Director of Public Prosecutions v Xerri

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-01761

DIRECTOR OF PUBLIC PROSECUTIONS

CHRISTOPHER XERRI

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	16-18 March 2021
DATE OF JUDGMENT:	13 April 2021
CASE MAY BE CITED AS:	DPP v Xerri
MEDIUM NEUTRAL CITATION:	[2021] VCC 512

REASONS FOR JUDGMENT

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Subject:

Catchwords:

Legislation Cited: s 420D Criminal Procedure Act 2009

ss 4A and 43 Jury Directions Act 2015

Cases Cited: Browne v Dunn (1893) 6 R 67

Sentence: Verdict: Guilty on Charges 2 and 3;

Not Guilty on Charges 1 and 4

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Russ Hammill	Office of Public Prosecutions
For the Accused	Alexander Patton	Stary Norton Halphen

HIS HONOUR:

In the matter of Christopher Xerri, judgment on Indictment J11766344.A.

Introduction

The accused Christopher Xerri is charged that on 22 June 2018
1: Sexual Assault of a Child under 16
2: Sexual Assault
3: Supply Drug of Dependence to a Child
4: Traffick in a Drug of Dependence
Charge 2 is charged in the alternative to charge 1 and charge 4 is charged in the alternative to charge 3. Accordingly, the Crown only seeks convictions on two of the charges on the indictment.
The accused has pleaded not guilty.

Trial by Judge Alone

This case is being tried by me as judge-alone. The accused’s application to be tried by judge-alone pursuant to s.420D Criminal Procedure Act 2009 (CPA) was granted on 5 November 2020.
In hearing this matter I may make any decision that could have been made by a jury. My decision will have for all purposes the same effect as a verdict of a jury.
Section 4A Jury Directions Act 2015 (JDA) applies in this case.[1]
[1] Pursuant to s.420ZF CPA introduced by the enactment of the COVID-19 (Emergency Measures) Act 2020
Section 4A provides that the Court's reasoning with respect to any matter in which Parts 4, 5, 6 and 7 apply must be consistent with how a jury would be directed in accordance with the Jury Directions Act. Further, I 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.
I must apply all directions of law to myself that would have been given to a jury in this case.
In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.

The Issues at Trial

The Prosecution Opening

The complainant in this matter, Jane Graham[2] was born in August 2002. At the time of the alleged offending on 22 June 2018, she was 15 years of age. The complainant was under the care of and lived in accommodation provided by DHHS at Bentleigh.
[2] A pseudonym
The Crown opening alleged that Mr Xerri initiated contact with the complainant using the platform Facebook messenger on 15 April 2018. The accused’s Facebook profile picture was a cannabis leaf. The accused had earlier been accepted as a Facebook friend by the complainant.
After some early exchanges, the accused and complainant arranged for the exchange of a gram of cannabis for the complainant’s Sony Bluetooth music speaker. This exchange was arranged for 22 June 2018.
Just before 5pm on 22 June 2018, the accused parked his car adjacent to the outside of the residence where the complainant lived. Shortly before the accused arrived, a worker at the accommodation, Mary Anderson[3], overheard the complainant speaking to another resident about her expectation of getting cannabis. Ms Anderson noted the registration number of the accused’s car.
[3] A pseudonym
At 5:05 PM the complainant got into the accused’s car. He told her she was prettier than her online photos. The complainant gave the accused her Bluetooth speaker and the accused weighed a small amount of cannabis and gave it to her. During her time in the car the accused sexually assaulted complainant by:
·trying to kiss her;
·touching her upper, inner thigh; and
·trying to hold her hand.
The complainant repeatedly told the accused to stop and that she did not want to be touched. She got out of the car and ran back to the residence. The accused drove away.
Mary Anderson could not see what happened in the car but saw the complainant come back onto the property. She was distressed. The complainant told Ms Anderson about the sexual assault in the car stating that the accused tried to kiss her and that he touched her upper inner thighs. The complainant agreed to call the police.
The complainant made a VARE statement to police just after 8pm that evening.
Forensic testing for DNA did not incriminate the accused.
On 26 June 2018, police executed a search warrant at the accused’s property and found the complainant’s black Sony speaker and a pair of scales.
On 22 August 2019, the accused, through his legal representatives, resolved the matter. A plea of guilty was entered on what is now charge 2 on the indictment – sexual assault. The plea of guilty was later withdrawn when the presiding Magistrate refused to accede to the application for summary jurisdiction.

The Defence Reply

The main issue at trial is the reliability and credibility of the complainant.
Flowing from that, the primary issues in dispute are:
·First, supplying the complainant with cannabis. Instead, the complainant supplied the accused with cannabis;
·Second, in any way touching the complainant in an inappropriate manner;
·Third, the characterisation of the connection between him (the accused) and the complainant prior to the meeting on 22 June 2018; and
·Fourth, knowing the age of the complainant.
The accused otherwise agrees that he drove to outside the complainant’s address at Bentleigh and met with the complainant at about 5:05pm on 22 June 2018.

General Directions of Law

I now refer to the general directions given in a criminal trial which I must apply.

Evidence Given Remotely

The evidence of Jane Graham was in part pre-recorded and in part evidence given before me. In each case, the complainant’s evidence was given from a remote location.
The evidence of Senior Constable McDonald and Sergeant Luri were each given from remote locations, due to the court’s social distancing requirements during the aftermath the COVID-19 pandemic lockdown.
I remind myself that the evidence of the witnesses must be given no greater or lesser weight for the fact that it was recorded or provided remotely. I draw no inference adverse to the accused for the fact that the complainant gave evidence from a remote location.

Presumption of Innocence

In all criminal trials an accused person is presumed innocent of the charge unless and until they are proved to be guilty.

Burden and Standard of Proof

The prosecution bears the burden of proving the case against the accused. No accused person must prove their innocence. The prosecution always bears the burden of proving the accused’s guilt.
The accused may be found guilty of a charge only if the prosecution has proved its case beyond reasonable doubt; the highest standard known to our law. Proof to any lesser extent must result in a verdict of not guilty. There is, of course, an evidentiary burden upon the accused in relation to charges 1 and 3.

Decide Solely on the Evidence and Inferences

I must decide the case only on the evidence led in this trial. I must not have regard to any media reporting or social media, or conduct any research about the parties or witnesses. The transcripts are to be used as an aid and not as a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.
The evidence adduced in this trial is the evidence of each of the witnesses and the exhibits.
As the Judge of the facts and the law, I must find the facts and draw inferences from them, as well as apply the law to the facts as I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
I may only return a verdict of guilty on a charge if I am satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and I must acquit him.
I must assess and determine the credibility and reliability of each witness called and I may accept all, some or none of a witness' evidence. I must base my verdict only on evidence I find to be credible and reliable.

Complaint Evidence

It is submitted that the complainant made an immediate complaint of sexual assault to the worker Mary Anderson.
If I accept that a complaint was made, then I may use complaint evidence adduced at trial in two ways:
·First, as proof of the truth of facts asserted in the complaint; and
·Second, to assess the credibility of the complainant by showing that her account of the events in question has been consistent.
It is necessary to be mindful that in the instances where a witness other than the complainant gave evidence of the complaint, the complainant was in fact the source of that evidence.

Distress

It is submitted that there is evidence that the complainant was distressed immediately after the time she left Mr Xerri’s car and spoke to the worker
Ms Mary Anderson.
Evidence of the complainant’s distress shortly after an alleged sexual offence may be admitted as circumstantial evidence that independently supports the complainant’s evidence, and may be used as circumstantial evidence where it is reasonably open for me to infer that there was a causal connection between the alleged offending and the distress.
Distress evidence may also form part of the narrative when evidence is led of a previous complaint. Such evidence may support the matter described in the complaint, because it is a common human experience that the recounting of a stressful experience can be accompanied by outward indications of distress.
I bear in mind that signs of distress may result from any one of a number of possible causes; it may have been caused by the commission of the offence of sexual assault as asserted, or by some other factor.

Prior Inconsistent Statements

It was submitted that Ms Mary Anderson made a prior inconsistent statement.

Ms Anderson accepted that both statements were made by her.
A prior inconsistent statement can be used in two ways:
·First, I may use the contents of the statement as evidence in the case; and
·Secondly, if I find that Ms Anderson’s statement is inconsistent with her account in court, I may use the statement when assessing her credibility and reliability.
If I find that Ms Anderson made a previous statement which is inconsistent with her evidence in court before me, I will have two different accounts from the same witness. It is a matter for me to determine which account, if any, to believe.

Prosecution not calling or questioning witness

In this case, it may have been expected that the prosecution would have asked Annie Wilkins[4] to give evidence. However, they chose not to do so.
[4] A pseudonym.
The prosecution, as I understand, simply chose not to do so because of the question of relevance. I will return to this later in my judgment.
It is for me to determine whether the prosecution had a satisfactory reason for not asking Ms Wilkins to give evidence. If I conclude that the prosecution did not have a satisfactory reason for failing to call Ms Wilkins, then I may conclude that her evidence would not have helped the prosecution.

The Accused as a Witness/Liberato Direction

The accused gave evidence at trial. He was not obliged to give evidence but chose to do so. He thereby exposed himself to cross examination. The accused’s evidence must be considered along with the other evidence in the case. The accused has not assumed any burden of proof by giving evidence and presenting a case; that burden always remains with the prosecution except as I have already averted to.
In this case, there is a clear conflict between the evidence of the complainant and Mr Xerri’s evidence.
There are four broad conclusions I may reach about Mr Xerri’s evidence.
·First, if I think it is true, then I will find him not guilty;
·Second, if I am not sure whether Mr Xerri’s evidence is true, but think it might be, then I will have a reasonable doubt about the prosecution’s case, and again, I will find the accused not guilty;
·Third, similarly, if I merely prefer the evidence of the complainant to
Mr Xerri’s evidence, then I must find Mr Xerri not guilty. It is not sufficient to merely find the prosecution case to be preferable to the defence case. In other words, it is not simply a question of balancing one case against the other. The prosecution must establish Mr Xerri’s guilt beyond reasonable doubt; and
·Finally, if I reject Mr Xerri’s evidence, that does not mean I must find him guilty. Instead, if I reject his evidence, I must put it aside and ask whether the prosecution has proved Mr Xerri’s guilt beyond reasonable doubt, on the basis of the evidence I do accept.

Browne v Dunn

I note for completeness that Mr Patton on behalf of the accused sought a direction under s.43 based upon what he perceived to be the failure of the Crown to directly challenge the accused’s denials about committing the offences.
Ultimately, I am satisfied that the Crown put its case in evidence, and overall challenged the credibility and reliability of the accused’s evidence.

The Accused’s interest in the outcome of the case

In relation to the accused giving evidence, I must give myself the following direction of law. When I am considering Mr Xerri’s evidence, I must not give his evidence less weight just because he is the accused, and any person on trial has an interest in the outcome of the trial.
I will remember that it is a critical part of our justice system that people are presumed to be innocent unless and until they are proved guilty. It would therefore be unfair to the accused and wrong to give his evidence less weight because he is the accused and so wants to be acquitted. If I did that, I would not be giving effect to the presumption of innocence.

Evidence of other misconduct

During the course of the trial it was apparent that Mr Xerri is in custody.
Further, the complainant gave evidence suggesting that the accused was able to source other drugs besides cannabis and had offered to do so on other days besides 22 June 2018. The accused himself gave some evidence of discussions with the complainant where it was suggested he could link her to other drug suppliers.
I must not exhibit any sympathy or prejudice in the course of my fact-finding. I must not use the evidence for any other purpose.

Use of the Plea of Guilty

Before I can use evidence of the guilty plea as conclusive evidence of the accused’s guilt, I must be satisfied beyond reasonable doubt that such a plea was, and was intended to be, a true acknowledgment of the his guilt of the crime charged; and that if, having regard to the evidence, I conclude that it was possible that he had entered the plea not because of a belief in his guilt but because he believed he would receive a more lenient sentence, then I should discard the plea of guilty from my consideration.

Disregard excluded matters

I disregard all of the excluded evidence identified during the trial and particularly identified during the Jury Directions Act discussions.

DNA evidence

I was asked during the course of the jury directions to consider giving myself the expert evidence warning. In the end I have regard to the expert evidence warning but I note that the evidence of DNA that was referred to in the case was in fact in the negative, that is that the accused was excluded as a source of the DNA. I will take that fact into account in my consideration of all of the evidence.

Alternative charges

In this case, charges 1 and 2 relate to the same alleged event, and are alternatives. Thereafter, charges 3 and 4 relate to the same alleged event and are alternatives. The prosecution does not suggest that the accused should be convicted of both of 1 and 2 and then 3 and 4 but of 1 or 2 and then either 3 or 4.
It is only if I reach a verdict of not guilty in relation to charge 1 (or charge 3 in the second consideration) that I would deliver a verdict on charge 2 (or charge 4 in the second instance).
The accused is entitled to a separate trial of each charge, and I must not reach my verdict by compromising between them.

Separate Consideration of Charges

Each charge must be considered separately, in light of the evidence which applies to it.

Elements of the Charges

Charge 1, the crime of sexual assault of a child under 16. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:
·One - the accused intentionally touched another person, in this instance, Jane Graham.
·Two - Jane Graham was under the age of 16 years.
·Three – The touching was sexual.
·Four – The touching was contrary to community standards of acceptable conduct.
The accused does not commit this offence if, at the time he touched the complainant, the accused reasonably believed that the complainant was aged 16 years or more. There are two parts to this defence.
First, at the time of the conduct, the complainant was aged 12 years or more. There is no issue as to that in this matter.
Secondly, the accused must have reasonably believed that the complainant was aged 16 years or more. As part of deciding this issue, I shall consider what steps the accused took to find out the complainant’s age.
The accused bears the onus of proving, on the balance of probabilities, that he reasonably believed the complainant was aged 16 years or more.
Charge 2, the crime of sexual assault requires the prosecution to prove the following elements beyond reasonable doubt:
·One - the accused intentionally touched the complainant in the way alleged.
·Two - the touching was sexual.
·Three - the complainant did not consent to the touching.
·Four - the accused did not reasonably believe that the complainant consented to the touching.
Charge 3, supply a drug of dependence to a child under 16. Charge 3 requires the prosecution to prove the following elements beyond reasonable doubt:
·One - the accused supplied a drug of dependence (cannabis) to the complainant;
·Two - the accused intended the complainant to use the cannabis; and
·Three - the complainant was under the age of 18 years at the time of the supply.
The accused does not commit this offence if, at the time he supplied the cannabis to the complainant, the accused reasonably believed that the complainant was aged 18 years or more. The accused bears the onus of proving on the balance of probabilities that he reasonably believed the complainant was aged 18 years or more.
Charge 4 trafficking. Charge 4 of trafficking requires the prosecution to prove, beyond reasonable doubt, the following elements:
·One - the accused intentionally committed an act of trafficking.
·Two - the accused intentionally trafficked a drug of dependence.

The Evidence

The complainant’s evidence in chief was made by way of a VARE dated 22 June 2018. A summary of the complainant’s evidence is as follows.
Jane Graham was 15 years of age at the date of the alleged offending. She was born August 2002.
Jane Graham and the accused were friends on Facebook messenger. Jane Graham used the account name Jane Cooper[5]. Initially, Chris (the accused) texted Jane Graham using Facebook messenger saying “hey u” with a maple leaf, which means “hey, do you need bud?” Bud is weed or marijuana.
[5] A pseudonym

After the initial texts, Chris contacted Jane Graham at 5 AM on 22 June because she had texted him previously. He asked if she still wanted marijuana that day to which she replied yes. Chris replied that he would drop it off.
Between the initial contact and 22 June, Jane Graham’s friend Annie Wilkins (another resident) used Jane Graham’s phone to communicate with Chris in a considerable number of exchanges. Jane Graham had not actually spoken to Chris until 22 June.
Chris texted to say that he was 10 minutes away and Jane Graham waited for him.
Jane Graham went outside. Annie also went to go outside but Jane Graham told her to wait inside. Jane Graham went into the car and Chris complimented her. He said “hey, you look more gorgeous than your photos” and then he started to touch Jane Graham. He tried touching her “everywhere, practically”. The complainant indicated in evidence that the accused touched her leg between the knee and thigh as she sat in the car and how he held her face. She continued “he tried to kiss me then I kept pushing him away”.
Jane Graham stated that he kept trying to touch her and she kept saying no. She indicated there were cameras outside the front of the house. Chris stated he did not care. She said that he should care. He started to grab her leg and she kept saying “no”.
Chris weighed up the cannabis. He pulled out a bag and started weighing it up. He had scales on his lap which he pulled from the side of the car. He weighed out “a gram and a bit”. The marijuana was in a sandwich bag and he gave her a bag containing the cannabis.
Chris touched her (indicating her top thigh and inner thigh) but he didn’t go anywhere further because Jane Graham made it so clear that she didn’t want to be touched and she pushed him straight off, saying “no”. Chris moved in to really close proximity to Jane Graham, “face-wise” and tried to kiss her as she sat in the passenger seat.
Jane Graham asked Chris if she could have the marijuana and told him that he would be bashed if he stayed any longer because “they’re resi kids”.
Jane Graham again indicated that the accused touched the top of her thigh, grabbing her as she stated “no, I don’t want to be touched”. The accused kept going. By that she meant he did it again and then tried holding her hand and she stated again that she did not want to be touched.
Jane Graham indicated how high up her thigh he touched; indicating and stating it was just above the halfway mark between her thigh and lap. Jane Graham stated that the accused lent over and used his right hand (indicating that he held her face under and along her cheek with his right hand) as he tried to kiss her.
The accused stated “Monday” because he was only paid “on tick” and he said he was coming back on Monday. Jane Graham stated “no”.
The accused was there for approximately 15 minutes because the worker wrote it down.
The accused touched her legs four times, tried to hold her hand and tried to kiss her once.
In the car, the pair had a conversation about who lives in the house because he thought it was her home. He asked if he could come in and Jane Graham said “no you can’t come in”. The accused said “okay” and started to weigh the marijuana.
The complainant accepted the accused as a Facebook friend because she accepts everyone who has more than 10 mutual friends.
The complainant’s Facebook page accurately shows her age as being 15.
There was no conversation about the complainant’s age.
Annie and Chris were texting. Annie was using Jane Graham’s phone “for ages” and “texting heaps of guys”. Annie had not met Chris before. Chris was about 30.
Chris kept calling Jane Graham “Hun” and “Babe”.
Jane Graham wore a jumper that said “dope shit” and a pair of short shorts when she met Chris. The police took her clothing.
Jane Graham did not have her phone for a couple of days before 22 June.
Jane Graham gave Chris a black Sony speaker “on tick” and intended to pay him for the marijuana.
Jane Graham told Annie that Chris put her “in a really uncomfortable situation”. She further told Annie that he touched her thighs and tried to kiss her.
Jane Graham also told Mary. Mary is a worker at the residential home. Jane Graham lives at the home with Annie, Tom[6] and Jack[7]. Jack walked out but then walked away.
[6] A pseudonym
[7] A pseudonym
Chris’s car door had no case over the top. Jane Graham could see wires.

Further examination-in-chief 16 March 2021

The accused man gave Jane Graham some cannabis [on 22 June 2018]. She smoked it but not all of it though. She shared it with others. She felt pretty normal because she smokes every day but she was drug affected a little. What she told the police was true and correct.
The police took photographs as screenshots of the text messages exchanged on Jane Graham’s Facebook messenger account with Christopher Xerri.
Jane Graham agrees that the word “gram” refers to cannabis in the screenshots on p. 103.

Cross-examination at the special hearing

Jane Graham’s contact with the account Chris Sueze commenced on 15 April 2018. They were Facebook friends. Jane Graham accepted Chris as a Facebook friend because of the marijuana logo on his banner.
Jane Graham had privacy settings on her account. Her friends all had the same amount of access. Jane Graham agreed that biographical details were not necessarily visible.
Jane Graham principally communicated through social media platforms. Jane Graham’s interactions with the Chris Sueze's account is limited to the pages provided (exhibit B). (And I should have said in my directions but I say now that in having regard to all of the evidence I have regard to the evidence of the witnesses and the matters admitted and the exhibits).
Jane Graham’s co-resident Annie used Jane Graham’s phone to get whatever drugs she could for the Elton House[8] residents.
[8] A pseudonym
Jane Graham’s first contact on 22 June was at about 5 AM. The message does not appear to be there. There are messages from Jane Graham at 12:26 PM. Jane Graham would have asked Chris if he had any marijuana. Jane Graham sent a message stating “gram”.
Jane Graham believes she scrolled past the message asking for cannabis when the police took photographs of the screen as she thought she would be in a lot of trouble.
Jane Graham would have exaggerated the timeframe as to when she sent the message. It would be from the time she got up that day.
Jane Graham “knows for a fact” that she did not speak to the accused the day before this incident occurred. She told the police that she did because she was young and put on the spot.
Jane Graham denies exaggerating. She texted at whatever time it says the text was sent.
The prosecution located a clearer photograph of the screenshot and confirmed the accused sent a text asking “how much” at 5:54 AM.
There are no messages from 21 June because Jane Graham made that up.
Jane Graham initially tried to obtain marijuana on 15 April but it did not eventuate.
Jane Graham is aware that Annie was using her account but unaware that phone calls had been made between the two accounts.
A co-resident, Jack came out to the car and had a good look. He was a little bit of a distance away but he was the closest anybody got the car. If Jane Graham told police he came to the car and asked for a cigarette, she misstated the fact. They were sitting out the front, and they were passing around a cigarette. They were not in Jane Graham’s front view.
When Jane Graham was in the car, the accused touched her leg with his left hand. Jane Graham was wearing shorts and so it was skin on skin. He touched her face with his right hand. Again, it was skin on skin contact. Jane Graham cannot remember if Mary was there at this time. At the end, Tom, Mary, Annie - everybody was there.
After she left the car, Jane Graham went to Annie’s room. They did not smoke marijuana at the time. Jane Graham was in Annie’s room for less than 15 minutes. Jane Graham then spoke to the worker Mary Anderson and let her know that she was in an uncomfortable situation and that she was happy for Mary to call the police. Jane Graham denies talking to Mary Anderson about the details of what happened.
After speaking to Ms Anderson, Jane Graham went into a room with all of the other residential kids and they smoked marijuana before the police got there.
The police did not ask about the cannabis.
Jane Graham did not discuss what had occurred with either Jack or Tom; not even in a general manner.
When Jane Graham got out of the car she hid her feelings because she was scared and in shock. She did not know how to react and so she was numb. Jane Graham was not crying or distraught. She was not visibly upset or anything like that. Jane Graham walked straight to Annie and said “I need to talk to you”; then went straight to her room and closed the door.
In 2018 Jane Graham used other drugs besides cannabis – ecstasy. Jane Graham used cannabis on a daily basis. She bought grams here and there. She was not selling or giving it to them but sharing what she bought or was given. Jane Graham was definitely not selling sticks of cannabis. Annie was not selling cannabis in 2018. Jane Graham was not present for any voice calls between Annie and the Chris Sueze account.
There was definitely no discussion about Jane Graham providing cannabis to the accused. Jane Graham denied the suggestion that she was selling cannabis to the accused. When he arrived at the house and Jane Graham got in the car there was no argument in relation to the supply of other drugs. Jane Graham does not recall that he was asked to go and source drugs from another person for Jane Graham and/or Annie.
It was suggested in cross-examination that there was an argument inside the car because Jane Graham asked the accused to either supply other drugs to her and Annie or to transport Jane Graham to somewhere that drugs could be obtained. Jane Graham denied this.
The accused weighed out cannabis on some round scales. He was a little bit wary and wanted to do it inside. Jane Graham told him that he could not come inside because her parents and sister were there.
Jane Graham agrees she could have opened the car door and walked back into the house.
Jane Graham did not have contact with the Chris Sueze Facebook account after 22 June 2018.
Jane Graham agreed that before she stated “they’re resi kids, they’ll bash you” she had not said anything about who she lived with or the circumstances in which she was living. Jane Graham previously led the accused to believe she lived with parents and a sister.
Mr Patton put to Jane Graham that the accused:
·First, never gave Jane Graham any cannabis that day;
·Second, did not touch her face or try to kiss her;
·Third, did not touch Jane Graham’s leg or legs; and
·Fourth, never made any intentional physical contact inside the car at all. Jane Graham did not agree with any of these propositions.
In re-examination, Jane Graham agreed she received a last message from the Chris Sueze account at a time after he had departed from the her address. The text stated, “how’s the bud, hun?”.
All the messages including “how much” at 5:54 AM occurred on the same day as the meeting with the accused.
Jane Graham took the speaker from her house to the car. The speaker is depicted in one of the photos in exhibit C.

Mary Anderson

Ms Anderson was a worker at Elton House and was responsible during her shift that day for the care of the residents, including Jane Graham.
Ms Anderson heard Jane Graham and Annie discussing meeting up with an unknown male they had found on the Internet to buy cannabis. Ms Anderson discouraged both from doing stating that it was unsafe. The pair decided to go ahead with the transaction.
About 20 minutes after this conversation, Jane Graham went outside to the car. Ms Anderson could see a car and got a registration number but then Annie became distressed and so Ms Anderson could not maintain her observation.
Ms Anderson did see Jane Graham get into the car and there was a male in the car.
Jane Graham got out of the car about 10 minutes later.
Before getting into the car, Anderson noted that Jane Graham was emotionally regulated. She was in a clear and happy headspace. When Jane Graham got out of the car she was distraught, she was crying and very emotionally dis-regulated. It was apparent to Ms Anderson that Jane Graham was having a trauma response. Jane Graham went immediately to Ms Anderson for comfort and began telling her what happened. Annie was there with them.
Jane Graham told Ms Anderson that the male in the car was trying to force himself on her, grabbing her face and legs and made her feel extremely uncomfortable. Jane Graham was struggling to get her words out because she was crying. Annie was trying to give Ms Anderson her own account of what happened.
Specifically, Jane Graham said “he was trying to force himself on me”. Jane Graham then stated that he was grabbing her face to try and get a kiss. Ms Anderson showed the physical gesture that Jane Graham used. The evidence records that the witness moved her jaw sideways with her hand.
Ms Anderson then stated that Jane Graham told her “that he was putting his hand on her legs and trying to put them up her shorts, I believe she was wearing at the time”. When Ms Anderson clarified whether or not he touched her genitals or achieved kissing her, Jane Graham stated “no”; that she was pulling away and asking him to stop continuously. Jane Graham repeatedly used the phrase that “he was trying to”.
Ms Anderson sat with Jane Graham for some time comforting her. Jane Graham agreed for Ms Anderson to call the police. The police arrived about half an hour later. They encouraged Jane Graham to come down to the station to give forensic evidence.

Cross-examination

Ms Anderson agrees that Jane Graham used drugs but did so opportunistically. She used cannabis weekly but not daily. Jane Graham occasionally used MDMA and methamphetamine when it became available to her. Annie was also using drugs.
There was a zero tolerance to drug use and drug paraphernalia at the house.
Jane Graham and Annie usually smoked cannabis in the park.
Ms Anderson was never aware or never heard anything about Jane Graham or Annie selling or providing drugs to others. The residents would often use drugs together but there was no supplying drugs.
Ms Anderson did not smell cannabis smoke inside the house at any stage on the evening of 22 June 2018.
Ms Anderson spoke to Jane Graham inside the fence but outside in the garden when Jane Graham stated the accused was grabbing at her leg and face and trying to kiss her and all of those things. Ms Anderson sat with her for about 10 minutes talking. After that Ms Anderson spoke to the police. The phone call was made from the staff office. Ms Anderson believes her co-worker went to monitor the children.
Ms Anderson was with Jane Graham from the moment she walked back onto the property until the point at which the police arrived (except for the phone call).
Ms Anderson could not be certain but she believes Jane Graham told her Annie had taken the cannabis. Ms Anderson does not recall being told that Jane Graham had smoked it.
Ms Anderson agreed she told the police that she could not tell if the driver was a male.
In re-examination, Ms Anderson stated that there was about a five minute period when she made a phone call but otherwise she was with Jane Graham until they went together to the police station.

The attending police officer

Senior Constable Scott MacDonald attended the call to Elton House at 6:09 PM on 22 June 2018. He did not see the other residents and was not sure if Annie was actually home when he arrived. He did not take a statement from her.
The police collected Jane Graham’s clothes for DNA analysis.
The police did not seize the cannabis and did not smell cannabis smoke around the house during their attendance. Jane Graham and Ms Anderson attended at the police station shortly after the police departed.
In cross-examination Senior Constable MacDonald said it was usual for the other residents to take off when the police arrived.

The Informant

The informant gave evidence that during a search of the accused’s residence, the police found scales and the Sony speaker. There was evidence given that the DNA testing excluded the accused. In other words, there is no evidence that the accused's DNA was present on the complainant's clothing or areas tested.

The Accused

Mr Xerri gave evidence that he met Jane Graham through a mutual friend as a source from whom he could obtain marijuana. He used the maple leaf symbol to indicate “have you got weed?”. The accused use Facebook messenger not Facebook. He did not know Jane Graham and did not see her biographical information.
The call in the screenshots was Mr Xerri trying to score marijuana in larger quantities than sticks (grams).
In the exchanges, Jane Graham told Mr Xerri that she was using other drugs and wanted a source. When he saw the photo she sent, she looked drug affected. She liked MDMA. Mr Xerri assumed he was talking to one person. She referred to the flying kangaroo. In a text message she talked about her father “would kill” her friends if he found out they were supplying her.
Mr Xerri tried to facilitate sources for harder drugs for Jane Graham. She did not have a licence. Mr Xerri would provide her with a source for harder drugs in return for her supplying Mr Xerri with marijuana. The person he was messaging complained that she had no money for rent or bills.
Mr Xerri was uncomfortable getting harder drugs for her. He gave her a name but the source wanted Mr Xerri to introduce her. This was about a week before 22 June 2018.
Where the text refers to a gram, that was a gram of ‘puff’. Mr Xerri was to receive payment for petrol money.
Mr Xerri assumed she lived at home by herself and had her mum and dad and brother and sister over.
Mr Xerri asked if she was over age. He formed the belief she was from what she said. By that he meant 18 or over.
When Jane Graham got in the car she gave him ‘a quarter’ (7 grams) of marijuana. He was suspicious and he got the scales to weigh the drug. Jane Graham said they could not go in the house because her family were over. She said that her brother’s mate was coming and he would bash Mr Xerri.
Mr Xerri used his scales to weigh the marijuana. It was just under 7 grams. He complained. After weighing the marijuana, the two were to go to Collingwood the source drugs for Jane Graham. She said “don’t touch me – there are cameras.” Mr Xerri said “I’m not going to touch you” he told her to get the rest of his marijuana. She still wanted to go to Collingwood. Mr Xerri was annoyed and said “you expect me to still do you a favour” she said “I’ll make it up to you”. She left the car to get more marijuana.
While she was in the car, Jane Graham was calm and giggling. Her friend wanted to go for a drive with Mr Xerri. After Jane Graham left the car, Mr Xerri waited until Jane Graham was out of sight and then drove off.
The messages about Jane Graham’s father “would kill” suppliers are not included in the screenshots.
Mr Xerri assumed the operator of the account was Jane Graham. Mr Xerri was told Jane Graham’s father was a bikie.
Mr Xerri commented that Jane Graham looked different to her display photo where she looked pale and withdrawn.
Mr Xerri denied giving any cannabis or intentionally touching Jane Graham’s leg, turning her face and attempting to kiss her.
Mr Xerri initially pleaded guilty to sexual assault in the Magistrates' Court as he believed he would get a lesser sentence in the Magistrates' Court.

Cross-examination

Mr Xerri used the name Chris Sueze to score some weed.
Mr Xerri asked Jane Graham about her age over Facebook messenger. He can’t remember when. He asked if she was “over 18?” and she said yes. The cannabis leaf symbol was to show he was interested in buying not selling cannabis.
Mr Xerri stated that he met Jane Graham through a mutual friend ‘Jazzy’ who was 28. He then said his ex hacked his account. He added everyone and came across Jane Graham’s profile and spoke to her to ask if she could supply cannabis.

Mr Xerri sent the text message on 15 April stating “I’ve got some bud on me I need gone, do you want it?” But said the message was taken out of context and there were messages about a whole cannabis conversation which were not there, including where Jane Graham said the price was $120 a quarter. There were also flirtatious, sexual messages between the Cooper and Sueze accounts.
It was put to Mr Xerri that relevant portions of the text exchange commenced at 5:54 AM on 22 June:
CS: how much
JC: gram
CS: yeah sweet u got cash yet hun
JC: no Monday I get paid can u plz drop a gram of and I pay you 20 Monday
CS: yeah okay you still on [street name]
JC: yeah it means heaps thank you so much
Mr Xerri agreed that the price for a gram of cannabis was $20. After an exchange about who would be home and whether he would stay around “for a bit” Mr Xerri asked:
CS:… what can u give me in case you don’t pay
JC: my speaker
CS: show us it hun
Mr Xerri denied that this referred to payment or collateral for the drugs (it was put) that he was going to deliver. Rather, it was collateral for petrol money for him to drive Jane Graham to Collingwood to source her own drugs.
After cross-examination about further texts discussing his pending arrival at Bentleigh it was put that at 6:39 PM; that is, after he had left the Bentleigh address, Mr Xerri texted “how’s the bud hun?”
Mr Xerri stated that he stole the cannabis given to him by Jane Graham. Mr Xerri explained that this text was asking about the so-called top up amount (which Jane Graham purportedly went back to the house to get).
Mr Xerri pleaded guilty to the charge of sexual assault because he believed it was less serious to plead guilty to the sexual assault of an adult than a child under 16. He knew he was in trouble when charged with that offence.

Crown final address

Mr Hammill submitted there were four principal pillars to proving guilt; and that I should be satisfied of the accused’s guilt on charges one and three rather than two and four.
The first was that I should accept Jane Graham as a witness of truth. Mr Hammill conceded there were (what he described as) peripheral credibility issues - the complainant admitted to hiding some text messages in the lead up to the transaction; and there was a question as to whether the marijuana that was purchased was smoked, given to Annie Wilkins or otherwise disposed of. On the two principal aspects of her evidence – that is the sexual assault and the purchase of marijuana – Mr Hammill submitted the complainant was honest, reliable and consistent.
As an adjunct of this, Mr Hammill submitted that the evidence of the complainant’s immediate distress and complaint to Mary Anderson added to the credibility and consistency of her account.
Second, Mr Hammill submitted that the text messages were a powerful and unvarnished record of the lead up to the drug transaction.
Third, Mr Hammill relied upon the accused’s guilty plea to the charge of sexual assault in the Magistrates' Court.
Finally, Mr Hammill addressed the issue of age and submitted that I could put aside the accused’s evidence. In both instances of charges one and three, the accused is required to discharge an evidentiary burden on the balance of probabilities.

Defence Closing Address

In his closing remarks, Mr Patton articulated his criticism of the reliability and credibility of Jane Graham’s evidence.
First, Mr Patton addressed the fate of the cannabis. Jane Graham gave evidence that she had smoked cannabis with the other residents, but the evidence of Ms Anderson was that Jane Graham had almost zero opportunity to do so before the police arrived. Ms Anderson believed that Jane Graham gave the cannabis to Annie Wilkins.
Next, Jane Graham lied about speaking to the accused and changed her evidence according to changes noted during the running of the trial in the sequence of text messages. Mr Patton submitted that Jane Graham was capable of rewriting history.
Mr Patton submitted that there are discrepancies in the account of both the distress and complaint between the evidence of Jane Graham and Ms Anderson.
The evidence of the purported sexual assault must be seen against the accused’s sworn denial. There is no corroboration of Jane Graham’s account. Jane Graham admitted she had the opportunity to escape from the car and the DNA evidence was negative.
There is no evidence apart from Jane Graham that the accused had or supplied cannabis.
The accused gave credible and plausible denials to the offending in his sworn evidence. The earlier plea of guilty to the charge of sexual assault in the Magistrates' Court must be seen as pragmatic rather than necessarily a true indication of guilt.
Then Mr Patton submitted that the accused gave sworn evidence that he asked Jane Graham and believed that she was overage (meaning over the age of 18).
Finally Mr Patton submitted that the accused gave sworn evidence that he asked Jane Graham and believed that she was "over age" meaning over the age of 18).

Analysis

Is there prima facie evidence of

Sexual Assault of a child under 16 or Sexual Assault?

The evidence of Jane Graham relating to alleged sexual assault is set out above but can be summarised in short compass:
i.Jane Graham entered the car wearing short shorts. In other words, her legs were bare.
ii.Once in the car she stated that the accused touched her leg. She kept saying ‘no’ and in her evidence stated that she communicated several times that she did not want to be touched and did not consent to being touched.
iii.Jane Graham stated that the accused touched the top (anterior of her upper leg, between the knee and groin and her inner thigh). In her VARE evidence, Jane Graham showed where she stated she was touched.
iv.Jane Graham stated repeatedly that she made it clear she did not want to be touched; she pushed the accused off saying “no” and “no I don’t want to be touched” but the accused kept going.
v.The accused held her face and tried to kiss her (but did not succeed). Jane Graham showed how her face was held.
vi.The accused touched her legs four times approximately. He was touching skin on skin. He tried to kiss Jane Graham once and he tried to hold her hand once.
In the cross-examination of Jane Graham and in the accused’s evidence, there is evidence of sexualised messages between the accused’s account and the Jane Graham Facebook account although Jane Graham stated that she had given her mobile phone and message access to Annie Wilkins for a period of time to enable Annie Wilkins to access drugs for them both. The accused stated that he thought he was communicating with the account holder and had texted sexual suggestions before this date.
Nevertheless, Jane Graham gave clear and unambiguous evidence that she rejected the accused’s advances in the car and told him he could not come into the house.
On the occasions when the accused variously tried to kiss her, hold her hand and touched her leg, Jane Graham said no. In my view, Jane Graham plainly communicated to the accused that she did not want to be touched.
In my view the evidence of the complainant is prima facie capable of constituting an offence under either charge 1 or charge 2. That is, on the Crown case taken at its highest there is evidence that the accused (taking charge 2 first):
i.Intentionally touched Jane Graham;
ii.The touching was sexual; the intentional touching of the bare thigh of the complainant between the knee and groin on both the anterior and inner upper thigh “skin on skin” constitutes, in my view, sexual contact;
iii.As I have observed, there is clear evidence that the complainant repeatedly communicated to the accused that she did not consent to the touching;
iv.There is prima facie evidence the accused did not reasonably believe the complainant consented to the touching.
Similarly, there is prima facie evidence to support each of the elements of charge 1; that is:
i.The accused intentionally touched Jane Graham.
ii.Jane Graham was under the age of 16 years. There is uncontested evidence that Jane Graham was 15 years old on 22 June 2018. I will return to this element later in this judgment;
iii.The touching was sexual.
iv.The touching was contrary to community standards of acceptable conduct.
Turning to the last element of charge 1, I am satisfied that the accused repeatedly touched complainant’s upper, bare legs without her consent. This was accompanied by other conduct namely, trying to hold the complainant’s hand and attempting to kiss her. Moreover, all of this occurred in an episode in the accused’s car where the pair had never previously met and the whole episode lasted less than 15 minutes. I am satisfied that this conduct is contrary to community standards of acceptable conduct.
Although I am satisfied that there is prima facie evidence satisfying charges one and two, that is not the end of the matter. I must be satisfied beyond reasonable doubt on the whole of the evidence that the accused is guilty of either charge 1 or charge 2 before a verdict of guilty could be entered.
I will next determine whether there is a prima facie case on charges 3 and/or 4.
Is there prima facie evidence of
supply drug dependence to a child under 16 / trafficking in a drug dependence?
Both Jane Graham and the accused agree that they met in the accused’s car outside the complainant’s address at Bentleigh on 22 June 2018 for the supply of cannabis. Jane Graham gave evidence that the accused supplied her with 1 gram of cannabis on that date. The accused gave evidence that he did not supply cannabis to Jane Graham. Rather, it was Jane Graham who short supplied him with an agreed 7 grams amount of cannabis.
In order to understand the evidence of Jane Graham, it is necessary to refer to exhibit B screenshots of text messages between the two Facebook accounts. I note the sequence of page numbers (indicated in the top right-hand corner of each page) runs 101, 102, 104, 105, 106 and 103.
Jane Graham gave evidence that the text message exchanges are incomplete in that there must have been a text before 5:54 AM on 22 June 2018 where she asked for the supply of cannabis. Jane Graham admitted that she most likely hid the preceding text message from police.
Thereafter, it is important to read and understand the sequence of text messages that flowed. I am satisfied that these messages were exchanged between Jane Graham and the accused on 22 June 2018:
5:54 am
CX: How much
12:26 pm
JG: Gram
CX: Yeah sweet u got cash yet hun
JG: No Monday I get payed can u plz drop a gram off and I pay u 20 Monday
CX: Yeah okay you still on [street name]
JG: Yeah it means heeps thank you so much
CX: It’s okay hun who u home with
JG: My mum and sister
CX: We gonna kick it for a bit or u want me to boot
JG: I would love too but not today
CX: Okay then well if we ain’t kicking back what can u give me in case you don’t pay
JG: My speaker
CX: Show us it hun
JG: It’s sony it’s good just come I give u that or if u don’t want that I can go inside and get something else
CX: Okay hun I’ll let you know when I’m leaving work oka
CX: What’s ur number in case you ain’t on messenger
1:03 pm
JG: blanked out
CX: Texted you mine
2:32 pm
JG: When u coming
2:44 pm
CX: I’m still at work hun I’ll let you know soon oki
JG: Ok
4:20 pm
CX: On my way now u home
6:39 pm
CX: How’s the bud hun
In my view the text messages provide clear evidence that the accused Christopher Xerri was communicating with the Jane Graham Facebook Messenger account for the purpose of him (the accused) supplying Jane Graham with a gram of cannabis for a price of $20. Further, I conclude that the two discussed Jane Graham providing the small Sony speaker found in the accused’s possession as collateral for the transaction. Further, I consider this to be the only reasonable interpretation that can be placed on those messages.
Thereafter, Jane Graham gave evidence to the effect that:
Chris weighed up the cannabis. He pulled out a bag and started weighing it up. He had scales on his lap which he pulled from the side of the car. He weighed out “a gram and a bit”. The marijuana was in a sandwich bag and he gave her a bag containing the cannabis.
As I have already observed, the police found the speaker when they searched the accused’s home. The accused admitted in evidence that the price of a gram of cannabis was $20.
I find the accused’s narrative in his evidence – that Jane Graham was selling marijuana to him – utterly implausible. It stands entirely contrary to the text messages I have set out.
The lie is easily exposed. The accused maintained in his evidence that he was purchasing marijuana from Jane Graham. He then stated that as a favour to Jane Graham, after the sale, he was to drive her to Collingwood so she could buy other drugs. The speaker was provided to him as collateral for $20 petrol money agreed to be paid for driving the complainant from Bentleigh to Collingwood and back.
Of course, there is no discussion of such a sale or arrangement in any of the text messages. It makes no sense for the complainant to provide the accused with the speaker as collateral when he was in fact in her debt for a greater amount – some $120 on his own calculation. If there was any truth to his story, common sense dictates that the $20 petrol money would be met by a deduction from the amount to be paid and not by provision of a speaker.
Moreover, his evidence as to what occurred in the car – that Jane Graham got in the car with just under 7 grams of cannabis, which the accused weighed out and it was short by a small but unspecified amount, notwithstanding the scales, so Jane Graham left the car and he drove off and stole the bag of cannabis – can only be described as blatant lies.
The lie contained in the accused’s evidence is made even more apparent by the text he sent at 6:39 PM “how’s the bud hun”? It is incredible that the accused asserts that the text should be interpreted as him asking for Jane Graham to provide him with the “top up” of the shortfall of cannabis. This is all the more incredible for the fact that, on his unbelievable narrative, he sent the text after he had driven away and stolen the cannabis which he says Jane Graham had passed to him.
I therefore reject the evidence of the accused in relation to the supply of cannabis and I put his evidence in this respect to one side.
Nevertheless, I must consider whether the Crown has proved its case beyond reasonable doubt on the whole of the evidence on any of the charges.
I note the apparent discrepancy between Jane Graham’s evidence about distress and complaint and the evidence of Mary Anderson.
Jane Graham stated:
T/S 80: Question: They didn't ask you any questions about what happened, why were you upset when you got out of the car?---No, I wasn't upset when I got out of the car either, I was hiding my feelings because I was just scared, like I was just in shock practically exactly like what I said in the video. I was 15, I was just scared, didn't know what to do, didn't know how to react. So I was just numb.
T/S78:And you then went and spoke to Mary Anderson?---Yep. Not about the situation but I let her know that I was in an uncomfortable situation and she said, 'I'm happy to call the police for you', I said, 'Yep I'm happy for you to do that because I feel like he does need to be prosecuted’.
Were you talking to Mary Anderson about other things were you?---No, I wasn't, I just wanted to make that very clear'.
By contrast, the residential worker Mary Anderson gave evidence that when Jane Graham left the car she was distraught, crying and emotionally dis-regulated. Ms Anderson assessed Jane Graham as having a trauma response and Ms Anderson comforted Jane Graham. Ms Anderson described Jane Graham as struggling to get her words out because she was crying.
In my view, this is powerful independent evidence of trauma observed immediately after the complainant got out of the accused’s car. I accept that the evidence of distress is causally linked to the events in the car, that is the sexual assault alleged to have been perpetrated.
Thereafter, Ms Anderson stated that she was told, moments later, that the accused was “forcing himself” on Jane Graham and that he grabbed her face. Ms Anderson used the gesture, the same gesture that Jane Graham used where she moved her jaw sideways with her hand indicating how her face was grabbed as the accused tried to kiss her. Ms Anderson was told that the accused was putting his hands on Jane Graham’s legs but did not touch her genitals.
I could not help but be struck during Ms Anderson’s evidence at the similarity of gestures demonstrated by Jane Graham and Ms Anderson. Of course, Ms Anderson gave evidence that Jane Graham told her these things and showed them to her, within moments or a few minutes of the occurrence of the events. Jane Graham then independently related the same events to the police in the VARE that she conducted within a couple of hours.
In my view, the evidence of distress is potent. The evidence of complaint, always remembering that the source of complaint was Jane Graham, demonstrates a spontaneous consistency. I use this in aid of my assessment of the complainant’s credibility.
I take account of the fact that Mary Anderson did make a prior inconsistent statement in her evidence. She readily admitted it when it was pointed out to her. It was to the effect that she told this court that she saw a man sitting in the car which Jane Graham entered outside Elton House. She admitted telling police at the time of making her statement that she could not see the gender of the car’s driver or occupant.
In my view, nothing turned on this. It was not crucial evidence; especially for the fact that the accused himself admitted that he attended the property and that it was him in the car entered by Jane Graham. I do not consider that this adversely affects the overall credibility of Mary Anderson’s evidence.
I have considered the evidence and submissions relating to the earlier plea of guilty to the charge of sexual assault made in the Magistrates Court. Whilst I consider it would be an extraordinary charge to which to plead guilty for purely pragmatic reasons, common sense and long experience in the criminal law teaches that pragmatism often plays a role in forensic decision-making.
In this way, I cannot reasonably exclude that the decision to plead guilty on the earlier occasion was made for at least a mix of reasons. On a strict reading of the law, I have decided to exclude the earlier plea of guilty to the charge of sexual assault from my reasoning process in relation to charges 1 and 2.
The complainant’s age is an element of return of which I must be satisfied before the accused may be found guilty on charge 1. It is an admitted fact that Jane Graham was 15 years old at the time on 22 June 2018. Accordingly, the accused must satisfy me on the balance of probabilities that he reasonably believed Jane Graham to be aged 16 years or more if he is to be found not guilty of this charge.
I do not accept accused’s evidence on this point that he asked Jane Graham if she was “overage”, by which he explained he meant over the age of 18 years.
Nevertheless, I must look at all of the circumstances:
i.22 June 2018 was 41 days before Jane Graham’s 16^th birthday;
ii.The topic of conversation by way of Facebook messenger; that is the purchase of drugs, was indeed a mature topic;
iii.The photograph sent by Jane Graham depicting her holding the Sony speaker, is not entirely clear and only partially shows her face. Nevertheless, in my assessment, Jane Graham certainly does not look younger than 16, and could pass for 16 or older.
iv.When Jane Graham made the VARE on the evening of 22 June 2018 she was dressed differently than she was in the accused’s car, but still looks 16 years of age or older. I understand this is a subjective assessment, but it is the assessment I make.

In all the circumstances, I am satisfied that the onus is discharged in relation to charge 1. Accordingly, I have a reasonable doubt on charge 1. A verdict of not guilty will be entered on this charge.
I am satisfied however that the accused committed a sexual assault by his repeated intentional touching of the complainant’s bare anterior and inner upper thigh when he was reasonably aware that she was not consenting. I find that these acts were accompanied by other unwelcome advances which do not constitute part of the sexual assault per se – that is he tried to hold Jane Graham’s hand and grabbed her face in an attempt to kiss her.
Accordingly, I find charge 2 on the indictment proved.
The issues which I must take into account on the evidence in relation to charges 3 and 4 are as follows:
i.There is no marijuana seized/provided as evidence of the transaction taking place as alleged by Jane Graham.
ii.There is a discrepancy between the evidence of Jane Graham (who said the marijuana smoked by the residents before the police arrived) and Mary Anderson who stated that Jane Graham had no opportunity to smoke this cannabis and in fact she (Anderson) believed it was passed to Annie Wilkins.
iii.Annie Wilkins was not called as a witness.
iv.The attending police did not smell cannabis in the house. As a general rule, and the police believed, as on this occasion, the other residents “took off”.
As I have said, I reject the evidence of the accused Christopher Xerri. I do not use that rejection to positively prove the opposite.
In my view, the absence of cannabis is not fatal to the case for proving trafficking or supply. The explanation of Ms Anderson and the attending police strikes me as credible and reliable – that is that the other residents “took off” and Jane Graham passed the marijuana to Annie Wilkins. It also makes sense of the evidence of Jane Graham on this point did not want to implicate her friend.
The fact that Annie Wilkins was not called as a witness and no statement was provided is not of critical importance on either the sexual assault or this supply of marijuana. The fact is, it was never suggested that Annie Wilkins was a witness to the events in the car. As for the sexual assault it may be that Wilkins could have given some evidence of complaint but the evidence of Mary Anderson and the language that she used, that is that she was told that the complainant was made to feel uncomfortable, the content of the complaint in relation to the sexual assault and the use of the gestures and the fact that Mary Anderson said that Jane Graham was with her the whole time except for the phone call makes the prospect of calling Annie Wilkins as a witness on the complaint a peripheral exercise at best. As for the marijuana, the only matter on which Wilkins could possibly have given evidence was not as to the traffick or supply, but possible subsequent possession and/or smoking of a gram of marijuana.
I consider the failure to call Annie Wilkins entirely inconsequential to the determination of the outcome of this case.
There is a strong circumstantial case that the accused supplied Jane Graham with cannabis and I point also to the text message sent by the accused at 6:39 PM on 22 June and second, his possession of the Sony speaker.
As I have already said, I reject the accused’s explanation of the text and the possession of the speaker.
In the absence of that evidence of the accused I look at the Crown evidence and I accept that in all the circumstances, the only reasonable explanation for the text and possession of the speaker was that shortly after 5 PM on 22 June the accused gave Jane Graham approximately 1 gram of cannabis in exchange for the speaker, and about 90 minutes later he followed up with text message to see if she had smoked it.
The “age” element of supply a drug of dependence to a child is to supply to a person under the age of 18 years.
The accused will not be found guilty of this charge if the accused reasonably believed that the complainant was aged 18 years or over. The accused bears the evidentiary onus of proving this on the balance of probabilities.
I have already stated that I reject the accused’s evidence that he believed the complainant to be over 18 years because he asked her if she was “overage”.
I consider there are critical differences between the evidence in respect to this charge and evidence in respect to charge 1 on the indictment:
i.First, there is a considerable difference between looking over 16 and looking over 18;
ii.Second, even on the accused’s incredible evidence, he knew that the complainant did not drive or did not have a car or a license;
iii.Third, the accused new that Jane Graham could not meet the sale of a gram of cannabis for $20 and was willing to put a speaker up for collateral. That speaks to her juvenility;
iv.Finally, Jane Graham stated that after the sexual assault Jane Graham asked the accused if she could have the marijuana and told him that he would be bashed if he stayed any longer because “they’re resi kids”. In my view, this should have sent a clear warning to the accused that he was supplying a drug of dependence to a child under the age of 18.
I am unable in all the circumstances to conclusively determine the accused’s actual state of mind on the subject of age. However, in all of the circumstances as I have outlined them, I consider that it was unreasonable to believe that the complainant was 18 years of age or older.
In all the circumstances, I am satisfied beyond reasonable doubt that:
i.The accused supplied a drug of dependence (cannabis) to the complainant;
ii.The accused intended the complainant to use the cannabis; (his evidence particularly via the text message at 6.39 PM) and
iii.Jane Graham was under the age of 18 years at the time of the supply.
I therefore find charge 3 on the indictment proved. I find the accused not guilty on the alternative charge 4 on the indictment.
I therefore cause the following verdicts to be entered on the records of the court:
Charge 1 - not guilty
Charge 2 – guilty
Charge 3 – guilty
Charge 4 – not guilty
- - -

[2021] VCC 512

13 April 2021