Director of Public Prosecutions v Phillips (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
ELIJAH PHILLIPS (A PSEUDONYM)	Defence

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JUDGE:	Mullaly
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October – 26 October 2022
DATE OF JUDGMENT:	14 November 2022
CASE MAY BE CITED AS:	DPP v Phillips (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2325

REASONS FOR JUDGMENT
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Subject:  CRIMINAL LAW – Judge Alone Trial Judgment
Catchwords:            Alleged Sexual Penetration with a Child Under 16 – Alternative Charge   – Alleged Indecent Act with a Child Under 16 years – Trial by Judge   Alone – No Memory – Lost Memory – Repressed Memory – Seizures –   Research into Traumatic Experiences – Doubt as to the Reliability of   the Account – Exacting Standard – Verdict.
Legislation Cited:     Crimes Act 1958 (Vic); Crimes (Amendment) Act 2000 (Vic); Crimes   (Sexual Offences) Act 2006 (Vic); Criminal Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic);
Cases Cited:            Douglass v R (2012) 290 ALR 699.
Judgment:                Verdict:         Charge 1 – Not Guilty.
  (Alternative) Charge 2 – Not Guilty.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms J Piggott	Office of Public Prosecutions
For the Defence	Ms A Sharpley	Stary Norton Halphen

HIS HONOUR:

Introduction
1The accused, Elijah Philips[1] was charged on Indictment L119383860.1A with one charge of sexual penetration with a child under 16 contrary to s 45(1) of the Crimes Act 1958 (Vic), as amended by the Crimes (Amendment) Act 2000 (Vic) and, as an alternative charge, indecent act with a child under 16 years contrary to s 47(1) of the Crimes Act 1958 (Vic), as amended by the Crimes (Sexual Offences) Act 2006 (Vic).
[1] A pseudonym
2The charges arise from a single event said to have taken place between 10 October 2011 and 11 June 2013. It is said that the accused offended at his house in Melton. The child that the accused man is said to have penetrated was the daughter of the accused’s neighbour. I will refer to her as the complainant.
3I will elaborate on the evidence shortly, but in order to introduce various aspects of this judge alone trial, I will very briefly outline what the case is about. The prosecution case is that on an occasion when the complainant was seven to nine years old, she was watching a movie in a bedroom in the accused’s house with the accused’s daughter, R who was about the same age. At one point, R left the bedroom to go to the toilet. The accused then walked into the bedroom with a plate of snacks. He sat on the bed, complimented the complainant on being cute and then put his hand finger under her clothes and underwear and penetrated her vagina with his fingers. He stopped when he heard the toilet flush and left, but before he did, he told the complainant not to tell anyone. I will refer to this the single event as the alleged offending.
4Some six to eight years later, the complainant came to tell her doctor and her family of the alleged offending following a series of medical events. The accused was arrested and charged shortly after. He denies that the alleged offending ever occurred. As I stated, I will elaborate in much more detail on all the evidence in due course.

Trial by Judge Alone
5The accused made an application to be tried by judge alone pursuant to s 420E of the Criminal Procedure Act 2009 (Vic) (‘CPA’). The accused’s application was granted on 24 June 2022.
6The accused’s judge alone trial commenced on 24 October 2022 with the arraignment in which the accused pleaded not guilty to the charge and the alternative charge. What then followed was a prosecution opening and a reply from the defence. The prosecution called the complainant, her mother, her sister, an ex-boyfriend, and the daughter of the accused man’s then girlfriend. The informant also gave evidence and produced a recording of a telephone call between the accused and the complainant’s mother. Such evidence is often referred to as a pre-text call. That call occurred on the 21 November 2019.
7All of the evidence, save for that of the police informant, was adduced by playing to the court video recordings of the evidence of the various witnesses, including the complainant’s evidence.
8The evidence of the complainant was in the form of police interview or VARE, which occurred on 12 August 2019, together with the cross examination by defence counsel during a Special Hearing pursuant to s 370 of the CPA, conducted on 25 May 2021 and 15 October 2021. Though an intermediary was engaged to assist during the Special Hearing, the complainant was by the time of the Special Hearing, old enough to understand and manage the questions herself.
9I was aided in following the recordings of the evidence by the provision of transcript. As to the transcript, I direct that it is an aid to understanding the evidence but is not itself the evidence. Further, I have not speculated on any edits to any recording or in any transcript including the pretext telephone call between the accused and the complainant’s mother.
10The prosecution case closed on 25 October 2022. The defence called no evidence. Addresses of counsel proceeded on 25 and 26 October 2022.
11I reserved my decision indicating that I would deliver verdicts and give reasons as soon as possible. These are my reasons for the verdict I will announce.

Preliminary Matters
12The legislation creating the capacity to hold a judge alone trial makes clear that the directions set out in the Jury Directions Act 2015 (Vic) (‘JDA’) that would be given to a jury in a trial by jury must be given in a trial by judge alone. Further, The Court must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.[2]
[2] JDA s 4A(2).
13In hearing this matter without a jury, I may make any decision that could have been made by a jury. My decision will have, for all purposes, the same effect as the verdict of a jury.[3]
[3] CPA s 420F.
14A judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the facts on which the judge relied.[4]
[4] CPA s 420G. See also Douglass v R (2012) 290 ALR 699, 702; AK v Western Australia (2008) 232 CLR 438 at [107] per Heydon J.
15As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must then deliver a verdict according to the evidence and nothing but the evidence.
16I turn now to what directions I have given and followed. What I set out initially are those general directions applicable in every trial. There are directions that are specific to this trial that I will list and refer to in the appropriate place by reference to the evidence that gives rise to the directions.

General directions
17In accordance with Part 7 of the JDA I am required to direct myself, and I have so directed myself, in accordance with the fundamental, general directions that apply in all criminal trials.
18Accordingly, first and foremost, I have applied the principle that the accused comes before this Court presumed to be innocent. The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of a charge has been proved beyond reasonable doubt.
19Next, I have kept well in mind that the prosecution bears the onus at all times of proving the guilt of the accused. The accused does not have to prove that he did not commit any of the offences.
20I have directed myself that the standard of proof is proof beyond reasonable doubt. This is the highest standard of proof known to the law. It is, as the High Court said, an ‘exacting standard’.[5] Anything short of proof beyond reasonable doubt must lead to the accused being found not guilty. The prosecution do not have to prove every fact to this standard. All that must be proved beyond reasonable doubt is the elements that go to make up the charges.
[5] Douglass v R (2012) 290 ALR 699, 711.
21I must decide the case solely on the evidence I have seen and heard in this trial; that is, what the witnesses have said under oath or affirmation in answer to questions, the exhibits that have been produced. What counsel have said during the trial is, of course, not evidence.
22I must decide the case by the application of a rigorous, intellectual, open-minded analysis of all the evidence. There is no place for sympathy or bias or prejudice. That is important in this case. I have been vigilant to ensure there has been no emotional reaction or prejudice against the accused.
23I must assess the witnesses who gave the evidence and determine whether a witness was honest and credible, accurate and reliable. I may accept all, some or none of the evidence of any witness.
24Connected to and as a practical expression of the fundamental principles of the prosecution having the onus of proof and the standard being beyond reasonable doubt and that the accused is presumed innocent, I must approach any inference that I am ask draw or that I do draw on the basis that any inference adverse to the accused must be the only rational inference. In other words, in this case, if there is a scenario that is reasonably open and such a scenario allows for a possibility that the allegation is not true then I must not find that the allegation is true beyond reasonable doubt. The case put by the prosecution must be such that any and all alternative scenarios consistent with innocence are not merely rebutted by the prosecution’s case but are rendered unreasonable or fanciful alternatives.
25There are a series of directions that were sought by the parties pursuant to various provisions of the JDA that relate to the particular circumstances of this case. I turn to those matters before dealing briefly with the elements of the offences. I do so because there is in this particular case little if any dispute as to the elements of the offences. The central issue in dispute is whether the prosecution can prove beyond reasonable doubt that the alleged sexual act or acts occurred

Directions of Law Specific to this Case
26There were a number of directions specific to this case sought by counsel in submissions made pursuant to s 12 of the JDA. I will list them and deal with each separately in order or, if appropriate, in the course of discussing the evidence.
27The directions are
(a) Delay and the reasons for delay ss 52-53 JDA;
(b) Forensic disadvantage cause by delay s 39 JDA;
(c) Honest but unreliable memory cause by delay s 32 JDA;
(d) The accused did not give evidence s 42 JDA;
Delay: The evidence
28Although I have not yet outlined the allegations in any detail, what I have made clear is that the complainant alleges she was sexually penetrated when she was between the ages of seven to nine years old during the period between October 2011 and June 2013. Thus, there has been from the alleged offending conduct to the reporting of the allegations to the police in 2019, a period of between six to eight years delay. This period of time gives rise to a number of directions of law that I must take into account.
29It is to be noted that in compliance with the JDA, I explicitly announced the first direction set out below earlier during the trial.[6] I repeat and expand upon it here.
[6] Trial Transcript, 25 October 2022, page 36.
30Firstly, I take into account that experience shows that people react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint. It is a common occurrence for there to be a delay in making a complaint about a sexual offence.
31Further, in this case, following the request from the prosecutor, I add to the above direction and direct myself as a matter of law that there may be good reasons why the complainant delayed in making her complaint. In this case, reasons were put forward by the prosecution based on the evidence or inferences to be properly drawn from the evidence.
32The very young age of the complainant, her confusion, her embarrassment her fear of not being believed and yet also a fear of getting the accused into trouble. Also she had a sense of shame that somehow it maybe her fault. Of real importance in this regard is that she said in her evidence that the accused told her not to tell anyone and gave a full list of who she was not to tell.
33In my view in terms of this issue of delay, there were good reasons why the complainant did not complain at the time or for many years afterward. The delay in making the complaint does not operate to diminish the credibility the complainant. It was not argued on behalf of the accused that the delay impacted on the complainant’s credit. Almost on the contrary, the defence argued that the delay has allowed for an honest but erroneous memory to develop. In fact, the focus of the defence’s contentions was that the erroneous memory arose in the very last months before the complaint was made to the police.
34As was made clear by both the prosecution and the defence, the true focus of this case was on the reliability of the complainant’s memory. While delay is relevant to that issue, the usual issue of delay causing some impact on a complainant’s credit was not at all prominent in this case.
35Thus, although the directions as to delay and in particular the good reasons for delay (ss 52-53 JDA) have been applied in my reasoning process, they are not the central focus arising from the gap in time from the alleged offending to the report to the police. That gap in time gives rise to other more relevant directions such as the forensic disadvantage suffered by the accused because of the delay in complaint and the fact that the delay can give rise to an honest but erroneous memory. I will turn to those directions shortly, but it is first necessary to outline the evidence of the complainant and the other witnesses so as those directions can be properly integrated into the reasoning process.
36In setting out and examining the evidence of the complainant, I have kept well in mind that both parties were clear that the prosecution case depended on my acceptance of the truth of the complainant’s evidence. If I had a reasonable doubt about the reliability or truth of the evidence of the complainant with regards to the offending conduct, I could not find the accused guilty. The focus of both counsel’s addresses was on the reliability of the complainant’s memory as set out in her evidence.
37In general terms the prosecution submitted that the complainant’s evidence was a reliable and truthful account of something that had happened to her as a child perpetrated by the accused man. Her account contained details that a child would recall. It was, when looked at an authentic account of a confusing and painful offending that was at first not spoken about by her to her family and then forgotten for a number of years before the memory came back to her in a way that I could rely on as her remembering an event that did happen. There was more said by the prosecution and I will deal with those submissions and arguments shortly.
38Again, by way of overview, the defence listed nine factors that rendered the evidence unreliable.[7] I will not expand on each of those arguments at this point but make clear that the defence emphasised the concerning way the complainant’s memory came back to her, which lead to the submission that the complainant was being as honest as she could, but her memory was erroneous or at the very least surrounded by reasonable doubt.
[7] Trial Transcript, 26 October 2022, page 73. A tenth argument related to the Accused’s denials in the pretext call.
39I don’t intend to merely recount all the evidence of all the witnesses and, then go back and assess how the prosecution and the defence dealt with the evidence. Rather, I intend first to examine this central issue of reliability with reference to the evidence and the arguments put by the parties.

Evidence
40The structure of this part of my judgement will be to consider first how and when the complainant came to remember the alleged offending. That process will lead to a consideration of who the complainant told of the offending and the context surrounding the making of the disclosure to the other witnesses. The next step will be to closely consider what the complaint alleges happened including the relevant surrounding circumstances. All these matters will be considered with a focus on the reliability of the complainant’s allegation.
41There is on aspect of the evidence that needs to be raised at this point briefly so as the context of my assessment of the complainant’s reliability can be appreciated. The complainant suffered seizures in early 2019. They were very concerning requiring attendance at emergency departments of two hospitals. The complainant was then assessed and treated by paediatric specialists. Understandably, the complainant and her family were very anxious and stressed. In this context the complainant was seeking answers when she undertook her own research as to what could be causing seizures. It was at this time that the complainant spoke for the first time of the alleged offending.

The first stage – no memory
42As was made clear in the evidence of the complainant, she alleges that the accused penetrated her vagina with his fingers on an occasion when she was at the accused’s house watching a movie with the accused’s daughter, R. More precisely the complainant says that when R went to the toilet the accused came into the bedroom with snacks and then committed the offence. The complainant said that the accused told her not to tell anyone what he had done.[8] She said she was confused as she had no understanding of the sexual nature of the accused’s conduct. As I have said I accept that there were good reasons why the complainant did not tell anyone at her house or anyone at all in the immediate aftermath or indeed for many years.
[8] VARE Transcript, page 42.
43What the evidence revealed was that the complainant says that after some unspecified period, the offending was something she no longer remembered or could not remember. It was not something that was always in her memory that she simply did not speak of. It was said that the offending or a memory of an offending was not part of, or no longer part of, the complainant’s memories that she could call up, either to speak of to others, or to simply ruminate about to herself. It was simply gone from her memory. She had no memory of the alleged offending.[9]
[9] Special Hearing Transcript dated 27 May 2021, page 24
44Of some importance is that the complainant did not give any precise time frame as to when the memory disappeared – that is how long after the alleged offending she could recall it before the time came when she could not. In looking at the other evidence in particular the evidence of her mother’s probing of her about the accused and the evidence of when she attended counsellors, it seems she lost the capacity to remember the alleged offending at a time reasonably close to the end of the timeframe in the indictment. In other words, while there is no positive evidence from the complainant as to over what period of time she held a memory and from when it faded or was blocked, it can be inferred from all the evidence that the complainant had no memory from a reasonably early time after the alleged offending. She agreed that she alleged the offending happened when she was between the ages of seven to nine, but then subsequently forgot it for years.[10] She then said that she first remembered it when she was about 15-16. The evidence is clear enough to me that that the period of time that the complainant had no memory was a number of years – perhaps 4-5 even 6 years.

[10] Ibid.
45While the prosecutor's arguments used or referred to terms the complainant had used in her VARE such as she ‘blocked it out’, or repressed the memory,[11] in my view the preponderance of the evidence, most of it from the complainant herself, leads me to conclude that after an unspecified but relative short period after the alleged offending the complainant had no memory of the alleged offending and this remained the case for many years.
[11] Ibid, page 23.
46This scenario or situation of having no memory remained the case for the complainant notwithstanding some interventions that were of a kind that it might be thought would have acted as a prompt to remember or were general inquiries of how she was feeling made by specialist counsellors in a safe environment.
47The first type of intervention was that the complainant’s mother would regularly ask or probe her as to whether the accused had touched her or done anything to her.[12] As to the timing of this questioning, it would seem from the evidence that some questioning was after the alleged offending and both before and after the accused left the neighbourhood. The evidence, including that of the complainant herself, leads me to the view that the alleged offending, if it occurred, was likely in the later part of the time frame set out in the indictment. The complainant said that she thought the accused and his family left shortly after the offending.[13] In any event I am satisfied that the mother’s probing was at least partly after the alleged offending and likely to be entirely after the alleged offending.[14] Of greater importance than the timing of the mother’s questioning was the evidence from both the complainant and her mother of the complainant’s response to the direct inquiry, “had he touched her, done anything to her”, the response being “Nup, nup.”[15]
[12] I will deal separately with this evidence of probing could have been suggestive or could have planted the idea in the complainant’s mind.
[13] VARE Transcript, page 10, Q 51-56.
[14] Trial Transcript page 24, line 27, page 79 line 22-27.
[15] Trial Transcript page 80, lines 2-6; Special Hearing Transcript dated 27 May 2021, page 23-24.
48The complainant’s evidence on the issue of the probing of her mother was important in confirming that by the time of those questions and throughout the time her mother was probing she had no memory of the offending.[16]
[16] Special Hearing Transcript, page 23-24.
49Also, of importance with respect to this aspect of the complainant’s memory is that the prosecution’s case was that the complainant was telling the truth as she knew it to her mother when she said no, that the accused had not touched her or done anything to her. The prosecution case was that she did not remember the alleged offending and had successfully blocked it out.[17]
[17] Trial Transcript page 59, line 19.VARE Transcript page 9, Q 45.
50The defence put a simple argument about this issue. The complainant was asked by her mother and she denied that the alleged offending had occurred and yet years later she said it did occur. Both cannot be correct. And the fact that the prosecution argued that the complainant was honest but wrong when she responded with denials to her mother and now she was honest and correct in making her allegations in her evidence now was itself a scenario that bespoke of reasonable doubt as to the truth of whether the alleged offending did occur.
51In my view what is of relevance is that the mother’s direct probing in a period proximate to the alleged offending did not revive a memory. This is to be contrasted to the later circumstances of when the complainant got a memory back. Those circumstances will be analysed in more detail shortly, but the contrast is that the mothers direct probing did not prompt a memory but the complainant’s researching possible causes of her frightening seizures in 2019 was said to be the catalyst for her memory to be revived.
52A separate series of events that have some probative value with respect to a finding that the complainant had for some time no memory of the alleged offending is the evidence adduced from the complainant that in various counselling sessions that she participated in as a teenager, arising from issues of bullying and anxieties, she did not raise the topic of the alleged offending because she could not remember the offending when undergoing the counselling sessions.[18]
[18] Trial Transcript pages 61-62.
53Again, this scenario of having counselling to assist with issues of mental health that did not see her able to remember the alleged offending is to be contrasted to the scenario of how following her seizures, her own on Google was the prompt to enable a revival what was said to be an authentic memory.
54Although the complainant’s words in her VARE were that she had tried to forget it and had “repressed it”,[19] her responses in cross-examination at many points and with respect to many situations in her life post the alleged offending make it clear to me that for a significant period from the time from relatively shortly after the alleged offending until 2019, the complainant simply had no memory of the alleged offending.
[19] VARE Transcript page 33, Q 229.
55This conclusion that the complainant had no memory of the alleged offending for a number of years is not in the end that controversial as both parties are in agreement more or less on that topic. It is what can be made of this finding that sees the parties diverge.
56The prosecution contend that while the complainant had no memory for a period of time, it was nonetheless a real event in her life that has in the circumstances faded to the point of being extinguished, before other circumstances enabled the memory to be revived.
57The other explanation urged by the defence is that there is no memory for a lengthy period of time because the event did not happen and consequentially it was never embedded in the complainant’s memory. It follows that the allegations when they are articulated as a revived memory are in fact an erroneous memory because the scenario as described never happened.
58It is not necessary to come to a final conclusion on this issue on the basis of what has been discussed thus far as to the complainant having no memory of the alleged offending. Rather, I will move to considering the other evidence that goes to explain how the complainant says she recovered the memory and all the circumstances about how the alleged offending came back or into her memory. These factors also play a significant role in determining whether the situation here is one of the complainant losing a memory of a real event or that the event maybe never having happened and thus what is said to be revived is in fact an erroneous memory or could be an erroneous memory.

The second stage: seizures and then seeking answers as to why she was having seizures
59The evidence reveals that on and from 7 January 2019 the complainant suffered seizures that led to her attending hospital, first in January and again following another seizure on 1 April 2019.[20] The complainant was then referred to expert paediatric clinicians. It seems a diagnosis was made that the seizures were not epileptic, or as I understood that concept, they were not seizures that occurred because the complainant had or was developing epilepsy.
[20] VARE Transcript Q 246, 247 and 251; Trial Transcript page 25, T51
60The advent of the seizures and the absence of the usual (though serious) explanation was plainly concerning to the complainant and her family. Her sister gave evidence that she, the sister, was getting “frustrated” at not knowing the cause of the seizures.[21] The complainant agreed she was very concerned and looking for answers as to what might be causing the seizures. She added that her family were concerned and anxious.[22]
[21] Trial Transcript page 110.
[22] Trial Transcript page 25 line 20, page 85 line 4 and page 118 line 20.
61The evidence established that though it could be said that the seizures were a catalyst to the complainant coming to make the allegations, the seizures themselves are not said to have caused her memory to be recovered or jolted in some fashion. Indeed, at the time of seeing the first consultant, a paediatric neurologist, Dr Chan, the complainant still did not have a memory of the alleged offending.[23]
[23] Trial Transcript page 61, lines 11-14.
62The complainant was referred to another consultant Dr Chin, who gave evidence in the trial. Her evidence was that she first spoke to the complainant at an appointment on 6 June 2019. This appointment was said to be an opportunity to learn more about the complainant and her family so as to establish a good rapport. The complainant did not speak of sexual abuse or the alleged offending with the accused. Again, the complainant said the reason for this was she had no memory of the offending at the time of the first appointment with Dr Chin.[24] Doctor Chin gave evidence that the reason for her seeing the complainant was for assessment and management of what is known as pseudo seizures, which is a medical description of non-epileptic seizures. The second appointment with Dr Chin was on 25 July 2019.
[24] Trial Transcript page 85, line 22.
63The complainant’s evidence was that between the two appointments she had done some research on the internet regarding pseudo seizures.[25] This research revealed to the complainant that trauma, including trauma from sexual abuse, was said to be a cause of pseudo seizures. The complainant said in her VARE:
I have been seeing doctors at the Royal Children's hospital, so a few days before I had an appointment I was googling just non-epileptic seizures and I found a term called pseudo-seizures, which are non-epileptic seizures. And I was looking at the causes and the symptoms and what happens when you have them and it fit what happens to me, I convulse, I lose my attention, like, I - - - I'm unaware of my surroundings, and I was looking at some of the reasons that it happens and it - it fit what was happening to me. So I mentioned it at an appointment and my doctor said, "That's pretty much what we' re dealing with, nonepileptic seizures which are caused by stress, anxiety, trauma, PTSD, sexual or physical abuse and assault and things like that”.[26]
[25] Trial Transcript page 85, line 29.
[26] VARE Transcript page 36, Q 251.

64It seems to me quite clear that having been referred to Dr Chin for assessment and management of pseudo seizures, the complainant researched the term between the appointments. She gave evidence that she told or in fact “showed”[27] Dr. Chin of what she had found in her research regarding the role of trauma as a cause of pseudo seizures.[28] Dr. Chin spoke of asking the complainant of any matters in her life she would rather didn’t happen.[29]
[27] VARE Transcript page 37, Q 259.
[28] Trial Transcript page 86, line 24.
[29] Trial Transcript page 129, line 29.
65The complainant had agreed in cross-examination that following her discovery of the role of trauma she had really tried to identify anything that was traumatic, traumatic experiences that had happened in her life. While she did not agree with the specific proposition that she had made “a list” before the appointment, it seems clear on all her evidence and that of Dr Chin, given the detail of the traumatic incidents she spoke of, that the complainant had considered what were her traumatic experiences and the details regarding them and then spoke of them to Dr Chin.
66The complainant detailed three traumatic experiences that she told Dr Chin about. The first related to how she had a frightening painful visit to the dentist as a young seven or eight year old when anaesthetic was not used or was ineffective. She spoke of developing a phobia thereafter regarding visits to the dentist.[30]
[30] Trial Transcript page 87.
67The second traumatic experience was a road rage offending she had seen which involved men fighting one with an axe, and how her mother went to break up the fight. The complainant spoke of the fine details of seeing blood on her mother’s white shirt, and how she feared her mother may be run over by the passing traffic.[31]
[31] Trial Transcript page 87-88.
68I will turn shortly to the description of the third incident of trauma, the alleged offending. But first I note a key feature with respect to the other traumas, which was that the complainant had never forgotten them. They were deeply embedded in her memory and could be recalled in fine detail years later. It is true that the dental trauma was one that she had to deal with reasonably regularly as she grew up, refusing to go to a dentist until one with sedation could be found. Also, with the road rage, she travelled past the scene on various trips near her house and had flashbacks. By contrast, the alleged offending was a one off, and something she felt compelled not to tell anyone about. It was confusing and she tried to block it out, but nonetheless, unlike the other traumatic experiences, she had forgotten the alleged offending by the accused for many years.
69The prosecution argued that when she was trawling her memory to discover traumatic experiences, she did not just say that her only trauma was the alleged offending and leave it at that. She also listed other traumas that were verified by her mother as genuinely part of her experiences as she grew up.[32] It was submitted that adding in these authentic memories as possible causes of her seizures gave real authenticity to the memory of the alleged offending. It made the memory and her evidence reliable.
[32] Trial Transcript page 78.
70However, it is of note that the complainant as she was considering her traumatic experiences spoke of her memory of the alleged offending coming back to her gradually in bits and pieces,[33] though she also said when talking to Dr. Chin things came flooding back.[34] She also described when she was with Dr. Chin was “when I had the most vivid memory.”[35] That self-assessment needs to be contrasted to aspects of what the complainant said to Dr. Chin. I deal with that shortly, but first I turn to a more general point.
[33] Trial Transcript page 89.
[34] Trial Transcript page 51.
[35] Trial Transcript page 51, line 10-17.
71My concern as to the reliability of what is said to be a revived memory was a concern that seemed also to emerge in the address of the prosecutor. I say that because following questions as to who the complainant first told of the alleged offending and importantly when, the prosecution submitted it was the complainant’s boyfriend and at a time well before the seizures and consequent Google research. It was said that the disclosure to the boyfriend was unaffected by the surrounding circumstances of the seizures and internet research and thus her memory was authentically hers and reliable. That was a perfectly understandable approach by the prosecutor, because on any analysis and by using common sense, searching Google for answers as to why she was having seizures, discovering that trauma including trauma from childhood sexual abuse was a cause, which then led to a revived memory of a traumatic experience of sexual abuse, is a scenario that would cause a finder of facts to pause. The prosecutor referred to the now common phrase used to describing unreliable self-diagnosis, the complainant turned to “Dr Google”.[36] Accordingly, if there were a memory prior to and unaffected by the Google research that gave the complainants memory greater reliability.
[36] Trial Transcript (dated 25 October 2022) Prosecution’s Closing Address, page 68 line 6.
72The defence contended that the seizures, the desire for answers, the google research, infected the reliability of the memory and I should be concerned, or have a reasonable doubt, as to how this forgotten memory was said to be revived. The defence argued that the evidence showed that there was no early, or pre-Google search disclosure to the boyfriend. All her disclosures including to the boyfriend were, it was argued, in the context of and in response to her seizures and her seeking out, researching on the internet for answers.
73In my view there are concerning aspects of how the complainant’s memory came to be revived. However, I do not simply dismiss the veracity of the complainant’s memory or evidence. Common sense would say that legitimate memories can be lost and then by reason of some prompting event or circumstance be revived. Accordingly, my concerns need to be assessed against the evidence of who the complainant first disclosed these matters to and when, that is, was it her boyfriend at a time well before the seizures or was it to him or Dr Chin at a time after the seizures and following internet research. I will deal with this issue shortly, but before moving to that I note that with respect to what was revealed to Dr Chin, there is a significant feature that was not part of what Dr Chin was told notwithstanding what the complainant ultimately said had told Dr Chin of that particular detail.

Stage 3: Telling others - who was told, when were they told and what were they told
(i) Dr Chin
74The complainant said in her VARE – which she participated in just 3 weeks after she saw Dr Chin for her second appointment - that she told Dr Chin of the digital penetration. In fact, Dr Chin noted carefully what was said by the complainant to her, she wrote it verbatim and used quotation marks. She noted that the complainant said that the accused had put his hand down her pants and touched her. There was no disclosure of the alleged digital penetration according to Dr. Chin. Understandably, given the statutory responsibilities, Dr Chin was focussed on ensuring she accurately recorded a disclosure of childhood sexual abuse. While I fully accept that a complainant in a sexual assault case may tell different people different things in describing the offence, in this case the prosecution put significant emphasis on the authenticity of the complainant’s account on the basis that she remembered the pain and the stinging feeling she experienced when the accused digitally penetrated her.[37] It was also the basis for her saying that he used more than one finger.[38] The fact that, in what I consider was her first detailed account of the alleged offending, given to the doctor, who she was explaining her traumatic experiences, that she did not allege penetration is a matter of concern as to the reliability of her memory. As will be seen, the complainant’s disclosure to her boyfriend was in very general terms without any reference to digital penetration, and that is more understandable given the context of the disclosure conversation as described in the evidence of both the complainant and the boyfriend.[39]
[37] Trial Transcript (dated 25 October 2022) Prosecution’s Closing Address, page 50 line 17-26.
[38] Ibid.
[39] Trial Transcript (dated 25 October 2022) Prosecution’s Closing Address, page 56 line 6.
75The context where her memory was said to be revived in circumstances of the complainant’s understandable desire for answers regarding her seizures and her internet research, raises the real spectre that the complainant found one of the general causative reasons – being sexual abuse – and adopted it and erroneously described it as a childhood experience and memory. Of course, I do not have to positively find that this was what occurred. In a criminal trial, I have to consider if the prosecution have by all the evidence, removed this as a possible conclusion. That requires me to carefully consider the other evidence of what the complainant said to who and when she said it.

76But before moving to that I return to what was said to Dr Chin. A consistent account would operate to lessen the possibility that the complainant’s memory is unreliable. While there are often understandable differences in versions of sexual offending given to different persons, the key omission of not saying to Dr Chin that there was digital penetration is troubling. Also troubling in this regard is that the complainant maintained she did tell Dr Chin of that important detail. These matters add to my uncertainty as to the reliability of the complainant’s evidence.
(ii) What was said to her boyfriend and when
77In her VARE account to the police, the complainant was asked who was the first person she told. She answered, that she thought the first person was her boyfriend who I will refer to as ‘BL’ or her ‘boyfriend’.[40] She spoke of being in a dark place when he came back into her life, and she said, then I think just one day I just told him.[41] Then she said, ‘we’ve been together for a while, so …I wasn’t sure if he remembered or if I have actually told him because I only mentioned it once and then I had never mentioned it again’.[42]
[40] VARE Transcript page 33, Q 231.
[41] VARE Transcript page 34, Q 234.
[42] VARE Transcript page 34, Q 235.
78She was then asked in the VARE when she told BL and she replied, ‘I would say a few months into us dating’.[43] She then said that they commenced dating in June of 2017. She said she thought the conversation occurred at her house.
[43] VARE Transcript page 35, Q 241.
79During cross-examination it was suggested to the complainant, and she agreed, that she had told police that she had made a disclosure to BL a few months into the relationship, which started in 2017.[44]
[44] Trial Transcript page 49, line 30.
80Although in his evidence, BL says that he was the first person the complainant had disclosed the alleged offending to, his description of the conversation was entirely different as to when he learnt from the complainant that there was some alleged sexual touching by the neighbour. He was clear that it was towards the end of their relationship, that is in 2019 or as he said two years into the relationship.[45] His evidence was that the conversation was in his bedroom at his house.[46]
[45] Trial Transcript pages 98 and 101.
[46] Trial Transcript page 98.
81BL said in cross-examination that the complainant told him the first name of the accused.[47] However, other evidence from Dr Chin was that the complainant did not know the name of the offender and it was later provided by her mother. Also, it emerged that the complainant spoke of the matter with him again in a second conversation, but that was after she had told her mother. This detail also creates uncertainty as to whether the complainant told her boyfriend back in 2017 and before she suffered from the seizures and commenced researching to find answers.
[47] Trial Transcript page 101.
82The was other evidence from the complainant sister who says, in 2019 and proximate in time to the second appointment with Dr Chin that she asked the complainant directly if the she complainant had told BL and the complainant said she had not told him.[48]
[48] Trial Transcript page 112-113.
83The evidence surrounding when she told BL is troubling and, as I have discussed, it is of some importance to the prosecution case. I have given this aspect of the case considerable and anxious consideration. Having scrutinized the evidence both the complainant and BL multiple times, and given what I consider is powerful evidence of the complainant having no memory until the time between the two appointments with Dr. Chin, I am firmly of the view that the evidence of BL is more likely to be accurate and the complainant first told him in 2019 around but after her research into the possible causes of her seizures.
84Although BL gave evidence of the conversation being a couple of months before the relationship ended at Christmas 2019,[49] the fact that he asked if she had told her mother and the complainant said she would when she was ready, makes it clear that this Christmas or later conversation could be the second one that was had between the complainant. From all the evidence it is clear that the second conversation was after the complainant had made the disclosure to Dr Chin and the complainant’s mother was informed.
[49] Trial Transcript page 101, line 5.
85As discussed earlier in my judgement this issue was one that became important during addresses as the prosecution’s final position was that the complainant was correct in her evidence that the first disclosure was in 2017 and thus not infected by the research into the possible causes of the seizures and thereby it was a more reliable, authentic memory. Although it was not put to BL by the prosecutor that his evidence was incorrect I do not place any weight on this in the overall assessment of the evidence.[50]
[50] I note that I raised the point, not with the prosecutor, but during defence counsel’s address. This example of urging acceptance of one prosecution witness over another, without seeking leave to put to the witness that he is mistaken, is not in the same category as those cases such as Kanaan v R [2006] NSWCCA 109 [84]-[105], Murillo (a pseudonym) v The Queen [2020] VSCA 68 [110]-[116], Ritchie (a pseudonym) v The Queen [2019] VSCA 202.
86As of what was said by the complainant to BL, the evidence of both witnesses was consistent that no detail of the alleged offending was raised. The substance of the evidence does not alter my conclusion as to when the conversation took place. In the end I do not find that the conversation with BL was one before the seizures and as such it does not assist in overcoming the reliability issues that arise because of the complainant's research about her seizures.
(iii) The complainant’s sister
87The complainant had a close relationship with her sister, ‘ND’, and there is no doubt the complainant disclosed the alleged offending to her sister. There was some uncertainty as to whether it was before of after the complainant spoke to Dr Chin, but that divergent evidence was in the end of little moment. Having examine the evidence of the complainant and her sister as to when the disclosure conversation occurred, it seems more likely that it was after the disclosure to Dr Chin, especially given that the complainant did not say to Dr Chin that there was digital penetration, but she did ultimately disclose that to her sister. However, the context of how that critical piece of information – the penetration – was disclosed to the sister, was itself important in assessing the veracity of the allegation.
88In her VARE, the complainant said her sister came to the appointment with Dr Chin and the complainant asked Dr Chin to speak to her sister about the alleged offending.[51] She said that a few days after that she and her sister spoke in more detail as to what had happened to her at her neighbour’s house. The complainant’s evidence was that in the conversation her sister was a calming influence: she asks questions but did not unduly press her.[52] The sister’s evidence was that she did keep asking and seeking answers so that she could help her sister.[53]
[51] VARE Transcript page 39, Q 274.
[52] Trial Transcript page 52, line 24.
[53] Trial Transcript pages 110-111.
89Both the complainant and ND gave evidence that one of the questions asked as to what the accused had done was whether he had had sex with the complainant.[54] I interpret that as meaning penile vaginal penetration. ND who had asked the question gave evidence that the complainant said she could not recall if he had, or that it was not something “she could remember”.[55] In the context this was a surprising answer. The complainant could and did give detailed particulars of the alleged offending, so not to be able to positively rule out penile penetration in her conversation with her sister is something of concern.
[54] Trial Transcript page 53.
[55] Trial Transcript page 111, line 23.
90Both witnesses were clear, that the complainant spoke of the digital penetration. This was it seems the first time the complainant said there was digital penetration, though as noted, the complainant was adamant – but in my view mistaken – that she had first told of digital penetration to Dr Chin.[56]
[56] Trial Transcript page 53.
91One other smaller matter of an inconsistency in the accounts of the two sisters was that ND said the complainant spoke of the accused coming into the room with snacks being popcorn and lollies.[57] The complainant’s account is a detailed description of cheese, crackers and cabana or twiggy sticks. The complainant said in cross-examination that she had had not spoken of lollies and popcorn to her sister, or not that she could remember.[58]
[57] Trial Transcript page 116.
[58] Trial Transcript page 74.
92This would not be an inconsistency of much moment, save that the bringing in of snacks was more or less the ruse for the accused to come into the room. The retention of the details of what food it was gave the complainant’s account in the VARE an element of authenticity, as it being the sort of thing a child would remember. For there to be a different version that arose in ND’s evidence diminishes that aspect of the prosecution case.
93As to another aspect of ND evidence, she spoke of leaning from her mother that the complainant had raised three incidents of trauma but had not given much detail of the third trauma – that is the alleged offending. The timing of when ND learnt of this from her mother remained unclear. I will return to this when dealing with the mother’s evidence.
(iv) The complainant’s mother
94I will refer to the complainant’s mother as ‘TD’. The critical aspect of the complainant’s mother, or TD’s evidence was what she said occurred in the Sunshine Hospital on 1 April 2019. As I have outlined in detail, the complainant had no memory of the alleged offending until she embarked on her research into the possible causes of her seizures in the time between her first appointment with Dr Chin on 6 June 2019 and her second appointment on 25 July 2019. It was during this process that the complainant discovered the potential role of trauma and she searched her memory for traumatic experiences. She came up with the three traumatic experiences that have been mentioned in some detail thus far in this judgement.
95The complainant’s mother was at the second Dr Chin appointment and when she came into the room she was told what the complainant had disclosed as to her three traumatic experiences. It was then that the mother provided the name of the accused as the complainant did not know his name.
96However, and in contrast, TD’s evidence was of a conversation in the Sunshine Hospital in April 2019, where the complainant detailed the three trauma experiences, though she was cryptic about the third.[59] It was the mother who says she raised the initial question of whether the complainant’s seizures could be caused by trauma - that is it was not the complainant.[60]
[59] Trial Transcript pages 78-79.
[60] Trial Transcript page 85, lines 10-12.
97TD’s evidence was that in the cubicle in the emergency department she asked if the complainant thought the seizures were from trauma, and the answer was “I’ve had three lots of trauma, the dentist, the road rage and next door”. TD went on in her evidence to say that as to the words ”next door” she then specifically asked “?” and “did he do something to you”, to which the complainant nodded. The complainant did not, or could not, elaborate when further questioned and the mother responded with “I’m so sorry, so sorry, I’m sorry”.[61]
[61] Trial Transcript page 79, line 4.
98Plainly this was a very emotional moment coming on the significant stress of a second hospitalisation for seizures. TD in her evidence also then confirmed she had in the past and more than once asked the complainant if the accused had done anything to her and had received a “nup” in response every time.[62]
[62] Trial Transcript page 80, lines 2-6; Special Hearing Transcript, page 23-24.
99There was no evidence from the mother, or anyone else, of taking the matter of this cryptic, but nonetheless significant, disclosure of the accused actually doing something to her and it being one of the three traumatic experiences. There is no evidence of the mother asking any further questions or gentle enquiries when the complainant was stable, less emotional and in less fraught circumstances. It seems the next time it was discussed, it was not at the first, but the second Dr Chin appointment. That set of circumstances is surprising, especially in light of TD asking the complainant over the years if the accused had done anything. The mother’s evidence was in effect that her suspicions or fears over the years were finally confirmed at the Sunshine Hospital, but there is no evidence of raising it again or getting more details. This is troubling.
100It was not suggested by the defence in cross-examination of the mother or the complainant that the conversation had not occurred. The cross-examination was directed more to the mother being the one who raised the accused as a possible cause of the trauma and not the complainant.[63]
[63] Trial Transcript page 85, lines 10-12.
101The complainant’s account of the Sunshine Hospital conversation was significantly different to that of her mothers. I will not read the answers in the VARE at 265-7. To summarise the complainant’s mother asked the question she had asked before, being ‘has Elijah done anything to you?’ and the complainant said that in response she cried and from that she inferred her mother knew and had in fact known all along.
102When I re-examined the mother’s evidence and the complainant evidence of what occurred in the Sunshine Hospital and contrast that to the complainant’s evidence of how she came upon the concept of her seizures maybe being caused by trauma and when she came to that view, I am left wholly uncertain about the Sunshine Hospital conversation. Being in the Sunshine Hospital was obviously a traumatic event itself. It was late at night and the complainant had just suffered a seizure at a level that required emergency hospital attention. What was said relevant to the alleged offending remains in my mind uncertain.
103In the end the evidence of the Sunshine Hospital conversation is not something that clears things up or confirms or adds veracity to the complainants overall account that the alleged offending in fact occurred. In my view, it adds to rather than diminishes my concerns that the evidence of the complainant possibly derives from an erroneous memory.
104As discussed thus far, there was evidence from the complainant and her mother that the mother probed the complainant with questions of whether the accused had done anything to her, had he touched her. These questions were asked more than once even though the complainant had always denied that anything inappropriate occurred. It was, as I had outlined, put by the prosecution that the complainant was being honest when at the various points when she denied being inappropriately touched. It was put that she had no memory and thus answered truthfully as she understood things. The evidence made clear that the mother was suspicious and to a degree persistent, though clearly her questioning was sensitive.
105This background cannot be entirely ignored when considering what the complainant discovered when she researched the possible causes of seizures, which included child sexual abuse. The two other trauma experiences were vivid and never forgotten incidents. The sexual abuse trauma was one that the complainant had no memory for many years.
106I cannot ignore this context of this questioning having some risk of being suggestive, planting a seed in the complainant’s mind. I am not making a finding that the mother’s questioning did prompt a false memory, rather I add it as another concerning aspect as to how the complainant’s memory was revived. It adds an aspect that means I must be cautious and give full weight to the directions relating to an honest but erroneous memory.
107As I said some time ago when outlining the structure of this judgement, I would deal with the stages of the complainant’s memory, how and when her memory was revived, then who she told, and when and what she told others, and then finally examine in detail the actual evidence of the complainant in her VARE and in the cross-examination at the Special Hearings. That is the stage I have reached, but as is obvious I have already dealt with and scrutinized much if not most of the complainant’s evidence.
108A critical factor that I should at this point raise as I move to consider the complainant’s evidence, is the direction I have just mentioned regarding delay that can give rise to an honest but erroneous memory. I must direct myself as required by law and then be vigilant to put the direction into practice.
109Because of the time between the when the alleged offence is said to have occurred, and when the complainant first raised the complaint with Dr Chin and her family members then the police, I must take into account the warning that would be given to a jury about the reliability of the complainant’s evidence.
110The warning is that the honest recollections of a witness about events that she believed to have occurred many years before may be unreliable. The passage of time itself may affect any witness’s memory. While 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.
111Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay. In this case there is the added or indeed more prominent feature, that the complainant’s memory may be effected by her researching the possible causes of her seizures, and then adopting one of the causes being the trauma that can arise from childhood sexual abuse. This stressful scenario of unexplained seizures, and the way the complainant came to revive what was said to be a memory of what occurred to her when she was between the ages of seven to nine, gives rise to concerns that her memory is possibly an erroneous one.
112The law says that I must take this potential unreliability into account when considering evidence that is given after a long delay and in the circumstances that surrounded the complainant coming to have the memory on which her evidence is based.
113I must take this potential unreliability into account in determining whether I accept the complainant’s evidence at all, and if I do accept it, in whole or in part, in deciding what weight to give to that evidence.
114In making this assessment, I must carefully consider not only whether the complainant’s evidence is honest, in the sense that the complainant believes it to be true, but also whether it is in fact true. I must consider the possibility that she honestly believes what she is saying, but is mistaken due to the distortion of her memory.
115All that said I must make clear that in giving these directions I am not suggesting, and it would be wrong to suggest, that people who make complaints about sexual offences are less reliable than other witnesses. That is not the case.
116These directions are necessary solely because of the matters relating to the delay and the manner in which it is said the complainant’s memory was revived. And also I add the potential suggestions by the complainant’s mother over the years.

The evidence of the complainant
117As noted, the complainant’s evidence was presented in the form of her VARE conducted on 12 August 2019, as her evidence in chief and the cross-examination and re-examination at the special hearing held over 2 separate days of 27 May 2021 and 15 October 2021. During the course of her evidence, the complainant was asked to make sketches of what she remembered of accused man’s house. They were tendered as exhibit A, but added little if anything to the issues in dispute.
118The VARE began with the complainant responding to a question or request form the informant to tell of everything that happened from start to finish in as much detail as you can and not to leave out anything even if she did not think it was important. The complainant’s lengthy answer was referred to by both counsel as capturing the allegation made against the accused. I will quote the passage at length:
I was friends with my next-door neighbour's youngest daughter, she's around my age so we got along fairly well, and one night we were in her bedroom in her bed watching Alvin and the Chipmunks: Chipwrecked. We were in her bedroom with the door open a little bit and it was very dark in the room, only the TV in front of us - so we were laying down, facing the TV. Shortly after I had taken a photo with my old phone of the photo from the movie his daughter, Rayne, got up to go to the toilet. She got out from underneath the blanket which we were both under and didn't fully put it back down, so there was - a bit of the mattress was there but I was still under the blanket. Once R had gone to the toilet and shut the door her dad came in with a plate of food which had cabana and cheese and salami on crackers on it. He came in and sat on the edge of the bed next to me and put the plate of food on to her bedside table. He then started to make comments about my appearance, about how I was a very beautiful, cute little girl, I was very well behaved and I was very nice, and that, "I was glad," that his daughter had a friend like me 'cause - - - I was nice, and I was a very attractive little girl. He then lifted up the blanket and put his hands down my pants. He kept making the comments and also was saying never to say anything to anyone, not to tell his daughter, not to tell my mum, not to tell my mum's boyfriend.
He then put his hands inside of my underwear and put his fingers inside of my vagina, he then kept making the comments. Because his daughter had only gone to the toilet, once he heard the toilet flush he then just put the blanket over me and made it look as if he just walked in with the plate of food, and placed it on to the bedside table to make it look like he had. just come in as she was walking back into the room.[64]
[64] VARE Transcript page 2, A 11.

119The complainant provide more details in answer to questions seeking for her to elaborate:
So tell me more about what happened at that point there, after he made the comments.
He just began to slowly remove the blanket from over the top of me.
And then just leaned in a bit and then put his hands down my pants, and then eventually into my underwear.
All right. Tell me more about the part where he put his hands down your pants.
He put his fingers inside of my vagina.
Yeah. And tell me more about that part. What happened there?
He just moved them around a bit, kept making the comments, but because his daughter was corning back quickly it didn't go further than that. He did put his fingers inside but he didn't ever have sex with me or anything like that.[65]

[65] VARE Transcript page 5, Q 19- Q 22.

120The prosecution emphasised that the complainant’s evidence, recounting as a young adult what she experienced as a 7-9 year old child, contained what you might expect. The complainant recalled being at her friend next door’s house and watching a DVD, the title of which she remembers to this day - Alvin and the Chipmonks: Chipwrecked.” She remembered lying on her friend’s bed, how they were lying close together, and her friend going out to the toilet. She remembered in general terms the layout of the bedroom and the house. She remembered her child like interest in an old mobile phone given to her and that she used the phone to take a photo of the film on the television screen.
121She spoke in intriguing detail of the snacks the accused bought in, though as the defence pointed out, the complainant’s sister said the complainant’s account to her was of entirely different sort of snacks. I have referred to how this small detail has some importance because the snack was portrayed as the ruse the accused used to come into the room and to legitimise with his daughter as she returned from the toilet why he was in there with the complainant alone.
122The fact the complainant remembered the detail of the snacks tends to make her memory authentic as a memory focused on what a child would remember. The fact that she gave a different description to her sister – saying the snacks the accused bought in were popcorn and lollies, not more adult snacks of cheese salami, cabana, or twiggy sticks- does undermine the prosecution argument that the complainant remembered the sort of surrounding detail a child would remember. Consistency in that detail would be persuasive, but inconsistency tends to create doubt as to what occurred and whether the memory is a genuine one.
123The prosecution also put much stock on the fact that the complainant gave a description of feeling pain and stinging when the accused penetrated her vagina. The prosecution argument was that was evidence that should have a “chilling” impact on me as the finder of fact. It was a memory of a sensation and that made it more authentic as a memory of what had really happened. It lead the complainant to the conclusion that the accused used two fingers rather than one.
124I am not sure that there is in truth much the force in the argument. The complainant when asked at the outset to speak of every detail spoke of the accused penetrating her with his fingers but did not speak of consequential sensations. Rather the description of the sense of pain and stinging came after a break for the informant to check whether anything more needed to be asked and on return asked why the complainant had said the accused used his fingers. The complainant’s answer was to presume what must have happened. Her answer was:
I'm pretty sure he used two because it was hurting.
So, yeah, I would say he used more than one.
It was just a pain that I didn't know what it meant.
[66] VARE Transcript page 41, Q 290.
It just hurt and it kind of stung a little.[66]

125The other surrounding details that the prosecution emphasised related to the fact the complainant remembered she played with the accused daughter and all this occurred was when she was in mid primary school, which coincided with when the accused was living in the house next door to the complainant. While of some value these matters did not do more than give a broad timeframe of when the accused was her neighbour. There is no issue that the complainant played with the accused daughter and went to the accused’s house. The evidence established in a broad way the opportunity for the accused to commit the crime, but the evidence did not do much more than establish that the complainant was living next to the accused and she went from time to time to play with his daughter.
126The defence in dealing with the details, not just pointed out the inconsistencies and mistakes in the retelling, also emphasised the lack of details where that might be expected. Important in this regard was that the complainant did not recall much of the accused, which might be understandable, save that the accused was a man with an unusual attribute or affliction – he had a limp and had to use a walking stick to get around, a fact not referred to by the complainant in her detailed description of the accused coming in and delivering a plate of snacks, before sitting on the bed and sexually penetrating her.
127Defence counsel gave an example of the complainant’s account in the VARE having aspects of being reconstructed, or of the complainant being unsure of a detail, and then adopting that detail as a fact by agreeing with the questioner. The example of the how the complainant was at the outset unsure of whether she was wearing tracksuit pants, but that becomes a fact in her description just moments after being unsure simply because of the way the questions were put and assumptions made.
128Another example is that the complainant’s commences her initial lengthy description (set I out above) by saying “one night we were in her bedroom watching” the movie.[67] Later the informant sought to clarify what time the incident occurred and introduced a different timeframe in asking, “What time of day did this happen?”. In her answer the complainant initially confirmed what she had first said, “It would have been night-time. But then the complainant changes the evidence slightly, but in my assessment not so much on the basis of a memory but on what would have been the case. She says, just after saying it “would be at night-time”:[68]
in the afternoon, Because I was young, mum didn’t like me going out too late, so I would have to be home after being out , so it wouldn’t be too late, around 6 o’clock I would say, And so then I had to go home and have dinner.
[67] VARE Transcript page 2, Q 11.
[68] VARE Transcript page 8, Q 39.
129These are small details, but they add another layer to the sense that the complainant was not describing something from an authentic and complete memory but was reconstructing and trying to fit the details in with what was likely to be what had occurred.
130As to the cross-examination there were aspects that reveal that the complainant was an honest witness doing her best, conceding matters that one would expect an honest witness in her position to concede. However, there were aspects in the cross-examination, indeed the whole of her evidence, that reveal that while honest her evidence was not reliable given that for a very lengthy period she had no memory of the alleged offending, and then it was revived in the unusual manner it was. Those matters have already been extensively discussed.
131So in my assessment, I am well aware of a general concept that genuine memories can be revived, and that there can be significant events that a young person may wish to forget and ultimately they do successfully extinguish it from their memory. However, this was not a situation, where once I have considered all the surrounding evidence and given due consideration to the warning I set out above, that I am left confident that the complainant’s account was one of a reliable memory of something that happened. I can accept much of what she said in evidence, but in the end as to the alleged offending I am not as sure. In short, there are significant matters that operate to establish a reasonable doubt about her memory and thus her evidence. I have outlined those concerns in the course of my judgement and I won’t just repeat them, but principle amongst them is the way that the alleged offending was rediscovered as a consequence of her research on the internet into the causes of her seizures.
132There was one further witness, the daughter of the accused’s then girlfriend. The witness explained that she and her mother were living in the accused’s house at more or less the timeframe covered in the indictment. While at different times she was studying, or at a part time job, and her mother was ultimately employed, they both lived in the house. She explained that it was mostly on weekends that R came to stay. She knew of and saw R and the complainant playing, though she did not know the complainant’s name. She was able to describe where bedrooms and the toilet was in the small house. She explained that the accused had a limp and used a walking stick which made a noise on the floorboard. She agreed that she may have seen the accused without a walking stick but not very often as she said he always used a walking stick.[69]
[69] Trial Transcript pages 93-94.
133It was agreed that her mother, who also lived there at the time, had in the interim passed away.
134In light of that evidence, a further and important direction that arises as consequence of the delay is the impact the delay has had on the accused’s ability to defend himself against these charges. Thus, in assessing the evidence, I have had regard to the following significant considerations. Because of this delay, the accused lost the opportunity to make enquiries at, or close to, the time of the alleged offending. Because of the delay and the consequent lack of precision as to when the alleged offending occurred, the accused is, in the end, reduced to a bare denial.
135Thus, the delay has meant the accused lost the ability to further explore the alleged circumstances in detail soon after the offences were said to have occurred. Such an exploration may have uncovered evidence which would, have thrown doubt upon the complainant’s allegations and confirmed the accused’s denial of the charges. He may have been able to call on his memory or observations of his then partner or her daughter who were living with him at the time.
136There is no issue that the accused had opportunity because the complainant did play with R, and I do not consider the defence arguments as to the implausibility of the accused committing the alleged act in the time frame while R was at the toilet, or that he would take the risk are strong arguments. However, I do take into account that the delay has caused the accused a forensic disadvantage because he cannot investigate the circumstances as he would have been able to if the complaint was made at or closer to the time it was said the offences occurred.
137The accused man did not give evidence in the trial. That is his right. It is for the prosecution to prove its case beyond reasonable doubt, and the accused is not required to give evidence. The onus of proving the accused’s guilt always remains on the prosecution, regardless of whether the accused chooses to give any evidence. This means that the fact that the accused did not give evidence cannot be used as evidence against him. That fact is not evidence in the case. It does not constitute an admission by the accused, and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution’s case in any way. It proves nothing at all. I do not draw any conclusions against the accused because he did not give evidence, or even consider the fact that he did not give evidence when deciding whether the prosecution has proved its case beyond reasonable doubt. I do not speculate about what he might have said if he had given evidence. I must decide this case solely on the evidence which has been given in court.
138The evidence of the pretext call involving the complainant’s mother and the accused was in essence a lengthy denial. It was clear he was forewarned and thus forearmed. I do not draw any adverse inference as a consequence of him knowing in advance of the likelihood of an approach to him, on the topic of the complainant’s allegation. However, in the scheme of things his denials in the pretext call, while not dismissed are not a piece of evidence that I have given much weight to in coming to my conclusions.

Conclusion and verdicts
139As is well understood, the prosecution’s task in a criminal trial is to prove beyond reasonable doubt each and every element of each offence. The charges here are sexual penetration of a child under 16 and alternatively an indecent act with a child under the ae of 16. In this case, as I have made clear from the outset there is only one element in dispute, that being whether the accused intentionally penetrated the complainant’s vagina with his finger or alternatively touched her on her leg and outside of her vagina. There is no dispute that the complainant was under the age of 16 at the time and with respect to the alternative charge the touching alleged is indecent. There is no need and I have not to dwelt long or at all on the other elements that must be proved beyond reasonable doubt other than whether the accused did the act alleged. The key question is, am I satisfied beyond reasonable doubt that he did the alleged physical act.
140As I have set out for the prosecution to prove beyond reasonable doubt that the accused did the act alleged, I must accept the evidence of the complainant as both honest and importantly as a reliable account of what she says occurred. I have traced how the complainant’s memory of the alleged event evolved. In particular, how for years she had no memory and honestly denied direct questioning of whether conduct like the offending conduct had occurred. That of itself was concerning but not fatal. What then occurred at a later point was the distressing circumstances of the seizures and the research into traumatic experiences which in turn precipitated a revival of what was said to be a lost memory. All this establishes in my mind a reasonable doubt as to the reliability of the account.
141I have no doubt the complainant was an honest witness – as were all the witnesses – but over time and importantly because of her unusual medical circumstances there is a risk, a reasonable possibility that hers is an honest, but erroneous memory. All the evidence of who the complainant told, when and what does not operate to overcome my doubts, rather that evidence exacerbates or creates new and different uncertainties. Ultimately, the complainant’s evidence, her narrative of what she said she experienced at some point between the age between 7-9, is not evidence I can rely on to reach the exacting standard of satisfaction beyond reasonable doubt that the accused did in fact sexually penetrate or sexually touch the complainant. It falls short of that.
142It is not necessary to find that this was all a false memory of an event that did not happen. Rather, the question in a criminal trial is, have I been left with a reasonable doubt about whether the event happened. All the evidence combined leaves me with a reasonable doubt. The alternative that this alleged offending may possibility not have happened remains as a reasonable hypothesis.
143Given the presumption of innocence and the heavy onus on the prosecution and the prosecution alone, in these circumstances and based on my analysis and of all the evidence, and my conclusion that I am left with a reasonable doubt the only verdicts that are available to me are the following:
144Charge 1 Sexual penetration with a child under 16: I find the accused, Elijah PHILLIPS, NOT GUILTY.
145Alternative Charge - Charge 2 Indecent act with child under 16: I find the accused, Elijah PHILLIPS, NOT GUILTY.

[2022] VCC 2325

14 November 2022