Director of Public Prosecutions v Douglas (a pseudonym)
[2021] VCC 505
•3 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MARCO DOUGLAS (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 & 14 April 2021 | |
DATE OF JUDGMENT: | 3 May 2021 | |
CASE MAY BE CITED AS: | DPP v Douglas (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 505 | |
REASONS FOR JUDGMENT
---
Subject:Criminal law – trial by judge alone
Catchwords: Accused charged with incest and indecent act with child of 17 years under his care, supervision or authority – whether accused committed an indecent act by touching his step-child between the breasts – whether the accused committed an act of penetration by putting his thumb in the vagina of his step-child – credibility and reliability of the complainant – complaint evidence - whether prior inconsistent statement made
Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009; Jury Directions Act 2015; Evidence Act 2008; COVID-19 (Emergency Measures) Act 2020
Cases Cited:
Judgment: Accused found guilty of charges 1 and 2
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin (trial and judgment) | Office of Public Prosecutions Victoria |
| For the Defendant | Mr S. Kelly (trial and judgment) | Ann Valos Criminal Law |
HER HONOUR:
1The accused, Marco Douglas[1] is charged on indictment with the following offences, allegedly committed between 2 and 3 June 2017:
(a)Wilfully committing an indecent act with or in the presence of Mary Casey[2], a 17 year old child to whom he was not married and who was under his care, supervision or authority contrary to s 49(1) of the Crimes Act 1958[3] (Vic.) (‘the Act’) (charge 1);
(b)Taking part in an act of sexual penetration with Mary Casey, a person whom he knew to be his step-child, in that he introduced his fingers into the vagina of Mary Casey contrary to s 44(1) of the Act[4] (charge 2);
[1] A pseudonym.
[2] A pseudonym.
[3]As amended by the Crimes (Sexual Offences) Act 2006
[4]As amended by the Crimes (Sexual Offences) Act 1991
2In the alternative to charge 2, the accused is charged with wilfully committing an indecent act with or in the presence of Mary Casey, a 17 year old child to whom he was not married and who was under his care, supervision or authority contrary to s 49(1) of the Act[5] (charge 3).
[5] As amended by the Crimes (Sexual Offences) Act 2006
3On arraignment at the commencement of the trial, the accused pleaded guilty to charge 3, and not guilty to charges 1 and 2.
Trial by judge alone
4This case has been heard by me as a judge alone trial. The accused applied to be tried by judge alone, and with the consent of the prosecution, his application was granted on 18 March 2021 pursuant to s 420D of the Criminal Procedure Act 2009. That trial proceeded before me on 13 and 14 April 2021.
5Section 420S provides that a trial by a judge alone commences when the accused pleads not guilty on arraignment before the judge. Section 420E provides that in a trial by a judge alone, the trial judge may make any decision that could have been made by a jury, and that such a decision by a trial judge has, for all purposes, the same effect as a verdict of a jury.
6It follows that when hearing a trial as a judge alone, I am performing the functions of both the judge and, importantly, the jury. In doing so, the basic principles of a criminal trial apply. The accused is presumed to be innocent of each charge brought against him. In order to prove the guilt of the accused on each charge, the prosecution must prove each element of that charge beyond reasonable doubt. At no time during the trial does the accused bear any obligation or onus to prove anything at all. From the commencement of the trial the onus of proof remains on the prosecution. The standard of proof in a criminal trial, including this trial, is beyond reasonable doubt and the burden of proof is always on the prosecution.
7I must determine the verdict against the accused solely on the basis of the evidence, being the answers given by witnesses in court and the exhibits tendered in evidence. Nothing else is evidence in this case. The opening and final addresses of counsel are simply arguments and are not evidence in the case.
8As a judge sitting alone, I have taken care to ensure that, in hearing and assessing the evidence, I have as much as possible put myself in the same position as a jury. I have taken care to ensure that at all times I keep an open mind, and that the findings I ultimately make in this judgement are based on all the evidence that has been adduced by the parties in the trial and on no other basis. I have not read or had access to any extraneous material, including the depositions. I have only used the transcripts of the evidence as an aid and not as a substitute for the evidence given in the trial.
9In returning my verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the factual findings on which I have relied.
The issue at trial
The Prosecution Opening
10At the commencement of the trial, the prosecution opened its case outlining the case against the accused. In summary, the prosecution case against the accused is as follows:
11At the time of the alleged offending in June 2017, the accused was married to Teresa Douglas[6]; having met her in 2009 and then married in 2012. The accused was step-father to Mary Casey who was Teresa Douglas’ daughter from an earlier relationship. The family lived together in Koo Wee Rup. As at 2 June 2017, Mary Casey was 17 years old. The accused was 45 years old.
[6] A pseudonym.
12On 2 June 2017, Teresa Douglas went to bed at between 7.00pm and 7.30pm having taken a sleeping tablet and set her alarm for 4.00am the following morning.
13That evening, Ms Casey had her boyfriend, Ed Parks[7] over for tea. He left the house after dinner and went home. After he left, Ms Casey lay on the 3-seater couch in the lounge room with the television on. She was wearing high-waisted black tracksuit pants. By midnight, she was lying face down on the couch and falling in and out of sleep.
[7] A pseudonym.
14The accused came into the lounge and sat on the left-hand side of the couch. He picked up Ms Casey’s legs and put them across his legs. He began massaging her legs on the outside of her clothes.
15The accused then put his hand underneath Ms Casey’s tracksuit pants from the bottom of the pants. He massaged her calves. Ms Casey moved because she felt uncomfortable.
16The accused then began massaging Ms Casey’s upper body. The prosecution allege he put his hand on her chest between her breasts (charge 1 – indecent act).
17The accused returned his hand underneath Ms Casey’s tracksuit pants from the bottom of the pants and massaged her thighs.
18The prosecution allege the accused moved his hand underneath her underwear and placed his thumb between the lips of her vagina and began a circling motion with his thumb (charge 2 – incest or alternatively, charge 3 – indecent act).
19After this occurred, Ms Casey bolted up and said, ‘What the fuck are you doing?’. The prosecution allege Ms Casey sent a text to her boyfriend stating, ‘I think dad just tried to molest me’. She was picked up by her boyfriend and driven back to his house. She told him that the accused began by massaging her thigh then moved closer to her vagina. When her mother arrived, she told her that the accused had sexually assaulted her.
20The prosecution allege that when the accused was confronted by Teresa Douglas the next day he told her that he hand massaged Ms Casey’s legs and then said ‘I got two fingers in, actually one and a half almost two’. Ms Douglas asked the accused to leave the house.
The Defence Response
21The accused admits he touched Ms Casey on the vagina (alternative charge 3) but denies inserting his fingers into her vagina or touching her between the breasts. In relation to the charge of incest, the accused specifically denies placing his hand underneath Ms Casey’s underwear, putting his thumb between her labia majora and moving his thumb in a circular motion as alleged.
22Mr Douglas further denies telling Ms Teresa Douglas that ‘I got two fingers in, actually 1 and a half, almost 2’.
The charges: elements
23Before considering the evidence, it is necessary to identify the elements of the charges.
Charge 1
24The first charge is that the accused committed an indecent act with or in the presence of Ms Casey, a 17 year old child to whom he was not married and who was under his care, supervision or authority contrary to s 49(1) of the Act.
25In order to prove this offence, the prosecution must prove each of the following elements of the offence beyond reasonable doubt:
(i) the accused committed the alleged act;
(ii) the accused wilfully committed the alleged act;
(iii) the act occurred in indecent circumstances;
(iv) the act was intentionally done with or in the presence of the complainant;
(v)at the time the alleged act occurred, the complainant was under the care, supervision or authority of the accused;
(vi) the complainant was 17 years old when the act took place; and
(vii)the accused was not married to the complainant at the time the act took place.
26The first element relates to what the accused did; in other words, the prosecution must prove that the accused massaged the complainant between her breasts. The second element relates to the accused’s state of mind; that the accused wilfully or deliberately committed that act. For the third element, the prosecution must prove that the act occurred in indecent circumstances; that the circumstances involved a sexual connotation.
27The words ‘under the care, supervision or authority’ all describe different types of relationships where the accused is in a position to exploit or take advantage of that relationship. There does not need to be a formal relationship of care, supervision or authority for this element to be satisfied.
28In this case, there is no dispute the complainant was 17 years old at the time of the alleged offence, and was not married to the accused.
Charge 2
29The second charge is a charge of incest. In order to prove this offence, the prosecution must prove each of the following elements of the offence beyond reasonable doubt:
(i) the accused sexually penetrated the complainant;
(ii) the sexual penetration was intentional;
(iii)the accused and the complainant were in a prescribed family relationship; and
(iv) the accused knew about that relationship.
30The term “sexual penetration’ is defined[8] to include the introduction of a part of the accused’s body to any extent into the complainant’s vagina. Section 35 of the Act defines the vagina to include the external genitalia. It is not disputed that the labia majora are a part of the external genitalia of the vagina.
[8]See s 35 and s 35A of the Crimes Act 1958
31The sexual penetration must be intentional. It must be a conscious, voluntary and deliberate act.
32Pursuant to s 44 of the Act, the accused will be in a prescribed family relationship with the complainant if the complainant is the child or step-child of the accused. The fourth element of the offence requires the prosecution to prove the accused knows about that relationship.
Alternate charge 3
33It is only if the elements of the offence of incest are not proven beyond reasonable doubt that I need to consider the third charge, which is the alternative charge that the accused committed an indecent act in the presence of Ms Casey, a 17 year old child to whom he was not married and who was under his care, supervision or authority. The elements that the prosecution must prove for the alternative offence are identical to charge 1. The act alleged is touching Ms Casey on the vagina, which the accused does not dispute. It remains for the prosecution to prove each element of the offence.
Prosecution evidence
Ms Mary Casey
34The first witness called by the prosecution was the complainant, Ms Mary Casey, who gave evidence from a remote facility. I remind myself that the evidence of the witness must be given no greater or lesser weight for the fact it was given remotely. I also draw no inference adverse to the accused due to the fact the complainant gave her evidence from a remote location.
35Before the complainant’s evidence was adduced in the trial, I had regard to s 52 of the Jury Directions Act 2015 (‘the JDA’) regarding delayed complaint. I note that there may be good reasons why a person may not complain, or delay in complaining, about a sexual offence.
Examination in chief
36Ms Casey was born on 20 March 2000. She gave evidence that in June 2017, she was living with her mother and the accused in Koo Wee Rup. Her mother, Teresa Douglas had met Mr Douglas in 2010, when Ms Casey was around 10 years old. They married in 2012 and after they married, Ms Casey described Mr Douglas as a “fatherly figure” to her. She always called her step-father, ‘Dad’.
37On 2 June 2017, Ms Casey says that she went into the loungeroom after dinner to watch television. This was around 8.00-9.00 pm. Her mother was asleep in her bedroom. Ms Casey lay on the couch in the loungeroom and Mr Douglas joined her on the couch. At the time, Ms Casey was wearing loose-fitting tracksuit pants with an elastic waist band, that had previously belonged to her grandmother.
38At around midnight, Ms Casey says she was feeling really tired and was ‘falling in and out of consciousness’. She was on her right side lying on the couch facing the television. Mr Douglas was sitting on the right side of the couch with Ms Casey’s legs on top of his lap. He then began massaging her legs. Ms Casey says:
… he started on, like my ankles and he was massaging by just pressing in and out and moving up my legs.[9]
and
… gradually moved up my leg and then up my torso up to my breasts.[10]
[9] Transcript page 14, lines 17-19
[10] Transcript page 14, lines 25-26
39Ms Casey says she felt uneasy but does not remember saying anything at this point.
40Ms Casey says Mr Douglas then moved his hand on to the side and rubbed between her breasts, in the area of her cleavage, by running his hand up and down between her breasts. While doing so, Ms Casey says he curved his hand over the top of her breasts. Ms Casey demonstrated the action of Mr Douglas touching the top curve of her breast tissue as he ran his hand between her cleavage. She does not recall which hand he used. She says she felt uncomfortable while he did this.
41After rubbing between her breasts, Ms Casey says Mr Douglas brushed his hand down over her stomach area and then put his hand under her tracksuit pants and then under her underwear. When asked to describe the movement of his hand, Ms Casey stated:
… so he had put his hand through one of the opening leg parts of the underwear and put his thumb slightly in my vagina, in that motion.[11]
and
… there was no full penetrations into my vagina but it went in between the flaps on my vagina, but it was still in the side.[12]
[11] Transcript page 17, lines 10-12
[12] Transcript page 17, lines 19-21
42Ms Casey described the vagina flaps as ‘the outside parts of the vagina on each side’.[13] She says that Mr Douglas put his thumb ‘in between the flaps’ by a ‘couple of centimetres’ or by ‘one to two centimetres’.[14]
[13] Transcript page 17, line 31 and transcript page 18, line 1
[14] Transcript page 18, lines 4-9
43At this point, Ms Casey jumped up from the couch and said, ‘what the fuck are you doing’[15] to Mr Douglas . She then ran to her bedroom.
[15] Transcript page 18, lines 25-26
44Ms Casey tried to phone her boyfriend, Ed Parks. From 12.50am on 3 June she sent a series of text messages to Ed and at 12.53 messaged him to ‘please pick up’[16]. At 12.55 am she sent a further text message that read, ‘I think my dad tried to molest me’ followed by a text, ‘Don’t call the police’[17]. When she managed to speak with him, she told him she needed him to pick her up.
[16] Transcript page 20, line 30
[17] Transcript page 21, lines 14-16
45Whilst in her room, Ms Casey says Mr Douglas came to her bedroom door to apologise and she told him to get out. She was then collected by Ed and his mother and driven to their home in Pakenham. She says she was too traumatised to speak about what had happened. She received a text from Mr Douglas while she was in the car, but did not read it and did not reply to him.
46The next day she contacted her mother, Ms Douglas to tell her where she was. When her mother arrived at the house in Pakenham, she told her what happened ‘but not in detail’[18]. She says she did not want to tell her mother everything because she thought it would ruin her mother’s marriage.
[18] Transcript page 23, line 18
47Ms Casey was asked what she understood sexual penetration to mean when she was 17 years old. She answered that at the time she understood penetration to mean ‘penetration of the penis in the vagina’[19].
[19] Transcript page 18, lines16-17
48Soon after the incident, Ms Casey says she spoke to the police about the details she remembered, but cannot recall if she gave police detail regarding the act of penetration. She did not make a formal statement to police at that time, saying she was scared to do so, and that she needed to focus on her studies as she was in the middle of her VCE exams.
49On 14 March 2019, Ms Casey made a formal complaint to the police.
Cross-examination
50Ms Casey was asked about the complaint she made to police in June 2017. It was suggested to Ms Casey that she told police that she woke up and that Mr Douglas was rubbing the inside of her leg under her tracksuit pants. Further, that she told police she woke up fully to feel Mr Douglas with his hand down the inside of her underwear on her vagina but that he did ‘not insert anything’. Ms Casey answered that she could not remember telling the police either of these details. She agreed that she reported to police that she immediately got up and told Mr Douglas to ‘get the fuck off’ her.
51Ms Casey agreed it was important, when speaking with police, that she provide them with the detail of her complaint.
52However, it was suggested to Ms Casey that she did not tell police in June 2017 that Mr Douglas had touched her between the breasts with the side of his hand or that he inserted his thumb between her vagina flaps. Ms Casey agreed that, based on the account being put to her, she had not. She agreed with the suggestion that this was ‘the critical point’[20] of her complaint.
[20] Transcript page 30, lines 5-6
53Ms Casey also agreed that in her text to Ed, she stated that Mr Douglas had ‘tried’[21] to molest her.
[21] Transcript page 21, lines 13-15 and transcript page 30, lines 12-13
54Ms Casey also said she has never told her the detail of what happened to her, although she has a good relationship with her mother.
55Ms Casey was also asked about the statement she made to police on 14 March 2019. As to the detail of that complaint, Ms Casey was asked:
… So I just want to take you to the second sentence, ‘I think he turned me on my side and started massaging up my body. I remember he put his hand on my chest between my breasts.’ Do you see that sentence? ---Yes.
You didn’t mention at the time, did you, that he touched your breasts, did you? ----No
In fact, today is the first time that you’ve mentioned that, isn’t it? --- I believe so.[22]
[22] Transcript page 32, lines 19-26
56When it was suggested to Ms Casey that Mr Douglas never put his hand between her breasts and never put his thumb between the lips of her vagina, she replied, ‘yes, he did’.[23]
[23] Transcript page 32, lines 28 & 31
Re-examination
57Ms Casey said she did not believe the evidence she gave in court about the incident was any different to the events that occurred on 2 June 2017 or from when she spoke to police in 2019. Further, the prosecutor asked her if, at the time she made the complaint to police in 2017, she knew the elements of the offence of incest. She answered ‘No’[24].
[24] Transcript page 33, lines 20-21
Ms Teresa Douglas
58The second witness for the prosecution was the mother of the complainant, Ms Teresa Douglas. Ms Douglas gave her evidence from a remote facility, without objection.
Examination in chief
59Ms Douglas has two children, a son and a younger daughter Mary. Ms Douglas confirmed that Mary was born in March 2020. Ms Douglas commenced a relationship with the accused in 2009 and they married in 2012. They lived together as a family in a house in Koo Wee Rup.
60Ms Douglas says that, as far as she could tell, Mr Douglas considered Mary to be a daughter and that she referred to him as ‘dad’.
61On 2 June 2017, Ms Douglas recalls Mary’s boyfriend, Ed Parks came over to see Mary in the evening.
62Ms Douglas says she did not see Mary in the loungeroom with Mr Douglas later that night. This was because she usually took a sleeping tablet and went bed around 7.00 - 7.30pm each evening, as she had to wake up at 4.00am to go to work.
63When she woke on 3 June 2017 no one was in the house. She then checked her phone. At 5.11am she had received a text from Mr Douglas that read:
Hi hunny i am so so sorry.. I have gone and fucked things up really bad. Cant talk about it now but i will talk to you after work I love you xox[25]
[25] Exhibit 2, tendered 13 April 2021
64After receiving that text, Ms Douglas rang the accused at work but he said he would talk to her later. She then drove to Ed Park’s house in Pakenham and spoke to Mary who told her ‘she was asleep on the couch and woke to Marco’s hands down her pants’. Mary said she told Mr Douglas to get off her and that she went into the bedroom and called Ed to ask him to pick her up.
65Ms Douglas says that Mary did not go into any further detail about the incident. Ms Douglas was in shock and says she only ‘heard some of it but not all of it’[26]. She says Mary was ‘very, very upset, very upset[27]’ when she spoke about the events of the night before.
[26] Transcript page 43, lines 20-21
[27] Transcript page 43, lines 28-29
66Later on Saturday, 3 June 2017 Ms Douglas spoke to the accused. At first he asked her, ‘What did, what has [Mary] told you?’[28]. Ms Douglas told him ‘to worry about what you’re going to tell me [29]. Ms Douglas says the accused told her:
… he was rubbing [Mary’s] legs and that he put his fingers down her pants and he said, ‘I got two fingers in – actually, I got one and a half, almost two’[30].
[28] Transcript page 44, lines 10-11
[29] Transcript page 44, lines 13-14
[30] Transcript page 44, lines 16-19
67Ms Douglas says the accused also told her that he ‘did not expect that reaction’, that he ‘didn’t expect [Mary] to react like that’[31]. Ms Douglas told him to leave the house.
[31] Transcript page 44, lines 22-24
68Ms Douglas says she was shocked by what the accused told her, so she wrote it down later that evening and put it in a filing cabinet or briefcase. Ms Douglas identified the handwritten note, which read:
Two Act 1 ½ almost 2:
Didn’t expect that reaction![32]
[32] Exhibit 3, tendered 13 April 2021
69The following Monday or Tuesday, Ms Douglas went to the Pakenham police station and explained what happened to her daughter. An appointment was made to attend the sexual offences unit in Dandenong shortly after. Ms Douglas says she accompanied Mary to that appointment, together with Ed.
70Ms Douglas was asked whether she provided the Dandenong police with a copy of the handwritten note. Ms Douglas says she told the police about the note, but could not produce it because it was at home. She later found the note and sent a photo of it to the informant.
71Ms Douglas said the accused was taking Lyrica medication for pain in June 2017, as was she, but that he appeared ‘fine, normal’[33] on the evening of 2 June 2017.
[33] Transcript page 49, line 2
Cross-examination
72Ms Douglas was questioned about the discussion with the accused and agreed that she understood the accused was referring to digital penetration when he said he ‘got two fingers in – actually 1 ½ almost 2’. She also agreed that when he told her this she was horrified and would not be likely to forget the comment.
73Ms Douglas was then asked about what she told the Dandenong unit of the police in June 2017, and was read parts of the Interpose notes of that discussion:
And in those notes the detective made the following note of what you told her okay? That [Teresa] has confronted [Douglas] asking her (sic) what happened. He made admissions to her, stating that he was sitting on the couch with … the complainant, that’s your daughter. That the comp fell asleep and he started rubbing her leg, that he started to insert a finger into her vagina but then she woke up and he realised what he was doing. Do you remember that? --- I can’t recall.
There’s no actual mention in there of you telling the detective ‘I got two fingers in – actually one and a half, almost two’. No mention of that at all, is there?--- No there isn’t that I am aware of.[34]
[34] Transcript page 50, lines 29-31 and transcript page 51, lines 1-10
74Ms Douglas also agreed she made no reference to that conversation or the handwritten note when she made her statement to police on 17 March 2019. She was not sure whether she first referred to the note when she made a subsequent statement to police on 16 September 2019.
75Based on this evidence, it was suggested to Ms Douglas that the note never existed until 17 March 2019. Ms Douglas denied that. It was suggested to Ms Douglas that the accused never said anything of the sort and never told her that he digitally penetrated her daughter, to which Ms Douglas responded, ‘that is incorrect’[35].
[35] Transcript page 52, lines 27-29
76Ms Douglas was not re-examined.
Ed Parks
77Ed Parks was the complainant’s boyfriend in 2017. On 2 June 2017 he says he went to Mary’s house and had dinner with her family before returning home between 7.00 and 8.00pm.
78After he went to sleep that night he received a call and texts from Mary. When he spoke with her on the phone, Mary told him that her stepfather had tried to sexually assault her, but he could not remember her exact words. She asked him to pick her up.
79Ed’s mother drove him to Mary’s house and they drove her back to their home in Pakenham. He says that she presented as pale, barely moving and not her normal self; that she ‘always used to be nice, bright, bubbly, willing to talk about anything to anyone for hours. She was just pale, barely moving, very straightforward’.[36] When the complainant was in the car on the drive to his place, Ed says she was ‘just as still as a rock’[37], showing no emotion at all.
[36] Transcript page 57, lines 29-31 and transcript page 58, line 1
[37] Transcript page 58, line 13
80Ed says that when they arrived at his house, Mary told him that the assault ‘started as like a massage on her thigh’ ‘that moved to her vagina after’.[38] Apart from providing that general statement, Ed says he does not remember Mary providing any other specific detail.
[38] Transcript page 58, lines 26-27 & 31
81Under cross-examination, Ed confirmed that he could not remember Mary ever telling him any other details about what she says happened to her that night. He confirmed that she told him in a text that, “I think my dad just tried to molest me[39]’ and that he can only remember her saying that it started off as a massage on her thigh and then moved closer to her vagina.
[39] Exhibit 1, tendered 13 April 2021
Detective Senior Constable Richard Kelly – the informant
82Detective Senior Constable Kelly (‘the informant’) has been stationed at the Dandenong Sex Offence and Child Investigation Unit for the past three years. On 4 March 2019 he was allocated the investigation of this matter.
83The informant confirmed that the initial contact made by the complainant and her mother with police was on 8 June 2017. The informant’s evidence is that an ‘initial disclosure interview’ is conducted to ascertain whether an offence has been committed, at which point ‘we normally stop the – um, not go into any finer grain detail from there’.[40] The initial disclosure interview is recorded in the notes of the police officer and then typed into the Interpose system.
[40] Transcript page 68, line 31 and transcript page 69, line 1
84The Interpose entry of the initial disclosure made by Ms Casey on 8 June 2017 includes the following:
On Friday 2 June 2017, comp was lying on the couch watching the movie ‘BabyBoss’ with her stepfather, [Marco DOUGLAS]
Comp was falling in and out of consciousness
Comp woke up, to feel [DOUGLAS] rubbing the inside of her leg, under her tracksuit pants, but still described herself as half-asleep at this time
Comp has woken up fully to feel [DOUGLAS] with his hand down inside her underwear, on her vagina – but described him as ‘not inserting anything’
Comp has gotten up and told him to ‘get the fuck off her’ or similar, and has gone into her bedroom….[41]
[41] Exhibit 4, tendered 14 April 2021
85The Interpose record also includes a reference to the discussion between Ms Douglas and the accused following the incident:
[Teresa] has confronted [DOUGLAS], asking what happened – he made admissions to her, stating that he was sitting on the couch with the comp. That the comp fell asleep and he started rubbing her leg; that he started to insert a finger into her vagina, but then she woke up and he realised what he was doing. Blaming his actions on meds he is taking.[42]
[42] Exhibit 4, tendered 14 April 2021
86The Interpose note further records that neither the complainant or her mother wanted to make a formal statement or to pursue a criminal investigation at that time, but sought an intervention order. It also records that the complainant and her mother provided text messages, that had been screenshot, of the accused sending apologies to them.
87The Informant took a statement from the complainant on 14 March 2019.
88He was asked about the statement he took from Ms Douglas on 17 March 2019 and her subsequent statement on 16 September 2019. The informant says that the subsequent statement was made after Ms Douglas produced the handwritten note she says she made of her conversation with the accused. The informant says this was not included in her initial statement as Ms Douglas had not produced a copy of the note at that time, although he says they did have a ‘small conversation about it’[43] then.
[43] Transcript page 72, lines 23 & 24
89The informant conducted a recorded interview with the accused on 2 May 2019. During the interview, the accused was shown a screenshot of a text message he agreed he sent to Mary on 3 June 2017 at 1.03am:
[Mary] i am so so sorry i have fucked up big time please think about how really bad this is and i can not be any more sorry for what i have done there is no excuse. Just please think about how this will ruin all of, i know that this is all my fault but i hope that you and i can get through this somehow.[44]
[44] Exhibit 5, tendered 14 April 2021
90The informant was not cross-examined.
The accused’s record of interview
91In his record of interview, the accused is asked to describe what happened on the night of 2 June 2017. The accused said he was taking Lyrica for back pain, and that he ‘probably had about 13 or 14 of those tablets leading up’ to the incident and that he ‘was quite incoherent’[45]. After driving Mary’s boyfriend home, the accused says he and Mary returned home at about 10.30 – 11.00pm. He states:
…everything was fine. We were talking about where they were going to uni and everything, blah blah blah. Everything was good and then obviously we got home. My ex-wife [Teresa] had gone off to bed like she always does – or she always did. She was always taking sleeping tablets and there wasn’t much intimacy or connection there through the relationship, but that’s another story. Anyway, we were sitting down to watch a movie. We were watching a movie together – in the lounge room and I think I’d – I must’ve gone and went and hand another couple of tablets, just to top up so I wasn’t in pain. And from then – from then I think I was rubbing her legs while she was lying down on the couch with her legs over me and from there it was a case of I – I – I dunno. I don’t even know, to be honest. It – it was – more of a case of, well, I didn’t know where I was at that point in time. I can’t say that I was actually in control of – of anything I was doing, but I was – I was quickly stopped by [Mary]. I think by that time, when – I think when she sort of kicked and sort of said “Get away from me “ I think my hands were in her pants, but that was it.[46]
[45] ROI, Q & A 41
[46] ROI, Q & A 41
92In the interview, the accused said he always loved Mary, that he ‘took her in as my own’.[47] When asked about the nature of his relationship with Mary, Mr Douglas said:
… Look, I – I thought – to me it was like any normal one.
and
[47] ROI, Q & A 42
… I think about two months – two months into being together, [Mary] asked [Teresa] if – like, “What do I call him? Do I call him [Marco] or do I call him dad?” and then she said, “Well that’s something you have to talk to [Marco] about. “ So we had that talk. So [Mary’s] only 10 at this stage, you know. “What do I call you, [Marco] or dad?” I said, “Well, that’s up to you. That’s – that’s on you. If you want to call me [Marco] , that’s fine. If you want to call me dad, that’s fine, but then I’m dad from now . Don’t get shitty with me and call me [Marco] later on down the track, because I’m dad. So we put that on her, yeah. So she took that on board. That was fine, that was the best thing in my life. Always wanted a family, yeah.[48]
[48] ROI, Q & A 231
93When he was asked about putting his hand between her breasts as part of the massage, Mr Douglas said:
No, I can’t. I don’t recall that[49]
[49] ROI, Q & A 308
94When asked why it had been alleged that when he put his hand down her pants, his finger ‘has been placed onto the outside of the vagina and it has rubbed her vagina’, Mr Douglas said:
No, I can’t. No, I can’t. All I can recall from that is the force of her lifting and, “Get away from me”.[50]
[50] ROI, Q & A 311
95Mr Douglas was also asked in the interview whether, in a conversation with Ms Douglas, he told her that ‘I got two fingers in, actually it was one and a half, almost two’. Mr Douglas replied, ‘No way’… ‘ a hundred percent no’.[51] Mr Douglas added:
… But no, those words weren’t said. I don’t know anything about putting my hands between her breasts, I don’t know anything about putting my fingers inside her. I know about massaging her, I know about watching a movie and having my hands down her pants and under her underpants when she’s – go – sorry, the chair’s not up – when she said, “Get away from me” and – and rushed out of the room and shut the door.[52]
[51] ROI, Q & A 318 & 319
[52] ROI, Q & A 321
96When asked if he had anything else to say about the allegations, Mr Douglas said:
No, no I haven’t. I’m – I’m quite taken aback by them and I’m quite annoyed by it, but on the same night, I can’t coherently say what did or didn’t happen from there. All I know is that my hand went in her pants, no further. Whether these things happened before that, I – I don’t know, but all I know coherently is my hand was in her pants, that was it.[53]
[53] ROI, Q & A 337
97Finally, the accused was asked which part of her body he was touching when he put his hand under the complainant’s underwear. Mr Douglas said:
341 Yep, And did you go over or under the underwear?
To my – to my knowledge, my hand was underneath her underpants.
342 Mm’hm. An what part of her body were you touching?
Her – here. So her stomach.
343 Her stomach?
Well, her pants --- were at her – at her hip
346 Mm’hm
At her hip. I – I don’t know. I – I’m – I’m speculating these things.
and further,
350But then in the same instance you’ve said that her pants were down her waist, but you’re saying that your hand was on her stomach. That’s not anatomically correct, so ---
Well, there.
351 Yeah.
Whatever you want to – whatever you want to call that.
352 Yep
Yeah. What would you call that part of the body. I don’t know.
352 I – I would call that the pubic area
Ok.
353 Well, what do you have to say about that?
Yeah, I guess that’s where my hand was. When, she sort of kicked and said, “Get away from me”, - and ran off, to me that was – that was as far as the incident went, so ----
JDA – Section 41
98At the conclusion of the prosecution case, the defence did not call evidence and the accused did not give sworn evidence. That is his right. The onus of proving the accused’s guilt beyond reasonable doubt always remains on the prosecution, regardless of whether the accused chooses to give evidence. The fact Mr Douglas did not give evidence cannot be used as evidence against him and is not an admission by him. It cannot be used to fill gaps in the prosecution case. It does not add to or strengthen the prosecution case in any way. I have not drawn any inferences against the accused for not giving evidence and have not speculated about what he may have said. I have decided this case solely on the evidence given in Court.
Crown closing address
99In his final address, Counsel for the prosecution, Mr Devlin, submitted that the complainant Ms Casey was a credible and reliable witness who gave clear, direct evidence without exaggeration or embellishment.
100The evidence of others that Ms Casey was distressed and reacted strongly immediately after the sexual assault is, the prosecution argues, evidence consistent with the allegations, and demonstrates that this is the type of act that ‘permeates the memory’ of a 17 year old.
101The prosecution submitted that the record of the Interpose notes do not constitute a prior inconsistent statement: that it is not surprising the complainant told police that the accused had ‘not inserted anything’ when viewed in light of Ms Casey’s evidence that at the time of the incident she understood penetration to mean penile/vaginal penetration. Mr Devlin contended this evidence was relevant in two ways; first in determining whether the Interpose notes contain a prior inconsistent statement and secondly, in considering whether the prosecution has proved charge 2 beyond reasonable doubt.
102Further, the prosecution relies on the evidence of Ms Teresa Douglas of her conversation with the accused, in particular, the evidence of Mr Douglas telling her on 3 June 2017 that he was ‘rubbing [Mary’s] legs and that he put his fingers down her pants and said, ‘I got two fingers in – actually, I got one and a half, almost two’. The prosecution accepts this evidence is disputed and that in his record of interview, the accused denied saying those words but contends I should accept the evidence of Ms Douglas, who also gave clear, measured evidence.
103The prosecution addressed the evidence of Mr Douglas’ record of interview. In his closing address, Mr Devlin reviewed the evidence contained in the interview in detail. Ultimately, the prosecution submits that I can find much of what Mr Douglas says to be disingenuous and fundamentally, unbelievable. That he goes to lengths to ‘water down his misconduct’; citing for instance, where Mr Douglas demonstrates where he touched Ms Casey under her pants by placing his hand on his stomach. Moreover, that there are numerous instances where he denies any memory of what occurred, particularly when he was questioned about ‘critical aspects’ of the allegations.
104The prosecution urge me to consider the whole of the record of interview. It is submitted I should find that it is not a genuine or truthful account, and that if I do, I should then set it aside and return to examine whether the Crown has otherwise proved its case beyond reasonable doubt based on the evidence I do accept.
105The principal submission made by the Crown is that the complainant’s evidence was wholly believable, credible and that I can accept Ms Casey was a witness of truth and accordingly find both charge 1 and charge 2 proved beyond reasonable doubt.
Defence closing address
106Mr Kelly submitted that the only way to find the accused guilty of charges 1 and 2 would be to find that Ms Casey was a witness of truth and reliability.
107While Mr Kelly agreed that Ms Casey presented as an honest and credible witness, he argued that I could not be satisfied of the reliability of her evidence; that is, that she correctly and accurately recalled the events of the 2nd and 3rd June 2017.
108In making this submission, the defence emphasised the inconsistency between the evidence of Ms Casey at trial and the complaint she made to police in June 2017 where the Interpose notes record, as a direct quote, Ms Casey saying the accused ‘did not insert anything’. Mr Kelly submits it makes no difference that Ms Casey may not have understood the legal meaning of ‘penetration’ at the time. He says the interviewing police, from the sexual offences unit, did. Mr Kelly submits this is clearly a different version of the complaint and that, notably, it is not until close to two years later that the complainant alleges an act of penetration on the night.
109The defence further submits that the evidence of Ms Teresa Douglas of the accused telling her he ‘got two fingers in – actually, I got one and a half, almost two’ should not be accepted. Mr Kelly pointed to Ms Douglas’ evidence that she was horrified by the conversation, and that this was a phrase she was not likely to forget and submits this raises a question about why she would then write it down on an undated note. Further, that if the accused made that statement, it is improbable Ms Douglas would not then include it in her first statement to police. Mr Kelly submits that the accused gave a credible denial when asked if he said these words in his record of interview.
110Fundamentally, Mr Kelly submits that I should have a doubt about the credibility of the evidence of the alleged admission and further argues that it does not bolster the complainant’s account, which is that the accused put his thumb and not fingers between her labia majora.
111The defence referred to the evidence of Ms Casey’s complaints to her mother and to her boyfriend, again giving different accounts of the alleged offending. Ms Casey told Ms Douglas that ‘she woke up to [Marco’s] hands being down her pants’. She told Ed Parks that her father ‘tried’ to sexually molest her. These statements, both made proximate to the incident, differ significantly to the complaint’s evidence and are consistent with a reasonably hypothesis consistent with innocence, that the accused sexually assaulted the complainant without penetration.
112Whilst the defence accepts there is credible evidence that Ms Casey was distressed following the incident, Mr Kelly submits that this evidence is equally consistent with the complainant waking to find Mr Douglas putting his hand down her pants, and no more.
113Finally, the defence submissions outlined instances in Ms Casey’s evidence where her memory of the events of the evening of 2 June 2017 were, at best, foggy. For instance, Ms Casey denied that her boyfriend, Ed Parks came to her home at all that night. The defence say this is clearly an error and submit that if the complainant is wrong about that particular recollection of the evening, then it is not possible to safely conclude she has accurately and reliably recounted the other events of that night. The defence submissions emphasised the prosecution onus is never met by one account being preferred over the other.
114Ultimately, the defence submitted that even though I may find Ms Casey was a credible witness, I cannot assess her evidence to be an accurate, reliable and correct account of the alleged events, and that accordingly the proper verdict on charges 1 and 2 is not guilty.
Other directions of law
Multiple charges
115In this trial the prosecution has brought two charges against the accused. He has pleaded not guilty to both charges. While these are separate matters, they have been heard together in one trial for convenience given they arise from the same set of circumstances. Both the prosecution and the defence are entitled to have each charge considered separately.
116It would be wrong therefore, if I were to find the accused guilty of one of the charges to reason that because he engaged in that misconduct he is the kind of person who is likely to have committed the other charged offence. This is particularly important in this case, because Mr Douglas has pleaded guilty to charge 3, the alternative to charge 2. I cannot use that fact to reason that because Mr Douglas engaged in the misconduct that constitutes charge 3, he is the kind of person to commit either of the other two offences charged.
117Each charge must be considered separately in light only of the evidence that applies to it.
Verdicts solely on the evidence
118As stated, I must decide the case only on the evidence led in the trial. I must determine the credibility and reliability of each witness called and I may accept all, some or none of a witness’ evidence. I must base my verdict only on evidence I find to be credible and reliable.
119As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it logically and dispassionately and not let emotion or prejudice enter the decision-making process. Both the prosecution and the accused are entitled to have my verdict free of partiality or prejudice, favour or ill-will.
120I may only return a verdict of guilty if I am satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilty beyond reasonable doubt and I must acquit him.
Complaint evidence
121I may use the complaint evidence in two ways.
122First, as proof of the truth of the facts asserted in the complaint; and secondly, to assess the credibility and reliability of the complainant by showing that her account of the events in question has been consistent. Evidence of complaints made by the complainant is not however, independent evidence of the offence.
Distress
123It is submitted that the evidence that Ms Casey was distressed when she was picked up by Ed Parks in the early hours of 3 June 2017 and was ‘very, very upset’ when she spoke to her mother, Ms Douglas later that day.
124Evidence of the complainant’s distress shortly after the alleged sexual offence may be admitted as circumstantial evidence that independently supports the complainant’s evidence and my be used as circumstantial evidence where it is reasonably open to infer that there as a causal connection between the alleged offending and the distress.
125Distress evidence may also form part of the narrative when evidence is led of a previous complaint. Such evidence may support the matter described in the complaint, because it is common human experience that the recounting of a stressful experience can be accompanied by outward expressions of distress.
126I bear in mind that signs of distress may result from any number of possible causes; it may have been caused by the sexual assault as asserted, or it may have been caused by some other factor.
Prior inconsistent statement
127It was submitted that Ms Casey made prior inconsistent statements. If I accept the statements were made, then a prior inconsistent statement can be used in two ways.
128First, I may use the contents of the statement as evidence in the case; and secondly, if I find that Ms Casey’s statement is inconsistent with her account in court, I may use the statement when assessing her credibility and reliability.
129If I find that Ms Casey has made a previous statement which is inconsistent with her evidence in court, I will have two different accounts from the same witness. It is a matter for me to determine which account, if any, to believe.
Differences in complainant’s account
130It was submitted there have been differences, that is, variations or inconsistencies, in what Ms Casey has said on different occasions.
131I may use a difference in Ms Casey’s account when assessing her credibility and reliability. When assessing the evidence, I must be mindful that experience shows that:[54]
[54] Section 54D, JDA.
(a)people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time;
(b)trauma may affect people differently, including by affecting how they recall events; and
(c)it is common for there to be differences in accounts of a sexual offence; for example, people may describe a sexual offence differently at different times, to different people or in different contexts;
(d)Both truthful and untruthful accounts of a sexual offence may contain differences.
Record of Interview
132In this case, there is a clear conflict between the evidence of Ms Casey and what the accused told police in his record of interview where he denied the allegation that he massaged the complaint between her breasts or inserted a finger in her vagina.
133It is not necessary for me to accept what Mr Douglas said in his record of interview in order to find him not guilty.
134In keeping with the requirement that the prosecution must prove its case beyond reasonable doubt, I must acquit Mr Douglas if I find what he said in his record of interview gives rise to a reasonable doubt. This is the case even if I prefer the evidence of Ms Casey to the denials made in Mr Douglas’ record of interview.
135If is not sufficient that I merely find the prosecution case preferable to the defence case. Before I can convict Mr Douglas, I must be satisfied that the prosecution has proven its case beyond reasonable doubt. So even if I think Mr Douglas is not telling the truth in his record of interview, I must then put that to one side and ask whether the prosecution has proved his guilt beyond reasonable doubt based on the evidence I do accept. This is consistent with the onus of proof being on the prosecution at all times. It is never on Mr Douglas.
Analysis
136As stated, the central issue in the case is whether the prosecution has proven, beyond reasonable doubt, that the accused committed the acts alleged. Put another way, whether in respect of charge 1, I am satisfied beyond reasonable doubt the accused massaged the complainant between the breasts and in respect of charge 2, that he inserted his finger or thumb to any extent into the complainant’s vagina. The other elements of the two offences are not disputed. In other words, the defence did not make any submission to the effect that the complainant’s evidence, if accepted as credible and reliable, was incapable of proving all the elements of both offences.
137I turn first to the accused’s record of interview. In assessing this evidence the issue is not necessarily whether I accept the truthfulness and reliability of his answers. However, if I am satisfied the answers he gave were truthful and reliable, he would automatically be entitled to an acquittal on charges 1 and 2.
138The essential test is whether, taking into account all of the evidence in the case, including the evidence of the accused’s record of interview, I am satisfied beyond reasonable doubt of his guilt.
139If I reject the evidence given in the accused’s record of interview that does not, of itself, have the consequence that I should find him guilty of any of the offences charged. Rather, in that event, the question remains whether, apart from the evidence of the record of interview, and putting it to one side, the prosecution has proven the guilt of the accused beyond reasonable doubt.
140The prosecution appropriately accepted that, in his record of interview dated 2 May 2019, the accused denies massaging the complaint between her breasts, saying:
308 No, I can’t. I don’t recall that
and further,
321 I don’t know anything about putting my hands between her breasts…
141The accused also denied the allegations of penetration, saying:
311 …that while your hand was in her pants it has gone – been – your finger has been placed into the outside of the vagina and it has rubbed her vagina?
No, I can’t. No, I can’t. All I can recall from that is the force of her lifting and “Get away from me”.
and
321 … I don’t know anything about putting my fingers inside her.
and
337 … All I know is that my hand was in her pants, no further.
142The accused also denied telling Teresa Douglas that he ‘got two fingers in. Actually it was one and a half, almost two’. When this statement is first put to him, he responds:
318 No way
and further,
319 No, nuh. A hundred per cent no. No, that’s all I can say. No, that was not said…
143The plausibility of these denials must be considered in light of the entirety of the accused’s record of interview.
144Considered in its entirety, the accused’s record of interview is replete with answers in which he either downplays, minimises or distances himself from any responsibility for his conduct or asserts that he has no memory of allegations, particularly the more serious allegations.
145When first asked to provide as much detail about what occurred on the night, the accused first tells police about being medicated with Lyrica and that he was ‘taking those tablets like candy, so through that - the course of that day, I think I probably had about 13 or 14 of those tablets leading up to that incident, yep, so I – I was quite incoherent’[55]. He then continues:
[55] ROI, Q & A 41
We were watching a movie together in – in the lounge room and I think I’d – I must have gone and went and had another couple more tablets, just to top up so I wasn’t in pain. And from then – from then I think I was rubbing her legs while she was lying down on the couch with her legs over me and from there it was more a case of – I – I – I dunno. I don’t even know, to be honest… I can’t say I was actually in control of – of anything that I was doing, but I was – I was quickly stopped by [Mary].[56]
[56] ROI, Q & A 41
146Another instance of the accused minimising his conduct or asserting no memory of his conduct is when asked if he was rubbing the complainant’s legs above or below her clothing, to which he answers:
141 Oh look, I couldn’t tell ya. I couldn’t tell ya. I’d say above, at the start, but clearly I ended up under it, you know. So clearly one thing led to another.
147The accused was then asked to give as much detail as he could about when he then realised his hand was in her underpants. Again, the answer he gives improbably asserts no knowledge of how that occurred, saying:
144 … there, I don’t – from there to there, I don’t – I don’t remember …. like I said, [Teresa] was always going off to bed, so it was more of a connection with [Mary] and I growing up in the family unit. So you know, there was already that connection there. But after taking the tablets, you know, I – I don’t know – I don’t know how I got from there to there…
148When asked if he had anything further to say about the allegations, the accused repeats that he was incoherent on the night, saying:
337 No, no I haven’t. I’m – I’m quite taken aback by them and I’m quite annoyed by it, but on the same night, I can’t coherently say what did or didn’t happen from there. All I know is that my hand was in her pants, no further. Whether these things happened before that, I – I don’t know, but all I know coherently is my hand was in her pants, that was it.
149The most significant instance of the accused dissembling and seeking to minimise his misconduct is the sequence of answers he gives when asked where he touched the complainant under her pants. The evidence commences at question 338 of his record of interview. Although I refer to the answers given, I have also viewed the audio-visual recording of the interview and the gestures of the accused when indicating where he touched the complainant.
338 … So tell me everything about you having your hand in her pants, form what you remember.
From what I remember, if that’s – if that’s the trousers of her pants… that there, my hand was probably say, there and I was sitting here and her legs – yeah. Ant then that – that was it.
[Accused gestures by placing his hand on his lower stomach]
339 So how far did your hands go into her underpants?
Oh, it was there.
…
342 Mm’hm. And what part of her body were you touching?
Her – here. So her stomach.
343 Her stomach?
Yeah.
344 So how high was her ---
Well, her pants --- were at her – at her hip. I – I don’t know. I – I’m – I’m speculating these things
…
348 So you have just told us that you – your hand was past her waistband ---
350 But then in the same instance you’ve said the her pants were down her waist, but you’re saying that your had was on her stomach. That’s not anatomically correct, so ---
Well, there
[accused gestures to upper pubic area]
351 Yeah.
Whatever you want to call that part of the body? I don’t know.
353 I would call that the pubic area.
OK.
354 Well, what do you say about that?
Yeah, I guess that’s where my hand was. When – when she sort of kicked and said, “Get away from me” and – and ran off, to me that was – that was as far as the incident went, so ----
150Viewed in its entirety, I consider the answers given by the accused in his record of interview to be implausible. He repeatedly seeks to deflect responsibility for any misconduct for instance, by referring to excessive amounts of medication taken on the night. Further, the accused improbably denies a clear memory of how the offending occurred, for instance, not knowing how his hand ‘got from here to here’ and most significantly, downplays any misconduct, most notably when asked to indicate where he placed his hands under the complainant’s pants. I consider the answers given by the accused in his record of interview lack credibility and cannot be safely relied upon to found a reasonable doubt.
151I must therefore set aside the evidence of the accused’s record of interview and assess the prosecution case to determine whether, on the basis of evidence I do accept, it has proved the guilt of the accused beyond reasonable doubt.
152I turn now to analyse the complaint evidence and the defence submissions that Ms Casey’s previous complaints are inconsistent with the evidence she gave in court, and therefore undermine the reliability of her account.
153The Dictionary in the Evidence Act 2008 (Vic) defines a ‘prior inconsistent statement’ as a ‘previous representation that is inconsistent with the evidence given by the witness’. On its face, the Interpose note of the complaint made by Ms Casey on 8 June 2017 where it is recorded she said Mr Douglas placed his hand inside her underwear and on her vagina, but did ‘not insert anything’ is inconsistent with the evidence given by the complainant in court.
154Further, although Ms Casey makes a complaint to Ed Parks and then her mother shortly after the incident, in her text to Ed she says she ‘thinks my dad just tried to molest me’, and then told him that the accused began to massage her thigh, ‘that moved to her vagina after’. Ms Casey told her mother that ‘she woke up to [Marco’s] hands down her pants’ but beyond that, made no further complaint to her mother.
155The question for me is whether these inconsistencies undermine the credibility or reliability of Ms Casey’s account. Turning first to the complaints she makes to Ed Parks and her mother. The complaint evidence should be considered in the context in which Ms Casey makes the complaints. Ms Casey has run to her room, and tried to contact Ed Parks by phone, so he would pick her up. When she texts him stating ‘I think my dad just tried to molest me’ she is not intending to detail her complaint. She is trying to make contact with him. Consistent with Ed Park’s evidence of her demeanour in the car, she is not forthcoming at all about what just occurred. To the contrary, she remained silent in the car, ‘still as a rock’. I do not consider the fact she did not fully detail her compliant to her boyfriend at the time undermines the reliability of her account. I accept Ms Casey’s evidence that she was traumatised at this point.
156Nor did Ms Casey make a full disclosure to her mother the next day, despite having a good relationship with her. In fact she said very little to her mother about the incident, beyond telling her that ‘she woke up to [Marco’s] hands down her pants’. Ms Casey gave credible evidence that she was concerned about the impact her disclosure would have on her mother’s relationship with Mr Douglas. I remind myself that people may describe a sexual offence to different people differently at different times. Having regard to the circumstances in which these complaints were made, I do not consider the fact they are only partially consistent with Ms Casey’s evidence does not undermine the credibility or reliability of her account, having regard to the entirety of the evidence.
157I turn now to the question of whether the inconsistency in Ms Casey’s evidence and the Interpose report of her complaint in June 2017 undermines the reliability of her account such as to give rise to a reasonable doubt. In my view there are two reasons why it does not. Firstly, the unchallenged evidence of the informant is that this was an initial disclosure discussion, the purpose of which is to determine whether an offence has occurred. The informant’s evidence is that once that occurs, ‘we will then normally stop the – um, not going into any finer grain detail from there’. The disclosure interview is not intended to record a comprehensive and detailed statement by the complainant.
158Secondly, I consider it entirely plausible and credible that Ms Casey, being a lay person of 17 years of age, would comprehend penetration or ‘insertion’ into the vagina as a reference to penile/vaginal penetration. In this context, I do not consider the fact she made no reference in her disclosure interview to the accused putting his thumb inside the outer genitalia of her vagina undermines the credibility or reliability of her evidence of that act of penetration. I further note there was no suggestion made that Ms Casey’s account was, in that regard, inconsistent with her formal complaint to police in March 2019.
159On the other hand, I attach no weight to the evidence of Teresa Douglas insofar as she states the accused told her he inserted ‘two, actually one and a half, almost two fingers’ as an admission of his misconduct. First, there is no reference at all to this evidence in either the Interpose notes made in June 2017 or Ms Douglas’ first statement to police in March 2019. Although the note, undated, was not produced until September 2019, that fact alone does not explain the absence of any reference to this evidence until September 2019. Secondly, and more fundamentally, the evidence itself is not consistent with, and does not corroborate, the account of the complainant. Ms Casey’s evidence is that the accused put his thumb between her ‘vaginal flaps’ and no more. It is not part of the Crown case that the accused inserted his fingers in her vagina.
160The evidence of Ed Parks and Teresa Douglas is that Ms Casey demonstrated signs of distress shortly after the incident. Ed Parks describes her, in the car leaving the house, as ‘still as a rock…showing no emotion at all’, unlike her usual ‘bright, bubbly’ self. Ms Douglas says, when she arrived the following day, Ms Casey was ‘very, very upset’ when she told her what happened the night before. I am satisfied that the evidence of Ms Casey’s distress is indirect evidence that supports an inference there was a causal connection between Mr Douglas’ actions and her emotional reaction. However, the evidence of her distress is not a basis upon which I can conclude or infer that the accused penetrated her in the manner alleged or touched her breasts and I do not do so.
161Although Ms Casey delayed, or more accurately, deferred making a formal complaint to police following her initial disclosure in June 2017, in this case she gave compelling evidence of the reasons for the delay. Firstly, she was concerned about the impact of the events on her mother’s relationship and secondly, she needed to focus on her VCE studies. Ms Casey was not challenged regarding the reasons she gave for the delay in reporting.
162Ms Casey was a compelling and credible witness. I form this view having had the advantage of hearing the answers she gave on oath and of observing her demeanour while giving that evidence. She was not a witness prone to exaggeration or embellishment. She did not deviate in her account under cross-examination. Her evidence was given in a measured and considered manner, that revealed no malice towards the accused. To the contrary, Ms Casey was forthcoming when asked to describe her relationship with the accused prior to the incident; volunteering that he was ‘like my stepfather, a fatherly figure to me’.
163It is true that Ms Casey’s memory of certain aspects of the evening was poor. For instance she said she ‘did not believe’ she saw Ed that day, that she was “not too sure’. This is inconsistent with the weight of the evidence of the other witnesses, Ed and Ms Douglas included, that Ed attended the house that night for tea and then went home. However, the fact that Ms Casey may not be able to recall this detail close to four years later, does not lead me to conclude that I can have no confidence her evidence of the offending is reliable. As I stated, Ms Casey was unequivocal and consistent in her evidence, including when tested under cross-examination, that Mr Douglas touched her breasts, then brushed his hand down under her pants and put his thumb between her ‘vaginal flaps’; simply and clearly stating, ‘Yes, he did’ when challenged on that evidence. I consider the evidence of Ed’s presence in the house earlier in the evening is not necessarily a detail Ms Casey would hold in her memory, in contrast to an instance of sexual abuse perpetrated by her step-father.
164Further, there is no basis for me to conclude that Ms Casey’s evidence was contaminated or embellished by her discussions with others, including with her mother, Ms Douglas. To the contrary. For instance, Ms Casey did not calibrate her account of the offending in a way to align it with Ms Douglas’ evidence the accused telling her he inserted ‘one and a half, almost two’ fingers’ in the complaint’s vagina. Ms Casey maintained, including under cross-examination, that the accused put his thumb between her ‘vaginal flaps’ and no more.
165It follows from the foregoing that I find Ms Casey both a credible and reliable witness. I accept her account of the accused massaging between her breasts, touching the top breast issue as he did so, and then putting his hand under her pants, inside her underwear and putting his thumb inside her labia majora, ‘slightly’ by a one or two centimetres. Penetration of the vagina occurs when the outer genitalia are penetrated ‘to any extent’. It follows that I do not consider the evidence, both direct and indirect, gives rise to any other inference that is consistent with innocence.
166As stated, the defence did not dispute or challenge the Crown case in respect of the other elements of the two offences.
167As to charge 1, I am satisfied that the prosecution has proved the following elements of the offence beyond reasonable doubt:
(a) that the accused massaged the complainant between the breasts, in the region of her cleavage and that as he did so, he touched her breast tissue;
(b) that this was wilful, or deliberate conduct; particularly having regard to the evidence of his massaging her legs, then up to her breast area, and then brushed his hand down under her tracksuit pants and under her underwear and put his thumb between her labia majora;
(c) that in doing so, the act occurred in indecent circumstances, particularly having regard to the fact that it occurred immediately preceding the accused putting his hand under her underwear;
(d) there being no evidence or argument that the conduct was accidental, I can be satisfied the act was intentional;
(e) that Ms Casey was under the care, supervision or authority of the accused, there being no dispute or challenge to the evidence that Ms Casey was the accused’s step-daughter, that it was a normal family relationship and that Ms Casey viewed him as a ‘fatherly figure’ and called him ‘dad’ and as a result, was in a position to take advantage of that relationship;
(f) that Ms Casey was 17 years old at the time and was not married to the accused.
168As to charge 2, I am satisfied the prosecution has proven, beyond reasonable doubt, the following elements of the offence of incest:
(a) that the accused sexually penetrated the complainant by inserting his thumb in her vagina, which is defined to include the external genitalia;
(b) That the sexual penetration was intentional, particularly having regard to the preceding acts of massaging her legs, then between her breasts and then placing his hand under her pants and underwear to do so. This was not accidental conduct; rather it was purposive;
(c) that the complainant was his step-daughter; and
(d) that the accused was aware of that relationship, as is clear from the answers he provides in his record of interview, that he ‘took her in as my own’ and that they were a ‘normal, loving family’.
169Taking into account all of the matters I have discussed, I am satisfied that the prosecution has proved the elements of both offences beyond reasonable doubt. It follows that I find that accused guilty of charges 1 and 2 and direct that the verdicts be entered into the record of the court.
0
0
0