Director of Public Prosecutions v Bernard (a pseudonym)
[2022] VCC 2345
•15 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LENNON BERNARD (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 – 8 November 2022 |
DATE OF SENTENCE: | 15 November 2022 |
CASE MAY BE CITED AS: | DPP v Bernard (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2345 |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Unlawfully/Indecently Assault a Woman – Historic Sex Offences
Legislation Cited: Criminal Procedure Act 2009 (Vic).
Cases Cited: Fleming v The Queen [1998] HCA 68 (1998); 197 CLR 250.
Judgment: Guilty – all counts.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
For the Accused | Dr M. Fitzgerald | Doogue + George Criminal Lawyers |
HER HONOUR:
Introduction
1On 3 November 2022, the accused, Lennon Bernard,[1] was arraigned on an Indictment charging four counts of Unlawfully/Indecently Assault a Woman, namely, Marian Kellogg,[2] between 1 January 1973 and 31 December 1975.
[1] A pseudonym.
[2] A pseudonym.
2The individual charges are Charge 1, that at a northern suburb in Victoria, between 1 January 1973 and 31 December 1973, Lennon Bernard unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years. The particulars alleged in that offence are digital penetration of the complainant's vagina.
3On Count 2, the charge is that at northern suburb in Victoria, between the same dates, 1 January 1973 and 31 December 1973, on an occasion other than that referred to in Charge 1, Lennon Bernard unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years. The particulars include placing the complainant's hand on the accused’s exposed penis and instructing her to masturbate him.
4Charge 3 is that, at a second northern suburb in Victoria, between 1 January 1975 and 31 December 1975, Lennon Bernard unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years. The particulars concern digital penetration of the complainant's vagina.
5Lastly, Charge 4 is that at a second northern suburb, between 1 January 1975 and 31 December 1975, on an occasion other than that referred to in Charge 3, Lennon Bernard unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years. The particulars are that the accused placed the complainant's hand on the accused’s exposed penis and instructed her to masturbate him (‘the second incident’).
6Upon his arraignment, the accused pleaded not guilty to each charge.
7The elements of each offence charged in Counts 1 to 4 are that on the relevant date or between dates:
1. The accused touched the complainant;
2. The touching was intentional; and
3. The touching occurred in indecent circumstances.
8For the purpose of considering the elements which the Crown must prove, in the context of this case, the relevant definitions are:
a.Touching. In the context of this case direct physical touching is alleged. I note that the touching need not cause physical harm.
b.Intention. Means deliberate and not accidental. This does not require hostile or aggressive intent, nor is any intent to cause harm required to be considered.
c.Indecent circumstances. Indecent is to be determined on the basis of the common sense meaning of that word. It must involve some sexual connotation which may arise from the area of the complainant’s or the accused body alleged involved in the touching or from surrounding circumstances as the court finds them to be. The element of touching and indecent circumstances may be satisfied in one act.
9In the context of this case, it is the defence position that if the court finds that the touching as alleged by the complainant occurred, then there is no dispute that such touching was undertaken in indecent circumstances. The issue in this trial is whether the touching, as alleged, occurred at all. I also confirm that consent is not a necessary consideration for this court.
10An order for trial by judge alone was made by His Honour Judge Mullaly on
20 October 2022. The Crown did not consent to that application. An order for a judge alone trial was made on the basis that it was in the interests of justice for such an order to be so made. His Honour's reasons have been made available to parties.11Pursuant to the pandemic provisions of the Criminal Procedure Act, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of an accused person. Such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as judge, apply to the findings of fact on which I rely.
Directions
12In Fleming v The Queen [1998] HCA 68 (1998); 197 CLR 250, the Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with their findings of fact and justify the process and ultimately, the verdict that it has reached.
13I am required, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances.
14There are further general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law. They are:
1.Having brought the charges, it is the Crown who bears the onus of proving them. The high standard to which such charges must be proven is the standard of beyond reasonable doubt.
2.In order to sustain a conviction for the offences charged, the Crown bears the onus of proving beyond reasonable doubt each element of each of the charged offences.
3.The accused is presumed by law to be innocent of the charges brought against him, unless and until, the evidence satisfies the tribunal of fact, that each and every element of the relevant offence has been proven beyond reasonable doubt.
4.If the evidence fails to satisfy the court beyond reasonable doubt of any or all of the elements of a particular offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned.
5.If there is an explanation consistent with the innocence of the accused of any charge, or if the court is unable, in the circumstances, to determine whether a particular element has been proven, then the accused must be found not guilty accordingly.
6.The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally, without acting capriciously.
7.It is necessary to bring into account, in assessing the evidence, the common sense of the court and to deliver any verdict according to the evidence. It is necessary to recall that the accused does not have the burden of producing any evidence. He does not have to disprove the crown case; it is for the prosecution to prove its case and to do so beyond reasonable doubt.
The abovementioned principles of law must be applied to the facts as I find them to be. Other directions relevant to this specific matter will be stated at this stage and the principles will be applied when considering relevant charges or relevant pieces of evidence. The first specific direction is the separate consideration of the charges.
15The prosecution has brought four charges against the accused. While these are separate matters, they are being dealt with in one trial for convenience. I remind myself to be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. It would therefore be wrong to say that simply because I may find the accused guilty or not guilty of one charge, then he must be guilty or not guilty, as the case may be, of another.
16Each charge must be considered separately, in light only of the evidence which applies to it. I will consider, in relation to each charge, whether the evidence relating to that charge has satisfied the court beyond reasonable doubt of whether the accused is guilty of that particular crime.
17Some of the evidence is only relevant to one charge or another. If a particular piece of evidence is only relevant to one charge, I may only use it when deciding whether or not the accused is guilty of that charge. I will not consider it in relation to any other charges unless specifically relevant as to tendency reasoning. The considerations in relation to tendency evidence will be referred to where relevant.
Further specific directions
18The Crown case in relation to each charge is based very largely on the evidence of the complainant. She gave evidence from a remote witness room. The connection was mostly very good. I draw no conclusion about her evidence from the fact that it was given in this manner and accept that it is a usual format for giving evidence.
19There are several self-directions the court must remember in relation to this evidence. For convenience, I will outline some of the important self-directions concerning features of this case that are relevant to an assessment of both the prosecution and the defence case. I state them here for convenience and will indicate where they are relevant as my decision proceeds.
Delay & reliability
20The complainant first reported the matter to police in 2021. This is a delay of some 46 or so years between the last complained of event and the complaint to police itself.
21Experience shows that people react differently to sexual offences and there is no typical, proper, or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint. It is a common occurrence for there to be a delay in making a complaint about a sexual offence. This is a general consideration, and I will take it into account when considering why the complainant did not complain to her mother, for example, when the alleged offending commenced and further, did not complain to her after the offending continued.
22In addition, the court is aware that a complainant may not make a complaint at all for many reasons.
23The following matters are relevant to the complainant:
1.For some time prior to the events referred to in Charges 1 and 2, the complainant said she was ignorant about the nature, quality and character of the acts performed upon her.
2.The complainant trusted the accused. She was emotionally dependent on him as part of her family.
3.The complainant had no confidence that a complaint to police would result in anything.
24In the context of this case, the complainant gave direct evidence of these issues. So, perhaps there is no great need for such a self-directions as I have referred to above. It must be assessed as part of her evidence. Each explanation will be considered when scrutinising the complainant’s evidence. The primary explanation given by the complainant as to her lack of a complaint at an earlier time, was a fear that if she did so, she would break up the family, or more specifically, she would be sent away.
25The delay in complaint to police also has certain consequences for the accused and his ability to properly instruct solicitors to defend the case against him. In the context of this case, the potential disadvantages including forensic disadvantages include:
1.A potential lost opportunity to make enquiries at or close to the time of an alleged incident, with respect, for example, to where each adult was at a particular place or time. This is a real disadvantage. Had a complaint been made about a particular date and time, enquiries could have been made to investigate whether either of the adults were at work or home at that specific time. In addition, there was potential lost opportunity to ascertain the children’s sleeping configuration at a particular time. In light of the admissions made, these considerations are not significant.
2.The defence claim that it may have been possible to properly challenge the suggestion made in cross-examination, that the complainant could not have escaped from her bedroom window at the second northern suburb, due to the flywire being attached to the outside of the windows. This is of only minor significance to the complainant’s credibility, given subsequent evidence, however, I accept that the accused has lost the ability to explore this contention.
3.In general terms, he has lost the ability to test the complainant’s allegations in a way that may have been available had there been no delay in prosecution.
4.Most importantly, the complainant is not able to identify the occasion on which the offences are alleged to have occurred with any specificity as to timing. This makes it difficult for the accused to raise any defence other than a simple denial. In effect, there is little specificity in relation to timing, and because of significant delay, the accused has little avenue to challenge the specific allegations, as I said, other than denial. However, the disadvantage is tempered by the admissions that were made.
26Both the complainant’s and the accused’s recollection of the events have faded. This also makes it difficult for the accused to raise any defence other than a simple denial.
27These self-directions must be employed to take these disadvantages into consideration when determining whether the prosecution have proven the guilt of the accused beyond reasonable doubt. The considerations are relevant, both in assessing the complainant’s evidence directly and in considering any disadvantage to the accused in challenging it.
28When assessing the complainant’s evidence, the delay is of great significance because of the passage of so many years between the dates of the alleged offending and the date of the complainant’s initial complaint to police. I must also acknowledge a warning about the reliability of that evidence.
29I accept that honest recollections of a witness about events that they believed to have occurred many years before may be unreliable. The passage of time may affect any witness’ memory. While in some cases, people simply forget things, in other cases, their memory may become distorted. That is, they may be able to remember things that did not really happen. Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay.
30I must take this potential unreliability into account when considering evidence that is given after a long delay in determining whether I accept the complaints at all. If I do accept any of them in whole or in part, I must further take this potential unreliability into account, in deciding what weight to give to any evidence that I do accept.
31In making this assessment, I must carefully consider not only whether the complainant’s evidence is honest in the sense that she believes it to be true, but also whether it is in fact true. While I will use my common sense and experience in assessing the effect of the delay upon the complainant’s reliability, I will also consider the possibility that she honestly believes what she is saying but is mistaken due to the distortion of her memory.
32This is particularly relevant with respect to her memory of the actual charged events and any memories that have, according to her evidence, arisen in more recent times which may, in general terms, be considered to be supportive of the accuracy of her recollections about the events themselves.
33I am referring, in particular, to the recent disclosures of what the accused is alleged to have said while abusing her and afterwards. In prior disclosures by the complainant, the prosecution acknowledge that the complainant said she had little, or no memory of what words were said. In addition, the complainant recently recalled some exhortation by the accused, at general times of the abuse, not to tell anyone.
34However, I also remind myself that the courts, with experience in matters such as these, are aware that memory is not like a video that can be retrieved or replayed at will. Therefore, while the evidence of these apparent new recollections must be treated with care, there is no evidence of an intervening event, such as, for example, a hypnotic experience or a conversation resulting in a memory being implanted. I will, however, treat this evidence with great care.
35On the other hand, I also acknowledge that people who make complaints about sexual offences are not less reliable than other witnesses. Each witness and each piece of evidence must be considered separately and as part of the case presented by the prosecution. Other self-directions relating to evidence will focus on some differences in complaints by the complainant.
36The complainant’s mother gave evidence of what I will refer to as a 'complaint' conversation in about 1973. There are some differences in the mother's recollection of what was said compared to the complainant’s version. There are differences in the versions given by the complainant to police in the three statements she made to them. The differences include, but are not limited to, the addition of more information in the later statements and I will refer to these when I come to them in evidence.
37A matter that I will also take into account, even though counsel did not raise it, were some witnesses that were not called by the prosecution.
Tendency Evidence
38Part of the prosecution case is that the accused demonstrated a sexual interest in the complainant and demonstrated a willingness to act on that interest.
39This evidence has been the subject of a tendency notice. There is little dispute that the court can use the tendency evidence as sought by the prosecution, when assessing the honesty, accuracy and reliability of the complainant’s evidence relevant to each individual charge, and otherwise, as part of the process of assessing whether the prosecution have proven a particular charge.
40The prosecution relies on the following evidence which I will summarise according to the tendency notice. The prosecution relies on the following evidence:
Item 1:At some time prior to 1973, the complainant complained that the accused would rub her legs and inner thighs and tickled her a lot.
Item 2: Between 1973 and 1975 at the relevant house, the accused sexually assaulted her on many occasions, in a way similar to the charged offences by touching her clitoris and vagina area, including penetration.
Items 3 and 4: in the tendency notice, I will not repeat at this stage as they are, in summary, the evidence contained in the discussion of Charges 1 and 2 below.
Items 6 item 7: in the tendency notice, relate to the evidence as relevant to Charges 3 and 4 in the summary below.
Item 8:An event between 1975 and 1976, when the accused was transporting the complainant in a motor vehicle. He stopped the car and in the guise of tickling her, groped her breasts and crotch area. She said 'stop'.
Item 9 and item 10: Contents of the pretext call which became Exhibit 2 in the proceedings. In general, and in particular, an admission of touching the complainant's groin and sometimes having an erection in that context when the complainant was about 14 years old.
41In relation to the tendency notice, the prosecution submits that each of the alleged acts above show a sexual interest in the complainant and a willingness to act on that sexual interest.
42The defence position is that if the court finds that such events occurred as described by the complainant, then the court could find the tendencies as alleged. Apart from disputing that the events in the Charges and in Item 2 have occurred, as told to the court by the complainant, the defence correctly submit that if such evidence is accepted, consideration must then be given to the weight afforded to it, when considering the complainant’s evidence as a whole. The defence position is that that weight ought to be limited, but no further submissions were offered on this point. No doubt, considerations of delay and the consequences of that delay for both parties is a major one.
43I am aware that in assessing tendency evidence, the court is entitled to take into account the whole of the evidence and I will do so. Part of the evidence before the court deals with events before the offending as detailed in the charges alleged. These early events, in effect, set the scene in which the alleged offences took place and can only be considered as context evidence. Without the evidence, there is a risk that the complainant’s evidence would be incomplete and may even be incomprehensible.
44The use of the remaining tendency evidence is not in dispute, but still very much depends on the court being satisfied that the events as alleged, actually occurred.
45It is important that I keep this evidence in perspective. It is only one part of the prosecution’s case. It is not enough to convict the accused on the basis that he may have behaved in a way alleged in, what I will call the uncharged acts, or at a time unrelated to the charged acts.
46I can only find the accused guilty of a charge, if I am so satisfied to the required standard, based on the whole of the evidence. In the context of this case, the weight that might be afforded to the tendency evidence is a live consideration. It must not be used as a substitution for the evidence presented on a particular charge.
47It is submitted by the defence and conceded by the prosecution, that the tendency notice does not allege a willingness to act on a sexual interest, which may be inferred from the evidence, including admissions, but to act on that sexual interest in a particular way. For example, in relation to Item 1, the response alleged was that the accused would rub the child’s inner thighs in the context of tickling, while in a public area of the house.
48The events complained of in the charged offences, the events relate to him acting on that sexual interest by way of sexual penetration and also by having her enhance his enjoyment by masturbating him. This allegation is repeated according to the evidence and becomes the subject of Counts 3 and 4.
49In Item 5, the allegation is that while living at the second northern suburb, the accused sought to grope the complainant's crotch and breast area. This was in a different context - when she was not presumed to be asleep.
50So, while there is a similarity in this behaviour alleged on some occasions, there is also evidence, none of which was successfully challenged, that his responses were sometimes different, depending on the circumstances. At times when the complainant was presumed to be asleep, it is alleged that his furtive actions were able to go further, even on his own admission, of touching her pubic hair and her pubic bone area. When the complainant was awake and there was a potential of being interrupted, he was allegedly more circumspect.
51The tendency notice, however, does not seek to draw a conclusion that the accused had a tendency to respond in a particular or specific way. Therefore, while the tendency notice is useful, its use is limited. The general tendencies sought to be relied on are not really in dispute and the inferences that can be drawn from those tendencies are not really in dispute, but the evidence of each charge must be scrutinised individually. I now turn to a general direction relating to the issue of confessions and/or admissions.
Confessions and Admissions
52The prosecution say that the accused made relevant admissions which are relevant to both the consideration of his denials of the offending as charged and to the issue of tendency considerations.
53These admissions, as I will call them, are contained in a pretext call (Exhibit 2), and his record of interview with police which became Exhibit 4.
54Details of the admissions are accurately included in the prosecution summary of transcript references. The prosecution submits that this evidence is also relevant to the tendency argument, submitting that the court ought to draw an inescapable inference that at the relevant times, the accused had the tendencies as alleged in the notice. The accused does not, in his record of interview, specifically admit to a sexual interest in the child, referring instead to his curiosity and infatuation.
55However, counsel did not suggest that in general, inferences were not available to the court. The usefulness to the individual charges is as noted above. The detail of how and in what circumstances the accused acted on a particular sexual interest is very much in dispute and is in effect, the issue in the trial.
56It is not submitted by the prosecution that the admissions by the accused are to any particular charged offence. However, the self-direction with respect to this evidence is still an important step when considering how to deal with it. Before this evidence can be used in considering whether the prosecution have proven its case, I must consider:
1.Whether the statements uttered by the accused are an admission as interpreted by the prosecution and;
2.When he spoke to the complainant (Exhibit 2) and to police (Exhibit 4) and whether what he said was a truthful statement of his state of mind.
57Ultimately, it was not submitted by counsel for the accused that the admissions were anything other than voluntary and true. In fact, defence relied on the contents of the admissions and the statements in Exhibit 4 and urged the court to accept the contents of same as being the true state of the indecent assaults on the complainant. The prosecution submits, in effect, that the accused has minimised both his sexual interest and his willingness to act on this interest in his record of interview.
58Potential unreliability is a consideration in the context of this case. The prosecution urges me to find that the 'admissions' ought to be rejected as a true statement of the facts in the case and accept only, that the admission can result in an inference that the accused in general, had a sexual interest in the complainant over time, and that he acted on that sexual interest, but not in the limited way as contained in the record.
59I acknowledge that if inferences are to be drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference and that I should not draw such an inference unless it is the only rational inference in the circumstances in the context of this case.
60To that extent, the usual self-warnings about the reliability of the admissions in this case are not really relevant.
61I do, however, acknowledge that the totality of the accused’s evidence is as contained in the two exhibits above. In order to find him guilty, I must, in accordance with the above self-directions, reject this evidence as containing a version of events that could possibly be true.
62In doing so, I must consider how to interpret the words spoken and the circumstances in which they were spoken. I must take this into account when considering what inferences can be drawn or when assessing other evidence, either from the accused or otherwise. The other self-direction relates to the lack of evidence called by the accused.
Lack of evidence called by the accused
63The accused did not call or give evidence in this case. It is useful to remind myself that such is his right. Again, it is trite to note that it is for the prosecution to prove its case beyond reasonable doubt, and that the accused is not required to call any evidence. The onus of proving the accused’s guilt always remains on the prosecution, regardless of whether the accused chooses to give or call any evidence.
64The fact that the accused did not call or give evidence, cannot be used as evidence against him. It does not constitute an admission by him and cannot be used to fill gaps in the evidence led by the prosecution if I find there to be so. It does not add to or strengthen the prosecution’s case in any way. It proves nothing at all.
65I will not draw any conclusions against the accused because he did not give evidence, nor even consider that fact, when deciding whether the prosecution has proven its case beyond reasonable doubt. I will not at any stage speculate about what he might have said, had he given evidence.
66Further, in relation to the accused’s position, it is obvious that there is a clear conflict between the evidence of the complainant and the version of the accused as contained in his police interview. Counsel have reinforced the need to give myself what is referred to as a Liberato direction.
67It is not necessary for me to accept the accused evidence as contained in the record of interview or otherwise, in order to find him 'not guilty'. In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, I must acquit him if this evidence gives rise to a reasonable doubt.
Accused’s Record of Interview
68I will now refer particularly to the accused’s record of interview and give myself a direction in relation to the contents of that. By way of background, the accused did make himself available for an interview with police on 8 January 2021. This interview continues for over an hour and forty minutes, and I will refer to it in more detail later. At this stage, I acknowledge that the accused did not have to avail himself of this interview opportunity. It was voluntary on his part. I must draw no conclusions from the fact that he did so. He is entitled to rely on this interview as his version of events. It is noted that specific allegations relating to the detail of the charges were put to him and that he denied those allegations while admitting certain things as noted below.
69It is convenient, at this stage, to further remind myself of how I am and how I am not entitled to consider this evidence. I must draw no conclusions from the fact that he chose not to give or call other evidence, especially in light of the previous directions about delay and forensic disadvantage.
70It is trite to note that the prosecution maintains the onus and burden of proof of each and every element of each charged offence.
71In terms then, of the Liberato direction, but in the context of the judge alone trial, I acknowledge what is trite law that:
1.Obviously, if I accept the version given by the accused, I must find him not guilty.
2.Even if I do not consider that the accused is telling the truth in his statement to police, but I am unsure as to where the truth lies, I must find the accused 'not guilty'.
3.Further, even if the court is convinced that the accused is not telling the truth, and if I reject this evidence, I must still take care not to convict him unless and until I am satisfied beyond reasonable doubt of each element of the offence under consideration. In such circumstances, the court would put the accused’s statement to police to one side and ask whether the prosecution have proven the accused’s guilt beyond reasonable doubt on the basis of the evidence that is acceptable.
72In the context of this case, the evidence I will take into account includes the evidence of the complainant, her mother, the pretext call contents, the evidence of the informant and of course, I have already referred to how I will take into account the evidence of the complainant in the record of interview with police.
Trial process
73I now refer to the trial process. The trial proceeded with prosecution evidence from three witnesses. The primary prosecution witness was the complainant. There was agreement between the parties as to the dates where the family lived at various times and the dates of birth of children, as noted in Exhibit 3.
74In relation to the direct allegations of sexual assault, the complainant is the sole crown witness. This is usual in most cases of sexual assault allegations.
75Scrutiny of the evidence is a necessary role for a judge of the facts. I accept that it is necessary to be extremely careful in assessing the evidence of the complainant in determining whether the prosecution has proven its case beyond reasonable doubt. A judge must accept this evidence to that standard. She is the primary witness of the charges laid.
76In doing so, I will assess her evidence to enquire whether there is any evidence consistent with her evidence generally, such as what she said in her evidence, what she said in cross-examination, what she told police in her first complaint and subsequent complaints, and the version she gave to her mother many years prior.
77It is necessary to compare the contents of her initial complaint to her mother as recalled by each of them and her evidence in 2022 to assess her evidence for accuracy, consistency, and reliability. It is also necessary to consider the entirety of her evidence in the light of other evidence presented by the Crown and assess whether supports exists where they ought to. It is further necessary to examine whether inconsistencies exist where inconsistencies may raise a doubt as to the reliability of the Crown case. There are inconsistencies in the version of the narrative given by the complainant. These inconsistencies are not insignificant and will be referred to and taken into account, when assessing her credibility and reliability.
78Common sense and life experience tell me that it is not uncommon for people caught in really difficult situations to become confused about details, such as dates of particular events or to be subtly or maliciously influenced in their own beliefs and statements. Scrutiny of the complainant’s evidence and the evidence of other witnesses must be undertaken with these considerations in mind.
79In the context of this case, I must be aware that all the participants are attempting to recall incidents that occurred up to 50 years ago when some of them perhaps had no particular reason to recall an event or a particular timeframe within which an event occurred.
80In assessing the complainant’s and the accused’s evidence, I would also take into account their general presentation. The accused is, I am told, 74 years of age and appears somewhat frail. Even though I have no medical evidence as to any particular disability, my observations and common sense suggest that allowances must be made for him in this regard, especially with respect to his memory.
81In general, I acknowledge that courts do not have an ability to discern if a witness is telling the truth by observing their demeanour only. It is for that reason the courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above. However, as I said, common sense suggests that it is a matter that I would, in general terms, have regard to.
82As I indicated, it is convenient to set out the agreed facts which were contained in Exhibit 3. The relevant parts of those facts relate to the date of birth of the complainant, Marian Kellogg, who was born in the 1960s. The accused and her mother, Donnette Kellogg,[3] got married. In 1969, the accused and the complainant's mother moved to a property in another location. In 1970, the accused adopted the complainant, and her name was changed. In 1970, the child, Martin,[4] was born. Between 1971 and 1972, the family moved to another location nearby. In 1972, the child, Alexandra,[5] was born.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
83Between 1973 and 1975, the family moved to a northern suburb. The agreed facts show that they moved there in 1973. In 1975, the family moved to another northern suburb. In 1978, the child, Marcus,[6] was born. In 1980, the child, Arnold[7], was born. In 1986, the complainant married and in 1999, the marriage ended.
[6] A pseudonym.
[7] A pseudonym.
84It follows that the complainant was aged between about 11 and 13 years while living at the northern suburb address and aged from 13 years and above while at the second northern suburb address.
Complainant's Evidence
85Marian Kellogg’s evidence is summarised as follows:
86Her early childhood was experienced at a home away from her mother, who was aged only 16 years when Marian was born. She lived in what was an orphanage or similar until she was four years of age where she then went to stay with extended family. Insofar as she was aware, she confirmed the agreed facts that I have just read out.
87The accused formally adopted her in 1970. She was excited to have a dad, she said. She moved to live with her parents at about that time.
88They lived at various addresses in Melbourne between 1970 and 1975 as I have noted in the agreed facts.
89The complainant said her early recollections of the accused were 'not negative'. She recalled that he liked music and particularly recalled fast jazz songs that made the family eat fast. She recalled positive recollections about him being funny and affectionate. She recalled him mostly studying and working. She said she felt loved and was happy to have a dad. She was happy to feel part of the family.
90When she turned 10, she recalled the accused as being cuddly and affectionate. She particularly recalled him rubbing her arms and legs. She referred to him as being 'touchy', but did not indicate that it was in a negative way. The touching of her arms and legs occurred while they were on the couch or watching TV or listening to music in the family room.
Events at the first northern suburb in Melbourne
91The complainant described the property in the northern suburb as a two-bedroom structure the floorplan of which is roughly depicted in her drawing contained in Exhibit 1, Tab 3. It is clear that the floor plan depicted the sleeping arrangements over time as recalled by the complainant. At some stage, she occupied the back room.
92She clearly recalled that in 1973, she was in Grade 6. She recalled her mother had a job at a Hospital but did not recall her shifts. There was always one of her parents at home to look after the children.
93At the relevant time, she recalled all three children shared a bedroom at the front of the house, next to her parents' bedroom. She had a single bed in that room.
94Later, she thinks when the youngest child moved from a cot to a bed, she moved into the sunroom at the back of the house. She could not recall exactly when this was. She did not recall ever moving back to the shared room. This is in issue, but not relevant to whether the abuse occurred in the shared bedroom in the time as alleged by the complainant. The lack of memory (from all witnesses) as to the living arrangements in a house they resided in some 50 years ago is not significant.
Counts 1 and 2
95In relation to Counts 1 and 2, the complainant said that, in general, the accused sexually touching her while she was in bed became a frequent occurrence. She said he came into the bedroom when she was asleep, and she would be awoken by him touching her with his hand and fingers all over her body, including her breasts and genitals.
96She recalled many occasions of him rubbing his hand and fingers on her genitals from her clitoris to her vagina and penetrating her vagina with his finger. She was aware that she did not like it but felt that it was something that was normal.
97She recalled a particular occasion when this understanding that it was ‘normal’ changed. That change in her own understanding is the reason that this occasion is anchored in her mind. The recollection is triggered by a conversation she overheard outside her bedroom one evening.
98The conversation indicated to her that the accused was aware what he was doing was wrong, and something to be ashamed of. Up until then, his actions were understood by the complainant to be, as I said, normal and natural, akin to tickling and touching in the lounge room; something that fathers did to their daughters.
99This particular event informs Charges 1 and 2 on the Indictment. The evidence is also relevant to tendency considerations.
100The complaint told the court that on this particular occasion, in the shared bedroom at the northern suburb, she woke up while the accused was rubbing her genitals. He then gently took hold of her hand and manoeuvred it up and down on his penis. She thought that this was the first time this act occurred. Whether this is accurate or not is unclear, considering the doubts expressed by the complainant later in her evidence. However, she described this act definitely occurring on this particular evening.
101The detail of what the complainant said occurred included the accused rubbing from her clitoral area to her vagina and inserting his finger into her vagina to a degree, which was described as about half a finger deep. He took her hand and placed it on to the bare skin of his penis and rubbed it back and forward. She recalled his actions to be very gentle, rubbing her hand and directing it onto his penis. Her detailed recollections were that the accused’s penis was wrinkly textured. She said she had not felt anything like it before. She had her eyes closed. She did not touch any cloth. He rubbed his hands over other parts of her body, but she could not recall if this happened simultaneously.
102She recalled the accused mumbling in a raspy voice saying words to the effect of 'that’s good' and mumbling that she should rub his penis using the words 'like this'. The complainant's recollection of the words was unclear, but she recalled the sound of his voice.
103The detail of the words the complainant said she heard from the accused was not consistent throughout her evidence and she readily agreed that this was not necessarily a clear memory. In general, she could not particularly place the exact words to a particular event but recalls hearing words on the many occasions associated with acts of penetration and directed masturbation.
104She was certain that the memory of being touched in the way she described, was clear and had been her memory from when it happened. Other details the complainant recalled about this particular event included that it took place in the bedroom that all three children shared. She said that when the penetration and forced touching of his penis occurred, the blanket was not covering her. She recalled she was wearing a nightie, but no underwear. She recalled this in particular because thereafter, she wore underwear when wearing a nighty. She said that he rubbed her clitoris to vagina area, using one or two fingers, penetrating, she said, to the extent of about half a finger. She thought that it went in more than ten times, and continued, she said, 'for too long'.
105She had her eyes closed. Her evidence was that she did not say anything. On this occasion, she remained lying on her back and did not move at all. She pretended to be asleep.
Conversation with mother
106The complainant recalled the accused leaving the bedside and going outside the room, she thought, to the hallway and having a conversation with her mother. The complainant said she remained in the bed and kept her eyes closed. She was unable to say whether her mother had come from the outside or somewhere else.
107On this occasion, she heard her mother ask, 'what are you doing?'. She heard the accused from outside the room reply, 'tucking the kids in'. The complainant did not recall anything else, but does recall the conversation being significant to her, as outlined above. She told the court that the family considered lying to be a significant issue. The complainant was aware that the accused was not tucking her into bed and the next day, told her mother that he was lying about that. It is for this reason, that this particular event remained stark in the complainant's mind and thus able to be distinguished from other events.
Intervening events
108There were some intervening events. The complainant’s narrative continued. She told the court that after this incident, similar events often occurred. She could not recall any other specific incidents at the northern suburb with the same degree of clarity.
109After some time, she shifted to the back room of the house. She said the night visits and abuse continued. She came to fear the visits and took to hiding under her bed if she heard the accused coming to the back of the house. Her memories of hiding under the bed indicate the degree of her distaste for the evening visits by the accused. Clearly, she was not successful in deterring these visits as her evidence was that the abuse continued.
110It is irrelevant to my considerations, whether she moved back to the shared room again later. The events complained of, according to the complainant's evidence, occurred when she was in Year 6.
111The complainant detailed some recollections of the continuation of similar events over time. Her evidence was that she had no idea how many times. This evidence is both context and tendency evidence.
Admission and apology
112My next consideration is her evidence of an admission and an apology. The complainant’s narrative continued. She recalled a conversation with the accused near the garage at the northern suburb house. She relayed that he told her that he was sorry and that it would not happen again. She recalls herself shrugging. She had no other recollection of that conversation.
113She did not recall any other conversation with her mother on the topic, other than as referred to above.
Counts 3 and 4
114I will now deal with the complainant’s evidence in relation to Counts 3 and 4. The evidence of the complainant is that the family moved to the second northern suburb in 1975, when she was aged 13 and in high school. The layout of the house is as contained in Exhibit 1, Tab 4. She was in the back room as indicated in that plan.
115Her evidence was that the accused still came to her bedroom at night, but she was unsure how often that was. When pressed to indicate the frequency, she said she could not recall. I observed that she did not try to gap fill any of her evidence with guesses.
116She told the court that she recalled a particular time when he sexually assaulted her and relayed the detail of that event to the court. She said he was doing the same things each time. The sequence she described was on my understanding of her evidence, a sequence that was common and frequent and referred to generally in her evidence (T p 64-67 and T p 81-82).
117The sequence of events she recalled on this occasion was that she woke up to the feeling of one hand on her breast. She rolled over and put her back to the accused. He gently pulled her shoulder to roll her back again. The accused touched her genitals, including rubbing her clitoris to her vagina and inserting his finger into her vagina. She put her legs together to try to stop it.
118Her evidence was that he placed her hand on his penis and manoeuvred it to rub his penis while making murmuring noises. She emphasised that he was very gentle. Her hand felt something straight and wrinkly textured. She said it was firm and it was warm and very wide, wider than a finger. She had her eyes shut. This detail is convincing of the child having her hand manoeuvred to the accused’s bare penis.
119She described her recollections of the accused in this way:
Rubbing my breasts, genitals, put my hand on his penis again. He would run his hands from my clitoris to vagina up and back, up and back.
120And later on:
Into my vagina about half a finger. It was moving not for very long.
121And that is a quote from the evidence. The witness is speech phrasing while giving evidence to account for conduct which occurred in the past. This was appropriate as she was describing events which occurred long ago. She described events in an unusual manner of speech, utilising the phrase 'he would do' something or rather, even when she was describing a particular event. This perhaps gave the impression that she was often generalising, rather than giving evidence of a particular event that she recalled.
122I do not find this to be the case. Her evidence was that she recalled this particular occasion when she rolled over to face the wall and put her legs together, in order to stop the vaginal penetration. She recalled this event and confirmed in re-examination, that she was speaking of a particular recollection, rather than describing a general impression of what happened a lot, although it did on the complainant’s evidence. She recalled the accused murmuring in a low raspy voice but could not clearly hear him or recall the words.
123The use of general terminology, to my observation, was more a way of the complainant separating herself from the event, than not being able to recall the detail of a single event. The fact that the events were frequent and similar, does not detract from her evidence or the credibility of it. I observed, in fact, that the accused used the same manner of speech in his record of interview.
124The court is aware of the difficulties a witness may experience in giving evidence of events that happened a long time ago. Allowances are made both for a witness giving evidence and the capacity of an accused person to challenge evidence concerning events of such a long time ago. However, in the context of this case, there is no suggestion that the complainant was confusing one incident of penetration and penile masturbation with another event of an entirely different or less serious nature.
125The cross-examination centred on the event being described as never occurring at all, rather than a confusion with another event at a different place or time. This observation places the submissions of counsel on this issue in proper context and provides ample reason for rejecting it.
126I am satisfied that the complainant was describing a particular incident that occurred, that was very similar to other incidents.
127The complainant said that once this incident occurred, there was no further relationship with the accused and, in effect, she tried to avoid him. She said she kept her distance. At some stage, she asked her mother to arrange a lock to the bedroom door at the second northern suburb address and this occurred. After that lock was installed, no further offending occurred in the home.
Further context and tendency evidence
128I will now refer to further context and tendency evidence. The complainant recalled another occasion while living at the second northern suburb when the accused was driving her home from somewhere. He parked the car and started tickling her. He tried to grab her breast and put his hand in between her legs. She yelled to stop and pushed him away. He eventually desisted and they drove home. This is the first and only occasion where the complainant directly indicated to the accused that she wanted nothing to do with his sexual touching.
129This is significant evidence which shows that it was the complainant who had to stop the activity, not the accused. This is a consideration when assessing the accused’s evidence and will be further discussed below.
130There is no direct indication as to when this event occurred in relation to the incident at the second northern suburb or the lock going on the door, but it is evidence of a continuing sexual interest in the child. It is also a willingness to act on that sexual interest at a time other than when the accused did not assume the child to be asleep.
131In cross-examination of the complainant, counsel took her back through the detail of her various complaints. She confirmed the evidence that she gave in chief and occasionally, if asked, offered further information. She confirmed in cross-examination, the detail of her evidence. She confirmed the events as contained in Charges 1 and 2 were distinctive because of the lying and this is what anchored the event in her memory.
132Any challenge to her evidence focused on the detail of the penetration and directed masturbation, not any other sexual touching that accompanied it.
133I will now turn to an assessment of the complainant's evidence at this point. In assessing the complainant’s honesty, credibility and reliability, there are some additional matters that the court considers appropriate to state as being taken into account at this stage. In order to do so, however, it requires a brief discussion of any other evidence that may either support or contradict her evidence. This includes consideration of internal inconsistencies; a further lack of complaint; and a discussion of some witnesses who were not called.
Assessment of complainant's evidence
134To commence this assessment, I refer back to the complainant's evidence and her understanding that after the events as described in Counts 1 and 2 occurred, she understood that the actions of the accused were wrong. This understanding produced a fearfulness in her mind of being found out, or of being rejected by the family and a further fear of the abuse continuing. This fear informed the complainant’s future actions, including being too frightened to tell anybody and generally, thereafter, trying to avoid the accused.
135During the period of offending at both houses, the complaint told the court that she employed various ways of avoiding the accused if she perceived that he was coming towards her room. At the northern suburb house, she would hide under the bed. At the second northern suburb, she would climb out of the window. She was cross-examined at length on the detail of this evidence, but really, to no avail. It is irrelevant to my considerations whether after jumping out the window, she sat outside the window or went to the park.
136The complainant said that in order to achieve this, she would remove the flywire from the windows as the clips were on the inside of the house. She maintained her version of events and ultimately was supported in minor detail by her mother, to whom it was put in cross-examination, that the flyscreen clips were on the outside of the house. Mrs Kellogg disagreed, saying to her recollection, they were on the inside. Even acknowledging, as I do, a potential forensic disadvantage to the accused in being unable to challenge this fact. The evidence of the mother, Mrs Kellogg, neutralised any suggestion that escaping out a window would have been physically impossible.
137Counsel for the defence then submitted that either scenario, especially getting out of the window was improbable. In any event, he submitted, in the context of the complainant saying that she did so when she heard footsteps coming toward her room, it was impossible or improbable that she could achieve this within the available time frame.
138Specifically, it was suggested that it would have been impossible for her to open the window, remove the fly screen and jump out because that act or serious of acts, would have taken more time than it would have for the accused to walk from the kitchen to the back room. The complainant simply confirmed that she frequently jumped out the window.
139The challenge to this scenario was suggested to be relevant to the complainant’s credibility in general. However, given that the accused conceded that he did certain things to demonstrate a sexual interest in the child, and that sexual interest and his actions towards her (acting on that sexual interest as he admitted) continued after the family moved to the second northern suburb, the relevance of the challenge to the complainant jumping out the window or having time to do so is significantly diminished.
140The gravamen of the evidence about jumping out the window, it is the complainant's recollection that she employed devices in order to avoid being in the room when the accused came in. It is obvious that her tactics were not always successful as, on her evidence, and on the accused’s admissions, she awoke to the abuse occurring on many occasions.
141It is obvious that the complainant could not have undertaken avoidance tactics while she was asleep. The offending woke her up and by then, clearly, it was too late to jump out the window. Her evidence was that on those occasions, she would still pretend to be asleep. Whether she actually avoided the accused abusing her on one or more occasions by hiding in the way she said she did, is speculative. The fact that she took these extraordinary steps, which I accept she did, supports her evidence that the abuse was frequent and continuous and occurred both in the northern suburb house and the second northern suburb addresses. It supports her credibility generally and gives context to her version of events.
142The accused concedes that he continued to have a sexual interest and acted on that sexual interest, so, whether she was able to successfully climb out the window or not, is irrelevant to an assessment of her credibility as to the physical extent of the abuse. It is obvious that if she was out of the room, sexual abuse in any form did not occur.
Lack of disclosure
143I will now refer, in assessment of the complainant’s evidence, to her lack of disclosure. The complainant did not say anything to her mother on the night she realised that the accused’s night visits and the touching he indulged in was wrong. This concerns the event in the northern suburb. However, soon after, perhaps the next day, she had a short conversation with her mother, telling her, on her recollection, that accused was lying when he said he was 'tucking the children in'.
144The complainant does not recall what her mother said or any other part of the conversation. The lack of memory is probably as a result of the significant delay in reporting this matter. It is a consideration that I must take into account when assessing her evidence and the evidence of Mrs Kellogg.
145The complainant said she did not ever mention anything to her mother again, and in her memory, did not ever complain directly to her mother about the accused sexually abusing her. While giving myself the direction concerning the potential reasons for this, there is already direct evidence of why no such complaint was made.
146In general, the complainant said that her belief at the time was a fear that if she did not accept life as it then was, then she would be sent away again, perhaps back to a home. Whether this was likely to occur or not is irrelevant. It is a fear that the complainant held and in the circumstances of her childhood, an understandable one, even without further evidence.
147The significant delay in complaint does not detract from the complainant’s credibility.
148I also note that the complainant moved out of the home as soon as she felt able to do so, aged about 18 years.
Recent memories
149I now refer, in further assessment of the complainant’s evidence, to what I will refer to as recent memories. In more recent times, the complainant had a recollection of a detail that she said she had not previously thought about. She recalled hearing the accused saying things like 'don’t tell anyone, it’s a secret' and that if she did tell anyone, it would break up the family. She volunteered to the court that her confusion about this was a true recollection as it was not a memory that had come to her earlier. This recollection has become the subject of a further statement (in October 2022) which, as required, was served on defence before the trial commenced.
150This recent memory has caused the complainant to doubt whether this particular memory is true. Her self-doubt is noted, but this, in my view, is an expression of an honest witness questioning her own evidence to ensure that it is accurate to the best of her ability. She made it clear that she believed this ‘conversation memory’ to be accurate. That is, her self-doubt was expressed because she had not recalled it previously.
151She said she had no doubt of what she described to be the physical memories of what occurred as they were always with her, and they never changed. She described this as being able to recall exactly what she felt. She had less confidence about the conversations she recalled, particularly this one.
152This is a powerful, personal, and credible explanation of how and in what form, a traumatic memory of a physical event is, and was, retained in this complainant’s memory. This is, again, an appropriate time to remind myself of the consequences for both the prosecution and the defence of a delay in complaint, as I have set out above.
153In the context of this case, there was not a great delay in complaint about the dishonest behaviour of the accused opposite the complainant, if the complainant’s recollection is correct, or a more specific complaint of 'touching down there' if her mother’s recollection is correct.
154There was significant delay in reporting the matter to police. The complainant gave a reason for not so doing is that she did not believe anything would happen. This is not an unusual nor unreasonable position that victims of sexual abuse take.
155When challenged in cross-examination about her memories, the complainant said that the events were distressing to recount and that the memories, themselves, were distressing. She said that she did not ever have any choice not to revisit the memories, as they were constantly coming back regardless. She said that there was not a time when she was able to put the events out of her mind. Up until the complaint was made to police, she said she did not make any effort to recall the events, but they were always there, sometimes intruding on other thoughts.
156The complainant was cross-examined at length on this apparent recent memory of the conversation referred to above, about not saying anything because it would break up the family.
157It was suggested to the complainant in cross-examination that she could not be sure that this memory was real or whether it was imagined, largely because she had not mentioned it in previous statements. The complainant disagreed.
158This lack of disclosure in the first and second statements and the circumstances of the taking of those statements is referred to below and is a different consideration. In relation to the recent memory recollection of this particular conversation, I found the complainant’s explanation that it had come to her independently of any outside influence to be truthful.
159There was no evidence that this memory was the result of some kind of conscious or unconscious prompting about the issue of secrecy. Her explanation, as outlined above, and in my view, does not diminish the strength of that evidence. Most importantly, these recent memories do not, in any way, diminish the complainant’s evidence of the physical acts which she told the court on many occasions had always been with her.
160It was suggested by counsel that in assessing the whole of the complainant’s evidence, the court could infer that these new memories were part of a 'reconstruction of memories process'. It was obliquely suggested that this reconstruction may well include reconstructed memories of the physical events the complainant gave evidence of as well.
161I specifically reject this submission. There is no evidence, at all, of any intervening act between the first event occurring and the complainant telling her mother that the accused lied about what he was doing. An understanding of both the complainant and her mother’s evidence is that the complaint was made of sexual touching. It seems admitted that she was accurate about the frequency and location of the events. There is nothing to suggest that she confabulated the nature or degree of same.
162The complainant insisted that her recollection of the physical memories were always present and recalled as such. Life experience suggests that thinking about an event, even one that occurred long ago, may trigger long forgotten peripheral details. This is not unusual. When this occurs, memories so recalled may be accurate or inaccurate. It is well known to courts who deal with matters such as this, that memories are not like videos that can be replayed at will.
163I did not detect any suggestion of confabulation in the complainant’s evidence, nor was there any suggestion of any outside influence in her memories. There was no evidence that she had discussed her evidence or memories of conversations with anybody before she provided police with her most recent statement. A memory of a conversation may assist in assessing the circumstances of the offending and give it further context. The physical events, I repeat, the physical events are the gravamen of each charge. The complainant’s version of the physical events has been largely consistent.
164The so-called recent memories of a conversation she now recalls, have very little to do in helping the court to decide whether the balance of her evidence about the form of the touching was as she states. The complainant, in effect, blamed her own childhood fears of abandonment on her lack of timely complaint, not a threat from the accused. Therefore, the consequence of this recent memory is almost irrelevant.
165I found the complainant's evidence to be compelling, credible and in relation to the charged offences, capable of acceptance to the required standard. Where she had doubts about matters of accuracy, she said so. These doubts were not significant to the charges.
Inconsistencies with other evidence
166The other examination of the reliability of the complainant's evidence that I must examine are the inconsistencies with other evidence. There were some features of the complainant’s evidence that were not supported or were contradicted by other evidence. For example, she told the court that she heard the accused tell her mother that he was tucking her in. Her mother had a different version of this conversation with the accused and a different version of the subsequent conversation with the complainant the next day. This is, I find, an insignificant discrepancy.
167The point of the complainant’s recollection was that the event being interrupted by her mother led to her overhearing a conversation which then prompted her to complain to her mother about lying. Her mother had already had a conversation with the accused which caused her mother great concern.
168There was a suggestion by defence counsel that the lack of direct observation of abuse is a matter of significance and this is a lack of direct observation of physical abuse by the mother on this particular occasion. I do not agree. As is usual in matters such as this, the touching occurred in private, with the only direct witnesses being the complainant and the accused. The observation of the mother and the subsequent conversation with the accused is entirely consistent with the evidence of the complainant.
169When considering the evidence of Mrs Kellogg, which I will refer to below regarding what she recalls saying to her, which were words to the effect of 'touching down there', it must be considered whether this, in any way, detracts from the complainant’s detail of what she told the court had occurred the previous evening. I find any conflict is insignificant.
170On all of the available evidence, the child was embarrassed and uncommunicative. In those circumstances, it is hardly surprising that she refrained from a complaint about vaginal penetration or directly touching the accused’s penis. Her evidence was that she had not felt anything like this before. She was undoubtedly very confused, both about the nature of the activity and whether it was wrong.
The complaint process and changing evidence of the complainant
171There are other inconsistencies in the complainant's evidence which have been raised and this is in relation to the complaint process and the changing evidence of the complainant in her complaints to police. By way of background, the complainant reported the matter to police when she became aware of the accused's intention to seek a church appointment. This was the catalyst for her taking action. She spoke to her mother and sought advice from a counselling organisation.
172The officer in charge told the court that the complaint to police was made through that counselling organisation. Police officers used the information so obtained from the counsellor and notes apparently from an interview with the complainant’s mother, by way of background, for the first interview with the complainant which resulted in her first statement dated June 2020. Further statements were taken in January 2021 and in October 2022. The most recent statement I have already referred to because it related to the recent memory.
173In explaining the reason for her second police interview and the circumstances in which it occurred, the complainant said that the circumstances of the first interview were distressing. She told police of her distress. She told the court that one reason for her distress was the topic which she had not detailed before. Where, she felt further emotionally compromised when the police officer who was interviewing her, read out part of a statement or a note taken from somebody else's case, or so the complainant thought.
174Evidence from the officer in charge suggested that the statements that were available to the police officer at that time, included notes taken by a counsellor and notes taken from a conversation with the complainant’s mother. In the circumstances of the police officer putting that information to the complainant, the complainant indicated that what she was being asked about was not accurate. She therefore thought that the police officer thought that the complainant was someone else and therefore confused about the case she was investigating. She felt police were not dealing with her complaint properly. This response is entirely plausible.
175The result for the complainant of this confusion was that she said she lost concentration during the course of the first interview process and felt, on my understanding, discombobulated throughout that process. At this point, while the complainant was giving evidence, I observed her to lose concentration, not to listen properly to the questions that were asked, and to be ultimately unable to continue. In court, she became rapidly distressed, so much so that for the only time in giving of her evidence, a break was required so that she could re-establish her equilibrium.
176My observation was that even thinking about this first police interview was sufficient to reinvigorate the distress that the complainant felt during that process. I saw a real-time example of her completely lose concentration which led to an inability to properly answer questions. The complainant still believes that the police were confused about who she was during the first interview. I formed the impression that this response was genuine.
Demeanour
177In assessing this demeanour, I accept that courts do not have the ability to tell if a witness is telling the truth or not, simply by an observation of their demeanour and I have noted this at the commencement. However, the distress observed in the complainant when she was recalling the circumstances of the taking of the first statement was obvious.
178This observation must support the witness’ explanation for the lack of detail about the second northern suburb incident in the first police statement. This observation also reminds the court of the real difficulties complainants have about recalling distressing events and the compounded difficulty in accurately recalling incidents that occurred many years ago.
179I find that the complainant in this case, not only made every possible effort to recall the events accurately and truthfully, but she also very honestly told the court when she had doubts about her own memories.
180She was, I repeat, on the whole, and in relation to the circumstances of each of the events charged, an honest, reliable, and accurate witness. Again, I observe her evidence is capable of acceptance to the required standard.
Evidence not called by prosecution
181I turn now to a consideration of evidence not called by the prosecutor. Neither counsel mentioned this, but it is fair that I consider it.
182The complainant’s evidence was that she told her friends in or about 1978 or 79 and her husband in the mid-1980s. Neither of these witnesses were called to confirm what they had been told, or if anything further occurred regarding the allegations. The evidence that she told others prior to the two formal complaints to police appears to not be in dispute. In her evidence, she told the court that she told her friends of 'being molested' or words to that effect. This was not challenged but is of minor significance in the context of the defence position if an assumption can be made that 'molested' can be interpreted as something less than penetration.
183This uncontradicted evidence supports the finding that these events in general, were not manufactured by the complainant just prior to her complaint to police. It does not assist one way or the other with the detail of what actually occurred. However, I acknowledge that the decision by the prosecution not to call these potential witnesses means only that any evidence they may have been given by them would not have supported the prosecution case. I will not speculate.
Evidence of the complainant’s mother
184A further witness for the prosecution was, of course, the complainant’s mother, Donnette Kellogg. I referred very briefly to some of her evidence but will cover it in more detail now.
185She told the court that between 1973-1975, she was working shifts at a hospital. The accused was working and studying. She confirmed the configuration at the northern suburb property and confirmed that three children shared a bedroom. Her recollection was that from time to time, the complainant moved out of the bedroom and then moved back to it. She became very confused when trying to work out when the child, Alexandra, would have moved out of the cot. But whether this is relevant to the configuration of the children in bedrooms is not particularly important.
186She told the court that she recalled one night that she was asleep in her bed. She could not remember if she had been to work earlier or not, but she woke up to find that the accused was not in bed with her. She got up and went to the children’s room opposite and saw the accused standing by Marian’s bed. She did not observe him to be doing anything other than standing there. He was fully dressed.
187They had a conversation in the hallway. She asked 'What you doing?', he relied 'Nothing'. She felt something was wrong. She observed Marian to be apparently sleeping. The room was well lit from outside lighting.
188Later on, she said she had a further conversation with the accused and asked again what he was doing. She reported that he replied 'I was just feeling, touching her to see what she felt like . . . There's nothing wrong with it, everyone does it'. She said that his demeanour was not unusual. She was certain of the words used and was so shocked at the response. She stayed in bed for a long time but could not remember how long.
189Thereafter, she spoke to Marian and asked her whether she was asleep and what had happened. On her recollection, Marian replied that her father had touched her 'down below'. Mrs Kellogg observed that Marian appeared embarrassed and observed her head hanging down. She said she told her daughter it should not have happened, that it was wrong and that if it happened again, she should tell her. The lack of subsequent disclosure is discussed above.
190Within that timeframe, Mrs Kellogg telephoned the church and was referred to a counsellor. She said that both she and her husband, the accused, attended a counselling session together.
191She said that in general, she tried to talk to Marian to find out more, but Marian never said anything.
192She recalls being requested to put a lock on the property at the second northern suburb and that that was arranged.
193She confirmed that Marian left home aged 18 years. Thereafter, she said that over the years, she raised from time to time the possibility of reporting the assaults to police, but Marian did not want to do so. Many years later, some information about the frequency of the events was discussed.
194In cross-examination, Mrs Kellogg confirmed that in her statement, she said that the conversation and observation in the northern suburb address occurred in 1975. She recalled that her recollection was it was in 1973. I note the agreed facts indicate that the parties moved to the second northern suburb in 1975.
Informant's evidence
195I will now refer briefly to the informant's evidence. Detective Senior Constable Darby gave evidence confirming that the process of enquiry at the first interview was undertaken by another police officer. She confirmed that the complainant later reported being upset by reference to words reported by, she thought, another. The process of re-interviewing the complainant was complicated by COVID shut-downs. A further statement was taken in January 2021 and shortly after, the pretext call was arranged. The accused was arrested and interviewed three days later.
Pretext call
196I refer now to the contents of the pretext call. The prosecution case included the playing of the pretext call between the complainant and the accused as it occurred on 5 January 2021. This was recorded and tendered by consent with the transcript as an aide. The accused was not aware at the time of the call that it was being recorded.
197In that call, after some introductory inquiries, the complainant raised the issue of the accused becoming a church representative. After a short exchange, she told him she did not think he was the right sort of person to do that and asked directly 'do you remember what you did to me?'.
198Mr Bernard responded, 'yes I know, it’s, you know, but people, they can change'. After some further conversation, she asked if he had ever thought about it and he responded, 'well yes, I'm very sorry about that'.
199After further asking what his memory was, he responded 'I remember some'. After further conversation, Mr Bernard indicated that he was not in a place where he could talk. Arrangements were then made for the complainant to ring back some twenty minutes later.
200During the next call, the complainant asked again if he remembered what happened and he said, 'he was feeling ashamed and he tried not to think about it'. He said that 'maybe it was [that] I inappropriately touched you and that's really what it was'. Later in the call, he said that it occurred 'at [the northern suburb] when her mother was working' and that he was 'doing things to her in her bed'.
201When she asked why he touched her, he responded 'that's what I often wonder myself. A sort of infatuation I suppose. I thought you were beautiful'. Later on, he said 'that he would touch her all over'.
202When asked what counselling had achieved, he responded “that’s an interesting question, I have to think about it. I don’t know, a number of things talked about there, about why I was doing this and things like that, but also its effect on you and the family'. He was then asked why he kept on doing it. Mr Bernard responded, 'no I didn't, I literally stopped'.
203After some general conversation, the call ended.
Analysis of evidence
204In analysing this piece of evidence, in this call, the accused is clearly admitting to a sexual attraction to the complainant when they were living at the northern suburb and that he acted on that attraction, when he had the opportunity to do so, by touching her in a way that he agreed was inappropriate. He said he stopped after counselling. There is no ambiguity in his words, notwithstanding the poor quality of the recording. The transcript was agreed. The statement that he stopped after counselling is clearly untrue.
Exhibit 4 - Record of Interview
205I now refer to the record of interview, Exhibit 4. Three days later, the accused agreed to participate in a police interview. I note the appropriate warnings above considering this evidence. It was an appropriately robust session where direct allegations were put to him.
206At the commencement of the interview, he told police he assumed that the arrest and questions were as a result of the context of the call he had with the complainant some three days prior. He was asked to give his version.
207In doing so, he referred to the call and said 'he had touched Marian, run his hands over her breasts and groin area, all over really', (P5, Q30). He then said 'she was aged 13, 14 or something like that', (P5, Q33).
208He said 'It commenced innocently by playing and touching accidentally', (Q/A 40). His recollection was that the first time 'she was maybe 12 years old', (Q/A 43).
209He said he became 'like infatuated and went looking to touch her deliberately' (Q/A 50).
210He recalled an event in the northern suburb in a room where the two other kids were. When detailing his actions, he said: 'I would have gone over and touched her, felt her all over her I suppose', (Q/A 56). He did not think he touched her in the back room at the northern suburb.
211Further questions returned the following answers (Q/A 110). He 'touched her groin, fanny sort of region'. He denied that he 'ever touched her inside or like her clitoris or anything like that'.
212When asked if Marian had ever touched him, he said 'no I don’t think so'. In support of this, he said he 'was very embarrassed that she might see him having an erection, although sometimes, he probably did'.
213He said that events occurred 'sometimes a couple of times a week and then he wouldn’t [do] it for a long time', (Q/A 116). He said 'it was to do with opportunity'.
214He explained (at Q/A 119) that:
I don’t know if you would call it a habit, but just an infatuation. And so, it would be a number of times in a row then I’d hit myself over the head and stop', (Q/A 124). I would just feel so bad, you know.
215In answer to a question whether it was arousing for him, he said:
But not always to that extent. Sort of a bit curiosity and things. I thought, you know, another body is a beautiful thing, and you know, there’s what you would be doing if you were nudists. You’d be stroking and touching each other, but there is still a limit; places you don’t go, you know. I admit that I went too far...
216When asked to explain about what too far was, he said 'well, touching around the groin area, that’s too far'.
217He said, (Q/A200), he did not go anywhere near her vagina. And further on (at Q/A 202), he said:
Her underwear, I'm in that region, you cause, cause what her bone, if you like all the female genitalia, somewhere down there, you know that bone at the top is what I’m touching.
218He denied his fingers went in her vagina (at Q/A 204). He said (at Q/A 207):
'But as far as I was aware, she did not wake up. She might have rolled over, just got out of the way sometimes'
219And at that point, he indicated that he would think 'she's almost awake, I'm going' and he would leave. At Q/A 211, he denied getting the complainant to touch his penis whenever he was aroused.
220In relation to attending counselling with his wife, he said that he went because he ‘had been doing something very wrong and there was possibly a problem with the marriage as well'. When asked if counselling did anything for him, he said 'I have no idea'.
221At Q/A 225, he was asked if he stopped after and he replied 'yes'. It is not clear if this reference is to stopping counselling or stopping touching.
222The interview then moved on to the events at the second northern suburb property. He agreed that she was then at high school. The accused said that he knew he went and touched her a few times there but could only remember one occasion when she wore a particular nightie, which he explained in detail. He said that he touched her breasts and her body, and she was just lying there, he presumed, asleep. He said (at Q/A 207) 'Marian did not touch [me], she was asleep all the time'. He did not think he ever grabbed her hand and that as far as he could recall, she was asleep all the time.
223He acknowledged the events occurred in secrecy (at Q/A 263).
224He said he remembered apologising to her but could not remember if this was at the northern suburb or elsewhere. He was 'pretty sure' he stopped after the apology (at Q/A 294). On further consideration (at Q/A 319), he considered the apology was 'probably at the northern suburb address, before she told her mother'.
225When it was put to him directly that in spite of observation that he stopped the abuse at the second northern suburb, he said (at Q/A 323), 'well it wasn’t continuing. It was it was quite some time later'.
226When the allegations were put to him directly, he denied he ever put his finger in her vagina or manipulated her hand to touch him.
Assessment of the accused’s evidence
227I now must turn to assessing this evidence of the accused as contained in that record of interview. There are a number of observations to make of the interview and the contents of the pretext call. In both conversations, the accused said the touching was opportunistic. It commenced, in his words, '[accidentally]' and then proceeded, in his words, 'out of curiosity'. He said he sought her out when the opportunity arose.
228There is no dispute that at all relevant times, an inference can be drawn that the accused had a sexual interest in the complainant although he did not admit this directly. He used a euphemism such as being infatuated. In both conversations, he said he was 'curious' as an explanation for the 'the inappropriate touching' as he called it.
229The evidence of Mrs Kellogg is that this avoidance of direct language is similar to what the accused said to her when she confronted him about the event in the northern suburb (in 1973). He told Mrs Kellogg, according to her evidence, that he wanted to see what 'she felt like'. He expressed no acceptance that what he was doing was wrong, claiming to the contrary, that it was not.
230The accused’s acceptance of what he did was wrong, even to the extent that he now admits, is apparently a recent realisation. There is no evidence of any prior acceptance of same.
231My observation of that this desire to quench his curiosity, as repeated to police, is not plausible in the face of the allegations of the abuse continuing over such a long period of time. On anybody’s version of events, it continued over years, when the complainant was aged between about 11 and 12 and up until she was aged 14 or 15 and it occurred with significant frequency.
232Other difficulties in accepting the accused’s version are that he contradicts himself as to whether the abuse stopped after the apology or counselling, both of which occurred at the northern suburb or whether, as he later conceded, occurred on at least one memorable occasion, for him, the second northern suburb. After that event, there is compelling evidence of an event in a motor vehicle. Clearly, the accused did not stop at the northern suburb. This version is not truthful.
233At the very least, the abuse continued for over two years, on many occasions, and on his admissions, sometimes several times a week. The explanation the accused gives that this continual sneaking into the complainant's bedroom at night, while she was presumed to be asleep and touching her, goes far beyond any explanation of him needing to satisfy his curiosity.
234If this was the case, and Mr Bernard was 'just curious', this curiosity would have been well satisfied by the rough-house play and accidental touching in the lounge room, or, at the very least, after the first furtive touching, while she was apparently asleep.
235His version of events is not credible from that point on. I do not accept it as being a version of events that could possibly be true - that he only touched her in the way he admitted over numerous occasions when he thought it was secret, and private, and that she was asleep.
236Further militating against acceptance, is the convincing evidence from the complainant that he murmured in a low or hoarse tone, during the penetration and directed masturbation events. Notwithstanding that the complainant was vague about the exact words used while these particular events occurred, her recollection of consistently hearing on all occasions what can be accepted as a description of noises consistent with the accused experiencing sexual pleasure, is highly relevant. It is evidence supportive of her version of events and inconsistent with the accused’s version of events.
237This evidence fits with the other evidence of the complainant. This mummering was not a recent memory. The evidence supports a finding that he was deriving personal sexual pleasure from the events he was undertaking. His low tone murmuring, and direction is plausible, even if he thought she was asleep. The accused was, for several years, on a frequent basis, doing much more than simply satisfying his curiosity, even after being confronted by his wife. It must be remembered that at no time was the complainant pretended to be complicit with the subterfuge.
238Finally, in assessing the truthfulness of the accused’s denials of penetration and forced masturbation, I note that in 1973, he told his wife that there was nothing wrong with what he was doing and that 'everyone does it'. Clearly, attendance at counselling did not change his view, as the abuse continued. This perverted view underlies his attitude in his police interview. He continued to try to convince police that he was 'just curious'.
239It now appears that the accused is aware that what he was doing was wrong and seriously so. It is possible that he lied in the police interview to avoid the consequences of his actions, or it might be that he has convinced himself over the years that the abuse he visited on the child, was only at the level of seriousness he spoke of. This version fits with his excuse of an accident leading to curiosity; leading to, on his version, indecent touching but not to a great degree.
240As conceded above, I accept that memories of events that occurred long ago may be recalled accurately or inaccurately. Whether he actually believed what he told police or knowingly lied, I am not able to discern on the evidence before the court.
241I find, rather, that the accused, during the police interview, surmised that the complainant had told police about the contents of the pretext call. He reasoned that he had made some admissions to touching her and thereafter, sought to minimise the degree of his admissions.
242It is not a matter of simply preferring the complainant's version to the accused’s version. I accept that.
243I further acknowledge that it is impermissible for the court to reason that the complainant would have no reason to lie. None of us know whether this is the case or not. Such a consideration is entirely irrelevant.
244In the context of this case, I have set out why I reject the accused’s version of events as being a version that could possibly be true or even raise a reasonable doubt as to the complainant's version of events. I reject his version as being a version that could be accepted at any level.
245I reject his denials that he never penetrated the complainant’s vagina with his finger during the course of other sexual assaults. I reject his denials that he never directed the complainant’s hand to the bare skin of his penis, and I reject his denials that he never directed masturbation in the context of other sexual assaults.
246I have carefully considered the complainant’s version of events, together with other evidence provided by the prosecution. In particular, her mother’s evidence supports her version where it ought to be consistent.
247There are no significant inconsistencies in the complainant’s evidence that give me any concern as to its honesty, accuracy, and reliability. I accept it to the required standard.
Judgment
248For those reasons, I find that the prosecution has proven each charge on the Indictment and I find the accused guilty of Count 1, that between 1 January 1973 and 31 December 1973 at a northern suburb in Melbourne, he unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years, in that he penetrated the complainant's vagina with his finger.
249I also accept and find him guilty of Count 2, that on a date between 1 January 1973 and
31 December 1973 at a northern suburb in Melbourne, the accused unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years at a time other than referred to in Count 1, in that he placed her hand on his erect penis.250I further accept and find, to the required standard, that on the on a date between 1 January 1975 and 31 December 1975 at a second northern suburb, the accused unlawfully and indecently assaulted Marian Kellogg, a girl under the age of 16 years, in that he penetrated her vagina with his finger.
251And finally, I find Count 4 proven beyond reasonable doubt. Namely, that on a date between 1 January 1975 and 31 December 1975, at a second northern suburb, the accused unlawfully and indecently assaulted Marian Kellogg, at a time other than that referred to in Count 3, a girl under the age of 16 years, in that he placed her hand on his erect penis.
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