Director of Public Prosecutions v Holtford (a pseudonym)

[2020] VCC 1541

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOBY HOLTFORD (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	21 September 2020; 23 September 2020
DATE OF SENTENCE:	25 September 2020
CASE MAY BE CITED AS:	DPP v Holtford (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1541

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr S. Ginsbourg	Stephen Peterson Lawyers

HIS HONOUR: 

1In this matter, Toby Holtford[1] is charged with incest and indecent assault in relation to a stepdaughter.  This has been a trial by judge alone and I am aware of the provisions that relate to that.  The actual charges were that between 1 August 2016 and 31 August 2016 there was an act of incest by penile penetration of the vagina and between 1 November 2016 and 30 November 2016 in Gippsland, it was alleged that there were two charges of indecent act, one of licking the vagina, one licking the breast and one of penile penetration, giving rise to incest.

[1] This is a pseudonym.

2I make it clear from the outset that I am well aware of the elements of each of those charges and counsel has very helpfully said that were I to accept the evidence of the complainant beyond reasonable doubt, each of those charges would be made out.  There is no suggestion other than he was her stepfather for the purposes of the legislation and that she was under 16 and that he knew it.  The sole question is one of did the act - has the Crown satisfied beyond reasonable doubt that the act took place.  I do not think I need to go any further than that.

3The issue is one where the only evidence that the Crown can rely upon in my view, is that of the complainant.  The Crown have argued that the contents of a pretext conversation should give rise to me regarding them as admissions or implied admissions, thereby offering some assistance to the version of the complainant but for reasons I will explain later, I am not satisfied that there is any such admission contained within that pretext conversation at all.

4The matters that I take into account are one, the matter was referred to me to be judge alone by Judge Mullaly on 26 August 2020.  I understand that my verdict has the same result as the verdict of a jury.  I understand that I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.  I point out in this situation there is a plethora of material that has been subpoenaed both from DHHS and police records.  It is quite clear to anybody who is aware of the contents of that material that the complainant in this matter is a very, very troubled young lady.  What I am endeavouring to do in this judgment is just refer to the matters which I regard of most importance in terms of the attacks upon her credibility.

5As a judge of facts and law, I must find the facts and draw inferences from them as well as apply to law the facts that I find.  I am aware that any inference adverse to the accused in regard to an element of the offence or so as to result in guilt must be proved beyond reasonable doubt and must be the only inference open.

6I am aware that the standard of proof, as I have said, of beyond reasonable doubt, and I am aware that the onus of proof throughout the entire trial is upon the Crown.  The accused is under no obligation to prove or establish anything.

7In this particular situation, the accused man gave a no comment record of interview and did not call evidence at the trial. I am well aware of what is known as the Azzopardi direction and I cannot and do not draw any adverse inference against the accused man for not having provided any explanations in the matters that I have described.  I must also not speculate as to what the accused might have said had he chosen to give a record of interview or to give evidence in the trial itself.

8The next matter, that is that the verdicts must be considered in relation to the evidence that applies to each.  The reality in this situation is that it is effectively all or nothing and counsel very sensibly agreed that that's the situation and I do not have to take that much further.

9In this particular set of circumstances, it really comes down to the Crown relying on a first penetration and a subsequent and the last penetration, if I can describe it in that way.  She gave evidence, that is the complainant, of numerous occasions of penetration and various indecent acts.  I simply look at those, if I accept them, as putting the matter into context that the allegations in that sense simply do not come out of the blue.  I am aware of the directions that are given in relation to context evidence and cannot replace the evidence that relates to each of the individual charges, as it puts it literally into a context if I accept that evidence of uncharged acts.

10It has been argued here that there is a delay in complaint by the complainant.  It is a fairly strange concept in this particular situation because it appears fairly clear to me at least that the complainant has been complaining about the conduct of the accused man in regard to this offending for something like
12 months prior to it ever actually happening, according to her.  In any event, I accept that delays in complaint are common.  No two people react the same way to sexual assaults.  I take that into account.  I am also very much aware of the fact that when relaying complaint, complainants may often give a different factual version to each different person, depending on who that person is and the situation in which that person is hearing the complaint. 
I take all those matters into account.

11In this situation, I was not asked to give a forensic disadvantage direction and I do not do so but I simply point out that because of the manner in which the matter unfolded and because of the nature, I make no criticism of this, I am well aware of matters in the background, that the investigation may have circumvented these proceedings at an earlier time.  I simply leave it at that.

12The Crown do not rely upon tendency.  As I have said, it is simply a context argument.  Her Honour Judge Sexton gave leave for the accused man to rely on a tendency argument in respect of the habit, if I can put it that way, of the complainant telling lies, making false allegations of pregnancy and making false sexual allegations.  It is a situation where that, to my view, goes very much to the character, that is inherent, but I am aware that that tendency tends to make it more likely that what she is saying in regard to this particular accused is also untrue.

13Insofar as motive to lie is concerned, it has been put that she is lying. 
There are a number of potential motives that have been put by counsel. 
I think the most likely of those is in some way to destroy the relationship between her mother and the accused and I understand very clearly that an accused person does not have to establish the motive to lie and the presence of one assists me in determining whether I accept the version of the complainant but the absence of one does not mean that the accused is guilty.  Insofar as inferences are concerned, I have already mentioned that.

14I am aware that the accused man has no prior convictions of a sexual nature and that gives rise to presumption on my part that he is unlikely to have committed the offending.  I am also aware of the presumption of innocence and the character material in this situation simply adds weight to that already existent presumption of innocence.

15It is a set of circumstances where they are realistically the matters of law that I have to refer to.  I have done it very truncated form and I do not think there is any need to make it any clearer than that.  If I am satisfied beyond reasonable doubt that the version of events given by the complainant is true, then the accused is guilty.  If I am not so satisfied, then the accused man must be acquitted.

16I will be going through the nature of the allegations in a moment.  I point out that I have taken into account the evidence of the complainant.  I have taken into account the evidence of a Hilary Swanson,[2] a Cara Davidson,[3] Blake Edwards,[4] I have taken into account the statements that were tendered.  I have taken in to account the evidence of the informant.  I am aware of the contents of the and have listened to the pretext tape that was carried out by the complainant with the accused on the day of her VARE tape.  I am aware, as I have indicated, of a large number of exhibits, of materials obtained.  I am aware by reason of Lancaster's case the value of those.  The situation here is one where there is not so much a question of individualising each of the matters contained within those in a detailed way.  The collective force of all the matters contained in there is in my view, in this particular given situation, very powerful.

[2] This is a pseudonym.

[3] This is a pseudonym.

[4] This is a pseudonym.

17There are some matters which may be more important than others, and I will perhaps mention those as I go through these reasons.

18It is important in this situation to be aware of the context, overall context that is, under which these allegations came about.  They are alleged to have occurred in August 2016 and November 2016.  It is agreed that the accused man during that period of time was the stepfather of the complainant and had been since she was approximately eight years of age.  It was a family, she had two brothers as I understand it, I do not know if they were stepbrothers or natural brothers and the family unit had been in a state of some chaos for quite some period of time.  The complainant was 14 years of age at the time these allegations were made to the police and says that she was 14 years and two months of age at the time that the alleged offending occurred.

19Having look at all of the materials and heard the submissions of both parties here, I can simply say this, that it is clear that the complainant had a very, very unsettled childhood.  It is clear from the materials before me that she had been sexualised at a very early age, it would appear around about the age of eight.  She had been in repeated trouble over the years on social media and had been using it to have sexually explicit conversations with as she describes 'peds' and in fact, by the material, it is clear that adult men had been sending her indecent and pornographic photos of themselves and at one stage, certainly in the materials, she agrees with someone from DHHS that she had sent photographs of herself.

20That had become a serious problem.  She herself described her use of social media in that sense as an addiction.  It seems from the material that she was repeatedly stealing mobile phones, stealing money to purchase mobile phones and over a period of a couple of years, had apparently had something approaching 20 mobile phones.  There had been reports from the school about her inappropriate behaviour in regard to this sort of sex texting, if it can be put that way, and authorities had been aware of it for quite some period of time.

21It is clear that the desperate attempts, I am prepared to say, by the mother and I suspect also the accused to get her to behave in a normalised manner were causing great hostility from her.  At one stage in the materials, the mother says that she, that is the daughter, had been diagnosed with disorders that involved a refusal to obey and a very self-determinative behaviour. 
She is clearly a person who has in the past told many lies, has been regarded by DHHS people as unreliable, as lying and effectively without remorse, about various matters, no matter how serious they would seem to be.  Again, I am very conscious that it is not necessary for me to go into some sort of character assassination of a child.  Counsel for the accused very, very sensibly conducted the trial in a manner which brought home the importance of some of these matters but without doing a generalised simple attack.

22The importance of that early sexualisation through from eight, certainly through until around about the time of this offending is important.  It might be thought that a child of her age when giving a graphic descriptions of the sexual activity that she does during her VARE would not be making that up. 
It is quite clear that this child would have had a quite deep understanding of sexual behaviour.  It would appear fairly clear from the materials prior to the time of these allegations, she herself was sexually active and had both immediately before and subsequent, a number of boyfriends of very short duration.  It simply, in my view, explains one of the sometimes important factors in cases such as this as to how the child would know in this particular situation of such conduct. That is easily explained over a significant period of time by this social media behaviour.

23In the time leading up to these allegations, there had been, as I said, great conflict between her and in particular her mother.  She had, during that period of time, threatened, and I accept in May 2016, threatened her mother to destroy her relationship with the accused, that she would make a false allegation of rape.  I accept that that occurred, as is with virtually every one of these matters, it was put to the complainant when she was giving evidence, she either denied it or when confronted with the materials, claims that she could not remember it.

24She clearly, throughout that period of time, and this is my view certainly from late 2015 onwards would not accept boundaries and as I have said already, was stealing money and telephones.  She apparently had been diagnosed as having a 'oppositional defiance disorder.'  The target of that disorder was her mother, who I note also worked with DHHS with homeless children.

25Ultimately, in 2015, the complainants started attending a rural secondary college.  At that time, as I understand it, she was living with her mother and stepfather in Gippsland.  The material clearly indicates that sadly at school, she had very few friends and the documents indicate that she was both bullying and manipulative towards other children which caused her to be isolated.  She did form friendships and the two most important ones for the purpose of this matter are those with one Hilary Swanson and one Cara Davison.

26Hilary Swanson said that she had first been introduced to the complainant by Cara just before the school swimming sports in 2016.  It is common ground that those swimming sports took place on 9 February 2016.  Hilary said that within a couple of weeks, the complainant was making allegations against her stepfather.  Hilary said, and again I am not concerned with the hearsay aspect of all of this, it is a question of Subramanyon type situation, the fact that these matters were said that is important, not necessarily the truth of them, I make that very clear.

27However, Hilary said that Cara, who had befriended the complainant previously told her when introducing her to Amelia, that she was prone to making allegations against her stepfather and that she was just warning Hilary that that may well occur.  That in fact did occur within a period of a couple of weeks.

28Cara herself originally said that allegations made to her were not made until August 2016.  Ultimately, she agreed that that may in fact have been 2015 and there is a high degree of probability that the conversations between Cara and the complainant did take place back in 2015.

29Hilary's evidence in time was based upon an event which is obviously a time certain and gives me confidence that she is accurate when she says allegations were made prior to or around about the time of the swimming sports.  If Cara was able to alert Hilary to the prior allegations, she must have been told either very early 2016 or in late 2015.  There is material that was in the documents that would suggest that Cara and the complainant's friendship was basically broken up in May 2016.  It is also a situation where Cara said that the allegations were made to her when the complainant was a ‘new kid’ at the school. The complainant was not a new kid in 2016. 
She was a new kid in 2015.  That lends a great deal of support to the matters put by Mr Ginsbourg on behalf of the accused and in fact the allegations had been made to Cara back in 2015.

30Cara struck me as a person of fairly limited intellect and I do not mean that in an unkind way.  She was not asked to give her version of events until 2019, some three years later and in my view, as I have already indicated, there is a high degree of probability that she is referring to events that occurred back in 2015.  It seems almost impossible to reconcile 2016 with what she was actually saying.

31Hilary, I found to be an impressive witness, a sensible witness and clearly with no axe to grind and I found her evidence, as it was on the VARE and also in terms of cross-examination as being compelling.

32One further matter in regard to when those conversations took place, as I am about to describe from Cara's evidence, was that she said that they occurred at a time when the complainant had stayed at her house for approximately four weeks.  She said during the course of it, police attended at the house because of a report of a, she thought, stolen vehicle of her father's.  It is clear from the evidence of the informant that in August or any time in 2016, no such event took place.  The best that can be said is that back in the middle of 2015, police attended on a theft from a motor vehicle belonging to the father of Cara, and again, that adds significant weight in my view to the proposition that the allegations made to Cara very much predate when the complainant says the offending occurred.

33It is important at this stage to also to realise or be aware that the complainant during the course of her cross-examination at the special hearing was adamant that no offending had taken place of any description by the accused man towards her prior to August 2016.  The materials that she was providing to DHHS in terms of her family supports and the like would indicate clearly in my view that she had no difficulties with the accused at all.  All her difficulties were with her mother.  As I already indicated, in May 2016, the mother reported to DHS that the complainant had threatened to make allegations of rape against the accused to destroy the mother's relationship with him. 
That is, I accept what happened and it is very concerning indeed.

34I then turn to, again I will not be going into massive detail with these matters,
I am simply going to just point out what the salient parts of the evidence were, the evidence of Hilary Swanson.

35She, as I said, met the complainant at around about the school swimming sports in 2016, which is common ground were in February.  Within a week or two, on two separate occasions, the complainant was describing her dad, that is her stepfather, sexually abusing her. Hilary said that she tried to get her to go to the police or do something about it.  She said that at one stage, the complainant starting saying she thought she was pregnant to the stepfather.  Hilary said that the complainant went on with that for a couple of months and formed the view, this is obviously her opinion, that the complainant was lying.  She claimed that she had a pregnancy test and that it was positive. 

When Hilary endeavoured to pursue this, was told that it was not available or whatever it might be.  The complainant denies ever having said to Hilary, denies ever having a pregnancy test.  The evidence of Cara makes it very clear that she had in fact had a pregnancy test and I suspect on the material that pregnancy test was probably back in late 2015.

36Hilary said that from what she had been told, and again it is a Subramanyon situation, the complainant had told a number of other children that her stepfather was abusing her, had told Cara which I accept is verified by Cara and also another young girl.  The complainant had told Hilary towards the end of her time at the school that she was trying to get pregnant to older guys.  I accept that she did say that to Hilary and it is concerning in itself.  I do not think I need to keep repeating this, every one of these types of matters that were put to the complainant, she denied ever having said it or then fell back upon could not remember.

37The allegations were apparently to Hilary of rape and the last time that she had spoken to the complainant about it would have been in December 2016. 
She described how she had gone to live with Cara Davidson, that is the complainant had and apparently been kicked out of there.

38In terms of the specific detail of the assaults, obviously there is the suggestion of pregnancy which clearly gives rise to sexual penile penetration but Hilary said that the complainant would like 'go to her room of a night time while her mum was asleep and do things to her.  She didn't tell me in detail a lot.' 
The complainant of course says that all these incidents took place while her mother was at work and denies that any such thing ever happened while the mother was at home.  Hilary again denied that she ever said that.

39She said that the complainant had not raised it with other family members and she was concerned by the fact that the complainant would confidently go up to someone and say 'My dad sexually assaulted me.'

40She went through the details of the pregnancy test.  Again, I do not think I need to go there. In cross-examination, she made it clear to
Mr Ginsbourg that the complainant had indicated she had had unprotected sex with somebody else during the relevant period of time and again, effectively confirmed what she said in her VARE statement. Hilary said that she would tell Hilary that he would hold her up against a wall and do inappropriate stuff.  She said 'I hate saying what sort of stuff so and then she was telling someone else, she would tell them that he held her down on the bed, when she told me he was holding her against the wall.'  So clearly, the material, not suggested it is true, but the information given to Hilary and given to others through circulation of the school kids varied considerably.

41She, that is Hilary, thought that the period when the complainant was saying that she was pregnant was around March and April 2016, which clearly predates when the complainant alleges this offending is to have occurred.

42The next witness that I will deal with that is Cara.  I have already pointed out what she had to say.  I accept that the probability is high, I do not even need to do that, that the conversations she described back in 2015 and went no further than around about May 2016.  She said, and this is partly in her statement and partly through the evidence in chief that she gave, that statement having been put to her in part by Mr Ginsbourg, that she did not remember if they had actually had sex or if he just wanted to have sex with her.  In her evidence she actually said that she had a memory of being told that he had sex with her while she was asleep but she was not sure.

43She agreed that she had been told by the complainant that the accused had been touching and feeling her in a sexual way for something like three years prior to the allegations being put to her, which takes us back to around about 2012.  She said that when Amelia was staying with her, if it was a month, it has to be back in 2015, that Amelia complained that she thought she might have been pregnant to her stepdad. Cara actually went and bought the pregnancy test from the local IGA, took it to school and gave it to her. She did the test at school, they waited for a minute and it came back negative.  There is absolutely no doubt that the complainant did have a pregnancy test in around about that period of time, I suspect 2015 and when she denies it, I just simply do not accept that.

44I do not really need to go through the cross-examination of Cara.  However, there were a couple of things in her cross-examination which came out which I thought were of significance.  When she was being asked about Amelia, that is the complainant staying at her property for a period of time, as another couple of weeks, she said that the complainant then went home.  She was asked the question, and this was put to her just prior to the complainant going home, and then after that, 'After that, she got a message from her mum saying
"I need you, I miss you.  He's no longer here."  So Amelia fell for it as much as a young person would if it's from your parents.'  Now, clearly the complainant is saying to Cara that she was safe to go home because the accused man was no longer there.  That can only be a situation if the allegation against him had been made to the mother.

45The complainant says she never told her mother under any circumstances and the only evidence we have from the mother is that in May 2016 of the threat of a false allegation.  That also ties in with what she said to Mr Edwards who I will come to in a moment.  Again, there was a deal more evidence than that from Cara.  She spoke about the complainant having tried to steal her mobile phone and I do not really need, in this situation, to take it any further than that.

46So what we then have at the conclusion of the evidence of Hilary and that of Cara is that serious allegations, including that of becoming pregnant were made to each of them in the period prior to these allegations being made in January 2017 and indeed well prior to it.  It's clear that those allegations were being made prior to the time when the complainant is adamant that the offending started.

47During that first six months of 2016, the complainant ran away on a significant number of times.  I have already indicated, she made the threat to sabotage the mother's relationship. She clearly was bitter insofar as the restraints and understandable restraints that her mother was trying to place upon here. 
She said later on, that is the mother, that these complaints had been told by her to the accused and that the accused had been scared that they might be acted upon.  In my view, that state of mind of the accused explains very clearly the manner in which the pretext conversation took place some six months or so later.

48In any event, the circumstances surrounding the use of social media had escalated.  In the couple of months leading up to the complaint to police, the complainant had stolen her mother's phone and had taken the school bus from her town to Morwell.  She was tracked down by her mother, this is on 1 December or roughly around then, and during a confrontation, the mother assaulted her.  I suspect she simply had enough by that point.

49In any event, at that stage, that is I understand it, on or about 1 December 2016, the complainant went to live with a 16 year old boy named Blake Edwards.  He then became her boyfriend and as I understand the material, it was a romantic relationship.  She went to live with him and his mother.

50That situation continued to exist for a number of weeks.  It is clear on the evidence provided by Mr Edwards, which I will refer to in a moment, that he had, in the course of texting or Facebook exchanges with the complainant told her that he in fact himself had been sexually abused.  She then responded by saying that so had she.  He became angry at that and offered her the safety of his own home and she accepted that.  So that the offering by him to her and obviously through his mother as well, to the complainant was to get her safety from sexual assault.

51She came and resided at the house and there were a number of messages that went backwards and forwards.  Mr Edwards told the court via his VARE and via cross-examination at the special hearing, that her stepfather would usually beat her and rape her and all that.  He said that conversation took place about a month and a bit before she moved it.  He said that in fact the complainant did not use the word “beat” but had used the word “bashed” but it was not a word that he liked to use.  I have no doubt whatsoever that she was telling Mr Edwards that she was scared of the accused, which I find hard to believe having listened to the pretext tape, and that he would effectively sexually assault her and rape her and that when she would refuse to comply with his sexual demands, he would bash her.

52I am aware that her evidence, without being aware of what was coming I suspect, was that the accused man had never struck her and the concept of bashing was just in one sense ridiculous.  It is also important that Mr Edwards had spoken to the complainant just the night before he made his VARE to make sure he had exactly right what she had told him in the first place and she repeated it.  He told Mr Ginsbourg, on behalf of the accused, she repeated the allegations exactly as she put them the first time.

53He said that after he heard this material from her, he just said 'come and move in with me and she's like "okay."'  That situation apparently survived up until certainly towards the middle of January 2017.

54On 9 January 2017, and the complainant was cross-examined about this, the complainant sent a text message to the accused and her mother saying that Blake, that is the new boyfriend, was 'the greatest, he's sweet, caring, isn't sex crazed at all.  He's funny.  He's a miniature Toby.' She agreed in
cross-examination that was referring to the accused.  So on 7 January, she is very happy where she is and is in effect praising the accused man which is what she had done frequently with DHHS.

55At that point, she said she was not coming home and she was staying where she was.  There is more detail but do not need to go into it here.

56On 14 January 2017, that is six days before the VARE was made, the complainant told both the accused and her mum that she wanted to come home because the relationship with Blake had broken down.  This occurred within the space of a couple of hours of saying that she wanted her clothes dropped off, so whatever happened, happened, I can be satisfied at least on the balance of probabilities, on or about 14 January 2017.  At this point, importantly in my view, the mother told the complainant if she came home, she would be banned from accessing the internet.  The complainant immediately changed her mind about coming home and from that point on, the message exchange became acrimonious.

57On 20 January 2017, the complainant was arrested for shoplifting.  It was after that interview for shoplifting, as I understand it, she told the independent third person the first of these allegations.  She had apparently asked for the accused to be present during the interview and he declined.  After the interview had taken place, Ms Farnham, who was the independent person, spoke to her.  She told Ms Farnham that she left home because of her stepdad sexually abusing her.  Ms Farnham was obviously trying to find out where the child could be bailed to, sent to.  She told Ms Farnham she was staying with another older guy, that is a man called Freddie, as I recall, who was acting as a guardian.  She said, this is Ms Farnham, 'Amelia said that she told her boyfriend about her stepdad but he freaked out and left her.' 
That statement is made to Ms Farnham six days after the relationship with Blake foundered.

58Ultimately, in cross-examination, Blake explained why the relationship foundered.  It had been a romantic relationship, we do not need to go into the detail of that.  What had occurred is that it is clear on or about 14 January that the complainant had gone into the bedroom with a friend of Mr Edwards. 
The mother of Mr Edwards had gone into that room and found the friend with his pants down and the complainant performing some undescribed, counsel very sensibly did not take it any further, sexual act upon him.  The mother threw her out as well as the boy, Lucas.  That is why the relationship ended. 
She was thrown out by the mother in a situation where she was having a romantic relationship with her son and was having some sort of sexual activity with another boy.  You do not forget that in a week.

59What she said to Ms Farnham, I have no doubt, was a lie.  In fact it was the direct opposite.  Young Mr Edwards had taken her in to protect her and here she was telling Ms Farnham that as soon as he found out about the stepfather, he had thrown her out.

60That lie, I accept that it was, was persisted with during cross-examination at the special hearing.  Mr Ginsbourg on behalf of the accused asked her twice is that the reason why the relationship foundered.  On the second occasion she said yes, and Mr Ginsbourg said to her 'Are you sure?'  That is what she said to her, 'You seem unsure?'  And she said 'I am sure.'  Later on she agreed that it was because, in her words, apparently she hooked up with a friend.  I have no doubt that she knew full well that was untrue and maintained it until cornered.

61Also another matter that was raised by Mr Edwards was that - a further matter was the fact that she had been bashed more than once by the accused man.  Mr Edwards said that the complainant had told him that she had told her mother about the stepfather's sexual abuse and that the mother hadn't believed her.  Again, it is clear from her own evidence that this had effectively in this court that she had never told her mother and the only evidence of ever telling her mother was the suggestion way before this of a false allegation of rape. 
She clearly in my view was lying to Mr Edwards and she clearly, in my view, has persisted with that right up until the time of the special hearing.

62So that is the set of circumstances by which the complainant came to be in police custody on 20 January 2017.  That is when the first allegations were made.  She then repeated those allegations to a police officer, Mr Coles, who is known to me and a VARE was prepared.  A pretext call was then made prior to the VARE as I understand it, to the accused man and I will deal with that in a moment.

63What occurred after that is that the accused was charged and the complainant went to various addresses and places to live. 

64It is clear on the material that at some stage she had told someone from DHHS that - I will come back to that, that Mr Edwards had been forcing her to have sex with him.  I agree with the Crown that it cannot be determined from that note within the records as to who had said that.  That is obvious because whoever the informant was, it has to be kept secret obviously from DHHS records, but it is clear that purports to be a quote. That is, Mr Edwards had been forcing her to have sex.  That report was made to DHHS within a few days of her first shifting with Mr Edwards and effectively in my view, amounts to a false allegation of rape.  That suggestion was put to DHHS on 5 December 2016.

65After being charged, the complainant eventually went to live with her natural father and her uncle.  She accused the natural father of beating her on other occasions, which clearly was false.  She then had a new boyfriend by the name of Haydon.[5]  She wanted to go and live with Haydon, not with her natural father.  Her natural father had clearly come back onto the scene and was, from what I can see here at least, doing his best to look after her. 

[5] This is a pseudonym.

The method of avoiding going back to live with her father and uncle was to accuse them of sexual assault.  She in a 'convincing' manner told a police officer, she said of this sexual assault, that the two of them would come into her room, lie on top of her and endeavour to grope her.

66Ultimately, for the first time, under cross-examination from Mr Ginsbourg at the special hearing, she admitted that those allegations were not true.  As with those relating to Blake, she denied that she ever even said them.  Confronted with the fact that she said it to a DHHS worker, and a police officer who had taken notes of it, she reverted to cannot remember.

67It can only be said that to do that to her natural father in those circumstances, who was only trying to help her, to be put in a situation where, without all this other material, he could have easily been charged with sexual assault is a frightening lie for a child to tell and in my view, shows the extent to which she would be prepared to lie to get her own way.  The defence here is of course that she is telling just such a lie to endeavour to punish her mother by destroying her relationship with her stepfather.

68In any event, it is conceded that those two allegations against both those innocent men were lies.  She gave that evidence with the protection of a certificate as I understand it. 

69She then went to live with Haydon.  After she fell out with Haydon, she sent him a letter or a text saying that she was pregnant when she was not. 
When confronted with this by a DHHS worker saying it was perhaps inappropriate, she made the assertion that Haydon had raped her a couple of times anyway.  So in that situation, she was quite prepared to say that Haydon as well had raped her.  That all occurred on 9 July 2017 and all of this material is contained within the notes that were subpoenaed and none of it is just simply puttage from Mr Ginsbourg, I have been very careful as has he to make sure that did not happen.

70In any event, between December and January 2018, the complainant met a Mr Trent Mitchell over Facebook.  Within 24 hours, she was in a sexual relationship with him.

71She was arrested for, as I understand it, a quite serious assault on another female and she had bruises.  When questioned by police and having been in police custody, she was asked how the bruises came about.  She told them that she had been assaulted by Mr Mitchell, who had apparently contacted her again in a short period of time prior to that assault taking place.  She gave a couple of different versions but said that Mr Mitchell had headbutted her outside at one point in time when she was playing with the dog and another time when they were in bed together.  She said that at one stage, he had endeavoured to have sex with her but she refused.  Her original report or the original assertions that she made to police were that in the bedroom, he had in fact headbutted her unconscious and when she woke up, she was stark naked, having been clothed when she became unconscious with sore wrists and a sore vagina.  The direct implication being that she had been raped. 
In cross-examination she simply tried to say that she said he tried to and she had been able to stop him.

72Again, when she is talking to the police, it is clear by inference, necessary inference, accusation of rape and in this particular situation, Mr Mitchell was never charged and the probabilities are that allegation was false as well.

73So in the 18 months, six months before the time these matters were alleged to have occurred, until a year afterwards, on my calculation, there has been three clear false allegations of rape and two patently clear allegations of indecent assault, all within an 18 month period, this man stands trial upon the word of somebody who has engaged in that contact.  It is interesting that the allegations against Mr Mitchell were again made whilst the complainant was in custody.

74There were a large number of other matters that were contained within the materials of allegations that she has made, some of which were just ludicrous.  There was one, as I recollect, where she was in residential units and faeces had been smeared all over the wall of her unit.  She tried to say that the carer had done that.  That is patently ludicrous and in fact, as I understand the material, the carer, in fear, locked herself in another room at the time while that occurred.  There is quite a deal of material about other conduct.  As I said, I am just trying to deal with these allegations against this man and not just have a simple or engage in a simple character assassination of the complainant, which I repeat again, very sensibly, counsel for the accused avoided as well.

75We then come to the VARE and we come to the pretext call.  Interestingly, when she made these allegations before the VARE, the police said to her, effectively 'How would you feel about making a pretext call?'  Her immediate response was 'He'll just deny it,' which in itself I find somewhat interesting. 

76In the pretext call, it starts off with her speaking to him.  I listened to this all a couple of times and it must be borne in mind that the accused man at the time of this call is made has known for something in the order of six months at least that the complainant was threatening to make very serious false allegations against him.  The assertion by the mother is that he was scared that she would do that.

77They talk for a little while about the mother, he is making out the mother is crying a lot.  The Crown state these could be admissions for this but I reject that.  She then says to him, 'Yeah, but there's more to the reason as well, 'cause you're part of the reason as well.'  He says, 'Okay.'  She then says, alarmingly, 'You have no idea why, do you?'  Now, having heard that a couple of times, the astonishing thing for a victim to say to somebody who she apparently knows has been, as his stepdaughter, pinning her down, having sex with her on a very regular basis, ejaculating unprotected inside her, in her view, trying to get her pregnant, one would have thought she would be far more assertive than that in terms of putting the allegations.  They are then put and ultimately she says to him, 'You're not afraid at all, are you?'  And he says 'I don't know what you're playing at.  We just wanted you to be happy and now you're in this, you know.  We wanted the right thing for you.'

78There is no onus on an accused person.  I notice at the end of the pretext call, another again strange comment from her.  He says to her, 'Okay, bye, I miss you.'  She says 'Miss you too, see you.'  I do not accept there are any admissions at all in that pretext call.  I think it is perfectly consistent with a man who is aware that a false allegation is likely to be made and effectively challenges her, in my view, to do so.

79I will go to the VARE in a moment.  During the course of her cross-examination during the special hearing, she denied virtually all of these allegations that she is alleged to have made against others.  She denies telling Cara about how this had all occurred.  She denies telling Cara that it had been going on for years.  She denies the allegations of when she told Hilary about all this and in the end, when confronted with, in many respects, incontrovertible proof, that she had said them basically said that she did not say it or she did not remember saying it and would not have said it because it was false.

80As I said right from the outset, once that pretext call is seen in, what my view is a proper light, there is no supporting material here.

81The allegations are very limited.  The way in which the VARE was conducted, as I indicated during the course of discussion concerns me.  Each of these charges realistically is brought about through a series of leading questions.  She is talking, as I have been in this position many, many times, as complainants often do actually that when it is clear on a number of occasions, this would happen, then this would happen, then this would happen.  The informant, as is his job, endeavoured to pin her down to specific allegations.  Ultimately, she said that this would happen nearly every time her mother went off to work and had the house alone.  Opportunity has never been denied by the accused and I do not take that further.

82However, it is clear that she told others, at least one other, that it would occur of a night, he would sneak into her room, she told Cara aspects of that as well as Hilary.  She stated he would then basically rape her, he would be watching TV, and then he would come and get closer to her and then he would start kissing her on the lips and all that, 'start stripping me and while I'm standing there basically, not - well not while scared shitless and like not knowing what to do and all that, letting him do that, 'cause I'm yeah, too scared to tell him to stop.'

83She said that the first time it occurred, she was so scared that she could not even remember it.  She said the whole time she did not tell anybody and, so far as that is concerned, I accept Mr Ginsbourg's submissions that in that VARE, when the police are trying, obviously as they must to get some sort of corroboration, I am not allowed to use that word anymore, or confirmation of complaint evidence such as that, she says the first person she ever told was Adam,[6] that is the police officer and then someone else after that.  She makes no mention of telling Hilary, she makes no mention of telling Cara and she makes no mention of telling Mr Edwards.  It was put to her that she was doing that because she knew that they would effectively blow her story of this occurring between August and November out of the water and she said that was not true.

[6] This is a pseudonym.

84That submission, as a matter of logic, in my view, bearing in mind how it was read a number of times, how it unfolded that I think that not informing the police about complaints was a conscious and deliberate act.

85She said insofar as the first one was concerned, he would perform oral sex on her and she said 'And yeah, I'm just laying there like "What the fuck is going on?"  And scared shitless to move, scared to move, scared to tell him to stop, scared to do anything, scared to even tell anyone about it.'  Well she did tell people about it, prior to it ever happening apparently.  She told school kids, a number of them.  Listening to her on the pretext, there is no way known she is scared of that man.  Indeed, she tends to control the conversation.  She has the disorders that I have described previously, but it does not seem to fit with the manner in which she is claiming has occurred.

86Whether there ever had been some sort of sexual contact between them, I will never know.  He is not charged with that.  He is presented on particular information and I am just simply, in all this scenario, not prepared to accept that evidence.

87She again when trying to refer to the last situation, kept saying in terms of 'He would lick me.  He'd start making out with me while he's trying to play around with me.'  Made it clear where all that information about sexual conduct could have come from.  She keeps repeating, 'I was too scared to say anything.'  She then, as I have indicated during the course of discussion, says 'I don't know what his intention was but I'm assuming he was trying to get me pregnant.  I don't know why, but yeah.'  Question, 'Do you say he was trying to get you pregnant?'  Answer, 'I'm assuming he was, yeah.'  When that is looked at in terms of what she said to Hilary back in late, as I understand it, late 2016, that she was trying to get pregnant with an older man is just in itself somewhat unsettling.

88She said the first time he raped her, she was too scared to even remember it.  She said in regard to the accused, 'When Mum's around, he's the best person ever.  He's good to talk to, he's really fuckin' funny.  But when we're alone, he's pathetic, worthless and doesn't even deserve Mum.'  That does not exactly tie in with what she used to tell DHHS but also ties in with the motive or motives that had been put to her by Mr Ginsbourg.  Had there been a jury in this matter, I would have given a very, very powerful unreliable evidence warning.  I gave myself that warning but I think it is unnecessary because this really relates back to character.

89Again, we have the situation where a VARE can be quite convincing.  However, in this scenario, knowing the background to it, knowing her propensities and her tendencies, as relied upon by the accused to tell lies and make up allegations of sexual misconduct towards her, I have a very serious doubt as to the guilt of this man and in my view, the Crown case does not even get close to satisfying me to the requisite degree.

90She was asked later on, 'So what, your stepdad, who have you told about your stepdad actually?  'Yeah, doing stuff doing to you, yeah?'  She said, 'Yeah, just Adam then and today.'  'Okay so Adam, you mean my offsider?' 
'Yep.'

91That is a long way from the truth.  She also then mentioned some girl named Sarah[7] at the other police station and that is about the end of it.  She was asked 'Did you ever tell Mum that Toby had been having sex with you?'  Answer, 'No, too scared to.'  That is not what she told Mr Edwards and it is clearly not what she told Cara either.

[7] This is a pseudonym.

92So in the end, as I said, I think there is a very, very troubled young lady involved in all this.  When I look at all the material surrounding it, as I indicated, I think it falls well short of proof beyond reasonable doubt against this man and accordingly, on each of the charges, he is acquitted.  He is found not guilty.

93All right, he is on bail, so there is no reason why he should not be discharged, Mr Prosecutor?

94No, thank you for that.  You are actually muted but I can read your lips.  Thanks, Mr Brown.

95So that will have to be revised, obviously.  I know there is press listening to this.  Can I just simply remind them that in this situation, to be really, really careful, if it is going to be reported, I am not saying it will be, but if it is going to be reported, just be really, really careful about the identification provisions because being down here, once you start naming the school she went to or the others went to, it will be common knowledge in a week.  So I just ask you again, it is not a closed court, clearly it is not, but just remember to be as careful as you can with any reporting, if any reporting does take place.

96So that is that, he is discharged.  There are no matters, there are no summary matters that have to be struck out or anything along those lines?

97MR BROWN:  No, Your Honour.

98HIS HONOUR:  No.  All right.  Well we will end it there.  I just want to say, in terms of the way this has been conducted, there have been very few judge alone trials, I might say that the way this has been conducted by both counsel has been absolutely exemplary.  These are matters which can drag on forever.  They are not easy. I understand how Mr Ginsbourg was concerned about the manner in which the investigation unfolded but in my view, each of you has conducted this in an extremely sensible way, what was originally booked in as a three week trial effectively took two days and that is very much to the credit of both counsel and your instructors.

99MR BROWN:  Thank you.

100HIS HONOUR:  All right, sine die.

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