Director of Public Prosecutions v Lucas Jacob Garratt
[2022] VCC 601
•4 May 2022
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01249
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCAS JACOB GARRATT |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 20, 21, 22 & 26 April 2022 | |
DATE OF VERDICT: | 4 May 2022 | |
CASE MAY BE CITED AS: | DPP v Garratt | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 601 | |
REASONS FOR VERDICT
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Legislation Cited:
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Verdict:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S G MacDougall | Office of Public Prosecutions |
| For the Accused | Mr R B Hammill | Schembri & McCluskys Law |
HER HONOUR:
1On 20 April 2022 the accused, Lucas Jacob Garratt was arraigned on indictment No. K10369938.1.
2The charges are:
(a) Charge 1 – Lucas Jacob Garratt in Victoria on the 28th day of August 2018, intentionally sexually penetrated AA, a child under the age of 12 years in that he introduced his finger into the vagina of AA.
Statement of Offence – contrary to Section 49A(1) of the Crimes Act 1958, as amended (Sexual Offences) Act 2016.
(b) Charge 2 – Lucas Jacob Garratt in Victoria on the 28th day of August 2018, intentionally sexually penetrated AA, a child under the age of 12 years in that he introduced his tongue into the vagina of AA.
Statement of Offence – Sexual penetration of a child under the age of 12, contrary to Section 49A(1) of the Crimes Act 1958 as amended (Sexual Offences) Act 2016.
(c) Charge 3 – Lucas Jacob Garratt in Victoria on the 28th day of August 2018, on an occasion other than that referred to in Charge 1, intentionally sexually penetrated AA, a child under the age of 12 years in that he introduced his finger into the vagina of AA.
Statement of Offence – Sexual penetration of a child under the age of 12 contrary to Section 49A(1) of the Crimes Act 1958, as amended (Sexual Offences) Act 2016.
3Upon his arraignment the accused pleaded not guilty.
4The allegations relate to a time when the complainant was aged 5½ years of age and the accused, then aged 26 years, was employed as a casual babysitter.
5The elements of each offence charged for counts 1 to 3 are:
(i)the accused intentionally sexually penetrated the complainant.
(ii)the complainant was under the age of 12 at that time.
6Section 49T of the Act provides an exception to sexual penetration offences – medical or hygienic purposes. To paraphrase, it states:
“An accused does not commit an offence against section 49A(1) … if the accused’s conduct occurs in the course of a procedure carried out in good faith for medical or hygienic purposes.”
If raised the prosecution must disprove it.
7In the context of this case, it is the defence position that if the Court finds that the events occurred as alleged by the Crown, then the actions this described would amount to penetration. There is no dispute that the complainant was under 12, i.e., 5½ at the time of the event. There is no dispute that if the Court finds penetration occurred as alleged by the prosecution, then there is sufficient evidence from which the Court could infer intent to the required standard. The defence position is that some touching of the child’s genitals did occur that evening, but any such contact was done in good faith and for the purpose of hygiene. The degree and type of touching is in dispute. So, while I acknowledge the Charge Book charge requirements in relation to these elements, it is not required that I state unnecessary considerations at this point.
8I confirm the order supressing the name of the complainant or any information that may tend to identify her. This obviously includes the names of any other members of her family. Due to the nature of the proceedings, much of it was held in closed Court mode. For the purpose of this judgment, the complainant will be referred to as AA, and family members referred to with subsequent letters of the alphabet, so that her mother will be referred to as BA, her father as CA and the other children in the family as DA and EA.
9An order for trial by judge alone was made on the by his Honour Judge Mullaly on 11 April 2022 on the application of the accused. The Crown consented to that application. The order for a judge alone trial was made on the basis that that it is in the interests of justice for the trial to proceed in this manner. His Honour was specifically satisfied of the other criteria of s420E of the Criminal Procedure Act 2009.
10Pursuant to s420F of the Criminal Procedure Act 2009, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the Court in such a case must include the principles of law that I, as the judge, apply and the findings on fact on which I rely.
11In addition, in this trial the prosecution has brought 3 charges against the accused. These are separate matters and are all being dealt with in the one trial for convenience. I remind myself to be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. I accept therefore would therefore be wrong that if the Court finds the accused guilty or not guilty of one charge, that he must similarly so found of another.
12Each charge must be considered separately, in light only of the evidence which applies to it. I will enquire in relation to each charge, whether the evidence relating to that charge has satisfied the Court beyond reasonable doubt, that the accused is guilty of that particular crime, and if so, will find the accused guilty of that charge, and if not then find him not guilty of it. This process is required for each charge individually.
13In Fleming v The Queen [1998] HCA 68 (1998); 197 CLR 250 the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that it has reached.
14I am required, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law.
15Having brought the charges, it is the Crown who bears the onus of proving the charges. The high standard to which such charges must be proved is the standard of beyond reasonable doubt.
16In order to sustain a conviction for the offences charged, the Crown bears the onus of proving beyond reasonable doubt each element of the offences.
17In addition to the fundamental principle that the Crown must prove the charges beyond reasonable doubt it is necessary to bear in mind a number of other principles. The accused is presumed by law to be innocent of the charges brought against him unless and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proved beyond reasonable doubt.
18If the evidence fails to satisfy the Court beyond reasonable doubt of any or all of the elements of a particular offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned.
19If there is an explanation consistent with the innocence of the accused of any charge or if the Court is unable in the circumstances to determine whether a particular element has been proved, then the accused must be found not guilty accordingly. The evidence before the Court must be approached with an open and unbiased mind. The Court must proceed logically and rationally without acting capriciously.
20It is necessary to bring into account in assessing the evidence the common sense of the Court and to deliver any verdict return according to the evidence. It is necessary to recall that the accused does not have the burden of producing any evidence. He does not have to disprove the Crown case; it is for the prosecution to prove its case and to do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I find them to be.
21In particular in this trial, the complainant’s direct evidence was taken from three sources. The first presented evidence was of pre-recorded record of interview with investigators, taken at the police station on 30 August 2018, secondly her evidence given at a special hearing on 18 December 2020, when the trial was delayed due to COVID restrictions, and third a video recording made by her mother in the early hours of 29 August 2018, before a complaint was made to police. I direct myself that I am to draw no conclusions either in favour or against an assessment of the complainant’s evidence because of the form it was presented. I well understand that especially in relation to investigative interviews and pre-recorded evidence this is the usual and preferred manner of taking and giving evidence in such circumstances. The complainant was 5 years of age when the event complained of occurred and 7 years of age when the special hearing occurred. Further directions in relation to assessing her evidence will be referred to in later discussion.
22In addition, two witnesses, one for the prosecution (Dr Beaurepaire) and one for the defence (Deborah Garratt) gave their evidence via video link. This was with the Court’s consent or at my direction. I again acknowledge that no conclusions can be drawn by this method of giving evidence, in fact Courts are well used to this from of giving evidence at this stage in the pandemic. I found the evidence of both witnesses to be clear and very satisfactorily presented.
23Neither counsel submitted that an observation of the demeanour of witnesses during the course of them giving their evidence would be a determinative factor in an assessment of their credibility. I agree. A witness who is nervous in giving evidence may just as well be nervous because they are guilty and the presentation may be because of that consciousness of guilt or innocent and the nervous presentation due to concern that he may be wrongly convicted. A calm or unemotional presentation may be because the witness is an accomplished liar or just as plausibly because the witness is telling a story that is bourn from personal experience. Courts do not have the ability to discern if a witness is telling the truth by observing their demeanour only. It is for that reason the Courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above. Having said that an observation of demeanour may be of some assistance in discerning nuances of expression. Madam Prosecutor suggested I scrutinise each of the interviews carefully and I have done so.
Undisputed Facts
24The following facts are those that now appear not to be in dispute, from the evidence, unchallenged at trial.
(a) The accused was born in November 1992. At the time of the alleged offences, he was 26, and employed as a childcare worker. He is now 29.
(b) The complainant in this matter, AA, was born in January 2013. She was 5 years of age on the evening of the alleged offending, and was then in the care of the accused, while her parents were at a parenting seminar. She was 7 years of age when the special hearing was conducted.
(c) The complainant’s parents BA and CA reside with the complainant and her two siblings, one being older and one being younger.
(d) The parents had known the accused for some years, from his employment at a local childcare centre, where one or more of the children had attended. He had also been privately employed by them to look after their three children on between 4 to 6 on occasions prior to the evening in question.
(e) On 28 August 2018, between 7:00pm and 9:30pm, BA and CA attended a parenting seminar held at the local school. They had engaged the accused to look after their three children in the family home, including the complainant, while they were away from the house for this period.
(f) An hour or so after the parents left for the seminar, the accused put the three children to bed in separate bedrooms, at about 8:00pm. The complainant went to bed wearing a nightie and underwear, with a night light on in her bedroom. There was a light in the hallway.
(g) The parents returned home at around 9:45pm, and spoke with the accused, who left at around 10:30pm.
(h) The next morning, 29 August 2018, when the complainant woke up, she spoke to her mother. BA became immediately concerned and used her phone to record a conversation with the complainant, in the presence of CA. This became exhibit 3 in the proceedings. The parents took advice as to what to do.
(i) The complainant and her parents soon after reported the matter to police. They spoke to 2 officers attached to the specialist investigation unit. Those officers then spoke to AA in the absence of her mother. The conversation was not recorded, except by notes taken by an officer. BA was instructed to and did undertake what is referred to as an early evidence swab from the genital area of AA.
(j) By prior arrangement the clothing the child was wearing was collected by police from the home.
(k) On the same day, 29 August 2018, between 11:00am and 1:30pm a forensic medical examination of the complainant was conducted by a paediatrician, Dr Andrew Rechtman. Swabs for DNA analysis were taken.
(l) In the afternoon of the same day the accused was interviewed at the Police Station. He denied the accusations, including denying touching her underwear.
(m) At the conclusion of interview, the accused provided a DNA reference sample, in the form of a buccal swab.
(n) A recorded interview was conducted between the complainant and the police at 8:22am on 30 August 2018 (exhibit 1). In the record of interview a complaint was made in terms of the 3 counts on the indictment.
Prosecution allegations
(a) Count 1: The accused lifted the bedcovers and pulled the complainant’s underwear down to her ankles. He then spread her legs apart and used his fingers to open her vagina. The accused used his finger to touch and swipe down the complainant’s vagina. He then inserted his finger into her vagina, as far as it would go.
(b) Count 2: The accused removed the covers from over the complainant’s legs and pulled her underwear down to her ankles. He used his fingers to open the complainant’s vagina, then used his tongue to lick it. He then inserted his tongue into the complainant’s vagina, for about ten seconds.
(c) Count 3: Shortly after the second occasion, he removed the cover from over the complainant’s legs and pulled down her underwear. He then used his fingers to open her vagina, before swiping a finger down her vagina. The accused then inserted his finger into the complainant’s vagina, again as far as it would go.
Complainant’s evidence
25I propose to very briefly summarise the case presented for the purpose of identifying the standard directions which apply to some of the evidence presented.
26The Crown case in relation to each charge is based very largely on the evidence of the complainant. The informant gave evidence of the preliminary interview with her. Her pre-recorded evidence (VARE) as referred to above was played. Any edits were agreed between the parties prior to the commencement of the trial. A special hearing was conducted with the assistance of an intermediary and those pieces of pre-recorded evidence contained all of the direct evidence from the complainant. There were certain limitations on cross-examination, which are not important to my considerations or assessment.
27In addition, the complainant’s mother, BA gave evidence about what she had been told by AA in the morning of 29 August 2018 and also played a recording she made on her telephone during the course of that conversation (exhibit 3). This effectively was evidence of complaint.
28In relation to the complainant’s evidence, I accept and acknowledge there are important self-directions that I must observe, and I do so genuinely and seriously understanding that notwithstanding my personal experience in trials or allegations of a serious nature made by children, all such trials or allegations are as different as the children themselves are. I remain aware of this self-direction is vital to an assessment of this complainant’s evidence.
29I specifically acknowledge that as a general rule:
(a) First, children can accurately remember and report past events.
(b) Second, the language and mental skills of children develop as they get older. This may affect whether a child can give a detailed or complete account and whether their accounts correctly record the order in which different events occurred.
(c) Third, children’s language and mental skills also affect how they understand and respond to questions.
(d) Experience shows that a child’s level of development affects whether they have difficulty understanding certain words or phrases. These may be words or phrases that are hard for everyone to understand or are only hard for children. For example, some children have difficulty understanding hypothetical questions, repetitive questions, multi-part questions and questions that require a single yes or no answer. Some children also have difficulty with questions or statements that use negatives and double negatives. Adults have difficulty with this form of questioning as well.
(e) A child’s level of development also affects whether the child understands certain concepts. These can be concepts that are difficult for everyone, or concepts that are only difficult for children. For example, experience shows that children often have difficulty with concepts that involving comparing two things, such as time, duration, measurement or frequency.
(f) Because of a child’s level of development, they may not ask someone to clarify a question they do not understand and may not clarify an answer which has been misunderstood.
(g) Importantly in the context of this case common sense and life experience tells me that children can and often do make disclosures relating to potentially embarrassing matters more easily to a person with whom they feel comfortable rather than a stranger.
30In the context of this case, these general directions are acknowledged, but due to what I observed to be the professionalism in the police questioning and the special hearing process the questions were largely not leading, nor confusing nor did they deal with issues that were demonstrably difficult for the child to grasp.
31I might observe in the context of this case, the VARE was conducted professionally and with a sensitivity to the child’s level of understanding and ability to articulate her position. In the special hearing, counsel was careful to follow the directions made at the ground rules hearing including that the language used be AA’s own for various items and body parts and importantly when suggesting an alternative view of events was in the simple terms and by way of direct questions, putting the defence position. Such rules are sensible and were correctly followed. It was agreed that Any differences between the evidence of the complainant and her VARE or other accounts given to other witnesses would be (and were) led through the informant or other witnesses. There is nothing to be gained by putting a position to a child of (then) 7 years of age aggressive or complicated propositions relating to events which occurred 2 years prior. The evidence in the special hearing properly probed areas of dispute with the complainant. Ultimately there were few.
32In order to assess this important evidence, I propose to summarise it in the order that “disclosures” were made, rather than the order in which the evidence was lead. There is a reason for this, so as to consider as Mr Hammill submitted the evolution of the complainant’s evidence over the period of the interviews. (I pause to observe that there has been criticism of the use of the word disclosure in the context of a trial such as this. I am alive to this issue, but in the circumstances, it is the appropriate use of the word).
33In addition, it is necessary to consider the age of the child and the relationship as far as I am able to ascertain, between the child and the accused and the child and the person to whom the first complaint was made, that is her mother.
Evidence of complainant’s mother (BA)
34BA presented as a nervous but articulate person who listened carefully to questions and readily indicated when she did not understand questions. I recognize that the events she was being asked to recall were now of events over 3 years ago, and some of those events have been recalled on many occasions and some not at all prior to cross-examination. She impressed as being a concerned person who believed the allegations the subject of this trial. The process was no doubt difficult for her, but she maintained composure throughout. Her presentation was that of a person who understood the importance of her evidence to the process.
35She explained the background of using the accused as a babysitter for her children. She somewhat reluctantly agreed that prior to this event, she found him to be suitable and qualified for this position. Her reluctance in accepting his suitability while she was giving evidence is understandable given her acceptance of the proposition that the accused had sexually penetrated her daughter. She however conceded that the children interacted well with him. The parents had utilized his services as a babysitter on several previous occasions.
36She described AA as of August 2018 as independent in toileting and dressing herself and volunteered she had been so since before she was 2 years old. She described her daughter as having great communication skills and as a child who would try to do things herself. However, if she was feeling unwell, she would not delay in asking for help. She strenuously denied that her daughter had ever wet the bed. When presented with a text message dated 27 April 2018 (exhibit B) that on a previous occasion when the accused had babysat, AA had indeed wet the bed and she had been so advised, a concession was reluctantly made. This, I assess, may simply be an example of a mother genuinely forgetting a bedwetting incident some years prior, which is understandable, or it may be evidence of BA being reluctant to give the accused any credit at all, which considering her belief in his abuse is also understandable.
37However, I must also observe that BA’s strong belief that the accused sexually touched her child does not carry weight in this Court. My observations are that BA has, as is her right and perhaps duty, to completely believe her daughter’s complaint as she understands it to be. That faith and her interpretation, in and of itself, is not evidence I can take cognisance of.
38BA did not agree with the proposition that AA was excited at the prospect of the accused babysitting that evening. She said another female babysitter was her favourite. BA maintained this position even when presented with a text she had apparently sent to the accused before the evening began (text dated 28 August 2018 (exhibit B). She mentioned more or less in passing that AA was unhappy that she was going out that evening but did not appear to give this any degree of importance in the later events. Her recollection was that AA was upset Lucas was there (rather than the other babysitter) before she left, not that she was going out. The reason AA was upset earlier in the evening is of little consequence, however the uncontradicted evidence that she was distressed, may be of some relevance to an assessment of the events the next morning.
39BA said that she and her husband returned home at about 9:45pm and the accused stayed talking about general matters until he left at about 10:30pm. No issues were raised about the care of the children.
40The next morning after going to the gym she was in the kitchen with the two other children when she noticed AA just standing in the hallway entrance to the kitchen. She observed that AA looked visibly upset.
41BA told the Court that AA said, “Why did Lucas lick my vagina?” And then “It was strange”. The child said words to the effect that she did not like it. BA agreed that the tone or meaning of what AA said was of a questioning nature. BA said she “froze”, indicating at least to me that at that point she understood her daughter to be telling her that Lucas has sexually touched her with his tongue. From the totality of her evidence and observation of the recording I conclude that her response was close to panic.
42She asked AA to come toward her and lifted her up to kitchen bench. BA said she asked her daughter to stop talking and to “Stop”. She asked the older child to look after the younger child and “screamed”, later (amended to “calling loudly”) her partner’s name to attract his attention. She took her phone to the bedroom with the intention of video recording further questioning of the child. The manner of BA giving evidence at this point signified the urgency with which she treated the situation at that time. Such a response by a mother who believed she had been told that her child had been sexually assaulted is proper and understandable
43An observation of the telephone video shows that BA looks panicked, with her actions very quick and a worried look on her face. She leaned over the child and shorty after crouched down to her level saying, “What did you just say to me in the kitchen”. There was I observe a real urgency in her voice such that the child could not help but discern, considering the apparently close relationship between the two. BA told the child “No one was going to get into trouble” in attempt to calm her. The child’s father was present during the video, but impassive. I will discuss the contents of that video below
44Later that morning BA reported AA to be upset and would not dress herself nor go back into her bedroom.
45After completing the recording, she and her partner took care of getting the other children to school and making enquiries as to what to do next. Between them they were referred to the child sexual assault investigative team. The child’s father was advised to leave the child’s night clothes out for collection. This was arranged, and BA folded or rolled the underpants the child was wearing inside the nightie and left them together on the kitchen bench.
46By about 8:50am that morning, BA and AA were at the SOCIT offices where they were met by Detective’s Smith and Bruce. BA was given instructions to perform an evidence investigation procedure by wiping what she said was the child’s vagina with gauze for later forensic analysis. Although she understood she was performing a vaginal swab, the diagram, exhibit 5 indicated that the swab was taken on the outer and inner labial lips of the child’s genitals, from the front part of the body to near the anal area. That is in effect a vulval swab comprising the outer and inner labia.
47After a short time, AA was taken into a private interview room alone and spoken to by the two detectives. The interview lasted about 20 minutes. Notes from that interview became exhibit A and Detective Bruce’s evidence is discussed below. There is no evidence that the mother was made aware of what was said.
48Next, mother and child were taken to the hospital where a forensic procedure was performed by a paediatrician and paediatric registrar. BA noted that she was present for that procedure. AA was reportedly upset by the process, which is unsurprising.
49BA was instructed not to discuss the allegations with the child, and she said she did not. BA agreed with the proposition that after the hospital she and AA went home and the child went to bed that night at about 8:00pm. BA agreed that AA told her that night that she wanted Lucas arrested, that she never wanted him to come back to the house, that she did not like him. BA reported that AA was angry with Lucas that night. She agreed that AA had potentially learnt about the concept and the word “arrest” during the day’s activities.
50This is an indication that somehow during the day, AA learnt the concept of Lucas being arrested and not allowed back into her home as a result of what she had told her mother. It is possible that the tension within the home may have influenced the outlook of the child toward the accused. This would not be surprising, but is an added dimension to an assessment of her evidence later. It is not suggested that the parents or anyone else had a direct discussion with the child in order to encourage her to say one thing or the other. However, her expression of anger toward the accused certainly reflected what BA was feeling and the child may have absorbed this emotion. As observed below, she had made no disclosures to police at this stage. There is no evidence that police had made such a suggestion to AA, so the obvious conclusion is that this information was transmitted in the home environment.
51On this point, I observe that Detective Bruce told the Court that as matter of professionalism and process, police do not discuss with complainants, especially child complainants, the concept of what may happen to an accused. He denied that he had engaged in such discussion with BA in the presence of AA or otherwise. BA reported that she was aware police intended contacting the accused that afternoon.
52In general, after this event BA reported that from time to time her daughter complained of “an itchy vagina”. This occurred several times, to her recollection in about April 2019. They visited the doctor about this, but she had never noticed her daughter scratching that area. She had spoken to her daughter about the need to “check the area” and had done so. She spoke plainly to her daughter about such matters.This information was confirmed at the committal proceedings in mid-2019
Medical evidence/Forensic evidence
53Was presented by consent. None of it was disputed.
54In assessing the evidence given by experts in this case, I observe at the outset that their qualifications and experience to provide the reports and opinions they have was not challenged. I accept that people with specialised knowledge or training are allowed to give their opinions about matters within their field of expertise, and that evidence may assist the decision-making process. Even though the evidence was not challenged I am not required to accept it if there is proper reason to reject it.
55In the context of this case, it is the inferences and conclusion that can be drawn from this evidence that is of importance, rather than the uncontradicted opinions themselves. I therefore remind myself that if inferences are to be drawn from evidence the Court must be careful in doing so, and only to draw inferences that are the only rational inferences in the circumstances. This is particularly so, whereas in this case, the prosecution seek that an inference be drawn which they say supports the case for the prosecution and they submit corroborates the version given by the complainant.
56If inferences are to be drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference and that I should not draw such an inference unless it is the only rational inference in the circumstances.
57I acknowledge that in the context of this case, the expert evidence is of a circumstantial nature. If it is accepted, and there is no reason not to, that does not necessarily mean that the accused must be guilty of the offences charged. It is just one piece of circumstantial evidence and must be considered in the light of the other evidence in the case. It is important that I recognise the limitations of DNA evidence. I shall refer specifically to the findings below.
Medical evidence
58Evidence was given by paediatrician Dr Andrew Rechtman whose report became exhibit 5. It was tendered by consent and the doctor was not required for cross-examination. The purpose he stated for being asked to give a report was due to the reported allegations that a male babysitter had “sexually interfered” with AA. He confirmed that the child, the child’s mother, two police officers and a paediatric registrar were present during the assessment and her mother and the registrar were present during the examination.
59Exhibit 5 confirms that AA was reportedly a healthy child, with the only matter of note was a headache the day before. He observed her to be “very articulate for her age and happy and cooperative”.
60His conclusion was that there was no obvious injury detected. He further observed that “the absence of any findings does not preclude the fact that the alleged incident did not occur.” He took further swabs, including a high vaginal swab for DNA examination.
61It was submitted by the prosecutor that the results of the medical examination were neutral, that is supporting neither the prosecution not defence case. If it were the case that the prosecution had alleged the accused merely looked, swiped and or licked the child’s genitals, this is accurate. However, Mr Hammill submitted that as the prosecution claimed that the penetration was to a significant degree, then some observable changes or report of pain may be discerned. This might be so, but I accept the evidence of Dr Rechtman. Sometimes such penetration may result in discernible changes, sometimes not. This does not support the prosecution case. It does not support the defence position.
Forensic evidence
62Dr James Beaurepaire, case manager from the Biological Group Forensic Services spoke to the report prepared by another forensics expert Dr Goray. The admissible parts of this report became exhibit 8 tendered by consent. The witness’s qualifications for the evidence he gave were unchallenged. Forensic services received items including the clothing collected by police said to be the items worn by the complainant the evening before (underpants and nightie) and reference samples from the complainant and the accused. The sample taken by AA’s mother is referred to as the early evidence kit (EEK), and the sample taken at the hospital is referred to as FMEK. DNA analysis and comparison was conducted upon the samples and items.
63The results of tests showed:
(a) The EEK (taken by the mother) was analysed and showed a single source of DNA attributed to AA. The accused’s DNA was excluded as a contributor on single source analysis. The FMEK, which included a high vaginal swab returned a similar result. On the YFP analysis, which is an analysis targeting only male DNA, the accused was not excluded as a contributor, with a frequency of 1 in approximately 1237 males.
(b) Mixed profiles were noted from the clothing, in some areas from 3 contributors. Samples confirmed the DNA consistent with AA as a contributor. This is unremarkable.
(c) Three areas of the underwear were subject to high intensity light source. A sample from the hip area of the underpants was unable to be analysed further and showed mixed DNA of AA and others. On the left and right waistband area, it showed the accused as a potential contributor between 16,000 and
4 billion times more likely than another person.(d) The inside front of underpants, crotch area (as depicted in photo E9) was analysed. The DNA reference sample obtained from the accused was subsequently compared with a sample of DNA located in this area the crotch area. The test results show that it is 1.3 billion times more likely that the accused is a contributor to the DNA sample than another.
(e) The analysis of the 3 areas on the underpants show in conclusion that, using the verbal equivalent scale noted in the report provide strong or provide extremely strong support for the accused’s DNA being located there. This is the highest result on the scale of verbal equivalents.
64As these results indicated the high likelihood of the accused’s DNA being present on the tested areas, no further areas were tested.
65In addition, an animal hair was located on the inside crotch area of the underpants. It was not in dispute that neither the accused nor the AA family owned a dog. No ready explanation was available for this apparent contamination. The evidence of Dr Beaurepaire was that something like this can be picked up easily.
66Evidence was tendered and given as to the ability and likelihood of transference of DNA from one surface to another. Page 2 of the appendix to the report tendered contains the detail I have read and taken into account. Primary transfer refers to the direct deposit of biological material onto a surface, by the donor of that material, such as (my example) the transfer of DNA when a donor touches a surface. Secondary transfer whereby there is no direct contact between the donor and the and the final location, such as when a donor touches one surface and then that surface touches another, resulting in the donor’s DNA being deposited on that second surface.
67It was accepted that any quantity of biological material may be transferred from trace to optimal amounts depending on a multitude of factors, including shedding of an individual, the initial amount of DNA present, the surface type and moisture present and mechanism of contact. This observation is relevant to both primary and secondary transfer. The witness confirmed that if an item is rolled up, DNA can transfer from one item to another, by way of secondary transfer, so that if DNA is one item and it is rolled up with another item, DNA can be transferred to that other item.
68The lack of the presence of any DNA attributed to the accused being found on the swabs taken directly from the child at the hospital (as opposed to clothing) is important. If the accused had put his finger inside the vaginal area of the child (high or low) there would be some expectation of his DNA being present not much more than 14 hours later. The presence of possible DNA from the accused on the EEK swab is unexplained but not as significant. It may provide some, but weak corroboration for the complainant’s version of events. The lack of evidence from the more rigorous testing does not corroborate the prosecution case where corroboration may be expected. Even if the words of the complainant are interpreted as the accused parting her labia and/or licking that vulval area, some DNA would be expected to be present, given the FMEK swab was taken about 14 hours after the alleged event, and there was no reported toileting or washing in that time (Dr Rechtman’s report).
69The prosecution rely on the presence of DNA attributed to the accused on the child’s clothing being significant and supportive of their case. They point in particular to the presence of the accused’s DNA being detected on the inside crotch area of the child’s underpants as significant. Mr Hammill posited that the child’s identification of her wearing stripey underpants during the evening the events occurred as suggesting that perhaps the wrong underpants were delivered to police. This is an unhelpful diversion and at best is some evidence that the complainant was not particularly clear about some of the peripheral events of that evening when she was speaking to police. This is not significant.
70When considering the relevance of the presence of DNA attributed to the accused being found on the underwear including the inside crotch area of the underpants the prosecution suggest it supports an inference that the accused must have touched the underpants, therefore by implication did the acts complained of. I note that the nightie was not tested for DNA as it was not considered necessary. Both the left and right waistband area of the underpants show profiles for three contributors including the child the accused and another unknown person. The crotch area shows mixed DNA from two contributors that is the child and the accused. I have used the assumption that the accused is a contributor notwithstanding the fact that the DNA shows what is referred to as an extremely strong statistical support for the accused being contributor. It was not argued that this statistical support should not result in an inference that it is the accused DNA and I have proceeded on that basis.
71However, as the accused’s DNA is contained on the child’s underpants then it must have been transferred there by way of secondary transfer in some form. Part of the child’s allegations are that the underclothes were removed by the accused but there is no allegation that he removed the underwear by clutching the crotch area of it. It is the prosecution theory that the DNA would be transferred from the child’s genital area, after he touched her 3 times, including parting her labia at least and licking her in the whole area. After the underpants were repositioned on her body she went to sleep. The child’s crotch area being a warm and probably moist area would be a good medium for the transfer of DNA according to the schedule of information contained in the DNA report. There would be an expectation that in such circumstances if the accused’s DNA was on the child’s body transfer could easily occur to the underpants. However, although there was a moderate to strong DNA finding contained on the swabs taken from the child’s genital area, in the EEK swab, none was discovered on analysis of the more comprehensive swab conducted in sterile surroundings. There are many transfer possibilities to explain the EEK finding. It is also consistent with the accused’s evidence.
72Therefore, the DNA on the crotch area of the underpants must have been transferred at some other time, by way of secondary transfer. It is obvious that for DNA to be transferred from one surface to another, it must be and still remain on the first surface. I refer myself to the self-direction regarding inferences. The only rational inference which can be drawn from the available evidence is that there was effectively none of the accused’s DNA on the child’s internal genitals, the accused’s DNA was transferred to the underwear at another time, likely when the underwear was rolled up with the nightie.
73The observation that there was no DNA attributed to the accused on the person of the personal FMEK swabs taken from the child, presents a difficulty for the prosecution case.
74I cannot therefore draw the inference that the DNA on the child’s underwear supports the prosecution case that the accused on two occasions placed his finger or tongue in or on the genital area to an extent amounting to penetration. I acknowledge penetration means to any extent. The lack of any DNA on a high vagina swab certainly does not support any conclusion that there was penetration to the internal area of the vagina by any part of the accused hand or finger. The lack of DNA on the vulva and labial swabs do not support the prosecution case of direct contact with the accused’s hand or finger to that area. This a matter to be considered when considering whether the prosecution have proven its case.
Assessment of complainant’s evidence
75Scrutiny of the evidence is a necessary role for the judge of the facts. I accept that it is necessary to be extremely careful in assessing the evidence of the complainant, as to prove the case to the required standard, the Court must accept this evidence to that standard. She is the primary witness of the charges laid. In doing so I would also assess the evidence to enquire whether there is any evidence to support it generally, such what she said in her first complaint, to her mother and the versions she gave to police within a short time frame of the complaint being made. It is fortunate in this case that police acted very quickly to record a complaint soon after being alerted to the issue by the complainant’s mother, but that is not the end of the matter. The sequence of events is important, as is any conversations concerning the complaints that took place between the morning of 29 August 2018 and the special hearing on 18 December 2020.
76It is necessary to compare the contents of each of these pieces of evidence for accuracy, consistency and reliability. It is also necessary to consider the entirety of this evidence in the light of other evidence presented by the crown and assess whether corroboration exists where corroboration ought properly to occur or for inconsistencies, where inconsistencies may raise a doubt as to the reliability of the crown case.
77Scrutiny of the complainant’s evidence and the evidence of other witnesses must be undertaken with the considerations of the family dynamics and expectations of the accused in his position as a babysitter in mind. Scrutiny of the complainant’s evidence requires scrutiny of evidence of the people to whom she complained on the first and subsequent occasions and whether their evidence is also honest and accurate and reliable.
78In the context of this case, I must be aware that when the special hearing was conducted, the complainant was attempting to recall an event that occurred some 2 years prior, after she had viewed her VARE, which was conducted less than 2 days after the event complained of.
Complainant’s evidence
79The complainant’s version of what happened that evening as initially relayed to her mother is as described above (paragraphs 41 and 42). Thereafter she recorded a conversation (exhibit 3).
80During the recorded conversation with her mother thereafter, AA made the following disclosures: “He (referring to Lucas) was looking at my pajina.” (It has been assumed that the reference to pajina meant a reference to her vagina, or vulval area. This was not explored with the child at any time by anyone.)
81AA then said, “I just tried to (pause) he was looking at my pajina”. I interpret this part of the conversation as the child seeking to do as requested, that is telling BA what she was trying to say in the kitchen.
82The conversation proceeded with the mother asking questions and AA responding:
Question“When?”
Answer“When I was about to go to sleep.”
Question“What was he looking at it for?”
Answer“I don’t know.”
83Question asked while BA was bending down to be close to the child’s face, but more at her level:
“What, so what happened. Explain to Mum and dad what happened last night. No one is in trouble we just want to know Okay were you getting changed?”
84The response was “No”.
85I pause to observe that no doubt BA was trying to elicit a response from the child. However, at this stage the atmosphere was what I observed to be fraught. The questioning as demonstrated by the above series of statements and questions would be I suggest confusing.
86There was then some discussion about her supergirl outfit and the child said “I changed, hop into bed, then Lucas came in and went out …”
87BA confirmed she was talking about the bedroom then asked, “What was he in your bedroom for?”
88The response was “I don’t know”.
Question“Well when he was in the bedroom what did he do?”
Answer“Checked my pagina. And he said good night. He said good night first and then went out and then he came back when I was asleep and then he looked at my pagina.”
Question“So how would he look?”
Answer“With his fingers and with his tongue that was a bit gross.”
89BA then proposed the order of events to be, “He come in, said goodnight to you then came back into your room after that. And you were asleep?” There was no response from the child to this proposition.
90She asked, “Did he talk to you?”
91The response was “Until he wake me up”.
92BA asked, “Did he know that you were awake”.
93The response was “Yeah the first time, and the second, cause I was asleep the third, cause I was really tired.”
94Conclusions the Court can make from this conversation is that the child reported that she was in bed. Lucas was looking at her genitalia, he looked with his fingers and he licked it the second time he came into the bedroom. He came into the bedroom a third time, but she was asleep.
Preliminary police interview.
95The next time the complainant told anybody what had occurred the night before was to Detective Bruce. His evidence is and supported by exhibit A, a 2‑page copy of notes taken by another officer. Detective Bruce was assisted in his recollection by the notes. Unsurprisingly he had little independent recollection otherwise and had not reviewed the notes before giving evidence.
96The complainant reported that Lucas licked her in the night. She told the detective that he went in and out of her bedroom three times in the night and something happened every time and it was the same thing.
97She said she was sleeping in her bed with the night light on. She said the first time she was in bed and asleep and he came in and “looked at her pajina by taking it off and looking and looking in there”. She said she kept on sleeping, her eyes were closed but she peeked. He (meaning Lucas) did not say anything. She said he took her undies down, and in answer to a question whether he did anything with his hands said, “Pulled it open” and then “went out said he did the same thing again”.
98When asked if his face was near her the vagina, she said “No”.
99When asked if he touched the vagina she said “No”.
100When asked if he licked her vagina she said “No”.
101When asked if he pulled her undies down, she said, “Yes to her ankles and that she peeked.”
102She said, “I made her feel sad”.
103My observation of this disclosure is that the child reported Lucas looking at her genital area and took off something. I can infer she was referring to her underpants. It is plausible that this was a reference to at least inappropriate touching. The child’s denials are noted.
104This apparent difference between what the mother was telling the police officers she understood the complaint to be and what the child told police officers, no doubt drove Detective Bruce’s decision to ensure that a forensic analysis was carried out as quickly as possible.
VARE
105It is noted that the mother and child had gone home after the forensic and medical analysis was performed. It is observed that the child became understandably upset at the medical intervention. This was no doubt a very invasive experience for the child, especially as the medical officer determined that high vaginal swabs were required. In those circumstances the decision to pursue a formal interview the next day is not criticised.
106The pre-recorded interview with Detective’s Bruce and Smith commenced at 08:22 hours on 30 August 2018. The interview proceeded for about 40 minutes. I have viewed this interview and had access to the transcript.
107My observation is that the child, who was aged 5½, was apparently confident initially and presented as being happy to proceed with the process. She chuckled loudly in an apparent frivolous manner from time to time during the interview, but not inappropriately. Her presentation may have been due to anxiety or something else. I draw few conclusions from her presentation other than to observe that she appeared to understand the questions and was articulate for her age. She told the officer that telling the truth was a good thing and a lie was a bad thing. She was reminded that the interview was a continuation of the conversation that she had with the officer the day before and that they went to the hospital. She became noticeably quieter and downcast during parts of the interview when questioned directly about the things she would know she was there to talk about. I observed Detective Bruce to ask open and non-leading questions and to focus his questions to the child’s responses. He used age-appropriate language throughout.
108The relevant parts of her interview were:
· She said, “He came back into the room”. At this point she became reluctant to answer questions but said, after some delay.
· She said “He licked it. He walked back out.”
· She responded to a question indicating that “he did not say anything”.
· She said she was “Asleep with her eyes closed”. There was some questioning about whether she peeked or not. She said she had not, but “felt the lick”. It is noted that she was able to correct the police officer when he asked about the conversation the day before. She seemed to be responding appropriately to the question-and-answer session.
· She said “He came in 3 times. He did it again and again”. She said she “Heard him on the carpet”. She said she “Did not have doona on her legs.” The observation supports the proposition that she had her eyes closed and did not see what was happening to her.
· She said that “He needed to check her vagina, but she did not know why”.
· She said he had “Never checked it before”. It is my observation that the child seemed to understand her genitalia was being checked suggesting perhaps that she understood there was something that needed to be checked for. There was no clarification of what “checking” meant.
· She said he licked “It”, referring to her genitals which she called her pajina only 1 time.
109In interpreting the entirety of her interview, it seems that she was referring to the second time he came into the bedroom that this licking as she referred to, happened.
110She responded to a question for further detail saying she “Felt his tongue go everywhere in the middle. Felt it go all inside. It made her me feel sad. He did not make any sounds. He pulled her undies back up and went out.”
111She said he “Used his finger on the first and third time.” This is in obvious reference to the first and third time he came into the room. I note she had already indicated that on the second time he came into the room he licked it. She said, “He held vagina open with his second hand”.
112She said that he did “Nothing else”.
113She also told the police officer that she liked Lucas and he was a nice person and that she liked him babysitting her. This is an observation that appears to be in contradiction to what she had told her mother the night before. This might well be an indication that by this time of the interview the child was feeling comfortable with the police officers and was able to speak to them openly. This might also be an indication that the night before when she had spoken to her mother, she told her mother that she was angry with Lucas because that might well be what she perceived her mother wanted to hear. These are not findings that I make positively about evidence but simply matters that the Court must consider when assessing her reliability as a witness.
114The final direct evidence from the complainant was taken at the special hearing on 16 December 2020.
115When considering this evidence directions made at the ground rules hearing must be taken into account. The evidence proceeded after the complainant had viewed her VARE. The cross-examination was conducted with the assistance of a witness intermediary. Some of the cross-examination related to the other events of that evening with Lucas. She denied that he had given her a piggyback. Otherwise, there is no real dispute between in general terms the version of events earlier that evening given by the child and the version of the events that evening given by the accused in his record of interview with police. It was acknowledged by the prosecution that the directions made for the special hearing included that the child not be questioned on matters including matters in issue for which evidence may be available elsewhere.
116The complainant confirmed that that evening the accused had sought assistance to locate the baby wipes for nappy changing and she assisted with that locating the baby wipes in the kitchen. She confirmed that he was present when they brushed their teeth, but she changed into her pj’s by herself.
117Apart from her recollection that he read a story; the accounts are consistent. The memory or lack of memory of a piggyback or reading a story are not important.
118Again, AA denied that he had done anything else. She denied that she had an itchy “vagina” after she hopped into bed and that she denied that Lucas had wiped her down with a baby wipe.
119It is noted that this evidence was given a little after two years after the initial interview was taken with police. She watched this initial interview prior to being cross-examined during the special hearing. She said watching it reminded her what happened.
120In total and in summary the evidence of the complainant’s disclosures from any source, including complaint evidence was:
(a) The accused went into her room three times after she was in bed.
(b)He looked at or checked her pagina, as she called it. Her reference to pajina, and later vagina is to the entire area of her genitals, including her vulva and labia to the front of her anal region. Her reference to “it going everywhere in the middle” can be understood as a reference to the entire area.
(c)She said he used his hand, one or both to “open it”. This can be interpreted as an opening of the labia area, either by direct manipulation or moving the top of her legs as she indicated to by example when she placed her hands on her upper thighs. Such an action would open her legs sufficiently to allow the area to be checked.
(d)She was not wiped with a baby wipe. In light of the previous evidence given in the VARE and to her mother as to her being asleep and tired, the child’s denial that she was wiped with a baby wipe must be taken with the understanding that she felt rather than saw what happened.
121The differences in nuance of each of the interviews is noted. The differences are not vast and can be understood as the differences in timing and to whom the disclosures were being made, and the circumstances surrounding each conversation.
Police investigation
122The informant in these proceedings, Detective Senior Constable Bruce was responsible in large part for the procedure of the investigation and decisions made concerning same. He confirmed that he was notified of this complaint at approximately 8:50am on 29 August 2018. He appropriately took the first steps on the complaint being made to undertake a preliminary interview, designed to inform further investigation. The processes undertaken are done so with sensitivity to the age of the child, the direction and wishes of the parents. He confirmed the process described above.
123Detective Bruce was cross-examined as to the reasonings for the investigation for the forensic investigation taking place in the timing that it did. He explained satisfactorily in my view why he considered that to be an urgent process.
124He said he had discussion with the parents, either one or both, separate to any discussions with the child. He said that such discussions usually take only minutes. I accept he was aware of the potential for contamination of disclosure information and took appropriate steps to limit any such influence being visited on the child while she was in his presence. At the time he had his first discussion with the child he was unaware that the mother had taken a telephone recording.
125After he had done the preliminary interview with the child they went to the Forensic Hospital. He did not tell the mother anything about the contents of his discussion with the child. I accept that. He said that he gave her explicit instructions not to discuss any evidence with child. I accept that. He did not talk about the accused with the child and did not mention anything about the accused being arrested or anything like that. He spoke to the mother about the process of taking the interview with the child and told her that some statements might be taken from others. The process of investigation is referred to above.
126The record of interview with the accused was conducted as soon as practical due to the concerns that the accused was working in a childcare centre. Police were satisfied that the information provided required swift further investigation. I have no criticism of the course of action taken by police.
127In relation to this interview, I remind myself that the accused was given a warning in standard form that he did not have to answer questions if he did not wish to and that the interview was the subject of recording. I further note that the interview I received in evidence had been edited to remove agreed inadmissible parts of the interview. I draw no conclusion from that process.
128I further remind myself that the prosecution is entitled to rely on that record of interview as part of its case before the Court.
129In answer to questions, the accused explained his background to his interactions with the family both as a childcare worker and babysitter. He explained the events of the evening before and after the parents left. He provided great detail of the events of the evening.
130He explained that prior to the parent’s leaving AA was upset about something trivial and he settled her down just before the parents left. He spent time with all three children in their rooms and in the lounge room. During that time, he interacted physically closely with all three children. They watched some TV until about 8:00pm. He described the complainant being what he called “fidgety”.
131He observed that at bedtime AA was a little upset that her parents would not be home. He eventually put all children to bed in their rooms, after changing the youngest childs nappy. He used wet wipes from the kitchen to assist the process. After putting the youngest to bed, he went into AA’s room, removed one of the two doonas and turned off the main light and put on the night light. After checking on the child DA for some time he returned to AA’s room and sat with her as he perceived her to be fidgety. He observed the doona off the bed and her legs sticking out. He saw her knickers down by her feet. He asked her to pull them up. She did and he sat with her for a while. Otherwise, he reported no issues.
132On further questioning he said he checked on AA the same number of times as the others, 2 or 3 times. By 9:10pm they all were asleep.
133He did not help her get dressed at all. He had touched her clothing when she had her superman outfit on. When changed into her nightie, he did not touch her underwear at any time.
134He observed AA to be upset during the evening, being concerned that mum and dad were not coming back.
135It was put to him that on three separate occasions he entered her room and pulled down her knickers and pulled apart her vagina lips and looked and licked her vagina. He denied that. He did not suggest any activity that could be so construed and denied any act that could be misinterpreted.
136My observation of this part of the interview is that the accused was becoming somewhat uncomfortable in the interview process. The detective asked him on two occasions whether he was okay to continue and he said that he was. However, my observation is that he appeared at least to an objective observer to be uncomfortable during this part of the process.
137He described sitting on the side of AA’s bed patting her while she went to sleep, and he described going into her room when she was getting changed and he was looking for baby wipes.
138The record of interview itself was relatively short except for the accused explaining in some detail the events of that evening. The prosecution is entitled to rely on this record of interview as part of their case.
139Otherwise, Detective Bruce confirmed that the accused has no convictions and no other complaints have been made concerning his interaction with children.
140It was suggested in cross-examination that Detective Bruce’s process of investigation was driven by desire to convict. I do not accept that. The Detective had appropriate regard for the seriousness of the allegations, considering the occupation of the accused, therefore potential danger if the allegations as relayed by the child’s mother were true.
DEFENCE CASE
141The accused Lucas Garratt gave evidence. While acknowledging that the accused has no obligation to give or call evidence, the fact that he did so does not alter the burden of proof. In choosing to give evidence, he made himself available for cross-examination. He is a witness like all other witnesses and his evidence is assessed in the same way. In general terms he denied the allegations put, giving an alternative explanation for the events of that evening which invokes a defence of a hygienic procedure, carried out in good faith.
142His explanation, if accepted, must lead to a finding of not guilty, as I could not be satisfied that the prosecution has proven their case. However, the accused does not have to prove that his version is true. It is the case in a circumstance such as this that the onus and obligation remain on the prosecution. Even if I do not positively accept that the accused’s evidence is true, but think it might reasonably be, I will have a reasonable doubt about the prosecution’s case, and again, will find the accused not guilty.
143The raising of a defence as has been raised in this case does not alter the burden and onus of proof. In order to find the accused guilty, I must not only reject his evidence, but also find that the prosecution have proven their case on the evidence provided.
144In assessing his evidence, I will keep in mind that he is a person of good character and is entitled to the benefit of that, both in assessing his credibility and considering whether the Crown have proven he has committed any offence, acknowledging that good character is not a defence. A person who has previously been of good character can commit a crime for the first time.
145In considering the accused’s evidence a short summary is required. Mr Garratt is now 29 years old, 26 when these events occurred.
146He gave evidence about his close family background. His interest in child development and apparent ease with children drove his career path and training into the childcare/development area since the age of 24. After training commenced as part of his diploma requirements, he worked at a local childcare centre.
147His duties included providing rudimentary hygiene care to children frequently, especially when involved in the toddler room for children aged under 3. Throughout the proceeding the phrase “rudimentary intimate hygiene care” was not defined nor questioned by either party. I therefore take its usual meaning to be to wash and/or wipe a child’s genital regions to ensure cleanliness after toileting or accidental soiling and/or the ensure that the genital areas of both boys and girls remained clean and hygienically maintained.
148He said the requirement for personal hygiene assistance was more frequent for younger children, but still necessary from time to time for older ones.
149His experience included from time to time dealing with children who had either personal hygiene issues or presented with itchy genitals. He used the term fidgeting to describe a child who presented scratching their genitals.
150He originally looked after AA at the childcare centre, in in the toddler room for about 6 months. During that time, he provided personal intimate hygiene care as required. At the end of each day, he provided all parents at the centre with information about the day’s activities, but did not as a matter of course include any personal intimate care provided. It was expected that this care would be provided, and therefore occurred in the normal course of the day.
151He commenced performing babysitting work for families sometime after commencing childcare training. His duties also occasionally included personal hygiene care for those children. At such times he would not routinely report such requirement to parents, as he considered it part of his normal duties.
152He was asked to babysit by BA. Exhibit B shows the first time, about 17 November 2017.
153Babysitting occurred about 4 to 6 times prior to this event. From time to time he provided personal hygiene care for each of the children. He did not so report as felt it was not required. He felt he got on well with the children and the family.
154He was told that the children were always happy or excited to see him. On that night AA was upset. He was told by her mother the reason for that was because she was going out, not that he was not the babysitter they wanted.
155He confirmed the truth of the detail of the events of that night as he told police in the record of interview apart from the later part of the evening.
156During the evening he observed AA fidgeting while watching TV and appeared to be fidgeting around her groin area.
157At some stage before bedtime, he changed EA’s nappy and used baby wipes which were kept in the kitchen. He supervised teeth cleaning and the children changed themselves into their pyjamas.
158During the evening he had close personal contact with the children while reading and watching TV. Earlier AA was wearing a supergirl outfit.
159At bedtime, AA changed into her pyjamas. He said she required consoling. He sat on the carpet and patted her on the back. The ladybird light was on. During that time, he noticed she was scratching her genital area. He said he checked the other kids. When he walked past her room again she appeared to be asleep but still fidgeting. He went into the room and observed her to be apparently asleep. He observed her to be under the doona apparently scratching her groin area. He moved the doona over in order to check to see if there was anything in her underwear. He said he told her he was going to check her genitals. He said that he saw a small foreign object which he thought looked like a grain of rice or similar. He went to the kitchen and obtained a baby wipe, returned to the bedroom, wiped her genitals. He returned to the kitchen to bin the baby wipe. It is unclear whether he indicated that she pulled up her own pants or he did. He said she was sort of awake.
160Later in his evidence he told the Court that he told her at some part of the 3 visits that he was going to check her undies.
161When the parents returned home, he agreed that there was time to report the interaction to the parents but did not do so as he considered it to be a normal care activity. He did not report difficulties in sleeping nor changing EA’s nappy and using baby wipes for that activity. His evidence was that he considered there was nothing to report.
162In referring to his police interview he admitted that were at least lies by omission. I find he clearly told untruths, knowing he was lying in his record of interview. His explanations were not entirely satisfactory. He reasoned that at the beginning the process was friendly and calm, but as it unfolded, he became worried that the parents may believe that he had done something that could be taken out of context.
163He knew his answers from that time were not true. He said he was worried about what he was perceiving to be a false accusation.
164Inexplicably he said he did not tell police what he now says occurred because he wanted to talk to parents directly. He said he understood the accusation was of sexual assault and was devastated.
165After the interview he left his employment and went home. He told his step-mum and dad what he had told the police, and what he did not.
166His stepmother was of the view he said, that he ought to tell police everything. She sought legal guidance on the telephone and relayed advice not to do so, and to wait to see if anything happened. If will refer to the wisdom of this advice below.
167In cross-examination it was suggested to him that if he felt the need to advise via text of a bedwetting incident in April 2018, he would have felt equally compelled to advise of the hygienic procedure. He pointed out that the April 2018 contact was initially via a telephone call when he was trying to locate clean sheets. The content the text exchange supports that explanation. There is no sinister conclusion to be drawn from this text. He confirmed that his training was what he did was normal care.
168In relation to the events of the 28 August 2018, he said that AA was asleep up until the time he was pulling her undies up. He agreed that that part of his interview was inconsistent. I have already noted his concession that much of it was a lie.
169He agreed that at the commencement of the interview a caution was given, but it did not occur to him to stop the interview.
170He admitted several lies during the latter part of the interview. I acknowledge that a lie is an untruth told at the time the person knows the statement to be untrue. There is no doubt that he lied in the interview in several places.
171Again, his inexplicable explanation for doing so was because he wanted to discuss it with parents directly. I note this was not done.
172He said further that he did not feel confident that police would understand what he might try to explain, so he lied.
173In assessing the evidence of the accused I note the above self-directions regarding standard and onus of proof. In addition, it must be acknowledged that by the time the accused told his version of events to anyone except his parents he, via his lawyers, had been served with the evidence relied on by the prosecution, including no doubt the forensic results, and the complainant’s interviews. It must be acknowledged that he was able to tailor his evidence to fit the objective facts.
174In addition, the telling of lies requires a further self-direction in considering his evidence. In summary I accept that the Court can use the accused’s lies to help in assessing his credibility. I have found he lied and explained where. Of course, a lie does not automatically result in a finding of guilt, but is a consideration in assessing credibility.
175If I find that the lie was told because the accused believed that he had committed the offence or offences charged and lied to avoid [the position he is now in, then I may consider that in assessing his evidence as a whole. In effect this may mean that the explanation for lies is a consciousness of guilt on his part.
176However, I also accept that all of the evidence must be considered.
177In addition, I acknowledge that lies are sometime told for other reasons than to avoid being charged or convicted of an offence. The explanation given by the accused that he was devastated by the direction of the interview and that he wanted to speak to the parents directly is naïve, but in the circumstances and presentation of the accused is plausible.
178In support of this decision not to put the record right immediately is supported by the unchallenged evidence of his stepmother, Deborah Garratt.
179Deborah Garratt told the Court that when Lucas came home on 29 August he was upset. He relayed that he had been accused of doing something to AA, and that he had not told the police everything. He said he thought police had misinterpreted what he said and he just wanted to speak to the parents. So, while this explanation seems on the surface to be nonsensical there is support for the proposition that the view was honestly held.
180Deborah Garratt said that the accused told them he had wiped the little girl with baby wipes because she was fidgety. He told her he thought it was the right thing to do. In general terms the evidence of Deborah Garratt of what the accused told her immediately after the police interview is on par with this version given in Court last week. This militates against a conclusion that the version was concocted after reviewing the prosecution evidence.
181Deborah Garratt’s first reaction she said was that the accused ought to go back and tell police. She understandably thought they ought first take legal advice. Unfortunately, as it was after hours, a decision was made to seek advice from a 24-hr internet-based service. The advice was apparently given after she gave a brief outline of what she understood the issue to be. As I understand her evidence, she made the call and she relayed the information she had been given. The advice was not to go to police and further that they did not need a lawyer until if and when charged.
182I can quibble whether the advice given was sensible or not. Suffice it to say that it is unsurprising advice for an internet service to give in the circumstances. The advice giver may not have had a full understanding of the issues involved. Generic advice is not always helpful. It was not helpful in this case. The quality of advice in such circumstances can be compared with the advice that many people receive on the internet on medical matters. It is generic, unnuanced and often wrong.
183There were many things the accused did that were unwise about that evening. Many of his actions were naïve. He could have talked to the child earlier in the evening when he first noticed fidgeting and asked to check her underwear then. He could have advised the parents that she seemed to have an irritation. He could have declined the interview with police until he sought advice. He could have told police the truth in his record in interview. He could have immediately corrected the interview with police. He could have taken immediate advice the next day and in all likelihood a properly qualified and informed lawyer seized of all of the information may have advised a correction or at least an interview in the presence of a representative.
184He did none of those things, but such naivety, is not relevant to an assessment of his credibility nor guilt. His evidence raises a doubt on the prosecution case.
185I therefore find that that accused pulled the underpants of AA down while she was in bed to look at the cause of her apparent discomfort. She was asleep or nearly so. I find that in all likelihood he touched her genital area in doing so. I do not find that he put his fingers inside the vaginal opening but accept that the meaning of penetration includes penetration to any extent. He would have to open the labial area of the child to check for irritation. This may amount to penetration. In the circumstances and facts as I find them to be, I find that he conducted this action for hygienic purposes and in good faith.
186I further find that shortly thereafter he wiped the child’s genital area with a wet wipe. Again, this may well amount to penetration, but again he performed this act for a hygienic procedure, carried out in good faith. I do not accept that he licked the area. The child was understandably mistaken as to what she felt. She has not lied. She is merely mistaken. At no time did she say she saw the event, but felt it. The mistake is understandable.
187I do not accept that the accused penetrated to any extent the child’s genitals on the third occasion, but reattended to re‑dress the child. Again, the child has not lied, but is again understandably mistaken.
188For those reasons, I return a verdict of Not Guilty on counts 1, 2 and 3.
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