R v B,MW - [2011] SADC 198

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B,MW
Criminal Trial by Judge Alone
[2011] SADC 198
Reasons for the Verdict of His Honour Chief Judge Worthington
22 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Count 1: persistent sexual exploitation of a child - count 2: unlawful sexual intercourse - complaint evidence - reliability of complainant's evidence
Verdict: Guilty on both counts
Criminal Law Consolidation Act 1935 ss49, 50, 56; Evidence Act 1929 ss13,13C, 34M, referred to.
R v Warsap (2010) 106 SASR 264; R v J, JA (2009) 105 SASR 563, applied.

R v B,MW
[2011] SADC 198

The accused is charged with two counts.
Count 1 is persistent sexual exploitation of a child contrary to s50 of the Criminal Law Consolidation Act 1935 (CLCA). It is alleged that between 12 March 2004 and 11 March 2010 he committed more than one act of sexual exploitation of J, when she was aged between 8 and nearly 14 years of age, over a period of not less than three days by causing her to masturbate him with her hand and feet, causing her to perform fellatio on him, inserting his penis into her vagina, inserting his penis into her anus, inserting his finger into her vagina, touching her on the breasts and touching her on the vagina.
Count 2 is unlawful sexual intercourse with J on or about 24 July 2010, when she was aged 14 years, by inserting his penis into her vagina, contrary to s49(3) CLCA.
The accused elected to be tried by judge alone and has pleaded not guilty to both counts.
COUNT 1
J was born on 12 March 1996 and is now 15 years old. As relevant, s50 CLCA provides as follows:
50—Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)   ……………….. . . . . . .. . . . . . . . . . . . . . . . . .
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient
particularity—
(i) the period during which the acts of sexual exploitation allegedly
occurred; and
(ii) the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i) allege particulars of each act with the degree of particularity that
would be required if the act were charged as an offence under a
different section of this Act; or
(ii) identify particular acts of sexual exploitation or the occasions on
which, places at which or order in which acts of sexual exploitation
occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i) in relation to the child who is allegedly the subject of the offence
against this section; and
(ii) during the period during which the person is alleged to have
committed the offence against this section, must be charged in the alternative.
(5)          ………………….. . . . . . . . . . . . . . . .. . . . . . . . .. .
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7) In this section—
prescribed age, in relation to a child, means—
(a) in the case of a person who is in a position of authority in relation to the child—18 years;
(b) in any other case—17 years;
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.
(8)          ………………….. . . . . . . . . . . . . . . . . . . . . . . . . . .
To obtain a verdict of guilty the Crown must prove beyond reasonable doubt that the accused, over a period of not less than three days, committed more than one act of sexual exploitation of J when she was under the prescribed age of 17 years. An act of sexual exploitation is one that could be the subject of a charge of a sexual offence set out in Division 11 of the CLCA.
Eight types of acts are alleged in the particulars, each of which could have been the subject of a charge of an offence under Division 11. If proved beyond reasonable doubt, four of them could constitute the offence of aggravated indecent assault under s56 CLCA namely, causing her to masturbate him with her hand, causing her to masturbate him with her feet, touching her on the breasts and touching her on the vagina. If proved beyond reasonable doubt, four of them could constitute the offence of unlawful sexual intercourse under s49 CLCA namely, causing her to perform fellatio on him, inserting his penis into her vagina, inserting his penis into her anus and inserting his finger into her vagina.
In preparing these reasons, I have used initials instead of names because the accused is married to one of J’s sisters, L. They have been married for about 18 months but at all relevant times they have lived together in a domestic relationship. Until the latter part of 2009 they lived in a small country town in a residence that I will call House 1, and they then moved to another country town where they live in House 2.
J would stay overnight from time to time at the home of L and the accused, particularly after their first child was born, at which time J was about 8 years old. It is the Crown case that at some time after J turned 8 years old, the accused set out on a course of conduct that involved J in sexual activities of the types alleged while she was present at House 1, and later at House 2, and that this continued until the early part of 2010 before her 14^th birthday in March 2010.
The Crown must prove beyond reasonable doubt that the accused committed two or more acts of a type described over a period that is not less than 3 days. Here the overall period within which the offending is alleged to have occurred is approximately 6 years. It is unnecessary to refer other than briefly to s50(4) CLCA. Although there was a late amendment to the particulars in Count 1, no issue has arisen with regard to their sufficiency and, although the accused is charged in Count 2 with another sexual offence, it does not give rise to any issue under subs(4)(c). The effect of subs (4) is that the “offence may be proved without proof of particular dates or occasions on which the acts of sexual exploitation are alleged to have occurred or the order in which they occurred. It will be sufficient if a pattern of offending behaviour during the relevant period is established beyond reasonable doubt”[1]
[1] v Warsap (2010) 106 SASR 264 per Bleby J at 267
J and K, a friend of J’s who is now 16 years old, were called as prosecution witnesses. J gave her evidence remotely by CCTV and K had a screen placed between herself and the accused while she gave her evidence. These arrangements neither affect the weight to be given to the evidence of either of those witnesses nor do they give rise to any inference against the accused - Evidence Act 1929 s13(7). An audio visual record of the evidence of each of those witnesses was made pursuant to the Evidence Act: s13C.
L, the accused’s wife, gave evidence. A short statement of agreed facts was also put before the court. The evidence given by J and K was strenuously challenged in cross-examination by Mr Grant, for the accused, but, as he was entitled to do, the accused did not give evidence and no adverse inference will be drawn against him for that election. The Crown must prove each element of the offence beyond reasonable doubt before there could be a finding of guilt on count 1 and the same applies separately to count 2. The accused is not obliged to prove anything.
J’s evidence about the general pattern of visiting House 1 was as follows.
She usually went there on weekends, commonly on a Friday after an evening meal at home with her parents, and would return home on Saturday night or Sunday. The accused and L have three daughters, the eldest born in March 2002, the second in April 2004 and the third only a couple of months ago. J stayed with her sister and the accused “pretty often” because she enjoyed playing with the eldest niece. She expanded on that to say that it was every “two to three weekends” (Tx36).
She said that she would usually sleep on a couch in the lounge room. There was a large television opposite the couch. The lounge room in House 1 was at the front of the house with the front bedroom (of L and the accused) adjoining it. It appears that because the door from the lounge room into that bedroom had been damaged at some stage, there was only a curtain across that doorway for a considerable part of the time that they lived there. A bedroom known as the kids’ room also adjoined the lounge room. To get from either the front bedroom or the kids’ room to the kitchen, laundry or bathroom, it was necessary to go through the lounge room. She said that occasionally, but not often, she slept in a spare room at the rear of the house which was referred to in evidence as the back room.
J said in evidence that she and the accused would watch movies or play video games on the television and that L would often go to bed while she and the accused stayed up in the lounge room. She was unable to be specific but said “That happened a lot” (Tx42). She herself would often fall asleep on the couch part way through the movie. She said that K often went with her to House 1 but that K would not usually sleep in the lounge room and would go to one of the other rooms, leaving J and the accused alone on the couch.
K’s general evidence about staying over was as follows.
K believes that she was about 12 years old when she started staying with J at House 1. Although she occasionally slept in the lounge room, she slept mainly in the kids’ room or the back room. She would usually go to bed around 10.00pm which was at about the same time as L would go to bed. The accused would often play video games in the lounge room both during the day and at night; as she put it, the accused “wouldn’t go to bed. He’d be up all the time.” (Tx139). J would often be with the accused in the lounge room playing video games or watching movies when K went to bed.
Masturbation
J said that the first time anything untoward occurred was one night when she was about 8 years old. She described it as follows.
The lights were off and she was asleep on the couch next to the accused. The second child had just been born and as far as she could recall, L was in the main bedroom. She woke up to find that the accused had taken hold of her hand, with his hand cupping her hand, and that he was moving it up and down on his exposed erect penis. She “freaked out” thinking that the accused “was doing it in his sleep so I just grabbed my pillow and I pretended that I would like fall off the couch. And he said to me ‘[J], you fell off the couch’ then I realised he was awake.” (Tx 43-44) She said that the accused did not ejaculate and when asked: “Were there any other occasions when he made you touch him on the penis in that way?” She said “No, not with my hands” – (Tx46).
I shall return to this evidence again when referring to cross-examination about it. However, she said, it was because of this incident that she started to ask K to come with her to House 1.
She said that at some point, probably when she was about 8 ½ or 9 years old, that couch was replaced by another one which was big enough for her to lie down with her head at one end and with the accused sitting at the other end, and to put her feet near him or on his lap.
J described the first occasion on which the accused used her feet on his penis as follows.
She, the accused and L were on the couch. She was in her pyjamas and was covered by a blanket. She was pretty sure that they were watching a movie but she fell asleep. She woke up to find that L was no longer in the room and that the accused was sitting on one end of the couch with her bare feet on his lap and his penis outside of his pants. He grabbed one of her feet and started rubbing it up and down his penis and then grabbed both of her feet, putting them “kind of like together’ and using both of them to rub up and down his penis (Tx49). He did not ejaculate. She believes that she was probably 9 or 10 years old.
J said that using her feet in this way on his penis was “the thing that happened the most” (Tx50). She said that apart from fairly rare occasions when L and the accused went to bed together, this sort of touching often happened while she was on the couch. It usually occurred at night time but there were occasions when it happened in the morning. Sometimes she would be awake when the accused started to do this and she would pretend to be asleep, but on other occasions she would wake up to find him doing it. She said that she is pretty sure that the first time it occurred her feet were not covered by a blanket, but sometimes there was a blanket.
Both J and L gave evidence about an incident when L hit the accused over the head with a frying pan. That evidence is relevant to the allegations of the accused using J’s feet to masturbate. I shall refer to it briefly now but in more detail later.
Frying Pan Incident
J said that one night she was sleeping on the couch at House 1 and she woke up with the accused falling on top of her and saw L holding a frying pan, angry and yelling at him. She confirmed in cross-examination that at that time, she was unaware of what had happened immediately before she woke up.
L also gave evidence about this incident as follows.
She thinks J was about 8 or 9 years old at the time but she is not completely sure. It was night time; she had been asleep in her bedroom and the accused and J were in the lounge room. She woke up, got out of bed and walked into the lounge room. There were no lights on but the television was on; she described it as a large television and there was quite a bit of light. She saw the accused sitting on the lounge and J lying on the couch under a blanket with her feet in his lap. She noticed that J’s feet were moving so she “ripped the blanket off” (Tx179). She then went into the kitchen, got a frying pan from a rack in the laundry and came back and hit him hard over the head with it. When asked why she had done that she said that she “thought that something might have been going on” (Tx179). She noted that when she pulled the blanket off, the accused was fully clothed in pants and tee-shirt and that J was wearing her pyjamas. I shall return to L’s evidence about this topic again in due course.
Fellatio
J said that, starting from the time she was about 9 or 10 years old, the accused would make her take his penis in her mouth. She described the first time it happened as follows.
She was on the couch at House 1 and the television was on. It was night time. The accused had been sitting at one end of the couch. He walked over to where she was she was sitting on the couch, stood in front of her, forced his erect penis into her mouth and holding on to her head, pushed himself backwards and forwards. She said that she “started like grinding my teeth a bit and trying to wiggle a bit and then yeah, he pulled out and yeah” (Tx57). On that occasion he did not ejaculate. On a subsequent night (she thinks she was 10 years old) he did the same thing but she did not take avoiding action and he continued until “he ejaculated and I didn’t do anything about it, I just swallowed it and rolled over and just felt sick” (Tx58).
J said that there came a time when the accused “asked me out, so like it was, yeah, like a fling or whatever” (Tx59). She was unclear about her age at that time. It varied from 11 or 12 years old (Tx59) to 12-13 years old (Tx70) but she said that this happened probably 4 or 5 months before the accused and L moved from House 1 to House 2 (Tx59) It is not possible to be precise about when they moved house but it was probably around the end of 2009. By “going out” she meant that she was happy to participate in sexual activity with him whereas prior to that she was not necessarily content to do so.
She said that there were no other occasions at House 1 when he ejaculated into her mouth but that he would put his penis into her mouth from time to time. She said that this always occurred at night time and that it was always while she was on the couch. She said that she thinks she was then staying there about three times per month.
Anal sexual intercourse
J said that there were two occasions during the relevant period when the accused put his penis into her “bottom”. Her evidence was as follows.
She was not sure how old she was when it first happened but she was “pretty sure” it was before the first time he put his penis into her mouth (Tx61). She was sleeping in the kids’ room at House 1. There were two single beds in the room but they were close together. Occasionally she would sleep in that room but not very often. She had been asleep in that room facing towards the door to the lounge room when she became aware that the accused had come in and was lying on the bed behind her. He pulled her shorts down and put his erect penis “in my bottom” (Tx61). Evidence in chief continued (TX61-62):
"QAfter he put his penis in your bottom what did he do?
"AI don’t remember, I just, yeah, I just remember that.
QDid he move at all?
ALike I said, I don’t remember.
. . . . . . . . . . . . . . . . . . . . . . . . .
QHow long in the kids’ room on this occasion did it last, that he had his penis in your bottom.
AI don’t really remember, like I don’t even remember it finishing. All I remember was it happening.
. . . . . . . . . . . . . . . . . . . . . .. . . . .
HIS HONOUR
QThis is not a very pleasant thing, I understand that, but when you say the words you used ‘Penis in my bottom’, what exactly do you mean by that. Did he just put it between your buttocks or more than that.
AMore than that.
QWhat do you mean.
AHe actually like put like up in there and then started moving himself but I don’t remember it finishing or anything like that.
QWhen you say ‘Up in there’ you mean up inside you; is that what you mean.
AYes.
She thinks she was about 9 ½ or 10 years old when the second incident occurred. She was sleeping on the couch at House 1. She had a blanket over her and was wearing pyjamas. She was facing into the couch with her bottom facing out into the room. She remembers feeling the couch moving and the accused laying beside her. She thinks she was wearing pyjama shorts and that he pulled them down and that he put his penis “inside of my butt” (Tx64). Examination in chief continued (TX64-65):
QBy that do you mean your bottom.
AYeah.
QAfter he did that, did he do anything, did he move at all.
ANo, yeah, he moved, thrusted himself but he didn’t, you know, get off, if you know what I mean.
HIS HONOUR
QWhen you say ‘He didn’t get off’, what do you mean by that.
AI mean, like, he said ‘Did he move’. I thought he meant get off the couch. Then I kind of recalled what he was saying. No, he thrusted himself. He didn’t get off the couch.
XXN
QOn this occasion at the time that his penis was in your bottom what position were you in at that point.
AI was rolled over facing the back of the couch,
. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .
QHow long did this incident last.
ANot too long because I started wriggling and he kind of just couldn’t do anything so he just got off.
QWhen you say ‘He kind of couldn’t do anything’, did his penis actually go into your bottom and inside of you.
AYeah, once he did that. Because I was lying on my side, rolled, if you know what I mean, yeah, yeah, he could get in properly, so yeah.
Touching the complainant on the breasts, touching her on the vagina and inserting his finger into her vagina

J told the court that the reason she had been facing the back of the couch at the time of the incident to which I have just referred was because she was trying to prevent him getting to her front. She said that she started to develop breasts when she was about 10 years old and that there had been a couple of times prior to that incident when he had touched her breasts. He had also touched her vagina “quite a few times” (Tx67) at House 1, mainly on the outside of her clothes but sometimes under her clothes and on a couple of occasions, she said , he put his fingers inside her vagina.
Penile vaginal sexual intercourse
J believes that she was about 10 years old when the accused first put his penis into her vagina. She described it as follows.
She was on the couch at night time and thinks that she was wearing pyjama shorts and tee-shirt. Her memory is that she was on her back with him on top of her and that he did not pull her shorts down but pulled them to the side. He put his erect penis into her vagina and it hurt. He moved his penis inside her vagina until he reached orgasm: “He didn’t come inside me, he pulled out and then he went to the bathroom” (Tx69). Evidence in chief continued:
QDid he stick his penis in your vagina after this first incident that you have described.
AI don’t think so without there being consensual –
QI am just asking about any occasions. I am not asking whether you consented or not. After this first occasion, did he ever stick his penis in your vagina again.
AYes.
QAfter this first occasion and before he mentioned going out with him, approximately how many more times or how frequently did he stick his penis in your vagina.
AOnly about two or three times.
Referring to their relationship after the accused asked her to “go out with him”, she described it as “just a fling thing” (TX71). Evidence in chief continued:
QAfter he asked you to go out with him did the type or the nature of the sexual contact between the two of you change at all.
ANot really.
QDid the frequency, that is how often it occurred, change at all.
AYes, because it was up to me. I had a decision in it.
QI didn’t hear that last part of your answer.
AI had a say in it when we started going out, or whatever, so it would happen when I wanted it to not, like, when I didn’t want it to.
QSo after you started going out did it happen more often or less often.
ALess often.
QAfter you started going out did you go to stay over with [the accused and L] more often or less often or about the same.
AA bit less often because, like I said, it was five or six months before they moved to [House 2] and when they moved to [House 2] I didn’t go and see them that often.
She explained that the reason she did not go as often was because House 1 was only a short distance from where she lived with her parents but House 2 was some 45-50 minutes away by car .
House 2
She thought that she probably stayed over at House 2 once or twice a month. Sometimes K would be there with her. It was her evidence that some form of sexual contact with the accused would occur every time she was at House 2. The types of sexual contact mentioned in evidence were inserting his penis into her vagina, inserting his penis into her mouth, touching her vagina with his hand and touching her on the breasts. She said that a pattern continued where she would stay up with the accused and either watch movies or play games after L had gone to sleep and that was when sexual activity would occur.
The witnesses
I shall refer later in more detail to matters concerning the truthfulness and reliability of witnesses but at this point it will be useful to briefly state my opinions about them.
Although there were some discrepancies and inconsistencies in the evidence given by J, I consider that she was frank and tried to remember what had happened as well as she could. I shall refer in more detail to inconsistencies in due course but I should say at this stage that overall, despite some deficiencies, I have formed the opinion that she was a reliable witness. In a situation where the activities are such that, in the ordinary course, only the accused and the complainant are likely to have been present, J’s evidence must be scrutinized carefully and unless it withstands that scrutiny, there could be no question of a finding of guilt on either count.
I formed the view that K was also a straightforward witness and, making due allowance for her age at the time of the events about which she was giving evidence, that she was truthful and overall, reliable.
Regrettably, L was an unimpressive witness. I shall refer to detail later but it is appropriate to say at this stage that at times she was evasive and untruthful. Some of her evidence was inherently improbable.
COUNT 2
Section 49(3) CLCA is as follows:
49 Unlawful sexual intercourse
(3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
To obtain a verdict of guilty the Crown must prove beyond reasonable doubt that on or about 24 July 2010, the accused’s penis penetrated J’s labia majora and that at the time, she was under the age of 17 years.
Where, as here, separate charges are laid on the same information and are tried at the one hearing, special care must be taken to ensure that each count is considered separately and that, in considering a count, only the evidence relevant to that count is considered and not the evidence in relation to the information as a whole, except to the extent that evidence may be common to more than one count – eg., J’s evidence about “going out” with the accused.
J’s evidence in relation to Count 2 was as follows.
The incident occurred on 24 July 2010; she is not sure what day it was but thinks it was on a weekend. In fact, 24 July 2010 was a Saturday. J, her sister A, and K were all staying at House 2 with the accused and L for the weekend. L’s two children were not there as they were staying with their grandparents (J’s parents). In the afternoon L, K and A took the dogs for a walk. They were gone for about four hours and during that time the only two people at the house were the accused and herself.
While they were playing pool in the pool room, the accused started touching her and they both became aroused. Then “it got sexual and it moved into the hallway and then from the hallway – like, we were having sex in the hallway – from the hallway it went into his bedroom” (Tx81). She explained that while they were in the hallway he sat her on top of a dressing table and inserted his penis into her vagina. They then went into his bedroom where he put on a condom while he was sitting on the bed. They then had penile/vaginal sexual intercourse.
I should mention in passing that J gave evidence of an uncharged act, anal intercourse, that she said occurred a short time after the vaginal sexual intercourse. That evidence is not admissible for the purpose of considering whether the Crown has proved the offence alleged in Count 2. The use that can be made of it is confined to a limited comparison of what J said on an earlier occasion about the events of that day in the context of a submission of inconsistency going to the credibility of her evidence. I shall deal with that when referring to such matters.
K’s evidence was as follows.
There were two occasions where she stayed over at House 2 including July of last year. She recalls going with L and A to take the dogs for a walk one afternoon. She is not sure what day of the week it was; it might have been a Saturday or a Friday. She is not sure about L’s two children. She is fairly sure that they did not go with them on the walk and that they were not at the house at all. She thinks that they might have been at school. However, she is quite certain that when they went for a walk with the dogs there was no one at the house other than J and the accused.
L’s evidence was as follows.
She, K and A took the dogs for a walk and they were away for about two hours. The accused and J stayed at the house. Her elder daughter remained at the house because she has a disability that means she cannot go on long walks. She made no mention of the whereabouts of the younger daughter.
All three witnesses say that L, K and A took the dogs for a walk. J and K say that L’s two children were not left at the house. They had different impressions about where the children may have been but, in my opinion, that is not significant. L’s evidence about whether or not her elder daughter remained at the house appears to be based on reconstruction related to her daughter’s disability rather than recollection. I cannot prefer the evidence of L to the combined effect of that of J and K. I am satisfied that J and K can be relied on when they say that when the dogs were taken for a walk the only two persons left at the house were the accused and J.
Evidence of complaints
Evidence was given of two conversations between J and K as complaint evidence pursuant to s34M of the Evidence Act in relation to Count 1 and another such conversation in relation to Count 2. In addition, evidence was given of a complaint made by J to L relevant to Count 1.
To be admitted, the evidence must satisfy the requirement of being an initial complaint and it may only be used for a limited purpose. It cannot be used as evidence of the truth of what has been alleged, but only to provide information about how the allegation first came to light and as evidence that can be used when considering the consistency of J’s conduct. However, it is a matter for the jury, or judge sitting alone, to determine what, if any, significance that evidence has. In this context, consistency of conduct is relevant to a consideration of the credibility of the complainant and it “includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.”[2]
[2] R v J, JA (2009) 105 SASR 563 per Duggan J at 583
J said that she was about 8 ½ - 9 years old when K first started staying with her at House 1. On that basis K would have been about 10 years old at that time, but K said that she thinks she was about 12 years old when she started to have sleepovers at House 1. Each of them found it hard to be precise about their age at the time of various events during their childhood and that is unsurprising. It is not a discrepancy of any moment.
First Complaint
K said in evidence that when she was about 12 years old, J told her that the accused “was touching her in inappropriate places” (Tx139). She said that this was the first time that J had said anything like that to her. K said that as a result of J telling her this, she felt uncomfortable about going to the house and that thereafter she stayed overnight less frequently. J said that after the first incident, when the accused made her touch his penis with her hand, she started getting K to stay overnight with her every second or third weekend.
It was submitted by Mr Grant that there is an inconsistency in J saying that she got K to start staying as often as possible because of the first incident and K saying that she went less frequently after J told her about the accused. That does not necessarily follow. It is not clear how long after K started staying that J made the complaint. It is quite possible for the evidence of both of them to be correct.
J was not asked whether she had said anything to K about the accused touching her but she was asked whether she had told K about the first incident, the accused using her hand to touch his erect penis, and she said that she was not sure.
Second Complaint
K gave evidence of a conversation that she had with J on the morning after the incident with the frying pan. K said that she stayed overnight and slept in the backroom. In the morning, she thinks while she was probably still in the backroom, J told her that L had hit the accused over the head with a frying pan and that the accused was lying over the top of her. In evidence in chief K said that she could not recall J saying whether anything had happened just before L had hit the accused with the frying pan but she did say initially that during this conversation J had told her that the accused had been using her feet to touch himself “in his private area” (Tx144). However, shortly afterwards (Tx145) she conceded that she was not sure whether J told her about him using her feet during that conversation; it might have been either that conversation or a previous one.
For the sake of completeness I should refer to the cross-examination of K on that topic which appears at (Tx154-156). I do not propose to go into all the details. She was asked questions about what she had said in evidence in chief and it was then put to her that J had told her also about what the accused had been doing to her immediately before L hit him over the head with the frying pan. It is enough to say that it was apparent that K become more and more confused with this line of questioning and she quite frankly said so. In particular, it was not clear whether she was saying that J telling her about the accused using her feet to touch his penis in the course of that conversation was a reference to something that had happened the night before or whether, during that conversation J was speaking about what had happened generally with the feet. I mention this to make it clear that I do not accept the submission that the answers given by K during cross-examination on this topic are adverse to her credibility or to J’s credibility.
J said that she told K about the incident with the frying pan but she thought that they were at school when she did so. I prefer the evidence of K on that point. Even though K was not absolutely sure of which room they were in during the conversation, to the best of her recollection it was the backroom, but, importantly, she had a clear recollection that she was still at the house and that J was crying when she told her about it.
One of the agreed facts is that in a statement made to the police on 12 August 2010, J said that “she could not recall what led to the accused falling onto her and that [her sister A and K] had told her about it”. This evidence is equivocal and it would be unsafe to make any use of it.
Third complaint
J said in evidence that she told L that the accused was making her touch his penis with her feet. She did not identify the occasion but, when asked how old she was when she said this to L, she said that she was probably 9 or 10 years old. She said that in response L said “If he ever tries to do it again just kick him in the nuts” (Tx52).
L confirmed that a couple of days after the frying pan incident J said that the accused “was putting his penis on her feet” but that in response she had said “He wouldn’t do that” (Tx181). For present purposes, it is unnecessary to explore the difference in their evidence about L’s response. I will refer to that later. But L’s evidence confirms that this complaint was made soon after the frying pan incident.
Complaints 1-3
Count 1 is concerned with allegations of a series of sexual acts over a long period. The timing of the first complaint is not certain but it was clearly made at a reasonably early stage and therefore was contemporaneous with conduct alleged to have occurred at House 1. The complaint itself is fairly vague and is of limited assistance but at the least, it tends to show consistency in her allegations of the accused touching her on the vagina or on the breasts.
K’s evidence about the second complaint at first identified the occasion that it was made but that changed as she thought further about it and she conceded the alternative. On a fair reading, the effect of her evidence now is that it cannot be said that the conversation that took place on the morning after the frying pan incident was the occasion of the making of an “initial complaint” as required by s34M. There may have been no mention of the accused using her feet during that conversation or there may have been repetition of an earlier conversation or conversations. In my opinion, therefore, the evidence of what was said during that conversation no longer has probative value under s34M and I disregard it.
The third complaint is consistent with her making a complaint about the accused’s use of her feet to rub against his penis, at a time when that could be expected, and it shows a consistency in her complaint about the conduct that she says was most common.
Fourth complaint
K said in evidence that after they returned from the walk, at “about tea time”, she had a conversation with J during which J told her that she and the accused “had sex” in the main bedroom while the others were walking the dogs (Tx149). J said in evidence that some time later that day, she told K “that while they were gone it started in the pool room and it ended up in the bedroom” (Tx82). Her evidence does not specify whether she told K what “it” was.
I accept that there was a conversation that day during which J told K that she and the accused had taken part in some unspecified sexual activity at the house while the others were walking the dogs. This evidence does not say anything about whether or not sexual activity took place that afternoon but it does show a consistency, albeit to a limited extent, in her recounting that sexual activity took place with the accused at that time and this was said soon after the activity was said to have occurred. I do not accept that there is inconsistency demonstrated by the fact that this complaint did not go into the details of the incident recounted in her evidence.
Inconsistencies/Assessment of Witnesses
As I have said, I accept both J and K as being truthful but, of course, that still leaves open the question of reliability and, depending on the circumstances, an inconsistency or a series of inconsistencies could be such that a witness could not be regarded as reliable. As I will explain in a moment, there are inconsistencies and there are parts of her evidence on which I do not rely, but that is no reflection on her candour and ultimately, my finding is that her evidence is in all essential respects, reliable.
Counsel referred to variations and inconsistencies in J’s evidence, including J’s impressions as an immature 13-14 year old of L’s view about her relationship with the accused, which I consider are of no consequence and I need not recount them. However, there are others to which I need to refer.
Masturbation: Hand/Feet
It is an agreed fact that in a statement made to police on 12 August 2010, J said that after the first incident, when the accused caused her to rub his penis with her hand, over the next couple of years “he would always just use my hand to rub his penis”. It was submitted that this is inconsistent with evidence said to be to the effect that she only rubbed his penis with her hand once and that the most common type of masturbation was by using her feet. It is instructive to look at the relevant passages of evidence.
As mentioned earlier, J’s evidence was that there came a time, probably in the second half of 2009, when she and the accused started “going out”. In the course of evidence in chief about the first incident involving her hand on his penis, the following appears at Tx46:
QYou’ve told us about this first incident. Were there any other occasions when he made you touch him on the penis in that way.
ANo, not with my hands.
(Emphasis mine)
A little later in evidence in chief, dealing with touching his penis with her feet, the following appears at Tx50-51:
QAfter the time of the touching with the feet, how often did it occur that he did that, the feet touching the penis, again.
ALike I said, it was the thing that happened the most.
Q.    Would it occur on every occasion that you stayed over.
A.    Basically, I reckon, yes.
QWhen you were about 9 or 10 and staying over were there ever any occasions when you stayed over and he didn’t touch you sexually in any way.
AI think there was a couple of times when [L] would make him go to bed with her.
QApart from that, how often was the touching.
AMost of the time.
QWith respect to the feet and the penis touching, what time of the day would this occur.
AAt night time.
QWhere were you when it would occur.
AOn the couch.
. . . . . . . . . . . . . . . . . . . . . . .
QWhen this type of act occurred were you ever awake when it started or was it something that started once you had gone to sleep.
AYes, sometimes I’d be awake and then I would just pretend to be asleep because he would be touching me and then other times I would wake up halfway through it.

She was cross-examined on these topics (Tx116-117) after her attention was drawn to the statement made to police on 12 August 2010:
QDid you say in that statement ‘I remember over the next couple of years that similar things that I’ve just described happened another couple of times at [the accused and L’s] house. I think that [the accused] thought I was asleep whenever these things happened. He would always just use my hand to rub his penis’.
ADoesn’t it say ‘feet’?
QWhat I am putting to you is what you’ve said was ‘He would always just use my hand to rub his penis’.
AHe used my feet.
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
QCan I broach it this way: have you ever said that, after the first time you had vaginal sexual intercourse, that over the next two or three years you didn’t have sex, but you did give the defendant hand jobs and head jobs.
AYes.
QSo there was a time, after the first time, where you did use your hand.
AYeah, but I – like, it was me. He wasn’t using my hand to rub his own penis.
(Emphasis mine)
A little later (Tx118-119) referring to her feet on his penis there is the following passage:
QIt happened pretty much every time you went over there.
AYes.
QHave you ever said in the past that the defendant using your feet to rub his penis only happened on a couple of occasions.
AWhat was that?
QHave you ever said in the past that the defendant used your feet to rub his penis only on a couple of occasions.
ANo.
Her attention was then drawn to the extract from her statement to the police of 12 August 2010 to which I have just referred, but with the addition of the following: “I remember on a couple of occasions that I would wake up to find [the accused] using my feet to rub his penis” and she agreed that this was not what she had said in her evidence.
While I accept that, on the face of it, there is some inconsistency between what she told the police and what she said in evidence, it is not necessarily as stark as was submitted by Mr Grant.
The first inconsistency is said to arise from a comparison of her evidence in chief with her evidence during cross examination and what she told the police about the accused masturbating with her hand. As indicated by the passages I have emphasized, I consider that a fair reading of what she was saying in both evidence in chief and cross-examination is that there was only one occasion when he made her touch him on the penis with her hand as distinct from other occasions when she did it voluntarily.
Nonetheless, that still leaves the apparent inconsistency between what she said in evidence and what she told the police – i.e., that he would always just use her hand to rub his penis. However, her reaction when that was put to her in cross-examination was immediate; she thought that Mr Grant had made a mistake and asked him whether the statement mentioned her feet being used rather than her hand. The circumstances of the taking of the statement in August 2010 are not known but it is reasonable to assume that it was prepared from a series of questions and answers and that it is not simply J’s uninterrupted narrative. I accept that she was not completely comfortable at that interview because the interrogating officer was a man rather than a woman and that she was more comfortable when she was interviewed later by a female police officer. She was only 14 years old at the time and given the personal nature of the topics being discussed, I can understand that she would have been unsettled and may not always have conveyed accurately what she meant. It is also understandable that she may not have told the police at that stage about all of her allegations. In the circumstances, I am not persuaded that the inconsistency reflects adversely on the reliability of her evidence.
The second inconsistency put to her was that, contrary to her evidence, she told the police that the accused used her feet to rub his penis on only a couple of occasions. That is not what she told the police. She told them that on a couple of occasions she “would wake up” to find the accused using her feet. That is not inconsistent with her evidence that sometimes she would be awake when he did this and she would pretend to be asleep, but that there were other times when she “would wake up halfway through it” (Tx51).
Frying Pan Incident
It was submitted that there is an inconsistency between what J said in evidence, namely that she was asleep immediately before she was woken up by the accused falling on top of her after he had been hit with the frying pan, and K’s evidence that J gave her a detailed account of what had occurred.
I have already expressed my view about that evidence and cross-examination when dealing with the second complaint and I need not repeat it. It is enough to say that I am not persuaded that there is an inconsistency between J’s evidence and K’s evidence on this topic.
Failure to tell police about certain incidents in relation to Count 1
It was submitted that there are inconsistencies in that when J spoke to the police on 12 August 2010 she did not mention, in relation to allegations of fellatio, that on the second occasion the accused ejaculated in her mouth, and that there were two incidents involving anal sex.
As I have mentioned earlier, J said that she was not as comfortable speaking to the male police officer on 12 August 2010 as she was when speaking later to a female officer. For reasons I have given already, I do not accept the submission that her not mentioning these matters in her interview with the police on 12 August 2010 reflects adversely on the quality of her evidence. In particular, I do not accept the submission that it tends to support an inference that her evidence about these sexual activities has been fabricated and that there has been a steady increase in the allegations of misconduct between August 2010 and her giving evidence in court.
Frequency of penile/vaginal sexual intercourse
It was submitted that there is an inconsistency if one compares what J said in evidence about the frequency of penile/vaginal sexual intercourse with what she told a female police officer about it on 22 May 2011 and answers she gave during cross-examination.
In cross-examination J’s attention was drawn to her evidence in chief about the first time she had vaginal sexual intercourse with the accused. She thought that she was then about 10 years of age and that she would have been aged about 13 years when she and the accused started to “go out”. It is necessary to refer to the relevant part of cross-examination at some length (Tx120-121):
QAt page 69, line 24 of your evidence yesterday was that between the first time you had vaginal sex with the defendant and before the defendant asked you out, you had vaginal sex two or three times.
AYeah, about.
QHave you ever said in the past that once the defendant first had vaginal sex with you, he then had vaginal sex every two to three weeks afterwards.
AIt became regular after he did it the first time.
QAfter the first time he had vaginal sex with you when you were about 10, he’d have vaginal sex with you every two or three weeks afterwards.
AYeah, probably every three weeks.
QBut you told us yesterday that in between the first time you had sex and going out at age 13, you only had vaginal sex two or three more times.
AYeah.
QNow you are saying after the first time that you had sex you had sex every three weeks.
AThat was – now you are just confusing me. Once he did it once he thought he could just do it all the time.
QBut your evidence yesterday was once he did it the first time, vaginal sex or intercourse, he only before he asked you out – so from the date of the first time to the age of about 13 when he asked you out, it happened two or three times. That was your evidence yesterday, wasn’t it.
AYes, yes, that is how it is.
QHave you said in the past that once he had sex with you the first time, he would then have vaginal sex with you every two to three weeks.
AYes.
QUnderstand that they are very different statements.
AYes, but you are confusing me.
QHaven’t you said in the past that once he had sex with you the first time, he kept having sex with you every two to three weeks.
AYeah, like after we started going out.
QNo, that’s not what I put to you. Haven’t you said in the past, so after the first time you had sex with [the accused] when you were about 10, he kept having sex with you, vaginal sex with you every two to three weeks.
ANo.
QSo you wouldn’t accept that you said that in the past.
AI’m really too confused.
QDo you recall making another statement to police on 22 May 2011.
AYes.
QYou gave some statement to Senior Constable Nadiene Lynch.
AYes.
QAgain you it was important to tell the truth.
AYeah.
QAnd you read it.
AYeah.
QAnd you signed each page.
AYep.
QDid you say in that statement ‘Once [the accused] did this to me once, he raped me pretty regularly. When I mean, when I say, that is [the accused] put his erect penis in my vagina every two to three weeks as I slept on the couch. The last time that anything like this happened was on 24 July 2010.’
AYes.
QThat’s not what you said yesterday, is it.
ANo.
QThe defendant never asked you out, did he.
AHe did.
In addition to J saying that she was confused, it was apparent that she was becoming increasingly upset, to the point where I ordered an adjournment after the last answer just quoted. I considered that she was not being evasive and that her confusion was genuine. In saying this I should make it clear that no criticism of the cross-examiner is implied.
Nonetheless it is not possible to reconcile all of her answers. The main criticism was the difference between her evidence that the accused had vaginal sex with her two or three times until she was about 13 years old and thereafter more frequently, i.e., every two to three weeks, as against the accused having vaginal sex with her frequently after the first occasion. Her evidence is consistent in saying that there was vaginal sexual intercourse at that time but the discrepancy is whether or not there was a time lapse before it became more regular.
Allowance must be made not only for her age at the time of giving evidence but the fact that she was being asked for her memory of details of what she says was happening to her between the ages of about 10 and 13 years during a period of what she says was sustained, regular sexual abuse of various types. Having regard to these matters and to her overall evidence, I am not persuaded that the inconsistency is such that it tells against the reliability of her evidence.
It was submitted that there are two further inconsistencies that arise out of evidence in relation to Count 2.
Anal sexual intercourse
In the course of evidence in chief, J said that anal sexual intercourse occurred after the vaginal sexual intercourse that is the subject of Count 2. It was submitted that an inconsistency arises from the fact that in cross-examination (Tx110) she admitted that when speaking to the police on 12 August 2010, she described the events of that day without mentioning that there had been anal sexual intercourse. For reasons I have already given about the circumstances of that interview, I do not accept that submission.
I make it clear that the only reason I have mentioned evidence about this incident is because it was raised as an inconsistency that told against the reliability and truthfulness of J as a witness. The evidence does not support that proposition and it is not relevant for any other purpose.
Use of condom
In evidence in chief, J was asked whether the accused used a condom when having vaginal sexual intercourse. She said that she thought he first used a condom when she was about 13 years old, which was when “I got my period” (Tx74). It was submitted that this evidence is inconsistent with her having said at some unspecified time in the past that this (July 2010) was the first time she was sure he ever used a condom. The evidence does not disclose the circumstances or the context of that earlier comment and, in my opinion, it does not support a finding one way or the other.
For the reasons I have given, I am not persuaded that these inconsistencies taken either alone or together support any adverse findings about the truthfulness or the reliability of J’s evidence.
Evidence of L
As mentioned earlier I formed the opinion that L was an unreliable witness. I now refer to some examples of matters that have led me to that conclusion. At times it is necessary to set out passages from the transcript because it is relevant to take into account not only what she said had occurred but how she answered questions.
Evidence about the frying pan incident
I have already outlined L’s evidence in chief about what she observed when she went into the lounge room and, in particular, that she noticed J’s feet, which were in the accused’s lap, moving under the blanket. While she was giving that evidence she was moving her hands in a way that indicated a significant amount of movement under the blanket. In fact, the combination of what she was saying and what she was indicating with her hands was very supportive of J’s evidence of what occurred on the occasions that the accused rubbed his penis with her feet. . The relevant passage in the transcript appears at (Tx180):
QWhere did you see the movement.
AWhere [J’s] legs were. Her feet.
QWell, legs or feet.
AI don’t know, yeah, like it was just – she was kind of like moving, so she was moving her feet. I don’t really know (INDICATES).
HIS HONOUR
QYou’re indicating with your hands quite a lot of movement. Is that what you are describing.
AYes, it was kind of like – I don’t know, turning over or moving her feet or I don’t know what she was doing, so I just indicated most probably the wrong thing, but I don’t know.
Initially, L demonstrated that there was quite a lot of movement but it was clear from what she said and from her demeanour that, as the significance of that dawned on her, she changed her evidence to describe an uncertain movement that might have been no more than J turning over or just moving her feet, saying that the demonstration she had given was probably wrong.
Her attempts to minimise what she had seen continued during cross-examination by Mr Heffernan, for the Crown. That appears generally at Tx195-201. When asked what the first thing was that she noticed about the accused and J, she said that she saw them both asleep and that the blankets were “just moving” (Tx195) in the vicinity of the accused’s lap. She was asked why, if both of them were asleep, she concluded that there might have been something inappropriate going on and she said “I think it was just – I’ve been through it before so I thought, yeah”. That was a reference to her evidence that she had been sexually abused herself by men on two occasions.
As cross-examination continued, she described the accused as sitting upright on the couch with his head back, his eyes closed and his hands motionless on either side of him on top of the blanket which was covering his lap and J’s feet. She said J was lying flat on the couch. Again she became evasive in her answers. (Tx197):
QWhat did you think was going on that made you react in the way you did when you came out of your room.
AJust basically saw the blanket moving and I thought the worst.
HIS HONOUR
QMr Heffernan is asking what you did think.
AI don’t know, I had a lot of things going through my mind, so.
Mr Heffernan reminded her that to get the frypan from the dish rack in the laundry involved going from the lounge room through the kitchen to the laundry and back again, and then the following occurred in cross-examination (Tx198):
QYou returned to the room, was [the accused] still asleep.
AYes.
QWhy did you hit him over the head with the frypan.
AI don’t know.
QIf he was asleep at the time you entered the room, he couldn’t have been involved in anything inappropriate with [J], could he.
ANo.
QIf he was asleep when you returned to the room, it stands to reason he couldn’t have been involved at that point with something inappropriate with [J], could he.
ANo.
QYet you described yourself as hitting him fairly hard with the frying pan.
AI did.
QIsn’t it the case that you interrupted [the accused] touching [J] in an inappropriate way and it was that reason that made you go and get the frypan and hit him over the head.
ANo.
QYou shouted something to [the accused] after you’d hit him over the head about not doing this sort of thing.
ANo, I didn’t. I just hit him over the head with a frying pan, hit him over the head.
There is no evidence from J as to what, if anything, was happening immediately before L hit the accused over the head with the frying pan but I cannot accept L as being truthful in her version of what she saw and thought. The effect of her evidence is that when she walked into the room J and the accused were both asleep but when she saw movement in the accused’s lap under a blanket she had a momentary suspicion that something untoward was happening so she immediately pulled off the blanket. She then saw that both were fully clothed and that nothing was happening. Yet she walked to the laundry, picked up the frying pan out of a dish rack, walked back into the lounge and hit the accused, who was still asleep, hard enough over the head to the point that he was “out for a little while” (Tx201). This is inherently improbable.
And despite all this she did not even challenge him about any misconduct. The only discussion, she said, was that after he eventually woke up, he came into their bedroom and there was a short interchange (Tx201):
QDid he turn to you and say ‘What was that all about?’
AWell, he did, when we were in our room he said ‘Why did you hit me over the head?’
QWhat did you tell him.
A‘Because I thought maybe something was going on’.
QWhat did he say.
AHe said ‘No, there was nothing going on’.
I cannot accept that their conversation about what occurred would have been as limited as that.
Her account of her part in the conversation she had with J a couple of days after this incident is equally unbelievable. J said that in response to her telling L that the accused was using her feet to touch his penis, L said “If he ever tries to do it again just kick him in the nuts”, whereas L’s evidence is that in response she had said “He wouldn’t do that”.
Given L’s description of what she saw happening under the blanket when she walked into the room, even the watered-down version, her becoming distressed enough to hit her husband over the head with a frying pan, and the consistency between what she observed and what J was describing to her in that conversation, I cannot accept that she could honestly dismiss what she was being told with a bland denial that the accused would do such a thing. She was questioned further about that (Tx201-202):
QI think you said in your response that [the accused] wouldn’t do that.
AYes.
QIf that’s correct, then what [J] told you a couple of days after was entirely consistent with the concerns you had when you went to get the fry pan, wasn’t it.
AKind of, kind of not.
HIS HONOUR
QSorry.
AI said ‘Kind of, kind of not’. A lot of things were going through my head.
XXN
QWell, you were concerned that something inappropriate was going on between [J] and [the accused] when you went to get the fry plan.
AYes.
QA couple of days later [J] told you that [the accused] had been touching her feet with his penis, didn’t she.
AYes, she did.
QThat was a suggestion that was consistent with her having her feet in his lap under the blanket, wasn’t it.
AYeah, because he did have her feet underneath the blanket, yes.
QYour response was that [the accused] wouldn’t do that.
AYes.
QDidn’t any alarm bells go off in your head when you were told this by your sister.
ANo.
QWasn’t she confirming the suspicions that you had only a couple of nights before.
AWell, yeah, she was.

As can be seen, L continued to be evasive in her answers. I cannot accept that she was telling the truth when giving this evidence.
Opportunities for the accused to have sexual contact with J
In my opinion L consciously exaggerated some of her evidence to create the impression that the accused would have had minimal opportunity to be alone with J. She did this in relation to two topics.
The first was in relation to how often there would be people other than J at House 1 in the lounge room and/or staying overnight. It is quite understandable, and I accept, that friends stayed at their house from time to time. However, in evidence in chief, L was at pains to paint the picture of a house where the norm was to have other guests in it. Her evidence in chief on this topic (Tx173-176) can be summarized by saying that often there were a lot of their own friends as well as friends of J and K that would stay overnight at House 1. Some slept in the kids room, some slept in the lounge room, some slept in the spare room: “people pretty much slept everywhere”. When asked who stayed over, she mentioned four names and added “there was just heaps of people, like, yeah”. People were dropping in to watch movies and would end up staying the night “pretty much all the time” and this was “normally how it happened”.
With regard to House 2 she said that they had a lot of friends visit them and there was also a group from their church (Tx182) who “would often come over every second night to every night to do Bible studies with us”. She said that she met them while they were still at House 1 “and then they kind of just used to come over all the time”.
In cross-examination L was reduced to admitting that a true summary of the position is that sometimes there were other people staying at the same time as J and K and that at other times when either J or J and K were staying over, there were no other people there. That is a very different scenario to the one she presented in evidence in chief.
The second topic related to how often the accused stayed up after L went to bed. Both J and K said that the accused was often still up watching the television or playing video games when L went to bed. In evidence in chief L said that she would stay up quite late, until midnight or later, and that the accused would normally go to bed at about the same time as she did. She confirmed that J would normally sleep on the lounge. Twice in her evidence in chief she said that there were only about three occasions when she woke up to find the accused asleep on the lounge in front of the television.
In cross-examination the following occurred (Tx191-192):
QI suggest that you went to bed on occasions leaving [the accused] and [J] watching videos and playing games.
AThat was not very often though.
QYou are not saying that never happened.
ANo, I’m not saying that never happened.
QIt happened on some occasions.
AAround about three occasions, yes.
QWhy do you fix on around about three occasions.
ABecause he would normally be in bed with me.
QCan you remember each three occasions distinctly.
ANot really.
QAre you really just having a stab when you say three occasions.
AYes.
QWould it be more accurate to say sometimes rather than restrict it to three occasions.
AIt wasn’t that often at all so.
QNot that often. But it did happen sometimes.
AYes.
It follows from what I have said that I do not accept L as a truthful witness.
CONCLUSION
Count 1:
I am satisfied beyond reasonable doubt that the accused is an adult and that he engaged in sexual activity with J during the period in question. That conduct started at House 1. Whether J was about 8 years old at the time of the first incident, his using her hand on his penis, as she remembers or whether, based on the evidence of K, she was a little older, about 10 years old, it is not possible to be certain. However, that incident was clearly within the time frame referred to in the information.
The Crown has proved beyond reasonable doubt that there was an occasion at House 1when the accused used J’s hand to masturbate his penis, the first incident. There are two elements that constitute the offence of indecent assault. The first is that there must be an intentional and unlawful application of force to another person. The second is that the assault must be accompanied by, or occur in, circumstances of indecency. It is unnecessary to spell out the details again. Clearly the act in question would constitute an indecent assault. If the victim of such an offence is under the age of 14 years the offence is an aggravated offence pursuant to s56(2) CLCA. J did not attain the age of 14 years until 12 March 2010, some months after the accused moved to House 2, and this incident occurred at House 1. It would therefore be an aggravated indecent assault.
The Crown has proved beyond reasonable doubt that the accused used J’s feet to masturbate his penis at House 1 and that the first time this occurred was on a day after the occurrence of the first incident. While it is not possible to say how often, I am satisfied beyond reasonable doubt that this type of act occurred on a number of separate days while the accused and J were on the couch in the lounge room at House 1. Such an act would constitute aggravated indecent assault.
The Crown has proved beyond reasonable doubt that there were occasions at House 1 when the accused put his penis into J’s mouth. It is not possible to say how often that happened but it occurred on separate days at night-time on the couch in the lounge room. Such an act of fellatio is sexual intercourse within the meaning of s49 CLCA. If the person with whom an accused has sexual intercourse is under the age of 14 years, he commits the offence of unlawful sexual intercourse pursuant to s49(1) CLCA. While there was evidence of his causing her to perform fellatio at House 2, the evidence does not enable me to make a finding of that having occurred before 11 March 2010.
The Crown has proved beyond reasonable doubt that the accused inserted his penis into J’s vagina on more than one occasion. Such an act constitutes unlawful sexual intercourse under s49(1) CLCA. It is not possible to say how often it occurred but I am satisfied that it occurred on separate days at House 1. There was evidence of this occurring at House 2 but the evidence does not enable me to make a finding about whether it occurred at House 2 prior to 11 March 2010.
There are two allegations of anal sexual intercourse.
J’s memory of the incident in the kids’ room is uncertain. I have referred to the evidence earlier and need not repeat it. She was quite frank in indicating that her memory of the event was patchy. It must be remembered that on her evidence she would have been only about 9 years old at the time and her description of the event does not exclude the possibility that there may have been penetration from behind of her vagina as distinct from penetration of her anus. There is also ambiguity in her evidence about whether there was any movement by the accused. The evidence does not support a finding beyond reasonable doubt that anal sexual intercourse occurred at that time.
The second occasion on which anal intercourse is alleged to have occurred is when she was about 9 ½ or 10 years old while she was facing inwards on the couch. I have set out the evidence earlier and need not repeat it. Looking at that evidence as a whole, there is room to doubt whether there was in fact penetration of her anus, and to question whether her assertion about penetration is partly reconstruction based on what “he could” (Tx65) do because of how she was lying on the couch. For those reasons it is not possible to make a finding beyond reasonable doubt that there was anal sexual intercourse on that occasion.
I am satisfied beyond reasonable doubt that while J and the accused were on the couch in the lounge room of House 1 at night-time, there were occasions when he touched her vagina. That was mainly on the outside of her clothing but there were a couple of occasions on which the touching was under her clothing and involved digital penetration of her vagina. The touching on the outside of the clothing would constitute an aggravated indecent assault under s56(2) CLCA and the digital penetration of her vagina would constitute unlawful sexual intercourse under s49(1) CLCA. There was evidence of his touching her vagina at House 2 but the evidence is not specific enough to enable any finding to be made about it occurring before 11 March 2010.
The evidence about the accused touching J’s breasts is vague. J said that it occurred a couple of times. The evidence is not specific and it does not enable me to make a finding about whether any of those occasions stood alone or whether touching her breasts may have been part of conduct constituting other offending such as unlawful sexual intercourse.
I am satisfied beyond reasonable doubt that as set out in these findings, the accused caused J to masturbate him with her hand, caused her to masturbate him with her feet, caused her to perform fellatio on him, inserted his penis into her vagina, inserted his finger into her vagina and touched her on the vagina while he was living at House 1, i.e. within the period specified in the information. During that time J was under the age of 14 years.
I am satisfied beyond reasonable doubt that these acts occurred over a period of not less than three days and that at the time they occurred, J was under the prescribed age of 17 years. Those acts would, if charged, constitute, as relevant, offences under s56(2) and s49(3) CLCA and I am therefore satisfied beyond reasonable doubt the accused is guilty of persistent sexual exploitation of a child contrary to s50CLCA.
Count 2
I am satisfied beyond reasonable doubt that on or about 24 July 2010 the accused inserted his penis into J’s vagina while they were in the hallway and in the bedroom of House 2. At that time she was 14 years old. That activity constitutes sexual intercourse and, as J was at that time under the age of 17 years, I am therefore satisfied beyond reasonable doubt that the accused is guilty of unlawful sexual intercourse contrary to s49(3) CLCA.
VERDICT
Count 1: I find the accused guilty.
Count 2: I find the accused guilty.