Nobbs v Heath
[2001] NFSC 1
•4 MAY 2001
SUPREME COURT OF NORFOLK ISLAND
NOBBS v HEATH [2001] NFSC 1
CRIMINAL LAW – Sexual offences – Indecent assault – Commission of act of indecency on child 10 to 16 years in age – Appeal from convictions on six charges by magistrate at summary trial – Statutory provisions regarding complaint and corroboration – Need for caution in respect of long delayed trials and child evidence – Concept of indecency – Power to amend information during course of appeal – Discussion of evidence relating to subject charges – Appeal upheld in respect of two charges but otherwise dismissed.
Court of Petty Sessions Ordinance 1960 (NI) ss 42, 234
Crimes Act 1900 (NSW) s 76
Criminal Law Amendment Act 1963 (NI) ss 93J, 93K
Evidence Ordinance 1960 (NI) ss 43ZK, 43ZL, 43ZOSTEPHEN ENOCH NOBBS v RACHEL HEATH
SCC 1 of 2001WILCOX J
NORFOLK ISLAND
4 MAY 2001
IN THE SUPREME COURT
OF NORFOLK ISLAND
SCC 1 OF 2001
BETWEEN:
STEPHEN ENOCH NOBBS
APPELLANTAND:
RACHEL HEATH
RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
4 MAY 2001
WHERE MADE:
NORFOLK ISLAND
THE COURT ORDERS THAT:
1.The appeal be allowed to the extent that the convictions and orders in respect of charges CC15/2000 and CC19/2000 be set aside.
2.In lieu of these convictions and orders it be ordered that charges CC15/2000 and CC19/2000 be dismissed.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SCC 1 OF 2001
BETWEEN:
STEPHEN ENOCH NOBBS
APPELLANTAND:
RACHEL HEATH
RESPONDENT
JUDGE:
WILCOX J
DATE:
4 MAY 2001
PLACE:
NORFOLK ISLAND
REASONS FOR JUDGMENT
WILCOX J:
This matter is an appeal by Stephen Enoch Nobbs against his conviction in the Norfolk Island Court of Petty Sessions, in respect of six charges. The convictions were entered by Chief Magistrate Ron Cahill on 31 August 2000. On the same day, Mr Cahill dismissed a seventh charge. No issue arises for this Court in respect of that charge.
Mr Cahill published his reasons for decision on 13 November 2000. On 19 January 2001 he ordered that:
“The Defendant is convicted and in lieu of a sentence of 12 months imprisonment, concurrent, the Court Orders that the Defendant complete 48 detention periods at the Detention Centre and the Court further Orders:
(a)The defendant report to an officer at the detention centre situated at New Cascade Road, Norfolk Island, at 8.00 pm on 27 January, 2001.
(b)That the defendant notify an officer at the detention centre within 48 hours of being charged with an offence in Norfolk Island or elsewhere, while the order is in force.
(c)That the defendant not commit an offence punishable by imprisonment, while the order is in force.
(d)That the defendant notify an officer at the detention centre of any change in his or her address, while the order is in force, within 48 hours after the change.
(e)That, while the order is in force, the offender obey all lawful instructions and directions of the Director or an officer.
On the application of the appellant, on 1 February 2001, I suspended until further order, the operation of the magistrate’s order.
The charges
The six charges found proved were as follows:
(i)That he, upon Norfolk Island, between the 1st of January 1980 and the 8th of November 1981, did indecently assault Gaelene Wendy Christian, this being an offence contrary to section 76 of the Crimes Act 1900 and at the time of the alleged offence, Gaelene Wendy Christian was a female under the age of 16 years. CC10/2000
(ii)That he, upon Norfolk Island, between 1st of January 1980 and the 8th of November 1981, did indecently assault Gaelene Wendy Christian, this being an offence contrary to section 76 of the Crimes Act 1900 and at the time of the alleged offence, Gaelene Wendy Christian was a female under the age of 16 years. CC11/2000
(iii)That he, upon Norfolk Island between the 1st of January 1994 and the 21st day of November 1997, did commit an act of indecency upon Leah Emma Christian, that at the time of the alleged offence Leah Emma Christian was a person of, or above the age of ten years but under the age of sixteen years, this being an offence contrary to section 93K(2) of the Crimes Act 1900. CC13/2000
(iv)That he, upon Norfolk Island between the 1st of June 1998 and the 31st day of December 1998, did commit an act of indecency upon Leah Emma Christian, that at the time of the alleged offence Leah Emma Christian was a person of, or above the age of ten years but under the age of sixteen years, this being an offence contrary to section 93K(2) of the Crimes Act 1900. CC15/2000
(v)That he, upon Norfolk Island, between the 1st of January 1994, and the 21st November 1997, did commit an act of indecency upon Leah Emma Christian without her consent, this being an offence contrary to section 93J(1) of the Crimes Act 1900. CC19/2000
(vi)That he, upon Norfolk Island, on or about the 21st of November 1996, did commit an act of indecency upon Leah Emma Christian, without her consent, this being an offence contrary to section 93J(1) of the Crimes Act 1900. CC20/2000
During the course of the appeal, counsel for the respondent, Mr F J Purnell SC, sought leave to amend charge (iv) so as to substitute, for the word “June”, the word “May”. I was satisfied I had power to allow that amendment. Under s 234 of the Court of Petty Sessions Ordinance 1960 (NI) this Court stands in the same position as the Court of Petty Sessions in relation to amendments: see, generally, Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, and, more particularly, Re Waterford (1978) 22 ACTR 25 at 28 and Bishop, Criminal Procedure (2nd ed 1998) at 290. The Court of Petty Sessions has power to allow such an amendment to the information or summary “as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined”: see s 42(1) of the Court of Petty Sessions Ordinance. This power is subject to subs (2) of that section which prohibits the Court making an amendment “where it considers that the amendment cannot be made without injustice to the defendant”. I was satisfied there would be no injustice in this case and there was no discretionary reason for refusing the proposed amendment. Accordingly, I granted leave to amend. Charge (iv) should be read as referring to 1 May 1998, rather than 1 June 1998.
Charges (i) and (ii) relate to Gaelene Wendy Christian. She is the niece of the appellant, being the daughter of his brother Roy Nobbs. Gaelene Christian was born on 1 March 1968. At the time of the offences charged she was, therefore, aged between 11 and 13 years.
The remaining four charges concern Leah Emma Christian, who is the daughter of the appellant’s first cousin, Enoch Christian. Leah was born on 21 November 1985. Accordingly, the charges refer to periods when she was aged between eight and 13 years.
A number of the witnesses in this case share surnames. I hope it will not be considered disrespectful if, for the sake of clarity, I refer to witnesses by their given names, either alone or in conjunction with their surnames.
The proceedings
The Criminal Law Ordinance 1960 (NI) applies to Norfolk Island the New South Wales Crimes Act 1900, as amended before 16 December 1936, subject to certain changes set out in the Schedule to the Ordinance. Section 76 of the New South Wales Crimes Act, under which charges (i) and (ii) are brought, is in these terms:
“76. Whosoever assaults any female and, at the time of, or immediately before or after such assault, commits any act of indecency upon or in the presence of such female, shall be liable to imprisonment for three years, or, if the female be under the age of sixteen years, to imprisonment for five years.”
The Norfolk Island Criminal Law Amendment Act 1993 adds s 93J(1) to the Schedule to the Criminal Law Ordinance. That subsection is in these terms:
“A person who commits an act of indecency upon, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”
A new s 93K(2) was added at the same time:
“A person who commits an act of indecency upon, or in the presence of, another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.”
The parties agreed that the subject charges should be dealt with summarily – that is, without a jury. Hence the trial before the Chief Magistrate.
Section 234 of the Court of Petty Sessions Ordinance relates to appeals to this Court from decisions of the Court of Petty Sessions. Section 234(1) provides the appeal shall be in the nature of a rehearing. Subsection (2) permits the depositions of the Court of Petty Sessions to be read as evidence at the hearing of the appeal only if one of three conditions is satisfied: the other party consents; a witness is dead or unavailable or “the Supreme Court for any special reason so directs”. None of those conditions was satisfied in this case. Determination of contested issues of fact on the basis of a transcript of evidence is obviously unsatisfactory. As I understand the position, it was for that reason that the parties did not agree to take that course.
Some documents (sketch plans and photographs) tendered at the trial were admitted into evidence on the appeal. Also, the transcript of the evidence given to the magistrate by Leah Christian concerning charges (iii), (iv), (v) and (vi) above was admitted into evidence (over the objection of counsel for the appellant, Mr B Woinarski QC) but only on the basis that the transcript provided the context of answers given by Leah to questions put in cross-examination at this hearing about the evidence she had given before the magistrate. Specifically, the transcript was not to be treated as evidence of the truth of the statements it records.
The transcript of the evidence given before the magistrate by Joan Margaret Nobbs, wife of the appellant, was tendered and admitted (by consent) on a different basis. It was agreed it should be treated as evidence of the truth of the statements it records, in the same way as if Mrs Nobbs had been called, and had given that evidence, at the hearing of the appeal.
Complaint and corroboration
It is necessary to note some of the provisions of Part IIIE of the Evidence Ordinance 1960 (NI). That Part was inserted into the Ordinance by the Evidence Amendment Act 1993 (NI), and was itself amended by the Evidence Amendment No 2 Act 1993 (NI).
Section 43ZJ of the Evidence Ordinance makes Part IIIE applicable to proceedings in both this Court and the Court of Petty Sessions.
Section 43ZK contains some definitions. The definition of “prescribed sexual offence” includes an offence against a provision of Part IIIA of the Crimes Act; that is, “the Crimes Act, 1900 of the State of New South Wales in its application to the Territory”. Sections 93J and 93K of the Crimes Act 1900 are contained in Part IIIA of that Act. Consequently, the subject proceedings are “prescribed sexual offence proceedings” within the definition of that term in s 43ZK viz:
“ ‘prescribed sexual offence proceedings’ means proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.”
Section 43ZL(1) of the Ordinance abolishes the common law rule permitting evidence of complaint to be admitted in proceedings for a sexual offence. It also provides “no such evidence shall be admitted in any prescribed sexual offence proceedings”. However, the subsection does not affect “the admissibility of evidence in relation to a complaint, or the terms of a complaint, by the complainant in prescribed sexual offence proceedings where that evidence is otherwise admissible under any other rule of law or practice”.
Section 43ZO(1) provides:
“Any rule of law or practice requiring the corroboration of evidence or requiring the judge to give a warning to the jury in criminal proceedings to the effect that it is unsafe to convict a person on uncorroborated evidence is abolished in so far as the rule applies to or in relation to evidence given by the complainant in the trial of a person for a prescribed sexual offence.”
Subsection (2) saves the right of the judge, in prescribed sexual conduct proceedings, to comment on any evidence that may be unreliable. But the judge is prohibited from warning the jury to the effect that it is unsafe to convict the accused person on the uncorroborated evidence of the complainant. Subsection (3) saves the previous practice, in respect of a warning on the basis referred to in subs (1), where the trial concerns a sexual offence alleged to have occurred before the commencement of the section (30 September 1993). It also preserves the old rule of law or practice that requires a judge, on the trial of any person, “to give the jury a warning to the effect that it is unsafe to convict a person on the uncorroborated sworn evidence of a child”.
Charges (i) and (ii), listed in para 4 above, concern offences alleged to have been committed in the period 1980-1981, before the commencement of s 43ZO of the Evidence Ordinance. Accordingly, if the references to a warning in that section apply to a trial without a jury, the old rule about warnings would be relevant to those two charges; the trial magistrate or trial judge would need to administer a self-warning.
Having regard to the specific reference to a jury, it is debatable whether the references in s 43ZO to warnings apply to a trial conducted without a jury. However, the desirability in sexual cases of confirmatory evidence, whether or not amounting to corroboration, is obvious. Although victims of sexual offences are entitled to the full protection of the law, courts must not lose sight of the fact that a finding of sexual criminality may have serious, even devastating, consequences for an accused person.
In the case of the present charges, there are particular reasons for caution. Although the principal witness in respect of charges (i) and (ii), Gaelene Christian, is now an adult, at the time of the alleged offences she was a child. It is necessary to remember the point made by Higgins J in Aitchison v Director of Public Prosecutions (1996) 90 A Crim R 448 speaking of a case of indecent assault of children, sought to be prosecuted after a delay of 25 years, Higgins J said at 459-460:
“The recollections now deposed to by each of MD and EM were alleged to have arisen when they were young children. [Eight and six respectively] A trial reasonably contemporaneous to the alleged events would have enabled a tribunal of fact better to judge whether or not they were prone to fantasy, exaggeration or misinterpretation of adult behaviour. That opportunity is long since forever lost.
MD and EM are now able to describe their current recollections in adult terms. That would give a false air of veracity to their evidence which, if given more contemporaneously, it might not have carried.”
Furthermore, the alleged offences occurred some 20 years ago. I bear in mind the comment of McHugh J in Longman v The Queen (1989) 168 CLR 79 at 107:
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev.ed (1964), pp 269-270.”
In The Queen v Johnston (1998) 45 NSWLR 362 at 370 Spigelman CJ said:
“Cases involving alleged sexual assault are only one example of criminal proceedings in which the conduct of a defence can be adversely affected by delay. They are however cases which are characterised by a direct conflict of word against word, between a complainant and an accused. It is often the case that there will be no independent verification of the basic allegations of whether a sexual act occurred at all, and if it is conceded that it did occur, whether it was a consensual act. In order to resolve a direct conflict of oral testimony, the contextual details of the alleged conduct will often prove to be of determinative significance. However, it is precisely such contextual details which may be lost by reason of delay.”
Charges (iii) to (vi) concern Leah, who is still a child. As s 43ZO(3) of the Evidence Ordinance suggests, it has always been regarded as dangerous to convict a person of a serious offence on the uncorroborated evidence of a child. Even if s 43ZO(3) has no application to this case, it makes good sense for me to look for corroboration.
It is important, however, to note that s 43ZO(1) specifically abolishes a requirement of corroboration. Section 43ZO(1) was an element of an important package of reforms of the sexual offences law of Norfolk Island. The obvious intention of the legislature was to sweep away technicalities, including technical impediments to convictions in proper cases. This intention ought to be respected by the courts. While caution is necessary, it would be wrong to decline to convict an accused person simply because of an absence of corroboration, in the technical sense of that term.
The concept of indecency
All the present changes include the element of indecency. In his reasons for judgment, Chief Magistrate Cahill made some comments about the concept of indecency that Mr Purnell expressly supported and Mr Woinarski did not dispute. That being so, I am content to adopt those comments for the purposes of this appeal. The magistrate said:
“In Criminal Law and Practice (ACT) Volume 1 p. 228, (then) Magistrate Michael Ward discussing similar provisions to those in this case, surmised that: ‘Indecent’ bears its ordinary meaning, and need not be further explained to a jury except to say that it has a sexual overtone’ Nuzif (1987) 2 NZLR 122 at 127. Another way of looking at it, as was done by the House of Lords in Court (1989) AC 28 is to say that an act is indecent when ordinary people would so describe it, in the light of prevailing standards of morality, and in light of whether V has consented to the conduct in question.”
The evidence concerning charge (i): the “church incident”
(a)Gaelene Christian
Gaelene Christian (nee Nobbs) gave evidence that she has known the appellant all her life. There had been a close relationship between her family and his. When she was a child, her family lived at Rocky Point and the appellant lived in town. However, the appellant operated, and often attended, a sawmill that was located only 30 or 40 metres from Gaelene’s home. Gaelene also regularly saw the appellant at the local Seventh Day Adventist Church and at family gatherings. She estimated that, when she was 12 and 13, she saw the appellant at least once a week. It was the family practice to greet and farewell close relatives with a kiss and she followed this practice in relation to the appellant. She said: “We would often get into trouble if we didn’t kiss them hello”.
Gaelene had a motor bike accident on 8 November 1981. She said the two incidents involving herself and the appellant occurred prior to that date.
The first incident to which Gaelene Christian deposed was said to have occurred in the precincts of the Seventh Day Adventist Church after a Saturday service. Gaelene said she went to kiss the appellant hello “and I found myself backed against his stomach and he’s held on to my left hand, my left wrist, and grabbed me on the breast with his other hand”. She gave evidence that her breasts were then developed and that the appellant grabbed her right breast. He squeezed it but that did not hurt. She said that, as she tried to pull away from him, the appellant said: “That’s why God put them there”. Gaelene marked on a photograph the place where she alleged the incident occurred.
In the course of cross-examination, Gaelene was asked how she came to have her back towards the front of her uncle. She replied: “He grabbed me and turned me is how I recall”. She agreed she had told the police she did not exactly know how it had happened. She also agreed there were approximately 30 or 40 other people mingling around. She could not name any one particular person who was definitely there on that occasion.
(b)The appellant
The appellant said he had been a regular attender at the Seventh Day Adventist Church since about 1958. He confirmed Saturday service generally finishes about 12 noon and people mingle outside the church. He thought 40 to 50 people usually attended church. The appellant denied having touched Gaelene on the breast after church.
In cross-examination, the appellant admitted he cuddled Gaelene in the precincts of the Seventh Day Adventist Church, when she was 12 and when she was 13. He agreed he cuddled her at the location on the church property she had marked in the photograph; also that his method of cuddling her, most of the time, was to grab her from behind so that her back was into his stomach. He would then put his hands around her front, his hands being underneath her breasts. The appellant, however, denied he ever squeezed one of her breasts or said: “That’s why God put them there.”
(c)Joan Nobbs
The appellant’s wife, Joan Nobbs, said she regularly attended church with her husband. She used to sit with him during the service. They would usually go out together. In response to a question what she would do after the service, she replied:
“May talk out the front with the people or go and sit in the car ready for home”.
Mrs Nobbs said she never saw her husband take hold of Gaelene by her breast, at any stage, in the vicinity of the church. She said there would normally be 45 or 50 people in the vicinity of the church after the services.
Under cross-examination Mrs Nobbs gave this additional evidence:
“Q.When you were outside the Church on Saturday mornings, you and your husband would mingle with the other members of the Church, is that right?
A.Yes, we would speak to the members
Q.You would go off and do that separately, would you?
A.Yes
Q.That is, you would go and talk to some people in one area and he go talk to some other people in another area, is that right?
A.Who he wanted to talk to. He may have church duties to do. He may have church duties.
Mrs Nobbs said she did not see her husband cuddle, or even kiss, Gaelene outside the church. She never saw any physical contact between them after the church service. She agreed it was customary in the family for there to be “a kiss hello and goodbye”, and she volunteered that Gaelene was her husband’s favourite niece; but she said she never saw him kiss her goodbye.
The evidence concerning charge (ii): the “cattlestop incident”
(a)Gaelene Christian
Gaelene said that, shortly after the church incident, she saw the appellant at an area called the “cattle stop”. This area was located about 30 to 40 metres from her home at Rocky Point, on a different boundary to the sawmill. The “cattle stop” takes its name from a cattle grid located in the road leading to her home. Gaelene said that, when she was 12 and 13, she would often cross the “cattle stop” area. On the particular occasion of which she spoke, she was wearing a pink T-shirt and pink shorts; it was after school. She was going over to the shed to see her father. As she walked through the cattle stop area she saw the appellant and went over to kiss him hello “and he’s grabbed me in the same way. I had my back into his stomach and he’s grabbed both of my breasts.” Gaelene said he squeezed one breast in each hand. She was not wearing a bra but was not hurt. Nothing was said, but she tried to pull away. After a few seconds, she succeeded. As she was “trying to pull away”, her father drove past in a blue Isuzu truck. She caught his eye. He looked back at her with what she perceived as a “filthy” look, but she never had a conversation with her father about the matter.
Gaelene said thereafter she tried to avoid the appellant when she could, but this was not always possible because of the family relationship.
In cross-examination Gaelene denied the cattle stop incident occurred in the morning, or when she was dressed in school clothes. She said the appellant was doing something near the cattle stop but she could not tell what it was. She was alone; in particular, her brother Michael was not with her and she was not going to school. Gaelene said she could not exactly remember how it was that she finished with her back towards the appellant’s front.
Mr Woinarski put to Gaelene “that on no occasion has your uncle ever touched you on your breasts”. She responded: “He has touched me on two occasions on my breasts”.
(b)Roy Nobbs
Roy Nobbs, the father of Gaelene Christian and brother of the appellant, was called to give evidence in relation to this incident. He was unable to add very much. He confirmed that, in 1980 and 1981, there was a close relationship between his family (including Gaelene) and his brother. He also confirmed that he then drove a blue Isuzu truck, including in the cattle stop area. But he did not recall seeing Gaelene, dressed in pink shorts and a pink top, in the vicinity of the cattle stop with his brother Stephen.
(c)The appellant
The appellant acknowledged he knew the cattle stop area. It was an area he had reason to be near; it was very near his sawmill. He said he had seen Gaelene in that area “one or two times”. His evidence went on:
“Q. On how many occasions?
A.Well, as I’m going passed [sic] she’s either going to school or coming home from school. I can’t say how many times I’ve seen her in that area but it could have been one or two times.
Q.When you say she’s going passed [sic] and you’re going home or going to school [sic], are we talking about by vehicle or by – would you be in a vehicle or would you be on foot?
A. She would be on foot.
Q. And what about yourself?
A. I was on foot at the time.”During the course of his evidence in chief, the appellant was asked whether there was “any particular occasion when you and she had physical contact in the vicinity, the general area of the cattle stop”. He said there was: “[t]his particular day she was with her brother Michael”. They were wearing school uniform and going to school. It was in the morning. The appellant was in the area because he was rolling up cable from a bulldozer. He said, in relation to Gaelene: “We kissed as normal goodbye”. On that occasion, there was no other physical contact, no breast grab. He said there was never an occasion when he was in that vicinity and touched Gaelene’s breast or when he and Gaelene were together, apparently cuddling, when Gaelene’s father drove past in his blue Isuzu truck.
Under cross-examination, however, the appellant agreed that he had seen Gaelene in the vicinity of the cattle stop when she was alone. He said:
“It might have been once or twice in her growing up days, but I can’t recall whether it was constant that I saw her.”
His evidence continued:
“Q. When you saw her, you would give her a kiss and a cuddle; is that right?
A. If there was an opportunity, I would give her a kiss and a cuddle.
Q.Well, if you saw her, as she was your pet in a special relationship, you would kiss and cuddle her every time, would you not?
A.I would kiss her most of the time. I don’t know about cuddling her all the time.”
The appellant admitted he kissed Gaelene in the cattle stop area but, when asked about cuddling, he replied: “No – I would say no”. He then repeated that the only time he could remember seeing her in the cattle stop area was when she was with her brother, Michael, on the way to school. Asked to reconcile that statement with his earlier statement that he saw her once or twice by herself in that area, the appellant said:
“I could have been driving by her with a truck, your Honour. I’m always carting timber here and there. That’s the area where she lives. Naturally I would see her more than once probably.”
Mr Purnell then took the appellant to evidence he had given before the magistrate. The appellant said the place marked by Gaelene on a photograph was not where he had seen her with Michael. He agreed he had told the magistrate he would have seen Gaelene in the cattle stop area by herself. Mr Purnell pointed out that he was recorded as agreeing that, if they “ran into each other there … there would have been a kiss and a cuddle”. The appellant said:
“That would be right, your Honour. If I did see her there and I was walking or doing something like that, I would give her a kiss and a cuddle”.
The appellant also agreed he had been asked, before the magistrate, whether he had cuddled her in the way he had described. He replied: “I probably put my hand around her and give her a kiss, that’s about it.” He was asked: “You cuddle her in a way that you described with her back towards you?” and he answered: “If we’re just there for a few seconds as we’re passing by, I wouldn’t stay there and cuddle her back side, that’s for sure.”
Although the appellant said it never happened that he grabbed Gaelene’s breasts, he agreed he had admitted the opportunity was there to do so.
The evidence concerning charge (iii): the “tickling incident”
(a)Leah Christian
The third charge relates to what counsel called “the tickling incident”. Before dealing with that incident, it is appropriate to note some background information. Leah Christian is the youngest of the five children of Enoch and Carol Christian. She has a sister, Melissa, who is now 29, brothers Wade (24) and Trent (23) and another sister, Kelly (17). Leah is now nearly 15½ years of age and in Year 10 at Norfolk Island Central School. She lives with her father and mother on the Island.
During the course of evidence, some reference was made to Leah’s personality. She herself said, on more than one occasion, that, when she was little, she did everything her parents told her to do. Leah’s eldest sister, Melissa, said that Leah was not sophisticated, she was timid. Her evidence went on:
“Q.What was her response in terms of instructions in the general sense that she received from your parents?
A.Our parents have always treated us the same. We had quite a strict upbringing in the sense that we were always taught to have respect for our elders. We were always to do as we were told. We always did.
Q.And did Leah comply?
A.Yes.
Q.And how would you describe her, in general terms, in terms of her levels of sophistication and things like that?
A.She is quite – well she used to be quite naïve before I travelled overseas. She’s changed a lot in the last few years but she used to be very naïve. Very quiet sort of a person, an outgoing personality and very generous and very giving; very sensitive girl.”
Mr Woinarski did not challenge this evidence. However, when he gave evidence, the appellant did not agree that Leah was naïve or unsophisticated. He said: “She’s able to stand on her own two feet” and described this as “a type of being sophisticated”. However, he agreed that Leah obeyed her mother; he said he had never known her to disobey her mother.
Leah recalled first meeting the appellant early in 1994 when her mother commenced working at the apartments owned by the appellant and his wife, Joan, (“the apartments’). The apartments are in the same complex as the appellant’s home. Leah said that, after her mother started working at the apartments, she saw the appellant at least once a week, either in his home or hers. Sometimes she went with her mother for dinner or a cup of tea at the appellant’s home; sometimes he and his wife visited her home. Sometimes she would go to the apartments after school to help her mother in her work.
Nearly always when she visited the apartments, Leah would see the appellant. It was her practice to go up and kiss him, and sometimes hug him, to say hello. She followed the same practice on leaving. She said in evidence that she was “told to say goodbye with a kiss”; she was told by her parents that she had to do this. She said sometimes she would kiss the appellant, sometimes he would kiss her back; cuddling often occurred in saying hello or goodbye. Leah said her sister, Kelly, followed the same practice.
Leah said she used to use the swimming pool and tennis court at the apartments; the appellant would often join her. He also used to play board games with her. The appellant gave her presents on occasions; particularly at birthdays.
Leah initially said the “tickling incident” happened when she was “between 9 or 10”, that is, about 1994-95. However, after an interruption to her evidence, she volunteered that she recalled “I was 10 because I remember I had some breast development then”. Later in her evidence, she explained that the development at that time “was a little bit more than a bump, but it wasn’t that much”.
Leah said that, on the night in question, she was in the lounge room after dinner. She was wearing a white pair of pyjamas; shorts and a top. The appellant was sitting on the three-seater lounge. Leah’s mother, Coral, was sitting on a chair to his right, and only about 30cm away, and the appellant’s wife, Joan, was on another chair an arm’s length away to the right of Coral. Coral was facing towards the kitchen but talking to Joan. Joan was facing the appellant. Leah said:
“I asked my Mum to give my back a tickle because that’s what our family do, we ask Mum to tickle our backs. She said no, Steve would do it and I said no at first and then she told me to again, and then that’s when I jumped on the couch.”
Leah said:
“He pulled me down with the back of my pyjama top on to his lap so my face was facing up and he started tickling and then the tickling turned into rubbing and then he rubbed the skin of my vagina and my chest.”
Leah explained that, by “chest”, she meant her breasts, including her nipples and upper area. She said the activity went on for 10, 15 or 20 minutes. Nothing was said by the appellant or her; her mother and Joan continued to talk. Eventually she got up and went into her bedroom and then came back and sat on a different couch.
Under cross-examination by Mr Woinarski, Leah said she was near her mother when she asked her to tickle her back; she got on the lounge because her mother said the appellant could tickle her; Leah did not ask the appellant to tickle her leg.
Leah conceded she had told the magistrate she was not sure about her breast development at this time and had said she was not able to say how old she was when this incident occurred; but she had said “I think I would have been around nine”. Leah was asked if that was a truthful assessment at the time. She answered “It was truthful but it wasn’t true”. She explained she meant she was intending to be truthful, but the answer was incorrect; she was not nine. She agreed she gave an answer before the magistrate that indicated she was aged “between 9 and 11” when the tickling incident occurred.
Leah agreed she said nothing to the appellant during the tickling incident. Nor did she say anything to her mother or Joan. In re-examination she was asked why she did not say anything to her mother. She responded: “I don’t know.” She said she did not say anything to Joan because she did not like her. She was “too scared” to say anything to the appellant.
Leah said that, when her mother told her the appellant would give her a tickle, she climbed on to the lounge. She was on the left of the appellant. He pulled the back of her shirt down, so that she ended up lying on his lap with her face looking upwards.
At one stage she started to get up and was rolling off the lounge, but the appellant stopped her and she ended up with her head facing downwards. Leah agreed she told the magistrate she was lying face up throughout the incident. She rejected suggestions by Mr Woinarski that it was incorrect to say the appellant had touched her on the vagina and that “if at any stage he touched you in the area of your chest, it was at the time when you had no breast development”.
(b)Coral Christian
Leah’s mother, Coral, confirmed that she commenced in 1994 to work at the apartments owned by the appellant and his wife. Her job was cleaning the apartments, washing, ironing and doing anything else that was required. At times she worked seven days a week. She would usually see the appellant each day. Her daughters, Kelly and Leah, would sometimes come to the apartments when she was there.
Coral Christian said the appellant was her employer “and we were very good friends”. She said it was the practice that her children “would given Joan and Steve a kiss hello or a kiss goodbye”. Coral Christian also said that, from 1994 onwards, she observed a change in the relationship between Leah and the appellant.
“She was very aware if he was near her, she used to get a little bit agitated and if he went near her or touched her, gave her a cuddle, she would try and push him away.”
Coral Christian said there was an occasion after that when she dropped Leah at Sabbath School on her way to work at the apartments. She had promised Leah to pick her up but Joan Nobbs insisted the appellant would do so. Leah was upset and asked Carol Christian “why did you let him pick me up?” Carol Christian did not know why she was upset. I place no weight on this evidence. Leah could have been upset for any of numerous reasons.
Coral Christian said she remembered the tickling incident. It occurred after Leah was 10 and before her 11th birthday. It occurred in the evening after supper. She could not remember what Leah was wearing but, because of the hour, she presumed she would have had her bath and been in pyjamas. Coral Christian gave a description of the seating that coincided with that of Leah. She thought there was a three-way conversation between the three adults. She could not remember how it came about that Leah was tickled by the appellant. When asked whether she looked to see how the appellant was tickling Leah, Coral Christian replied: “I just remember seeing him tickle her by her legs”.
Under cross-examination, Carol Christian said she thought Leah asked the appellant to tickle her leg; this was what she had told the police. She said that, from where she was, she could see both Leah and the appellant; she had a memory of watching Leah being tickled, but only on the leg. She said she was looking at the appellant and Leah and having a conversation with the appellant and his wife.
(c)The appellant
The appellant said he could recall an incident at Leah’s house when he had tickled her. He did not know when it occurred but thought Leah would have been eight or nine then. He agreed with the seating arrangement described by Leah, except that he thought his wife and Carol Christian were seated together on a double-seater lounge, his wife being the closer to him. In evidence in chief, the appellant said that, immediately before the tickling started, “we were just talking together”; Leah came on the lounge where he was seated and asked him to scratch her back and her belly. He scratched her back. She rolled over and he tickled her belly. He said this was done in full view of his wife and Coral. It went on for about five or ten minutes. Nothing was said by Leah. He thought the tickling stopped when it was time for Leah to go to bed. The appellant said he did not touch her in the vicinity of her vagina, or on her vagina, and he was “pretty sure she never had any breasts at all”.
Under cross-examination the appellant agreed that Leah was about 10 at the time of this incident. He also agreed he rubbed her stomach and “could have moved up and rubbed her breast”.
It was put to the appellant by Mr Purnell that Leah had asked her mother for a tickle and her mother had sent Leah over to him. He agreed that is what happened. He said he did not notice that her breasts had started to develop. He admitted he could have rubbed her breasts but claimed not to remember feeling her nipples. The appellant agreed Leah never asked him to tickle or rub her belly. He said the activity went on for 10 or 15 minutes, could have been 20 minutes. The appellant’s evidence went on:
“Q.During the time that this activity was going on, your wife, Joan, and Coral were talking to each other?
A.Correct, your Honour.
Q.Coral got up at one stage to go to the kitchen?
A.I can’t remember, your Honour.
Q.You don’t deny that?
A.She could have been.
Q.What really was happening was that you were engaged in tickling Leah and really what was happening was that Coral was talking to Joan; that’s the correct interpretation of the scenario if a video was showing it, isn’t it?
A.That’s correct.
Q.You tickled her all over, didn’t you?
A.Practically all over, your Honour.
Q.Including her breast area?
A.I didn’t take any notice of that, your Honour, whether I was rubbing her – tickling her on the belly, that I was there.
Q.And you tickled around her neck?
A.I think I probably did scratch her and tickle her around the neck, your Honour.
Q.And your hand moved up to the breast area?
A.It was up in the top of that area. If I was scratching her or tickling her by the neck, it would be up in that area, but I can’t recall that I ever touched her on the nipples.
Q.You don’t deny that, though, do you?
A.I could have, but it’s just one of those things you never take any notice of.
Q.Oh, I see. So it was an accidental touching, was it?
A.Correct, yes.
Q.For 20 minutes?
A.I doubt whether it would have been 20 minutes because we spent some time on her back and then she rolled over, so I guess it would be 10 to 15 minutes.
Q.Accidentally for 15 minutes then you could have been touching her breasts; is that right?
A.No, I said 10 to 15 minutes for the whole thing.
Q.I see. During that what I suggest to you was a long period of time for tickling you agree that you could have been around her breast area and her nipples?
A.No, your Honour, it was more her tummy.
Q.And your hand was in the area of her nipples, wasn’t it?
A.Well, it’s in the area. Yes, it would be in the area.
Q.You weren’t being concerned – is that the way you put it? – about whether you ran your hand over her breast or not during this manoeuvre?
A.There was no reason for concern as I see it, no.
Q.Because you thought that, as her breasts weren’t fully developed, it didn’t matter; is that the way it goes?
A. Well, that could have been the reason, yes, your Honour.”
The appellant said his best recollection was that he did not tickle Leah’s leg. However, reminded of evidence he gave the magistrate, the appellant said he could have tickled Leah on the leg. He also agreed he could have touched Leah on the nipples.
At a later stage of his cross examination, Mr Purnell put a series of questions to the appellant the answers to which, in Mr Purnell’s submission, indicate a consciousness of impropriety in relation to the tickling episode. Mr Purnell put to the appellant that “Coral and Joan were talking and not paying any attention to your tickling of Leah”. The appellant disagreed and said “As a mother and my wife, I would say they were taking notice of what was going on”. He was asked: “Because they were concerned that you might interfere with her, is that the way you put it?” He replied: “No. It’s a natural thing with a mother and father to do”. After an interruption caused by an objection, Mr Purnell’s cross-examination went on:
“Q.It was your understanding, then, that they were concerned about what you might do when tickling Leah?
A.As I know a mother and my wife, they would be not unconcerned about what was going on.
Q.So, a mother, if I understand your process of reasoning, would be concerned that you, when tickling Leah, might do something improper and was therefore paying strict attention to how you were tickling her; is that right?
A.I don’t agree with that.
Q.Can you explain what you mean by a mother would be concerned about you tickling Leah?
A.Naturally a mother, and my wife for that matter, they would notice every little thing that was going on in the room. I mean, it’s natural for a mother to do that and also my wife to do that, Your Honour.
Q.And nevertheless, in full view of them, you agree that you could have been rubbing the nipples of Leah at the time; is that right? They were in full view, according to the way you want it put?
A.Well, in full view, if I was doing that, yes, they would see that.
Q.Well, you’ve conceded that her today and again in front of the magistrate that you could have touched her on the nipples in full view of Joan and Coral?
A.Well it could have happened.
Q.Well, no doubt your wife rushed over to you and said, “Steve, stop it”. Is that what you want this court to believe? Is that what you want this court to believe?
A. That never happened.”
(d)Joan Nobbs
Joan Nobbs was asked about the tickling incident. In her evidence in chief, she said she recalled sitting in the lounge room at Leah’s place when Leah and Steve were seated on a three-seater lounge. She said she was seated on the two-seater lounge with Coral. Her evidence went on:
“Q.What did you see on occasion when you saw Steve and Leah on the three seater lounge. What did you see him do or them do?
A.What
Q.What did you see?
A.They were just sitting there probably talking and they could have been teasing one another, just talking.
Q.Did you see any tickling take place?
A.No
Q.Did you ever see your husband whilst seated on the lounge with [Leah] touch her in any inappropriate way?
A.No
Q.If he had touched her on the vagina or breast area would you have done something about it?
A.I certainly would have.
Q.When Steve and [Leah] were on the lounge, were they in clear view of you?
A. Yes, right before our eyes.”
In cross-examination, Mrs Nobbs agreed that her husband would kiss Leah. However, she never saw him cuddling her. Her evidence went on:
“Q. Did you ever see him tickling her?
A.Not to my knowledge
Q.Did you see any other physical contact between your husband and Leah apart from him kissing her?
A.No
Q.Not even [Leah] sitting on his knee?
A. I can’t recall that
The evidence concerning charge (v): the “bathroom incident”
(a)Leah Christian
I pass over charge (iv) for the moment; it seems to be clear this was chronologically the last of the incidents to be made the subject of a charge. The date of the “bathroom incident”, as counsel called it, is unclear. In evidence in chief, Leah said she “would have been between the age of nine and 10”.
Leah said the incident occurred one afternoon after her mother had finished work at the apartments. She had forgotten to say goodbye to the appellant “and my Mum made me go back up and say goodbye to the defendant and his wife and I walked into the bathroom”. She said the appellant “grabbed me and picked me up in the middle of my stomach area on the side and … I wrapped my legs around him so I wouldn’t fall and he started rubbing me”. She described the rubbing by saying: “He was circulating me around his penis”. She said the circulated part of her body was: “[t]he middle of my stomach and my crutch, my waist down near my crutch, my vagina”. She said what came into contact with his penis was not her actual vagina but “my clothes that were over my vagina”. She had underpants on. Leah said the appellant’s penis was not erect. The activity went on for “a couple of minutes”.
Under cross-examination Leah agreed she had mislocated the bathroom in a sketch plan of the appellant’s house she had drawn for the purposes of the trial before the magistrate. She agreed that, when she was a little girl, her parents sometimes carried her in a position where she faced the parent with her legs locked around the parent’s waist. However, she said this was not the same position as with the appellant; with her parents “I would have been carried up a little bit further than where he had me”. But she agreed she told the magistrate that her feet “were around [the appellant’s] waist”.
Mr Woinarski made something of Leah’s use of the word “waist”. He submitted that, if her feet were around the appellant’s waist, it would have been physically impossible for the clothes covering her vagina to come into contact with the appellant’s penis. So it is desirable to put Leah’s evidence into context. After she stated her feet were around the appellant’s waist, Mr Woinarski asked her: “Which is the way your parents would have carried you as a little girl?” She replied: “Where my feet were, yes.” Mr Woinarski then asked Leah about evidence she had given to the magistrate. She could not recall and asked to see the transcript. The cross-examination then went on:
“Q.… do you see a question from Mr Greenhill, ‘Were your feet dangling?’
A.Yes.
Q.And did you answer, ‘No, my feet were around his waist’?
A.Yes.
Q.And were you then asked, ‘What, you put them around his waist, did you?’ Were you asked that?
A.Yes.
Q.And did you say, ‘No. That’s just how I was always carried when I was little. I was never carried with my legs dangling.’?
A.Yes.
Q.Was that the truth?
A.Yes, that’s what – how I was carried with my feet around the back.
Q.And were you telling the magistrate the truth when you gave this evidence?
A.Yes.
Q.And did Mr Greenhill then ask you, ‘I’m interested to know how your feet come to be around his waist. You must have done that yourself’?
A.Yes.
Q.And did you say, ‘How else was I supposed to hold on. I didn’t know what he was going to do to me’?
A.Yes.
Q.And was that true?
A. Yes.”
Leah was asked about her statement to the police, made in March 2000 before the institution of the prosecution. She agreed she told the police: “I couldn’t feel his penis”; but she said she meant she could not feel his penis erect. She said she did not tell the police that she kicked the appellant but, rather, that she kicked her legs and hit him, apparently with one or both her hands.
Leah said, in leaving the house, she did not go up to Joan “and kiss her or anything. I yelled it. I said ‘Bye’.” She thought Joan was in the kitchen.
Leah said there was no conversation while the bathroom incident was going on. She did not call out or scream because she was scared of the appellant.
(b)The appellant
The appellant gave evidence that no incident, such as recounted by Leah, ever occurred. He said he had never been in the bathroom at the same time as Leah. Although he claimed the bathroom was small, he agreed in cross-examination he could easily fit into it, holding up Leah. However, he maintained the incident never took place.
Evidence concerning charge (vi): the “bedroom incident”
(a)Leah Christian
According to Leah, this incident occurred on the evening of her 11th birthday: 21 November 1996. On that evening the appellant and his wife visited her house. Leah went to bed about 8.30pm. The light in her room was extinguished but there was a light in the hallway that led past her bedroom to the back door, which door was habitually used by visitors to the house. The hallway light was left on and it illuminated the bedroom. Leah gave evidence that, some time after she went to bed, the appellant entered her room and “started rubbing around my side and my hips … down my hips and my stomach and straight into my vagina”. She said the activity did not go on very long “because they were leaving and my Mum and Dad were waiting outside the door, the back door”. Leah said she was wearing pyjamas; the appellant “put his hand underneath my bed covers but it was over my clothes”.
Under cross-examination, Leah said she could not see her parents and Joan while this incident was occurring; she had woken up as the appellant and Joan were leaving. She said in re-examination that the voices of her parents and Joan appeared to be coming from outside the back door of her house.
Leah said she was “quite sure” the appellant touched her on the vagina, over her clothes. She said the incident “was not long because Mum and Dad were outside the back door with Joan”. Mr Woinarski referred Leah to her evidence in chief before the magistrate in which she said: “He touched everywhere, my hips and my chest and he didn’t touch my crutch. I didn’t. I can’t think. I don’t think anyway”. Mr Woinarski asked: “Was that a truthful answer?” Leah replied: “To the best of my ability then, yes, it was”. Mr Woinarski did not ask Leah what she meant by this form of answer or invite her to reconcile her statement to the magistrate with her evidence before me.
However, Mr Purnell returned to the matter in re-examination. He reminded Leah of her answer to Mr Woinarski and then referred her to an answer she gave in cross-examination before the magistrate. Mr Purnell’s questions and Leah’s answers took this form:
“Q.… do you see where you gave an answer ‘he sat by my bed and I can’t remember exactly the’ – then there’s something that wasn’t picked up, or may not have been picked up. Then it goes on, ‘That it happened in’ I assume it was the word order, but something is missing. Then your answer goes on, ‘But he started rubbing my breasts and my stomach and my crutch’. You gave that evidence also to the magistrate?
A.Yes
Q.That evidence that I’ve just read out is the evidence that you gave to his Honour today?
A. Yes”
Leah also agreed she had told the magistrate that the appellant “just rubbed” her breasts. Leah said she did not call out or scream because she was scared of the appellant.
(b)Coral Christian
Coral Christian remembers one occasion when the appellant went into Leah’s bedroom when she was in bed. She could not say when this happened. It was in the evening, after supper. She said she “only saw Steve go into the bedroom”; he was “in there for a little while” while she was conversing with Joan Nobbs in the hallway. She does not recall anyone else being present. Coral Christian said she heard Joan say “Don’t wake her up”, so she assumed the appellant was going in to kiss her goodnight. The light was not on in the bedroom.
In cross-examination, Coral Christian said she had originally told the police that this incident occurred as the appellant and his wife entered the house and that “Joan was at the door and I was behind her”. She had changed her evidence about the incident happening on entry only immediately before the magistrate’s hearing.
(c)The appellant
The appellant was doubtful that this incident occurred on Leah’s 11th birthday; his reasoning being that Leah’s father was not present that evening. He thought he and his wife might have been to Leah’s home for a cup of tea. He said the incident happened when they were leaving. Asked by his counsel what had happened, the appellant replied:
“We got to the outside door and I looked in and I could see Leah in bed. I went in to the bedroom, I tried to pull back the cover which she had her head covered with and I was going to kiss her good night and she kept on with her head covered, so I left and went out.”
The appellant denied he touched any part of Leah; in particular, that he touched her vagina or breasts. He said he was in the bedroom for only a few seconds. The light was not on but light shone in from the hallway. The appellant said his wife and Coral were standing at the door of the room.
Under cross-examination, the appellant agreed this incident occurred when, so far as he was concerned, there was still a close relationship between him and Leah. He agreed there would have been kissing on his arrival, if not cuddling, and when she went to bed. He was asked why, when it was not her birthday and she had already kissed him goodnight and goodbye, he went into her bedroom to kiss her. He replied: “I did go into her bedroom to kiss her goodnight”. He denied he went into the bedroom to “commit another act of indecency upon her” and to satisfy his “lustful desires” in relation to her. He denied touching her on her side, her vagina or her breasts, knowing he could do it with impunity because Leah would never complain. The appellant agreed either his wife or Coral had said “Don’t wake her up”. The evidence went on:
“Q.So you being the caring, careful, close friend obviously heeded that advice, did you?
A.True. I didn’t wake her up. She was awake.
Q.How did you know that before you went in?
A.When I started to pull back the blanket she tucked herself back under again.
Q.So even on your scenario you could have woken her up because you didn’t know until she did that whether she was awake or asleep?
A.Easily tell whether she’s awake or asleep. There’s a bit of fidgeting in the bed.
(d)Joan Nobbs
Joan Nobbs recalled an occasion when she was at Leah’s house with the appellant and he went into Leah’s bedroom. She recalled it was Leah’s birthday, but she did not remember which one. She and the appellant had been to the house for dinner. “We were coming down the hallway. Coral was seeing us off. And we were at the door going down”. Asked which door, she said “Leah’s bedroom”. Mrs Nobbs said the appellant “went in to say goodnight to her”. She said she could see him. The evidence went on:
“Q.Did you see him do anything, from what you can see, touching her in any inappropriate manner?
A.No. He was going to kiss her good night and she didn’t want to kiss him good night
Q.Did she do something?
A.Pulled the blankets up over her head
Q.Was any light in Lea’s room on?
A.Yes
Q.Was there any light outside her room
A.There’s one in the hallway
Q.Did you say the light in her bedroom was on. The actual light in her bedroom?
A.Yes
Q.Have you ever seen him go into her bedroom on any other occasion?
A.Never”
Mrs Nobbs said her husband “just walked in and walked out”. She said Coral was “standing with me. We were walking down the doorway [sic: hallway] to come home as she always did to see us off”. Mrs Nobbs claimed that, if her husband had touched Leah in an inappropriate way, she would “certainly” have done something about it.
Evidence concerning charge (iv): the “dining room” incident
(a)Leah Christian
In January 1998 Leah left the Island, with her mother and Kelly. Leah and Kelly returned sometime in May; her mother followed a few weeks later and resumed work at the apartments. Leah claims that a further incident, involving herself and the appellant, occurred shortly after her return to the Island. She said she went to the appellant’s home with her mother and father. She was unsure about Kelly but thought she was not present. Leah approached the house by way of the ramp that leads to a verandah and thence to a door of the house itself. Apparently the appellant was on the ramp. Leah said that, as she was going up the ramp, “I didn’t kiss him, look at him, didn’t do anything”. She said she was going to walk past him “and he pulled me back by my pony tail and kissed me once on the cheek and once on the lips”.
Leah said, “not long after” this incident, she was in the hallway outside the dining room, either entering or leaving that room. She said, as the appellant was entering or leaving the kitchen (which adjoins the dining room), “he stopped me as I was walking and he pushed me back and I was trying to get away and I ended up down more or less on the ground and he pulled my pants open as he was trying to put his … hand down my pants and I was pushing him and kicking and somehow managed to stop him from putting his hand down my pants, but his hand ended up on the side of my crutch near my – on my leg”. Leah said: “He swiftly scraped my vagina as he was doing it but I was trying to get away from [him]”. She said in evidence that she did not say anything, “I just went into the car, back to the car and stayed there until we left”.
At the commencement of his cross-examination, Mr Woinarski asked Leah to describe this incident again. She gave a description that coincided with her account in chief, except that she gave the further detail that the appellant “grabbed the front of my pants and tried to put his hand down the front of my pants”. She said this was the most recent of the incidents between herself and the appellant.
At a later stage of his cross-examination, Mr Woinarski returned to this incident. Leah agreed her parents had laughed when the kissing incident occurred on the ramp. Mr Woinarski referred to Leah’s statement to the police:
“Q. Did you tell the police this:
‘Later on that night I was going to the dining room when Steve pushed me back and tried to put his hand down my pants. He was behind me. He first started rubbing my hip and then he grabbed my pants with one hand and the other hand was moving downwards. I shoved him off by pushing him away with my hands and I walked into the dining room. I think Mum and Dad were already in the dining room.’
Is that what you told the police?
A.Yes
Q. And you were telling the police the truth?
A.Yes
Q.And telling the police everything as best you could recollect it?
A.Yes, that isn’t in detail.”
Mr Woinarski pointed out to Leah that her statement to the police did not mention the appellant touched her on the vagina. She responded: “He didn’t actually touch me on the vagina; he scraped”. She agreed the police statement did not include any reference to scraping her vagina, nor did it suggest she ended up on the floor or that she had pushed and kicked the appellant.
Leah agreed she did not scream, even though she believed her parents were nearby.
Mr Woinarski took Leah to her evidence before the magistrate. When then asked about the subject visit, she gave a description of the kissing on the ramp, substantially in accordance with her evidence before me. But she finished this by saying: “I pushed him off and I think I left and went waited in Mum’s car”. She gave a negative answer to the question: “And were there, did anything else happen that night in relation to the defendant?” She agreed that, in her description of the incident, there was no mention of the appellant touching her on the vagina. However, when she was asked, before the magistrate, to give a “better indication about whereabouts this last incident occurred”, Leah referred to the entrance to the dining room. She marked this location on a plan. Leah was then asked about other incidents. The prosecutor asked her whether she could put the incidents in order. She replied she could not but added: “I can remember the last one but”. She explained: “The last time he touched me was the time that I went up there after the Gold Coast”. When she was asked about that subject, Leah gave a description of the incident that coincided with her description in this Court, except that she did not specifically say she fell to the floor, or nearly to the floor. However, at one stage she did use the words “as I got up”.
(b)Enoch Christian
Coral Christian gave no evidence relevant to the dining room incident, although she did confirm that she resumed working at the apartments shortly after her return from the Gold Coast in about June 1998.
However, Leah’s father, Enoch Christian, remembered an incident that occurred on the ramp leading to the appellant’s house. He said he recalled that the appellant “grabbed Leah by the hair” and “gave her a kiss”. The appellant was only three or four metres from him at the time. Enoch Christian agreed in cross-examination that he did not tell the police about this incident and he gave no evidence to the magistrate concerning it.
(c)The appellant
The appellant agreed there was a ramp to the entrance of his house. He also agreed that there had been occasions – he could only remember two – on which he had put his hand around Leah’s ponytail and squeezed it. But he said when that was done “there was no other physical contact with her”.
Mr Woinarski referred the appellant to the sketch plan on which Leah had marked the position of the alleged scuffle, at the entrance to the dining room. He said no such incident occurred. His evidence went on:
“Q.Have you ever had a pushing/shoving situation with Leah at or about the area she has marked on that exhibit?
A.I dare say that I have probably pulled her back or – that’s about it.
Q.And in any such time have you ever scraped her on the vagina?
A. At no time have I scraped her on the vagina.”
In the course of cross-examination, Mr Purnell returned to this evidence. The appellant conceded that, in the marked area in the hallway outside the dining room, he had “pulled her [Leah] back from her mother”. When asked what was Leah doing to her mother that required the appellant to pull her back on that occasion, the appellant replied: “Usually she huddles up to her mother”. However, the appellant said he could not remember ever “pushing and shoving her”. He denied assaulting her or causing her to go down with his hand inside her pants or scraping her vagina.
At a later stage of his cross-examination, Mr Purnell referred the appellant to the evidence of Enoch Christian. He said: “They have never been up as a family after they came back from the Gold Coast.” The appellant was not asked to explain what he meant by the words “as a family”.
The appellant’s evidence went on:
“Q.How many times have you grabbed and kissed Leah on the ramp, grabbed her hair, that is, and kissed her on the ramp?
A.I can’t remember.
Q.More than once?
A.Probably on the rare occasion, your Honour.
Q.I’m suggesting to you it was once when you grabbed her hair and kissed her twice.
A.I can’t recall that happening, sir.
Q.You don’t deny that that happened, do you?
A.I can’t recall it happened.
Q.But you don’t deny that it happened?
A.Well, it could have happened, but it could not have happened, put it that way.
Q.You see, for a man with all the, I assume, concerns that you have in your life, you would say, wouldn’t you, that there wouldn’t be anything especial to remember about somebody that you had a close relationship with if you had grabbed them by the hair, given it a tug and kissed her twice? Why would you, if that occurred, remember something like that? What’s so special about that incident in your mind?
A.I can’t see that it’s anything real special in my mind.
Q.Not unless sometime after on the same day you committed an act of indecency upon her in the hallway outside the kitchen. That would make it special if that occurred, wouldn’t it?
A. That never happened, your Honour.”
Other matters relating to Leah
(a)Relationships
Enoch Christian gave unchallenged evidence that, in the period 1994-98, the relationship between himself and the appellant was close. He said he regarded the appellant, his first cousin, “as a brother for most of my life”. He regarded him “as a very close friend and a relative”. He observed that the relationship between the appellant and his wife was also close and he encouraged Kelly and Leah to be close to him.
In the course of cross-examination, Mr Purnell asked the appellant about the situation in 1998. The appellant gave this evidence:
“Q.And the relationship between you and your wife and Coral and her family, was it the same as what is was before they went to the Gold Coast?
A.Well, we got busy and I would say thing have changed, yes. Things did change.
Q.In what way?
A.Well, I would say the girls were getting older and they want to do their own thing, yes.”
During the course of his evidence, the appellant had acknowledged that Gaelene “was a pet of mine”. He agreed he regarded Leah in the same way, that he treated Leah differently to Kelly. His evidence included the following:
“Q.Well, you gave Leah a bible that was worth a considerable sum of money, did you not?
A.Yes.
Q.And you had it engraved?
A.I did.
Q.You didn’t give Kelly any such gift, did you?
A.No, I didn’t.
Q.It was Leah whose attention you sought when you visited her home, was it not?
A.Well, I dare say that there is a kind of a distinction, yes.
Q.You agree, don’t you, that you treated them differently with the attention that you gave to their …
A.I treated one, your Honour, as a grown-up, one as a little girl.
…
Q.Because it was true that Leah for her age was indeed a little girl, was she not?
A. Yes.”
During her evidence in chief, Mr Purnell asked Leah whether the appellant ever gave her presents. She said he did and identified “money to go on a tour”, a porcelain teddy bear, a shirt and top and a bible. Mr Purnell asked what had happened to these gifts. She said she threw out the porcelain bear and burnt the shirt and her mother had sent the bible back to the appellant; according to Coral Christian, this was after Leah threw it in the rubbish bin.
Mr Purnell asked the appellant about Leah’s attitude to him after she returned from the Gold Coast. He claimed the relationship was the same, “nothing had changed”. However, in the context of being asked about the dining room incident, he said Leah had “never come up the ramp after she came back from the Gold Coast”. This was despite the fact that Coral had resumed working in the apartments in September 1998 and he was seeing Coral almost daily.
(b)Leah’s state of mind
A notable feature of Leah’s evidence is that she never screamed, or called out, on the occasion of any of the alleged incidents; and this despite the fact that, on each occasion (with the possible exception of the bathroom incident) she knew or believed one or both her parents to be close by. In an attempt to deal with that apparent difficulty in his case, Mr Purnell tendered a letter that Leah wrote to her older sister Melissa when Melissa was in London in 1997 with her then boyfriend, now husband, Martin. The tender included the envelope in which the letter was sent, the stamp being cancelled at Norfolk Island on 29 August 1997. The bulk of the letter consists of chat about people on the Island but it includes the following (original spelling and grammar):
“Bad news
about 2 weeks ago we all found out Espree had back problem he has it for along time but this time it’s worse and if his back hasn’t held by 6 weeks we would have to be pot down and I’ve been crying nearly every day Plus trent is now well gone and what happened to me about Steave (rember mel I told you at Christmas if you don’t rember I have writen everything on the other page which says MELISSA ONLY. Please Melissa only can see it.”With the letter is a separate, sealed sheet of paper endorsed on the outside “Mel, Only. PLEASE HELP ME.” When the sheet is opened out, the following appears (original spelling and grammar):
“Mel, remberd whe Steave felt me in the rood part I’m telling you because Mum don’t have time to talk and I always cry and I know I just carn’t forget it I wont to go to the police because his stell doing it. what could I do I’m so scard and I hate him so much its not funny
What should I do?
Love always
Leah.
PS dad don’t care and I’m getting in trouble for what Steave did to me from him.”(c)The events of February 2000
It is common ground that on 17 February 2000, the appellant flew from the Island to Australia. According to the appellant, he travelled to Brisbane, then to Sydney on the following day. At Gosford, north of Sydney, he saw a person named Rod Dawson, whom he described as a barrister. He said he later travelled to Moruya, on the south coast of New South Wales. He telephoned Coral Christian from Moruya.
Until he gave evidence in the appeal, it appeared to be common ground that the telephone call was made at about 9.05am (Norfolk Island time) on Sunday, 20 February. Coral Christian took the call at Max’s store where she had worked since June 1999; she having ceased to work at the apartments in May 1999. However, the appellant claimed in evidence that the call was made on Tuesday, 22 February. Counsel agreed the date does not much matter.
Coral Christian was asked about the content of the telephone conversation. She recounted that the appellant said: “Don Reynolds is spreading rumours about me. They’re not true. Tell your girls to keep their mouth shut. I’m getting help”. Coral said she replied: “We’ve seen Don Reynolds. We know everything”. She then heard a click. That is the last time she has spoken to the appellant.
Under cross-examination, Coral Christian acknowledged that she had not made a contemporaneous written note of the conversation. She was asked: “Are you absolutely certain that he said something to the effect of ‘I’m getting help’”. She replied: “Yes”.
The appellant gave evidence, that when he left the Island, there were “allegations going around about me”. He believed the source of the allegations was Don Reynolds, a person who (according to the appellant) had “put himself” in the position of a sexual molestation investigator. The appellant said he told Coral Christian Don Reynolds “is walking around and he’s causing mischief”. He said: “Don’t believe it. Keep your girls away”. The appellant said Carol replied: “He already knows”. The appellant said he did not recall saying anything about getting help.
Under cross-examination, the appellant said he first heard of allegations of sexual misconduct before he left the Island; he thought about 14 or 15 February. Mr Purnell put to the appellant that he was “desperate to talk to Coral”. He replied: “I don’t know about desperate”. His evidence went on:
“Q.Well, you were most concerned that Don Reynolds would talk to Kelly and Leah, weren’t you?
A.I was.
Q.And you didn’t want Leah to talk to Don Reynolds under any circumstances, did you?
A.That is correct, Your Honour.
Q.Even though Don Reynolds never mentioned Leah in the phone – sorry, in the conversation you had with him at his house before you went to Australia. That’s so, isn’t it?
A.That’s true.
Q.And you told Coral to tell the girls to keep their mouths shut, didn’t you?
A.I did say that.
Q.And Coral told you that she’d seen Don Reynolds, didn’t she?
A.She’d already seen Don Reynolds, yes.
Q.That’s what she told you?
A.Yes.
Q.And she told you that they knew everything?
A.Something to that effect, yes.
Q.And you told Coral that Don Reynolds was spreading rumours about you?
A.I did.
Q.And you told Coral that you were getting help, didn’t you?
A.I can’t recall saying that I’m getting help.
Q.You don’t deny that you used those words?
A.I said I can’t recall.
Q.You don’t deny that you used those words?
A.I can’t recall using those words.
Q.You don’t deny that you used those words? By that I’m suggesting to you, Mr Nobbs, so it’s absolutely clear, that you could have used those words. You simply can’t recall. That’s your position, is it not?
A.I can’t recall using those words, Your Honour.
Q.But you don’t deny that you could have used them?
A. Well, I could have.”
Mr Purnell asked the appellant whether he rang other families that had young daughters he had been associated with. He replied: “I had never warned any other family other than Coral’s family, your Honour”. He agreed he said otherwise in evidence before the magistrate but said this must have been a slip. The appellant denied he was careless about his evidence. His testimony went on:
“Q.Right. But you’ll say what’s best in your mind to assist your case, won’t you?
A.Yes
Q.You agree with that, don’t you?
A.Yes”
After another question, the appellant’s evidence went on:
“Q.It was your belief, wasn’t it, that Leah – that if Leah or Gaelene had kept quiet about these matters everything would have been rosy. It was your belief, wasn’t it?
A.It is my belief.
Q.And indeed you gave that very answer to the magistrate, didn’t you, words to that effect?
A.Yes.
Q.And that is why you were trying to get Coral, as you saw it, to stop Leah and Kelly talking to Don Reynolds, so they would be quiet about it and everything would be rosy. That’s so, isn’t it?
A.That would be true, yes, your Honour.
Q.Did you see any other families or ring any other families in Norfolk before you left for Australia?
A.No, your Honour.”
The appellant acknowledged he had been to his brother’s workshop to ask him whether he could see Gaelene and Michelle (her sister, who was the complainant in the charge dismissed by the magistrate) “and they weren’t available”. He said his purpose was “to find out what they had against me”. This was before he left for Australia. Mr Purnell asked the appellant whether he tried to stop Gaelene talking to Don Reynolds. He responded: “I didn’t have a chance to talk to her, your Honour”. Asked whether this was one of the purposes of seeing Gaelene, he reiterated that he wanted to find out what she had against him.
In re-examination Mr Woinarski reverted to the telephone call and asked the appellant whether, at that time, he had done anything wrong to Leah. There was an objection, during the argument of which Mr Purnell made clear that he relied on the telephone call as evidence of consciousness of guilt. I thought the matter should be addressed directly and put a few questions to the appellant during which he said he had heard no suggestion about Leah or Kelly and that his position was that he had done nothing wrong in relation to either of them. The evidence went on:
“Q.Right. So in respect of both of Coral’s daughters, you’ve never done anything wrong; is that right?
A.That’s true.
Q.And nobody had ever accused you of having done anything wrong?
A.That’s true.
Q.So why would you think there was any need to ring Coral and tell her to keep her daughters away from Don Reynolds?
A.Well, you get to hear rumours and you get concerned. This is the very reason why I rang.
Q.Yes, but you’ve already told us that you hadn’t heard any rumours suggesting you’d done something wrong with Leah?
A.But from day to day you get –
Q.Well, had you heard a rumour linking you with Leah?
A.No, I didn’t at that time.
Q.So why did you even think of ringing Coral?
A.Well, I have no answer to that question, your Honour.”
Conclusions
(a)Impressions of people
Before setting out my findings in relation to each of the charges, it is appropriate to record some impressions of people involved in the case.
It is common ground that there was a very close relationship between the appellant and Enoch Christian and that this extended, at one time, to the members of their families. There was a similarly close relationship between the appellant, and the members of his family, and his brother Roy Nobbs and his family, including Gaelene. The children of both Enoch Christian and Roy Nobbs were trained to accord respect and affection to the appellant and his wife. Both sets of children were expected to greet and farewell the appellant, and his wife, with a kiss. In such a situation it would not be surprising if there was a failure by parents to notice, and a reluctance to acknowledge and confront, indications that physical intimacy had gone too far; or, at least, a perception of such reluctance by an abused child.
It seems the appellant has achieved some success in business and has played a significant role in the life of the local Seventh Day Adventist Church. Mr Purnell described him in submissions as a “man who is used to getting his own way”. That comment seems to be justified. Although a courteous man with a degree of elegance and charm, the appellant seems to have a forceful personality. I think he would be inclined to press his own position on an issue; I suspect usually with success. Mr Woinarski disputed the accuracy of the appellant’s concession that he would “say what’s best in [his] mind to assist [his] case”, on the basis that he made many statements that were not helpful to his case. But that may have been attributable more to a lack of astuteness than desire. Whatever the reason, the appellant made statements on a number of issues that are impossible to accept. I am unable to regard him as a reliable witness.
In contrast, Gaelene Christian struck me as an honest and reliable witness. She was speaking of events that occurred many years ago; so it is not surprising there were matters about which she had no memory. However, when that was the situation, she seemed willing to acknowledge it. Importantly, I had no impression that her evidence was motivated or influenced by malice towards the appellant. This was not suggested to her.
Leah’s evidence occupied a period of about 4 ½ hours, with only a lunch-break. I think she lost concentration once or twice and became tired towards the end. Before the magistrate her evidence occupied an even lengthier time. Possibly the same situation occurred there.
There are discrepancies in aspects of Leah’s evidence, some of which may be important. These may be attributable to confusion, loss of concentration or defects of memory. I do not think they can be attributed to mendacity. On the contrary, I thought Leah was an open and honest witness, doing her best to be accurate. As with Gaelene, I did not at any time think she was actuated by malice towards the appellant. Again as with Gaelene, this was not suggested to her.
The other significant witness, before me, was Coral Christian, Leah’s mother. I thought she, also, was an honest person. I did not have the advantage of seeing Joan Nobbs.
(b)The charges involving Gaelene Christian
It is necessary that I consider each charge separately, for the purpose of deciding whether I am satisfied that the charge has been established beyond reasonable doubt. So, as the final step, I must ask myself a separate question in relation to each of the two charges involving Gaelene Christian. However, they have much in common and it is convenient to discuss them together.
The first significant aspect of these charges is that they each relate to an event alleged to have occurred before 8 November 1981; that is, over 18 years before the charges were laid. I do not accept Mr Woinarksi’s submission that the delay has caused his client to lose the opportunity of calling witnesses who were present outside the church on the occasion of the first alleged offence. Even if the charge had been made shortly after the event, it seems to me highly unlikely that anybody would have had a very precise idea of where they were throughout the period of mingling in the churchyard, half an hour or so, after the completion of the service. I proceed on the assumption that nobody noticed the appellant put his hand on Gaelene’s breast, if he did. It seems to me unlikely that anybody would ever have been able to say more than that. It is quite improbable that a witness could have been found to say that he or she had the appellant, or Gaelene, under observation throughout the whole period of mingling; so as to negative the occurrence of the alleged event.
However, that does not make the delay irrelevant. During the period that has elapsed since the occurrence of the alleged events, the complainant has matured into a young woman. But her impressions of the incidents are necessarily those she acquired as a girl of 12 or 13 years. The considerations mentioned in Longman and Aitchison apply.
My second general observation is that there is no direct corroboration of Gaelene’s account of either event. I will deal later with an argument put by Mr Purnell that I should place reliance on the appellant’s unsatisfactory evidence concerning meetings with Gaelene at the cattle stop. Whatever the significance of that matter, the fact is that no witness has deposed to any observation or statement that tends to support Gaelene’s account. Her father, Roy Nobbs, has confirmed that he owned and drove a blue Isuzu truck in 1980-81. So it is possible that he appeared, driving such a truck, immediately after the conclusion of the cattle stop incident. But he says he has no recollection of any incident and I have no reason to disbelieve that. If he had surprised his brother fondling the breasts of his young daughter, I think he would have remembered the event, and probably have done something about it at the time. So it is reasonable to conclude he saw nothing untoward. That is not inconsistent with his having given Gaelene what she called a “filthy look”; he may have been annoyed with her for any one of many reasons. Nor is her father’s non-recall inconsistent with Gaelene’s account of the incident. She did not suggest her father would have seen the full incident. On her account of the matter, he appeared “as I tried to pull away”.
It seems to me that Roy Nobbs’ evidence does not assist to resolve the issue concerning the cattle stop incident. As with the incident at the church, this rests in a context of word against word.
As will be obvious from the comments on credibility I have already made, I would tend to resolve such a contest in favour of accepting the word of Gaelene, rather than that of the appellant. If I had to determine the matter upon the basis of balance of probabilities, I would have no hesitation in finding the incidents occurred, as Gaelene claims.
In saying that, I do not overlook the effluxion of 20 years or the fact that Gaelene was a child at the time. Important though those factors are, incidents such as those claimed would not readily be forgotten. Young though she was, Gaelene had attained some breast development. She had not had any education in relation to sexual matters and she came from a deeply religious family. She would be affronted and embarrassed to have her breast or breasts grabbed by a man much older than herself, especially a man she has been taught to respect and love.
The question that has exercised my mind is whether the material before the Court justifies a conclusion adverse to the appellant on the high standard of being beyond reasonable doubt. Even though there is no legal requirement of corroboration before reaching a conclusion beyond reasonable doubt, it is natural for a tribunal of fact to want something more than a mere preference for one witness over another; especially when there is nothing inherently improbable about either witness’ account.
Mr Purnell submits there is, here, “something more”: the appellant’s false evidence about meetings at the cattle stop which, he says, is indicative of a consciousness of guilt. He makes two points: first, the appellant’s reference to “that particular day”; second, “that he denies that he would see her on foot in that area when his timber yard is close by and he goes there relatively frequently, and she’s there”.
At paras 45 to 52 above, I summarised the appellant’s evidence concerning meetings with Gaelene in the cattle stop area. It contained many contradictions. The appellant told his own counsel, in chief, that he saw Gaelene in the area “one or two times”, when she was going to school or returning from school. There was one “particular occasion” when he had physical contact with her, this being a kiss as she was on her way to school with her brother, Michael. The clear suggestion was that this was the only time he had physical contact with Gaelene in the cattle stop area, and one of only a couple of meetings.
Under cross-examination the picture changed. The appellant conceded there were other meetings, and “if there was an opportunity, I would give her a kiss and a cuddle”. In particular, if he saw her at the cattle stop “and I was walking or doing something like that, I would give her a kiss and a cuddle”.
It seems to me Mr Purnell is justified in submitting the appellant’s reference to a “particular day” was intended to give the Court the misleading impression that he was never alone with Gaelene in the cattle stop area, contrary to the facts later conceded by him. I think Mr Purnell is also correct in saying this attempt to mislead arose out of a consciousness of guilt in regard to the cattle stop area. The attempt provides the “something more” that is necessary to satisfy me beyond reasonable doubt in relation to the cattle stop incident.
If I accept the cattle stop incident, it is only a short step to reach a similar conclusion in respect of the church incident. The two incidents are similar in their nature. It is easy to conclude that the gratification enjoyed by the appellant in the church incident led him to repeat the experience, but in respect of both breasts, near the cattle stop.
The point is made by Mr Woinarski that, at the church, there were many people in close proximity. That would be a telling point if the alleged behaviour was prolonged or involved disturbance of Gaelene’s clothing or any significant physical activity. The alleged behaviour involved none of these characteristics. The appellant conceded he habitually kissed, and frequently cuddled, Gaelene after church. He admitted he mostly cuddled her from behind, with his hands immediately below her breasts. In a mingling, chatting crowd of people, it would not be difficult to pick a suitable moment in which to lift one hand onto a breast for a quick squeeze.
Gaelene gave evidence that, at no time, did she give any indication to the appellant that she wanted him to touch her breasts. If either incident occurred, it constituted an assault. Given that Gaelene’s breasts were then developed, it was an indecent assault.
Having regard to the whole of the evidence concerning Gaelene and the appellant, I am satisfied beyond reasonable doubt of the guilt of the appellant in respect of charges CC10/2000 and CC11/2000.
(c)The tickling incident
The evidence regarding the tickling incident is set out in paras 59 to 78. If Leah is to be believed, the appellant touched her breasts (which were then partly developed), including her nipples, and her vagina. Mr Woinarski does not dispute that touching either of these parts would constitute an act of indecency. Moreover, the evidence of both Leah and her mother is that Leah was then aged 10 years, an age within the range mentioned in charge CC13/2000. I am not asked to reject that evidence. Accordingly, the critical question is whether I should be satisfied beyond reasonable doubt of the truth of Leah’s account.
Mr Woinarski strongly pressed the submission that it was beyond belief that the appellant touched Leah on the breasts and/or vagina, yet this was unobserved by either Leah’s mother or the appellant’s wife.
I agree it might be expected that one or both of two people in such close proximity would notice any untoward behaviour. Both Coral Christian and Joan Nobbs were seated close to the three-seater lounge containing Leah and the appellant. However, the evidence demonstrates they in fact observed very little of what was going on. Coral Christian could only remember seeing the appellant tickle Leah on the leg. Joan Nobbs did not even see that, although she claimed to remember the relevant occasion.
It is impossible to resist the impression that the two women were deeply engrossed in their own conversation, to the exclusion of concern about what was happening to Leah; in fairness, neither of them had any reason to assume something inappropriate might be happening. On the appellant’s own admission, he did much more than tickle Leah’s legs. He scratched her back and tickled her belly. He conceded his hand “could have moved up and rubbed her breast”. He said he did not remember touching her nipples, although he conceded he could have. He said he tickled Leah “practically all over”. This included her neck, so his hand was in the top of the breast area. His hand was “in the area of her nipples”.
The appellant did not concede he had touched Leah on the vagina, unless this is embraced by the words “practically all over”. However, it seems to me that tickling Leah’s breasts would have been enough to constitute an act of indecency. The appellant’s concession that he “could have” rubbed Leah’s breasts provides powerful support for her evidence that he did.
I do not think it would be an act of indecency for a person to tickle the breasts (really the chest at that time) of a girl whose breast development has yet to commence. Such a girl would probably feel no differently about being touched on the chest than would a boy. However, once breast development starts, the situation changes. Girls become conscious, and protective, of their breasts. Touching or tickling by a stranger would reasonably be regarded as indecent, having regard to prevailing standards of sexual morality.
If I am right about this, it is not really necessary to determine whether I accept Leah’s assertion that the appellant touched her vagina on this occasion, in preference to his denial. However, I indicate my preference for Leah’s evidence. Although the tickling incident occurred some five years ago, it is likely that she would remember being tickled on the vagina. She has not given inconsistent evidence about that matter.
Moreover, in any contest of credibility between Leah and the appellant, I must take into account the telephone call by the appellant to Coral Christian on 20 (or 22) February 2000. The only possible explanation of this call is the appellant’s consciousness of guilt. No accusation had been made against him in relation to Leah or Kelly; and he had heard no rumour against himself in relation to either of those girls. Yet he telephoned Coral Christian for the specific purpose of having her stop her girls from talking to Don Reynolds. Coral was to tell her girls “to keep their mouths shut”. The appellant believed that, if Leah (and Gaelene) kept quiet, in his own words “everything would have been rosy”. In other words, he knew he had something to fear from their speaking out.
It is apparent the appellant knew Leah might present a problem for him. As nobody else had yet mentioned her, this must have been because he was conscious of the fact that he had acted improperly towards her.
In reaching my conclusion on this matter, I do not overlook Mr Woinarski’s submission that it is unbelievable that Leah would have refrained from speaking up about any inappropriate touching. I do not accept that submission. The hypothesis is that Leah was being inappropriately dealt with by a man, old enough to be her grandfather, who was a very close friend of each of her parents; a person whom she had been brought up to respect and admire. It would have required a deal of confidence for any child to speak out against such a person. Leah was a timid little girl, accustomed to obey her elders and immature for her age. In the words of the appellant himself, she was “a little girl” in contrast to Kelly, only 18 months older, who was “a grown up”.
I am satisfied beyond reasonable doubt of the appellant’s guilt in relation to charge CC13/2000.
(d)The bathroom incident
The only persons who gave evidence touching the bathroom incident were Leah and the appellant. I have recounted their evidence in paras 79 to 86. It would generally be considered an indecent act for an adult male to grab a young girl and circulate her around his penis, so that his penis came into contact with her vagina, even if both the penis and vagina were clothed at the time.
For the reasons relating to general credibility that I have already expressed, I prefer Leah’s assertion of the occurrence of this incident to the appellant’s denial. However, I have doubt as to whether there was contact between the appellant’s clothed penis and Leah’s clothed vagina. I have already mentioned Mr Woinarski’s argument concerning Leah’s use of the word “waist”. Reading this word in its context, I believe Leah was merely wishing to distinguish between the situation of being held by the appellant with her legs dangling and being held in a position where she could gain some support from the body of the appellant. I doubt she was addressing the distinction between the “waist” (whatever that imprecise term may mean in relation to a particular person) and the same person’s hips. And Leah did make the point that, when she was a little girl, her parents used to carry her “a little bit further [up] than he had me”. Nonetheless, Leah did not say she could feel the appellant’s penis. In her evidence before the magistrate, she said she could not feel his penis. She explained that she was referring to an erect penis. But, even if one accepts that explanation, this leaves an absence of positive evidence of feeling the appellant’s penis, whether flaccid or erect. Without that evidence, it seems to me impossible to say that there was contact between the clothed penis and the clothed vagina. Without that finding, the action engaged in by the appellant cannot properly be described as “indecent”.
I am not satisfied about charge CC19/2000. That charge should be dismissed.
(e)The bedroom incident
It is common ground that the appellant entered Leah’s bedroom one evening on or about her 11th birthday, 21 November 1996. Leah gave evidence that the appellant inserted his hand underneath her bed covers, but over her pyjamas, and rubbed her side, hips, stomach and vagina. She was “quite sure” the appellant touched her vagina, over her clothes. If that account is accepted, the appellant unquestionably committed an act of indecency upon her.
Counsel for the appellant argues this account should not be accepted. Two grounds are argued. First, he says, it is not believable that the appellant would have carried out such an action in circumstances where his wife and Leah’s mother and, on Leah’s version, her father, were in the immediate vicinity. Second, he claims there is such a lack of consistency in Leah’s various accounts of the places touched as to make it impossible for a court to conclude there was an act of indecency.
As to the first matter, it seems fairly clear that Leah was mistaken in thinking her father was present that evening. All three adults agree he was not. But there is no doubt that Coral Christian and Joan Nobbs were close by. They had followed the appellant down the hallway. They waited outside the bedroom while the appellant went in to Leah. Coral Christian said she was conversing with Joan Nobbs while they waited and Leah said she heard voices. Neither the appellant nor his wife said anything about the women talking while they waited. However, Coral was showing out Joan after a social occasion. It seems likely they did talk. And, as the tickling incident shows, talk can be distracting. Moreover, they had no reason to be concerned at what the appellant might do in the room. They would not have thought it necessary to keep him under observation. And, on any view of the evidence, whatever happened did not occupy much time.
Joan Nobbs may have looked into the room and seen Leah withdraw by pulling the blankets over her head, but this does not negative the possibility that something happened before that act of withdrawal.
I do not think the presence of Coral Christian and Joan Nobbs in the hallway furnishes a reason for disbelieving Leah’s evidence of an intrusion into her bed by the appellant’s hand. For the reasons I expressed in relation to the tickling evidence, I do not regard as significant Leah’s failure to call out or scream.
I take into account, also, the point made by Mr Purnell in his cross-examination of the appellant. The appellant had said goodnight to Leah when she retired to bed. It may safely be assumed that, in accordance with custom, this was a formal farewell sealed with a kiss. Why was it necessary for him to go into her room to say goodnight again? Especially as Leah had been in bed for some time and might reasonably be supposed to be asleep. And one of the women, Joan or Coral, had said “Don’t wake her up”.
It is difficult to resist Mr Purnell’s suggestion that the appellant’s motive was to “commit another act of indecency upon her”, perhaps regardless of whether she was asleep or awake.
In considering whether I should prefer Leah’s allegation that an incident occurred that night to the appellant’s denial, I again take into account the matters of general credibility I have already discussed, especially the appellant’s consciousness of guilt.
Mr Woinarski’s second argument depends on a comparison of Leah’s various accounts of this incident. As I have said, upon the basis of the account given in this Court, there is no doubt that the appellant’s act was indecent. In particular, Leah said the appellant touched her vagina. And, as Mr Woinarski brought out in cross-examination, Leah told the police in March 2000 that the appellant “started rubbing my hips and then my crutch over my clothes”. However, Mr Woinarski relied on the circumstance that, in evidence in chief before the magistrate, Leah said that, although the appellant “touched everywhere, my hips and my chest”, “he didn’t touch my crutch … I don’t think anyway”. He also relies on the fact that, when he asked Leah whether that was a truthful answer, she replied: “To the best of my ability then, yes, it was”.
However, it seems to me there are two difficulties in treating this evidence as destructive of the account of the event given by Leah in this appeal. First, as I pointed out in para 89 above, Mr Woinarski did not explore what Leah meant by her answer: “to the best of my ability then, yes, it was”. There was at least one occasion in her evidence – it is recounted in para 63 above – when Leah used the word “truthful” to indicate that she was intending to be truthful, not that the answer was necessarily correct. It seems to me that, if Mr Woinarski wished to use Leah’s evidence to the magistrate as a concession of the incorrectness of her evidence in this Court, he needed to go further.
Second, as Mr Purnell elicited, in the course of her cross-examination in the magistrate’s court, Leah did assert that the appellant rubbed her crutch, as well as her breasts and stomach. That assertion was consistent with what Leah told the police and what she has stated in this Court.
In reaching my conclusion on this issue, I have not overlooked that the incident may have awoken Leah from her sleep; the evidence is not really clear about that. Although Mr Woinarski put no particular submission about the point, there are warnings in the authorities about the need for caution in respect of a complaint by a waking child. Probably that need applies more to a case where the issue is whether a particular act was innocent or not, rather than whether the act occurred at all. But I apply the warning in this case. Even so, I am satisfied by her evidence that Leah did observe what she claims to have observed.
I see no reason to reject Leah’s account of the bedroom incident. If it is accepted, it unquestionably establishes the alleged offence. I find charge CC20/2000 proved.
(f)The dining room incident
The evidence concerning this incident is summarised at paras 99 to 112 above. On the account of the incident given by Leah in this Court, it would readily be found that the appellant committed an indecent act upon her near the entrance to his dining room on a date shortly after Leah’s return from the Gold Coast in May 1998. On that version, the appellant stopped Leah in the hallway, pushed her back and, as she sought to escape, pulled open her pants and tried to put his hand down her pants. She said he scraped her vagina as she was trying to get away from him. This incident took place shortly after a more minor incident, on the entrance ramp to the house, when the appellant forced himself upon Leah with a kiss on the lips and a cheek.
Under cross-examination in this Court, Leah stood by the account she had given in evidence in chief. However, the cross-examination revealed that Leah had told the magistrate that, after the incident on the ramp, she left the house and waited in her mother’s car. Later, in her evidence to the magistrate, Leah described an incident in the hallway that corresponded broadly to the incident described in this hearing, except that her evidence to the magistrate made no reference to the appellant scraping her vagina. At the hearing before the magistrate, Leah did not say the hallway incident immediately followed the ramp incident; indeed, it could not have done so, if she had immediately returned to her mother’s car and remained there.
It may be the true position that Leah returned to the car, and remained there, after the hallway incident; and that the evidence came out the way it did before the magistrate because of some loss of concentration or confusion in her mind. Whatever the reason, the discrepancy provides a problem in being affirmatively satisfied about the facts of this incident.
Further, as Mr Woinarski pointed out, there are questions about the date of the incident. In this Court Leah was clear that the incident occurred after, but shortly after, her return from the Gold Coast. Consequently, it would have fallen within the period, 1 May 1998 to 31 December 1998, specified in CC15/2000. However, she said both her parents were present; she remembers them laughing when the kissing incident occurred. Yet Coral Christian said Leah did not attend the apartments after her return from the Gold Coast. Coral Christian could, of course, speak only of the period after which she, herself, returned to Norfolk Island; even so, that answer tends to negative a post-Gold Coast visit to the apartments by Leah in the company of her mother. Coral Christian gave a negative answer to the question: “Can you recall Leah and your husband being in the defendant’s house after you came back from the Gold Coast?”
In fairness it should be said that Enoch Christian recalled his wife, Leah and Kelly visiting the apartments after his wife’s return from the Gold Coast. He also recalled an incident, at about that time, when the appellant grabbed Leah’s hair, while she was on the ramp at his house. However, he did not say his wife was present at that time.
If I had to decide the issue on the balance of probabilities, the result might be different; but these discrepancies of description and ambiguities about dates make it impossible for me to conclude beyond reasonable doubt that the hallway incident described by Leah occurred in the period 1 May 1998 to 31 December 1998. The situation in relation to this charge is different to that in respect of the tickling incident and the bedroom incident, where it is common ground that some incident occurred at about the relevant time; the issue being exactly what happened in relation to touching. As it is conceded that there was an incident, it does not matter if Leah was mistaken about her father being present on the night of the bedroom incident. In the case of the dining room incident, there is an issue as to whether an incident occurred at all. So it is vital for the prosecutor clearly to establish the circumstances of the incident, including its date and who was involved.
In my opinion the evidence concerning the dining room incident falls short of the high standard necessary for a criminal conviction. That does not mean the incident did not occur. It only means that its date and nature are not established beyond reasonable doubt.
The conviction in respect of charge CC15/2000 must be set aside.
(g)Summary
In summary, I sustain the conviction of the appellant in respect of four charges: the two charges involving Gaelene Christian, and two of the four charges involving Leah Christian (the tickling charge and the bedroom charge). In relation to the other two charges involving Leah Christian (the bathroom charge and the dining room charge) I uphold the appeal and set aside the convictions. In doing that, I am not finding that the incidents did not happen and I am not doubting Leah’s honesty as a witness. I am only saying that deficiencies in the evidence do not allow me to be satisfied of guilt beyond reasonable doubt.
I will make a formal order in respect of charges CC15/2000 and CC19/2000 and adjourn for a period of half an hour to allow counsel to consider what submissions they wish to put in respect of the sentence and consequential orders imposed by the magistrate.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 4 May 2001
Counsel for the Appellant: B Woinarski QC Solicitor for the Appellant: J Brown Counsel for the Respondent: F J Purnell SC Solicitor for the Respondent: Norfolk Island Crown Solicitor's Office Date of Hearing: 30 April, 1 and 2 May 2001
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