Police v Marcel Walters (a pseudonym)

CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Marcel Walters (a pseudonym)
Citation:	[2024] ACTCC 3
Hearing Dates:	20 March 2024 to 22 March 2024
Decision Date:	10 July 2024
Before:	Magistrate Stewart
Decision:	Count 1 - not proved Count 2 - proved beyond reasonable doubt
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sexual offences – Attempt incest – Act of indecency on a person under the age of 10 years
Legislation Cited:	Children and Young People Act2008 (ACT) Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Cases Cited:	De Silva v The Queen [2019] HCA 48; 268 CLR 57 Johnson v Western Australia (2008) 186 A Crim R 531 Liberato v The Queen (1985) 159 CLR 507 R v Anderson (2001) A Crim R 166 R v Atai [2021] ACTSC 157 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 R v MZ (No 3) [2021] ACTSC 332 R v Shillings [2003] NSWCCA 272 TheQueen v GW (2016) 258 CLR 108
Parties:	ACT Director of Public Prosecutions (Prosecution) Marcel Walters (a pseudonym) (Young Person)
Representation:	Counsel G. Cuthel (Prosecution) J. Cooper (Young Person)
Solicitors ACT Director of Public Prosecutions (Prosecution) Aboriginal Legal Service (NSW/ACT)
File Number:	CH933/2023 and CH934/2023

MAGISTRATE STEWART:

CONTENTS

INTRODUCTION

JURISDICTION

Elements of the Offences

Charge 1 CH2023/933: Attempted Incest

Charge 2 CH 2023/934: Aggravated Act of Indecency on a Person Under the Age of 10 Years

THE WITNESS EVIDENCE

The Complainant MU

Evidence of UI

The Complainant’s Sister KT

The Mother of MU and TK, BU

The Father TU

Evidence of the Accused Young Person

Police Witness Statements

A Consideration of Liberato

DEFENCE REQUEST FOR s165A(2) WARNING AS TO “CIRCUMSTANCES OF UNRELIABILTY - SINGLE WITNESS ACCOUNT”

CONSIDERATION

Defence Submissions on the AYP’s Evidence and the Defence Case

The Prosecution Case

Assessment of MU’s Evidence

Complaint

Defence Submissions on a Reasonable Doubt

INTRODUCTION

1․The accused young person[1] Marcel Walters (the AYP) is now aged 18 years. He is charged with offences from when he was aged 17 years and 10 months. The allegations relate to 3 July 2023 and his nine year old half-sister who I shall refer to as MU:
[1] Children and Young People Act2008 (ACT) s 12 (CYP Act) defines a young person as a person who is 12 years or older but not yet and adult. The Legislation Act 2001 (ACT) defines ‘adult’ at Part 1 in the dictionary as meaning “an individual who is at least 18 years old”. A child is defined at s 11 of the CYP Act as meaning “a person who is under 12 years”.
(a)CH 2023/933 attempted incest, contrary to 62(1) of the Crimes Act 1900 (ACT) by virtue of s44 of the Criminal Code 2002 (ACT) – carrying a maximum penalty of imprisonment for 20 years; and as an alternative (or back-up) charge:
(b)CH 2023/934 act of indecency on a person under the age of 10 years contrary to s 61(1) of the Crimes Act – carrying a maximum penalty of imprisonment for 15 years.

2․The name Marcel Walters is a pseudonym. It is used so that the accused young person, the complainant (who is a child) and their family cannot be identified in this decision.
3․The context of these allegation occurs within a family unit with two parents, each with their own children, forming a relationship together and creating further children together (including the complainant). I will refer to the relevant family members as follows:
(i)The accused young person: AYP
(ii)The complainant: MU
(iii)The father of MU and the AYP: TU
(iv)The mother of the complainant MU and step-mother of the AYP: BU
(v)The young person older sister of the complainant MU, who is the daughter of BU and the stepdaughter of TU: KT
(vi)The young person boyfriend of KT: UI

JURISDICTION

4․This matter was conducted in the Childrens Court by consent of the parties and by order of the Court. Ordinarily adult matters of this type would be dealt with in the Supreme Court, but this is not necessarily so where the accused is a young person. This is because very different considerations apply in the circumstance of a young person being prosecuted for criminal offences.
5․In this matter no prosecution election form was ever filed[2] and the bench sheets indicated defence consent to jurisdiction on both charges on 13 November 2023.
[2] See Crimes Act 1900 (ACT) s 374 (Crimes Act) which precluded a prosecution election for summary disposal as the maximum penalties for both of these offences exceeds five years.
6․Prior to commencing the hearing proper I invited submissions from the prosecution and defence as to the correct forum for this matter. The prosecution supported the defence election. The Prosecution submitted that if the accused was convicted on the most serious charge (charge 1) there would be sufficient sentencing jurisdiction for the matter to remain in this Court. The prosecution submitted that even if I was not ultimately satisfied of this sentencing jurisdiction, I had a remaining power to commit the accused young person to the Supreme Court for sentence.
7․The defence submitted that the accused young person did not wish to be tried by a jury, and instead sought that the matter be determined by a magistrate in this jurisdiction.
8․I note that due to both of these offences being defined as ‘excluded offences’ under the Supreme Court Act 1933 (ACT), if I had committed the accused young person to the Supreme Court for trial he would not have been able to elect for a trial by judge alone and would have been tried, instead, by a jury: Schedule 2 of the Supreme Court Act 1933 (ACT).
9․Section 375AA has been recently inserted into the Crimes Act 1900 (ACT) by the Crimes Legislation Amendment Act 2023 (ACT).[3] It creates a criminal jurisdiction for the Childrens Court that includes power to dispose of all criminal offences except those punishable by life imprisonment. In that sense, the Childrens Court now has a hybrid jurisdiction to deal with more serious criminal charges than can be dealt with in the Magistrates Court, but has a lower maximum sentencing jurisdiction for each charge than the Magistrates Court - a maximum fine of $5,000, imprisonment for two years, or both, per charge for children compared to a maximum fine of $15,000, imprisonment for five years, or both, per charge for adults.[4]
[3] 13 September 2023.
[4] Crimes Act s 375A.

CRIMES ACT 1900 - SECT 375AA
Summary disposal of certain cases—Childrens Court
(1)This section applies if a person is before the Childrens Court charged with any offence other than an offence punishable by imprisonment for life.
(2)However, this section applies to a case to which section 374 applies only as mentioned in section 374 (6).
(3)The court may proceed in accordance with subsections (4) to (12) if the court considers that it has no jurisdiction, apart from this section, to hear and determine the charge summarily.
(4)The court may invite the person (the defendant) to plead guilty or not guilty to the charge.
(5)If the defendant pleads guilty to the charge, the court may accept or reject the plea.
(6)The defendant is taken to have pleaded not guilty to the charge if—
(a)the defendant does not plead to the charge when invited to do so under subsection (4); or
(b)the court rejects a plea of guilty to the charge under subsection (5).

(7)When the court is satisfied the case is ready to be listed for hearing, the court must ask the defendant whether the defendant consents to the case being disposed of summarily.
(8)The court may hear and determine the charge summarily, and may sentence or otherwise deal with the defendant according to law, if—
(a)the defendant pleads, or is to be taken to have pleaded, not guilty to the charge; and
(b)the court considers that the case can properly be disposed of summarily; and
(c)the defendant consented to the case being disposed of summarily and the consent has not been withdrawn under section 375A.

(9)The court may sentence or otherwise deal with the defendant if—
(a)the court accepts a plea of guilty to a charge; and
(b)the court considers that the case can properly be disposed of summarily; and
(c)the defendant consented to the case being disposed of summarily and the consent has not been withdrawn under section 375A.

(10)Before the court decides whether a case can properly be disposed of summarily, the court must consider the following:
(a)any relevant representations made by the defendant;
(b)any relevant representations made by the prosecutor in the defendant's presence;
(c)the facts of the case;
(d)the seriousness of the alleged offence;
(e)the circumstances in which the offence is alleged to have been committed;
(f)the defendant's age;
(g)the defendant's apparent maturity;
(h)the defendant's apparent mental capacity;
(i)the suitability of the penalties that the court is empowered to impose;
(j)the difficulty of any question of law that is likely to arise.

(11)If the court accepts a plea of guilty to a charge under this section, and—
(a)the court considers that the case cannot properly be disposed of summarily; or
(b)the defendant's consent to the case being disposed of summarily has been withdrawn under section 375A; the Magistrates Court Act 1930, section 90A (7) to (13) (Plea of guilty at committal hearing) applies in relation to the defendant as if the court had accepted a plea of guilty to the charge under that section.

(12)If the court disposes of a case summarily under this section and convicts the defendant of the offence, the court must not impose a penalty that exceeds—
(a)a fine of $5 000, imprisonment for 2 years or both; or
(b)if the maximum penalty provided for the offence by the law creating it is less than the penalty mentioned in paragraph (a)—the maximum penalty.

10․Pursuant to s 375AA(10) I considered:
(a)The submissions made on behalf of the accused young person and, in particular, his desire not to be tried by jury;
(b)The submissions made by the prosecutor in favour of summary disposal;
(c)The facts of the case as summarised to me by the prosecutor;
(d)A consideration of the seriousness of the offences – quite serious and only able to be dealt with in this Court by virtue of this section;
(e)The circumstances of the allegations including the incestual nature of them and the relative ages of the accused young person and his sister the complainant;
(f)The fact that the accused young person is now aged 18 and was at the time of the alleged offences a young person just shy of attaining his majority;
(g)There was no reason or submission that allowed the Court to form any conclusion other than the accused young person was of the usual maturity for his age;
(h)There was no reason or submission that allowed the Court to form any conclusion that the accused young person was suffering from any deficit to his mental capacity such that it would influence this decision;
(i)The sentencing jurisdiction bestowed by the section and the fact that it would probably not be exceeded if the matter was to be summarily disposed of; and
(j)The absence of any question of law so difficult that it weighed against summary disposal.

11․The submissions of the parties and my assessment of the matters set out in s 375AA(10) above persuaded me that this matter was able be properly dealt with summarily and I proceeded to do so.

PRELIMINARY ISSUE OF ADMISSIBILITY

12․By agreement with defence, the prosecution adduced evidence of a recorded conversation between the complainant and her mother BU on a provisional basis with the issue of admissibility to be dealt with later. The exhibit was marked MFI P7 and was a disc that held a recording taken by mobile telephone of a conversation between the complainant and her mother, with some additional input from UI.
13․The prosecution sought to have it admitted as an actual recording of complaint.
14․The defence withdrew their objection in their written closing address. As a consequence the exhibit has become exhibit P7 and is admitted into evidence noting that submissions were made seeking a direction on unreliability of the complainant.

DIRECTIONS

15․Alongside the guidance provided at s 114 of the Magistrates Court Act 1930 (ACT) I considered the seriousness of the charges and the fact that the adults charged with these charges are usually tried by jury in the Supreme Court in this jurisdiction. Based on considerations of fairness, consistency and a proper trial or hearing, I have directed myself as if the charges had been heard before a jury.
16․I have therefore considered it obligatory that I set out:
(a)The principles of law applied: and
(b)The findings of fact which I make.[5]
[5] Supreme Court Act 1933 (ACT) s 68(2).

17․I have taken into account any warning or direction to be given, or comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury.[6]
[6] Ibid s 68C(3).
18․It will be no secret to a learned reader that I have directly utilised many of the directions in the decision of Mossop J in R v Atai [2021] ACTSC 157.
19․I directed myself as follows:
(a)The Crown bears the onus or burden of proving the guilt of the accused. The Crown has asserted that the AYP has committed criminal offences, therefore the Crown must prove that the AYP committed those offences. The AYP does not have to prove that he did not commit those offences.
(b)The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The AYP cannot be found to be guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
(c)The AYP is presumed by law to be innocent of the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
(d)As I am the tribunal of the facts, as well as the tribunal of the law, I must bring an open and unbiased mind to evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the AYP are entitled to my verdict free of partiality or prejudice, favour or ill will.
(e)I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence and is honestly giving evidence of that memory.
(f)I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
(g)I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
(h)I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
(i)In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
(j)In this case the AYP did not take part in an interview with police. He was not obliged to do so. He was exercising his right to silence at the time and no inference negative to his case should be drawn from him choosing to exercise that right.
(k)The AYP gave evidence at his hearing. He was not obliged to do so. His evidence should be treated in the same way as any other witness. Regardless of the fact of his giving evidence, the onus of proof lies at all times upon the Crown. At all times the burden lies upon the Crown to prove each element of each offence beyond reasonable doubt.
(l)Evidence was given by pre-recorded police interviews[7] played in court, by audiovisual link,[8] with the complainant having the assistance of a witness intermediary and with support persons present.[9] Each of these aspects of the way in which evidence was given is a usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given any greater or lesser weight because the evidence was given in these ways.
[7] Evidence Miscellaneous Provisions Act 1991 (ACT) s 57(2) (EMP Act).
[8] EMP Act s 72(2).
[9] EMP Act s 49(5).
(m)I do not give myself either of the warnings or suggestions which are prohibited by ss 80 and 80A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
(n)Liberato direction: I have considered the Liberato direction in detail when considering the evidence in the hearing below. There is no burden upon an accused to demonstrate that a complainant has a motive to lie. Rather, the burden remains at all times upon the Crown. In a case like this where the Crown case is very much dependent on the evidence of the complainant, the Crown must establish that the complainant’s evidence on matters essential to establish the charges is to be accepted beyond reasonable doubt.
(o)Murray[10] direction: As the Crown case is largely based on the evidence given by the complainant, I need to examine that evidence carefully. I am entitled to convict the AYP on the basis of that evidence if I accept it. However, in order for the Crown to establish the charges beyond a reasonable doubt, I would need to accept beyond a reasonable doubt the accuracy of that evidence. It is therefore important that I consider it carefully.
[10] R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315.
(p)Out of an abundance of caution I have directed myself in accordance with the Markuleski[11]direction given the presence of the alternative charge: Each of the charges against the accused must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges because I have a doubt about the evidence of the complaint, who in this case is the central Crown witness, I must consider what effect, if any, the doubts that I have about the complainant’s evidence on that charge have in relation to the other charge.
[11] R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82.
(q)Delay in complaint. There was a delay in some hours before a complaint was made to police in this matter. The absence or delay in making a complaint does not necessarily indicate that the allegation that an offence was committed is false. There may be good reasons why a victim of a sexual offence may not make, or may hesitate to make, a complaint about the offence. In the circumstances of this matter the complainant was a child who made her initial complaint to her sister immediately and in the early hours of the morning. She was taken to police later that day after she had slept for some hours. I will deal with this aspect of the prosecution case in some depth when I consider the defence submissions later in this decision.

(r)Complaint: In relation to evidence of complaints made by the complainant after the event, if I accept that the complaints were made and that evidence is consistent with the evidence of the complainant, then I can use that evidence in two ways:
i.First, I can use evidence of what was said in the complaint as some evidence that the incident did occur as the complainant said. The law says that because of the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I must consider whether I draw that conclusion in this particular case and so treat the complaint as evidence of the alleged incident by the complainant. If I do use it as some evidence of the incident that is the subject of the relevant count, then I must determine what weight to give it.
ii.Second, whether I do use the evidence of complaint in that way or not, the fact that the complainant raised the allegation against the accused at the time and in the manner that she did may lead me to accept the evidence she gave. In other words, it may make her evidence more believable than if she had not raised the allegation as she did. If I use the evidence in that way, I must determine what weight the evidence should be given.

(s)I must, however, bear in mind that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
(t)In this case, where the accused has pointed to what are submitted to be differences between the terms of the complaints made by the complainant and the evidence that she has given, I must give careful consideration as to the significance of those alleged differences and whether they cast doubt upon the reliability of her evidence.
(u)Out of an abundance of caution I directed myself that I should not take into account at all that the AYP is apparently a young person in the care and protection system. That fact had no relevance to the matter other than being part of the factual matrix.
(v)Expert evidence. In this case the reports of a paediatrician Dr Bhavna Chawla (excluding page 3), a forensic medical officer Dr Emily Rushton and a forensic biologist, Jennifer Stone, were admitted into evidence by consent. These reports contained expert evidence. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. The value of any expert opinion is dependent on:
i.the reliability and accuracy of the material which the expert used to reach his or her opinion; and
ii.the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.

The evidence of Dr Chawla related to her assessment of the complainant at the Canberra Health Services Child At Risk Health Unit at 12.56 pm on 4 July 2023. She performed a sexual assault examination on the complainant including taking swabs for DNA analysis and performing and what is called an ano-genital examination. The examination of the complainant’s genitalia and anus showed no signs of injury, trauma or discolouration and neither confirmed or refuted the possibility of inappropriate sexual contact.
The evidence of Dr Rushton related to the taking of DNA swabs from the shaft and glans of the penis of the AYP.
The evidence of Ms Stone related to the analysis of samples taken from the complainant’s body during her forensic examination and the body of the accused young person for biological material. All of the samples taken from the complainant (including low vaginal swabs, labial swabs and perianal swabs) returned trace samples of female only DNA from which she herself could not be excluded as the source. Both of the samples taken from the penis of the AYP provided trace samples of male only DNA from which the accused young person himself could not be excluded.
I must consider the extent to which the opinions expressed by Dr Chawla, Dr Rushton and Ms Stone may be applied in the particular circumstances of this case. I am not obliged to act upon the expert evidence, particularly if the facts upon which the expert’s opinion is based does not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
In this case there was no challenge to the expertise of Dr Chawla, Dr Rushton or Ms Stone or to the results that they set out in their reports. I should therefore accept the accuracy of those results. I must however carefully consider exactly what those results prove and what they do not prove when considering the matters in issue in the case.
(w)Defence have sought a unreliable evidence direction pursuant to s 165A(1) of the Evidence Act 2011 (ACT). I will deal with this when I consider the evidence of the complainant.
(x)Unsworn evidence. The complainant gave unsworn evidence. In accordance with TheQueen v GW (2016) 258 CLR 108 [54 and 56], the fact that the child in this case did not take an oath or make an affirmation (and was not exposed to the consequences of failing to adhere to either) is not material to the assessment of whether the evidence is truthful and reliable. I decline to direct myself to take into account the difference between sworn and unsworn evidence.

Elements of the Offences

Charge 1 CH2023/933: Attempted Incest

20․Section 44 of the Criminal Code provides:
Attempt
(1)If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
(2)However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
(3)The question whether conduct is more than merely preparatory is a question of fact.
(4)A person may be found guilty of attempting to commit an offence even though—
(a)it was impossible to commit the offence attempted; or
(b)the person committed the offence attempted.

(5)For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.
Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).

(6)However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence.
(7)Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.
(8)If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence
(9)The offence of attempting to commit an offence is punishable as if the offence attempted had been committed.
(10)This section does not apply to an offence against section 45 or section 48 (Conspiracy).

21․Section 62(1) of the Crimes Act provides:
(1)A person who engages in sexual intercourse with another person, being a person who is under the age of 10 years and who is, to the knowledge of the firstmentioned person, his or her lineal descendant, sister, half-sister, brother, half-brother or stepchild, is guilty of an offence punishable, on conviction, by imprisonment for 20 years.
(2)-
(3)-
(4)-
(5)A person charged with an offence against this section shall, unless there is evidence to the contrary, be presumed to have known at the time of the alleged offence that he or she and the person with whom the offence is alleged to have been committed were related in the way charged.
(6)-

22․The elements of the offence are:
(a)The accused intended to engage in sexual intercourse with another person;
(b)The accused carried out conduct that was more than merely preparatory to the commission of the offence attempted;
(c)The other person was under the age of 10;
(d)The other person was to the knowledge of the accused, his half sister.

23․In relation to charge 1, it is alleged that the AYP removed the complainants pants and his own lower clothing and applied pressure with either his penis, fingers, or finger or another object to the outside of complainant’s naked genital area (her ‘private parts’) with the intention of effecting penetration on her vagina

Charge 2 CH 2023/934: Aggravated Act of Indecency on a Person Under the Age of 10 Years

24․Section 61 of the Crimes Act provides:
Acts of indecency with young people
(1)A person who commits an act of indecency on, or in the presence of, another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2)However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 15 years.
Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

25․The elements of the offence are:
(a)The accused committed an act.
(b)The act was indecent according to the standards of morality and decency held by ordinary members of the community.
(c)The act is committed on, or in the presence of, another person.
(d)The other person was under the age of 10.
(e)The other person was the half-sister of the accused.

26․In order to prove element (b), the Crown must prove beyond reasonable doubt that the act was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in the community. I must determine the standards prevailing in our community when deciding whether the Crown has satisfied me beyond reasonable doubt that the act alleged in this case was indecent.
27․For an act to be indecent it must have a sexual connotation or overtone. If an act is one which clearly gives rise to a sexual connotation that is sufficient to establish that the act was indecent.
28․The Crown may prove element (e) if it proves that the accused knew that the complainant was not consenting. Element (e) would also be satisfied if the Crown proves that the accused realised that there was a possibility that the complainant was not consenting to the act, but he went ahead anyway. The Crown can also prove element (e) if it proves beyond reasonable doubt that the accused did not even think about whether the complainant was consenting to the act, treating the question of whether she was not consenting as irrelevant. It is enough that the Crown proves beyond reasonable doubt element (e) in any one of these three ways.
29․In deciding this issue, I am concerned with the actual state of mind of the AYP at the time of the act. It is his mind I must consider. It’s not a question of what I would have realised, or thought, or believed. It is not a question of what a reasonable person of his age would have thought or believed. This ingredient of the offence requires that I look at what was going on in the mind of the AYP. In deciding this issue, I can have regard to all the surrounding circumstances.
30․In relation to charge 2, it is alleged that the act of indecency involved the AYP removing the complainant’s pants and his own lower clothing and applied pressure with either his penis, fingers, or finger or another object to the outside of complainant’s naked genital area (her ‘private parts’).

THE WITNESS EVIDENCE

The Complainant MU

31․The complainant was the first witness called by the prosecution. Following the witness intermediary report exhibited at P3, she was born in March 2014 and was 10 years old at the time of the hearing. She gave evidence with the assistance of a sworn intermediary. I determined that MU was capable of giving unsworn evidence. The majority of her evidence was given by way of pre-recorded interview with police and, by consent, I was provided a transcript of that interview to use as an aide memoire.
32․MU said that she asked for the AYP’s iPad in the lounge room and he provided it to her. She went back to her room and he followed her there. He was laying down and when the iPad went black he started being really, really weird. She tried to go to sleep and he kept being weird to her. She pretended to be asleep to see what he was going to do and he kept being weird.
33․When she was asked to explain what weird meant she said that the AYP was tickling her belly and then he folded her pants and he pulled his pants and undies down and pulled her pants and undies down as well. She then felt something round on her ‘private’ and gestured to her groin. She did not see the round thing. She said that it felt like a push, a little bit.
34․The push was in the middle of her private, like all of her private and it was going straight. It did not feel good because the AYP was being really weird.
35․MU then said “I’ll be back” and she went to her father’s room but her father wanted her little sister to get to sleep and she said ‘ok’ to that. The AYP had followed her to that room and she tried to tell her dad but she couldn’t because he was coming up.
36․The AYP followed her back to her room and she said “I’ll be back”. The AYP said that he was going to get a drink and she then ran to her sister KT.
37․An attempt was made to ascertain why she had not complained to her father when the AYP was coming. She said:
“Because I just didn’t want – because last time- because when I told my dad yesterday about the AYP not knowing, um, (the AYP) told my dad, “did you do it?’ And then the AYP was just lying, that he didn’t’.”
38․She was then asked:
Q52. Just so I’m clear, when you told your dad, he spoke to the AYP and asked ‘Did you do it ?’ and, the AYP said – lied and said he didn’t?
A Yes, when he did.
39․MU confirmed that she was on the lounge when she asked the AYP for his iPad and that he was watching a movie named Vacation. She had asked him for his iPad because her iPad was flat and she couldn’t find the charger.
40․It was 3.30 when she had gone to tell her older sister KT and when KT woke up her mum ‘it hit 4’ and that this was in the dark time.
41․After the AYP had given her his iPad he had followed her to her room after about five seconds.
42․The AYP started to tickle her belly and do it weird. She was in her room sitting on her bed. She tried to fall asleep because she was really tired but he was still just tickling her belly.
43․At this stage both were lying on the bed although the AYP did not also have his head on her pillow.
44․The AYP pulled her over to him and folded down her pants down. He used both his hands to do this and she ended up on her left side. He then pulled her pants down and she felt him pull his pants down.
45․She felt a round thing in the middle of her private. She thought that the round thing was his private because she had previously bathed with her father. She did not know why she thought it was his private.
46․The activity felt like a stick was pulling and it was hurting because he a little bit pushed too far. That pain lasted for one second. He had been pushing for about two seconds and she then went to her dad.
47․She said to the AYP that she’d be right back because she didn’t want the AYP to know, because he must have thought she was going to tell their father.
48․The AYP said that he was going to the kitchen to get a drink and she went up to her dad. Then the AYP came (to their dad).
49․She then went to KT’s room and told her what happened. She told KT what the AYP did and KT got out of her room to go tell and wake up their mum.
50․MU went to her mum’s room and her mum told her to sleep in her bed and have a little nap.
51․She saw the AYP on the couch. He didn’t look at MU or do anything to her. Her mum and dad went to go tell him if it was true and he lied.
52․MU could not see much in her room. Her TV stayed on and her door was open.
53․Her pyjama pants were long Lilo and Stich character pants and they were blue, pink, light blue and dark blue. She had a pyjama top with a cat logo on it and blue undies on. The AYP was wearing black shorts, a black t shirt and a gold watch.
54․She described the AYP as have peachy skin that goes white when she touches it. He has white freckles on his body. He is nice and he shares but he is weird. He is weird to nine year olds and she is nine. She could not say what made her think he was weird.
55․The AYP had been playing a game called Roblox on his iPad and she had been playing a game named Caveman.
56․When MU was in her bed and the AYP was there he just kept saying “are you ok?” and she said “I’m fine”.
57․There was a blue pillow, a blue pink and aqua sheet and blanket on her bed and she was lying on top of them. Neither she or the AYP ever went under the blanket and he did not lie on the sheet.
58․She said to police in conclusion “um, no, that’s just it and is what happened”.
59․She was asked further questions in evidence-in-chief by the crown prosecutor.
60․MU went to her dad’s room to go and tell him what happened.
61․She was not able to answer questions about why she wanted to tell her dad what happened, or what was weird between them or what she meant when she used the word private.
62․When she was lying next to the AYP she was looking at the floor and her legs were next to his legs. She was putting her legs straight and his legs were straight too.
63․She did not understand when asked to explain what the middle part of her private was.
64․She was not able to articulate where she felt the hurt the hurt on her body. The witness intermediary told the Court that the witness was indicating an area on her body but MU was not able to verbalise this. I ignored what the intermediary told me as being inadmissible because the evidence did not come from MU herself and I was not able to see her gesticulation because of the presence of a table in the witness facility and the camera angle.
65․MU forgot what she told her mum on the night. She was played a recoding of part of that conversation and identified herself and her mum speaking in it. MU said she knew that the conversation was being recorded.
66․A copy of the conversation and transcript of the recording is exhibited at P6.
67․In that recording MU said that the AYP came into her room and was watching her play Roblox. The AYP was laying down on top of the doona next to MU. He was getting weird, doing weird stuff to her.
68․When asked she said that he was tickling her belly and then he did the leg and did the doodle. When asked to explain she said that he grabbed her leg and put it not his and he was moving with his clothes still on. The he did the doodle.
69․The AYP pulled her undies and pants down and he was behind her. She then thought he was asleep and he pulled her to her side to face her.
70․The AYP pulled his pants down and she agreed when led that she could feel his skin.
71․When asked “where did his doodle touch you?” she said “in the middle”. She did not know how she knew it was doodle but it felt like a round thing.

72․MU then told him “I’ll be back”, the AYP climbed over her on all fours and she went up to dad. Dad told her that he need to get (the baby) asleep and she went to her room. MU followed her to her room. She said “I’m going to bed” and he waved to her and said bye and goodnight. MU then went to her sister and told her.
73․In cross examination MU agreed that she sometimes stayed up late but disagreed that she had trouble sleeping. She disagreed with propositions that she felt stressed because she could not get to sleep, that she went and saw her mum or sisters because she couldn’t sleep, that her parents sometimes told her she looked really tired and that she sometimes looked grey in the face because she was tired.
74․MU agreed that she felt anxious about going to school sometimes and that she does school at home most of the time. She did not agree that she took pills from the doctor for her anxiety.
75․MU agreed that she spent a lot of time at home with her sisters and mum and that they teach her everything she knows. She agreed that when they teach or tell her things that she believed they were the truth.
76․She said that prior to the AYP coming to live with them people in her house would talk about him a little bit. She denied that people said the AYP was weird and that mum would say he was weird. She did not know if KT said that the AYP was weird sometimes and that KT did not say to stay away from the AYP. KT did say that MU had to keep her clothes on around the AYP, but KT did not say that because the AYP was weird.
77․She agreed that sometimes she played computer games for a long time and it was hard to stop playing sometimes. She agreed that she put a lot of effort into winning games and getting lives and doing well in the game and that Roblox was one of those games.
78․She disagreed with propositions that she got upset when she died in the game, that she got upset when she wanted to play but can’t, or got upset when her parents have taken a game off her, or when she was tired and hungry little things made her upset.
79․MU did not agree that the AYP was in the shed or garage when she asked to borrow his iPad. She disagreed that the AYP originally said no to her borrowing his iPad and that she was not upset with him. She agreed that the AYP did give her the iPad and that she went back to her room with it and played Roblox.
80․MU did not agree that the AYP stayed in the shed after that.
81․MU did not agree that the battery on the AYP’s iPad then went flat. Nor did she agree that she was upset about that as she maintained that the battery had not gone flat on that device. She did not agree that the AYP came to her room and asked for his iPad back. She was not annoyed at him. She did not agree that the AYP walked in and picked up his iPad off the floor and then left it because the battery was flat. She did not agree that the AYP then walked out of the room.
82․MU agreed that the AYP walked up the hall. The context of that agreement was not clear.
83․MU disagreed that she couldn’t sleep in her room and that she followed the AYP out of her room. She did not agree that the AYP was in their Dad’s room getting blankets but agreed that she did want to speak to her dad and that he was busy with the baby. She did not agree that she was upset by that.
84․MU did not agree that the AYP went back to the lounge with blankets. He did start watching TV and she did go back to her room, but she did not close the door.
85․MU then went to see her sister KT. She was not feeling tired when she spoke to KT. It was not 3.30 in the morning and she was not upset that she couldn’t sleep. She was not upset that she couldn’t play Roblox anymore. Nor was she upset that the AYP’s iPad had died or that her dad didn’t want to listen.
86․MU knew that KT hated the AYP and thought that KT thought he was weird a little bit. MU agreed that she want her sister’s attention and that she had told her that MU was being weird.
87․MU said that KT did not start asking her questions. KT did not ask her if the AYP had touched her and did not ask her about the AYP’s doodle.
88․MU agreed that KT had first told their mum BU what had happened and that BU then started asking questions. She agreed that BU seemed really worried. BU did ask if the AYP has pushed his doddle into her private. MU did not feel confused about the questions.
89․MU was asked:
MR COOPER: Is it possible you think what happened with the doodle happened because (BU) and (KT) said it happened?---Yes. (I note that whilst the answer was given, at the time, I thought that this question was not properly understood by the witness because it contained too many propositions)
90․MU said that BU had not asked her again and again what had happened. BU did not make her say it lots of times. Each time she had to tell BU she did not talk about new things from times before. BU did ask her if the AYP put his leg over her.
91․MU agreed that the AYP did not put his leg over her and that she was pretending to sleep and that she had her knees up in front of her in a sleep position.
92․MU agreed that BU did not fold her pants down or look at her vagina and say it was red. BU did not ask her what happened again the next morning but did ask for her story again before going to the police station.
93․MU agreed that she went with her father TU to live at a different house. She was not feeling okay about the AYP at the different house and she was not thinking that maybe it didn’t happen. She was not confused about why all of this was happening.
94․She agreed that then she went back to live with both her parents. She agreed that Mum had told her that she believed her. She agreed that mum had said that the AYP had to go to jail.
95․MU agreed that she got an iPhone for her birthday and that it was an iPhone 14. It was not something to do with the AYP and was not for what she was doing to the AYP.
96․MU agreed that recently she was living with both mum and dad and that she was feeling stressed about giving evidence in court. Her mum had asked her to practice her story with her.
97․MU did not agree that her mum had asked her lots of times or that mum said the story was wrong sometimes. She agreed that mum did tell her to tell the court that something with the AYP had happened.
98․In re-examination MU said that she had stopped using the AYP’s iPad because she wanted to go and tell KT. MU forgot what she had first said to her mum about what happened with the doodle.
99․MU did not know why she had said ‘yes’ to defence counsel’s question about whether she said the doodle thing happened because her mum and sister said it did. I formed the view that MU did not understand this question and this confirmed my view that MU did not understand the original question in cross-examination.
100․MU did not remember where her legs were when the AYP folded her pants down.

Evidence of UI

101․UI is aged 16 and gave sworn evidence. He lives in the care of BU and is in a relationship with BU’s daughter KT. His record of conversation with police from October 2013 is exhibit P8.
102․On the night in question he was laying down with KT. MU came into the room and whispered into KT’s ear. He and then KT got up and went and woke up BU to tell her what had happened. He got ‘really pissed off about it’ and went to the AYP and threatened him by saying “if it’s true I will stab you right now on this couch”.
103․UI then returned to BU’s room where the complainant told them about 10 times what had happened. He then returned to the AYP and threatened him by saying ‘this better not be fucking true. Otherwise I will bash you on this couch. Each time the AYP denied the allegation by saying words like “No. I swear to God it’s not true. I don’t do that’. I thought that those denials were important as was the fact that they were extracted by significant threats of harm.
104․The next day UI and KT took the sheets and a pillowcase off the bed for evidentiary purposes.
105․He observed that MU did not deserve to go through ‘that stuff’ and that her father appeared to not believe her on the night. TU said ‘Stop lying. Stop lying’ to MU and was told to get out of the room by his wife BU.
106․UI was laying down with KT in KT’s room from about midnight.
107․MU knocked on the door and looked pale and frightened. She went to KT and whispered in KT’s ear. He then wanted to go out and stab the AYP to death.
108․MU said that “(the AYP) was acting real weird and, like, just going under the blanket and, like, touching all her legs and stuff”.
109․UI described the AYP as being fat and ugly with freckles all over his face and that he was a blondish ‘rang-er’ (as in having red hair) and aged about 17 or 18.
110․UI said that the AYP knocked on the door at about 12.30 to 1.00 and that it occurred roughly four months prior to the interview.
111․When KT told UI what MU had told her, MU said to him “(UI) please don’t hurt (the AYP). Please don’t hurt him.”
112․They went to BU and told MU to tell BU exactly what happened. He thought that BU was shocked. BU requested he and KT to wake BU’s husband TU and they went and woke him up. TW was laying down in the baby’s room trying to get her to sleep.
113․KT woke up TU.
114․UI left BU’s room to give the family some privacy. He went out to the AYP who was in the dining room on the couch. The AYP had pants on and an Adidas jumper. He looked like a big chubby boy with a fat face with freckles all over it. He then threatened the AYP who denied doing anything to MU.
115․UI knew that the AYP was TU’s son and had only known him for about two weeks prior to the incident. He thought that the AYP was just another kid but felt that there was something weird about him.
116․UI said that KT had told him that the AYP was a bit weird and that everyone thought he was weird. UI thought that he was a bit weird too.
117․UI went out to the AYP a second time, threatened him and he seemed real scared. The first time he went out the AYP was laying there with his eyes wide open.
118․UI said that he had not spoken to anyone else about the incident and didn’t really speak about it much any more. He had kept it between BU and everyone else.
119․UI could not remember what the AYP was wearing on the night.
120․In cross-examination UI agreed that he had a big gold watch on his right wrist in Court and that BU was his foster mum and that he was in a relationship with her daughter KT.
121․He agreed that it would have been hard for him to live in that house if he had said to BU that he believed the AYP.
122․UI had been living with BU in the same house and agreed that everyone talked about important things that were going on at home. He did not agree that this case had been on everyone’s lips and denied that there had been discussions about what everyone was going to say in court.
123․On the topic of preparing for court, UI said that he had not seen BU practising with MU.
124․UI gave straight forward evidence. He is young, immature for his age and appeared to be quite fixed in his own belief system. I detect some exaggeration and a significant element of self-aggrandisement in his version. I thought that he told things as he thought they were and despite his over-protective nature was attempting to tell me the truth. I thought that he was a relatively reliable historian.

The Complainant’s Sister KT

125․KT is aged 16 and has the same biological mother as the complainant and lives in the same house as them. She took part in a recorded conversation with police on 17 October 2023 and that interview was played as the main portion of her evidence in chief. It is tendered as exhibit P9. Parts of that interview were, by agreement of the parties, redacted with leave of the Court.
126․KT told police that MU came into her room and said that the AYP was being really weird. She looked pale and sick looking. KT asked her what happened and she said:
127․“I don’t want him to get into trouble and I don’t want to get in trouble either.” She then whispered in KT’s ear that the AYP was “touching her, like, private parts.”
128․KT then told her boyfriend UI and they both went and told her mother what MU had been told had occurred.
129․She saw the AYP sitting on the lounge like nothing had happened and went into her mother’s bedroom. It was 3 or 4am in the morning.
130․They woke KP and the complainant’s mother and the complainant told her everything that happened. Her mother recorded it. The complainant then told her father TU what had happened and he said “(MU), stop fucking lying”.
131․UI then went out to the AYP and started yelling at him. The AYP said “Oh, I didn’t do it. I didn’t do it”. They then went back into her mother’s room.
132․KT was then asked some specific questions by police. She told them that the AYP had come to stay with them for a few days and mostly hung out with his father TU.
133․KT had not been doing much the day prior to the event. She had been playing Minecraft with her boyfriend and “chilling and stuff”. Everyone in the family was in the house that night.
134․MU had come into her bedroom at about 3.00 or 4.00 in the morning. KT was in bed with UI. MU knocked on the door and asked to come in. MU displayed the same really bad anxiety that she had showed when her parents were leaving her.
135․MU said “(the AYP)’s being really weird”. KT said “what’s he doing?”. MU then said “He’s touching me, like, being really weird.”
136․KT was asked about the AYP being on the lounge after MU’s disclosure. She said that the AYP was lying on the lounge with a blanket over him like nothing had happened. He was watching TV. When her mother was asking questions KT thought that he was pretending to be asleep.
137․KT told police that MU had told KT in their mother’s room that MU had initially gone to her father’s (TU’s) room before going to KT’s room. The AYP followed MU to TU’s room and MU couldn’t say anything to her father. TU then asked her to leave because he was trying to get a baby to sleep.
138․In the presence of KT, in their mother’s room, MU had complained of the following:
“Um so I’m pretty sure they were laying in bed in (MU)’s room. And – no, so (MU) was laying in bed – no wait. So MU asked for the iPad off (the AYP) because he was in the loungeroom. To play Roblox, I think, or to watch YouTube. Um, and then she grabbed the Ipad and went into her room…And then, um, he started laying down with her. And then, um, (MU) was trying to sleep, Like, she was acting asleep, because (the AYP) started being weird. Um, and she said that they were on top of the sheets and not under them. Um and he um started, like, touching her legs and her, like, private part and stuff. And then, um, um, I’m pretty sure she – she said, like – ‘his doodle’, like, touched her, or something. Um, and yeah, that’s what she said.”
139․KT’s mother filmed part of this and KT was asked to leave her mother’s room. She then went back to her own room and whilst on the way had seen the AYP acting asleep.
140․She had seen UI yell at the AYP from her mother’s room. UI said “If this it true” and the AYP said “No, I didn’t do it, No I didn’t do it”. UI then said “Well, you better not have”.
141․Later that day KT and her mother went with MU to the police station. She put the AYP’s jumper and iPad in plastic bags.
142․KT told police that she thought that MU understood what “private parts” and “doodle” meant. I note that (at least in the unredacted parts of the interview) KT was not asked to explain the meaning of those terms herself or explain any common family usage or definition of those terms.
143․After her recorded evidence was played, KT was asked further questions by the prosecutor in Court. She gave evidence about a floorplan of the family home that she had drawn in her police interview (exhibit P10). Little turns on that floorplan.
144․KT told the Court that the AYP was sleeping in the loungeroom on the lounge. He didn’t really have any possessions with him for that stay.
145․She confirmed that she and UI had been playing Minecraft before retiring to bed at about 1.00 or 2.00 am. Before going to bed KT saw that the AYP was laying on the lounge watching TV. She could not remember if he was alone or what MU was doing.
146․She described her relationship with the AYP as being “very close and I did love him a lot, like, he was a brother to me. But the, I guess we just drifted.” They drifted “...before he moved out to go live with his other family”. That occurred in about 2021 or 2022.
147․KT explained that MU had come into her room and was standing near her bed. She said that MU whispered in her ear so that UI didn’t get “mad or something”.
148․KT told her mother that MU said (the AYP) was being weird and was touching like her private parts”. Her mother then woke up her step-father TU. TU then said “Stop fucking lying MU” and then her mother asked MU some questions. KT was present for those questions but could not remember more about the conversation.
149․KT confirmed that MU had used the word “doodle” previously and in the context of her interview, that MU understood what the word meant.
150․Although it was not specifically asked, I took judicial notice of the fact that “doodle’ is a commonly used colloquial term for “penis”.
151․In cross-examination KT agreed that the AYP was only staying in KT’s family home for a short time on this occasion. She could not remember if he had to pack his blankets away in the baby’s room.
152․She couldn’t remember if she had, in fact, seen the AYP watching TV in the loungeroom at as late as 11.00 pm.
153․She denied being part of any conversation about the AYP being weird. She did not say to MU all the time “don’t fucking go near the AYP MU, make sure you put your clothes on”.
154․She disagreed with the proposition that she did not want the AYP moving in with them. Rather she did want that to happen and she had felt sorry for him.
155․When MU had come into KT’s room she did not ask her if the AYP had touched her. And she did not ask MU if he had touched her private part.
156․She agreed that she was living with her mother at the time of the hearing and that the case was an important thing in the family business. She said that there had been no discussions about what everyone was going to say in court.
157․In that context, KT said that her mother had not been practising with MU.
158․I thought that KT was truthful and reliable and did her best to remember what she could and in the detail that it was presented at the time. The level of detail that she provided was important because of her age and her obvious understanding of the seriousness of the allegations. It reflected the level of detail that MU had provided to the police and court and in her telephone recorded complaint. I concluded that KT was not exaggerating or being unfavourable to the AYP in her evidence, but that she was perhaps reluctant to disclose the full detail of her past and present dislike for him.
159․That reluctance may have been the result of traditional and careful witness preparation and not disclosing what might be thought to be bad character evidence or just reluctance to disclose the entirety of her dislike. Either way, it did not affect my overall assessment of her.

The Mother of MU and TK, BU

160․BU attend a police station in October 2023 and took part in a recorded interview with police. Once again, by virtue of an agreement between the parties, some irrelevant and/or inadmissible portions of that interview were redacted by order of the Court.

413․Defence submitted that there were inconsistencies between MU and BU’s evidence. I note that I have already made a ruling on the unreliability of BU.
414․The first inconsistency defence identified was the sequence of the assault. BU said that MU was assaulted and then rolled over and pretended to be asleep. MU said that she was rolled to face the AYP and then the assault happened.
415․I make the following observations. Firstly, I found that BU was not reliable. Second, utilising BU as a foundation for showing inconsistency revolved around her capacity to remember MU’s version correctly. I find that MU is not inconsistent – BU is inconsistent with MU and MU’s version should not be accepted. The submission is rejected.
416․Defence submitted that there was a further inconsistency between the two. They pointed to BU saying that the AYP put his leg over MU and then was ‘humping’ her. MU gave evidence that’s he was lying on her left and he was behind her and he was moving.
417․I make the same observations about BU’s unreliability. I formed the view that she exaggerated MU’s complaint and that where it diverged from the evidence of MU and KT her evidence should be ignored. This submission only further confirms my view that it was BU who was inconsistent and not MU.
418․Defence submitted that MU’s ‘flat denial’ of having a red mark on her vagina created an inconsistency with her mother. I make the same point – I have rejected the evidence of vaginal redness. It was not repeated to TU, or the staff at the hospital where MU was subject to a forensic examination.
419․I find that MU’s evidence was inconsistent with BU’s evidence about the redness, because it was a lie made up by BU. The submission is rejected.
420․I did not understand the fourth submission on this topic to be a complaint about MU being inconsistent. It was an attack of MU’s credibility by way of being coached by her mother for giving evidence. Defence pointed out an inconsistency between MU and BU’s evidence using MU as the foundation to prove BU’s inconsistency. The topic was BU talking to MU about her evidence. MU said that her mother did talk to her about giving evidence and told her to tell the court that the thing with the AYP happened.
421․It is important to review the questions to MU on this at page 55 of the transcript:
And have you been feeling stressed about giving evidence in court?---Yes.
And did Mum ask you to practice your story with her?---Yes
Did she ask you lots of times?---No
Did Mum say you got the story wrong sometimes?---No
Did Mum say that she wants you to say that it happened?
HIS HONOUR: Did you understand that one MU?---No
MR COOPER: Did Mum tell you to tell the court that the thing with the AYP happened?---Yes
422․The difficulty with these questions was that they were not quantified with the witness by either party. That is, how did MU’s Mum practice with her? What did that mean to MU? It should have been dealt with in re-examination to determine if MU understood the questions and what her answers actually meant. That did not occur.
423․The tribunal of fact cannot speculate. The sum total of the evidence was that BU had asked MU to practice her story with her. MU was not asked if they did actually practice her story. BU did tell MU to tell the court that the thing with the AYP happened. MU had already told KT that at the time, told her mother that at the time and the police that late that day. It was an issue that I thought required consideration with regards to the reliability of MU.

424․It was not surprising that BU had asked MU to practice and not surprising that MU was told to tell the court that the incident did occur. I did not believe BU’s denials of this.
425․The fact is that MU’s evidence in court was consistent with her earlier recorded complaints and the pre-recorded police interview with KT. Nothing new came out of BU’s endeavours – whatever they were.
426․I thought that this matter might not affect my assessment of MU’s truthfulness and reliability – rather I thought that she had withstood this extra level of parental pressure and remained truthful and reliable. For example, at the hearing MU did not expand her complaint to include vaginal redness or a ‘hard’ and round thing touching her.   Put another way, despite the unwise behaviour of BU, MU was consistent with her prior evidence. I still decided to further consider the submission.
427․Defence submitted that MU’s evidence was contaminated and that there were eight indicia of influence. They submitted that the contamination was such that MU could not be accepted beyond reasonable doubt.
428․First, defence submitted that MU was vulnerable to influence from her sisters. MU agreed that she was home schooled and that her mum and sisters taught her everything that she knew. She accepted that KT had told her to keep her clothes on around the AYP.
429․Second, the females in the family had taught MU and the AYP was weird.
430․Third, MU had a motive to say that the AYP had been weird because she wanted attention, that she could not sleep, it was past 3.00 am, she was tired, she was anxious, she was only nine years old and her father had rejected her attention because of the baby. I thought that this submission was a long bow to draw. It was never put to MU that she had made up the complaint to get KT’s attention. I repeat the relevant portions of page 50 of the transcript:
Were you upset because the AYP’s iPad had died?---No
Were you upset that dad didn’t want to listen?---No
You knew that KT hated the AYP?---Yes
You knew that KT thought he was weird?---A little bit
You wanted KT’s attention? Yes
And so you said to KT that the AYP was being weird?---Yes
I just want to talk to you about what you said to KT, what happened in that conversation. Did KT start asking you questions?---No
Did she seem worried about what weird meant when you told her?---Yes
Did she ask if the AYP touched you?---No
Did she ask about his doodle?---No
431․I considered that MU was saying she wanted KT’s attention because she wanted to complain about the AYP’s sexual misbehaviour, not because of this defence theory. I rejected the submission.
432․Fourth, the defence submitted that there was a real risk that the complaint started out as being weird, but developed into a sexual assault complaint because of BU’s leading questions.
433․I considered that this submission ignored the nature of the complaint to KT that the AYP had been touching her private parts.   I thought that this submission was baseless and rejected it.
434․Fifth, the defence submitted that the recorded complaint by BU was concerning. This submission concerned the behaviour of BU. Defence submitted that she made the recording because she was worried that MU would not remember her lived experience. BU denied this in evidence. Defence further submitted was that BU knew that MU’s story had come out by way of leading question rather than lived experience and, presumably, therefore had to be preserved because MU would forget it.
435․This theory was not put to any witness. I rejected it.
436․Sixth, the defence criticised the decision to ‘delay’ going to police. Defence repeated what BU said in her evidence “I wanted her to have a couple of hours sleep before, obviously, bringing her to police. So, you know, she could remember…”
437․I did not understand how allowing a nine year old to get her first sleep of the night before taking her to police was an indicia of influence. From BU’s perspective MU was nine years old, she had been sexually assaulted, it was well after 4.00am in the morning and MU had not yet gone to bed.
438․I saw no basis for this submission and rejected it.
439․Seventh, the defence reiterated the inconsistencies between BU and MU’s evidence. I have already dealt with this submission. In any event, it mitigated against influence by BU, because MU was consistent in her evidence.
440․Eighth, defence submitted that BU knew that MU could be brainwashed. They pointed to BU’s evidence that when MU returned home after three months living with TU her attitude had changed. MU wanted the AYP to go to jail. The defence pointed to this question and answer in cross-examination:
MR COOPER: Is it possible you think what happened with the doodle happened because (BU) and (KT) said it happened?---Yes.
441․The question was followed up in re-examination and MU answered that she did not know why she had said ‘yes’ to defence counsel’s question. I thought then and confirm know that MU did not understand either question.
442․Both questions were multi-part and too confusing for a ten year old to understand. I concluded that the answers had no weight in those circumstances because they were misleading or confusing. I rejected the submission.
443․The overall eighth submission was not put to MU. TU denied brainwashing MU. I did not accept BU as being reliable. I rejected the submission.
444․Defence submitted that BU, TU and KT were not credible. Defence submitted that there was a real risk that they were discussing their evidence with each other to try and control the outcome of the case.
445․I agree that BU was not credible. This submission ignores the true position that TU was in. He was not advocating for the AYP or MU – he wanted the court to resolve where the truth lied.   I find that he did not want to control the outcome at all. I reject the submission.
446․Defence made further submissions on this issue and pointed out that TU and BU disagreed about the brainwashing. I have already resolved that BU is not a truthful or reliable witness. In my view, TU’s answer resolved the issue – he had not brainwashed MU. Her consistency in her evidence showed that to be correct. I rejected the submission.
447․Defence submitted that KT’s denial of BU’s evidence “But KT used to say all the time, ‘Don’t fucking go near the AYP MU. Like, make sure – put your clothes on” confirmed the overall submission about collusion.
448․That could not be so. The denial by KT meant that she was in disagreement with her mother – this was not a display of collusion at all. I rejected the submission.
449․Defence correctly submitted that KT had given evidence that she had wanted the AYP to move back into the house prior to the incident.   BU then gave evidence next day and aid that another daughter had wanted the AYP out of the house. This was submitted as evidence of collusion.
450․KT denied that there had been discussions about what everyone was going to say at court. I have determined that BU is not truthful or reliable. I rejected the submission.
451․Defence submitted that KT made out that she liked the AYP when MU gave evidence that KT the AYP and thought he was weird. I reminded myself of the actual questions put to MU:
You knew that KT hated the AYP?---Yes
You knew that KT thought he was weird?---A little bit
452․There is an obvious inconsistency between MU and KT. On this occasion it would appear, strangely, that the defence is preferring the evidence of MU.
453․I thought that the fact that defence were now relying on MU to show some type of conspiracy fuelled by family dislike of the AYP was hypocritical given the attempts that they had previously made to discredit MU. However, the household female dislike for the AYP was a relevant issue and I thought that it had to be a consideration for assessing whether or not the prosecution case succeeded.
454․After that process of scrutinising the defence submissions, these matters remained relevant considerations for assessing MU’s evidence and the persecution case generally:
(a)The dead iPad battery inconsistency;
(b)BU had asked MU to practice her story with her. MU was not asked if they did actually practice her story. BU did tell MU to tell the court that the thing with the AYP happened;
(c)MU was vulnerable to influence from her sisters;
(d)The females in the family had taught MU and the AYP was weird;
(e)The house dislike for the AYP, capably expressed by the level of vitriol expressed at the hearing, had influence MU to make a false complaint

FINDINGS

455․After taking the residual five defence submissions into account I scrutinised the prosecution case in accordance with the directions.
456․After considering:
(a)The content and manner of MU’s account with her complaint evidence;
(b)The timing and nature of her complaints;
(c)Her distress at the time of making her complaint to KT;
(d)The consistency between her account and the complaint evidence; and
(e)The consistency between her account and the account of KT.
I found that MU was to be believed beyond reasonable doubt.

457․That, of course, meant that her evidence had negatived the defence case beyond reasonable doubt. Put another way, after scrutinising the prosecution case I did not think that the AYP’s evidence was possibly true – it was proved to be false and I had no doubts that were reasonable about his innocence.
458․That finding was not the end of my consideration of the matter.
459․I thought that there was requirement to make a finding about what part of the AYP’s body was used to touch MU’s vulva given that I had accepted MU’s evidence. The AYP was aged 17 at the time. Common sense and life experience must play a role in the determination of facts in criminal cases. I made these findings in light of MU’s evidence being accepted on the criminal standard:
(a)MU did not see a penis and she could not see much in the bedroom;
(b)MU thought that the round thing might have been a penis;
(c)Prior to her pants coming down the AYP had been moving - simulating intercourse - behind her;
(d)The body position with clothes off that MU described mitigated against the use of any of the AYP’s body parts besides an erect penis or fingers to apply pressure to MU’s genitalia – they were facing each other laying down beside each other;
(e)There was no evidence of ejaculation;
(f)There was no evidence of penetration;
(g)MU said nothing about the round thing being lor feeling, long, hard[14] or heavy;
[14] There was mention of the term ’hard round thing, not a finger’ in the statement of Officer McLennan dated 14 September 2023 at [6] (Exhibit P13). This was his account of what another officer named Solly had told him the complaint was about. Counsel did not make an issue of it. BU was not asked about it and she was the witness who telephoned police. MU did not ever say something that reflected a ‘hard round thing’. I put it aside as an exaggeration by BU or accidental misrepresentation by Officer Solly.
(h)The AYP was seen almost immediately after this event by his father;
(i)No person gave evidence about seeing an erection in the AYP’s pants;
(j)MU was old enough to understand that a penis might have been used when the AYP’s pants came down. She was not old enough to understand what a flaccid or erect penis felt like on her own skin;
(k)It is not possible to accept that the AYP affected enough pressure to cause pain to MU’s genitals with a flaccid penis;
(l)It is not possible to accept that, at his age and apparent good health, the AYP experienced an erection strong enough to apply enough pressure to cause pain to MU’s genitals and then lost that erection almost immediately and without any evidence anywhere of ejaculation;
(m)The shape of the pads of fingers and thumbs are round.

460․I found beyond reasonable doubt that the ‘round thing’ thing was not a penis, it was a thumb or a finger.
461․Despite believing MU’s account of what occurred physically proved beyond reasonable doubt, I was still not satisfied that there was an attempt to penetrate her vagina or anus. I made that finding because I was not satisfied that there was there was evidence of an intention to effect penetration or do anything other than the external sexual touching that took place.
462․I cannot find beyond reasonable doubt that the sexual touching was preparatory to sexual penetration. There were no words spoken and no evidence of what the AYP’s intentions were other than what he expressed in his physical behaviour. He was aged 17 at the time and cannot be expected to have any great degree of sexual experience or skill. It was not light. There was no evidence that the AYP had displayed any prior grooming or sexual behaviour towards MU. There was no evidence to suggest that the AYP intended to commence sexual offending against his sister with penetrative intercourse. Put another way, the Crown did not prove beyond reasonable doubt that the AYP intended to do anything more sexually than I have found proved that he did.
463․I did not think that the Markeluski direction should have had any role to play in my consideration of the second verdict given the basis on which the first charge could not be proved. That is, the reasonable doubt that I had on the first count did not cause any effect on my assessment of the evidence relating to the second charge.
464․I am satisfied beyond reasonable doubt that the AYP’s intention was to touch and then apply brief external pressure to MU’s vulva with his thumb or finger. I find that the circumstances of this sexual touching were that the AYP had got into his half-sister’s bed, whilst they were clothed he laid behind her in a ‘spoon’ position with her lying on her left and he simulated intercourse from behind, he then pulled her over and whilst they were facing each other pulled her pants and underpants down to expose her genitals and that he had also pulled his own pants down. He then touched and applied external pressure to MU’s vulva with his thumb or finger for two seconds. It caused pain for one second. The offending stopped when she got out of bed and went to her father’s room to complain. She felt constrained from complaining because the AYP had followed her to her father’s room, so instead she went to her sister’s room and complained.
465․I do not know if the AYP went to his father’s room to hear what MU would say or if he did so to spoil her ability to complain. I accept that, at that time and in full knowledge of his offending, The AYP was in fear of retribution from his father.
466․I find beyond reasonable doubt that the AYP’s behaviour in MU’s bed was:
(a)An intentional physical act committed by the AYP;
(b)An act that was indecent according to the standards of morality and decency held by ordinary members of the community;
(c)The act that was committed on MU;
(d)That MU was under the age of 10, namely nine;
(e)That MU was the half-sister of the AYP.

VERDICTS

467․I return a verdict of not proved to charge CH2023/933 attempted incest.
468․I return a verdict of proved to charge CH 2023/934 Aggravated act of indecency on a person under 10.

I certify that the preceding four hundred and sixty-eight [468] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart

Associate: Jonathan Pears

Date: 11 July 2024

[2024] ACTCC 3

10 July 2024