Kotz v The Queen
[2019] SASCFC 160
•20 December 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
KOTZ v THE QUEEN
[2019] SASCFC 160
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
20 December 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction for one count of maintaining an unlawful sexual relationship with a child, CB, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and two counts of aggravated indecent assault against AM contrary to s 56 of the CLCA (counts 5 and 6).
The unlawful sexual relationship was between the appellant and CB, the daughter of his then girlfriend. CB was aged between seven and 12 years during the period of the alleged offending. The offending took place at CB’s mother’s home as well as one occasion at the appellant’s home. The appellant often stayed over at CB’s mother’s home. He would enter CB’s bedroom at night and massage her, which eventually escalated to touching her indecently under her clothing. Over time the offending progressed further. The appellant would lay on his back on CB’s bed, pull her close to him and push her bottom down, so that his genitals pushed against her vulva. Count 1 also particularised conduct including one occasion of penile-vaginal penetration and the appellant causing CB to masturbate him.
AM was a friend of CB and the alleged offending took place while AM stayed over at CB’s house. During the relevant period, AM was aged between 11 and 12 years. Counts 5 and 6 charged the appellant with indecently rubbing AM’s bottom.
The appellant’s eight grounds of appeal can be grouped as follows. First, a complaint that the Judge failed to address whether the evidence of CB and AM, even if honestly given, was reliable, particularly having regard to internal inconsistencies in their testimonies and inconsistencies with other evidence (grounds 1-5). Secondly, a failure to address the defence evidence, given by the appellant’s daughter, which was said to contradict CB’s account of the sexual offending at Salisbury East (grounds 6-7). Thirdly, that the Judge wrongly framed his fact finding as a binary choice between the evidence of the complainants and the appellant (ground 8). The final complaint, which was not included as a ground in the Notice of Appeal but a submission to that effect was made in written submissions, is that the verdict was unreasonable
Held per Kourakis CJ (Stanley and Doyle JJ agreeing), granting permission to appeal on grounds 2, 6, 7 and 8, and dismissing the appeal on all grounds:
1. The inconsistencies are not such as to cast doubt on the reliability of CB’s account and her credibility is accepted.
2. The Judge’s reasons in paragraph [85], even though limited to CB, in the context of the forensic issues, adequately explains his conclusion in paragraph [262] that AM was also reliable.
3. The Judge was entitled to find that, notwithstanding the testimony of the appellant’s daughter, he was satisfied beyond reasonable doubt on the whole of the evidence that the appellant offended as CB described, whatever the explanation may be for the appellant’s daughter’s account of that night.
4. The Judge in paragraph [209] of his reasons is not indicating that his starting point was an acceptance of CB’s credit.
5. There is no reason for this Court to doubt that the charged offences were committed.
Criminal Law Consolidation Act 1935 (SA) ss 50, 56, referred to.
R v Kotz [2019] SADC 3, discussed.
R v Thompson [2018] SASCFC 104, considered.
KOTZ v THE QUEEN
[2019] SASCFC 160Court of Criminal Appeal: Kourakis CJ, Stanley and Doyle JJ
KOURAKIS CJ: The appellant, Mr Kotz, was convicted following a trial by judge alone in the District Court of one count of maintaining an unlawful sexual relationship with a child, CB (count 1)[1] and two counts of aggravated indecent assault against AM (counts 5 and 6, respectively).[2] Mr Kotz was the boyfriend of SB, CB’ s mother. AM was a friend of CB.
[1] Contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
[2] Contrary to s 56 of the CLCA. The only circumstance of aggravation alleged was the complainant’s young age.
Count 1 charged that Mr Kotz maintained the unlawful sexual relationship with CB between 28 February 2003 and 31 August 2008 in the regional towns of Willaston and Hewett and the suburb of Salisbury East. The offence charged by count 1 was particularised as follows:
(a) causing her vagina to rub against his penis over her clothes, on multiple occasions;
(b) rubbing her bottom, on multiple occasions;
(c) rubbing her breasts, on multiple occasions;
(d) rubbing the tip of his penis up and down her vagina, on one occasion;
(e) causing her to masturbate him, on one occasion; and
(f) inserting his penis into her vagina, on one occasion.
Counts 2, 3 and 4 charged Mr Kotz, in the alternative, with particular sexual offences, the commission of which together constituted the offence charged in count 1.
CB was born in September 1995; she was aged between seven and 12 years during the period of the alleged offending.
Counts 5 and 6 charged that Mr Kotz indecently rubbed AM’s bottom between 30 March 2007 and 19 October 2007 at Hewett. AM was born in October 1995. She was between 11 and 12 years old during the period of the alleged offending.
The eight grounds of appeal can be grouped as follows. First, a complaint that the Judge failed to address whether the evidence of CB and AM, even if honestly given, was reliable, particularly having regard to internal inconsistencies in their testimonies and inconsistencies with other evidence (grounds 1-5). Secondly, a failure to address the defence evidence which was said to contradict CB’s account of the sexual offending at Salisbury East (grounds 6-7). Thirdly, that the Judge wrongly framed his fact finding as a binary choice between the evidence of the complainants and Mr Kotz (ground 8). The final complaint is that the verdict was unreasonable; although not included as a ground in the Notice of Appeal, a submission to that effect was made in the written submissions and it is best to deal with it as such.
I would dismiss the appeal. The Judge correctly found that if the complainants had honestly related Mr Kotz’s behaviour, they could not have mistaken innocent conduct for the offending they described, or have imagined offending where there was none. The Judge expressly addressed the inconsistencies in the evidence before making his ultimate findings of fact. The Judge properly applied the criminal onus of proof and explained why he made his ultimate findings, notwithstanding the inconsistencies and the defence evidence which contradicted CB’s account. The Judge’s advantage in hearing the witnesses was capable of resolving any doubt raised by the inconsistencies on which Mr Kotz relies. The verdicts were supported by the evidence. I elaborate on my reasons below.
Family and working life
Mr Kotz was 51 years old at trial. He completed his secondary education before serving in the army for four years. He was discharged on account of physical disability. Following his discharge he worked as a chef, and from 1997 until 2007 ran an educational fishing service. He worked on some weekends. Mr Kotz’s daughter, TM, was born in April 1995. TM visited Mr Kotz every second weekend and during public and school holidays. Mr Kotz called character witnesses at trial and reference was made to his numerous volunteering activities.
CB was the middle of five children. Her parents, PB and SB, separated when she was aged seven. After the separation, she lived with her mother in Willaston for about six years before they moved to Hewett. The visitation arrangements were that CB would see her father every second weekend and on holidays but her father’s compliance with that arrangement was erratic.
CB recalled that her mother met Mr Kotz when CB was between eight and nine years old, while they lived in Willaston. CB said that Mr Kotz was at their house every weekend that she was also there. Mr Kotz slept in her mother’s bedroom. CB’s bedroom was at the other end of the house. SB testified that Mr Kotz regularly came over on a Friday and stayed the weekend.
SB testified that TM stayed over ‘all the time’ at the Willaston address. However, CB testified that she only saw TM ‘on special occasions’ and that TM only went to her house occasionally. Mr Kotz gave evidence that his visits ‘varied quite considerably’ but became more regular with time. His evidence was that TM stayed at SB’s one or two times a month. SB also testified that Mr Kotz visited the Hewett address every weekend.
AM was CB’s friend. They met at primary school when they were aged about 10. AM was 11 years old when she first met Mr Kotz. AM never went to CB’s house in Willaston but visited her at Hewett. AM often stayed overnight. CB remembered that there were quite a few times when both Mr Kotz and AM stayed over at the Hewett house. AM testified that there were at least two times when she stayed over at the same time as Mr Kotz. Mr Kotz denied that there was ever an occasion when he looked after CB and AM whilst SB was at work. When staying over, AM slept in CB’s room.
CB gave evidence in cross-examination about a period after she left her mother’s home in 2009 to live with her father, a boyfriend and at other places. CB agreed that she had contact with police and Family and Youth Services (in its various forms hereafter referred to as FAYS in that period).
The Judge set out in his reasons,[3] under the heading ‘Motive to Lie’, certain agreed facts derived from the records of the Family Court, police and FAYS:
[3] R v Kotz [2019] SADC 3 at [196]-[209].
·There was a delay between the commencement of the alleged offending in 2003 and the first report of it to authorities in 2010.
·There were acrimonious Family Court proceedings between CB’s parents from 2004, in which CB did not report any sexual abuse to a Family Court mediator who interviewed her in the context of the custody access dispute between her parents.
·On 22 November 2009, CB provided a statement to police regarding a complaint by AM of alleged abuse by her cousin but did not tell police that she herself was abused.
·On 5 February 2010, a police officer noted that CB ‘was not happy to speak to police but she stated that she had not been touched inappropriately by any person at any time and in any way’. CB did not believe that she said that.
·CB left her mother’s home in 2007, and in 2010 was suffering from considerable disruption in her life.
·On 19 January 2010, police asked CB whether she had ever been sexually abused by her father.
·At around this time, CB was living in a foster home organised by FAYS which came to an end on 5 February 2010.
·Between 5 and 11 February 2010, CB engaged with welfare authorities about finding her accommodation, but they stipulated that she was not to share accommodation with her boyfriend.
·On 11 February 2010, CB told FAYS that the accused sexually abused her when massaging her.
·At about this time, CB was told that if she did not engage with the services provided by FAYS they would no longer provide financial assistance.
In cross-examination, it was put to CB that she had made an allegation to a social worker from FAYS that Mr Kotz would come into her bed, hold her on top of him and massage her. CB could not recall a conversation with a social worker along those lines. CB agreed that AM had confided in her about being abused by somebody else. It was put to CB that she had not told police in November 2009, when she was asked about the complaint made to her by AM, that Mr Kotz was sexually abusing her.
It was not suggested that CB had confused conduct perpetrated by others with the conduct of Mr Kotz.
In cross-examination of AM, it was put to her that she gave statements to police in 2009 alleging sexual offending by her cousin. It was not put to AM that she had confused any conduct by her cousin with the conduct of Mr Kotz.
Offending against CB
CB testified that Mr Kotz often entered her bedroom at night. On the first occasion, in Willaston, she was asleep on her stomach. She awoke to Mr Kotz sitting on her bed and rubbing her back from the bottom of her neck down to the top of her bottom, over the top of her clothes. Mr Kotz then moved so that he was lying on his side under the covers and facing CB, while rubbing her back. CB fell back asleep, on her estimate, five minutes later. She woke again while Mr Kotz was ‘tiptoeing out’ of her bedroom. There was nobody else in the room on this occasion.
Sometimes Mr Kotz rubbed CB’s legs and feet but this never occurred on the same occasions as when he rubbed her back.
CB gave evidence that conduct of this kind happened each time that Mr Kotz stayed in her home. His conduct escalated to touching her indecently under her clothing. Over time the offending progressed further. Mr Kotz would lay on his back on CB’s bed, pull her close to him and push her bottom down, so that his genitals pushed against her vulva. CB testified that on these occasions, there was never anyone else in the bedroom, but that on some occasions her mother was home.
CB testified that her mother’s working hours varied and included evening work in a bar. SB testified that in the evenings, either her eldest daughter or Mr Kotz would mind the children when she was at work, including AM, if she was staying over.
CB testified that she and her family moved to Hewett in 2007. She saw Mr Kotz there every weekend, unless she was at her father’s house. By this time, she was not regularly seeing her father every second weekend. Mr Kotz generally stayed overnight from Friday to Sunday. He continued to go into CB’s bedroom at night, climb into bed and pull her on top of him, while rubbing her back and pushing her bottom down.
CB testified that Mr Kotz also touched her indecently at his house in Salisbury East when she was 12 years old. She was left with Mr Kotz so that her elder sister, JB, and her mother, SB, could go to a Christina Aguilera concert. CB testified that only she and Mr Kotz were left at home. However, SB testified that she had taken both CB and another of her daughters, ShB, to Mr Kotz’s house. SB testified that TM was not home with her father that evening. Mr Kotz testified that TM was there. Mr Kotz kept a diary note of the times when his daughter stayed over in order to have a record to justify reductions in his child maintenance payments. He marked those days with a ‘T’ next to the date. The diary was received as an exhibit. There was such a marking on 18 July 2007, the day of the concert. Mr Kotz also testified that CB and TM stayed up until SB and JB returned from the concert.
TM also testified that she stayed overnight at her father’s Salisbury East home on an occasion when CB was left with them so that SB could go to a concert with JB. TM testified that she and CB watched television while her father was on his computer in another room. When SB and JB returned they slept over. TM gave evidence that SB and her children rarely stayed over at her father’s house, but that there was otherwise nothing particularly memorable about the occasion. TM could not remember whether CB’s sister ShB was there but said that none of SB’s other children were there. TM could not recall any other detail about what she, CB and Mr Kotz did on that evening, but testified that they did not go to sleep before SB and JB returned. TM had her own room. She could not remember where CB slept.
CB testified that after being dropped off, she watched TV whilst Mr Kotz cooked dinner. CB then went to his computer room and played a game on the computer. After dinner, Mr Kotz and CB watched television on the couch where she fell asleep. She awoke to find that she was laying on Mr Kotz who was on his back, pulling her on top of him. Mr Kotz pushed her bottom down by continuing to massage her bottom. She testified that she was wearing silky boxer shorts and a top, and that Mr Kotz was wearing only his underpants. She felt his penis against her vagina. In cross-examination, CB agreed that in a statement dated 17 November 2014, she had said that Mr Kotz was shirtless and in track pants.
Mr Kotz next rubbed his penis on CB’s underpants. Her boxer shorts had been pulled to the side. He then pulled her underpants to one side and thrust his penis on her vulva. Afterwards, he placed her hand on his penis. CB felt her boxer shorts become wet. She pretended to be asleep for about five to 10 minutes. She changed into the clothes she had brought for staying over and placed the boxer shorts into her bag. When she returned home the following day, she noticed a white stain in the crotch area on both the inside and outside of the boxer shorts.
In cross-examination, CB agreed that in her statement dated 17 November 2014, she had reported that she felt her boxer shorts become wet at the point Mr Kotz stopped thrusting towards her vagina while her underpants were still on. However, she testified that she now thought Mr Kotz ejaculated after her hand had been placed on his penis.
CB gave evidence about Mr Kotz touching her at, what was described as, the family shack, at Stonehut, a small town in the mid‑north of the State, where Mr Kotz’s parents had a home. CB did not know its location; she only went there once. The first time CB mentioned the Stonehut incident to prosecutors or police was in the week prior to the trial commencing in August 2018.
In her evidence-in-chief, CB said that the other people at Stonehut on that occasion were Mr Kotz, SB, TM and two of her sisters. In cross-examination, she testified that she did not remember TM’s friend there, nor did she think that her younger brother was there. However, CB later agreed that her younger brother was present after identifying him in a photo taken at Stonehut. Mr Kotz testified that he, SB, CB, CB’s sister, TM and TM’s friend were at Stonehut on that occasion.
CB did not recall where she slept at Stonehut but her mother stayed with Mr Kotz in his room. CB testified that after falling asleep in Mr Kotz’s bed at some point she awoke to find him pulling her on top of him. He was laying on his back and she on his stomach. He massaged her back and bottom and applied pressure to her bottom so that their groins rubbed together. She did not recall what either of them were wearing. She remembered Mr Kotz grabbing her back underneath her clothes. No one else was present in the room. CB testified that the door of the room had been open, but that there was no one else in the house as everyone else had gone to a nearby bakery. SB testified that, on this visit to Stonehut, there was an occasion when she went to buy pies at a bakery on the main road on her own. It was an agreed fact that at no time before 2 August 2018 did SB tell the police or the prosecutor that she went to the bakery alone.
CB estimated that, over the whole period, the touching occurred on at least 100 occasions. CB testified that Mr Kotz never spoke to CB on these occasions, nor did she ever say anything to him. An inconsistency relied on at trial by Mr Kotz was that AM testified that on the occasion when Mr Kotz massaged both AM and CB, Mr Kotz did chat with CB.
In her evidence, CB was not sure if Mr Kotz had come into her bedroom on an occasion when AM was sleeping over. However, AM testified that Mr Kotz came into CB’s bedroom at night on at least five occasions when she was staying over. AM also testified that she had seen Mr Kotz massage CB on at least two or three occasions, once in the living room but otherwise mostly in CB’s bedroom. AM also saw CB give Mr Kotz a massage.
CB gave evidence of a particular incident in Hewett when she was 12 years old, which she described as ‘the worst incident’. Mr Kotz entered her room at night and pulled her on top of him. CB testified that for about five minutes, Mr Kotz pushed her bottom down. Mr Kotz then pulled CB’s underpants to one side, took his penis out and attempted penetration. CB described Mr Kotz holding his penis and moving it in and out for about five minutes. CB testified that after hearing a noise Mr Kotz shoved her off and ran out of the room. She recalled that her mother was home on this occasion, but there was no one else present in the room when it happened. It was the last time Mr Kotz touched her.
I interpolate here that on the face of CB’s descriptions of the above incidents, it is most improbable that she has mistaken some innocent touching by Mr Kotz with the sexual conduct which she has described. It is equally improbable that her youth and the passage of time has so distorted her recollection of innocent behaviour that she now believes it to have been criminal. The descriptions are a detailed and realistic account of progressively increasing sexual conduct, which CB was able to place in distinct geographical, chronological and familial settings. Whether or not the inconsistencies were indicative of fabrication, they were not indicative of a confusion of innocent conduct with sexual offending. In this respect, it is important that Mr Kotz denied massaging CB in any way even remotely similar to what she described. Mr Kotz testified only that he may have ‘rubbed’ CB’s shoulders if she had wanted him to. He denied that he massaged CB at all at Stonehut.
After ‘the worst incident’ in Hewett, CB recounted that for a short while Mr Kotz did not even attempt any sexual contact. Later, he would enter her room but CB would roll and move around to deter him, whereas on the previous occasions, she had not tried to fend him off.
Mr Kotz gave evidence and denied all of CB’s allegations of sexual offending.
Offending against AM
AM testified that on the first occasion she recalled Mr Kotz entering CB’s bedroom at Hewett, and he sat on top of AM with his legs on either side of her. AM was laying on her belly. Mr Kotz massaged her for ‘a good five minutes’ from her shoulders to around her coccyx bone or ‘bum cheeks’ over the top of her clothing. She could feel ‘a bulge from his private parts’ near her coccyx bone. This formed the charged conduct in count 5. She cannot remember if Mr Kotz also touched CB on this occasion.
AM testified that the same thing happened on the other occasions Mr Kotz entered CB’s bedroom when AM was there. Each time, she was laying flat on her belly. Sometimes, Mr Kotz touched her down to her thighs and feet as well as touched her under her clothing. Mr Kotz did not sit still on top of AM during the massages and made thrusting movements. Mr Kotz usually massaged her before massaging CB. AM testified that CB was awake every time Mr Kotz massaged her in CB’s bedroom.
It is important to note, for the purposes of the complaints which rely on inconsistencies between the descriptions given by CB and AM of the way in which Mr Kotz massaged them, that CB was neither examined nor cross-examined about any occasions on which Mr Kotz massaged both CB and AM whilst they were both present.
CB gave evidence that it was not unusual for her and AM to watch television in CB’s mother’s bedroom at Hewett. AM testified that, in relation to count 6, on one occasion at night, she and Mr Kotz ate popcorn in CB’s mother’s bedroom. AM testified that she had never heard of a rule that food was not allowed in the bedroom. However, in cross-examination SB agreed that she had such a rule. Mr Kotz also testified that there was such a rule. AM testified that CB was not in the room on that occasion. AM was then aged about 11 or 12. She and Mr Kotz were talking when he started massaging her back with one hand. He then slid his hand into her pants and rubbed her bottom between her anus and her vagina. AM testified that at the same time Mr Kotz said to her, ‘You like that, don’t you?’ AM testified that she then left the room because she was unsettled by his behaviour.
As was the case with CB, there is no apparent scope on the face of AM’s testimony for mistake, imagination or contaminated recollection to account for her evidence as to count 6 if it were honestly given. I acknowledge the scope for mistake as to feeling Mr Kotz’s genitals when the massage, the subject of count 5, was given. However, Mr Kotz denied ever massaging AM.
AM agreed in cross-examination that she had never mentioned to the police or a prosecutor that Mr Kotz moved his finger near her anus prior to giving evidence at trial.
CB testified that she saw Mr Kotz massage AM like he massaged her. CB had walked in to the lounge room where Mr Kotz was laying on his back on the futon couch, while AM was on top of him and he massaged her back from her shoulders to the top of her bottom. She described AM’s head as resting on Mr Kotz’s chest/shoulder area and AM’s legs on either side of his body. CB only observed this for a few seconds before continuing on with what she had been doing. On other occasions she saw Mr Kotz rubbing AM’s feet and legs in the lounge room. On CB’s account, this happened every time AM and Mr Kotz were around each other.
CB gave evidence that Mr Kotz would lift her up by placing his hands under her bottom. Her arms would be around Mr Kotz’s neck and her legs on either side of his hips. CB said that she saw Mr Kotz lift up AM in the same way. It was his way of greeting her and AM. AM’s testimony was that Mr Kotz lifted her up but not often and that she does not remember seeing him pick up CB. AM testified that the way he picked her up involved his hand going under her bottom and vagina. Mr Kotz denied ever lifting AM up but agreed that he had lifted CB up.
SB denied at first having an arrangement that AB could only stay over when SB was at home. SB later said she did not recall such an arrangement. When asked whether it might have been the case she responded, ‘I would be guessing, so I would have to say I don’t know’.
Evidence of sexual interest
Both complainants testified that Mr Kotz called them ‘sexy’. AM testified that Mr Kotz commented on her appearance and asked about boyfriends. CB was also asked by Mr Kotz if she had a boyfriend.
AM testified that the bundle of photographs taken at SB’s house, and received as Exhibit P9, were taken when she was 12 years old. Exhibit P9 comprised of 25 photos of JB, AM and TM in flirtatious poses. AM testified that Mr Kotz took the photos and directed the girls how to pose. Mr Kotz denied that he told the girls how to pose. AM testified that SB was not at home when the photographs of her were taken.
The defence tendered a bundle of photographs of the girls, Exhibit D10, through the cross‑examination of AM. CB only appeared in three of the photographs in Exhibit D10 and her poses in those photographs were not flirtatious. AM testified that Mr Kotz took most of them. Mr Kotz denied taking all of the photographs but agreed he may have taken some of them. That concession is significant because TM later gave evidence that she had taken the photographs of CB, JB and AM which were received as Exhibit D10. TM denied that Mr Kotz took the flirtatious photographs in Exhibit P9 because ‘there was no way on this planet [she] would pose like that in front of [her] dad ever’. The Judge found that Mr Kotz did take the photographs depicting AM and JB as follows:[4]
[250]With regard to the photographs in P9 of AM posing alone, TM said they were taken by herself or JB. In my view TM’s reaction to the suggestion that she would not have posed in front of her father as she is shown in the photographs was unusually defensive. In fact, the photographs of her are quite restrained. She is almost always depicted as part of a group of two or three. In none of them is she depicted as posing on her own in the manner of JB or AM in P9. I find that the accused himself took the posed photographs of JB and AM in P9.
[4] [2019] SADC 3 at [250].
The finding is significant. It is an adverse finding against the credit of TM and a finding in favour of both the credibility and reliability of AM. That finding is not directly challenged on this appeal.
The complaint evidence
AM was the first person to whom CB disclosed Mr Kotz’s conduct. Similarly, AM first talked to CB about Mr Kotz touching her.
CB gave evidence that she believed she was 11 years old when she spoke to AM about the incidents. She did so at AM’s house when they were sitting on AM’s bunk bed. She told AM how Mr Kotz massaged her and pulled her on top of him, putting pressure on her bottom. She could not recall whether she told AM where, or how often, the incidents took place. She confided to AM before ‘the worst incident’ in Hewett and the offending at Mr Kotz’s house. She recalled AM responding that on more than one occasion, Mr Kotz had done the same to AM, massaging her back, pulling her on top of him and applying pressure to her bottom. CB could not recall if AM told her where the offending occurred.
AM testified that they had a ‘full-on talk about it’ at her house in her bedroom. She remembered CB telling her that Mr Kotz had ‘slid it in’. AM could not remember if CB had told her anything else during that conversation. AM told CB that Mr Kotz had touched her bottom. They then discussed the massages AM received. Contrary to CB’s testimony, AM’s memory was that the conversation took place when they were between 14 and 15 years old.
Cross-admissibility
The Judge found the evidence of Mr Kotz’s conduct on all counts cross‑admissible as to his conduct on all other counts:[5]
[169]I find that the evidence of each complainant is cross-admissible where each claims to have seen the accused do the same thing to the other. In this case that evidence relates to the uncharged acts tending to demonstrate a sexual interest in the other, that is, the sexualised picking them up and the sexualised conversation. Otherwise the evidence of the two complainants is to be considered separately.
Grounds 1, 3, 4 and 5 – errors in the assessment of credibility and reliability, and the application of the onus of proof
[5] [2019] SADC 3 at [169].
The submission of Mr Kotz is that the Judge failed to address and identify as the issue whether the accounts of CB and AM were reliable, even though they had ‘endeavoured to tell the truth’.[6] It is submitted that the Judge only addressed the question of reliability in his concluding paragraph:[7]
[262]I am satisfied that each of the complainants are truthful and reliable in their evidence of the charged offences. I reject the accused’s denials.
[6] R v Thompson [2018] SASCFC 104 at [137] (Peek J).
[7] [2019] SADC 3 at [262]. See also [265] of the Judge’s reasons reproduced below at [86].
Mr Kotz submits that the Judge failed to consider the reliability of the evidence of CB and AM in his earlier discussion of the evidence. It is necessary to refer to the paragraphs on which Mr Kotz relies.
In paragraph [121], after referring to ‘an apparent inconsistency’ between CB and AM on how Mr Kotz positioned himself when massaging them in CB’s bedroom,[8] the Judge considered the possibility of collusion between CB and AM:[9]
[121]While that may raise criticisms of the credit of both witnesses it makes it unlikely that the two have got their heads together to concoct false stories. CB does not purport to support AM’s account of the bedroom massaging at all. AM’s evidence purports only slightly to support CB in that she says she saw CB massaged on at least two or three occasions.
[8] [2019] SADC 3 at [120].
[9] [2019] SADC 3 at [121].
The Judge later summarised alleged inconsistencies between the evidence of CB and AM about being massaged in the lounge room and again concluded that they tended to negate collusion:[10]
[126]The state of evidence on the topic of the accused massaging either complainant in the lounge room is this:-
· Neither witness says that the accused massaged them in the lounge room. But in each case there is a qualification to that fact. CB says she is not sure if the accused massaged her anywhere other than in the Hewett bedroom and AM’s attention was never drawn to whether the accused massaged her in the lounge.
· Notwithstanding the above, each says that they saw the accused massage the other in the lounge room. In the case of CB witnessing AM, apparently on one occasion and in the case of AM witnessing CB, apparently on more than one occasion.
· As to the manner in which each says she saw the other being massaged in the lounge room by the accused, CB says she saw AM being massaged with AM on top, a manner not attested to by AM. AM says she saw CB being massaged in two ways, both of which CB said the accused did to her but she does not say it happened in the lounge room. There is some confusion in the evidence AM gives on this topic.
· While it cannot be said that either witness gained support from the other on this topic I do not accept that the resulting inconsistencies are fatal to the credit of either witness. The inconsistencies tend to negate collusion between the two of them.
(Footnote omitted)
[10] [2019] SADC 3 at [126].
The Judge confined his consideration of other criticisms of CB’s evidence to the issue of her credit in the following paragraphs:[11]
[136]In my view these inconsistencies are not such as to damage CB’s credit, at least not taken alone. They are the sorts of inconsistencies one might expect from a witness who was just short of 12 at the time and was 19 when giving her statement in 2014.
…
[155]In my view the three types of criticism of the evidence on this topic, that is, the recent invention, the inconsistencies and the improbabilities do not substantially undermine CB’s credit. They are the sorts of frailties in evidence given by witnesses who were children at the time, and who are giving evidence years later.
…
[158]It is to be noted that it was never put to CB in very thorough cross-examination that she had ever denied penetration in the several proofings and witness statements she had given. She gave her first statement to the police on the 17th of November 2014, then three subsequent statements on the 12th of February 2016, the 26th of June 2017 and 3rd of August 2018, each following a proofing session with the DPP. When the inconsistent statement to the social worker was put to CB she said she did not remember saying that but if she did it was not correct. In the circumstances I do not find that the inconsistency adversely affects her credibility.
…
[185]I make the further observation that the different accounts of the complaints suggest that they have not colluded on that topic.
[11] [2019] SADC 3 at [136], [155], [158].
I accept that the Judge’s evaluation of CB’s testimony in those paragraphs was limited to CB’s credit. However, in the context of the issues joined at trial, for the reasons given in my summary of the evidence, the inconsistencies are not such as to cast doubt on the reliability of CB’s account and her credibility is accepted.
In any event, the explanation for the Judge limiting his subsequent discussion to the issue of CB’s credibility in those later paragraphs is to be found in paragraph [85] in which his Honour dealt with, and rejected, the possibility of mistake or imagination:[12]
[85]I acknowledge that the manner in which a witness gives evidence should not be given disproportionate weight (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) & Ors (1999) 160 ALR 588 at [617] per Kirby J). Drawing conclusions about a witness’ credit from simple demeanour is of very limited weight. By use of the word ‘manner’ I mean to incorporate a combination of how CB gave her evidence and what she said. Her ready acceptance of propositions put to her in cross-examination which she would be likely to have understood adversely affected her credit suggests candour. The manner of the answers and the content suggests candour. The acknowledgement of uncertainty or lack of memory suggests an attempt to give accurate and truthful answers, both in the manner and content of the answers. The firm rejection of propositions never appeared unduly defensive. The manner and content of these sorts of answers suggested a firm confidence. I accept that witnesses can lie and be unreliable with apparent confidence. Witnesses can come to believe things which are not true and can for that reason appear confident in the witness box. That said, I do not accept that CB is mistaken or deluded about the offending she speaks of. The alleged course of conduct extends over four years and is too detailed in my view to be the subject of mistake or delusion.
[12] [2019] SADC 3 at [85].
In that paragraph, the Judge expressly rejects the possibility, which, as I have observed, is, on the face of the evidence, unlikely that the incidents related by CB were honestly mistaken or imagined. The Judge does so because of both the manner and content of her evidence. In this respect, it is important that Mr Kotz gave evidence that the only massages he gave to the children of SB were that he ‘may have rubbed their shoulders if they wanted to’. He denied that he massaged CB other than on her shoulders. Mr Kotz also denied acting sexually inappropriately towards CB on the night of the Christina Aguilera concert. He denied ever massaging CB whilst at the shack at Stonehut.
The attack on CB’s testimony at trial was under the rubric of reliability; in truth it was an attack based on her lack of credibility. Mr Kotz’s counsel addressed the Judge as follows:
Your Honour knows from what was said arguendo, the defence obviously can't establish a motive for this allegation but we do point to the circumstances in which the complainant was at that time. She has clearly been spoken to, as the agreed facts show, about the topic of sexual abuse on more than one occasion, including in relation to her father. She is denying that it's anybody and then she has no home, no food and she has nowhere to go and then there is the allegation made against my client. Her services were about to be cut off.
That's material that can go into the overall case the defence puts as to whether or not there is a reasonable doubt. We don't suggest on its own it has a level of significance except it is in the context of this contact with the police where she denied she had ever been sexually abused.
…
So at the end of the day, in our respectful submission the totality of that material, when one looks at the particular offences coupled with the overall challenges to the reliability of each of the complainants in the face of my client's evidence on oath, the evidence of his daughter, for example, his diary, for example, the agreed date of the holidays, for example, the accepted statements made by [CB] in the past and plainly, [AM] also had contact with the police in 2009, at a time when it coincides, 2009 to 2011, with her apparently hearing a report of a sexual offence by [CB] and we submit that the contact with the police that [AM] had, as your Honour has heard, again undermines the reliability of her account that there was a mutual exchange of complaints when she was 14 or 15 and in our respectful submission the denial by [CB] in 2010 that anyone had abused her is extremely significant bearing in mind the amount of support and amount of contact she had with the police over the preceding weeks and months.
In our respectful submission, in regard to the evidence adduced by the defence and having regard to the specific inconsistencies, conflicts and other matters going to reliability of each of the complainants, and obviously the issue of forensic disadvantage and character evidence, we submit that your Honour should be left with a reasonable doubt.
The Judge found that AM was an honest witness:[13]
[168]While AM’s evidence is briefer than that of CB, I find her to be an honest witness. In my view, she was doing her best to tell the truth. She admitted inconsistencies that were put to her. I do not think she sought to exaggerate what happened to her or to exaggerate what she says she saw the accused do to CB.
[13] [2019] SADC 3 at [168].
The Judge concluded:[14]
[264]In respect of AM, I am satisfied beyond reasonable doubt that the accused committed the charged acts comprising counts 5 and 6 and that those offences were committed as part of a slightly longer course of conduct attested to by AM.
[14] [2019] SADC 3 at [264].
I acknowledge that the Judge did not expressly deal with AM’s reliability. However, the defence challenge to the evidence of AM was not materially different to the challenge of CB’s evidence. The possibility of confusion of innocent conduct for sexual offending, the risk of imagination and the dangers of faulty recollection as explanations for AM’s evidence must be rejected for the same reasons. They were expressly excluded in the case of CB. The Judge’s reasons in paragraph [85], even though limited to CB, in the context of the forensic issues, adequately explains his conclusion in paragraphs [262] and [265] that AM was also reliable.
Importantly, as to the alleged offending against AM, Mr Kotz denied that he ever entered the bedroom of CB whilst AM was there. He denied that he had ever eaten popcorn in SB’s bed. He denied ever acting sexually inappropriately towards AM on SB’s bed. He denied ever massaging AM. He denied that there was ever an occasion at Hewett when he stayed over when both CB and AM were left in his care. He denied that he ever picked AM up. Mr Kotz’s defence denied any scope for mistake or imagination affecting the reliability of AM’s testimony.
Mr Kotz’s counsel did not put any argument as to how or why AM may have mistaken innocent conduct for sexual offending, or may have mistakenly recalled what had happened.
I would dismiss the appeal on ground 1.
Mr Kotz complains under ground 3 of a number of paragraphs of the Judge’s reasons. The first is:[15]
[129]No one asked any questions about whether the younger brother was there that night. The significance of that is that if SB left ShB at the accused’s place it is more likely that she would also have left the younger brother there. Conversely if she made alternative babysitting arrangements for the younger brother she might also have made the same arrangements for ShB.
[15] [2019] SADC 3 at [129].
Mr Kotz complains that the Judge is there engaging in impermissible speculation. That complaint is not made out. In its proper context, the Judge is making no more than a passing observation on why it was difficult to evaluate the competing evidence as to whether CB’s younger sister, ShB, was with her in Mr Kotz’s home on the night of the Christina Aguilera concert.
Mr Kotz also repeats the complaint made in the first ground that the Judge limited his evaluation of the testimony of CB and AM to questions of credibility, ignoring reliability, by reference to paragraphs [136], [155] and [158]. Those complaints too must be dismissed for the reasons given in dismissing ground 1.
Under ground 4, Mr Kotz contends that the Judge was bound to explain why the following inconsistencies did not leave him with a doubt about the reliability of CB and AM:
·Conflicts between CB and AM as to when the massages occurred.
·CB’s statement that she was alone with Mr Kotz on the night of the Christina Aguilera concert, in contrast to SB’s evidence.
·CB’s evidence that every time Mr Kotz massaged her he pulled her on top of him, by contrast with AM’s evidence as to what happened on the night she stayed over in Hewett.
·CB’s evidence that she only saw Mr Kotz massage AM in the lounge room.
·CB’s statement in February 2010 that there was no penetration by Mr Kotz, in contrast to what she said at the trial.
Insofar as this complaint repeats the complaint in ground 1, it must be dismissed for the same reasons. Insofar as the complaint is that the Judge’s reasons were inadequate, it must be dismissed because the Judge expressly considered the inconsistencies on which Mr Kotz relied at trial.
On ground 5, Mr Kotz repeats the theme of ground 1, that the Judge did not address the issue of reliability, but by reference to the following paragraphs:[16]
[164]I have already discussed other inconsistencies between the evidence of CB and AM relating to the massages. I find that those inconsistencies are not such as to damage AM’s credit overall.
…
[166]The second criticism, is that AM said that during the massage in SB’s bedroom, the accused was rubbing her buttocks and he ‘made his way down to my…bum hole….’ In cross-examination, AM acknowledged that she might not have mentioned the ‘bum hole’ motion in any previous statements. I do not regard this inconsistency as damaging her credit.
…
[168]While AM’s evidence is briefer than that of CB, I find her to be an honest witness. In my view, she was doing her best to tell the truth. She admitted inconsistencies that were put to her. I do not think she sought to exaggerate what happened to her or to exaggerate what she says she saw the accused do to CB.
(Footnote omitted)
[16] [2019] SADC 3 at [164], [166], [168].
This ground must be dismissed for the reasons given on ground 1.
Ground 2 – failing to resolve inconsistencies
Mr Kotz complains that the Judge failed to properly analyse the inconsistencies within, and as between, the testimonies of the prosecution witnesses. The inconsistencies on which Mr Kotz primarily relied were inconsistencies as between the evidence of CB and AM over the way, and circumstances, in which Mr Kotz massaged, or otherwise, touched them.
The Judge observed that the significance of those inconsistencies was limited because:[17]
[94]… there is only a small overlap in time between the offending against the two complainants. Not all of the offending during the time which overlapped is alleged to have taken place when both of them were present. When regard is had to inconsistencies in their evidence, it has to be remembered that few of the allegations are said to be happening at the same time.
[17] [2019] SADC 3 at [94].
The Judge then summarised the inconsistencies:[18]
[96]These are the more significant inconsistencies between the two complainants about the massaging of CB:-
· CB says that she was asleep when the accused came into the bedroom to massage her.
· AM said that the accused would knock on the door just as they were about to go to sleep.
· CB says that when the accused massaged her at Hewett he would pull her on top of him (she was not sure whether AM was in the bedroom when that happened).
· AM said that the accused always sat on her when he massaged her, including when she was massaged in CB’s bedroom. The accused would massage her, then go over to CB and massage her.
· AM said that CB was always awake when she was being massaged and the accused massaged CB by sitting on her as he had done with AM.
(Footnotes omitted)
[18] [2019] SADC 3 at [96].
The Judge observed that the evidence of CB, which Mr Kotz’s counsel submitted was inconsistent with the testimony of AM, did not expressly address the occasions on which Mr Kotz came into the bedroom at Hewett when AM was there. In that respect, the Judge noted that when CB was expressly asked whether Mr Kotz had come into her bedroom on a night when AM was staying over, CB answered ‘I can’t exactly say, I’m not quite sure. I would assume yes’. CB was not expressly asked to describe what Mr Kotz had said or done on an occasion when he came into her room and massaged both AM and CB. After considering all the evidence which was said to be inconsistent, the Judge concluded:[19]
[111]So while there remains an inconsistency between the two witnesses on that topic I do not conclude that it significantly damages the credit of either CB or AM.
[19] [2019] SADC 3 at [111].
Mr Kotz also relied on inconsistencies between the accounts between AM and CB as to how Mr Kotz positioned himself when giving them massages. The Judge expressly discussed those inconsistencies.[20] However, again, the evidence of CB was never directed to massaging on an occasion when AM was present.
[20] [2019] SADC 3 at [116]-[120].
The Judge also expressly considered what were submitted to be inconsistencies in the evidence of CB and AM on how Mr Kotz massaged them in the lounge room in paragraph [126] of his reasons, which I have set out above.
Even if it were accepted that the evidence of CB and AM was directed to the same occasion, the inconsistencies on which Mr Kotz relies are not such as to preclude the Judge accepting both the credibility and reliability of their testimony, having regard to his Honour’s advantage in hearing it.
I have explained in my reasons for dismissing grounds 1, 3, 4 and 5 why the Judge did not err in expressly referring, in those parts of his reasons, only to the credibility of CB and AM. The inconsistencies do not raise any possibility that innocent conduct might have been confused for the sexual touching or that the complainants’ recollections were frail or contaminated.
I would dismiss the appeal on this ground.
Grounds 6 and 7 – failure to properly scrutinise and reject the evidence of TM which was a necessary precondition to conviction
These grounds arise out of TM’s evidence that she was with CB at Mr Kotz’s house on the night of the Christina Aguilera concert. The Judge dealt with that incident as follows:[21]
[139]The accused and his daughter both say she was there. I deal first with TM’s evidence. As might be expected TM’s evidence on this topic was brief. She said she was home with her father that night. She stayed up watching TV with CB until SB and JB came home. Her father was on his computer in the other room during the evening.
[140]In cross-examination she claimed to be able to clearly remember the occasion. That itself is somewhat surprising given the relatively unremarkable nature of the occasion so many years ago. That is so even if, as TM says, it was rare for CB and her siblings to stay overnight at the accused’s house. TM was pressed about what she could remember about the evening. She did not remember if the younger sister ShB was there (CB does not believe she was there but both mother and the accused say that she was).
[141]Quite unsurprisingly TM could not remember what she and CB watched on TV, which concert SB and JB had gone to, when they got home or where CB slept that night. She denied discussing the evening with her father.
…
[151]The accused was not questioned at all about the diary entries so I would not draw an adverse inference against him on this topic. All I do observe is that the document itself is not, in the circumstances determinative of TM staying with her father on the night of the concert. I add that TM’s own evidence of her staying is not highly probative on this topic given the difficulties inherent in her claim to be able to clearly remember the occasion. That said, that very difficulty is a forensic disadvantage suffered by the accused which I bear in mind. If a timely complaint had been made TM’s recollections would be expected to be more easily relied upon.
(Footnotes omitted)
[21] [2019] SADC 3 at [139]-[141], [151].
The Judge did not finally determine the conflicting evidence which he discussed in those paragraphs. However, at the conclusion of his Honour’s reasons, he explained that he found CB to be truthful and reliable. His Honour also made the following ultimate finding as to Mr Kotz’s offending:[22]
[263]In respect of CB, I am satisfied beyond reasonable doubt that the accused maintained an unlawful sexual relationship with her for about four years from when she was about eight until she was about 12. I find that the accused committed each of the particularised behaviours in count 1. I find that he committed the acts in particulars (a) to (c) on multiple occasions and particulars (d) to (f) on one occasion each. I do not therefore need to consider the alternative charges of counts 2, 3 and 4.
…
[265]I come to these conclusions on the basis that I accept the truthfulness and reliability of both complainants as to both the charged and uncharged acts.
[266]I find that the accused had a sexual interest in CB, evidenced by his beginning to massage her in an apparently innocuous way when she was about eight. When he met no resistance, and no complaint was made, his massaging of her became more overtly sexual, culminating in the single act of unlawful sexual intercourse described by CB as the ‘worst incident.’ I find that after that, CB started resisting the accused and he stopped offending against her. The offending stopped some time, perhaps shortly before, the end of the relationship between the accused and SB. I find that the accused’s massaging of CB occurred in the context of his normalising massage in the household in the way that I have described. I find that the accused’s sexual interest was further demonstrated by his sexualised picking her up and engaging in sexualised talk with her.
[22] [2019] SADC 3 at [263], [265]-[266].
It follows from the Judge’s finding as to the particulars (d) and (e) that the Judge accepted the evidence of CB as to what had occurred on the night of the Christina Aguilera concert, and was satisfied beyond reasonable doubt that the conduct she described occurred. The Judge has reached that conclusion on the totality of the evidence. It was not necessary for the Judge to come to a final conclusion as to whether TM may have been at her father’s home on the night, and if she were, whether she was truthful and reliable about what had occurred. The Judge was entitled to find, as he did, that, notwithstanding the testimony of TM, he was satisfied beyond reasonable doubt on the whole of the evidence that Mr Kotz offended as CB described, whatever the explanation may be for TM’s account of that night.
Ground 8 – misapplication of the burden of proof and engaging in choice reasoning
Mr Kotz complains under this ground of paragraph [209] of the Judge’s reasons. I set out that paragraph in its context:[23]
[207]The defence points to this ultimatum as providing CB with a motive to lie about the accused. Plainly, the accused has no obligation to establish a motive for her to lie. Even if I were to reject the suggested motive to lie, the absence of a motive does not assist the prosecution. It is neutral. The burden of proof remains throughout on the prosecution.
[208]I make findings about those criticisms. I do not regard CB’s failure to report her own sexual abuse when she was being spoken to by police on other topics as damaging her credit. That finding refers to the police interviews on the 22nd of November 2009 and the 19th of January 2010. I make the same finding when, in the context of being reluctant to speak to police on the 5th of February 2010, CB denied being touched inappropriately.
[209]While I recognise the force of the defence criticism of CB’s changed account on the 11th of February and the circumstances in which that change occurred, the circumstances do not cause me to disbelieve CB’s present account of abuse. Just because someone has a motive to lie does not mean that they are lying. There may be many legitimate reasons why someone in CB’s position might make or refrain from making a report of sexual offending. It is plain that in late 2009 and early 2010, CB, then 14, was in stressful circumstances.
[210]I am reinforced in my view about CB’s undamaged credit on this topic by my finding that her account to the authorities on the 5th of February 2010 was no recent invention. She had already confided in AM. I think it is likely she made her complaint to AM some years before when she was aged 11. In these circumstances, I do not regard CB’s credit as damaged by these reports to authorities and failures to report.
[23] [2019] SADC 3 at [207]-[210].
The phrase ‘do not cause me to disbelieve CB’s present account of abuse’ in paragraph [209] does not demonstrate a reversal of the onus of proof. The Judge is there not indicating that his starting point was an acceptance of CB’s credit. Rather, the Judge is explaining in paragraph [209] why he accepted CB’s account of abuse, notwithstanding her previous denial that any abuse had occurred.
Unreasonable verdict
Whether or not the inconsistencies left a doubt as to the commission of the offences required an evaluation of the testimony of CB and AM respectively. The number, nature and degree of the inconsistencies relied on by Mr Kotz were not such as to preclude the Judge from making a finding on the testimony of the complainants that the offences were proved beyond reasonable doubt. Moreover, there was some supporting evidence of their testimonial accounts. There is no reason for this Court to doubt that the charged offences were committed.
Conclusion
I would grant permission to appeal against conviction on grounds 2, 6, 7 and 8, but dismiss the appeal on those grounds. I also dismiss the appeal on grounds 1, 3, 4 and 5, and the unreasonable verdict ground.
STANLEY J: I agree with the reasons of the Chief Justice, and with the orders he has proposed.
DOYLE J: I agree with the reasons of the Chief Justice, and with the orders he has proposed.
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