/312299
Charge No: H66549479
Publication restriction: Pursuant to ss.7(a) and 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is a suppression and non-publication order prohibiting the publication or other disclosure of any information tending to reveal the identity of or otherwise concerning the underage complainant, underage Crown witness and the underage children of the Defendant to avoid causing undue distress or embarrassment to such persons.

Judgment

Overview

Mr [SA] (“the Defendant”) is charged with one count of aggravated indecent assault, contrary to s.61M(2) of the Crimes Act 1900 (NSW).
Consistent with the suppression and non-publication order prohibiting the publication or other disclosure of any information tending to reveal the identity of or otherwise concerning the underage complainant, underage Crown witness and the underage children of the Defendant, and so as to avoid causing undue distress or embarrassment to such persons, I have anonymised various names and locations throughout this judgment.
The Defendant is the stepfather of the complainant, Miss [ML], and it was alleged that on or about 4 October 2017, the Defendant touched the complainant on the inside of her pyjama pants, on her vagina, while not wearing underwear and while she lay asleep on the upstairs lounge at the family home.
It was not in issue that the complainant was under 16 years of age at the time of the alleged offence. In the Crown’s opening statement, it was contended that the Defendant had developed an unusual, obsessive interest in the complainant in the lead up to the alleged offence and that this developed into a sexual interest. It was contended that the Defendant was aware that the complainant was asleep and that she could not have consented to the Defendant’s act. In any event, by virtue of s.77 of the Crimes Act 1900 (NSW), the consent of a child under 16 years of age cannot be a defence to a charge under s.61M(2). It was further contended that the Defendant made a telling admission upon being confronted by the complainant. It was also said that the complainant made an immediate complaint to her 15-year-old boyfriend, Mr [JL], who was staying overnight, downstairs, in readiness for a short holiday to the South Coast to visit his family with the complainant. The Crown submitted that what could be inferred from the act of the Defendant was a clear sexual connotation or overtone.
Due to the complainant and her boyfriend being under 16 years of age, the following precautionary measures were adopted for the portion of the proceedings in which their evidence was taken: -

the proceedings were heard in camera, in accordance with s.291 of the Criminal Procedure Act 1986 (NSW);

their competence to give sworn evidence was presumed by virtue of R v Brooks (1988) 44 NSWLR 121, and established at the outset with relative ease, by virtue of ss.12 and 13 of the Evidence Act 1995 (NSW);

as their age made them vulnerable persons within the meaning ascribed in s.306M(1) of the Criminal Procedure Act 1986 (NSW), their evidence-in-chief was given in the form of an audio-visual recording by virtue of s.306S(1)(a) and s.306U(1) of the Criminal Procedure Act 1986 (NSW);

their additional oral evidence (cross-examination and re-examination) was given via audio-visual link from the remote witness room, in accordance with s.306ZB of the Criminal Procedure Act 1986 (NSW), in which there was a support person and a court officer present;

the complainant and her boyfriend, respectively, were not visible or audible to the Court while it was viewing and hearing their audio-visual recorded interviews with police, in accordance with s.306U(1) of the Criminal Procedure Act 1986 (NSW).

The Legislation

The relevant provision pursuant to which the Defendant was charged provides as follows: -

61M Aggravated indecent assault
(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.

Cautionary Criminal Trial Directions and Onus and Standard of Proof

Sitting as both the tribunal of fact and law, to the extent that questions of law such as onus and standard of proof arise, it is apposite that I direct myself as though I were directing a jury on the application of the law to the facts, as they found them to be, in matters prosecuted on indictment. Cautionary criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250; [1998] HCA 68. For abundant clarity, set out below are the matters in respect of which I directed myself.
It is imperative, at the outset, to observe that these are criminal proceedings and, as such, the Crown bears the onus of proving all the elements of the offence, beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7; Woolmington v DPP [1935] AC 462. Section 141(1) of the Evidence Act 1995 (NSW) preserves the common law position. That onus rests with the Crown from start to end and does not shift to the Defence.
The Defence, however, bears an evidentiary onus, on the balance of probabilities, of proving facts that would bring its case within the scope of any statutory defences or common law defences, ever mindful, though, not to reverse the onus of proof. It is then for the Crown to negative or disprove the existence of such facts to the requisite criminal standard, beyond reasonable doubt. To the extent that an onus is cast upon an accused, the Court is to find the Defence case proved if it is satisfied that the case has been proved on the balance of probabilities: s.141(2) of the Evidence Act 1995 (NSW).
Two further matters should be borne in mind when arriving at a concluded view as to whether the Defendant is guilty or not guilty of the offence with which he has been charged.
First, it is erroneous for a tribunal of fact to consider each item of evidence separately and eliminate it from consideration, no matter how or by whom it was raised, unless satisfied beyond reasonable doubt. The evidence must be considered as a whole, not in isolation: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7.
Secondly, if upon a review of all the evidence the tribunal of fact is left with reasonable doubt about whether the Crown case has been made out, a verdict of acquittal must be returned: Woolmington v DPP [1935] AC 462.

Elements

The essential ingredients or facts that the Crown must prove are as follows: -

that the Defendant assaulted the complainant;

that the assault was indecent;

that the assault was without the consent of the complainant; and

that the Defendant knew that the complainant was not consenting.

Recklessness was not averred as part of the Crown case and it does not fall for consideration.
Unless the Crown proves every one of these essential ingredients, the Defendant is not guilty. The Court, as the tribunal of fact, can only find the Defendant guilty if the Crown proves each of these matters beyond reasonable doubt.
I turn to each of the elements more closely and, guided by the traditional jury direction derived from the Criminal Trial Courts Bench Book, observe the following matters: -

(1)   The accused assaulted the complainant
To establish this offence, the Crown must first prove beyond reasonable doubt that the Defendant by his act assaulted the complainant. An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain. There is no suggestion in the present case that if the Defendant touched the complainant as the Crown alleged he did, the touching was lawful.
(2)   The assault was indecent
The Crown must prove beyond reasonable doubt that the assault was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in this community. Sitting as the tribunal of fact, it is for me, therefore, to determine the standards prevailing in our community when deciding whether the Crown has satisfied the Court beyond reasonable doubt that the act alleged in this case was indecent.
For an assault to be indecent, it must have a sexual connotation or overtone. If the Defendant touches the complainant’s body or uses his body to touch the complainant in a way which clearly gives rise to a sexual connotation, that is sufficient to establish that the assault was indecent. For example, touching the genitals or anus of a male or the genitals or breast of a female. If as a finding of fact it is found that the assault does not carry a clear sexual connotation or overtone, the Crown must prove beyond reasonable doubt that the Defendant’s conduct was accompanied by or went hand in hand with his intention to obtain sexual gratification: Harkin v R (1989) 38 A Crim R 296 at 301. I should add that none of the evidence on which the Crown relied in these proceedings suggested that the alleged assault was sexually equivocal. The Defence position was to the contrary however.
In deciding whether the Crown has proved this essential ingredient of the charge, the tribunal of fact is to take into consideration all the surrounding circumstances including the Defendant’s words and actions, the respective ages of the Defendant and the complainant, any relationship which may have existed between them and the nature of the act relied upon. Where the act of indecency alleged is “at the time” of the assault, the Crown must also prove beyond reasonable doubt that at the time of the assault, the Defendant committed an act of indecency on the complainant. Although a reading of the charge in the indictment might suggest that the Crown must establish two separate acts, that is, an act that amounts to an assault and a separate act which it alleges was indecent, this is not necessarily so. The Crown can rely upon the same act as amounting to both the assault and the act of indecency. That is what the Crown alleged in this case.
(3)   The assault was committed without the complainant’s consent
Little need be said about this element. The common law definition of consent applies to indecent assault. The statutory definition of consent in s.61HA of the Crimes Act 1900 (NSW) does not extend to s.61M by virtue of s.61HA(1). Moreover, by virtue of s.77, the consent of a child under 16 years of age cannot be a defence to a charge under s.61M(2).
(4)   The accused knew that the complainant was not consenting
The Crown must also prove beyond reasonable doubt that the Defendant knew the complainant was not consenting. This is the fourth ingredient. Here, the tribunal of fact is concerned with the actual state of mind of the Defendant at the time of the act amounting to the assault. It is the Defendant’s mind which is to be considered. It is not a question of what the tribunal of fact would have realised, thought or believed. It is also not a question of what a reasonable person would have thought or believed. This ingredient of the offence requires the tribunal of fact to look at what was going on in the mind of the Defendant and, in deciding this issue, regard can be had to all the surrounding circumstances. Finally, as stated earlier, as recklessness was not averred as part of the Crown case, nothing further need be said in relation to such alternative.

The Evidence in the Crown case

Detective Senior Constable Jennifer Ward (Officer-in-charge)

The Statement of Detective Senior Constable Jennifer Ward, the officer-in-charge, dated 22 November 2017, was tendered into evidence as Exhibit 1. The officer was not cross-examined and her evidence, without trivialising her involvement, was administrative and investigative in nature.

Miss [ML] (the complainant / the Defendant’s stepdaughter)

The complainant’s evidence-in-chief was given via an audio-visual interview recording with police on 12 October 2017. The Defence took no issue with the complainant’s competence. Her evidence-in-chief was as follows [references are to the question numbers in the corresponding transcript of the complainant’s record of interview (MFI “A”)]: -

She was 15 years of age at the time of the incident and when giving her record of interview (Q4);

The Defendant was her stepfather (Q26);

The incident happened while she was sleeping on the upstairs couch at the family home (Q34, Q36);

Other than herself, the people in the house that night were her 15-year-old boyfriend (Mr [JL]), her six-year-old brother ([JJA]), her eight-year-old sister ([AA]), her mother (Ms [JA]), and the Defendant (Q75, Q78);

The incident happened on 4 October 2017, being the Wednesday prior to her recorded interview (Q32);

She went upstairs, said goodnight to her mother at about 11.00 p.m. and went to sleep on the couch upstairs (Q95, Q98, Q100, Q115);

She took her sleeping tablets (melatonins) to help her sleep immediately because she had night terrors (Q117, Q118);

She was wearing pyjama pants, no underwear and a top when she went to sleep on the couch. A blanket covered her body (Q130 - Q133);

Earlier that day, she had just returned home from a family trip down the coast and was packing to head off on another trip to the South Coast, this time with her boyfriend, so as to see his family. While she was having a shower, the Defendant walked into the bathroom to put away toothbrushes and toothpaste. She moved behind the door to hide herself while in the shower and the Defendant said words to the effect of, “don’t be ashamed of your body”. Afterwards, she went back downstairs, had dinner and, she and her boyfriend watched movies for a few hours. She then went upstairs to sleep on the couch, as her boyfriend was sleeping in her bedroom downstairs (Q38). Later in her evidence, she elaborated by stating that the Defendant “walked in and put the toothpaste down and then I hid behind the door because the door opens towards the shower because the shower is like, see through like glass so I hid behind the door and he said don’t be ashamed of your body because I hid behind the door and then he walked back downstairs.” (Q72);

During the night, the Defendant put his hands down her pants (Q37). She “woke up to my stepdad’s hands down my pants and I like, sat up and said, “What are you doing?” He said, “Just checking on you.” And then I sat up for another like, fifteen minutes and thought I could stay up all night and then decided I couldn’t and called him back out into the lounge room and I said, “I might go downstairs because I don’t feel safe up here with you.” And then I went downstairs, oh, I got up to go downstairs and, oh, before all that he said, “Why don’t you feel safe?” And I said, “You know why I don’t feel safe.” And he said, “I’m sorry. It’s the biggest fuck up of my life. Don’t tell your mum.” And then I went to walk downstairs and he said, “If you want tell your mum now.” And then he, I was like, I just want you to go away and then he went back into his room and I went downstairs and told my boyfriend.” (Q39);

She elaborated later in the interview by stating that the Defendant “was sitting beside the couch and I woke up to his fingers moving around down my pants.” She stated that he was kneeling on the ground (Q137 - Q141);

She stated that the Defendant was in the vicinity of her stomach area and she “just woke up to feeling his fingers down on my vagina moving around”, “not in, just on the outside”. When asked what the Defendant’s fingers were doing, she replied “Um, I don’t really know. They were just moving around like, like um I don’t know.” (Q148 - Q150);

The first thing she felt when she woke up was that it was “just cold down there” (Q151). She sat up straight away (Q153). She was asked to elaborate on exactly where the Defendant’s fingers were, to which she responded “I don’t know.” (Q156);

After the Defendant stated that he was just checking up on her, he went back into his room. She sat up for about 15 minutes, didn’t have her phone and was, therefore, unable to tell what time it was. She felt scared (Q161 - Q163);

She stated that “Then I called his name. I was like, [SA], and then he came back out and I said, “I’m going downstairs because I don’t feel safe up here with you.” And he said, “Why don’t you feel safe?” I said, “You know why I don’t feel safe up here.” He goes, “I’m sorry. Don’t tell your mum. This is the biggest fuck up of my life. I could lose [AA] and [JJA].” And then he goes, “What do you want me to do?” And I said, “I just want you to go back into your room.” And then I stood up to go downstairs and he, when I was walking down the stairs he walked out and said “You can tell your mum now. What do you want to do?” I said, “I just want you to go back into your room. I’m going downstairs.” (Q164);

Her boyfriend, Mr [JL], was 15 years of age (Q47);

She told her boyfriend that she “woke up to [SA] feeling me up”, she couldn’t sleep and just wanted to stay awake (Q173);

After telling her boyfriend what had happened, they stayed up and watched Netflix on television, she fell asleep and he stayed awake to make sure that the Defendant did not come downstairs. Eventually, they left the downstairs lounge room and went into her bedroom where she fell asleep and her boyfriend stayed awake (Q40). Elsewhere in her recorded interview, she stated that she stayed up and that her boyfriend fell asleep (Q176);

The next morning, her boyfriend had a word with the Defendant (Q178);

As to the interaction between her and the Defendant the next morning, she stated that “He came into my room and said, “What are you doing today?” I said, “We’re going to [redacted].” And he said, “O.K.” And he said, “Are we alright at all like, remotely alright?” And then I said, “No.” He said, “Can I have a hug?” I said, “No.” And then I stayed on the other side of the room, of my room and then he left my room.” (Q179);

The next day, she and her boyfriend got dressed and went to [redacted] for shopping so that they were not at home with the Defendant (Q41);

After returning from the shops with her boyfriend and packing her bags, the only other contact between her and the Defendant involved the Defendant driving them to the train station so as to make their way to her boyfriend’s house in readiness for their trip to the South Coast over the ensuing few days (Q188 - Q193);

She and her boyfriend made a pact not to talk about the incident or think about it while they were away so they could have a good holiday (Q195);

When they returned from their holiday, she did not want to go home and went shopping with her boyfriend at Macquarie Shopping Centre. It was at this stage that she asked her boyfriend to send a text message to the Defendant telling him that he needed to tell her mother because this was putting too much pressure on her (Q196);

While at the shopping centre, her boyfriend sent a text message to the Defendant and, some time later, her mother called her boyfriend’s phone, having come to know about the incident, and picked them up from Normanhurst Train Station (Q203);

She was asked whether she had a conversation with her mother about what had happened, to which she replied, “Not really in the car. It’s just I can’t really talk about it with her. She heard like, what I told the police in the in the room thing and I said that he had his hand down my pants. The police asked if they were moving. I said yeah, he was moving his hands around and that’s really all I told her because I can’t say it to her.” (Q204 - Q205);

Upon her return home, she saw the Defendant get into a taxi and leave. There was no further interaction between them (Q207).

The complainant’s evidence in cross-examination was as follows: -

She had had some health problems in early 2017. Her mother and the Defendant found out about her self-harming and suicidal thoughts, in respect of which help was sought from the Kids Helpline and Headspace psychologists. She readily agreed that she had some behavioural issues, including letting her boyfriend in through her bedroom window late one night, trying alcohol, trying cannabis, shoplifting and sneaking out with friends at night, for which she was grounded;

Her mother, but particularly the Defendant, monitored her using the “Find My Friends” app. She was being bullied by other students, missed school and had to change schools;

On or about 5 July 2017, her mother and the Defendant allowed her boyfriend to stay over for the first time and she got into trouble that night;

She denied the assertion that on or about 19 and 20 August 2017, the Defendant started to help her clean her bedroom because it was messy and making her depressed;

She had spent about two days at [redacted] Hospital after experiencing suicidal thoughts and agreed that her mother and the Defendant had organised to remove all the sharp items at home, a photo of which she acknowledged as being Exhibit 4;

On or about 29 August 2017, she was unwell and was admitted to the Children and Adolescent Mental Health Unit (CAMS) at [redacted] Hospital for about seven days. Upon being discharged, a Safety Plan was developed, which she insightfully and articulately explained in cross-examination listed the “triggers” as being things that would set off an emotion or cause upset. She agreed that the Safety Plan (Exhibit 5) outlined the roles her mother and the Defendant would take, although she could not recall the specifics. She agreed that she signed the Safety Plan;

Whilst she recalled the Defendant cleaning her room afterwards, she did not recall going to school or the Defendant helping her with homework. She agreed that the Defendant brought her the medication she was required to take every night, including natural sleeping tablets because she suffered from night terrors. She also agreed that the Defendant occasionally brought her chocolates, drinks, lollipops and the like, including at her request, and acknowledged that the photos tendered as Exhibits 6 and 7 depicted the “care package” and text message exchange between her and the Defendant in relation to these items;

During the day before the incident, she went for a shower in the ensuite to the bedroom occupied by her mother and the Defendant. The door to the bathroom was slightly open, although, she disagreed that it was part of the Safety Plan not to have closed doors. She stated that the bathroom door was not left open because of her safety but because she had not closed it. While in the shower, she denied hearing the Defendant knock on the bedroom door and say “knock knock, just me”. She also denied the proposition that she called out to the Defendant to bring her some toothpaste. It was her evidence that the Defendant brought in his and her mother’s toothbrushes and toothpaste, not hers. She did not brush her teeth in the shower upstairs and would not ask anyone to bring it in for her. It was put to her that the Defendant left immediately, to which she responded “before he left, he said don’t be ashamed of your body because I hid behind the door”;

As to the incident the subject of the charge, she stated that she was on the upstairs couch asleep. She did not know whether she had rolled from her side to her back. She denied the proposition put to her that before she sat up, she felt the touch of a single hand on her tummy above the waistline of her pyjama pants. She did not recall feeling a hand move from above the waistline to under the waistline as she rolled. She categorically denied feeling only fingers under her waistband, stating that “I felt a hand”. She disagreed with the proposition put to her that the hand was “a little distance away” from her vagina;

She became more alert and sat up. The hand was removed from under the waistband before she sat up. She recalled the Defendant kneeling next to her and that she did not have a doona on her. She was emphatic in her explanation that the doona was on her feet but not on the rest of her body;

She agreed that she asked the Defendant what he was doing and that he stated that he was checking on her, only to leave the area and return to his bedroom before she called out to him. She was unable to recall whether he sat at the end of the lounge when he returned but she did state that she told the Defendant she would be going downstairs and that he “knew why”. She did not agree with the proposition that the Defendant said nothing for about 10 seconds. She also denied the suggestion that the Defendant said words to the effect of, “I’m sorry. I don’t know what happened.” She stated that the conversation as put to her in cross-examination was not the one she recalled having with the Defendant;

It was put to her that the Defendant said words to the effect of, “I could lie to say nothing happened but I won’t as I want you to believe me. It was an accident and I am sorry.” She stated that the Defendant may have said so but she did not recall this;

It was put to her that she said words to the effect of, “I’m going downstairs and in the morning you can tell mum why.” This was a proposition with which she did not agree. She stated that she told him that she did not feel safe upstairs, that she was going downstairs and that the Defendant pleaded with her not to tell her mother because he “could lose [AA] and [JJA]”. She recalled telling the Defendant to go back into his room after he asked her what she wanted him to do. Thereafter, he returned to his room. Importantly, in the face of further robust cross-examination, she maintained that she recalled the Defendant saying words to the effect of, “Please don’t tell your mum. I could lose [AA] and [JJA]”;

She could not recall the suggestion that, after this, the Defendant said words to the effect of, “What are we going to do?” She also denied the proposition that the Defendant said words to the effect of, “We should wake mum up now and tell her.” It was her evidence that the Defendant said, “You can tell your mum now. What do you want to do?”;

It was suggested to her in cross-examination that the words “it’s the biggest fuck up of my life” were not said by the Defendant but, rather, this was included in her recorded interview with police after having heard those words from her boyfriend. This too was a proposition with which she disagreed;

The next morning, the Defendant came downstairs and he and her boyfriend went outside to talk. She did not talk with her boyfriend about the conversation he had with the Defendant because she did not want to hear the Defendant’s side of the story. She stated that she did not recall the Defendant approaching her at her bedroom door at about 7.30 a.m., apologising to her and asking whether she was alright. She also did not recall the Defendant looking like he was about to cry nor that she stated that she did not want to talk about it. She did not recall the Defendant stating that he had explained everything to her boyfriend and that he would do nothing without her say so, but that they did not have much time before her mother went to work. It was put to her that the Defendant said that he would tell her mother when she was ready but “don’t take too long”. She did not recall this conversation;

Much of the ensuing conversation attributed to the Defendant and put to her in cross-examination, she did not agree with or did not recall having taken place at all. In particular, it was put to her that the Defendant said words to the effect of, “Are we going to do anything before mum goes to work?” and that she apparently responded “No”. She categorically disagreed with this assertion. She did, however, agree that the Defendant left her room and she reiterated her earlier evidence to the effect that the Defendant asked whether she was okay and if he could have a hug;

She was shown an exchange of text messages between the Defendant and her boyfriend’s phone (Exhibit 9) at about 9.35 a.m. on 4 October 2017 in relation to breakfast cereal, “fruitloops and condensed milk from m”. She was unable to recall there having been any conversation about breakfast or asking her boyfriend to send a text message to the Defendant along those lines. She readily agreed that her memory had failed her in relation to some of the conversation which she thought was of little consequence;

Later in the day, after having returned home from [redacted] Westfield Shopping Centre, and after having packed for her trip to the South Coast, she agreed that the Defendant drove her and her boyfriend to the train station. However, she denied and did not recall the Defendant asking her if he was saying anything to her mum;

A few days later, while she was away, she agreed that she spoke with her mother but did not recall speaking with the Defendant on the phone. She also could not recall the conversation put to her that the Defendant said words to the effect of, “Is there anything you want me to tell your mum?”;

She stated that she did not recall telling her mother exactly what happened following her return from the South Coast but that, upon her mother picking her up from the train station, both of them were in tears and very upset;

In response to her having said “hands” (plural) in her record of interview with police, and “hand” (singular) in her oral testimony, the suggestion being that she did not have a clear memory of this event, she stated that the reason for the use of the word “hands” was “as you say feet instead of foot… It’s just a general thing. I have a clear memory of him having his hand down my pants.” The effect of this was that she used the terms imprecisely and interchangeably. She did not resile from the fact that she was tired and half asleep when this incident is said to have taken place. She stated that she was anxious to tell the police, in the recorded interview, what had happened. It was unsurprising, when assessed against the backdrop of the proposition put to her in cross-examination that she was contemplating whether it was a dream or not, that she responded to the effect that “I did not have a clear idea of what was going on… I had just woken up. I was half asleep”;

She agreed, when she was asked by her boyfriend how far the Defendant’s fingers were from her private area, that she said to him words to the effect of, “A little bit away from it.” She did not, however, recall using her thumb and index finger to indicate the distance;

She agreed that she had seen the Defendant crying during a time after her discharge from hospital. She thought the Defendant was acting in an odd manner when she went to bed, including by reference to the “don’t be ashamed of your body” comment earlier in the day. She agreed that it took a number of days, four days to be exact, for her to ask the Defendant (through her boyfriend) to tell her mother what had happened. Insightfully though, she stated that she “was trying to think how it would affect my family.” She emphatically denied that the reason for the delay was because she was not really sure what happened.

In re-examination, she was asked to explain what she meant by her earlier testimony that she “was trying to figure out how it would affect my family.” She stated that, “I didn’t know how [AA] and [JJA] would cope with losing a dad or my mum, would cope with the whole situation, or if we would lose our house and all our money. I had no clue what was going to happen because I haven’t dealt with … this [situation before]”.

Mr [JL] (the complainant’s boyfriend)

Mr [JL’s] evidence-in-chief was given via an audio-visual interview recording with police on 18 October 2017. The Defence took no issue with his competence. His evidence-in-chief was as follows [references are to the question numbers in the corresponding transcript of his record of interview (MFI “B”)]: -

He was 15 years of age at the time of the allegations the subject of these proceedings (Q15);

The Defendant was the complainant’s stepfather. He was the complainant’s boyfriend and had known her for about five months (Q24, Q25, Q86);

The incident between the Defendant and the complainant happened at the complainant’s family home about two weeks earlier (Q26, Q29);

He was staying over at her house that night. He and the complainant were laying on her bed watching movies on Netflix. When it was time to go to bed, he slept in her bedroom and she went upstairs at about 11.00 p.m. (Q40) and slept on the couch. This is was what usually happened when he slept over. The incident occurred at about 2.30 a.m. (Q35);

He stated that he “got woken up by [the complainant] at 2.30 a.m. and she woke me up, she was beside me. She told me exactly what happened and I was like, O.K. I stayed up and I made sure [the Defendant] didn’t come downstairs and after about twenty minutes of waiting me and [the complainant] wanted to go to the lounge room and watch TV until we fell asleep. And, we watched TV for a while then we both went to her room and fell asleep. When we woke up in the morning um, I saw [the Defendant] walking down the stairs and [he] came to the room and um, I don’t know, he asked something, I cannot remember. But then I asked if um, I could have a word with him. He said, “Yeah, sure.” So we went outside and he told me everything that happened in his point of view and he told me his story and when we were finished, I went back in her room and then we started packing for our holiday down the south coast with my family.”(Q36);

He later elaborated and stated that “I got woken up, she sounded distressed and worried. Um, she patted me and I was obviously really drowsy so I, I knew she was panicking, I just had a glass of water that was on the side of the table. And she told me that um, so she was like, nearly crying at this stage and she was shaking and so was I and she told me that um, that [the Defendant] came in and put his hand down her pants. And she freaked out and said, “What are you doing?” And [the complainant] sat up on her bed and um, for about fifteen minutes she told me. And she was contemplating whether it was a dream or not. And after that she was going to walk downstairs and she yelled out to [the Defendant], “I don’t feel safe up here with you.” And, and then she walked downstairs.” (Q46);

As to the particulars of his conversation with the Defendant, he stated that they “went outside and I said, “[SA], tell me about what happened last night.” And he, in his words, he said, “It was a huge fuck up.” And he, and I said, so what happened so apparently he was, he was checking up with [the complainant] and when he went, so he saw [her] laying on her side, on the couch near the edge and he went to push her. And he put his hand on her tummy and accidentally slid down pants, his pants, her pants. And then he realised, he said he realised what um, he did and he freaked out so he pulled his hand out and, and yeah” (Q53). “I said, “I’m not sure what’s going to happen but whatever it is, this cannot happen again.” He said, he like, laughed a little and he was like, “Yeah, I know.” He was on the verge of crying” (Q54, Q55);

Nothing else was said as part of this conversation with the Defendant. The next morning, he stated that the Defendant “gave us fruitloops for breakfast he came in with bowls and I think that’s it” (Q63);

He stated that the complainant did not tell anyone else about what had happened (Q70) but that during his and the complainant’s holiday with his family afterwards, the complainant asked him to send the Defendant a text message to tell the complainant’s mother about the incident (Q72, Q73). He did so;

He also stated that the night before the incident, the complainant told him that while she was having a shower, she wanted a soap or a towel and that the Defendant came in the shower and said words to the effect of, “Don’t be ashamed of your body”, then walked out (Q47);

Later in his recorded interview, when asked whether there was anything else he would like to add, he stated, “Yes. I forgot to mention um, [the complainant] told me that [the Defendant] put his hand down her pants, I asked like, how far away it was from the private area and she said just like, a little bit away from it” (Q90).

Mr [JL’s] evidence in cross-examination was as follows: -

In relation to his interaction with the Defendant the next morning at 6.30 a.m., he agreed that he was awake when the Defendant came downstairs; however, he did not recall the Defendant asking if the complainant was alright;

He agreed that he asked to speak to the Defendant and they both went out to the back deck. He asked the Defendant what happened and agreed that the Defendant said that when he checked on the complainant, she rolled on her side and was about to fall off the lounge. He agreed that the Defendant stated that his hands ended up in her pants, that it was unintentional and accidental and that it was such a fuck up. He did not recall the Defendant saying that it was “the biggest fuck up of [my] life”. He agreed that the Defendant said that he could lose everything, that he did not know why it happened and that he would not tell the complainant’s mother until the complainant was ready to do so. He stated that he did not know if the Defendant said anything along the lines of the complainant not wanting to tell her mother last night. He also did not recall the Defendant asking him to explain all of this to the complainant. It was put to him that the Defendant asked him to tell the complainant that they still had a couple of hours before her mother had to go to work, so the complainant had some time but not too long. He did not recall this and was not quite sure, stating that he briefly, vaguely had a recollection of the reference to not having too long;

When the complainant came downstairs and spoke with him at 2.30 a.m., she was distressed, worried and panicking;

The complainant asked him what the Defendant said after the conversation between him and the Defendant and he told her. He agreed, unsurprisingly, that he had spoken with the complainant about the incident at 2.30 a.m., after 6.30 a.m. and about 4 to 5 days later while on their holiday. Indeed, during the holiday, he asked the complainant if she was okay and if she was comfortable, but she did not tell him any more information about the incident, as far as he could recall;

He agreed that at about 7.30 a.m., the Defendant came to the complainant’s bedroom door while both he and the complainant were awake. The Defendant looked stressed. He did not recall the Defendant enquiring about the complainant’s well-being nor the complainant informing the Defendant that she did not wish to speak about it. He also denied that the Defendant stated to the complainant that he (the Defendant) had explained it all to him (Mr [JL]). He agreed with the propositions put to him that the Defendant said words to the effect of, “I will do nothing without your say-so” and “I will tell your mum when you are ready but don’t take too long”;

He agreed that at about 9.00 a.m., he and the complainant were sitting on the bed watching something on the computer and that the Defendant asked what they wanted for breakfast. He recalled the Defendant coming back with two bowls of fruitloops cereal. He did not recall the Defendant asking the complainant whether they were going to do anything before her mother went to work. He denied and did not recall sending a text message to the Defendant to do with fruitloops cereal, but when shown the text message in Exhibit 9, he remembered it;

He stated that he did not recall much about that morning, including the suggestion that the Defendant made breakfast for everyone and did the laundry for him and the complainant, or drove them from Westfield Shopping Centre back. He emphatically denied that the Defendant drove him and the complainant to the train station and further denied the assertion that, at the train station, the Defendant asked the complainant if he was going to say anything to her mother;

He agreed that, at the complainant’s request, he had sent the text message in Exhibit 9 (“hey [SA], [ML] is under pressure so she wants you to tell [JA] about what happened”) to the Defendant on 8 October 2017;

Finally, during that morning, he did not see the Defendant checking on anything around the house.

Mr [JL] was not re-examined.

Ms [JA] (the complainant’s mother / the Defendant’s wife)

Ms [JA’s] evidence-in-chief was as follows: -

She was the complainant’s mother and the Defendant’s wife;

Towards the end of 2017, the complainant was suffering from a number of health problems, including depression, anxiety, mental health issues and was suicidal, for which she was hospitalised. Her treatment involved appointments with psychiatrists and psychologists, taking care of her, the removal of sharp objects from the house, matters in respect of which the Defendant took an active role;

She noticed a change in the Defendant’s behaviour following the complainant’s discharge from hospital. She stated that the Defendant became particularly attentive to the complainant, would put lotion on her scars twice a day, would check on her multiple times at night, check on her whereabouts throughout the day using her “Find My iPhone” app and would get agitated if he could not get access where she was;

Late on or about 3 October 2017, after the family’s return from a trip to Eden on the South Coast, everyone went to bed and the next morning she left for work at about 9.00 a.m. Later in the day, she met the Defendant, her younger children, the complainant and her boyfriend at [redacted] Westfield Shopping Centre to buy the complainant a pair of swimmers for her trip to Jervis Bay before she returned to work;

She had exchanged some text messages with the complainant while she was away but there were not many. She found this unusual because of how the complainant had been;

She recounted the events of 8 October 2017, including the Defendant’s approach and disclosure of the alleged impropriety involving the complainant, in a visceral manner. She stated that the Defendant approached her, rushing towards her, quite panicked, saying that he had to talk to her urgently. They went upstairs to the bedroom and he said words to the effect of, “I need to tell you something but I can’t tell you because I’ll break [the complainant’s] trust.” She replied words to the effect of, “You need to tell me what happened. You are the adult. You have to tell me what’s going on.” He then said words to the effect of, “I really fucked up. You’re going to hate me. You’re going to want to divorce me. I’ve done something stupid. I’m really sorry.” She then said, “What did you do?” It was her evidence that the Defendant then said words to the effect of, “I went out to check on [ML] on Wednesday night and she was out of her blankets and on the edge of the lounge. So I pushed her back onto the lounge and for some fucked up reason, I put my hands down her pants and she woke up and I removed my hand. I don’t know why I did it. It was a split second. It’s going to ruin my life”;

Upon this disclosure, she was in shock, telling the Defendant not to do anything and not to go anywhere. She got into her car, called the complainant who told her that she and her boyfriend were on their way to [redacted]. However, she picked them up from [redacted] Train Station. When she got out of the car, she gave the complainant a huge hug and observed that the complainant was in tears. Both the complainant and her boyfriend got into the car and she asked her what had happened. The complainant said, “I woke up in the middle of the night with [the Defendant’s] hand down my pants.” The complainant said that when she woke up, the Defendant pulled his hand out of her pants and said that he was checking on her. The complainant also told her that “[she] laid on the lounge for a couple of minutes. [She] called [the Defendant] back out and told him [she] didn't feel comfortable and that [she] wanted to go downstairs and get into [her] bed with [her boyfriend].” The complainant also said that “[she] went downstairs and got into bed with [her boyfriend] and woke him up and told him what [the Defendant] had done and he stayed awake for the rest of the night to make sure [the Defendant] didn’t come back downstairs”;

She stated that when the complainant had called the Defendant back out, after he had returned to his bedroom, she told him that she didn’t feel comfortable and he asked what she meant by this to which the complainant responded “You know what you did.” She said that the complainant told her that the Defendant said words to the effect of, “I’m sorry, I screwed up. Don’t tell your mother. It’ll ruin everything”;

When they pulled into the driveway she told the complainant and her boyfriend to remain in the car. She went inside the house, told the Defendant that she had called a taxi for him and that he needed to pack his bag and leave. She asked him where he was going to go and he said that he would stay at his friends’ house, [WW]. She told him not to do anything stupid. The Defendant kept telling her that he loved her, did not want to leave, was sorry and had screwed up. She told him that it did not matter and that he had to leave.

Ms [JA’s] cross-examination was as follows: -

She agreed that when she met the Defendant, the complainant was four years of age, that he was always good to her and treated her and helped raise her as his own child;

By 2016, when the complainant was in Year 8, a number of problems began to emerge. She was unhappy at her father’s place. The relationship between her stepmother and her stepsister was becoming worse. In or about June 2016, one of her primary school friends committed suicide and this affected the complainant. The complainant was apparently being bullied by her stepsister and, in or about July 2016, came to live with her and the Defendant. Her schooling suffered and after a disagreement between herself and her ex-husband, family law orders were put in place and the complainant moved from [GO] High School to [AU] Girls’ High School;

She agreed with the propositions put to her that the Defendant would catastrophise about things and thought the worse could happen, but added that this was only to do with the complainant. She denied that the Defendant would catastrophise about things at work and with regard to his involvement with the Scouts. She did not agree that the Defendant did not want to leave the house or be with his friends. Again, she agreed with the proposition that the Defendant suffered from anxiety attacks, but added that this was only to do with the complainant. She agreed that he got depressed and would cry at night, but not regularly, and would often burst into tears while doing the laundry or the dishes. She was not aware of him lying in bed at night unable to sleep but, at some stage, she recommended that he see a doctor because his depression and anxiety was not helping anyone;

After the complainant was admitted to [redacted] Hospital, she and the Defendant agreed that he would take a role to ensure the complainant took her medication every night. She did, however, state that the complainant had specifically requested that the Defendant not be present with doctors. Most of the meetings were between her, the complainant and the doctors;

She agreed that the Defendant had a role to play as part of the Safety Plan developed upon the complainant’s discharge from the Children and Adolescent Mental Health Unit (CAMS) at [redacted] Hospital. This included helping her with homework, giving her her medication each night and keeping her bedroom neat and tidy. Her role included checking on the complainant’s mood and thoughts and, similarly, supervising her 100% of the time with the Defendant, but eventually giving her some freedom. She would check on her when her boyfriend came over, especially at night;

Although she was able to recall that the Defendant was prescribed anti-depressants, she did not recall whether his anxiety was worse than before, whether there was any change in his mood, whether he was sweating at night or whether he had to take days off work because he was not feeling well. She did not recall having a conversation with the Defendant, in which he allegedly told her in the weeks before the incident that he had a compulsion to check on things, although she did recall him doing so. She did not recall having a conversation with the Defendant about him having to check whether he sent an email, about him having to check whether the pool filter was on after a cleaning cycle, or about him having to check whether the garbage was out, nor did she recall observing him do these things. She did not recall specifically having a conversation with the Defendant encouraging him to stay on the medication and to give the medication an opportunity to work through his system, although she agreed that this was something she might have said;

She assumed, based on the text message exchange in Exhibit 14 between herself and Ms [ZZ](Cub Scout Leader and friend of the Defendant) on 21 September 2017, that Ms [ZZ] was asking about the Defendant’s mental health. However, she stated that she recalled Ms [ZZ] checking in on how the Defendant was going with regards to the logistics for the scout camp scheduled for 22 to 24 September 2017. She agreed that the Defendant was to organise transport for the scout children, that he was floundering and that Ms [ZZ] was concerned about him, to which she replied in the text message to Ms [ZZ] that the Defendant seemed better last night;

She agreed, based on the text message exchange in Exhibit 11 between herself and Mr [WW] (a friend of the Defendant) on 5 September 2017, and who also had a daughter who was suffering from mental health problems, that she offered her assistance, but was worried about the Defendant as “he isn’t coping so he prob won’t offer much”. She stated that the Defendant was not coping with the fact that the complainant had been in hospital;

As to the family’s trip to Eden, she disagreed and did not recall the Defendant checking every door and window before leaving the accommodation for a bushwalk, forgetting to bring the water, having an argument, having difficulty sleeping, a rapid heart rate, sweating, being anxious, missing the turn-off at Goulburn and having to get her to drive the remaining journey home. Rather, she recalled the Defendant being tired;

As to 8 October 2017, the day on which the Defendant approached her at home and made the disclosure, she agreed with the proposition put to her that the Defendant did not tell her earlier because he had made a promise to the complainant. However, she did not recall the proposition put to her that this was conditional on the complainant being ready. She also did not recall the statement as put to her in cross-examination that the Defendant wanted to keep the promise to the complainant because he had also promised it would not happen again. She agreed that the Defendant told her that when he checked on the complainant that night, she was almost off the lounge and that he pushed her back onto the lounge;

She disagreed with the assertion that the Defendant said to her that for some fucked up reason, his hand ended up in her pants. Rather, she recalled it as being “for some fucked up reason, I put my hand down her pants.” She did not recall the Defendant saying that it happened so fast or that it was only a second. She agreed, though, that the Defendant told her that the complainant woke up straight away;

She readily conceded, when put to her in cross-examination, some discrepancies between her statement to police and her oral testimony;

She readily conceded that in her oral testimony she stated that the Defendant said, “I need to tell you something, but I can’t tell you because I will break [the complainant’s] trust”, whereas in paragraph 14 of her statement she stated that the Defendant said, “I wanted to tell you”, rather than can’t [my emphasis added];

She readily conceded that in her oral testimony she stated that the Defendant said, “I really fucked up. You’re going to hate me. You’re going to want to divorce me. I’ve done something stupid”, whereas in paragraph 14 of her statement, there was no reference to “I’ve done something stupid”;

She readily conceded that in her oral testimony she stated that the Defendant said that the complainant woke up “and I removed my hand. I don’t know why I did it”, whereas in her statement, there was no reference to these words;

She readily conceded that in her oral testimony she stated that the Defendant said, “It’s going to ruin my life”, whereas in her statement, there was no reference to these words;

She readily conceded that in her oral testimony she stated that when she picked up the complainant from the train station, the complainant said that when she woke up, the Defendant “pulled his hands out of her pants and said he was just checking on her”, whereas in her statement, there was no reference to these words;

She readily conceded that in her oral testimony she stated that the complainant had said that after the incident, she “laid on the lounge for a couple of minutes”, whereas in her statement, there was no reference to laying on the lounge;

She readily conceded that in her oral testimony she stated that the complainant had said that after the incident, she told the Defendant that she “didn’t feel comfortable”, whereas in her statement, there was no reference to these words;

She readily conceded that in her oral testimony she stated that the complainant had said that after the incident, her boyfriend “stayed awake for the rest of the night to make sure [the Defendant] didn’t come downstairs”, whereas in her statement, there was no reference to these words;

She readily conceded that in her oral testimony she stated that the complainant had said that after the incident, the Defendant said, “What do you mean” and the complainant answered, “You know what you did”, to which the Defendant said, “I’m sorry. I screwed up”, whereas in her statement, there was no reference to these words;

She readily conceded that in her oral testimony she stated that the complainant had said that after the incident, the Defendant said, “It will ruin everything”, whereas in her statement, there was no reference to these words.

Ms [JA] was not re-examined.
At the close of the Crown case, the Defence conceded that there was a prima facie case. Whilst there was an exchange between the Defendant’s solicitor and the Bench about a possible application for a direction on the basis of a lack of cogency in the evidence to justify a verdict of guilty, in accordance with R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45, the application was not pursued and the Court declined to give itself such a direction.

The Evidence in the Defence case

The Defence then chose to call evidence and opened its case.

Ms [ZZ] (Cub Scout Leader and friend of the Defendant)

Ms[ZZ]’s evidence-in-chief was as follows: -

She had known the Defendant for about six years, having met as cub scout leaders and worked closely over that time;

She stated that the Defendant was always a reliable and trustworthy person, able to complete complex tasks, with a great attention to detail. He was a caring, loving, family man. His work ethic surpassed anything she could think of. He was always thorough and methodical in the way he did things. He would always follow the rules, sometimes to his detriment;

From July 2017, however, she noticed a change in his personality. He became very stressed. He would not respond to emails and important communications, missed meetings, forgot about things which she found completely out of character. He seemed very withdrawn and not his normal exuberant self. She attributed this to family stresses at home and teenage kids. She stated she was aware that the complainant was suffering from mental health issues at the time because they (the cub scout community) were a very close knit community and they were all aware of that. The Defendant told her about the complainant’s admission to hospital. The Defendant was upset, trying to juggle work, looking after the young children, trying to help and support his wife and trying to be there for the complainant if she needed his assistance at home and while she was in hospital;

On or about 30 August 2017, she and her husband happened to come across the Defendant at Coles. He was at the self-serve checkout with his two young children and when he saw her, he “burst into tears”. She said that the he forgot to pay. He was overwhelmed and her husband took the two young children aside while she comforted the Defendant who told her that he was overwrought with stress, with the complainant being in hospital, the doctors asking for things to happen at home and with his work life suffering while he tried to juggle everything;

On or about the weekend of 22 September 2017, the cub scout group of which she and the Defendant were a part, had its first ever group camp. It was a major event. They had over 100 youth members and 20 adult leaders attending and it was a rather large undertaking in terms of organisation. The Defendant was in charge of organising transport for all the youth members. She stated that the Defendant failed miserably in this endeavour. He was unable to find the information he required. He was unable to compile it into a manner that would get the children on their way in a timely manner. He had no ability to get things organised, whereas, normally, he would have things organised to “within an inch of his life”;

On or about 20 September 2017, on the Wednesday before the camp, the Defendant called her and said words to the effect of, “I don't know what I'm doing.” He was crying. He was upset. He said that he had taken the day off work because he was not feeling well. He said he tried to put things together but it did not make any sense. He was unable to access the information, so she offered to help him. She described him as inconsolable;

As to the weekend of the camp itself, she observed the Defendant to be withdrawn, upset, distressed and feeling guilty that he was there, rather than at home with his wife and the complainant. He was unable to cope with the task of trying to settle the younger kids and that this was something he would normally do with ease. He was reserved and disengaged with the program. On the second night, there was a big windstorm that took down many of the shelters and scared the children. She found it surprising that the Defendant stayed in bed throughout this;

Some weeks later, on or about 8 or 9 October 2017, she became aware that the Defendant sent an email to Mr [YY] (Cub Scout Leader) and Mr [XX] (who oversaw the Scout Group) stating that he was taking an indefinite leave of absence, effective immediately;

In the weeks and months that followed, she had had an opportunity to meet with the Defendant. Initially, she found him upset and agitated. He told her that he was seeing somebody to help him to recover from anxiety. In or about November or December 2017, he seemed to be making amends. He seemed to be himself. He seemed to be able to talk like the person she had initially come to know. He seemed more together, able to handle things better, and was answering text messages, notwithstanding that he was upset that he could not see his family;

She stated, when shown the text message exchange in Exhibit 14 between herself and the Defendant’s wife, on 21 September 2017, she had sent the text message “Just checking in… How’s things?” the day after her conversation with the Defendant, in which he had broken down, and that she wanted to make sure he was okay;

In the time she had known the Defendant, she had never seen him do anything inappropriate with a child, nor suggest anything inappropriate to or about a child.

Ms [ZZ]’s evidence in cross-examination was as follows: -

She had worked with the Defendant, as part of the cub scout group, for about six years;

She had also socialised with the Defendant and considered him a friend;

She agreed that the Defendant contacted her and asked her to attend court:

She agreed that she attended court to give evidence to do her best on his behalf;

The Defendant gave her a broad outline of the facts of the matter;

She understood that there were two competing versions, namely, the Defendant’s and the complainant’s;

She agreed that she had no reason to doubt the Defendant’s version of events;

Similarly, she had no reason to doubt the complainant’s version of events.

Ms [ZZ] was not re-examined.

Mr [YY] (Cub Scout Leader and friend of the Defendant)

Mr [YY]’s evidence-in-chief was as follows: -

He had known the Defendant for about five years, having children in the same classes at the same school;

His daughter joined the cub scouts in 2014. The Defendant was one of the cub scout leaders and, as he got to know him better, he too joined as a cub scout leader in 2015;

In the period before August 2017, he described the Defendant as someone who was organised, calm, rational, honest, straightforward and a stickler for the rules. At times, they would have up to 30 youths attending the camps and, often, children would become sick or injured and the Defendant was always calm and collected, with a clear idea of what to do when children became homesick, injured and various other things. The Defendant was always very calm and collected and had a clear mindset of how to address these types of issues;

In the period after August 2017, he noticed a change in the Defendant’s personality. The Defendant had been quite stressed. The Defendant told him that the complainant had been having some mental health issues. Despite this, though, he stated that the Defendant seemed to be able to put this to the side and, with respect to his duties within the cub scout group, was performing well;

He was involved in the planning of the cub scout group camp, which was held on the weekend of 22 September 2017 and which involved a large group of about 100 youths. The Defendant was assigned the task of organising the carpooling of the youths and leaders to be transported to the camp site. This required great organisational skills, which the Defendant had attended to in the past with relative ease. However, he did not hear anything from the Defendant until about one or two days before the camp. He stated that the Defendant seemed to have no comprehension of how to accomplish the task, had no way forward, was in a real panic and was unable to complete the task. The Defendant sounded frazzled. The Defendant was not just looking for some assistance with the task. Rather, the Defendant wanted someone to just completely take charge of it. He felt that the Defendant was completely lost;

As to his observations at the cub scout camp, he stated that the Defendant, as one of the more experienced, senior leaders, was not himself. The Defendant was very much in the background, barely to be seen;

Some weeks later, on or about 9 October 2017, he was copied into an email from the Defendant to all of the cub scout leaders, “basically throwing his hands in the air”;

In the weeks and months that followed, he observed the Defendant as being concerned with his inability to see his children as much as he would have liked. The Defendant had attended his home, interacted with his children, helping them do a 1000-piece jigsaw puzzle, and had been more like his normal self;

In the time he had known the Defendant, he had never seen him do anything inappropriate with a child, nor suggest anything inappropriate to or about a child.

Mr [YY]’s evidence in cross-examination was as follows: -

He had worked with the Defendant, as part of the cub scout group, for about three years;

He had also socialised with the Defendant and considered him a friend;

The Defendant gave him a very broad outline of his version of events in relation to the matter;

He later disagreed with the proposition that since the charge was laid in October 2017, the Defendant had given him a version of the case against him and the competing narratives;

He agreed that he had no reason to doubt the Defendant’s version of events;

He was unable to agree or disagree as to whether he had any reason to doubt the complainant’s version of events because he was not aware of her version of events.

Mr [YY] was not re-examined.

Mr [WW] (Friend of the Defendant)

Mr [WW]’s evidence-in-chief was as follows: -

He had known, and was close friends with, the Defendant for about 20 years, since high school, and would have nights out with him and other friends every few weeks;

In the period before June 2017, he described the Defendant as being excitable, caring, honest, responsible and fun;

He travelled overseas with the Defendant in or about June 2017 and during the trip, found him more anxious than ever. Whilst he had always found the Defendant “a bit particular”, he described him as being somewhat obsessive-compulsive;

During the overseas holiday, he stated that the Defendant felt compelled to phone his wife all the time. They would climb a mountain and the Defendant would call his wife. They would feed a wild herd of reindeer and the Defendant would call his wife. While on the bus to the airport, the Defendant phoned his wife. The Defendant was embarrassed, withdrawn and crying. He found the Defendant’s behaviour unusual and weird. He also came to know of the family law custody dispute, regarding the complainant, as between the Defendant’s wife and her ex-husband, which was taking place at about that time;

In the period between July and August 2017, he met with the Defendant about twice. He stated that the Defendant would either not respond to text messages or he would have to badger him;

In the period between August and early September 2017, the Defendant’s wife called him and sent text messages on about three occasions advising that she was worried about the Defendant as he was not coping. She stated that the Defendant needed to see his friends more and needed to get out more. He stated that he recalled this because he had received a text message (Exhibit 11) from the Defendant’s wife at a time when he and his own wife were having problems with their own daughter who had been hospitalised for mental health issues as well;

On or about 8 October 2017, he stated that the Defendant arrived at his and his wife’s home in a taxi. The Defendant’s wife rang ahead to inform him of this and said that the Defendant would tell him why she had sent him over in a taxi. He said that the Defendant arrived with a face full of mucus, was crying incomprehensibly, was inconsolable and would not come into the house. It took him an hour to get the Defendant into the house. After that time, there was still not much sense to be made from anything the Defendant was saying. During the night, the Defendant was looping in what he was saying and did not sleep. He and his wife were woken by the Defendant countless times throughout the night and found him crying in the bathroom;

The next day, on 9 October 2017, he saw the Defendant get ready for work and he told him that he was in no position to be going to work. He told the Defendant that he needed to speak with someone, to get some help. The Defendant searched for psychologists on his phone and found one in Adelaide and did not seem to think that there was a problem with seeing a psychologist interstate;

As to the Defendant’s physical appearance, he observed that he “had the shakes”, was sweating and “vagued out.” He stated that the Defendant’s “head just wasn’t right”;

He enquired of the Defendant about his anxiety medication and the Defendant informed him that he had only recently started taking the medication, was nauseous, was suffering from gastroenteritis and his heart was racing. He made an appointment for the Defendant to see the doctor the same day and different medication was prescribed;

Eventually, the Defendant lived with him for about five months. A few days after returning from the doctor, the Defendant’s hands stopped shaking, he stopped sweating and staining the bed sheets, underlay and mattress and was able to hold a conversation. The Defendant still cried but it was in grief rather than being inconsolable. He stated that the Defendant was able to ensure that the mortgage over his home was being paid. The Defendant could follow a television plot and started to sleep a little better after a few days. The Defendant “started to change back”, not to the same person he had always known, but “a recognisable version of him”;

In the time he had known the Defendant, he had never seen him do anything inappropriate with a child, nor suggest anything inappropriate to or about a child.

Mr [WW]’s evidence in cross-examination was as follows: -

The Defendant had not told him what the complainant had said occurred on 4 October 2017;

The Defendant had only given him his version of what had occurred on 4 October 2017;

The Defendant was a good and dear friend;

The Defendant had asked him to come to court to give evidence on his behalf;

He emphasised that he attended court to tell the truth and would not lie under oath.

Mr [WW] was not re-examined.

Mr [VV] (Work colleague of the Defendant)

Mr [VV]’s evidence-in-chief was as follows: -

He was the Chief Financial Officer, and worked with the Defendant for over six years;

He described the Defendant as a high achiever, in control and very good at his job. Therefore, he was often given more challenging roles. He found the Defendant personable and a hard worker, who also had pursuits outside of work to which he was devoted, including the cub scout movement;

In the period between August and October 2017, he noticed a significant change in the Defendant’s character. He said that the Defendant walked around as if he had a black cloud over his head. The Defendant did not engage at all and, coming to know that the Defendant was having issues with his stepdaughter who was suicidal, he became concerned for the Defendant. The Defendant’s performance at work was deteriorating rapidly and he was making significant mistakes which compromised the company’s position in a particular project. The Defendant informed him that he was having trouble focusing on simple things, including driving. He found him to be a very changed person;

In or about November 2017, the Defendant started to reengage and become more involved at work. He was able to have a conversation with him and the errors diminished;

In the time he had known the Defendant, he had never seen him do anything inappropriate with a child, nor suggest anything inappropriate to or about a child.

Mr [VV]’s evidence in cross-examination was as follows: -

He had socialised with the Defendant only at work-related functions;

He considered the Defendant a friend;

The Defendant gave him a version of what had occurred in relation to the incident the subject of the charge;

He agreed that he had no reason to doubt the Defendant’s version of events;

He was unable to agree or disagree as to whether he had any reason to doubt the complainant’s version of events because he was not aware of her version of events.

Mr [VV] was not re-examined.

Mr [SA] (the Defendant)

The Defendant’s evidence-in-chief was as follows: -

He had been with his wife for over 12 years and met the complainant when she was three years of age. He raised her as his own daughter. By 2016, when the complaint was in Year 8, things got worse. She was living equally at her father’s and mother’s houses. She was being bullied at school and at her father’s house. In or about July 2017, she came to stay with the Defendant and his wife on a full-time basis. She moved from [GO] High School to [AU] Girls’ High School. At about this time in 2017, she was cutting herself on her arms and legs and admitted to being suicidal. His wife called the Kids Helpline and organised a child psychologist specialist through Headspace in [redacted]. She was having a number of behavioural issues, including being caught shoplifting, getting drunk at a family party, trying cannabis, letting her boyfriend in at night through her bedroom window and sneaking out at night during a sleepover with friends. As a result, she was grounded and her movements were monitored through the “Find My iPhone” app. He locked the complainant’s bedroom windows. After she reported bullying at her new school, she took a number of days off. On or about 5 July 2017, he and his wife allowed the complainant’s boyfriend to stay the night and she got into big trouble;

As to his own mental health progress at around this time, he started worrying, would catastrophise and would extrapolate the worst possible outcome in things. He would try to take action but was depressed most of the time and would cry twice a week while, for example, in bed or doing the dishes. He was unable to make decisions at work. It affected his friendships and those with whom he was involved in the cub scout group. He made excuses not to see his friends and his wife told him that his behaviour was not helping the family and that he needed help. On or about 11 August 2017, he saw a doctor who diagnosed him with anxiety and depression. However, he refused to take medication, opting instead for a mental health plan and to consult a psychologist. His patient records from the Family Medical Centre in [redacted] were tendered into evidence as Exhibit 15 and made reference to his confusion about his role in the complainant’s upbringing, his distress about her lack of boundaries, her diagnosis of depression and self-harming, his low mood, worry, anxiety and the side-effects of Lexapro medication, which he was taking before the incident the subject of the charge. After the incident, the patient records revealed that he was feeling worse, agitated, not sleeping well, crying very easily, had a racing heart, low mood, indecisiveness and wanting to know about the interaction between alcohol and the anti-depressants he was taking. The Lexapro medication was changed to Valdoxan. The later consultations in November 2017 and January 2018 revealed that the Defendant was feeling better than when he was taking the Lexapro medication, that he had been seeing a psychologist, was still anxious, had low-energy, good and bad days, was finding it difficult to focus and make decisions, had challenging negative thoughts, but no suicidal ideations. The invoice for his attendance on Mr Davide Di Pietro (Psychologist) on 5 September 2017 was tendered into evidence as Exhibit 16;

On or about 20 August 2017, he helped the complainant clean her bedroom because she said that she got depressed when they told her to do so. He built shelves in her bedroom and, a few days later, the complainant was admitted to [redacted] Hospital. He felt scared and anxious, as if his worst fears were coming true. The discussion with the doctors in the paediatric ward centred around what had triggered the complainant’s suicidal thoughts. He stated that he was only aware of her plan to jump in front of a train. His wife, however, clarified the complainant’s plans as involving slashing her wrists, overdosing on medication or hanging. He was given the task of making the house safe. The complainant was released from hospital two days later but because she could not give a guarantee that she would not harm herself at the follow-up meeting at the hospital, she was admitted to the Children and Adolescent Mental Health Unit (CAMS) at [redacted] Hospital for about seven days;

On or about 30 August 2017, he came across his cub scout friend, Ms [ZZ], and her husband at Coles. He suffered an emotional breakdown and cried, telling them that his life was a mess;

On or about 6 September 2017, the complainant was released from the CAMS Unit at [redacted] Hospital and a Safety Plan was developed. His role was to help the complainant keep her bedroom clean (as this was said to have been linked to her depression), help her with her homework and give her her medication every night. Upon her release, she was supervised by the Defendant or his wife 100% of the time. She gradually returned to school and was allowed more freedom. However, her boyfriend would come over on weekends, something with which he disagreed and caused him angst because she seemed to be dependent on him for her happiness and misbehaved more when he was around. He stated that he would personally check on them and the house numerous times each night. He would check on many things, including emails, noises, the pool pump and the like. When the complainant’s boyfriend stayed over, he would sleep in her bedroom downstairs and she would sleep on the lounge upstairs;

On or about 16 September 2017, he attended on his family doctor and informed her that his thoughts were affecting his decisions. His doctor performed another assessment, referred him to a psychologist and insisted that he take medication. He was given a prescription for Lexapro (Exhibit 17) which he started taking the next day. He stated that he felt sick when going to work that day and was suffering from diarrhoea. He returned home to look after the children, who had gastroenteritis. He had interrupted sleep, was shivering and sweating, with a rapid heart beat and took a few more days off work. His felt constantly anxious, as if he had consumed 10 cups of coffee, and was trying to analyse what was wrong. At work, he hid from responsibilities, avoided meetings and missed deadlines;

On or about 23 September 2017, he attended the cub scout group camp. His main task was to organise transportation for the youths attending. He felt terrible, procrastinated for too long, sent an email to his fellow colleagues advising that he had not organised anything and needed help. He was extremely anxious, unable to perform his duties, did not get out of his tent when a storm hit and wanted to leave. Upon his return home, he became concerned and his wife convinced him to give the medication time to work;

On the long weekend of 27 September 2017, he and the family travelled to Eden for holidays. Again he felt anxious the whole time, was worried as to whether they could afford the trip, questioned why they took the dogs and whether they had enough petrol. He checked doors, windows and the like and, at night, he had difficulty sleeping, was sweating, shivering, with a rapid heart rate, constantly checking on the children and dogs. On 3 October 2017, while returning home, he missed the turn off at Goulburn because he was so focused on his issues and anxiety. He pulled over and told his wife to drive;

Dr Nielssen’s evidence in cross-examination was as follows: -

He agreed that he had received some supporting documentary material to assist in preparing his medical report, as outlined on page 1 therein, including the Police Facts Sheet in relation to charges of indecent assault of the Defendant’s stepdaughter, a letter from Dr Artin Jebejian (Psychiatrist) dated 11 December 2017, a copy of Dr Jebejian’s notes, a report from Dr Jerrod Webster (Psychologist) dated 9 February 2018 and clinical records from the Summers Avenue Family Medical Centre;

He also agreed that he only had one face-to-face meeting with the Defendant in which he was provided with the Defendant’s perception of what occurred. In response to the proposition that he relied upon the account provided by the Defendant to draw conclusions, he stated that such assertion was correct, to some extent, coupled with his clinical experience as to what he deemed to be a plausible connection. In relation to his conclusions as to the Defendant’s reactions to the Lexapro medication, he agreed that he relied, to an extent, on the Defendant’s account. In this regard, he stated that the Defendant reported these matters to his treating psychiatrist;

He agreed with the proposition that the Defendant was prescribed Lexapro medication on about 16 September 2017 and that his next consultation with a physician was on or about 9 October 2017. He stated that the Defendant may well have been experiencing side-effects as at 16 and 17 September 2017, according to the account he provided.

Dr Nielssen was not re-examined.

The Medical Report of Dr Olav Nielssen (Psychiatrist) dated 10 March 2018

In his medical report dated 10 March 2018 (Exhibit 19), Dr Nielssen drew the following salient observations and conclusions : -

The Defendant reported to him that he had been diagnosed with depression and, at the time of the alleged offence, was affected by a reaction to anti-depressant medication prescribed several weeks beforehand;

The Defendant reported that the complainant had behavioural problems and had been admitted to an adolescent psychiatric ward at [redacted] Hospital;

As to the narrative and the Police Facts Sheet, the Defendant reported that the account of what took place was largely correct, but there were errors in the detail and he denied committing the offence as alleged. The Defendant reported that he had been quite depressed in the preceding months and had adverse physical and psychological side-effects, including anxiety and sleeplessness, from the anti-depressant medication Lexapro, prescribed just over two weeks earlier;

The Defendant reported that he had developed a habit of checking on the security of the house and the welfare of the children at night, to the point of compulsiveness;

The Defendant reported that on the night in question, he “got up to check on the kids and [the complainant] was asleep on her side about to fall off the couch and I pushed her back on the couch with my hand on her hip area and my hand slipped down her pyjama pants.” The Defendant also reported that there was “no deliberate attempt to touch [the complainant] on the genital area” and that he “did not think [he] had done anything illegal … [He] apologised for touching her accidentally … [He did not] believe he touched her genitalia … It was only the week after when the police got involved [that he considered] it was going to be seen like that”;

The Defendant reported that he was not tactile as a stepfather in the way that he was with his own two children and that he had always been careful to respect the complainant’s privacy, knocking or announcing himself before entering the bathroom or bedroom. He reported that once she asked him to bring her some toothpaste when she was in the bathroom and when he entered, she was naked and he turned around and left immediately. He denied having any kind of attraction to teenage or prepubescent children;

The Defendant reported that his GP made a diagnosis of depression and prescribed escitalopram (Lexapro) medication, which triggered severe side-effects including diarrhoea, nausea, constant anxiety, sweating, mind racing, confusion and stress. The Defendant reported that he would catastrophise in relation to everything but that he did not want to be away from home because his wife was drinking heavily. The Defendant further reported that he developed checking behaviours which became worse after he started taking the medication and which he described as compulsive, manic behaviour;

The Defendant also reported that he had consumed “a couple of beers that night before falling asleep” as it was the last day of a holiday and he did not have work the next day. He also stated that he had only consumed “two or three beers and believed the alcohol would have worn off before he woke up”;

The Defendant reported that his first contact with any kind of mental health service was in the month prior to the alleged offence, when he consulted the complainant’s own psychologist on a mental health care plan prepared by his GP. He was then referred to another psychologist and after a subsequent visit to his GP, during which he was prescribed escitalopram (Lexapro), he was prescribed another anti-depressant, Valdoxan, which assisted in his sleep and anxiety related symptoms, notwithstanding the fact that he was still depressed;

The Defendant reported that his wife had become increasingly critical and belittling towards him when affected by alcohol, which added to his anxiety and feelings of depression;

He reviewed the notes of his colleague, Dr Artin Jebejian (Psychiatrist), who first saw the Defendant after the incident, eliciting a history of symptoms of depression from mid-2017 and that the Defendant had commenced treatment with anti-depressant medication prescribed by his GP on or about 17 September 2017, two weeks prior to the alleged offence. He noted that Dr Jebejian made the diagnosis of major depressive disorder;

He reviewed the notes of Dr Gerard Webster (Psychologist), who first saw the Defendant after the incident, eliciting a history of long-standing depression, anxious preoccupation with the safety of members of his family and features of obsessive compulsive disorder in checking behaviour;

He reviewed the notes from the Defendant’s GP, including a consultation on 11 August 2017 in which the Defendant requested a referral to a psychologist. He was described in those notes as having a low mood, being teary, sleep disturbed due to pre-existing back pain, with anxiety, worry and a recognition of past episodes of depression, without any recent suicidal ideation. He was referred initially to Mr Davide Di Pietro (Psychologist) under a mental health care plan and, after further symptoms of depression persisted, he was referred to another clinician, Ms Natalie Robinson (Psychologist);

On or about 9 October 2017, he presented reporting side-effects to treatment with escitalopram (Lexapro) and his medication was varied to agomelatine (Valdoxan);

On or about 13 October 2017, the Defendant requested a referral to a psychiatrist and was initially referred to Dr Kim Nguyen (Psychiatrist), which was later changed to Dr Jebejian;

He diagnosed the Defendant with depressive illness and anxiety disorder. The diagnosis of depressive illness was made on the basis of the history of symptoms that the Defendant reported had been present for much of his adult life, but became more severe in the year prior to the incident. In his opinion, there was a documented history of symptoms and objective signs of depressed mood in his consultations with his GP in the months prior to the incident, coupled with the Defendant reporting pervasively low mood, being easily moved to tears, disturbed sleep, fatigue and both physical and psychological symptoms of anxiety. The separate diagnosis of anxiety disorder was made on the basis of the history of symptoms of anxiety that were present when the Defendant was not especially depressed, but which became more severe while depressed, including the Defendant describing feelings of agitation, something bad about to happen, racing heartbeat, catastrophic thinking and performing anxiety reducing checking rituals;

He concluded that there was a link between the symptoms of the Defendant’s condition, the treatment prescribed in the weeks prior to the alleged offence and the event that led him to being charged with the offence, as the Defendant experienced a severe adverse reaction to treatment with escitalopram (Lexapro), with increased agitation, anxiety symptoms, further impairment in sleep and an increased urge to perform anxiety reducing checking behaviour.

The Medical Report of Dr Artin Jebejian (Psychiatrist) dated 11 December 2017

In his medical report dated 11 December 2017 (Exhibit 18), Dr Jebejian drew the following salient observations and conclusions : -

The Defendant reported depressive episodes since July 2017 with “low mood, less sleep, eat less, weight loss, racing mind, cry, agitated, cheer up with jokes, blame, not able to organise things, not spend time with kids, had self-harm in teenage years, cutting wrist, suicidal thoughts, [had] guns removed by police … [and] made excuses not to see friends or attend social events” [sic]. The depression was triggered prior to the incident by the Defendant’s “wife drinking and showing verbally abuse, when she was drunk. She cause him to cry nightly, responding with ‘suck it up’ and ‘own that shit.’ Wife told him he was acting like a child and she didn’t need an extra child to look after. Caused increase in depression cycle” [sic]. The Defendant is reported as having said that he would “check doors and windows … check and recheck last 4 weeks, check on step-daughter repeatedly, hear a noise, check it, check on pool, switch off” [sic];

The Defendant also reported that the main source of his anxiety was the complainant, her suicidal thoughts and actions, her misbehaviour, citing a major event, which he referred to as a “fuck up”, the fact that he forgot to give the complainant her prescribed medication on 21 August 2017, which nearly caused her to kill herself;

Notably, he stated at paragraph 4 on page 2 of his report that the Defendant “described himself, ‘selfless; independent; trusting school friend; hate self, hate what I’ve done; not bored; no empty feeling; not lie; obsessional, routine; close friends.’” [sic];

After providing additional background observations regarding the Defendant’s treatment with various clinicians, he concluded with a diagnosis of “Major depressive disorder, Non-Melancholic; Generalised Anxiety Disorder; Social Anxiety; Panic disorder with Agoraphobia; Obsessive Compulsive Disorder; cluster C, Obsessional traits; migraine” [sic];

His impression was that after the Defendant “started escitalopram he got side effects consistent with the known side effects of escitalopram, and it’s my professional opinion that he had an adverse and major reaction that drastically changed his behaviour. These reactions would cause behaviour totally outside the normal behaviour and in periods of major stress, anxiety and depression, could result into uncharacteristic behaviour and actions. Their side effects would have been in full effect by the date of the event on 4th October 2017, after starting escitalopram three weeks earlier, and due to the lack of sleep and other factors, would have put [the Defendant] under great mental stress” [sic].

The Defence case closed after the evidence of Dr Nielssen and the legal representatives sought to make, and later filed, written submissions on the determination of guilt or otherwise.

Consideration

The complainant gave her evidence in a rather subdued, methodical fashion. She was softly spoken, persuasive and gave a rational and compelling account of what had transpired that night. Her evidence was internally and externally consistent as much as it was compelling and she was well-orientated as to time, location, events and the persons present at the various times the subject of her account. She had no hesitation disclosing some of the personal aspects of her life including her mental health issues, indiscretions such as trying cannabis and the strain in her relationship with her parents. She readily made concessions where there was an inconsistency in some of the peripheral aspects of the events the subject of the proceedings. Importantly though, she did not malign the Defendant, recognising that there were in fact times during which he exhibited support and kindness. She did, however, query the level of his involvement in her life.
There was much force in the Crown’s contention that whilst her evidence was supported by almost immediate complaint to her boyfriend, but there was some delay in reporting the matter to her mother, there was a sustainable consistency with what a tribunal of fact might expect of a 15-year-old girl faced with an emotionally manipulative plea by an adult Defendant not to tell her mother for fear that he would lose everything including his two younger biological children.
I came to the view that the complainant had an acute awareness of the solemnity of the surrounding atmosphere in which her recorded evidence and oral testimony were given and the need to be forthright and truthful. I was left with the impression that despite whatever problems she may have been labouring under personally, as a young adolescent woman, this was an event and a position in respect of which she ought never have been placed by an adult in whose care she was entrusted. Whilst this was not an additional circumstance of aggravation under s.61M(3) of the Crimes Act 1900 (NSW), the gravity of the situation was neither lost on the complainant nor the Court as the trier of fact.
There were many occasions on which she exhibited an insight and articulation which emphasised the significance and weight to be accorded to her evidence. She did not appear to have been waylaid by questions asked of her in cross-examination which, to a trained legal professional, might have at first blush appeared obfuscatory.
There was much to be said about the complainant’s evidence that she was trying to understand how this incident would affect her family and how her younger siblings would cope losing a father. None of her responses were indicative of fabrication or a misalignment as to what transpired that night. Her responses in this regard were perspicacious in nature and an entirely plausible explanation of the pressures and anxiety under which a young person labours when confronted with sexual impropriety of this kind.
Overall, I found her evidence to be resolute, honest and forthright. She struck me as a reliable witness whose account, but for some minor incongruities within entirely tolerable bounds, was plausible and was not discredited by cross-examination. She did not overstate the position and I found her to be both honest and accurate in the account she gave.
The complainant’s boyfriend presented as a timid, respectful and modest young man. He gave a methodical, direct and resolute account of the events of the night of the incident, the morning and days that followed. His evidence, particularly his recorded evidence-in-chief, bore an exceptionally persuasive aura. It was a balanced, fair assessment of what he recalled of the immediate complaint made to him by the complainant in the minutes which followed the alleged offence and, indeed, a candid account of the interaction between all parties prior to, during and post the alleged offending, even if, at times, he was unable to recall with precision much of the detail of what occurred with the Defendant later in the day after the incident.
Any perceived diffidence in his testimony was to be contrasted against the courage found in his confronting, as a guest in that home, the Defendant, an adult, the next morning, to extract an explanation for the understood sexual misconduct.
His evidence, in my view, attracted great weight as he relayed, objectively, direct knowledge of the events as he recalled them, unpolluted by opinion or conjecture. There was nothing fanciful nor in the nature of embellishment or tailoring in the evidence he gave, despite having spent the next five days on the South Coast, almost exclusively with the complainant, and away from both the Defendant and the complainant’s mother, all of whom gave evidence at the hearing. The corroborative effect of his evidence served to highlight the veracity of the complainant’s account. This was particularly so with regard to his observations of distress and panic indelibly displayed by the complainant upon her disclosure to him of the events on the couch upstairs, only moments earlier.
I had little difficulty rejecting any contention that his evidence might have been contradictory to the Crown case and, rather, supportive of the Defence theory on the case, by virtue of his testimony that when the complainant told him that the Defendant put his hand down her pants and he asked how far away it was from the “private area”, she replied, “a little bit away from it” (Q90, MFI “B”). It was tolerably clear that the complainant’s evidence was to the effect that the complainant woke up to the feeling of the Defendant’s fingers “down on my vagina moving around”, “not in, just on the outside” (Q148 - Q150, MFI “A”). What the core account of the complainant and the slightly deviated account of her boyfriend share is that they both make due allowance for the fact that there was no penetration, which would have seen the preferment of objectively more serious charges, and amply exclude the possibility of any finding of fact that the Defendant’s hand (or hands) accidentally slid across the complainant’s body and his fingers ended up just underneath the waistband of her pyjamas, so much so, that his fingers were covered up to his knuckles.
Ultimately, I found the complainant’s boyfriend to be a credible and reliable witness, whose testimony on the crucial aspects of the Crown allegation held weight.
The evidence of Ms [JA] was sensitive, genuine and unvarnished. As the mother of the complainant for 15 years and the wife of the Defendant for 10 years, she had the unenviable task of hearing from the Defendant, then the complainant, before then eventually relaying to the Court, the unsavoury disclosure of sexual impropriety. It is to be remembered that she was the last to find out, some five days later, about the events of 4 October 2017, between the two people closest to her. I was not left with the impression that she had engaged in any gratuitous excoriation of the Defendant. In evidence-in-chief and in cross-examination, she gave as raw and dispassionate an account as her position of mother and wife would permit. There was nothing staged or contrived in the account she gave. She readily conceded that the Defendant had been a good father figure to the complainant and had treated her as his own child.
True it was, however, that there were some aspects of her recollection which were lacking. Many of these matters were teased out in cross-examination, especially when comparing the specifics of the disclosure made to her by the complainant days after the incident, contrasted with what appeared to be a more concise written statement obtained by police as part of the evidence gathering phase of the investigation. She had no difficulty conceding the imperfections, some of which were subtleties in expression, others of which she fairly acknowledged as her own shortcomings.
When evaluating, though, the words she attributed to the Defendant using while describing what transpired when he went to check on the complainant during the night, she was decisive and unhesitant in her explanation that the Defendant “put” his hand, rather than “accidentally slid”, “slipped” or “ended up”, down the complainant’s pants.
What emerged from her account of her interaction with the Defendant and which was centrally consistent with the Defence theory on the case, was the expression of regret on his part. The two competing inferences for which the Crown and the Defence would contend were that, on the one hand, the Defendant was apologising for, and admitting to, unlawful sexual impropriety or, on the other hand, was apologising for an accident, cognisant of his panic, her reaction and his catastrophisation that his actions would be viewed disapprovingly.

There was nothing suspicious or motivated in her evidence. I found that she gave a veritable account of the conversations with the complainant and the Defendant. It followed that she did not doubt the truthfulness of the disclosure made by her daughter as to what took place that night and, accordingly, directed the Defendant to leave the family home.
That the Defendant was labouring under mental health related afflictions, stress, anxiety and what appeared to be an adverse reaction to the initial medication prescribed was not in issue. So much was made clear from the medical evidence of the two psychiatrists, Dr Nielssen and Dr Jebejian, notwithstanding that they saw him for the first time after the incident, but also his GP and psychologists, whom he commenced seeing in the months immediately prior thereto.
Similarly, nor was it in issue that the Defendant was of good character and had no predispositions to inappropriate behaviour towards children, either his own or within the cub scout movement of which he was a leader. So much was made clear from the evidence of the cub scout leaders, friends and work colleagues of the Defendant, Ms [ZZ], Mr [WW], Mr [YY] and Mr [VV], which was, in part, character evidence and, in part, evidence of behavioural changes attributable to anti-depressant medication taken proximate in time with the alleged indecent assault. The general consensus, however, was that each of them had no reason to doubt the Defendant’s or the complainant’s version of events and, in some cases, were not aware of the complainant’s version of events and, therefore, their evidence could only be relied upon to a limited extent. This meant that one ought be circumspect before elevating their evidence to an exalted state, above that of the principal complainant and supporting corroborative Crown witnesses.
It was conceded by the Crown that the Defendant was of good character and had no prior criminal convictions. This impacts upon the fact finding exercise by requiring that I direct myself along the lines referred to in R v Murphy (1985) 4 NSWLR 42. There are two limbs to the traditional direction.
First, I take into account the fact that as the Defendant has an unblemished reputation, this leads to the presumption that he is not capable of committing the crime which is the subject of the charge. Authority for this proposition is found in Attwood v R (1960) 102 CLR 353 at 359; [1960] HCA 15. Character cannot alter proven facts, but when I am considering whether the Crown has proved its case beyond reasonable doubt, I must take into account the presumption that the Defendant would not commit a crime. This is the propensity limb of the direction.
There is another aspect to good character, that is, that a person of good character is presumed to tell the truth. I am required to take into account good character in assessing the credibility of the Defendant. Put another way, I can presume that the Defendant would not have lied, because a person of good character will tell the truth. This is the credibility limb of the direction. Of course, a person of good character can commit a first crime and can tell a lie, but both are unlikely. This limb is particularly relevant as the Defendant gave evidence in which he disputed the complainant’s allegation, seeking to exculpate himself. In considering the explanation proffered by the Defendant and the weight I should give to it, I am required to bear in mind that it was made by a person of good character and the Defendant is entitled to have that taken into account when I decide whether to believe his explanation in whole or in part.
The Defendant’s evidence was awkward and possessed an appreciable degree of motivation. His description of the manner by which he sought to push the complainant back onto the lounge, with his hand accidentally ending up down the front of the complainant’s pyjama pants, was unpersuasive and implausible. In this regard, his evidence was heavily dominated by self-interest. I did not find him to be a convincing witness.
I had difficulty accepting that the Defendant would have been so frenetically apologetic for accidental behaviour as asserted by him in his evidence later in the proceedings. I concluded, as a finding of fact, that the panic-stricken manner by which the Defendant conducted himself, and later explained such conduct, in the immediate aftermath of the incident, but particularly so during his disclosure of the event to his wife, lent greater credence to the account provided by her in her oral testimony.
There was a notable preoccupation with the effects of his anti-depressant medication and his depression and anxiety in the lead up to the incident which, whilst I am prepared to accept may have caused him to behave in a way which magnified some of the anxiety related checking behaviour, did not adequately explain the impropriety in which he engaged. To the extent necessary, I reject any contention that there may have been a causal connection between the symptoms of his depression (and the medication) and the offending conduct alleged. I rejected the Defence contention that the Defendant had a reduced capacity to stop and carefully think through the best way to move the complainant back onto the lounge.
The Defence contention was, as I understood it, multifaceted. First, either the incident did not happen (or the complainant is incorrect in the manner by which the Defendant is alleged to have inappropriately touched her). Secondly, the Defendant’s touching of the complainant just underneath the waistband of the front of her pyjama pants was accidental and, therefore, lacking in sexual connotation. Thirdly, the Defendant was labouring under the effects of the anti-depressant medication escitalopram (Lexapro) and, therefore, had a reduced capacity to reason, a matter which could be taken into account in crimes of general intent where the intoxication (by virtue of prescription medication of this kind) was not self-induced (s.428D of the Crimes Act 1900 (NSW)). The same cannot be said, however, about alcohol. What effect the two or three beers the Defendant consumed earlier that night, and what their interaction with the medication was, is not known.
I came to the view, as a finding of fact, that the combination of what started as innocuous, well-meaning monitoring of the complainant’s welfare, evolved into an uneasy interest such that within the space of 12 hours, the Defendant commented on the complainant’s naked body in the shower as alleged, progressing to the transgression on the couch in the middle of the night.
The Defendant’s evidence was heavily influenced by hindsight and he was prone to after-the-fact rationalisations of his conduct. This was not a case which involved the Defendant feigning his recollection of the events. Rather, the Defendant’s evidence was of a kind which sought to proffer an alternative hypothesis which best conformed with the true facts so as to develop scepticism as to the complainant’s account, thereby creating doubt as to its reliability. Ever mindful of the fact that the task of a tribunal of fact was not to simply choose the account of one witness over another, I rejected the advancement of the account proffered by the Defendant as being the manner by which the events that night came to pass.
It was difficult to explain the prevarication on his part with respect to the disclosure to his wife. The suggestion that he and the complainant had made a pact not to tell her mother until she was ready was an after-the-fact construct of the Defendant’s own making, geared towards creating a distortion of the incident to give it a verisimilitude and to allow the dust to settle with a view to concealing the true nature of the impropriety.
I came to the view, as a finding of fact, beyond reasonable doubt, that the Defendant’s frantic disclosure of impropriety to his wife, as recounted by her in evidence-in-chief, was the truthful, unedited account of what had transpired. I was left with the distinct impression that the Defendant’s explanation of his conduct as disclosed to his wife on that day transmuted to become the account he gave at the hearing. I was firmly of the view that the Defendant adopted this course so as to create equivocality with respect to his actions, with a view to legitimising his misconduct, thereby creating doubt to achieve an acquittal.
The Defendant’s evidence in cross-examination that the complainant had been caught previously lying in order to gain concessions (the inference being that she must have also lied in relation to the alleged indecent assault the subject of these proceedings) was an attempt to besmirch the complaint as a cunning, untruthful witness. I was not left with any inkling that the complainant had fabricated any of her evidence or was mistaken as to what occurred.
There was no, or no cogent, evidence admitted to support the broad based pejorative statements made by the Defendant to the effect that he and his wife believed the complainant had previously lied in order to gain concessions, nor of the examples he gave, including her alleging physical and verbal violence at the hands of her biological father, nor of her first boyfriend apparently forcing himself upon her. Indeed, these matters were raised for the first time in cross-examination of the Defendant and were not put to the complainant or her mother when they were cross-examined, so as to afford them each an opportunity to respond. The fact that the Defendant called in aid of his belief his and his wife’s conclusion that they decided the complainant was not being truthful amplifies the danger in placing too much weight on this self-motivated evidence. It was marked by a deflection which sought to distract from the central features of the allegation.
Further, the Defendant’s evidence that “[the complainant] woke up and I was in a position she did not understand” because his “hand was on her tummy” was unconvincing. I doubt very much that the complainant would have misunderstood the Defendant’s actions or motivations in having his hands either on her stomach or underneath the waistband of her pyjamas or, indeed, further into her pyjama pants in the vicinity of her vagina, at a time when she was asleep on the upstairs couch.
As a finding of fact, I concluded that there was no promise made by the Defendant to the complainant, nor was there any agreement between them that he would not tell her mother until she was ready to do so. This, I found, was an afterthought.
It was never suggested that the Defendant preyed on young children, for example, either within the cub scout activities in which he was involved, or elsewhere. Nor was it unsurprising that the three witnesses for the Defence, Ms [ZZ], Mr [YY] and Mr [WW], spoke highly of a man they had come to know over the years. That did not change the fact, however, that this was an isolated incident which, as a finding of fact, I concluded occurred as alleged by the complainant.
The Defendant’s conduct on the day after the incident speaks volumes. At Q179 of the complainant’s evidence-in-chief, she attributes the following conversation to the Defendant: “And he said, “Are we alright at all like, remotely alright?” And then I said, “No.” He said, “Can I have a hug?” I said, “No.” Whilst not determinative of guilt or innocence and, being acutely cognisant of the fact that there may be many reasons for post-offence conduct in respect of which caution ought be exercised along the lines set out in R v Ciantar (2006) 16 VR 26 at 52 (2006) 167 A Crim R 504 at 531; [2006] VSCA 263 at [86], these words and conduct bespeak a consciousness of guilt on the part of the Defendant which may be used as part of a circumstantial deliberative process. They are indicative of the Defendant acknowledging the unlawfulness, rather than some other, accidental impropriety, in his placing his hand into the front of the complainant’s pyjama pants while she was asleep.
There was immediate complaint. The complainant disclosed the Defendant’s impropriety to her boyfriend within minutes of confronting the Defendant.
It is odd, to say the least, and implausible that the Defendant was of the belief that because of some promise he made to the complainant, he could not disclose the incident to his wife until the complainant was ready. This is because when confronted with the text message from the complainant’s boyfriend urging him to tell the complainant’s mother what happened because the complainant was under pressure, the Defendant’s first and immediate response was that the complainant should tell her mother, before then stating that he had been wanting to since Wednesday and finally asking whether he should now tell her himself.
The Defendant’s version, to the effect that the only interaction between the complainant and the Defendant when she woke up was confined to her asking, “What are you doing?”, him replying, “Just checking on you. Are you okay?” and her stating, “Yes”, before he then left and returned to bed, defied credulity.
I formed an unfavourable view, and progressively lost confidence, in the reliability and accuracy of the Defendant’s evidence, such that the veracity of his evidence was, as a result, substantially diluted.
Relevantly, I concluded, as a finding of fact, beyond reasonable doubt, that the Defendant deliberately, rather than accidentally, indecently assaulted the complaint by placing one hand (not two) and fingers down the front of the complainant’s pyjama pants, on the exterior of her vagina before the complaint woke up and the Defendant immediately removed his hand.

Verdict

In synthesising the findings of fact, I am satisfied, beyond reasonable doubt on the evidence as a whole, that the Defendant intentionally assaulted the complainant, indecently, without consent and with the knowledge that the complainant was not consenting.
Accordingly, I find the Defendant guilty of aggravated indecent assault, contrary to s.61M(2) of the Crimes Act 1900 (NSW) (Sequence 1).

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Decision last updated: 25 September 2021

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v SA [2018] NSWLC 27
Hearing dates:	16, 17 April 2018, 4 July 2018
Decision date:	10 August 2018
Jurisdiction:	Criminal
Before:	Magistrate Tsavdaridis
Decision:	The Defendant is found guilty of aggravated indecent assault, contrary to s.61M(2) of the Crimes Act 1900 (NSW) (Sequence 1)
Catchwords:	CRIMINAL LAW - indecent assault - standard of proof - onus of proof - cautionary criminal trial directions applicable in summary prosecution - defence case - whether Defendant’s act intentional or accidental
Legislation Cited:	Crimes Act 1900 (NSW) ss.61M(2), 61HA, 77, 428D Criminal Procedure Act 1986 (NSW) ss.291, 306M(1), 306S(1)(a), 306U(1), 306ZB Evidence Act 1995 (NSW) ss.12, 13, 141(1) and (2)
Cases Cited:	Attwood v R (1960) 102 CLR 353; [1960] HCA 15 Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Harkin v R (1989) 38 A Crim R 296 R v Brooks (1988) 44 NSWLR 121 R v Ciantar (2006) 16 VR 26; (2006) 167 A Crim R 504; [2006] VSCA 263 R v Murphy (1985) 4 NSWLR 42 R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45 Woolmington v DPP [1935] AC 462
Texts Cited:	Criminal Trial Courts Bench Book, Judicial Commission of New South Wales (Oct 2017)
Category:	Principal judgment
Parties:	Director of Public Prosecutions NSW (Crown) SA (Defendant)
Representation:	Solicitors: Mr E Freelander (Crown) Mr M Blair (Defendant)
File Number(s):	2017/312299 Charge No: H66549479
Publication restriction:	Pursuant to ss.7(a) and 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is a suppression and non-publication order prohibiting the publication or other disclosure of any information tending to reveal the identity of or otherwise concerning the underage complainant, underage Crown witness and the underage children of the Defendant to avoid causing undue distress or embarrassment to such persons.