Director of Public Prosecutions v O'Quinn (a pseudonym)
[2023] VCC 770
•12 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Hamish O’Quinn (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE SYME |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 May 2023 - 11 May 2023 |
| DATE OF JUDGMENT: | 12 May 2023 |
| CASE MAY BE CITED AS: | DPP v O’Quinn (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 770 |
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REASONS FOR JUDGMENT
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Ms D. Lamovie | Victoria Legal Aid |
HER HONOUR:
Introduction
1On 8 May 2023, the accused, Hamish O’Quinn,[1] was arraigned on an indictment charging that between 20 January 1979 and 19 January 1985, he incited, procured or attempted to procure the commission by Esther Cardenas,[2] a girl under the age of 16 years, an act of gross indecency with the family dog in the presence of Hamish O’Quinn. To be clear, the allegation from the prosecution is that the accused procured that act.
[1] A pseudonym.
[2] A pseudonym.
2In short, the accused was charged with one count of gross indecency with a girl under 16 years of age contrary to section 69(1)(b) of the Crimes Act 1958 (Vic).[3] This was charged in conformity with section 7B(2)(b) of the Criminal Procedure Act 2009 (Vic). Upon his arraignment, Mr O’Quinn pleaded not guilty.
[3] As it then was.
3This charge was, at one time, part of a wider indictment containing other charges. That indictment was severed without the court’s consideration. I am not aware of the details of other charges against the accused.
4An order for trial by judge alone was made by Her Honour Judge Marich on the application of the accused on the basis that it was in the interests of justice for such an order to be made. That application was granted and Her Honour’s reasons are available.
Relevant principles
5Pursuant to the Criminal Procedure Act 2009 (Vic), a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any findings that can be made by a jury as to the guilt of an accused person. Such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as the judge, apply, and the findings of fact on which I rely.
6In Fleming v The Queen [1998] 197 CLR 250, the High Court stated that it is necessary for a judge to expose the reasoning processes linking the principles of law to the court’s findings of fact and the verdict it reaches.
7In considering my verdict, I am required, as the trial judge, to take into account any warning, direction or comment that any law would require to be given or made to a jury in such circumstances. These are general directions that I must take into account. They are fundamental rules designed to ensure that an accused person receives a fair trial, according to law.
8Having brought the charge, it is the prosecution who bears the onus of proving it. The high standard to which such a charge must be proven is the standard of beyond reasonable doubt. That is to say, in order to sustain a conviction for the offence charged, the prosecution bears the onus of proving each element of the offence beyond reasonable doubt.
9Pertinently, before 1984, section 69(1) of the Crimes Act 1958 (Vic) provided that – any male person who, in public or private, incited or procured or attempted to procure the commission by any such girl (under the age of 16 years) of any act of gross indecency with the accused, or in the presence of the accused, or with any other person in the presence of the accused, was guilty of an offence.
10It was not a defence to that offence that the alleged act was committed with the consent of the complainant.[4]
[4] Per section 69(2).
11Accordingly, the elements of the offence that the prosecution must prove are as follows - that between 20 January 1979 to 19 January 1985; the complainant committed an act of gross indecency; the female complainant was under the age of 16 years; the accused intentionally procured that act of gross indecency; and the act was committed in his presence.
Prosecution and defence position
12It is convenient for me to refer to the defence position at this stage. It is twofold. The defence submitted that, as a matter of law, the definition of gross indecency could not be satisfied by the allegations in this case. Alternatively, they submitted that the court could not be satisfied that the event occurred as alleged, or, at all.
13On the preliminary issue of whether the event, as alleged by the prosecution, was capable of satisfying the meaning of gross indecency, Ms Lamovie for the accused submitted, as best as I could understand, that gross indecency required an act of an unequivocal sexual nature between a child and an adult, and that some evidence relating to sexual gratification (I assume, counsel meant for the adult) was required.
14The act alleged by the prosecution was the touching of a dog's penis by the child. The prosecution allege that the entirety of the circumstances surrounding that act amounted to gross indecency. In the context of this case, the touching alleged was at the direction or behest of the accused.
15Defence counsel conceded that the behaviour alleged, if proven, could have amounted to bad taste, bad parenting, cruelty or some form of child abuse, but not gross indecency. No further submissions eventuated, nor was I referred to any authority or cases.
16By way of history, this offence was abolished in 1984 and replaced by a number of different offences relating to indecency in a range of circumstances. The matter before me proceeded pursuant to s 7B(2)(b) of the Criminal Procedure Act which provides that, notwithstanding certain amendments to the Crimes Act, the charge is able to proceed notwithstanding the timeframe within which the offending is alleged to have occurred beyond 1984.
17A consideration of the history of the term 'gross indecency' suggests that this crime was originally used for different offending of a general, sexual nature. The offence was never actually defined in any of the statutes which used it, which left the scope of the offence to be defined by court decisions. The term has always relied on community expectations of decency. Thus, as community attitudes changed, so too did concepts of indecency.
18While indecency is not defined, it has been interpreted to mean any act which an ordinary decent person would find shocking, disgusting, or revolting.[5] Cases over the years in Victoria and throughout Australia have indicated that there is a requirement for a sexual overtone or nexus in such a charge. Physical contact is not necessarily required in any act relating to indecency or gross indecency as it then was. Sexual gratification has not been a requirement to be proven at any stage.
[5] See eg, Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1972] 2 All ER 898 at 905, [1973] AC 435 at [458].
19In the context of a jury trial, it is a matter for the jury, as representatives of the community, to consider whether what they find as a fact occurred does or does not amount to gross indecency. In the context of a judge alone trial, I must consider whether the event, as I find it to be, would result in an ordinary decent person being shocked, disgusted or revolted.
20The relevant community standards must relate to those that existed at the time of the offending. While this is usually a jury question, it is a matter for me to consider as the accused applied for a judge alone trial. It is not a matter of me personally feeling any of those emotions, but what I consider a normal, decent member of the community would have found at the time of the offending. Fortunately, I am old enough to be in a position to so consider.
21At this stage, it is also appropriate to address a further issue in relation to the elements to be proven. The requirement that the accused intentionally procured the act of indecency has, I believe, been misunderstood in some submissions. The element could be proven by some direct evidence as to the accused’s intention (such as, for example, an admission) or evidence of an act by the accused from which an inference could be drawn as to his intention that a certain result would follow.
22In the context of this case, the suggestion is that if he directed the child to do a certain act, then an act of indecency would be procured to follow. The defence submission that the lack of evidence of dog training or the accused having agency or control over the dog is fatal to the prosecution case is, with respect, misguided. This element deals with the accused intentionally procuring an act. It is trite law to observe that, in usual circumstances, a person’s intention can be inferred from their actions.
23In the context of this case, it is clearly the prosecution position that the accused was aware of the dog’s predilection for erogenous excitement if he directed the child to curl up into a ball on the ground in the dog’s presence.
24It is my understanding of the prosecution case that it asks the court to draw an inference from the circumstances. It alleges that the accused was aware the dog would behave in a certain way if he asked or directed the child to curl up into a ball. Thus, say the prosecution, the accused’s intention in doing so was to then direct the act of indecency alleged, that is, to direct the child to touch the dog's penis. The inference the prosecution asks the court to draw is as to his intention in the circumstances.
25This is not a complicated concept. It is trite law to observe that if an inference is to be to drawn from any part of the evidence relative to an element, it must be proven to the criminal standard of beyond reasonable doubt. Accordingly, I must examine any possible inference to ensure that it is a justifiable inference and I should not draw such an inference unless it is the only rational inference available in the circumstances.
General Directions
26In addition to the fundamental principle that the Crown must prove a charge beyond reasonable doubt, it is necessary to bear in mind a number of other general principles. The accused is presumed, by law, to be innocent of the charge brought against him unless, and until, the evidence satisfies the tribunal of fact, that is, me, that each and every element of the relevant offence has been proven beyond reasonable doubt.
27If the evidence fails to satisfy the court beyond reasonable doubt of any or all of the elements, then the presumption of innocence continues and a verdict of not guilty on that count must be returned.
28If there is an explanation consistent with the innocence of the accused or if the court is unable, in the circumstances, to determine whether a particular element has been proven, then the accused must be found not guilty accordingly. The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally, without acting capriciously.
29In assessing the evidence, it is necessary to bring into account the common sense of the court and to deliver any verdict according to such 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 it must do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I eventually find them to be.
Court arrangements during the hearing
30During the entirety of the hearing, Mr O’Quinn appeared remotely over a Zoom connection, at his request. I was advised that he was in custody, obviously, on unrelated matters. I acknowledge that this is irrelevant to this judgment.
31The court was also advised that Mr O’Quinn’s health was such that he could manage only relatively short hearing days and required frequent breaks. The court accommodated these requests.
32Further, the court was advised that the civilian prosecution witnesses, who also appeared remotely, did not wish to be able to see the accused while they were giving evidence. The accused did not object to this. With the consent of both parties, the court facilitated this, with only one technical failure.
Tendency evidence
33At the commencement of the trial, I was advised that the prosecution proposed to rely on evidence of a tendency nature. A notice dated 4 February 2021 and amended on 1 May 2023, had been filed. The reception of the tendency evidence, and the use of it, was objected to. Context evidence, however, was not objected to.
34The tendency evidence was entirely contained in the evidence of the complainant. An important question of admissibility relates to what the evidence actually was, not what it may have been on another occasion, say, at the committal hearing or during a statement.
35Prior to the commencement of the trial, I proposed and ruled on the tendency evidence. I ruled that it could be provisionally admitted and that during the course of the trial, and at the conclusion of the entirety of the evidence, I would rule on the question of admissibility. If the court admitted such evidence, it would then determine how it ought be considered.
36Considering the test for admissibility of evidence of this nature, which, among other things, requires the court to consider the evidence in the context of the whole of the evidence presented, this course of action was adopted given it was the most efficient and transparent method of dealing with the issue in the judge alone hearing. I since ruled on the issue of tendency and found it to be largely admissible. That being said, I had a diminished understanding of what the tendency ‘was’.
Background to the allegations
37There was a great deal of background information which was not in dispute. It is useful to state it at this stage to give context to the evidence as it was presented.
38The accused, Hamish O’Quinn, was born in 1943. In 1970, he married and had two children from a previous marriage. The accused and his wife had had three children, one of whom is the complainant in this matter.
39The family lived in Melbourne at the relevant time. At the relevant time the family had a Corgi cross dog called 'Benji'.
40In general, the allegation is that on an occasion when the complainant was aged between about 7 and 10 years old (which is within the date range on the indictment), the accused directed her to act in a way that would result in her touching the dog’s erect penis in his presence.
41The complainant said, in general, that this type of event occurred on numerous other occasions. This evidence and evidence of another similar act was admitted as tendency evidence. The tendency sought to be relied on by this evidence was that the accused had a tendency to act in a particular way in relation to his daughter, that is, to direct her, or the family dog, to engage in sexual activity in his presence.
42It is the prosecution case that the request or direction by the accused to the child to touch the dog's penis in circumstances where the dog had an erection after 'dry humping' the child, amounts to gross decency.
43The accused, by his plea, denies that the alleged incident occurred at all. Through counsel, he denies not only that the event alleged occurred in the way described by the complainant, he also denies that the tendency evidence is capable of acceptance. Counsel also advised the court in closing submissions that she was instructed that he also denied other details of the offending, but this submission was, perhaps, not useful because submissions of counsel are not evidence.
Evidence
44The trial proceeded with prosecution evidence from three witnesses. The main prosecution witness was the complainant, Esther Cardenas, on whose evidence the prosecution case was based.
Evidence of complainant
45The complainant gave evidence from a remote witness room. The connection was mostly very good. At times, the complainant experienced distress but was otherwise largely responsive to questions.
46In evidence in chief, the complainant told the court of her recollection of the family and the home in which they lived. The large backyard of the house had two levels. Both had grassed areas. The top level had a hills hoist and vegetable garden whereas the bottom level had a basketball area. The general area was depicted in the complainant’s hand drawing as contained in Exhibit 1. This was not in dispute.
47The complainant told the court that for as long as she could remember when she was a child, the family had a dog called Benji which was a small Corgi cross.
48She said that, on many occasions, while she, her father and Benji were in the backyard together, the accused would tell her to curl up in a ball on the ground. When she did as directed, Benji would put his paws on her hip or back area and thrust against her in what she now understands to be 'dry humping', or, a dog-related sexual act. At the conclusion of these frequent acts, the accused would point out the dog’s penis, which he referred to as ‘lipstick’, and tell her to touch it - which she did. This evidence was admitted as part of the prosecution’s tendency evidence.
49In cross examination, the complainant told the court that these events occurred both inside and outside the house, and were frequent. She did not recall it ever happening when anyone other than her father was present.
50The complainant said that, as a child, she did not know what the 'lipstick' her father referred to was. She said that, as a child, she did not understand the nature of the act that was being undertaken by the dog. At the time, it did not distress her.
51She now understands that the lipstick was the dog's penis. She was distressed while relating this evidence. She did not say at what stage of her development as a child or adult that she reached this understanding.
52The complainant also recalled two particular or specific occasions, when this type of event occurred. The second of these events is related to a tendency consideration only. For reasons that I have now given, this evidence was admitted.
53The first event the complainant told the court about was at the lower level of the backyard. She said she was aged between 7 and 10 years in what she referred to as her mid-primary school years which I calculate to be between 1980 and 1983.
54She said that she and her father were in the lower level and she was playing basketball near the basketball ring. She went to the back of the yard, which sloped down to the fence line to retrieve the ball. While she was picking it up her, father asked her to get onto the ground and curl up into a ball. She did so.
55When she did this, Benji put his paws up on her back area. The dog commenced a thrusting motion toward her. Her father then told her to touch the dog's lipstick. She complied, touching what she referred to as Benji’s lipstick, which she now understands to be the dog's erect penis. She did not say that her father said anything else.
56She recalled the dog’s penis looking very red and sticking out a lot. She recalled that it felt wet. She recalled that she looked at her father as she touched it. She said he smiled in a way that resembled a smirk, and then walked away.
57She considered the event undertaken to be a game, which was complete when she touched the lipstick. It did not upset her at the time. Again, she told the court that as a child she did not understand what the significance of the activity of the dog was.
58She recalled a second occasion when a similar act occurred within the same general timeframe. That is, when she was aged between 7 and 10 years. This event occurred in the upper area of the backyard. She does not now recall how long before or after the other event she described occurred, nor what she was doing in the backyard prior.
59In cross-examination, she said she did not recall exactly where her father was standing, or what he was doing prior, only that when she rolled into a ball, he was standing over her and the dog, about an arm’s length away. When she touched the dogs penis, he smiled or smirked and walked away in a similar way. Like before, she explained that she thought that the action was part of a game and she was not distressed.
60It was clear from the complainant’s presentation that the recollection of these events now produces great distress, and she was noticeably tearful when giving this evidence, as I have said.
61The complainant was cross-examined on the detail of the family routine and activities, including her father’s work hours and sporting activities for her as a child. She agreed that she practiced basketball frequently, sometimes, with her older sister. She did not recall practicing basketball with her father, although she recalled him to referee and/or coach at the basketball club generally for some time.
62It was, I admit, difficult to understand the point of this lengthy cross-examination as it was clear from the complainant’s evidence that she did not indicate a day of the week, a time of the day, a month, a season or even a year in which the events, including the tendency events complained of, actually occurred. A self-direction concerning this potential disadvantage was agreed to by both parties. I will refer to this later when considering both the potential forensic disadvantage for the accused and the credibility of the complainant’s evidence in general. Both are individually, perhaps, minor considerations.
63The complainant agreed that during her school years, she was very close to her father. She agreed that she attended family holidays and family gatherings up until her 20s, and up until about that time, she considered herself to have a good relationship with her father.
64This is an appropriate time to acknowledge a self-direction concerning post-offence relationships and child complainants. I acknowledge that the standard direction as proposed in section 54H of the Jury Directions Act is perhaps appropriate. That particular section relates to sexual acts to which a complainant did not consent. In the context of this case, consent, in any form, is not really an issue and I acknowledge that the complainant’s position is that she had no idea that she could withhold consent. In any event, consent is not a defence under the Act as it then existed.
65I do, however, acknowledge in accordance with section 54H, that people may react differently to a sexual act (and common sense tells me that they would react differently whether they consented to it or not) and I acknowledge that there is no typical, proper, or normal response. I acknowledge that some people who are subjected to a sexual act will never again contact the person who subjected them to that act while others may continue the relationship or otherwise continue to communicate with them. I acknowledge that there are many reasons why a person who is subject to a sexual act without their consent may continue with the relationship or continue to communicate with that person.
66In the context of this case, the complainant was very young and unaware of the nature of the act. I say again, it is not an offence to which consent is, in any way, relevant.
Further Evidence
67In cross-examination, the complainant agreed that she did not keep a diary while at school, nor did she keep written notes of these events. Her first police statement was in June 2018, followed by two further statements in 2019.
68Again, I observe that I have no information to assist me to understand what, if anything, occurred to prompt that complaint to police. There is no evidence that the complainant made a complaint to any friends or family at any time prior to the police complaint, and in fact, she denied that she had discussed her evidence with friends or family. This neither detracts nor assists her credibility, but may amount to a forensic disadvantage for the accused. Again, alone, it is of minor significance and I will refer to this later.
69The complainant agreed that the dog Benji sometimes became part of her childhood games. She agreed that she would sometimes dress him up as part of those games. She did not agree that the dog was particularly excitable or frisky, nor that he would frequently jump up on her or other people's legs. The most she was prepared to concede was that Benji was sometimes happy to see her at the end of the day and would run around and wag his tail. He would sometimes try to jump up on the couch but that was not allowed.
70The complainant was asked repeatedly about Benji’s propensity to 'jump up'. When asked if he would jump up on other family members, she did not agree. This line of questioning proceeded for some time. It became clear, at least, to me, that the complainant differentiated between the act of 'jumping up' and Benji putting his paws up on somebody's legs. She said he would do the latter when he wanted attention.
71She said that when she would curl up in a ball (referring to times she was directed to do so by her father), Benji would put his paws up on her, but even at that time, she did not describe the actions of the dog as ‘jumping’ on her. There was a great deal of further cross-examination about whether or on whom the dog jumped up but I did not find this particularly helpful.
72On day two, on resumption of cross-examination, the complainant was asked whether the dog would put his paws up when she was seated on the couch. She agreed but, again, denied that he would jump up. She did not agree that whatever the description of what Benji would do, he would be noticeably excited or that his penis would stick out in this context. She did not agree that his penis would stick out when he was excited. She disagreed that there was a running joke in the family that his penis would stick out frequently.
73She said the only time she saw Benji’s penis out was when he was putting his paws on her back, in the context of her being curled up on the ground. She said she did not ever curl up on the ground when she was by herself, and only when so directed by her father.
74The complainant’s evidence as to surrounding circumstances and details was extremely vague, and she agreed that it was. When challenged on this, she again became distressed and agreed that her memory of many of the circumstances surrounding the events had faded significantly but she said the events themselves had always stuck in her mind. I will refer to this again later in a discussion of the complainant’s credibility.
Evidence from the complainant’s half-sister
75The next witness for the prosecution was Annette Albridge,[6] the complaint’s half-sister, who is about eight and a half years older than her.
[6] A pseudonym.
76Ms Albridge confirmed the details of the family as agreed above. She thought that she started prep or pre-school in about 1969 and high school in about 1975 or 1976. She said she left the family home for a short while when she was 18 years old (between 1982 and 1983) then left permanently at the age of 21 (between 1985 and 1986). According to the date range on the indictment, Annette was aged between about 14 and about 21 years old.
77This witness confirmed the family had a dog called Benji which she described as like a Corgi with longer hair. She said it was a medium-to-small dog with short legs. She recalled it was the family pet from the end of her primary school and throughout her high school (between 1975 to 1982).
78This witness recalled one unusual thing the dog would do which was to 'hump' her leg as she described it. She explained that if she were watching TV, Benji would get on to her leg like he was 'having sex with [her] leg' as she said. She said that this activity by Benji was frequent, without further elaboration.
79She explained that Benji was usually an outdoor dog, but she recalled this activity occurred when he was inside while she was watching TV, probably, she thought, at night. The dog’s actions made her feel uncomfortable.
80Ms Albridge said that this activity by Benji was not a secret thing and she recalled it happening on occasions when others were present. She could not recall it occurring when she was alone.
81She recalled one particular occasion when Benji acted in this way, when her stepfather (the accused) was present. On that occasion, he pulled the dog off her leg and then propped the dog up on his hind legs and pointed to the dog's penis, referring to it as Benji’s 'lipstick'.
82In cross-examination, she reinforced this event as a distinct recollection. In addition, she said that the accused would usually pull Benji off when he was acting in that way. This action of him pulling the dog off and referring to the dog’s penis as his lipstick happened, she said, on more than one occasion. Sometimes, other family members were there. Sometimes, they were not.
83She recalled that, on the specific occasion she was referring to, when the accused pulled the dog off her leg and displayed his penis, or lipstick, as he referred to it, her stepfather displayed what she referred to as 'smirking'. She described the smirking as having been performed in a 'sly way'. She told the court that her impression at the time was that he was looking at her for a reaction to the display of the dog's penis.
84He did not say anything to her beyond referring to the dog's penis as his lipstick. The witness said that she did not like the experience as a whole and that the event made her feel uncomfortable.
85In considering the relevance of Ms Albridge’s evidence, I note that it supports the proposition, as was put by defence counsel in cross-examination, that the dog was somewhat excitable and would dry hump other people in the family by placing his legs up on their legs. In such an instance, the dog’s penis would become erect and apparently noticeable.
86According to Ms Albridge’s evidence, the dog would frequently do this to others in the family. The complainant denied this to be the case. It is difficult to accept this denial in light of her sister’s evidence. Ms Albridge’s evidence contradicts the complainant in this area.
87Ms Albridge’s evidence, however supports the evidence given by the complainant that the accused would refer to the dog's penis as his 'lipstick' when it was erect. She was repeatedly challenged in cross-examination, presumably, on instructions. However, this was not the subject of any questions to the accused in the record of interview, to which I will refer later.
88The accused did not give evidence. For reasons best known to counsel, she made a point of telling the court that such were her instructions. I will also reflect on this later.
Evidence of the officer in charge
89The final witness for the prosecution was the officer in charge (‘OIC’) of the investigation, Leading Senior Constable Urquhart.
90The OIC told the court that she took statements from the complainant in relation to this matter on 28 June 2018 and 29 August 2019.
91She was asked, in cross examination, about any enquiries as to the accused’s work hours or attendance at the children’s basketball as a coach. No enquiries were made. This is perhaps not surprising considering the complainant did not specify times, dates or days in her evidence.
92No evidence was elicited from the officer in charge as to any explanation for the complaint being made in 2018 and I will not speculate.
93The record of interview conducted by this officer on the 6 March 2019 became Exhibit 2 in the proceedings with the transcript being produced as an aide memoire. The interview was very short and heavily edited.
94In the record of interview the accused was asked, 'did you get the dog to dry hump her or get her to touch its erect penis?'. He replied ‘no’ to each proposition. No admissions were made. He made some reference to joking, but no one suggested this had any relevance whatsoever.
Further self-directions
95As I have noted above, as part of the case before me, the prosecution ask me to draw inferences that a combination of circumstances known to the accused would result in the dog behaving in the way alleged. I have referred to the requirement to be careful in doing so.
96As observed above, the prosecution submit that if I find the allegations to be proven; that is, that the accused directed the child to roll into a ball on the ground when the dog was nearby while knowing the dog to be erogenously excitable, it could be inferred that his direction to the child was intended to bring out the sexually-related response from the dog.
97On the evidence of Ms Albridge, and indeed, the apparent position of the defence, this was a well-known trait of the dog and the accused’s knowledge of this trait could be inferred. This, however, is insufficient. The important consideration is the acceptability of the complainant’s evidence that she did receive such a direction.
98There are several further self-directions which the court ought to remember in relation to the evidence presented by the complainant. For convenience, I will note them now.
Section 52 - delay direction
99The complainant first told police about this alleged event in 2018, a delay of some 36 to 38 years after the alleged event occurred.
100I remind myself that the issue of delay is a matter for consideration. Again, experience shows that people react differently to sexual offences or in the context of this case, offences relating to indecency. There is no typical, proper or normal response to such an offence. I accept that some people may complain immediately while others may not complain for some time. Others may never complain. Delay in making a complaint with respect to an offence such as this is a very common occurrence and there may be good reasons why a person did not complain or delayed in making a complaint about a related indecent offence.
101In the context of this case, as I have noted, the complainant said that when the event occurred, she did not know what it meant and that it did not upset her. It is not known and no evidence was given as to when that knowledge dawned upon her. It is also not known and no evidence was given as to how proximate that knowledge might have been to the making of the complaint to police, and/or if it was relevant to the apparent cessation of the relationship with the accused.
102In addition to the above consideration, the delay in complaint may have certain consequences for the accused and his ability to properly instruct solicitors to defend the case against him. In the context of this case, the potential forensic disadvantages include as follows:
(1) As best as I can understand, the delay itself has resulted in a real and substantial vagueness in the complainant’s ability to specify a timeframe within which the event occurred. As I have noted, she is unable to specify a day of the week, or a season, or a month, or even a year in which the event occurred. Such a wide range of dates so long ago makes it inherently difficult for an accused person to challenge evidence which is related to a particular day and place, even within a wide date range.
(2) The existence of other information relating to the context in which the event occurred, including, if anyone who may have been in the house or the yard at the time is, by virtue of the delay, unable to be identified, least of all, by the complainant. Due to the passage of time, she does not recall.
103These two considerations have obviously limited the ability of the accused to make enquiries or produce any evidence as to what he, or other family members might have been doing on any particular day or time of the day or season of the year. Thus, he suffers an inability to make enquiries sufficient to provide even in the most basic sense, any information that may otherwise be useful in contradicting the timeline created in a very rough way by the complainant’s evidence.
104In addition, a third potential forensic disadvantage is that approximately 12 years ago, the complainant’s mother died and approximately 10 years ago, her sister died. It is not known if these potential witnesses may or may not have had any information concerning the case or the day or dates in question, or the presentation of the dog, or the accused, or the complainant, at any particular day or time, or even in general.
105It is noted that the complainant does not suggest that she told either her mother or her sister of this or any other event of a similar nature. However, even without such a complaint being made, it is reasonable to assume that close family members would have information about the routines in general and whether there was any behaviour of the accused or Benji that was, in any way, consistent or inconsistent with the evidence.
106Due to the delay and lack of evidence otherwise, the accused is not in a position to explore or challenge the origin of the complaint to police, some 36 or 39 years after the alleged event. The court, therefore, must assume this is also another potential forensic disadvantage for him.
107The next self-direction also relates, to some extent, to the issue of delay and further, the evidence of the complainant and the potential effect on her reliability as a witness.
108Because of the passage of time, well over 40 years between the alleged event and the evidence given in court, I must acknowledge a standard warning about the reliability of the complainant’s evidence.
109I accept that the honest recollections of a witness about events that she believed to have occurred many years ago may be unreliable.
110The passage of time, alone, may affect any witness’s memory. In some cases, people simply forget things. In other cases, their memory may become distorted. That is, they may come to remember things that did not really happen or did not really happen in the circumstances in which they now remember them.
111Human recollection is frequently erroneous and liable to distortion in this way. It is obvious that the likelihood of error increases with delay.
112In the context of this case, there are some relevant factors which I may consider relevant to this self-direction. The first is the fact that notwithstanding the witness's insistence that these events, in effect, remained seared in her memory, she did not consider them to be sexual in nature at the time (this is my assumption gleaned from her evidence where she thought it was a game and she was not distressed). She did not consider this event to be sexual in nature until an indeterminate time later.
113Again, I observe that I do not know what triggered her understanding or recollection that it was an event of this nature.
114The observation that an event which was not traumatic became traumatic on realisations of its significance is not, in and of itself, unheard of. However, some explanation of how or in what circumstance this realisation came about and how, or if, this triggered a memory or resulting trauma would be helpful. I do not have that information.
Warning
115I must therefore take this potential unreliability, and I say potential unreliability, into account when considering evidence that is given after a such a long delay. It is relevant in determining whether to accept the complainant’s evidence at all, and if so accepted, in whole or in part, deciding what weight to give to that evidence.
116In making this assessment, I will carefully consider not only whether the complainant’s evidence is honest in the sense that she believes it to be true, but whether it is, in fact, true.
117I have no reason to doubt that the complainant believes what she told the court to be true. I also observe that her version is not inherently implausible.
118I will use my common sense and experience in assessing the effect of the delay upon the complainant’s memory.
119I have referred to a potential concern that may raise, in my mind, the possibility that the complainant honestly believes what she is saying, but that she is mistaken due to the distortion of her memory. There may be other considerations of which I am not aware.
120This general self-direction is an important one which the prosecutor rightly, and fairly, urged me to consider.
121However, lest it be thought I am not so aware, I acknowledge that, of course, complainants are not less reliable than other witnesses, whether in a sexually related matter or any other type of matter. This is a truism that all judges know.
Supporting evidence
122In considering the evidence of the complaint, I will consider if there is any supporting evidence led in this trial that I can accept.
123I have already referred to the evidence of Annette Albridge and noted where it does and does not support the complainant’s version of events.
Section 54K self-direction
124I note that from time to time, the complainant became distressed while giving evidence. It is acknowledged that experience shows that trauma affects different people differently with some people showing obvious signs of emotion or distress when giving evidence about such matters whereas others may not. I further acknowledge that both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.
125This is acknowledged without qualification. The prosecutor, in his submission, while conceding that the demeanour of the complainant while giving her evidence was not a matter that courts could properly take into account, her distressed presentation was not a negative. I agree. It ought not to be thought that in accepting this proposition, the reverse is true.
126Surprisingly, defence counsel suggested that I would conclude from the accused’s record of interview that his demeanour would support, in general, a finding that he was telling the truth, apparently, due to his presentation of surprise at being questioned on this topic. I disagree that this is a proper consideration for a court.
127Courts do not have the ability to discern if a witness is telling the truth by observing their demeanour only. It is for that reason that the courts are required to scrutinise evidence by comparison with other evidence in the way that I have set out above.[7]
[7] Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 sets out the correct position. While that case concerned persons of different cultural backgrounds, the sentiments are just as relevant here. I commend this observation of the full court to counsel.
Tendency evidence
128As I have said, I have already made a ruling on the admissibility of tendency evidence and specified what that tendency evidence is and how it might be used. I have found that the evidence presented by the prosecution may allow the court to find that on a previous occasion, and on some other occasions in general, the accused acted in a particular way in relation to his daughter. Namely, to direct her to engage in what I will call sexual activity with the dog in his presence by allegedly directing his daughter to touch the dog’s penis.
129While I have found that the evidence is admissible, it does not necessarily mean that the evidence is accepted to the required standard in a criminal trial. If I find that the accused behaved in the way supported by the complainant’s evidence on other occasions, then that finding can be used to conclude that it is more likely that he committed the individual charge on the indictment. In considering this alleged tendency, I acknowledge, again, that the only witness of the circumstances particular to this offending is the complainant. Therefore, her credibility remains the major consideration.
130It is obvious, given the similarity between the evidence given as tendency and the issue in the charged offence (whether the events as described by the complainant actually occurred or not), that such evidence has probative value.
131The weight to be given to this tendency and the evidence which supports it is, however, limited. Its acceptance is subject to the same self-directions concerning the credibility of the complainant.
132I acknowledge the truism that just because a person says an event occurred on more than one occasion does not make the occurrence of the event complained of more plausible, nor more credible.
133However, the evidence will be taken into account together with all the other evidence when assessing whether the prosecution has proven its case to the required standard.
134I confirm that I can only take into account evidence that the complainant gave in court and note that an expectation of other evidence is not evidence at all. Counsel’s submissions to the contrary are not accepted.
Consideration of the complainant's evidence
135In addition to the above self-directions and observations about which parts of the evidence are or are not supported by other evidence, I have further observations about this complainant’s evidence in particular.
136In relation to the direct allegations of indecency, the complainant is the sole Crown witness. This is usual in most cases of indecency or sexually related allegations. Scrutiny of evidence is a necessary role for a judge of the facts. I accept that it is necessary to be extremely careful in assessing the evidence of the complainant, as in order to prove the case to the required standard, I must accept her evidence to that standard.
137She is the primary witness of the charge laid. I would also assess her evidence to enquire whether there is any evidence consistent with her evidence generally, such as what she said in her evidence or in cross-examination. I have no other information. There is no evidence of, for example, a contemporaneous complaint and an absence of evidence about the circumstances of her complaint to police. Again, I simply underline the fact that I cannot, and will not, speculate about any of those issues.
138In addition, I am aware from her evidence that she had a good relationship with her father until her 20s. I assume from that evidence that after her 20s, her relationship with her father was not good. No evidence was given as to the cause of this breakdown in the relationship. I have so little information about this as to be unaware of whether the accused knows the reason for the complainant having this view of her relationship with him. No doubt, there are proper forensic reasons for this information not being available to this court but I cannot speculate.
139As a result of this apparent gap in the relationship between the accused and the complainant over the past perhaps, 20 or 30 years, the forensic disadvantage that the accused may have suffered as a result of this is, in my view, potentially increased.
140In the context of this case, the complainant said that at the time the events were said to have occurred, she did not think they were wrong, nor did it make her feel uncomfortable. She, however, also told the court that this event is seared into her memory and that 'the one thing you don't forget is what actually happened to you … the timeframe may be a little bit hazy but the events certainly aren't hazy at all'. This was her evidence on 9 May 2023 at page 70 of the transcript, line 6.
141It is puzzling to me that an event as a child which meant little to her, other than a game, some 36 years later, became such a vivid memory. I have no information as to the cause of the deterioration of the relationship sometime, perhaps, in the 1990s. I have no information of events, if any, that resulted in the memory coming to the fore of the complainant’s mind so urgently as to result in a complaint being made to police. I do not know of a connection, if any, and I will not speculate. I simply underline this as another potential forensic disadvantage to the accused.
142Counsel for the accused did put to the complainant that she was lying, and this was unsurprisingly denied. Again, I do not know and will not speculate but simply observe that due the passage of time and the apparent lack of relationship, the accused does not know what he does not know. He was, perhaps, unable to give his counsel any further information to assist her to pursue this issue. This is a further potential disadvantage.
143It is also necessary to consider the entirety of the complainant’s evidence in the light of other evidence presented by the Crown and to assess whether support exists where it ought to. This is necessary to determine whether there are inconsistencies and whether such inconsistencies may raise a doubt as to the reliability of the Crown case. The only other relevant evidence suggests that Benji was a dog who often displayed his penis, this was well known in the family and the accused referred to the dog’s penis as a 'lipstick'.
144As noted above, this evidence both supports and contradicts the evidence of the complainant.
Lack of evidence from the accused
145I have not been asked to give myself this direction but I do so direct myself that the fact that the accused did not give evidence does not constitute an admission by him and may not be used to fill gaps in the evidence led by the prosecution. It does not add to, nor strengthen, the prosecution’s case in any way. It proves nothing at all.
146I do not draw any conclusions against the accused because he did not call or give evidence nor have I considered that fact that when deciding whether the prosecution has proven its case beyond reasonable doubt.
147I will not speculate about what he might have said.
148In his record of interview, the accused said, in effect, that he often joked with the girls, but this brief sentence is not suggested by the prosecution, or the defence, to be relevant in any way. The record of interview, I observed, was heavily edited but it is clear that the accused denies this behaviour by the use of the simple word ‘no’. He is entitled to rely on that denial and of course, by his plea.
149Counsel suggested that a Liberato direction is appropriate and I do not think it is really relevant in this circumstance. In Liberato v The Queen (1985) 159 CLR 507 at 515, the Court spoke of a case in which there is evidence relied upon by the defence which conflicted with the evidence relied on by the Crown. In such a case, the court said a jury might consider 'who is to be believed', and in that case, the jury should be directed in accordance with what has become known as the Liberato direction.
150That is: a preference for the prosecution evidence is not enough — they must not convict unless satisfied beyond reasonable doubt of the truth of that evidence; and even if the evidence relied upon by the accused is not positively believed, they must not convict if that evidence gives rise to a reasonable doubt about guilt.
151In the context of this case, even though there was a record of interview given to police, it did not contain, on my hearing of that record of interview, anything that could be relied on as evidence capable of being believed or not. It simply contained a one word denial.
Conclusion
152In this case, the complainant’s evidence is that when she was aged between 7 to 10 years old, the accused directed her to roll into a ball in circumstances where, if her evidence was accepted, the dog, Benji, which was nearby, would thrust against her body in a dog-related sexual manner. If her evidence is accepted to the required standard, this can be assumed to be the accused’s intention, that is, to produce that result, by telling her to roll in a ball. Subsequently, according to the complainant’s evidence, the accused told her to touch the dog's penis.
153If this evidence were to be accepted to the required standard, it would, in my view, amount to an act of gross indecency. It is well below the circumstances of decency acceptable in the community and the event is sufficiently indecent to arouse feelings of disgust and abhorrence in the mind of ordinary decent people at the time of the alleged behaviour.
154As I have said, there is nothing implausible in the version given by the complainant. That, however, is not the test.
155In the circumstances of this case there are a number of features which each give minor cause for concern as to the credibility of the complainant. I have gone through them in detail.
156In summary they are - the multiple areas of forensic disadvantage for the accused including deceased family members; vague placement of the events complained of due to the passage of time and (with respect to the event complained of – including the tendency evidence); vagueness as to the time, date, place and season that the events allegedly occurred in; and the whereabouts of family members within the timeframe of the alleged event.
157In addition, the complainant did not explain to the court when this event came to be understood as indecent and thus, the distress it clearly causes her now. The potential for erroneous or faulty memory is increased in these circumstances. This is perhaps another sort of forensic disadvantage for the accused, as described above.
158Next, there is no information to explain any reason for such delay or, finally, a resolve to complain to police. I am not suggesting that there must be such reasons, but some information as to what may have prompted it would have given that complaint some context. Each of these concerns, alone, are minor.
159However, as a whole, they cause real concern as to the reliability of the complainant's version. I remind myself again that memories are not like a recording or video that can be replayed at will. Memories fade over time and can be subtly influenced over time by even unconnected events.
160I remind myself that honest memories can sometimes be erroneous.
161In the circumstances of this case, while I find that the version given by the complainant is plausible, it is not sufficient.
162I am not satisfied beyond reasonable doubt that her evidence is capable of acceptance to that standard, and therefore, must find the accused not guilty.
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