R v AWG - [2022] SADC 120

District Court of South Australia
(Criminal: Disputed Facts Hearing)
R v AWG
[2022] SADC 120
Reasons for Ruling of his Honour Judge Slattery
5 October 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The defendant is charged on Information for Arraignment on 6 November 2020 with the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50 (1) of the Criminal Law Consolidation Act 1935.
The particulars alleged were:
a)      inserting his penis into her vagina on more than one occasion;
b)      inserting his fingers into her vagina;
c)      inserting an object into her vagina on more than one occasion;
d)      causing the complainant to insert an object into her vagina on more than one occasion; and
e)      kissing her on the mouth;
At arraignment, the defendant pleaded not guilty but on the first day of trial, pleaded guilty to the offence charged after the addition of a further particular: “(f) … masturbating in the presence of the complainant on more than one occasion .…”
Upon entering his plea of guilty to the charge, the defendant pleaded only to this further particular (f).
The Director of Public Prosecutions did not accept the plea in full satisfaction of allegations. The Prosecution sought a determination by the court of the proper basis for the sentencing of the accused on the allegations made in (a), (b), (c), (d) and (e), in addition to (f).
Whether it was appropriate for the court to hear and determine the allegations of fact alleged in (a) - (e) inclusive and if so, whether the correct procedure to be adopted by the court in such a determination was a disputed facts hearing.
Whether, on a disputed facts hearing, the court is satisfied beyond reasonable doubt that the defendant engaged in any of the offending conduct described in particulars (a)-(e) inclusive and if so, on how many occasions.
Held:
1.The appropriate vehicle for the determination of the guilt of the accused under particulars (a) - (e) was through a disputed facts hearing.
2.The court is satisfied beyond reasonable doubt that on more than two occasions, the defendant engaged in the conduct described in particulars (a), (c), (d) and (e) of the Information as charged as well as the conduct charged in (f) to which the defendant pleaded guilty.

3. The defendant will be sentenced on the basis of the findings of the court.
Criminal Law Consolidation Act 1935 (SA) s 50; Juries Act 1927 (SA) s 7(1); Evidence Act 1929 (SA) s 34CB, referred to.

R v AWG
[2022] SADC 120
Criminal

The defendant is charged on Information for arraignment on 16 November 2020 in the following terms:
Statement of Offence
Maintaining An Unlawful Sexual Relationship With A Child. (Section 50(1) of the Criminal Law Consolidation Act, 1953)
Particulars of Offence
AWG between the 9^th day of August 2004 and the 24^th day of March 2007, at Flagstaff Hill and other places, maintained an unlawful sexual relationship with the complainant, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards the complainant, namely:
a)inserting his penis into her vagina on more than one occasion;
b)inserting his fingers into her vagina;
c)inserting an object into her vagina on more than one occasion;
d)causing the complainant to insert an object into her vagina on more than one occasion; and
e)kissing her on the mouth;
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Section 50 of the CLCA provides:
50—Unlawful sexual relationship with child
(1)An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)However—
(a)     the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b)     the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c)     if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(6)This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.
(7)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a)     an offence of maintaining an unlawful sexual relationship with a child; and
(b)     1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)Except as provided by subsection (7)—
(a)     a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b)     a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(9)A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(10)For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(11)A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
(12)In this section—
adult means a person of or over the age of 18 years;
child means—
(a) a person who is under 17 years of age; or
(b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age;
predecessor offence means an offence of persistent sexual exploitation of a child, or of persistent sexual abuse of a child, as in force under a previous enactment;
sexual offence means—
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
unlawful sexual relationship offence means an offence against subsection (1).
(13)For the purposes of this section, a person is in a position of authority in relation to a child if—
(a)     the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or
(b)     the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or
(c)     the person provides religious, sporting, musical or other instruction to the child; or
(d)     the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or
(e)     the person is a health professional or social worker providing professional services to the child; or
(f)     the person is responsible for the care of the child and the child has a cognitive impairment; or
(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or
(ga) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or
(h)     the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
On 4 December 2020, the defendant pleaded not guilty at arraignment. The matter was called on before me for trial on 5 September 2022. On that day, the Information was amended by adding in the following terms:
“f)masturbating in her presence of the complainant on more than one occasion.”
At that time, the defendant entered the following plea:
“I plead guilty to the charge and I only admit particular (f) that is alleged”.
The allocutus was then administered on that basis.
In a subsequent discussion between myself and counsel, I enquired what the prosecution then sought from the court. I was informed that the prosecution did not accept the plea on the basis of only particular (f), even though the plea to the offence stood. As a result, there was no further need for there to be a trial before a jury on the offence charged, or for there to be an election by the defendant under s 7(1) of the Juries Act 1927.
Counsel informed me that they wished for the matter to proceed as a Disputed Facts Hearing in relation to particulars (a)-(e) of the offence as contained on the Information. I took some time to consider that request and I used this appearance as the Directions Hearing as required by the Rules (see post). The position of the defendant is that he is now committed for sentence on the charged offence. Any further consideration of his position will occur in the context of a sentencing hearing.
A number of the District Court Criminal Rules 2013 require consideration.
Rules 12.01 and 12.02 provide:
12‒Directions hearings
12.01If upon arraignment or attendance for arraignment:
(a)a person committed for trial pleads not guilty to an offence;
(b)an issue of fitness to stand trial is raised and no plea is entered;
(c)a person committed for trial pleads guilty to all offences with which the person is charged but it appears that there is a dispute as to the facts upon which the person is to be sentenced; or
(d)it appears that there will be a dispute as to the facts in respect of a person committed for sentence; a directions hearing will be held as directed by the Court.
12.02Unless the Court otherwise orders:
(a)a directions hearing will be presided over by a Judge of the Court;
(b)only the persons involved in the directions hearing, and legal practitioners whether involved in the hearing or not, are permitted to be present;
(c)the accused must attend but that attendance may be by audio visual link under rule 10.02;
(d)the directions hearing will be held in court as in chambers.
Having given consideration to the operation of these rules and the positions of the parties, on 6 September 2022, I announced to counsel my decision to the request for the matter to proceed as a disputed facts hearing:[1]
[1]     T2.1-30; T4.27-28.
HIS HONOUR:    I thank counsel for coming in earlier at my request. I thought that I should set out to counsel the way I think this matter will proceed. I think that what we're doing is proceeding in accordance with chapter 4 of the pre-trial applications and hearings, that's rule 12.01D, and what follows from rule 12.01 and also rule 96.4, procedure of arraignment for the District Court. So let me establish my position.
First, there is a plea of guilty to the charged offence. The second is that is the equivalent of a jury verdict of guilt. Third, there has been a plea of guilt to the charged offence but only one plea of guilt to new particular (f) and no plea of guilt to particulars (a), (b), (c), (d) and (e).
Fourthly, the plea is the basis of the findings of fact that I will have to make having regard to the plea to the particulars and I would, therefore, need to make an assessment of the evidence put by the prosecution about the other five particulars. I need to hear that evidence in order to decide the basis upon which I will sentence the defendant, guided as I am by the operation of s.50(11) of the Criminal Law Consolidation Act.
I wanted to make sure that the three of us were all on the same page because we seemed a slightly bit confused about the question I asked last evening, which was answered by Mr Coates. But I wanted to make sure that we were on the same page and that that is the way we're proceeding.
MR COATES:    Yes, I don't have any issue with how your Honour has outlined that.
…
MR TATE:I think it is around that, yes. I agree with the procedure and how your Honour set out.
The parties agreed to this proposed procedure.
After time was given to the defendant to properly instruct counsel, I embarked upon the Disputed Facts Hearing. I took the same approach to the admissibility of the evidence to be led at that hearing as I would have adopted if the hearing was a trial of the Information and the requirement of proof of the elements of the offence changed beyond reasonable doubt. Counsel agreed that I may read the depositions and the experts reports before evidence commenced.
The evidence led by the prosecution comprised viva voce evidence of the complainant, documentary exhibits and a disc of the interview conducted by police with the defendant in 2007. There was also expert evidence from a DNA expert.
The defendant gave evidence and he was cross examined.
The events the subject of this charge allegedly took place between 2004 and 2007. The complainant was born in 1992 in New Zealand and at the relevant time was between 12 and 15 years old. The defendant was interviewed by police and charged in 2007, within about two weeks of the complaint being made. On the information before me, the defendant could not be located for the next 13 years and he was then arrested and brought before the court. By the time the complainant gave evidence, she was 30 years of age.
In the usual course, I would have regard to the delay between these alleged events and the date of hearing (s 34CB Evidence Act 1929). I am satisfied that no forensic disadvantage has been suffered by the defendant. There was no submission of the existence of any such disadvantage. I will therefore leave that issue to one side especially as there has been a plea of guilty to the offence charged.
It is then necessary to assess the evidence. In so doing, I would not be satisfied of the guilt of the defendant unless I was satisfied beyond reasonable doubt of his guilt on each or any of the charged particulars. Even if I was so satisfied, I would not proceed upon the conviction of the defendant if the evidence of the defendant before me raised a reasonably possible alternative version of fact or was reasonably possibly true. Even if I was not so satisfied, I would not find the defendant guilty of any charged particular unless I was so satisfied of his guilt beyond a reasonable doubt. In that context, I find that on the evidence before me, particular (b) has not been proved to my satisfaction beyond reasonable doubt. There was no evidence provided on that topic.
I will generally assess the evidence of the witnesses. The complainant gave her evidence in a calm, intelligent and consistent manner. She was an impressive and articulate witness who could generally accurately recount events that occurred so long ago. Her evidence was impressively consistent with the depositions taken in 2007 even though she enlarged upon some aspects of the story in her evidence. This caused no embarrassment to the defendant who was given further time to instruct his counsel, if that was necessary. The complainant gave her evidence via AVL from New Zealand, her country of birth, but even so I was able to form my views of her credibility without any difficulties.
Conversely, I found the evidence given by the defendant was without credibility and at times had the hallmarks of being an artifice created purposefully by him. I review the evidence below and unless otherwise stated, I am unable to accept the evidence of the defendant as truthful or credible. I consider it has no reliability.
The defendant had a relationship with the mother of the complainant whilst they lived in New Zealand. That ended about 6 months before the defendant, the complainant and her mother moved to Australia. Whilst in New Zealand, the complainant lived a town on the South Island and after a time, the defendant came to live with the complainant and her mother. The complainant found that after the defendant moved in, she started getting into trouble for number of aspects of her conduct and he inflicted punishment upon her for her conduct.
In about 2007, the complainant came with her mother to live in South Australia. The defendant also came with them and whilst in South Australia, they initially lived in a caravan park; the complainant and her mother shared a tent and the defendant, who was now no longer in a relationship with the complainant’s mother, lived in his own separate tent.
They then moved into a three bedroom property at Royal Park. After about a year, they all moved to a home at Flagstaff Hill.
Before the time she came to Adelaide and then after she arrived in Adelaide, the complainant was home schooled. She then completed examinations and received an academic scholarship to attend school at a private girls college from Year 7. She first commenced at the college when she lived at Royal Park.

From a young age, the complainant recalls the defendant inviting her into his bedroom and showing her toys. From a young age, she thought he was nice. After a time, she was not able to keep toys in her room but had to keep them in a sunroom apart from a small toy she kept with her that she took to bed.
The complainant found that the defendant was labile in his moods; one minute nice, the next minute abusive. If she was well behaved, she was rewarded and if she did anything wrong she was punished. This included exclusion and being denied food.
From a young age and in particular when she started home schooling in New Zealand, the complainant spent most of her time with the defendant. That is when sexual intercourse between them commenced. They were living in a caravan park in the same town in New Zealand and she had intercourse with the defendant in that caravan on a regular basis.
The defendant gave the complainant sex toys. He did so from the time she was very young. She can recall on one occasion, she entered the caravan and sat near the door. By that time, the defendant had given her a sex toy which was about 15 cm long, made of plastic and had a curved shape. She understood that the purpose was for her to insert it into her vagina.
When she came into the caravan and sat down, the defendant asked her about the toy and asked her about how she used it. He asked her to show him how she used it and so she took off her underwear, laid down on the seat and showed him what she had done. He asked her if he could have a little play with the toy to which she agreed to then after a time they had intercourse for about 10-15 minutes. She recalls the intercourse being painful. By intercourse, she means that the defendant was inserting his penis into her vagina.
She recalls that after that incident, intercourse occurred about 3 times per week at a minimum and always when her mother was at work. Her mother worked as an accountant between 9.00am and 5.00pm Monday to Friday. There were times when living in one of the houses in Adelaide, the defendant told the complainant that after her mother had gone to bed at night and was asleep, she should come into his bed. This was part and parcel of the worsening of the abuse. After they came to Australia there were other examples of physical abuse and, for example, the defendant locked her in the house at Royal Park, dragged her by the hair and kicked her. Also, whilst at the caravan park and whilst her mother was at work, sexual intercourse occurred up to three times per week. She thinks sex toys may have been used at that time.
When they were at the Royal Park residence, intercourse occurred about four or five times per week, including at night when her mother was asleep. She would go into the bedroom of the defendant, which was a separate bedroom. They each had their own bedroom. The defendant had intercourse with her and she would leave when he was done with her. It also occurred when she arrived home from school and before her mother got home from work at about 6.00pm. At the Royal Park address, the defendant gave her a wooden sex toy. Photograph 2 of Exhibit P1 shows the wooden sex toy that he gave her. She recalls that when defendant gave it to her, it was fitted with a pink balloon so that, he said, she could use it without getting splinters. She used the sex toy on herself and also when the defendant inserted it into her vagina.
The complainant said the sex toy in photograph 3 was given to her by the defendant. It was made of rubber bands with a balloon attached over the top of it. He gave it to her so that she could insert it into her own vagina and he inserted it into her vagina as well. That item was used mostly at the Flagstaff Hill property and may have been used at the Royal Park property. She thinks it was used about 10-15 times.
The complainant identifies the sex toy in photograph 4 of Exhibit P1. It was made of silicone and she can recall it being inserted into her vagina by the defendant. It was rarely used. Photograph 5 of Exhibit P1 is the sex toy which she describes as a dildo. She recognised it as something that the defendant bought for her. This occurred when they were living at Flagstaff Hill. She can recall the defendant inserting this dildo into her vagina on at least ten occasions.
All of the sex toys were usually kept by the defendant in his bedroom; sometimes they were kept elsewhere by him but she was not aware of their location. He could bring them out when he wanted to and she can recall that at the Flagstaff Hill property they were kept in a green bag tucked around a corner of his kitchenette.
At the Flagstaff Hill address, sexual intercourse occurred between four or five times per week. This was usually at the same time of the day as it had occurred at the Royal Park property, either after school or at night. It was when either her mother was at work or when her mother was asleep. At the Flagstaff Hill property, the complainant was able to separate the flyscreen from the window of her bedroom and she could crawl through the gap and then go out into the separate room which, on Exhibit P2, is described as the “teen retreat, bedroom 4”. Bedrooms 2 and 3 were her bedrooms. Bedroom 1 was her mother’s bedroom.
At Flagstaff Hill, sexual intercourse always occurred in bedroom 4, when her mother was at work and prior to her arriving home. Also, during the school holidays, the complainant spent a lot of time with the defendant in his bedroom, watching television, laying on his bed or having sexual intercourse. Sometimes they worked on his vehicle. He always had vehicles that he was repairing.
The complainant can recall that in 2009, her mother left the home in Flagstaff Hill. She did not know where her mother had gone. She was left with the defendant at the Flagstaff Hill property. She eventually found out that her mother had gone back to New Zealand. After her mother left, the frequency of the sexual intercourse between she and the defendant increased slightly.
The complainant was shown Exhibit P3, a booklet of photographs of the Flagstaff Hill property taken by police at the time when the complaints were first made. In particular, the complainant was able to identify the photographs of the content of the room “bedroom 4” as well as the garage. She was able to identify the photograph on page six of Exhibit P3 as the bedroom of the defendant in which the sexual acts occurred.
The complainant can recall that the defendant did obtain employment on a newspaper delivery run. She recalls that sometimes she went with him and she also assisted him to roll up the newspapers, using a machine.
The complainant confirmed that other than the penile-vaginal intercourse and the use of the sex toys, there was some kissing but she cannot recall any other offences of a sexual nature. All she can recall was that the defendant may have touched her vagina with his hands when he inserted the sex toys but she cannot be sure. In answer to a question from me, she could not recall digital penetration of her vagina. She can recall the defendant touched her breasts with his hands during the sexual conduct.
The complainant can also recall that when all of this sexual abuse was occurring, she would consume alcohol given to her by the defendant. This occurred especially during her school holidays. He also gave her cannabis which she smoked through a pipe. She can recall using cannabis almost every day after school. This lasted for about 30 minutes and she would then engage in sexual intercourse with the defendant. She described this as “sexual favours”.[2] This was because she can recall the drugs the defendant gave her made things hazy and she was happy with this because, being foggy, she could escape into her own mind and away from the abuse being inflicted upon her by the defendant.
[2] T32.
The complainant could not recall the use of a condom by the defendant as being a regular occurrence when the defendant engaged in sexual intercourse with her, but she cannot recall whether the defendant ever ejaculated.[3]
[3] T34.33-35.1.
On the course of the conduct of the defendant towards her, the complainant found that she was not allowed to have friends either come to her home or she to theirs. She does not know why that was the case. Eventually, she started to refuse the sexual acts with the defendant but when she did this, he would beat her and this included being kicked, punched, slapped and grabbed by the hair. She was aware that the defendant would also beat her mother. The only time all of this abuse ended was when she left the property to go and live at her school as a boarder. Prior to that time, she would get to her school by public transport. She can recall being picked up by the defendant from school on a few occasions.
The defendant then started making arrangements to take her out of school. She was out of school for about 4 weeks. Letters were sent by the school. It was then that the defendant started to make arrangements to move to Perth. She could not return to school.
In cross - examination, a number of propositions were put to the complainant. All of them were largely negative propositions that what she alleged did not occur. She denied each of those propositions. In particular, she denied the proposition that, for example, she had forced the defendant’s hands onto her breasts and told him he would be in trouble for doing that. She denied allegations that she pulled the defendant’s pants down to expose his penis, telling him he would be in trouble if he said anything. She denied showing him pornography on her phone or that she had exaggerated any of her claims or that he had not controlled her life.
The defendant gave evidence. He is 59 years of age, was born in New Zealand and had a brief relationship with the mother of the complainant. This was a very brief sexual relationship, and they were living together for about two years before moving to Australia together; from then on, they were merely sharing accommodation. Their relationship ended about six months after commencement and while they still lived in New Zealand. It was the defendant’s idea to move to Australia.
He said his only relationship with the complainant was that of a carer; he would care for her while her mother was at work and during the school holidays. He denied any sexual relationship between himself and the complainant. He did not discipline the complainant in New Zealand but he found her difficult to control because he thought she was misbehaving.
He denied any sexual encounters with the complainant whilst they were in New Zealand. In light of his own later evidence, I am unable to accept those denials.
They moved to Australia in about 2004 and lived in tents at the Hackney Caravan Park for about four weeks. He had his own tent, and the complainant shared a tent with her mother. They then moved to Royal Park and each of them had their own bedroom. He was not working at the time but later obtained a job delivering newspapers in Blackwood. He said in evidence that he would need to leave at around 9.30pm to get to work at Blackwood by 11.00pm. I do not accept it would have taken an hour and a half to get to Blackwood but, I will leave that matter to one side. He then said he would return home after completing work at around 8.30am to 9.00am. Although I have considerable doubt the credibility of that evidence, I will also leave that to one side.
He can recall the complainant was home schooled when they lived at Royal Park and that her mother corrected her work. He said he was building a car collection during the day, after having worked all night between 9.30pm and 8.30-9.00am. He was not able to say when he slept.
From Royal Park, they moved to Flagstaff Hill. He was shown Exhibit P2, a map of the home. He did not know there was a third bedroom adjacent to bedroom 2, occupied by the complainant. He agreed that he slept in bedroom 4 and that the complainant’s mother slept in bedroom 1.
The defendant said he suffers from a number of maladies such as haemorrhoids, asthma and epilepsy. He was not treated for haemorrhoids until after these events occurred. He was severely affected by that condition, and this affected his sex life. However, he said that on occasions he masturbated in his bedroom while the complainant was present. He said anything could have happened whenever he masturbated in the presence of the complainant. He conceded that it was possible at those times, there could have been penile-vaginal intercourse with the complainant. He said that he regularly blacked out due to his heavy use of cannabis, opioids, methylamphetamines and his medications, as well as his epilepsy and the fact he suffered from the effects of carbon monoxide poisoning. In that background he agreed that penile vaginal sex with the complainant could have happened. There is no other evidence on the topic of the effects of carbon monoxide poisoning and whether it had any lasting effects; I will accept that it contributed to his physical state, but I am unable to say to what extent. Even though he accepted in his evidence-in-chief that sex could have happened, he does not think he would ever have initiated sexual intercourse with the complainant. I am unable to accept this evidence as truthful or reliable. If he is unable to recall precisely what happened due to his drug use, his epilepsy and his alleged carbon monoxide poisoning, it is very doubtful that he could recall whether or not he initiated sex with the complainant.
He can recall that when he came to after being blacked out, he found his clothing had been adjusted. He therefore thought that sexual intercourse could have been forced upon him by the complainant. I am unable to accept that evidence for the same reasons. He also said the complainant threatened him and blackmailed him. She told him that he should always shut up or else bad things would happen to him.
The defendant said that at the time he was consuming a cocktail of drugs and that as a result he has no consciousness of having sexually offended against the complainant. He accepts that such conduct could have occurred. I consider this version given by the defendant to be a concoction; it is not truthful, reliable or credible.
He said that on one occasion, the complainant forcefully placed his hand on her breasts and told him that if he told anyone about what she was doing, he would be in big trouble. He said that the complainant pulled his pants down and she claimed he had now exposed himself to her and she would tell on him if he ever forced the issue. He also said that the complainant forced him to watch a video of her urinating. I am unable to accept this evidence as truthful, reliable or accurate.
As well, all of these events are alleged to have occurred whilst the complainant was a young girl of 12 or 13 years of age. In light of the fact that the defendant says he was not completely aware of what was going on because of his drug use, his epilepsy medication and the effects of carbon monoxide poisoning, I am unable to accept as credible, reliable or accurate his evidence that in some way, he could have been blackmailed by a young girl, that she could have forced herself upon him or that he could have been forced by her to do anything.
He said he stayed at the same address with the complainant and her mother, despite the fact that he thought he was being blackmailed or threatened. His reason was that he did not think anyone would believe him if he said that a child, such as the complainant, had coerced him in such a manner. I find this evidence neither truthful nor reliable. I am also unable to accept the truth or reliability of the defendant’s later allegation that the complainant came into his bedroom, armed with knives and asked him to help her murder her mother. This, he said, was why the complainant’s mother moved back to New Zealand and left her 14-year-old daughter with him. I am unable to accept this evidence. I am similarly unable to accept the evidence of the accused, that he stayed at the property at Flagstaff Hill because the complainant was making threats to him that she would tell the police of his conduct. He said he was not sure who to turn to but he then said at the same time, he was ready to leave Australia as he thought it would all go away. Despite all of that, he can recall there were times when he would wake up from his drug-induced stupor and the complainant would be in his bed. He gave evidence that he took Datura, a hallucinogenic drug, opium, cannabis, speed and cannabis oil on a daily basis and that all of these drugs had a very numbing effect on him which is why he is unable to say precisely what happened at any given time.
In that context, he then denied ever having kissed the complainant on the mouth. The reason given was that in his previous relationships, he dated people with rotten teeth so kissing “grosses him out” and as a result, he would never have kissed the complainant. He also denied inserting any fingers or objects into her vagina or causing her to insert anything into her vagina. Despite the evidence given about his drug use, he was selectively able to can recall waking up in the morning and masturbating. When he did that, he was not always necessarily aware that the complainant was in the room and sometimes he would be masturbating and realise that she was in the room, perhaps on the floor. On those occasions, he would continue to masturbate knowing she was in the room. He said on some of those occasions, the complainant was in the room also masturbating using sex toys that he kept in his cupboard. On those occasions when he alleges that the complainant was masturbating on the floor of his room at the same time that he was masturbating, he cannot say why he did not stop when he became aware she was in the room. He thinks that happened less than five times but it certainly happened at least twice. This only occurred at the Flagstaff Hill property. It also occurred when the complainant’s mother was living at the home. The defendant said that he got no sexual gratification from watching the complainant masturbating.
He can recall being given $6,000 by the mother of the complainant for looking after her daughter; this was at the time she returned to New Zealand. However, the complainant gave evidence that this money was for braces for her teeth. He alleges the complainant then said to him that if he did not return the money, there would be consequences. He gave evidence that he took this to be a reference to the incident involving child pornography, the exposure of his penis to the complainant and the touching of her breasts.
He agreed that the dildos and the sex toys were found in a black and white bag that was stored in his wardrobe in his room at Flagstaff Hill. He alleges these sex toys came to be in his room some six to eight months after he moved into the Flagstaff Hill property. They were not at the Royal Park address. He does not know where they all came from. He agreed he purchased two dildos which he was able to identify. He is unable to say where the balance of these sex toys came from. He said that if they were in a bag in the wardrobe, it was because the complainant put them there. I am unable to accept this evidence as credible, truthful or reliable. The defendant agreed that he purchased two dildos and that he was aware of the use of those dildos by the complainant. This all occurred in his room. He then said that he purchased the two dildos because he was in a relationship with another woman and he could not perform sexually for her. He said he also purchased some magazines and some videos. In my opinion, this evidence is specious and merely an artifice, created by him to explain away the existence of the dildos in his room. These were the items he was referring to in his record of interview.
He said that on at least seven or eight occasions he walked into his room and found the complainant had been in his room and that she was or had been using the sex toys, which were spread all over the floor. He picked them up and put them in a bag. His DNA was upon some of these sex toys; the DNA of the complainant was also found upon some of these toys. On one occasion, he threw this bag of sex toys at the complainant because he was angry and told her to get rid of them. He could not explain why he told police in his record of interview that he had put the sex toys in his wardrobe to hide them from the complainant’s mother. He agreed he told the police that he had hidden the sex toys in his room because he was embarrassed. For example, he denied that he had ever seen the complainant using the item shown in Exhibit P1 photograph 3 on or in her vagina. He knew she had used it because when he found it, it was covered in bodily fluid. He could recognise the object in photograph 4 on Exhibit P1 as it was another item that would have been left on the floor but denied ever seeing the complainant use it. He had put it in a bag with the others. He recognises the object in photograph 5 of Exhibit P1 because he recalls also seeing it on the floor, picking it up and putting it in his bag. He denied ever having seen the complainant use that item.

The defendant then said that he had seen a variety of these sex toys spread out on the floor of his room on a number of occasions, at least up to 10 times. He also then alleged he had thrown the bag of these sex toys at the complainant a number of times but said he had never done anything other than throw the bag at the complainant. He denied ever having put the bag in the wardrobe. He claimed that once the items were used by the complainant in his bedroom, he was blackmailed by her, as she threatened to expose him should he ever say anything. That is why he kept the items in his room. He agreed he never said this to the police when asked to explain the presence of the bag. I am unable to accept this evidence as credible or reliable. It is not truthful.
The defendant can recall that on one occasion he walked into his bedroom and the complainant was allegedly using one of the vibrators. He alleged that the complainant then threatened to tell people that he bought the vibrator for her. This occurred a number of weeks before the complainant’s mother left the house. He said that the complainant put all of these sex toys into his bedroom and he said out of fear of the complainant, he kept them in his room and nowhere else.
The police found a folded pair of the complainant’s underwear in his bedroom. The defendant said the complainant had folded that underwear and put it in the cupboard in his room. This was the day police arrived. This evidence which is neither credible, reliable nor truthful. That is compounded by the defendant’s assertion that he did not remove that underwear because he was scared of what the complainant would do. It was a pair of folded underwear. They were living in the same house. There was no reason why that underwear could not have been placed back into the room of the complainant. It is quite unclear to me what it is that he was scared of and what, for example, the complainant would do if he returned her underwear. The underwear was in his room for a reason and I find his explanation untruthful and unreliable.
After being shown Exhibit P4, the video of his interview with the police, the defendant was given Exhibit MFI P5, the transcript of that interview. He agreed that he told police he allowed the complainant to sexually satisfy herself in his presence. He said that if he tried to stop the complainant doing that in his presence, she would threaten him. It was not clear to me what threats she could have made to him or what such a threat might have been about. He said she sexually satisfied herself in front of him less than five times. He said when the complainant was sexually satisfying herself, he was watching television or reading a book. He saw her in his peripheral vision and one of the toys made a noise. I do not accept this evidence. I think it an artifice created to avoid responsibility for his actions.
He was asked why, if he felt threatened, did he not merely walk out of the house and send the complainant back to New Zealand to her mother. He told me he did not do that because he felt threatened. The threat, apparently, was to have his conduct exposed. He then said the first time that the complainant masturbated in his presence was in the caravan in New Zealand and he said he threw her out of the caravan at the time. This was when she was about 10 years of age. He said that on one occasion when she was about the ages of 10-12 years, she came into the caravan in New Zealand with a sex toy and told him it was her friend “Claire”. He alleges she then told him you have just allowed me to use a sex toy in your caravan and she threatened him. He did not speak to the complainant’s mother about this. He agreed this was an unusual situation. He then said that his use of drugs meant he could not tell anyone. He agreed that at the time, he was about 6ft 7 inches in height and that at the time of the first incident, the complainant would have been 5 ft tall and aged between 10 and 12 years of age. In that context, he claimed the complainant forced him to touch her breasts by a quick grab of his hands. She used her finger nails to grab his hands.
After earlier denying he had given any alcohol to the complainant, he agreed she may have taken some Vodka Cruisers from his fridge. He then said he knew she consumed this alcohol as he found empty bottles in his room but he never saw her drinking.
The defendant then said he never knowingly put his penis into the vagina of the complainant. He said when he was drunk and under the influence of drugs, and when the complainant was perhaps between 13 and 14 years of age, she may have put his penis into her vagina without him knowing. He thought it was possible that the complainant engaged in penile-vaginal intercourse with him without him knowing about it or without him being willing to have engaged in that intercourse. It was at least half a dozen times he woke up from being asleep or drunk when his clothes were out of place. That is why he believed that this may have happened.
He repeated that he suffered from memory loss because of his drug use and his carbon monoxide poisoning, and this caused memory loss and blackouts. He was using hallucinogenic drugs in Australia and that made him see people who were not there. He agreed it was therefore possible that he was on so many drugs that he could have forgotten he had sexual intercourse or a sexual encounter with the complainant.
I have earlier described the evidence given by the defendant as neither truthful, reliable nor credible. I confirm my view that on occasions, the evidence of the defendant was so fantastic as to be incredible. It was an artifice created by him to avoid the truth about his conduct. I am unable to accept any of his evidence as being truthful, reliable or credible.
Turning then to the particulars of the offence, I am satisfied beyond reasonable doubt that on more than one occasion, the defendant inserted his penis into the vagina of the complainant, that on more than one occasion he inserted an object into her vagina, that on more than one occasion he caused the complainant to insert an object into her vagina, that he kissed her on the mouth and that he masturbated in her presence on more than one occasion.
I therefore find proved, beyond reasonable doubt, particulars of the offence (a), (c), (d), (e) and (f). I will proceed to sentence the defendant on that basis.