DPP v Snyder (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

CLIFTON SNYDER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATES OF TRIAL:	27 April 2021, 28 April 2021, 29 April 2021, 30 April 2021, 3 May 2021, 4 May 2021, 6 May 2021, 7 May 2021, 10 May 2021, 11 May 2021,17 May 2021
DATE OF JUDGEMENT:	10 June 2021
CASE MAY BE CITED AS:	DPP v Snyder (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC

JUDGEMENT
(Judge Alone Trial)
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Subject:  CRIMINAL LAW
Catchwords:   Trial by judge alone, indecent act with a child under the age of 16; sexual penetration of a child under the age of 16, complainant an unavailable witness
Legislation Cited:

Cases Cited:
Sentence:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Ms T. Skvortsova	SLKQ Lawyers

HIS HONOUR:
Introduction
General Directions of Law
Evidence given remotely
Presumption of innocence
Burden and standard of proof
Separate consideration
Decide solely on the evidence / inferences

Overview
The Elements of the Offences
Sexual penetration of a child under the age of 16
Indecent act

THE PROSECUTION CASE
Zoe Powell: Representations
Incident 1: Day off school
Incident 2: The complainant’s 15th birthday
Camping trip
Incident 3: House sitting in Wonga Park
Croydon Hills
Incident 4: Allegation of fisting
Incident 5: House sitting for the Greavess
Incident 6: Accused’s parents’ spa
Incident 7: The Hankins’ house
Incident 8: The Hankins’ boat
Incident 9: Numurkah
Incident 10: Lilydale cemetery
Incident 11: Jerusalem Creek
Incident 12: Bonnie Doon
Incident 13: Cumberland in Lorne
Justin Clowes’ wedding
Committal Cross-examination

Hamish Andrew Powell
Evidence in chief
Cross-examination
Re-examination

Amy Rooke
Evidence in chief
Cross-examination

Blake Hankin
Evidence in chief
Cross-examination
Re-examination

Georgia Teague
Evidence in chief
Cross-examination

Bianca Fitzpatrick
Evidence in chief
Cross-examination

Jeff Bailey
Evidence in chief
Cross-examination

Alana Wingard
Evidence in chief
Cross-examination
Re-examination

Molly Steele
Evidence in chief
Cross-examination

William Greaves
Evidence in chief
Cross-examination
Re-examination

Justin Clowes
Evidence in chief
Cross-examination
Re-examination

Lee Hankin
Evidence in chief
Cross-examination

Jade Agnew
Evidence in chief
Cross-examination

Detective Matthew Phelan
Evidence in chief
Cross-examination

Detective Senior Constable Amber Coutts
Record of Interview
Examination in chief
Cross-examination

Ethan Hankin
THE DEFENCE CASE
Matthew Snyder
Evidence in chief
Cross-examination
Re-examination
Further cross-examination

Professor Donald Thomson
Evidence in chief
Cross-examination
Re-examination

Dr Danny Sullivan
Evidence in chief
Cross-examination
Re-examination

Defence Exhibits
Specific Directions
Unavailable Witness Direction
Unreliability Warning
Forensic Disadvantage Warning
Section 41 Direction
Direction about the accused’s previous offending
Tendency Direction
Section 52 Direction
Section 53 Direction
Differences in complainant’s account
Expert evidence
Complaint evidence
Record of Interview Direction................................................................................................. 100

PROSECUTION CLOSING
DEFENCE CLOSING
The Croydon Hills incident
The trip to Queensland with the Greavess
Justin Clowes’ Wedding
Incident 1: Day off school
Uncharged incidents at the garage and the factory
Incident 2: The O’Dwyer wedding
Incident 3: The Wonga Park house
Incident 4: The fisting incident
Incident 5: The Greaves house
Incident 6: Accused’s parents’ spa
Incident 7: The Hankin house
Incident 8: The Hankin boat
Incident 9: Numurkah Easter trip
Incident 10: The driving lesson at the cemetery
Incident 11: The Jerusalem Creek trip
Incident 12: The Bonnie Doon Hotel
Incident 13: The Cumberland Hotel

ANALYSIS
The Expert Evidence
Professor Thomson
Dr Sullivan
The accused’s 2008 appeal against sentence
The instances of unreliability

Complaint Evidence
The evidence of Amy Rooke
The evidence of Senior Constable Phelan
Use of the complaint evidence
Sexual relationship

The Charges
Incident 1: Day off school
Incident 2: The complainant’s 15th birthday
Incident 3: House sitting in Wonga Park
Incident 4: Allegation of fisting
Incident 5: House sitting for the Greavess
Incident 6: Accused’s parents’ spa
Incident 7: The Hankins’ house
Incident 8: The Hankins’ boat
Incident 9: Numurkah
Incident 10: Lilydale cemetery
Incident 11: Jerusalem Creek
Incident 12: Bonnie Doon
Incident 13: Cumberland in Lorne

VERDICTS

HIS HONOUR:

Introduction

The accused, Clifton Snyder[1], is charged on Indictment J11486491 with four charges of committing an indecent act with a child under the age of 16 years and 20 charges of sexual penetration of a child under the age of 16 years. The indictment in this matter had contained 36 charges but the prosecution sought leave to amend the indictment by removing charges 1, 8, 9, 15, 16, 21, 24, 25, 26, 31, 32 and 33 necessitated by the prosecution’s decision to excise the portions of the committal transcript upon which these charges were based.
[1]A pseudonym
This matter was originally listed in 2020, at which time I made a ruling admitting into evidence the two statements of the complainant and the committal cross-examination pursuant to section 65(3) of the Evidence Act 2008. The complainant is an unavailable witness. She died in March 2019, after the committal proceeding took place. This ruling was the subject of an Interlocutory Appeal. The interlocutory decision was handed down on 16 April 2021. The trial was listed to commence on for pre-trial argument on 19 April 2021. On that day, Ms Skvortsova, on behalf of the accused, indicated that the accused sought trial by judge alone and further indicated the defence position was that I should hear the matter. Ultimately, the prosecution agreed that the matter was appropriately heard as a judge alone trial.
On 20 April 2021 Judge Mullaly granted the accused’s application to be tried by judge-alone pursuant to s 420D of the Criminal Procedure Act 2009.
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 of the Jury Directions Act 2015 applies in this case. It 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 2015. Further, I must not accept, rely on, or adopt a statement or suggestion that the Jury Directions Act 2015 prohibits a trial judge from making, or a direction that the Jury Directions Act 2015 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.

General Directions of Law

Evidence given remotely

The evidence of Bianca Hudd[2], Ben Bailey, Ethan Hankin and Professor Donald Thomson, and part of Amy Rooke’s evidence, was given remotely by agreement between the parties. Additionally, when she was briefly recalled, prosecution witness Amy Rooke appeared remotely. The evidence of these witnesses must be given no greater or lesser weight because it was given remotely, and I draw no adverse inference against the accused.

Presumption of innocence

[2] A pseudonym

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 the charge only if the prosecution has proved its case beyond reasonable doubt: the highest standard known to our law. The prosecution must prove each of the elements of the charges to this standard. Proof to any lesser extent must result in a verdict of not guilty.

Separate consideration

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

Decide solely on the evidence / 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 research about the parties or witnesses. I have not conducted any such research. I remind myself that the addresses of counsel are not evidence. The evidence adduced in this case is the evidence of the witnesses and the exhibits.
As 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 bring an open mind to the evidence and not let emotion enter the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice. I must 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.
In the fact-finding process, I may not draw any inference of guilt unless it is the only reasonable inference available. If there is another reasonable inference or hypothesis available, I must not draw an inference of guilt.
I must base my verdict only on evidence I find to be credible and reliable.

Overview

The complainant in this matter, Zoe Powell[3], was born in December 1978. The accused was born in July 1971. At the time of the alleged offences the complainant was 14 and 15 years old and the accused was 22 and 23 years old.
[3] A pseudonym
In 1993, the complainant and her family lived at 40 Cooper Drive, Mooroolbark[4]. The complainant was 14 years old. In that year, the accused purchased the residence at 41 Cooper Drive. The prosecution case is that he soon became friendly with the complainant’s mother and would often visit the complainant’s house to have coffee with her mother.
[4] A pseudonym
The first incident involving sexual activity between the complainant and the accused is alleged to have taken place on 13 November 1993. Not long after this incident it is alleged the accused asked the complainant’s mother if he could date the complainant. The complainant says that her mother agreed, and her stepfather stipulated that there was to be ‘no sex’ between them. It is the prosecution case, that what developed was an ongoing sexual relationship that lasted until December 1995 when she had just turned 17. It is alleged that in September 1994 the complainant moved out of her family home to live with the accused’s parents. She remained living with the accused’s parents for several years.
The complainant is an unavailable witness under the Evidence Act 2008, so the prosecution case is based on the representations contained in the complainant’s two statements and her committal evidence.
Based on these representations, the prosecution case relates to sexual acts between November 1993 and December 1994 when the complainant turned 16. The 24 remaining charges arise from 13 incidents. There is also other misconduct evidence in the statement of the complainant and her committal evidence which the prosecution argues serves a contextual and in some instances a tendency purpose in this case.
The accused denies any of the alleged sexual activity took place. He does not deny he had a relationship of emotional intimacy or a romantic relationship with the complainant but says this did not involve sexual activity.
The central issue is therefore whether alleged acts took place. The reliability and the accuracy of the complainant in the descriptions she gives of the various sexual acts is the focus of the defence attack on the prosecution case.
The defence position is that the having regard to the period of time between the incidents and the complainant’s first detailed statement setting out the details of the alleged sexual relationship; her intervening psychiatric issues; and her access to an appeal decision on relating to the accused and another case on involving similar sexual offending; there is a reasonable possibility of contamination or confabulation by the complainant; and that her account has become enlarged by comparison to her initial complaint to Detective Matthew Phelan in 2011. The accused also relies on what are said to be inconsistencies and discrepancies in the accounts of the complainant which it is submitted illustrate her compromised reliability.
The accused’s position in the trial has been to accept that the complainant had a genuine belief in the truth of the representations comprising the charged acts, but that belief is erroneous, or at least this is a reasonable possibility. The reliability of the complainant was the central issue in the trial. There are several strands to the defence arguments concerning this issue.

The Elements of the Offences

Sexual penetration of a child under the age of 16

To prove this offence of the prosecution must prove the following elements beyond reasonable doubt:
·The accused took part in an act of sexual penetration with the complainant.
·The accused intended to take part in that act of sexual penetration.
·The complainant was under the age of 16 at the time the sexual penetration took place.

Indecent act

To prove this offence, the prosecution must prove the following elements beyond reasonable doubt:
·The accused committed the alleged act.
·The accused wilfully committed the alleged indecent act.
·The act occurred in indecent circumstances.
·The act was intentionally done with/in the presence of the complainant.
·The complainant was under the age of 16 when the act took place.
·The accused was not married to the complainant at the time the alleged act took place.
The elements in issue are the first and third elements of the sexual penetration charges and the first and fifth elements of the indecent act charges; so in respect of each charge, the issues are whether the alleged act took place and whether the complainant was under the age of 16 at the time of the alleged act.

THE PROSECUTION CASE

The prosecution case is primarily based on the representations of the complainant Zoe Powell in her police statement dated 24 May 2018. That statement was read into evidence by the Informant Detective Leading Senior Constable Amber Coutts who took the statement. I have identified the charges as they arise in the following summary of complainant’s representations from her first statement.

Zoe Lowell: Representations

She had two older brothers, one older sister and four younger sisters. Her mother is Alana Wingard[5]. Her father was Henry Bailey[6]. Growing up, she lived at 40 Cooper Drive, Mooroolbark until she was 15 years old. Her father died when she was two and a half years old. Her mother later married Darren Wingard[7] and they had two children together.
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
When the complainant was 14 years old the accused moved in to 41 Cooper Drive, in April 1993. Soon after, two housemates, Jason and Evie Hassell[8] moved into his house.
[8] A pseudonym
The accused befriended the children in the street and their parents. He would make cakes for everyone, and they would play games in his front yard. He would play music such as ABBA, Bee Gees, Queen and Meatloaf.
A few months after he moved in the accused was regularly at the complainant’s house. When she got home from school, he would be having coffee with her mum. She was often at his house baking cakes. He started brushing past her. This happened in the kitchen. His body would touch hers. He would also tickle her down her sides.
In 1993 there was a boy from school and tennis she liked. Nothing occurred because she was too shy to say anything. She had never kissed a boy. She was naive and innocent. She had no knowledge of anything sexual because she was raised in a strict Catholic family.

Incident 1: Day off school

On the 12 November 1993, she had a fall at school. She went to see her GP, Dr Keith Skilbeck. He had to stitch her up. She had the next day off school. At about 11 am she was home alone watching a movie, Beauty and the Beast. The accused came into the house. She was lying on the couch. The accused sat on the armchair to her left. He wanted her to sit on his lap and she did. The accused started kissing her on the lips. It was her first kiss. She did not know what to do so she just let him kiss her.[9] He put his hand up her shirt and over her bra onto her breast. He then went underneath her bra and fondled her breasts. The kissing continued.[10] He put one hand inside her underwear and started rubbing her labia, pubic hair, and all over her vagina. The movie finished and they walked across the road to his house.[11]
[9] Statement of Zoe Powell, 24 May 2018, 2 [14]
[10] Statement of Zoe Powell, 24 May 2018, 2 [15]
[11] Statement of Zoe Powell, 24 May 2018, 3 [16]
There, they started watching Pretty Woman which he picked. She sat on his lap while they watched the movie. When it got to the scene where Julia Roberts is on the piano, he took her hand and guided her to his bedroom.[12] The accused had a waterbed. He lay on his bed and pulled her on top of him. He stripped off her clothes and took his own off. The accused was kissing her. She held her breath to try and get her heart rate to stop. She was frightened by what they were doing.[13]
[12] Statement of Zoe Powell, 24 May 2018, 3 [17]
[13] Statement of Zoe Powell, 24 May 2018, 3 [18]
He had a large penis which was erect. He was circumcised. Lying on top of him his erection hurt her pelvic area. He tried to arouse her by stimulating around her clitoral area with his fingers. He rubbed his penis up and down on her stomach until he ejaculated. (This is the basis of Charge 2). The accused cleaned the semen up with a T-shirt.[14]
[14] Statement of Zoe Powell, 24 May 2018, 3 [19]
The accused started to write love letters to her every day. The first one he wrote she showed to her best friend Nicole Shaw[15]. The letters were not very sexual; in the beginning it was more admiration. She burnt all these letters in 1996.[16] The accused went to her mother to ask permission to date her. This was within a couple of weeks of the first incident on his waterbed. Her mother agreed. Her stepfather said ‘No sex’ only petting. Because of this she did not understand that what occurred to her with the accused afterwards was sex.[17]

Incident 2: The complainant’s 15th birthday

[15] A pseudonym

[16] Statement of Zoe Powell, 24 May 2018, 3 [20]

[17] Statement of Zoe Powell, 24 May 2018, 3 [21]

Her 15th birthday was in December 1993. She used a Portman’s voucher to buy a new dress which she wore to a wedding she attended with the accused. The groom Keith Smith[18] was a friend of the accused.[19]
[18] A pseudonym
[19] Statement of Zoe Powell, 24 May 2018, 3 [22]
On the day of the wedding, she and her mother went to Chirnside Park to buy sandals to wear with her dress. A photo shows her in the dress on her 15th birthday. The accused took her as his date to the wedding held at a Greek Orthodox Church; the reception after was at a winery in Redhill. Her history teacher from Mount Lilydale College was also a guest. After the wedding they went back to the accused’s house. He parked his car around the corner so her parents would not be able to see they were back.[20]
[20] Statement of Zoe Powell, 24 May 2018, 3-4 [23]

The accused took her straight to his bedroom. The accused stripped himself and her naked. The accused was erect straight away. He put her on the bed. He put her on her back and rubbed her vagina with his fingers to get her aroused. The accused wanted her to masturbate him, so she did. Whilst she was doing that, he performed oral sex on her with his tongue. She likened this to a snake flicking its tongue. (This is the basis of Charge 3). While he was licking her vagina, the accused put two fingers into her vagina moving them in and out of her vagina for a while. (This is the basis of Charge 4). When he finished that he guided her head onto his penis, and she gave him oral sex. The accused ejaculated into her mouth. (This is the basis of Charge 5). She spat it out. After he finished, her vagina felt like it had gravel rash.[21]
[21] Statement of Zoe Powell, 24 May 2018, 4 [24]
After this finished, they walked to her house and had birthday cake with her family. The accused stayed for a while and talked to her parents.[22] She hated it and she had never performed oral sex on anybody else since.[23]
[22] Statement of Zoe Powell, 24 May 2018, 4 [25]
[23] Statement of Zoe Powell, 24 May 2018, 4 [26]

She believed the accused had an abnormal sex drive. Every time they caught up, he wanted sex. It would either be once or twice during the catch ups.[24]

Camping trip

[24] Statement of Zoe Powell, 24 May 2018, 4 [27]

In January 1994, the accused took her, and her brother Jeff[25], and sister Michelle[26], camping at Fraser National Park in Eildon. They had two tents. Jeff and Michelle shared one tent and the accused and her shared the other. The accused bought several bottles of Midori with him. He encouraged them to drink the Midori. Her sister Michelle was 12 years old at the time. They all got drunk.

Incident 3: House sitting in Wonga Park

[25]A pseudonym

[26] A pseudonym

Very early in the relationship the accused was looking after a house in Wonga Park. It was a split-level house with exposed brick on the inside. She could not remember who owned the house. They fed the pets, and then the accused took her to the lounge room which had an open brick fireplace and a rug on the floor. When they were both naked in the lounge room he began kissing her and then inserted his fingers into her vagina. (This is the basis of Charge 6). The accused had her masturbate him. (This is the basis of Charge 7). The accused always aroused her first because it would hurt her too much otherwise.[27]

Croydon Hills

[27] Statement of Zoe Powell, 24 May 2018, 4-5 [29]

The accused looked after pets at a house in Croydon Hills. It was a two-storey house. She remembered it because it was around the comer from his parents. The family had gone on a holiday to Queensland. They had a son whose nick name was Ringo[28]. The reason she remembered this because not long after the accused got a puppy and called it Ringo. This was late 1993. The accused did not look after the dog properly and his parents took it on.[29]
[28] A pseudonym
[29] Statement of Zoe Powell, 24 May 2018, 5 [30]
The incident occurred on the floor of the lounge room. They stripped naked. The accused was already erect; she lay on top of him. The accused thrust his penis up and down on her stomach. The accused used his fingers on her vagina to arouse her. She masturbated the accused at the same time. The accused then performed oral sex on her and used his fingers to penetrate her vagina. After he gave her oral sex, she gave him oral sex until he ejaculated into her mouth. She had nowhere to spit the ejaculate. She swallowed it.[30]
[30] Statement of Zoe Powell, 24 May 2018, 5 [31]
In February 1994, she began Year 10 at school. There were rumours amongst peers at school that she was dating an older guy. Her nickname became Chester and the boys would chant, ‘Chester, Chester child molester’.[31]
[31] Statement of Zoe Powell, 24 May 2018, 5 [32]
On Valentine’s Day 1994, the accused gave her a large bunch of red roses, a pink open card and heart shaped drop earrings with small blue stones in them. She thought it was over the top and was very embarrassed. Her sisters teased her about it.[32]

Incident 4: Allegation of fisting

[32] Statement of Zoe Powell, 24 May 2018, 5 [34]

Very early in 1994 the accused started shaving her legs with a razor in his bathroom. His bathroom was blue tiled. Not long after he started shaving her legs, probably the most traumatic memory she has of the accused took place.[33]
[33] Statement of Zoe Powell, 24 May 2018, 6 [36]
They were in his bedroom naked on his waterbed. The accused was rubbing an ice block over her body. He was sucking her breasts one at a time. After this she lay on top of him. She masturbated him and he masturbated her vagina with his fingers. The accused then got on his hands and knees and he picked her up and moved her around the bed. He forced his whole fist inside her vagina and began a punching motion. (This is the basis of Charge 10). Her head was at the bottom of the bed. He was punching inside her vagina so hard he pushed her off the bed. She landed on the floor between the left cupboard and the ensuite entrance door. She was in agony. She screamed but then went quiet. She realised she was bleeding from the vagina. She was in shock. The accused told her not to worry. He said that this was what happened when girls first have sex.[34]
[34] Statement of Zoe Powell, 24 May 2018, 6 [37]
She told him how much he hurt her. The accused then became sorry and loving. He downplayed it.[35]

Incident 5: House sitting for the Greaves[36]

[35] Statement of Zoe Powell, 24 May 2018, 6 [38]

[36]A pseudonym

William and Susan Greaves, friends of the accused, lived in Croydon, just up from the Maroondah Hospital. During 1994, before she turned 16 years old the Greaves’ went away to Gippsland for a holiday for a few days. The accused offered to go and look after their animals. William’s mother who lived in the United Kingdom died while they were away. They were at the house feeding the animals one night when the phone rang. It was William’s brother from the United Kingdom calling to tell William that their mother had died. The accused tried to get in touch with the Greaves by calling their accommodation.[37]
[37] Statement of Zoe Powell, 24 May 2018, 6 [39]
They walked down to one of the bedrooms. She was on the floor naked. He had her masturbate him and he masturbated her. They performed oral sex on each other (This is the basis of Charges 11 and 12) and then he inserted two fingers into her vagina (This is the basis of Charge 13). The accused ejaculated. She went to the bathroom and cleaned herself up.[38]

Incident 6: Accused’s parents’ spa

[38] Statement of Zoe Powell, 24 May 2018, 7 [42]

The accused’s parents, Michael and Isabel, lived at 24 Tulip Street, Croydon Hills. They had an outdoor spa. When his parents were away, they went to their house and used their spa. His parents had no pets. This happened prior to them getting the accused’s dog, Ringo. The first time was in February or March 1994. She was 15 years old. They hopped in the spa naked. They were kissing each other. The accused turned her around, so she was facing the outside of the house. She was on her knees. The accused got behind her on his knees. He pulled her buttock cheeks aside so he could put his penis into her anus. It hurt as soon as he put it in. It was just inside. There was a lot of pressure. She began screaming and he stopped. This was the first time he tried anal sex with her.[39] (This is the basis of Charge 14)

Incident 7: The Hankin’s[40] house

[39] Statement of Zoe Powell, 24 May 2018, 7 [43]

[40]A pseudonym

On another occasion in February 1994, before she turned 16 years old, the accused was minding the home of Ethan and Lee Hankin. They lived in Chirnside Park. The accused was feeding their animals while they were away. He was not staying there. They went there together. They fed their pets and then the accused took the complainant down to the master bedroom. They were on the floor just outside their ensuite door. They stripped naked. The accused aroused her first by touching her vagina with his fingers. He was already erect. The accused had her masturbate his penis with her hand. The accused then guided her head onto his penis which she sucked until he ejaculated into her mouth.[41] (This is the basis of Charge 17)

Incident 8: The Hankin’s boat

[41] Statement of Zoe Powell, 24 May 2018, 7 [44]

The Hankin’s invited them to go on their yacht. She thought it was moored in St Kilda. She was pretty sure it was in March 1994. They headed out to the south channels where the seals are. They stayed overnight on the yacht moored at Queenscliff. They slept downstairs on the open upper deck under a canopy. During the night sexual activity occurred multiple times. The accused ejaculated three times. He penetrated her vagina with his fingers (This is the basis of Charge 18), he performed oral sex on her, and she had to perform oral sex on him, which caused him to ejaculate on his stomach (This is the basis of Charge 19). A photo shows her on the boat in summer wear with a fish she caught on this trip. She believed she was in love with him, and this was what you did as a part of a normal relationship.[42]

Incident 9: Numurkah

[42] Statement of Zoe Powell, 24 May 2018, 7-8 [45]

At Easter time in 1994, the accused came away with her family to Numurkah. They stayed at a farm. She was already there with her family, and he drove up in his yellow Galant. He only stayed for one night. The accused had an argument with her parents that night. She was not able to remember what it was about. Her parents told him he had to leave in the morning.[43]
[43] Statement of Zoe Powell, 24 May 2018, 8 [46]
The accused slept in the lounge room that night and she was in a room with her sister. The accused told her to come out when everyone was asleep, which she did.[44] They were naked from waist down. The accused penetrated her vagina with his fingers, (This is the basis of Charge 20) and had her masturbate him.[45]
[44] Statement of Zoe Powell, 24 May 2018, 8 [47]
[45] Statement of Zoe Powell, 24 May 2018, 8 [48]
The next morning the accused left. He was angry and her parents were angry. A few days later, on the way home, her mother’s car had a tyre blow out. A tow truck took them to Kilmore where they stayed overnight. Her mother rang the accused and asked him to come and pick them up. He borrowed a Tarago van from the Hankin’s and came and picked them up. He had a big bunch of red roses for her.[46]

Incident 10: Lilydale cemetery

[46] Statement of Zoe Powell, 24 May 2018, 8 [49]

In May 1994, the accused took her to the Lilydale Lawn Memorial Cemetery for a driving lesson. She was 15 years old. At the time he was driving a manual orange Toyota Corona. The accused would buy old cars and do them up to sell so he always had different cars.[47]
[47] Statement of Zoe Powell 24 May 2018, 8 [50]
The driving lesson was on a Sunday, approaching dusk. The accused started yelling at her because she could not work the clutch. She became upset and began crying and yelling at him that she did not want him to bring her there again.[48]
[48] Statement of Zoe Powell, 24 May 2018, 8 [51]

The accused apologised and leaned across and began to kiss her. He took his pants down to above his knees and guided her hand to masturbate him. He placed his hand beneath her underwear and began rubbing her clitoris and labia roughly. She gave him oral sex. (This is the basis of Charge 22) At the moment of ejaculation she jumped back, and he ejaculated on himself.[49]

Incident 11: Jerusalem Creek

[49] Statement of Zoe Powell, 24 May 2018, 8 [52]

In July 1994, his parents were going for a weekend away to either Jerusalem Creek or Goughs Bay, both are in Eildon. It was his father’s boss’s holiday house. His parents invited them. Her parents allowed her to go because his parents would be there as well.[50]
[50] Statement of Zoe Powell, 24 May 2018, 8-9 [53]
His parents allowed them to stay in the same bed, in the bedroom next door. On the Saturday after they arrived, they spent the day in bed together. She was surprised that his parents did not tell them to get up.[51] It was constant sex all day. She had to be silent so they could not be heard. By sex she meant that he penetrated her vagina with his fingers numerous times that day. It was at least four or five times.[52] (This is the basis of Charge 23. The prosecution relies of the first occasion on that day that digital penetration took place).

Incident 12: Bonnie Doon

[51] Statement of Zoe Powell, 24 May 2018, 9 [54]

[52] Statement of Zoe Powell, 24 May 2018, 9 [55]

The second time he tried anal sex with her was in August 1994. They went to Bonnie Doon for a night. They stayed at the Bonnie Doon Hotel.[53]
[53] Statement of Zoe Powell, 24 May 2018, 9 [56]
Her parents allowed her to go away with him overnight because the accused told them another family called the Irvings[54] were going as well. This was a lie; the family were never going.[55]
[54] A pseudonym
[55] Statement of Zoe Powell, 24 May 2018, 9 [57]
On the way up to Bonnie Doon the accused got pulled over by the police for speeding. She remembered that the policewoman wanted his licence, but he could not find it in the car. She told him to present it within a week at his local police station. She thinks she gave him a warning not a fine.[56]
[56] Statement of Zoe Powell, 24 May 2018, 9 [58]
The room they were staying in was a few doors away from an outdoor spa. The spa was undercover. It was an above ground square spa. They went to the spa late at night when there was no one else around. The accused and she had been drinking Midori which he had bought from the local bottle shop. It was freezing because it was winter. They got into the spa naked. She was worried that someone would see them. They were kissing and fondling, masturbating each other. (This is the basis of Charge 29). The accused put his fingers into her vagina to arouse her (This is the basis of Charge 27). The accused then turned her around again to face the outside of the spa which overlooked the lake. The accused grabbed her by her hips and held his penis to guide it into her anus. She screamed because of the pain and pressure, and he stopped. He only got it in a little way.[57] (This is the basis of Charge 28).
[57] Statement of Zoe Powell, 24 May 2018, 9 [59]
When they went back to the hotel room, they remained naked, and the accused started kissing her again. He was erect and put his fingers into her vagina. (This is the basis of Charge 30). They watched a pornographic film in the room.[58]
[58] Statement of Zoe Powell, 24 May 2018, 9 [60]
In September 1994, she moved out of her family home. The relationship between the accused and her parents had completely disintegrated. Years later her mother told her that the accused had said to her that he was worried that her brothers would sexually abuse her.[59]
[59] Statement of Zoe Powell, 24 May 2018, 9 [61]
The accused told her that if she wanted to be with him, she would have to leave her parents. The accused was already controlling her, and it was a power struggle between him and her parents.[60]
[60] Statement of Zoe Powell, 24 May 2018, 10 [63]
The accused told her that he had spoken to Legal Aid and that she could move out. Her parents could not stop it unless they found semen in her underwear.[61]
[61] Statement of Zoe Powell, 24 May 2018, 10 [64]
The accused would drop her off and pick her up from school. He made her lunch. If she wanted to visit a friend, he would drop her off and pick her up. She saw the accused every day and he was involved in every aspect of her life: school, netball, friends, as well as his friends.[62]
[62] Statement of Zoe Powell, 24 May 2018, 10 [65]
During September 1994, she moved out. It was a Friday night. She was at his house. Her parents came over and there was a massive argument between the accused and her parents. His parents, Michael and Isabel, ended up coming over as well. Her stepfather Darren wanted to call the police. His parents ended up taking her home to their house for the night. Her parents were not happy because of her age and their Catholic religion.[63]
[63] Statement of Zoe Powell, 24 May 2018, 10 [66]
Prior to her leaving with the accused’s parents, her mother put all her possessions in an old orange leather suitcase. She put it on the nature strip out front of her house. It made her realise that she could not go home. They also gave her older sister Bryony her room.[64]
[64] Statement of Zoe Powell, 24 May 2018, 10 [67]
The accused’s parents set her up a mattress in their formal lounge and put a curtain across. She ended up living with them for seven years. she left their house when she was 21 years old. The whole time she lived in their formal lounge room.[65] There were no rules or regulations whilst she lived with them, even when she was 15 years old. His parents did not mind the accused and her sleeping together under their roof.[66]
[65] Statement of Zoe Powell, 24 May 2018, 10 [68]
[66] Statement of Zoe Powell, 24 May 2018, 10 [69]
She would go and stay over at his place on the weekends after catching the bus there. The accused did not often stay at his parents’ house because he had an aloof attitude towards them. He was not caring towards his parents at all. His parents doted on him.[67]
[67] Statement of Zoe Powell, 24 May 2018, 10-11 [71]
The accused and his brother Matthew[68] were adopted. Matthew was living at the house with his parents when she was there.[69]

Incident 13: Cumberland in Lorne

[68] A pseudonym

[69] Statement of Zoe Powell, 24 May 2018, 11 [72]

In November 1994, for their 12-month anniversary, the accused hired a maroon Mitsubishi sedan and took her down the Great Ocean Road for two nights.[70] They stayed at the Lorne Cumberland Hotel. He had organised a room with a spa that overlooked the beach.[71]
[70] Statement of Zoe Powell, 24 May 2018, 11 [73]
[71] Statement of Zoe Powell, 24 May 2018, 11 [74]
He put rose petals in the spa, and they were both in the spa naked. They mutually masturbated each other. (The complainant’s act of masturbating the accused is the basis of Charges 34) The accused put his fingers inside her vagina (This is the basis of Charge 35). Once that happened for about 5 minutes, he turned her around and tried to penetrate her anally. He managed to penetrate her, and it caused incredible pressure and pain. She could not tolerate it, so he stopped (This is the basis of Charge 36).[72]

Justin Clowes’ wedding

[72] Statement of Zoe Powell, 24 May 2018, 11 [75]

Soon after she moved in with the accused’s parents, they went to the wedding of a friend of the accused at the Farnham Court Motel and Restaurant at 26 / 30 Princes Drive, Morwell.[73] Following the reception, they stayed in one of the motel rooms. Another girl called Victoria[74], who was hearing impaired, stayed in the room with them.[75] They had the double bed. Victoria had a single bed on the right side next to them. The accused stimulated her clitoris with his fingers. He put his fingers into her vagina, and she masturbated him. He guided her head onto his penis for oral sex.[76]
[73] Statement of Zoe Powell, 24 May 2018, 11 [77]
[74] A pseudonym
[75] Statement of Zoe Powell, 24 May 2018, 11 [78]
[76] Statement of Zoe Powell, 24 May 2018, 11 [80]
In winter 1995 she was 16 years old. She went on a Scout camp with the accused to Lake Mountain. They all stayed in a large open cabin. The accused joined your sleeping bags together. She had to be quiet because they had people sleeping within a few feet of them. The accused got her to masturbate him and then he masturbated and put his fingers inside her vagina.[77]
[77] Statement of Zoe Powell, 24 May 2018, 12 [82]
On Christmas Eve, 1995, they were at Richard and Elizabeth Beckett’s[78] house in Ringwood. They left around midnight. The accused drove her back to his parents’ house. When they were out the front of the address still in the car, the accused told her they were done.[79] This was completely out of the blue. Right up until that time his behaviours towards her had not changed. He had always told her he would propose to her on her 17^th birthday. She was devastated by the accused splitting up with her.[80]
[78] A pseudonym
[79] Statement of Zoe Powell, 24 May 2018, 12 [83]
[80] Statement of Zoe Powell, 24 May 2018, 12 [84]

The next day the accused attended Christmas at his parents. He mocked her and made light of splitting up. His mother told her to forget about it and to focus on her studies because she was going into Year 12.[81]
[81] Statement of Zoe Powell, 24 May 2018, 12 [85]
She remained living with his parents until July 2000. It was extremely rare to see him there.[82] Whilst she lived there, she went on to Latrobe University and studied Prosthetics and Orthotics.[83]
[82] Statement of Zoe Powell, 24 May 2018, 12 [87]
[83] Statement of Zoe Powell, 24 May 2018, 12 [88]
Sometime after they split up, she had suspicions he was gay. This was after a Scout leader Richard Beckett divorced his wife Elizabeth and moved in with the accused. When she saw them together, she saw that the accused was affectionate and loving towards Richard and vice versa. She thought it was strange.[84]
[84] Statement of Zoe Powell, 24 May 2018, 12 [89]
In July 2000 she moved out of Michael and Isabel’s home and moved home to her parents and lived out the back in a granny flat.[85]
[85] Statement of Zoe Powell, 24 May 2018, 13 [90]
After she moved out, she was visiting Michael and Isabel when the accused arrived with a partner called Max[86]. The accused said he was gay. She reminded the accused that the only reason she moved out of home at 15 was because he said that was the only way they could be and stay together.[87]
[86]A pseudonym
[87] Statement of Zoe Powell, 24 May 2018, 13 [91]
In 2002, she met her husband, Hamish Powell[88]. They got married when she was 27 years old. She never told him all the facts partly because he was so protective of her that she did not want him to see her in a different light or feel that he had to fix it. Their first child, a son, was born in 2009, and their second child, a daughter, was born in 2010.[89]
[88] A pseudonym
[89] Statement of Zoe Powell, 24 May 2018, 13 [92]
In 2011, when she was pregnant with her third child, she heard via media and Facebook that the accused had been charged with offences relating to children. She was frightened and mortified. She felt humiliated because Alicia Platt[90] who lived at number 39 Cooper Drive, Lilydale, placed the article from the media on Facebook. Her comment on it was that he had always offered to babysit her four sons and that she never took him up on that. Another neighbour from 42 Cooper Drive, Tayla Bidwell[91] also joined in on the commentary.[92]
[90] A pseudonym
[91] A pseudonym
[92] Statement of Zoe Powell, 24 May 2018, 13 [93]
She quit Facebook that day. She called the Office of Public Prosecutions and asked how she could contact someone who could help her. They gave her Detective Senior Constable Matthew Phelan’s name and told her he was based at Lilydale. The Office of Public Prosecutions also directed her to the website where she read the appeal of Snyder. She recognised a lot of the victims by their initials.[93]
[93] Statement of Zoe Powell, 24 May 2018, 13 [94]
She contacted Detective Phelan’s office and left her details. The following day he called her back. She explained to him her relationship with the accused. They organised a time to meet at Lilydale Police Station. She decided that the time was not right to report what happened to her because she was pregnant and had a young family.[94]
[94] Statement of Zoe Powell, 24 May 2018, 13 [95]
In February 2014, she went to the Ringwood blood bank. Her allocated nurse was Lee Hankin. It was a shock and she recognised her straight away. Lee kept asking, ‘Your face is familiar, how do I know you?’[95]
[95] Statement of Zoe Powell, 24 May 2018, 13 [96]
She ended up telling Lee that she had dated the accused when she was young. Lee began to cry. She said to Lee ‘I had no idea, I had no idea’, referring to her son (who was a victim of sexual offences committed by the accused). Lee hugged her.[96]
[96] Statement of Zoe Powell, 24 May 2018, 14 [97]
The day after she saw Lee it triggered something inside of her. She became suicidal for the first time and after a few days at home she was admitted into a psychiatric hospital for containment.[97]
[97] Statement of Zoe Powell, 24 May 2018, 14 [98]
In April 2018, she voluntarily admitted herself into hospital and whilst she was there, she decided it was time to do something about it. She rang Knox Sexual Offences Unit on 26 April 2018 and spoke to Detective Senior Constable Amber Coutts. She had previously never disclosed all that occurred with the accused to one person. She felt too ashamed to tell anyone. The first person she told in detail was on 22 April 2018, when she told her old triathlete friend Georgia Teague[98] what had occurred in her childhood with the accused.[99]
[98] A pseudonym
[99] Statement of Zoe Powell, 24 May 2018, 14 [99]
The accused never tried to have vaginal intercourse with her which was her definition of what sex was when she was young. She believed that by not having vaginal sex she was also following her stepfather’s direction of ‘No sex’.[100]
[100] Statement of Zoe Powell, 24 May 2018, 14 [100]
The complainant had given Amber Coutts some photos of herself from the time she was with the accused as well as some google maps that she used to find the addresses of houses that he looked after.[101]
[101] Statement of Zoe Powell, 24 May 2018, 14 [101]
The photographs to which the complainant referred were tendered in evidence through Detective Coutts:
·Exhibit 3 - the complainant wearing a ballet dress.
·Exhibits 4 & 5 - the complainant on her 15th birthday.
·Exhibits 6 & 7- the complainant on the Hankin’s boat.
·Exhibit 8 - the complainant at a netball tournament.
·Exhibit 9 - the complainant lying on the accused’s couch.
·Exhibit 10 - the complainant in Year 10 at school in a photography class.
·Exhibit11 - the complainant on her last day at school.
·Exhibit 12- a photo of full dress.
·Exhibit 13 - the complainant in her bedroom with teddy bears.
·Exhibit 14 - the complainant at her university graduation.

Committal Cross-examination

The audio recording of the complainant’s committal evidence was played to the court and tendered as an exhibit.
She adopted her two statements as being true and correct.[102] She was asked about the Facebook posts she referred to in her statement and she said she was humiliated because she had never revealed to anybody the extent of what had happened to her. Her sister Molly Steele[103] had said on Facebook ‘Zoe would have some stories to tell I am sure’. She said that Facebook thread was extensive with over 30 comments.[104]
[102] Committal Tr, 2, L 19-29
[103]A pseudonym
[104] Committal Tr, 4-5, L 26-23
The Facebook incident was in 2011 and after that she spoke to the OPP and then to Detective Phelan. She said the OPP directed her to and she typed in the accused’s name and read the appeal related to his case.[105]
[105] Committal Tr, 6, L 5-15
She said in April 2018 she looked at another case of a sexual nature that was a similar situation to hers. The case involved sexual acts against a girl under 16 by a person that had befriended the victim’s parents. The case involved digital penetration, oral sex, anal sex, and kissing.[106]
[106] Committal Tr, 8, L 1-13
She was asked about the blood bank incident in February 2014. Prior to that she had never set out her allegations. She said she discussed with Lee Hankin the abuse of her son Blake Hankin[107] and Lee Hankin told her about how he had fared in his later life. She said she did not say to her husband ‘the lady wanted to know if I knew anything about Clifton abusing her son’. She said Lee Hankin did not ask her if she knew anything about what the accused was doing.[108] She saw Lee Hankin sometime later again at the blood bank.[109]
[107] A pseudonym
[108] Committal Tr, 10-13, L 11-29
[109] Committal Tr, 14, L 3-6
She said she had been seeing a psychologist in Bentleigh for about a year before the blood bank incident.[110] She said she had a breakdown after the blood bank incident and her husband took her to the Monash Emergency Department who made a referral to the Delmont hospital. After that she had been attending the mental health unit at the Epworth because her psychiatrist moved there. She had an ECT at the Delmont hospital.[111]
[110] Committal Tr, 15, L 13-22
[111] Committal Tr, 14-17, L 20-20
She was asked about the six pages of notes she had taken with her when she made her statement. She said she wrote the notes when she was at the Epworth in April 2018.[112]
[112] Committal Tr, 18-19, L 13-4
She said she had started writing from the time she first went to the Delmont hospital. She said she probably consulted the Epworth notes when she made her statement because this was the detail that came out of her in April at the Epworth.[113]
[113] Committal Tr, 21-22, L 31-24
One of the notes she had made was ‘unknown definition’. This related to the age of consent. She said Detective Coutts was the first person she sought definitions from.[114]
[114] Committal Tr, 24, L 19-28
She was taken through her notes about visiting the Hankin’s house in Chirnside Park 1993 – 94.
There was a reference to Wonga Park. She could not name whose house that was.[115]
[115] Committal Tr, 25, L 19-31
She had made a note in relation to the wedding at Red Hill which she said was the first wedding.[116]
[116] Committal Tr, 26, L 4-14
She was asked about the note ‘spa when parents away’ and she said there were many times she was in the spa with the accused and sexual activity took place. She said this happened every time there was no one around. She said anal penetration took place on many occasions in spas but at his parents’ house she could only recall this one occasion. She said sexual activity took place in that spa at least 20 times.[117]
[117] Committal Tr, 26-28, L 18-12
She said sexual activity continued after she turned 16 through until they broke up in December 1995. She was asked to detail the types of activities and regularity of such activities. She was taken to a note in her statement that said, ‘greater than 1000’. This represented an estimate of the total number of sexual acts that she and Mr Snyder engaged in during their relationship.[118]
[118] Committal Tr, 28-32, L 26-25
She made a note about the accused shaving her legs which she said was exceptionally odd.[119]
[119] Committal Tr, 37, L 5-9
She was taken to a note that said Euroa easter 1994. She clarified this should have been Numurkah. Euroa was a netball trip.[120]
[120] Committal Tr, 37, L 13-28
She referred to a holiday when she and accused went to the Gold Coast with the Greaves family and there was an incident on the road where the accused drove onto the shoulder of the road and rocks flew up and hit the windscreen of the Greaves’ Volvo.[121]
[121] Committal Tr, 39-40, L 26-15
She was taken to note that said ‘factory smell’. She said this was the smell of the oil. She said he had a mattress in the office and that sexual acts took place there when she was aged 15. She said that smell took her back to the factory and she could remember the layout. She said the accused would have-shirts at the factory, and on the occasions when he ejaculated at the factory, it was onto a particular T-shirt.[122]
[122] Committal Tr, 44-45, L 20-29
She also said the music he played at his house took her back to when all the children would play there.[123]
[123] Committal Tr, 47, L 7-12
She agreed that it was approximately 20 years between the incidents and her making any written record of them.[124]
[124] Committal Tr, 47, L 20-22
She agreed with the proposition that out of approximately 1000 sexual acts she was able to detail specifically the occasions she had set out in her statement.[125]
[125] Committal Tr, 49, L 23-31
She had made a note ‘plus, plus, plus, plus’ which indicated that the sexual activity was excessive and occurred every day, three to four times a day, which she didn’t believe was normal.[126]
[126] Committal Tr, 51-52, L 31-15
She said that after speaking to Detective Coutts she understood that any sexual activity after she turned 16 was not a breach of the law.[127]
[127] Committal Tr, 55-56, L 26-2
The fact that Justin Clowes’ marriage took place after her 16^th birthday in March 1995 was brought to her attention. She accepted she must have been 16 at the time of that incident and that her statement was incorrect about the date. She said: ‘I haven’t seen anyone’s statement, but that has cleared the point up to me’.[128]
[128] Committal Tr, Tr, 57-58, L 20-10
In relation to the first incident, she described attending the GP’s and said that the doctor put stitches in her injury and put a dressing on the laceration which was to her hip. She said she had the next day off school. She was asked how long she had off school and she said one day, and she was at home. She was taken through the facts of the incident.[129]
[129] Committal Tr, 58-63, L 14-7
She described an incident that took place in the accused’s garage which he used for his work as a mechanic. This incident occurred between the first and second charged incidents.[130]
[130] Committal Tr, 63-68, L 25-20
Regarding the second incident, on the day of her 15^th birthday, and the wedding of Keith Smith, she said the birthday celebration was after the wedding and directly after the charged incident. She said after the sexual activity they got dressed and they had a birthday cake waiting at her parents’ house.[131]
[131] Committal Tr, 68-72, L 22-3
She was asked about the Bonnie Doon incident. She said she identified the date of August 1994 by the fact that it was winter. She said it was freezing cold and they went to the spa wearing just towels.[132]
[132] Committal Tr, 75-78, L 21-29
She was then taken to the incident at the Cumberland Hotel in Lorne. She said they went to Lorne prior to her 16^th birthday for their one-year anniversary.[133]
[133] Committal Tr, 78-79, L-30-26
She said the fisting incident was the most traumatic incident that could ever have occurred. She described that it was his whole fist and that it was like punching a wall. She fell of the bed because of the force. She said the pain was excruciating. She said she was 15 years old and a very slim build. She said she did not see a doctor.[134]
[134]Committal Tr, 85-87, L 2- 23
She said the incident at the Greaves house in Mount Dandenong Road occurred when they were house sitting, and the Greaves’ were away at the Buchan Caves. She mentioned the phone calls from William Greaves’ brother relating to the death of their mother. She said the sexual activity took place after this call.[135]
[135]Committal Tr, 87-90, L25- 11
The balance of the cross-examination was focused on the remaining charged incidents.

Hamish Powell

Evidence in chief

Hamish Powell was the complainant’s husband. They got married in 2005 and had three children. When they first met, she was living in Cooper Drive, Lilydale with her mum. She had a bungalow out the back.[136]
[136] Committal Tr, 84, L 18- 19
He said his wife gave blood regularly. On one occasion after she went to a blood bank in Ringwood, she was upset and shell-shocked. He said that a day or two later he took her to a facility because she tried to commit suicide.[137]
[137] Tr, 83, L 5- 10
He booked her into a facility called Delmont for mental health. She became an inpatient there. She was there on and off for 12 months.[138] He said that was the start of her battling with these sorts of issues. He said that after the blood bank she just could not control it.[139]
[138] Tr, 83, L 24
[139] Tr, 84, L 6- 7
He said over that period she could be home for a day, a week, a month, depending on what triggers came up. This went on for years until she passed away.[140]
[140] Tr, 84, L 23
He said his wife had a remarkable memory and even through the worst times, her memory was always intact.[141]

Cross-examination

[141] Tr, 85, L 12- 14

In cross-examination he said he understood her family home during her teens was a toxic place to her and as a teenager she felt unwelcome in the family home.[142] He said she seemed to be the one that was singled out.[143]
[142] Tr, 86, L 6-9
[143] Tr, 86, L 22-23
He said their son, the oldest child, was born in March 2009. Their first daughter Caitlyn[144] was born in July 2010. The youngest, Rebecca[145], was born on 12 May 2012.[146]
[144] A pseudonym
[145] A pseudonym
[146] Tr, 86-87, L 29-31, 1-10
He said the complainant started to struggle after Caitlyn’s birth. She was very concerned about raising and protecting a daughter. He said it was like a snowball effect of events that just took its toll on her: having a daughter when she did not feel protected as a child; finding Mr Snyder was convicted; and the blood bank incident.
He agreed he had said in his statement: ‘I ended up taking her to a private facility where she was in and out of there for 12 months. Since then, Zoe has basically been a patient for the last five years’. He said she had been a patient on and off,[147] from weeks at a time to months at a time. She expressed some guilt for placing the responsibility on him for looking after the children and the financial pressure it created.[148]
[147] Tr, 90, L 8-9
[148] Tr, 91, L 7-16
He said that they first thought the accused had received a prison sentence for tax fraud. Mr Snyder’s parents told them this.[149]
[149] Tr, 89-90, L 30-31, 1-3
He said this was early before their children. He said they found out it was not for fraud through a news article that Zoe’s mum showed them when they were at Cooper Drive. Her mother said, ‘Was it worth wrecking the family for this guy?’[150] The complainant read the article and was shocked. He asked her, ‘Were you harmed in any way, or were you abused in any way?’ She could not answer the question. He could not remember exactly when this was.[151]
[150] Tr, 104, L 4-16
[151] Tr, 94, L 16-21
In relation to the blood bank incident, he said that Zoe told him that the woman who was drawing her blood was the mother of one of the accused’s previous victims who recognised Zoe, but couldn't work out exactly how she knew her[152] The lady then wanted to know if Zoe knew anything about the accused abusing her son.[153] Zoe had said to him ‘I kept getting asked over and over and over, and I didn't know’. This caused her to become distraught.[154]
[152] Tr, 97, L 1-7
[153] Tr, 97, L 29- 31
[154] Tr, 98, L 9-11
He agreed that prior to this incident at the blood bank, she knew that the accused had been convicted of child molestation because they had read the article.[155]He agreed it was after the blood bank that she had a breakdown.[156]

Re-examination

[155] Tr, 99, L 5-9

[156] Tr, 99, L 14- 16

In re-examination he said he thought their understanding that the accused was in prison for tax fraud was before they had children.[157] He thought the newspaper article incident was before their first child was born or around when he was born. There was a period of time between that and the blood bank incident. He said it was the article first, and then the blood bank.[158]
[157] Tr, 106, L 28-31
[158] Tr, 104, L 17-26

Amy Rooke

Evidence in chief

Ms Rooke met the complainant at Mount Lilydale College when they were both 12 years old in Year 7.[159] During Year 9, the complainant was living with her mother, stepfather and siblings in Lilydale.[160]
[159] Tr, 125, L 13-16
[160] Tr, 125, L 26-27
She always felt the complainant was a little bit of an outcast in her own house.[161] She was quiet, and she got picked on by her sisters. She felt the family was a bit dysfunctional.[162]
[161] Tr, 126, L 6-11
[162] Tr, 126, L 12-18
Ms Rooke gave evidence that the first time she knew about the accused was through letters shown to her by the complainant in Year 9. They were aged 14. She also saw the accused at netball games. He made friends with her mum, and that he would be over there when she got home from school.[163]
[163] Tr, 127, L 1-13
She saw the letters given to the complainant by the accused. She said they were ‘boyfriend girlfriend kind of letters, like affectionate letters, so I remember at the time thinking over the top letters, affectionate letters.’[164] The complainant told her the accused was in his twenties.[165]
[164] Tr, 128, L 9-15
[165] Tr, 128, L 30-31

Ms Rooke gave evidence that after the boys at school would say things to the complainant, she said the accused had told her ‘as long as we don’t actually have sex we can do anything else because that's what people do in relationships’.[166]
[166] Tr, 130, L 24-27
Ms Rooke said she was young and innocent back then. The complainant never said it in this happy way, she would just make a statement when she would get upset about what boys would say.[167]
[167] Tr, 131, L 1-4
The complainant told her that the accused put his fist in her one day, and that she had to do things to him, although she never explicitly explained those things.[168] She was told by the complainant that it hurt and otherwise they did not talk about it other than making a comment every now and then. This occurred in Year 9 and Year 10, when they were 14 and 15 years of age.[169] Ms Rooke said she was born in July 1978.
[168] Tr, 131, L 4-7
[169] Tr, 131, L 9-18
After leaving school she once asked the complainant why she did not tell her back at school. The complainant responded that she felt ashamed and did not know how to because no one would understand.[170]
[170] Tr, 131, L 21-27
Ms Rooke said that during the conversations in high school, she could not work out whether the relationship was what the complainant wanted. She was confused as she did not actually know what went on in relationships and was a lot less aware of things at that time.[171]
[171] Tr, 132, L 29-31
She said that when ‘it came out about Clifton’, she asked the complainant whether she was okay. Years ago, the complainant told her she went to the police.[172]
[172] Tr, 134, L 1-7
She said that the complainant lived with the accused’s parents for quite a while as she felt like she had nowhere to go. She felt as though the complainant was disowned by her family.[173]
[173] Tr, 134 and 135, L 20-31, 1-2
She said that the relationship with the accused ended in either year 10, 11 or 12 and when this occurred, the complainant continued to live with his parents. The complainant remained living there while she was at university. Eventually, she moved back to her family’s house and lived in the bungalow at the back.[174]
[174] Tr, 135, L 14-21
She gave evidence about the complainant ringing her quite upset and telling her she was no longer on social media as people were saying things about her in relation to the accused being in gaol for molesting boys. A neighbour had tagged the complainant in an article there had been a comment to ask ‘Zoe Bailey’ about the accused.[175]
[175] Tr, 136, L 8-16
Around the same time, the complainant told her that she had gone to the Mooroolbark Police Station. She said she told the policeman that she was going out with the accused during that time, and that she wanted to tell her story.[176] She said that the policeman told the complainant that she should let it rest as it would be too emotional, given that he had already been charged.[177]
[176] Tr, 137, L 1-13
[177] Tr, 137, L 14-20
When Ms Rooke asked the complainant what her story was, the complainant again brought up that the accused said to her that they could do anything but have sex, and that was okay. During this conversation, the complainant said that the accused would make her do things while they were driving the car, or in places at home. Ms Rooke said the complainant brought up the fist incident again at this time.[178]
[178] Tr, 137 and 138, L 22-31, 1-5
She said that the complainant was distraught and never went into detail about the offending.[179] She referred to earlier conversations when the complainant was having bad dreams and said they had conversations scattered throughout their lives.

Cross-examination

[179] Tr, 138 and 139, L 27-31, 1-5

She was asked whether she had read a transcript of her committal evidence and she said she had but she found that very confusing to read because ‘it was a very confusing piece’.[180] She said, ‘I feel like I know what I know and reading that made it confusing’.[181]
[180] Tr, 143, L 3-7
[181] Tr, 144, L 17-18
She said her evidence in chief that she had scattered memories after high school meant she cannot put dates to conversations, but she could relate conversations to times of certain events.[182]
[182] Tr, 144, L 30-31
She said Zoe had told her she might be getting a phone call to give evidence and that was all they ever spoke about it. They did not have a conversation about it. The complainant said to her that she had been to the police, so Ms Rooke presumed because she had been to police before it was about Clifton Snyder. She said they had not spoken about any allegations because she never told her the whole story.[183]
[183] Tr, 147 and 148, L 13-21, 2-9
Ms Skvortsova put to Ms Rooke that by previous things they had talked about this meant after everything with the accused went public. Ms Rooke answered, ‘that and high school’.[184]
[184] Tr, 148, L 10-12
Ms Skvortsova put that she knew she was making a statement about sexual matters involving the complainant and the accused. Ms Rooke said she had pushed it to the back of her mind and had not consciously thought about it until she sat down with Detective Coutts. She said she probably could have provided her with more answers.[185]
[185] Tr, 149-150, L 28 -19
She said there was a conversation where Zoe was telling her about bad dreams and that was after they had kids. She said all their children were born around the same time; they both had three children. This conversation took place between the birth of her first and second child who were born in 2011 and 2012, but after the Facebook posts. She said the complainant was having nightmares and because of that she was scared for her own kids.[186]
[186] Tr, 152, and 153, L 30-31, 1-31
She was asked about the content of the letters and she said there was nothing of a sexual nature in the letters, she stated ‘it was just more of a love letter’.[187]
[187] Tr, 162, L 12-13
She was asked again about complainant’s reaction to Facebook posts and she said that the complainant found it extremely distressing that she was tagged to an article about someone going to gaol, that she associated with at that time, but she had no idea about what he was doing.[188]
[188] Tr, 164, L 24-27
She was taken to her police statement where she had said, ‘After this conversation I said to Zoe, ‘Did he do anything bad to you?’ She told me he had fisted her and done other things to her which she didn't tell me about.[189] She said the complainant had referred to the fisting incident a few times. She said the reference in the statement related to after the complainant first spoke to police.[190]
[189] Tr, 164 and 165, L 29-31, 1
[190] Tr, 165, L 6-18
It was put by Ms Skvortsova that the conversations about fisting occurred after everything became public on Facebook. Ms Rooke said:
‘No, prior, but she also mentioned it then, and told me, and then just went on to tell me. So, I never knew. I didn't put two and two together, when she said that in high school’.[191]
[191] Tr, 165, L 24-27
Ms Skvortsova put to the complainant she had not mentioned in her police statement the complainant telling her about the fisting incident in high school. Ms Rooke said she thought she had but accepted she had not. She said she had not been asked about it.[192] It was put that the first time she was told by the complainant about the fisting incident was in 2011; Ms Rooke said no.[193]
[192] Tr, 165 and 166, L 23-31, 1-29
[193] Tr, 174, L 16-18
Ms Rooke was then asked to read several pages of her committal transcript commencing at p. 120 line 22. She was taken through these passages from the committal which have been tendered as an exhibit.
The passage of evidence put from the committal concluded with this question and answer: ‘Okay. The conversation did not happen back in the nineties when you were in high school?’ Ms Rooke had agreed with this proposition at the committal. Ms Rooke then said this of her answers in cross-examination at the committal:
‘Obviously, I was up here, being questioned, totally confused, never done this before, and it doesn't even make sense to myself, the way it's all worded[194]…… she always said to me in high school, they weren't allowed to have sex, sexual intercourse’. [195]
[194] Tr, 174 and 175, L 30-31, 1-3
[195] Tr, 175, L 16-17
Based on the committal evidence, Ms Skvortsova put to Ms Rooke that in high school the complainant had never mentioned any sexual activity that she and Clifton had engaged in. Ms Rooke responded that she took the questions to refer to sexual intercourse. She said this:
‘She'd said to me that they were not allowed to have sex… I'm just telling you exactly what I know. ’[196]
[196] Tr, 175, L 25-29
Ms Skvortsova put that the complainant never said to her in high school that the accused put his fist inside her. Ms Rooke said, ‘she did tell me that’.[197]
[197] Tr, 176, L 13
Ms Skvortsova suggested that Ms Rooke had mixed up the conversation after the Facebook posts with the conversation she said took place when they were at school. Ms Rooke said that when something specific happened, for example when she was upset with boys saying things to her at school, that was the time when she would make comments such as that one. She said that outside of that there were no other conversations about it. Ms Rooke said when she gave her statement to police, she went there and just answered the questions that were asked.[198]
[198] Tr, 182, L 10-20
Ms Skvortsova then went to the re-examination from the committal where Ms Rooke was asked by Mr Pirrie, ‘So you’re saying your earliest recollections of these conversations was when you were at school?’ Ms Rooke answered this question by saying ‘so the fisting thing-no…that was after the social media stuff’.[199]
[199] Tr, 179, L 28-30
Ms Rooke said in her mind she was thought the questions she was being asked when she gave those answers related to the time of the Facebook posts. She said:
‘I'm just telling you my story, but you've also got to understand that when you're being put on the stand and you're thinking okay I'm answering questions about this particular time - that I was - I read that and I'm like that's not - that's not how it goes. That's not.’ [200]
[200] Tr, 192, L 11-16
Ms Skvortsova asked Ms Rooke about her evidence that the complainant had said that he makes me do things to him. Ms Rooke said this related to when they were driving or back at his place and in high school. She did not give more detail. She said the complainant never went into the specifics about the sexual things they did.[201]
[201] Tr, 193, L 22-27
Ms Skvortsova directly put to Ms Rooke that the complainant did not say to her during high school that the accused’s fist went in her vagina. Ms Rooke said that she did say this, but she did not understand it, and it wasn't until she was much older that she realised there was more to the story than she had understood. She said that the complainant’s story was obviously a story she did not understand back in high school.[202] She said the conversation happened before years 11 and 12.
[202] Tr, 195 and 196, L 1-4, 10-14
Ms Rooke was subsequently recalled so a note the complainant had written about a Christmas lunch they had both attended could be put to her. The note indicated some discussion about the committal. Ms Rooke could not remember the contents of the conversation.
At the conclusion of Ms Rooke’s cross-examination Ms Skvortsova flagged the tender of various passages from the committal proceeding, which were ultimately tendered as Exhibit 36 at the end of the defence case. Those passages certainly contain a denial that the fisting conversation took place in high school but also contain answers from Ms Rooke that the complainant told her in high school, when the boys would tease her, that ‘he can do anything to me but have sexual intercourse’.[203] This was the context for Mr Pirrie’s question that produced the answer from Ms Rooke that the mention of fisting was later on.
[203] Exhibit 36 -p 132 L21-25, p 133 L18-25

Blake Hankin

Evidence in chief

This witness said his nickname was ‘Blakie’ when he was younger. He had met the complainant around that time as the girlfriend to the accused. He said that on one occasion he was at the accused’s home in Mooroolbark when the complainant was there. He recalled them being boyfriend and girlfriend.[204]
[204] Tr, 211-212, L 21-17
He said that his family owned a Markline 1100 power boat roughly 11 metres long. His father kept the boat at Patterson Lakes. The boat was used for trips on Port Phillip Bay. It would go to Mud Island up to the mouth of the Yarra River.[205]
[205] Tr, 212-213, L 28-9
The witness confirmed Exhibit 6 to be a photograph of the complainant sitting in the dining table of his Dad's Markline 1100 boat. He did not recall when it was taken. The witness confirmed Exhibit 7 to be a photograph of the complainant standing at the back tailgate of his dad's Markline 1100 boat holding a flathead. Again, he did not recall when it was taken.[206]

Cross-examination

[206] Tr, 213-214, L 15-21

He said he knew the accused when he was in his teens. He recalls first meeting the accused through the Scouting Association as a cub when he was approximately 12 or 13.[207]
[207] Tr, 215, L 20-28
He recalled meeting the complainant twice. He did not recall the second location where he met the complainant.[208]
[208] Tr, 216-217, L 29-2
He was contacted by email in June 2018 by Detective Coutts in relation to some photos.[209] He was asked about an email he had sent to Detective Coutts, in which he said that he did not recall an overnight trip with the accused and complainant present on that boat and that his father would not have allowed them to stay together overnight.[210]
[209] Tr, 217, L 4-6
[210] Tr, 217-218, L 25-25
He said the accused and complainant presented as a couple, or boyfriend and girlfriend, to the Hankin family.[211]

Re-examination

[211] Tr, 220, L 18-27

He was asked whether he saw any sexual contact, fondling or kissing between the complainant and the accused and he said, ‘not that he could recall’. He was asked whether he saw them in bed together, and he said no.[212]
[212] Tr, 230, L 27-30

Georgia Teague

Evidence in chief

Ms Teague said she knew the complainant since around 2000. She met the complainant through an athletics club at Knox Tri Club.[213]Somewhere between 2000–2004, the complainant mentioned that she had a boyfriend when she was about 14 or 15.[214] She had said she ended up living with his parents and didn't say much more.[215]
[213] Tr, 232, L 15-21
[214] Tr, 232-233, L 28-4
[215] Tr, 233, L 9-12
She said she lost contact with the complainant, but they caught up again for breakfast on 22 April 2018 at a Black Rock café. She said that the complainant told her that the accused had sexually abused her. She said he did some things to her when she was young. Ms Teague was shocked by this and did not know what to say.[216] The complainant told her the accused had fisted her. She does not recall any other sexual activity described by the complainant.
[216] Tr, 233, L 21-28
The complainant told her that she had been in and out of psychiatric care but not any specifics.
She said the complainant told her they had started going out and because they were not having actual sex, the complainant did not think there was anything wrong. The complainant said to her, ‘he put his whole fist up there'. She said that she did not question her because it was a bit shocking.[217]

Cross-examination

[217] Tr, 235, L 13-16

The witness confirmed that she had not heard from the complainant for approximately three years before they caught up in 2018 for breakfast.
She said that the conversation with the complainant about her mental health, Facebook, the erratic driving and sexual relationship with the accused all occurred during their breakfast date.[218]
[218] 233-235, L, 31-23
The witness confirmed that the complainant also told her that when she had turned 17, the accused had just dumped her. She believed that the complainant was upset because she said it was very sudden. Ms Teague got the impression that he just cut her off.[219]
[219] Tr, 237, L 7-9
She confirmed that the complainant told her that she was the first person she had ever told about what the accused did to her. Ms Teague was shocked to hear that.[220]
[220] Tr, 237, L 24-27

Bianca Hudd

Evidence in chief

Bianca Hudd was friends with the complainant from primary school until the complainant passed away.[221]
[221] Tr, 245, L 12-15
She said the complainant’s family life was fairly difficult. Her father passed away when she was two years old, and her mum was left with six children to look after. She stated that it was a very busy household, there was a bit of fighting that went on between the brothers and sisters, and that the complainant felt a bit isolated.[222]
[222] Tr, 245, L 18-26
She first heard about the accused through conversations with the complainant: that the accused had moved in across the road in Cooper Drive, and had befriended the family, especially her mum.[223]
[223] Tr, 245 and 246, L 29-31, 1-4
She observed the relationship between the accused and complainant develop.[224] The complainant told her that they started dating as boyfriend and girlfriend. The complainant would bring letters to school that the accused had written her. He would pick her up and drop her off at school, at a friend’s house, or parties and things like that and would go to netball games.[225]
[224] Tr, 246, L 14-16
[225] Tr, 246 and 247, L 17-31, 1-23
She recalled seeing them with their arms around each other. This occurred whilst they were in Year 9 in high school, and the complainant was aged 14, turning 15.[226]
[226] Tr, 247 and 248, L 25-31, 1-8
She recalled the complainant moving into the accused’s parents’ house in Croydon Hills, which was approximately a five to ten-minute drive from the complainant’s place.[227]
[227] Tr, 248, L 9-19
Ms Hudd visited the complainant at the accused’s parents’ house and observed the complainant living in the lounge room. She believed the relationship continued for two or three months before the accused broke the relationship off.[228]

Cross-examination

[228] Tr, 248, L 22-30

In cross-examination she confirmed the accused was open about him and the complainant being ‘boyfriend and girlfriend’. She said that this was because the accused had written letters to the complainant, he would take her to netball games and because she understood they went away together on day trips and visited family friends together as a couple. She said the accused would take the complainant along with him to places presenting her to people as though she was his girlfriend.[229] The witness said she had never observed the accused and complainant holding hands or kissing.[230]
[229] Tr, 249, L 10-22
[230] Tr, 249 and 250, L 27 – 31, 1
She recalled the accused being attentive and protective towards the complainant. She recalled visiting the complainant at the accused parents’ house on most weekends and said she never saw the accused there. She accepted the complainant may not have been staying in the lounge room but in an adjoining room which was a study converted into a bedroom.[231]
[231] Tr, 250 and 251, L 2-31, 1-6
She did not recall whether the complainant was upset when the relationship ended, she just remembers it ended abruptly.[232]
[232] Tr, 251, L 7-15

Jeff Bailey

Evidence in chief

Mr Bailey was the brother of the complainant. The accused lived across the road.[233] The accused was 22 or 23 years of age.[234]
[233] Tr, 253-254, L 22-31, 1-5
[234] Tr, 254, L 16-17
He said the accused became friendly with his family. The accused came over for dinner a few times and fixed their cars a couple of times.[235] The accused would invite people over, not only the complainant, but the whole family.[236]
[235] Tr, 254, L 20-24
[236] Tr, 255, L 6-8
The accused put up a basketball ring up so the kids in the street would play basketball there. He said that later, the accused and the complainant were in a relationship. This was approximately a year after the accused became a family friend.[237]
[237] Tr, 255, L 10-12

The evidence of Senior Constable Phelan

The issue raised by Detective Phelan’s evidence is that the notes of the meeting with complainant in 2011 record that she said the first sexual encounter with accused took place one-month before her 16^th birthday. Of course, this is inconsistent with her detailed account in the statement and the committal and arguably throws out the sequence and timing of the alleged events, thereby casting doubt on the complainant’s overall reliability, particularly in relation to dates. Because of the complainant’s unavailability, there is no explanation from her about the contradiction in timing raised in the notes.
However, Detective Phelan also recorded that in describing the fisting incident, the complainant said the accused was 22 years old when this incident took place. The accused turned 23 in July 1994, five months before the complainant’s 16^th birthday[580]. Her nomination of the accused as 22 when the event occurred is consistent with the timing of the incident in the complainant’s statement. It is therefore also consistent with her representations in the statement and the committal that sexual activity commenced much earlier than one month before her 16th birthday. I have had regard to this internal contradiction in assessing the significance of these notes to the complainant’s reliability. I have also assessed this evidence in light of the evidence I have accepted from Ms Rooke about representations at school and the timing of those representations. In my view, some aspects of the notes support the complainant’s reliability, and some detract from it. I have had regard to Mr Pirrie’s argument that the complainant simply made a mistake and was out by a year which I regard as plausible.
[580]On review of the material, it is apparent this date is incorrect. The correct date is 15 September 1971. The accused therefore turned 23 three months before the complainant’s 16^th birthday rather than five months.
Ultimately, in my opinion, the notes do not provide an insurmountable obstacle to an acceptance of the reliability of the complainant’s account, but they are a matter to be considered when assessing her reliability in relation to the individual incidents, particularly her evidence about dates.

Use of the complaint evidence

The complainant’s representation to Ms Rooke in high school that she and the accused could do anything other than sexual intercourse is relevant to the assessment of her reliability, in so far as she asserts a sexual relationship. That representation, in my view, was a contemporaneous statement of the existence of a sexual relationship between her and the accused. This representation rebuts the argument that on finding out about the accused’s offending, the complainant transformed herself into a victim and erroneously reconstructed the relationship. I do not find this scenario persuasive at all given the complainant also made disclosures to Ms Rooke as an adult and went to Detective Phelan in 2011 before the blood bank incident and her psychiatric problems. The high school complaint evidence does show consistency by the complainant in her assertion of a sexual relationship with the accused.
The complaint about the fisting incident to Amy Rooke as an adult and to Detective Phelan is relevant to the assessment of that incident in rebuttal of the defence arguments about the complainant’s reliability arising from contamination and her breakdown and psychiatric problems which occurred after these complaints.
Her complaints as an adult about a sexual relationship with the accused demonstrate consistency about this well before her psychiatric issues. Of course, the defence argue that her denial to Matthew Snyder of a sexual relationship and her inability to answer her husband’s question about this issue demonstrate inconsistency. I have no difficulty in understanding why at a much earlier stage the complainant was not ready to tell Matthew Snyder and I would not characterise her inability to respond to her husband as inconsistency.

Sexual relationship

The complainant’s detailed account of a two-year sexual relationship is denied completely by the accused. It is undisputed though that they were in relationship of emotional intimacy. I accept the complainant’s evidence that her parents tolerated the relationship and her stepfather told them there was to be no sex which she understood to mean sexual intercourse. There must have been some tolerance by her parents of the close relationship between the complainant and the accused for them to have let the accused take the complainant camping to Eildon with some of her siblings. On this trip the accused and the complainant shared a tent separate to her siblings.
I accept the evidence of Ms Wingard, the complainant’s mother, that she and her husband were concerned about the relationship by the time of the trip to Numurkah at Easter in 1994, due to the intensity of the relationship. This indicates their tolerance was waning by Easter 1994. The relationship was the reason for the argument with the accused. The accused describes a power struggle with complainant’s parents. None of this is surprising given the complainant later left the family home and moved in with the accused’s parents. The accused in his interview accepts there was a physical intimacy with the complainant involving kissing and hugging.
I found the accused’s account of using the complainant as a cover for his sexual activity with younger males unpersuasive. His sentence appeal in my opinion does not provide support for his claim of committing overlapping offences against young males in the period of the relationship with the complainant. If what the accused really wanted from the relationship was the external appearance of normality, I do not understand why it was necessary to engage in a power struggle with her parents that caused her to leave her family. Plainly, the relationship was one of considerable intensity. The accused’s explanation that the relationship with the complainant made him appear normal sits uneasily with the age gap between the two of them and his concession that he understood people were horrified by that age gap. I found the accused’s statement in the record of interview that he wanted to ‘fix being gay’ hard to reconcile with the claimed non-sexual nature of the relationship and his claim of concurrent sexual activities with young males. I found his further explanation when queried about this: that the relationship with the complainant was all about ‘contact’ unconvincing. Whilst I do not discount the suggestion there was a cooling of the relationship after the complainant moved away from her family, I accept the evidence of the complainant that the relationship continued and ended when the accused broke it off in December 1995. Clearly, they went to the Clowes wedding together in 1995. I also accept there were other occasions of sexual activity after she commenced living with his parents.
In the circumstances, the complainant’s account of a sexual relationship is entirely plausible. On either account there was ample opportunity for a sexual relationship to take place. I am satisfied from all the evidence that the complainant and the accused were in a sexual relationship approximately in the timeframe described by the complainant for around two years.
I am satisfied from all the evidence that the accused had a tendency to have a sexual interest in the complainant and a willingness to act on it which makes more probable that the charged acts took place as alleged. However, this is just a piece of circumstantial evidence and just one part of the prosecution case and the issues of reliability in relation to the individual incidents remain very much alive.

The Charges

I turn now to my analysis and findings in respect of the charged acts. I remind myself that in assessing the individual incidents and charges I must take into account all of the matters I have set out in the specific evidentiary directions. In particular, I take into account the disadvantages occasioned by the unavailability of the complainant, the matters contained in the unreliable witness direction and the forensic disadvantage warning.

Incident 1: Day off school

This incident is the basis of charge 2. This incident is alleged to have occurred when the complainant was home alone the day after injuring herself at school. The charged act relates to the accused rubbing his erect penis on the complainant’s body and ejaculating.
The defence argue that the complainant’s account is fundamentally flawed because she says the incident took place on a school day when the complainant was home recovering from her injuries. The defence argue that because the prosecution has nominated the date in the charge, they must prove that date beyond reasonable doubt. There is no doubt that on the 12^th of November 1993 the complainant was injured at school and saw Dr Skillbeck at the local medical practice. There is also no dispute that the following day in 1993 was a Saturday. Mr Pirrie argued that there is nothing in the account of the complainant that necessarily fixes the commission date as a school day rather than a Saturday and there is no reason the incident could not have taken place on a Saturday, the day after she was injured. Mr Pirrie did not argue the incident could have taken place on the next school day, the following Monday.
The law is clear that the date in a charge is a particular and, in most circumstances, it does not need to be proven beyond reasonable doubt. However, in my view, in this case, the complainant’s account of this incident does rely on her being home from school alone on a school day. She says she was home alone thus creating the opportunity for the accused to offend against her in the way alleged. In my opinion, the complainant was clearly indicating in her statement and at the committal that the day following her injury was a school day and she stayed home because of her injury. This is also what her mother said in her evidence. This was a large family, and, in my view, it is relatively unlikely the complainant would have been home alone on a Saturday and the accused could have offended in the way alleged. Hence, in my view, it is fundamental to the prosecution case that this event took place on a school day. This is how the case was put. Moreover, this discrepancy between the complainant’s account and the reality that the next day was a Saturday diminishes her reliability in respect of this charge and the surrounding circumstances in which it is alleged to have occurred.
Additionally, I accept the defence submission that given the extent of the complainant’s injuries from the fall at school, one would have expected a description of pain occasioned by the activities she describes. There are no school records before me from this time to prove whether the complainant had a day off school proximate to her injury and if so, the date on which she had that day off.
In all the circumstances, and having regard to the issues concerning potential unreliability, I am not satisfied beyond reasonable doubt that the prosecution has proved the case they brought against the accused in respect of this charge. I find the accused not guilty of charge 2.

Incident 2: The complainant’s 15th birthday

The incident is the basis of charges 3, 4 and 5. There is no issue about the date on which the events are alleged to have occurred, being the day of her 15^th birthday, 15 December 1993, which was the same day as the Smith wedding in Red Hill which the complainant and the accused attended together. These details were confirmed by the complainant’s mother and by the accused in his record of interview. The charged acts relate to vaginal penetration of the complainant by the accused using his tongue, digital penetration and penile oral penetration. The acts are alleged to have taken place at the accused’s house after the wedding but before a birthday celebration for the complainant at her family home.
The defence point to a discrepancy between the evidence of the complainant as to order of events and her mother’s evidence that the celebration was first and that they then went to the wedding. Whilst I do not regard this timing issue as fundamental to the way prosecution puts its case, it is a matter relevant to an assessment of the complainant’s reliability.
The complainant gave a very detailed description of the sequence of events on the day of the alleged offence. She described a shopping trip with her mother to buy sandals in the morning through to her birthday celebration and the accused staying on late at her house. She remembered she had used a Portman’s voucher to buy the dress she wore to the wedding. She identified correctly that the wedding was on her birthday and that a celebration for her took place at her house. She was able to identify the location of reception in Red Hill and that her history teacher was a guest. She recalled the accused parking in a location where her parents could not see them. The day itself was a significant one for her, attending a public event with the accused with whom she was in some form of romantic relationship. It was also her birthday. Her mother’s evidence, in my opinion, was less detailed and she was not as clear about the events of the day. This is understandable given the exceptional nature of the day to the complainant. It is true the police did not obtain a statement from any witness to identify the time of the wedding. Nevertheless, I accept the sequence of events set out by the complainant in her representations about his day.
I note that Exhibits 4 and 5 are photographs of the complainant at her birthday celebration on that day. The evidence is that in those photographs she is wearing the dress she wore to the wedding. Whilst there is no evidence of the circumstances in which the photographs were taken, they do give the appearance of having been taken in the evening, and therefore, certainly do not contradict the complainant’s account that the birthday celebration took place after the wedding. I do not make a definitive finding about the timing of the photographs; I am simply observing the photographs do not appear to be taken during the day.
There can be no doubt about the complainant’s age on the day of the alleged events. It is not in dispute that the wedding took place on her 15^th birthday. Given the undisputed fact that the complainant and the accused attended the wedding together, the accused had the opportunity to offend in the way alleged. There is nothing in the material of any similarity to these allegations, and I exclude that as a source of contamination for the charged acts.
In my opinion there is strong support for the complainant’s account of the surrounding circumstances and in my view, she has given a cogent and coherent account of the day’s events. I have carefully assessed the reliability issues as they relate to this incident, and I am satisfied that her description is grounded in reality rather than resulting from a dream of flashback.
I am satisfied beyond reasonable doubt of the complainant’s reliability in relation to this incident and I am satisfied beyond reasonable doubt that the charged acts took place as alleged and, on the date, alleged. I am therefore satisfied that all of the elements of the charges relating to this incident have been proven and I find the accused guilty of charges 3, 4 and 5 arising from this incident.

Incident 3: House sitting in Wonga Park

The incident is the basis of charges 6 and 7. It is alleged to have occurred at a house in Wonga Park where the accused was feeding the pets. The charges involve allegations of mutual oral sex. The complainant gives no date for this incident other than that it was early in the relationship, and she gives no address or surrounding details of the Wonga Park location. I accept the defence submission that there is a paucity of evidence about the surrounding circumstances. Given the issues concerning potential reliability and the example of inaccuracy provided by the Croydon Hills incident, in some ways a similar incident (involving house sitting to feed the owner’s pets), without further evidence to establish the accuracy of the date or surrounding circumstances, I have a reasonable doubt that the incident occurred as alleged or in the time frame alleged. I find the accused not guilty of charges 6 and 7.

Incident 4: Allegation of fisting

The incident is the basis of charge 10. This incident is said to have occurred in the accused’s bedroom and involves him penetrating her vagina with his fist. It is alleged to have taken place early in the relationship at a time after he started shaving her legs.
In my opinion, it is quite clear from the complainant’s statement, her representations to Detective Phelan and Amy Rooke, and the cross-examination at the committal, that this incident stands out in the complainant’s mind as being the most traumatic incident that took place with the accused. She told Amy Rooke and Detective Phelan about it before the breakdown after the blood bank incident; or her psychiatric problems; or dreams and flashbacks; or reading the decision. Therefore, these matters are of little significance in assessing this incident. Professor Thomson agreed with the proposition that such an incident is likely to be memorable.[581] There is not another incident like it in the complainant’s account. It does stand out as an event indelibly imprinted on her memory. I have weighed up Ms Skvortsova’s submission about the implausibility of the incident occurring without causing catastrophic injuries. I have considered the forensic disadvantage of the absence of medical evidence. This was likely to have been a physically traumatic incident at some level and the complainant describes extreme pain and bleeding but ultimately, I am not swayed by the defence implausibility argument in respect of this incident.
[581]Tr, 546, L 16-24.
As to the date, I accept the complainant’s account that this was an early event in their relationship, occurring not long after the accused started shaving her legs. This latter detail strikes me as an authentic recollection of an intimate act, but one that would have seemed strange to the complainant.
She told Detective Phelan that the fisting incident took place when the accused was aged 22, which is consistent with the time frame in the charge which is from the beginning of 1994 until 31 July 1994, well before her 16^th birthday.
Ultimately, given what I regard as the indelible imprint on the complainant’s memory of this incident, I am satisfied of her reliability in relation to it. I am satisfied beyond reasonable doubt it took place in the timeframe alleged and therefore the prosecution has proven all elements of charge 10. I find the accused guilty of charge 10.

Incident 5: House sitting for the Greaves

The incident is the basis of charges 11,12 and 13. The incident is alleged to have occurred at the residence of the Greaves family where the accused was house minding and feeding the pets. The charges involve penetration of the complainant’s vagina by the accused using his tongue; the accused ejaculating onto himself; and digital penetration.
The critical surrounding fact in this incident is the call from Mr Greaves’ brother in the United Kingdom to tell him that their mother had died. The complainant said Mr Greaves was in Gippsland. She said the incident took place at the Greaves’ house in Mt Dandenong Road. The complainant’s recollection of these details is completely consistent with the evidence of William Greaves. He gave evidence of the call from the accused and that he was away at the Buchan Caves. He knew the date -15 January 1994, the day after his mother died. He was very clear that he was living in Mt Dandenong Road at that time. The accused could not recall this incident.
In my opinion, the discrepancy the defence raise relating to the misdescription of the Mt Dandenong Road residence as a cottage style house is not of great moment in the context of the complainant’s remarkably accurate memory of the other details. No doubt she did visit the Croydon house to which the Greaves’ moved approximately three months later. This house had in common with Mt Dandenong Road an old-style kitchen. Some confusion between the two, leading to the erroneous description of a cottage style house, is understandable and not fundamental.

The date in respect of this incident is well established and this was an early incident in the relationship which, in my opinion, as a matter of common sense, is more likely to stand out in the complainant’s mind.
I have had regard to all the issues raised relating to reliability including the possibility of transference and contamination or incorporation from a dream or flashback. Having regard to the clarity of the complainant’s account and the strong support for the surrounding circumstances in the evidence of William Greaves, I am satisfied this incident is grounded in reality and I am satisfied beyond reasonable doubt about the reliability of the complainant’s account of the charged acts and that they took place as alleged on the date alleged. I find the accused guilty of charges 11, 12 and 13.

Incident 6: Accused’s parents’ spa

This incident is the basis of charge 14. It is alleged to have occurred in the spa at the accused’s parents’ house and involves anal penetration.
The complainant gave evidence at the committal that such incidents took place in the accused’s parents’ spa on some 20 occasions but that this was the only incident she remembered specifically. In assessing this incident, I have had regard to Professor Thomson’s evidence about the difficulty of reliably detailing a specific incident from high frequency events and his evidence of the unreliability of dates in relation to reconstructed memories. In relation to the date the complainant says this incident was in February or March 1994, but there is no independent support for her account of the date of this event. I have also considered the possibility of contamination from the document.
This is said to be one of 20 similar incidents within a two-year relationship. The complainant said she could not remember any of the other incidents. There is no other evidence of the surrounding circumstances of this event and nothing to support the alleged timeframe. Ultimately, I find I have a reasonable doubt that the allegation in this incident occurred in the circumstances alleged by the prosecution or the time frame in which it occurred. In those circumstances, I am not satisfied beyond reasonable doubt of the complainant’s reliability in respect of this incident or the date on which it is alleged to have occurred, and therefore that she was under the age of 16. I find the accused not guilty of charge 14.

Incident 7: The Hankins’ house

This incident is the basis of charge 17. This incident is said to have occurred at the house of the Hankin family and involved digital penetration.
The complainant has nominated February 1994 as the time frame in which this incident took place. There is no explanation in the evidence as to how the complainant arrived at this date. There is no other evidence which supports her evidence about the date. This is another incident where the accused was minding the house of friends to feed their pets. There is not much in the way of surrounding detail given in respect of this incident and there was no evidence from the Hankins in relation to the accused looking after their house in this way at any stage. I am particularly mindful in assessing this incident of the apparent inaccuracy of the complainant’s description of the Croydon Hills incident which in many respects is a very similar incident. I have considered Ms Skvortsova’s argument that the exterior of the house was not visible on the google image supplied by the complainant and her failure to describe the exterior of the house illustrates the process of reconstruction.
Taking all these matters into account, I have formed the view there is reasonable possibility of unsafe reconstruction in relation to this incident and I am not satisfied beyond reasonable doubt the incident took place as alleged. It follows from that finding I am also not satisfied about the date of the alleged incident. I find the accused not guilty of charge 17.

Incident 8: The Hankins’ boat

This incident is the basis of charges 18 and 19. The charges are alleged to have taken place on an overnight trip on the Hankin’s boat and involve digital and oral penetration.
The prosecution argues the overnight trip was confirmed by the accused. I accept the defence submission that a fair reading of the accused’s answers in respect of this incident is that he was unsure of whether they stayed overnight on the Hankin’s boat or not. This seems to me to be a reasonable response by the accused given the event took place well over 20 years prior to the interview. There is definitive unchallenged evidence from Ethan Hankin that the accused and the complainant did not stay overnight on the boat. This evidence was, in my view, supported by Blake Hankin’s evidence as to his father’s practice. Given this evidence and having regard to all the various warnings concerning reliability and the disadvantages faced by the accused, I have a reasonable doubt about the complainant’s reliability in respect of this incident. I find the accused not guilty of charges 18 and 19.

Incident 9: Numurkah

This incident is the basis of charge 20. The charge involves digital penetration and is alleged to have occurred in the lounge at a farmhouse in Numurkah where the complainant’s family were staying. The accused attended and stayed one night, and the offence is alleged to have occurred during the night.
The date of this trip is well established in the evidence as Easter 1994. This comes from the complainant, and from her mother, and her sister Molly Steele. Accordingly, there is no doubt concerning the complainant’s age at the time of this incident. The surrounding circumstances are also well supported by the witnesses and by the accused in his record of interview. The night of the incident was memorable because of the argument between the accused and the complainant’s parents. I accept Mr Pirrie’s argument that there is a confluence of memories around this incident. I do not accept that the offence is unlikely to have taken place because the argument took place in the lounge room, and this is where the offence is alleged to have taken place. I did not understand Alana Wingard’s evidence about the argument going on for most of the night to mean the argument literally went on until the morning. The evidence is the accused was present overnight and, in my opinion, the opportunity for him to have committed the offence is clear.
Taking into account all these matters and my finding that the accused had a sexual interest in the complainant and a willingness to act on it, I accept beyond reasonable doubt this offence took place as alleged and that the complainant was under the age of 16 at the time of the offence. I therefore accept the prosecution have proven all the elements of this charge. I find the accused guilty of charge 20.

Incident 10: Lilydale cemetery

The incident is the basis of charge 22. The charge involved is alleged to have occurred after the accused took the complainant for a driving lesson in an orange Corona at the Lilydale cemetery and involved oral penetration.
The complainant has simply said this incident took place in May 1994 and that she was 15 years old. The accused made no admissions about the driving lesson in his record of interview. There is evidence from Matthew Snyder that the accused never had a Corona but that he did have an orange Datsun which he ended up inheriting but got rid of in either late 1993 or early 1994. His evidence about this was not in my opinion uncertain which is understandable given these events were more than 25 years ago.
Considering the reliability issues raised in this trial and that there is no evidence to support the surrounding circumstances and most particularly, the date on which any such incident might have taken place, I am not satisfied the prosecution has proven beyond reasonable doubt this charge took place in the timeframe alleged, and therefore, that the complainant was under the age of 16. I find the accused not guilty of charge 22.

Incident 11: Jerusalem Creek

This incident is the basis of charge 23. The charge involves an act of digital penetration followed by further similar acts. It is alleged to have occurred on a trip away to Jerusalem Creek in Eildon with the accused’s parents.
The complainant says that this trip took place in July 1994 but there is no supporting evidence for this and the basis on which she arrived at this date is not explained. Potentially, the accused’s parents could have shed some light on the date and the circumstances of the trip, but no statements were taken from them. Further, there is evidence from Matthew Snyder that his parents would not have been likely to allow the accused to stay in bed with the complainant all day as described. This evidence seems to me to have additional force in assessing an incident said to have occurred months before the complainant moved into the accused’s parents’ house well before she turned 16 years old.
Given the state of the evidence in respect of this incident, and the reliability issues raised in this case, I am not satisfied beyond reasonable doubt that the offence took place as alleged or in the timeframe alleged. I find the accused not guilty of charge 23.

Incident 12: Bonnie Doon

The incident is the basis of charges 27, 28, 29 and 30. It is alleged to have occurred in August 1994 at the Bonnie Doon Hotel in the spa on a weekend away. The charges involve digital penetration, anal penetration, masturbation of the accused by the complainant and a further digital penetration.
The complainant gave the date for this incident as August 1994 because her recollection was that it was cold and therefore it was winter. She said her parents allowed her to go away with the accused because he told them another family was going. The charged acts involve digital penetration, masturbation of the accused, a second incident of digital penetration and anal penetration. There are various aspects of this incident which are relevant to the complainant’s reliability. Firstly, Professor Thomson’s evidence about the difficulty of reliably detailing specific incidents from high frequency events is relevant. This is one of three charged acts involving anal penetration in a spa along with approximately 20 further similar uncharged acts at the accused’s parents’ spa. In my opinion, this factor also compromises the reliability of the date nominated by the complainant. There is no evidence from any other witness nor are there any documents which confirm a trip to Bonnie Doon in August 1994. Further, this is alleged to have been a weekend away with the accused that her mother allowed when there was plainly animosity towards the accused from the complainant’s parents and not long before the tumultuous events which led to her leaving home.
Whilst there was obviously a trip to Bonnie Doon at some stage, as admitted by the accused in his record of interview, no timeframe to the trip was given by him. There is considerable scope for this event to have taken place at a later time and at a date after the complainant’s 16^th birthday. I must take into account the complainant’s inaccuracy in relation to the timing of the Clowes wedding.
Having regard to the reliability issues in this case and the absence of any supporting evidence concerning the date I am not satisfied the incident took place in the timeframe alleged and that the complainant was under the age of 16. I find the accuse not guilty of charges 27, 28, 29 and 30.

Incident 13: Cumberland in Lorne

The incident is the basis of charges 34, 35 and 36 and involves allegations of the complainant masturbating the accused, digital penetration, and anal penetration. This incident is alleged to have taken place just a month before the complainant’s 16th birthday in December 1994 at the Cumberland Hotel in Lorne.
The date hinges on the trip taking place exactly 12 months after the relationship commenced. Given my finding in respect of charge 1, I am therefore uncertain about precisely when the relationship started. In my opinion, the complainant’s process of fixing a date for the trip to Lorne does involve a level of unsafe reconstruction and requires acceptance that any trip to Lorne took place exactly 12 months after they started going out, on her account. Whilst the accused admitted to attending the Cumberland at Lorne on their first anniversary, it is unclear what he regarded as the start date of the relationship. His answer when the date of the trip was put to him was, ‘Yeah we’ll go with that’ which I do not regard as an admission. There is an absence of any supporting material confirming the date of the trip.
I am not satisfied beyond reasonable doubt of the date of this incident and therefore that the complainant was under the age of 16. I find the accused not guilty of charges 34, 35 and 36.

VERDICTS

I therefore cause the following verdicts to be entered on the records of the court:

Charge 2: Indecent Act with a child under the age of 16 – not guilty

Charge 3 Sexual penetration of a child under the age of 16 – guilty

Charge 4: Sexual penetration of a child under the age of 16 – guilty

Charge 5: Sexual penetration of a child under the age of 16 – guilty

Charge 6: Sexual penetration of a child under the age of 16 – not guilty

Charge 7: Indecent Act with a child under the age of 16 – not guilty

Charge 10: Sexual penetration of a child under the age of 16 – guilty

Charge 11: Sexual penetration of a child under the age of 16 – guilty

Charge 12: Sexual penetration of a child under the age of 16 – guilty

Charge 13: Sexual penetration of a child under the age of 16 – guilty

Charge 14: Sexual penetration of a child under the age of 16 – not guilty

Charge 17: Sexual penetration of a child under the age of 16 – not guilty

Charge 18: Sexual penetration of a child under the age of 16 – not guilty

Charge 19: Sexual penetration of a child under the age of 16 – not guilty

Charge 20: Sexual penetration of a child under the age of 16 – guilty

Charge 22: Sexual penetration of a child under the age of 16 – not guilty

Charge 23: Sexual penetration of a child under the age of 16 – not guilty

Charge 27: Sexual penetration of a child under the age of 16 – not guilty

Charge 28: Sexual penetration of a child under the age of 16 – not guilty

Charge 29: Indecent Act with a child under the age of 16 – not guilty

Charge 30: Sexual penetration of a child under the age of 16 – not guilty

Charge 34: Indecent Act with a child under the age of 16 – not guilty

Charge 35: Sexual penetration of a child under the age of 16 – not guilty

Charge 36: Sexual penetration of a child under the age of 16 – not guilty

[2021] VCC 1214

10 June 2021