R v Banks (a pseudonym)

[2020] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:	R v Banks (a pseudonym) [2020] NSWDC 279
Hearing dates:	04- 13 May 2020
Date of orders:	29 May 2020
Decision date:	29 May 2020
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Accused found not guilty and acquitted on all counts.
Catchwords:	Sexual intercourse – child complainants – single witness
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act Evidence Act 1995
Cases Cited:	Fleming v R (1998) 197 CLR 250
Category:	Principal judgment
Parties:	Regina (Crown) Joseph Banks (accused)
Representation:	Counsel: Ms Morgan (Crown) Mr Fokkes (accused) Solicitors: Ms Hanshaw (Crown) Mr Keane (Accused)
File Number(s):	2019/00234218
Publication restriction:	Identifying details of complainants, child witnesses and complainants mother, father and grandfather

Judgment

1. On 4 May 2020 Joseph Banks (the accused) appeared before the Griffith District Court sitting remotely from Albury for trial. Mr Banks was on remand and appeared by AVL from Junee. He consented to that course rather than appearing in person at the Griffith court house.

2. A judge alone election had been filed. The Crown consented to the trial proceeding by judge alone.

3. The accused was arraigned on 27 March 2020 and pleaded not guilty. The parties were content that he did not need to be re-arraigned before me on 4 May 2020, the first day of the trial. He has pleaded not guilty to the following counts:

Count 1

4. Between 31 August 2018 and 9 March 2019, in Coleambally in the State of New South Wales, did have sexual intercourse with GB, a child then under the age of 10 years, namely 6 years.

S 66A(1) Crimes Act 1900 Law part code 85915

Count 2

5. Between 31 August 2018 and 9 March 2019, in Darlington Point in the State of New South Wales, did have sexual intercourse with GB, a child then under the age of 10 years, namely 6 years.

S 66A(1) Crimes Act 1900 Law part code 85915

Count 3

6. Between 31 August 2018 and 9 March 2019, in Darlington Point in the State of New South Wales, did assault GB and at the time of the assault committed an act of indecency on GB, a child then under the age of 16 years, namely 6 years.

S 61M(2) Crimes Act 1900 Law part code 67803

Count 4

7. Between 31 August 2018 and 9 March 2019, in Darlington Point in the State of New South Wales, did assault GB and at the time of the assault committed an act of indecency on GB, a child then under the age of 16 years, namely 6 years.

S 61M(2) Crimes Act 1900 Law part code 04

Count 5

8. Between 31 August 2018 and 9 March 2019, in Darlington Point in the State of New South Wales, did intentionally incite AB, a child then under the age of 10 years, namely 4 or 5 years, to sexually touch Joseph Banks.

S 66DA(b) Crimes Act 1900 Law part code 93703

Count 6

9. Between 31 August 2018 and 9 March 2019, in Darlington Point in the State of New South Wales, did have sexual intercourse with AB , a child then under the age of 10 years, namely 4 or 5 years.

S 66A(1) Crimes Act 1900 Law part code 85915

Count 7

10. Between 1 September 2018 and 30 November 2018, in Darlington Point in the State of New South Wales, did assault AB and at the time of the assault committed an act of indecency on AB, a child then under the age of 16 years, namely 4 or 5 years.

S 61M(2) Crimes Act 1900 Law part code 67804

GENERAL DIRECTIONS

11. In compliance with section 133(2) and (3), Criminal Procedure Act and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.

12. As the accused has pleaded that he is "not guilty" to all counts and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of these charges and to return my verdicts according to the evidence that I have heard.

13. The Court notes that 7 separate trials have been conducted although they have run concurrently. The evidence relating to each count is different and the Court in considering each count has only had regard to the evidence admissible on each count. I consider each charge separately and consider the evidence in respect of each charge separately. Separate verdicts will need to be given in respect to each count on the indictment.

14. I have heard and received final submissions from the Crown and Mr Fokkes of Counsel. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

15. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

16. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.

17. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

18. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

19. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found "not guilty" of the charges.

20. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

21. I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its’ case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against accused for each count.

22. The accused gave evidence in the trial. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before me.

23. The fact that the accused has given evidence does not alter the burden of proof. The accused does not have to prove that his version is true. The crown has to satisfy me that the account given by the accused should not be accepted as a version of events that could reasonably be true.

24. The Crown must satisfy me beyond reasonable doubt that I should reject the accused’s evidence as a reasonably possible version of the facts. If the accused’s evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove then I am bound to bring in a verdict of not guilty. I do not have to believe that the accused is telling the truth before he is entitled to be acquitted. If at the end of my deliberations I find the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true then the Crown has failed in its obligation to persuade me of the accused’s guilt beyond reasonable doubt.

25. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged.

26. Wherever the Crown seeks to establish the guilt of the accused person with a case based largely or exclusively on a single witness it is important that I exercise caution. I exercise that caution because the Crown case depends on me accepting the reliability of the evidence of a single witness. Unless I am satisfied that the complainant, is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. It is necessary for me to examine the evidence of the complainants very carefully to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial.

27. It is my duty to decide whether I accept the evidence of either complainant in whole, part or not at all. It would be wrong to conclude that either complainant is telling the truth because there is no apparent reason for her to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. I cannot be satisfied that the complainant is telling the truth merely because there is no reason for her to have made up these allegations. There might be a reason for her to be untruthful that nobody knows about.

28. The accused is a person of good character. The Crown does not contend otherwise. I take the accused’s good character into account in two ways. Firstly, unlikelihood of guilt and secondly, it is more likely than not that he is telling the truth.

MARKULESKI DIRECTION

29. This direction applies to where there are multiple counts involving the one complainant. I have made it clear a number of times that as a tribunal of fact, I must consider evidence in respect of each charge on the indictment separately. It follows from that that if as the tribunal of fact I have a reasonable doubt as to the truthfulness and accuracy of the evidence of a complainant in respect of one count involving that complainant as the tribunal of fact I can use that reasonable doubt to determine whether I have a reasonable doubt in respect of any other count on the indictment relating to that same complainant.

THE ELEMENTS OF THE OFFENCE:

Counts 1, 2 & 6: Sexual intercourse Child under 10 s 66A

30. 1. At the times and places alleged, the accused had sexual intercourse with the complainants.

2. At the times of the alleged incidents, the complainants were under the age of 10 years, namely 6 years (GB) and 4 or 5 years (AB).

Counts 3, 4 & 7: Aggravated indecent assault child under 16 s61M(2)

31. 1. That the accused assaulted the complainant

2. That the assault was indecent

Count 5 Incite child under 10 years to sexually touch s66DA(b)

32. 1. Intentionally

2. Incited the child to sexually touch him.

33. The Crown must prove each element of the offence beyond reasonable doubt.

EVIDENCE LED IN THE CROWN CASE

1. MFI 1-JIRT disc of GB conducted on 31 May 2019.

2. MFI 2-Transcipt of JIRT interview of GB.

3. MFI 3-JIRT disc of AB conducted 31 May 2019.

4. MFI 4-Transcript of JIRT interview of AB.

34. The parties had no objection to me retaining the transcripts for the purpose of preparation of these reasons.

EVIDENCE RELEVANT TO THE COUNTS

GB Counts:

35. Count 1 (carpark doctor’s surgery)

JIRT GB (31/5/19):

Q32”…Joseph, us, made us go under his shirt and suck his doodle, even in the car when mum was in the doctor with AB and JB and JBC.”

Q57 “Um, he, well he, um got his doodle and like, I said, um, I don’t want to do it and he just forced me.”

Q58 “Well, he pushed my head”.

Q60 “Um he made me suck his doodle.”

Q88 “He made me use my mouth but I didn’t want to.”

36. Count 2 (mum at shops)

Q241 “He said ‘suck my doodle’

Q242 “Or, um, I will hurt you.”

Q248 “Um, and then he made me do it.”

37. Count 3 (mum at hospital)

Q115 “He touched here.” The complainant indicated the lower area of here body. At Q117 she was asked what she calls that. “My private.”

Q124 “Inside my clothes.”

Q128 she was asked if it was inside or outside of her undies-“Inside.”

38. Count 4 (mum at shops)

Q168 “Um, he said, ‘feel my doodle’ and I said no.”

Q171 “No. And then he pulled my hand towards his doodle and I said ‘stop don’t do that’.

She shook her head when asked if her hand touched his doodle.

AB Counts

39. Count 5 (same day as count 1)

Q207 “….Joseph said ‘AB, feel my doodle through my pants, and um AB put her hands down his pants and felt his doodle.’

Q209 (Asked what she saw AB do) “Um, touch Joseph’ doodle.” Q211 “She put her hands down his pants…”

Q212 “…and felt his doodle.”

40. Count 6 (same day as count 2)

Q216 “Um, on the same day he said, um, that he could make me suck his doodle.”

Q217 “Um, he pulled her to, he pulled her towards him…”

Q218 “…and, um, pushed her face down towards his doodle.” Q225 (asked how long AB sucked his doodle for) “Um, intel, Until Mel, mum got back.”

41. Count 7 (Same day as count 2)

Q271 “Um, he was, um, well AB told Joseph to, um, kiss her and then, um, he kissed her and then AB said stop, and he didn’t listen.”

Q272 (Asked where he was kissing her) “On the lips”

42. The Crown led evidence of other acts in relation to GB and AB. In relation to GB the evidence was that at the home the accused pulled her towards him and attempted to kiss her on the lips. On another occasion the accused made GB lie on top of him in her bedroom on the floor. The accused and GB had their clothes on. He touched her legs and told the GB that if she ever told anyone then he would keep doing it to her and also that he would call her dumb.

43. There was evidence from GB that the family travelled to Melbourne to stay at the accused’s parent’s house. GB, AB, her mother, brother and the accused all slept in the same bed. GB said that the accused stood at the end of the bed with her in bed. He made her perform oral sex on him until her mother woke and asked the accused what he was doing standing at the bed. The accused said he was looking at the children.

44. There was one uncharged act in relation to AB. The evidence came from GB not AB. The accused placed AB on his lap and GB saw him pull AB’s hand towards his penis.

45. The crown played the JIRT’S of GB and AB the respective complainants. The Crown played the JIRT of GS (complaint evidence). The transcript of the JIRT was exhibit 3.

46. The following witnesses gave evidence;

1. MS (evidence of complaint).

2. TV (the mother of GB and AB).

3. WV (the father of TV).

4. Senior Constable Blake Mantle (the officer in charge).

47. Exhibit 1 and 2 was the video and transcript of the accused’s ERISP conducted on 31 July 2019. He denied any wrong doing on his part.

48. Exhibit 4 was 27 photographs of  Darlington Point property and Ms TV’s motor vehicle.

49. Exhibit 5 was the Coleambally doctor’s records for JB the brother of GB and GB.

THE ACCUSED’S CASE:

50. The accused gave evidence. He adopted the contents of his ERISP and said that what he told the police was the truth. He told the court he had not been convicted of any offence. He is 26.

51. The father of GB and AB gave evidence.

52. Two exhibits came into evidence namely exhibit A, a copy of a screen shot message from WV to his daughter and exhibit B a photograph of a door.

COMPLAINT EVIDENCE:

53. The Crown led complaint evidence from GS the cousin of GB and MS the aunt of GB.

54. GB in her JIRT conducted on 31 May 2019 said she had told her two aunties and her Nan about the conduct of the accused. She said she told them “half of it”.

55. GS participated in a JIRT on 23 July 2019. She said that GB told her the accused had locked her in a room, she got out and ran into the lounge. At Q42/A she said “…Banks made GB touch here and if I don’t suck or touch or both but here”. On the video GS when referring to here was indicating her chest.

56. The complaint is very general. There was no evidence from GB that the accused had locked her in a room from which she escaped. The allegation made by GB is that the accused held her hand when she was in the lounge room and pulled it towards his penis (count 4). This does not accord with what GS recounted. Smith was indicating the chest area is where Joseph made GB touch.

57. As a trier of fact I must make an assessment of the weight of the complaint evidence. It is generalised and does not accord with the evidence of GB. I give the evidence no weight due to those deficiencies. The evidence does not assist in the making of an assessment of the complainant’s credibility and reliability. As I have given it no weight it cannot assist me as evidence of the facts in issue.

58. MS gave evidence on 7 May 2020. She is the aunt of GB. GB and her three siblings have been living with Ms Smith in Canberra from 23 April 2019.

59. As a result of a conversation MS had with GS she questioned GB. GB told here that “Joseph had done things that she did not think were right”. She had GB show her on a porcelain doll what she meant. GB showed touching of the breasts, rubbing of the tummy, two fingers down below in between the legs and rubbing. GB said, “He put the penis in my mouth and holds your head and pushes it up and down”.

60. The Crown concedes that the touching of the dolls breast and tummy is inconsistent with the allegations made by GB in her JIRT. It relies upon the complaint that he “holds your head and pushes it up and down” as consistent with what GB told the police. The Crown further concedes that the evidence came about as a result of leading questioning. Such form of questioning and the resultant answers goes to the question of what weight I should attach to the evidence.

61. Pursuant to s66 of the Evidence Act 1995, the evidence is received as evidence of the facts in issue-that is, as evidence that the accused sexually assaulted her in the way she alleges that he did and is relevant to an assessment of the complainant’s credibility and reliability.

62. Mr Fokkes makes a broad submission that what was said by GB in her JIRT was inconsistent with the complaint made to Ms Smith.

63. Ms Smith told police in her statement dated 22 July 2019 that GB told her “he rubbed up and down my leg, he tried to put his fingers inside me” (T65 lines 35-37, T66 lines 27-29). GB made no allegation to the police that the accused tried to put his fingers inside me.

64. She further recorded in her statement that GB told her that the accused would kill her if she told anyone (T66 lines 1-3). No such assertion was made by GB to the police. She told the police (Q111/A) that if she “told anyone then he would call me dumb”. If she did not suck his doodle he would hurt her (Q242/A) and that she was to be quiet or he would tell her mum (Q269/A).

65. Mr Fokkes submits that GB is unreliable in what she told Ms Smith. It is an evolving story which involves threats and conduct never before made.

53. I had previously ruled that complaint evidence of AB was inadmissible (ruling delivered 12 May 2020).

TENDENCY REASONING

67. I have previously ruled that counts 1-4 are cross admissible for a tendency purpose and that counts 5-7 are not. In short compass the tendency asserted is to act sexually towards GB when she is alone in the absence of her mother. The Crown relies upon a number of other acts not subject to counts on the indictment in proof of tendency. It relies upon the allegation of the accused pulling the complainant towards him and attempting to kiss her on the lips. The accused made the complainant lie on top of him when he was on the floor of her bedroom and touched her legs (Q/A89-110).

68. It also relies upon an act of fellatio performed in Melbourne in a bed that was occupied by her mother, sister, brother and the accused. This allegation is inconsistent with sexual acts being performed in the absence of others. It is the complete opposite of the asserted tendency.

69. GB’s evidence was as follows;

“…I had a dream of clowns and I asked mum if I could go up the other end with you and she said no. And then she started crying…he told me to put my head closer to the end of the bed…he got out his doodle and made me suck it…mum said why are you doing at the, what are you doing at the end of the bed…and he said I’m just looking at the kids. But then mum rolled on her side”.

70. TV was called by the Crown. I granted an application for her to be cross-examined by the Crown. She was an unfavourable witness to the Crown’s case.

71. Her evidence was as follows;

“The kids were sleeping at the end of the bed on my side of the bed, and Joseph was sleeping on the opposite side of the bed next to me and my younger son was in the cot in the lounge room” (T93).

Q. On the first night, do you remember any of the children waking up or anything happening during the night?

A. Yes, GB was kicking her brother and sister which made the other kids wake up, so I woke up, I had put those kids back to sleep. Joseph woke up, he sat up beside me to see if everything was okay with the kids, he laid back down, I had to pat the kids back to sleep, which took me 15 minutes to get the kids back to sleep, when I knew they were asleep, I laid back down and went to sleep.”

Q. At the point in time when you laid back down and went to sleep, what was Mr Banks doing?

A. He was asleep (T93).

Q. Ms TV in terms of the Melbourne trip, was there anything about that night other than GB kicking her brother or sister-made that night stand out to you in your memory?

A. No.

Q. You say that you woke up when that happened and you had to settle the kids?

A. Yes.

Q. Then you went back to sleep?

A. Yes.

Q. I suggest to you that during the night, you woke up another time—

A. No, I didn’t.

Q. –and you spoke to Mr Banks?

A. No, I didn’t.

Q. During that time, GB was awake?

A. No, she wasn’t.

Q. Then you rolled over and went back to sleep?

A. No, I told you how it was” (T98).

72. The Crown relies upon other acts and in particular the Melbourne act of fellatio to show the accused had a sexual interest in the complainant and was willing to act upon it in the way the complainant alleges. The Crown submits that because he had this sexual interest I would find it more likely that he committed the offences charged in the indictment.

73. Before I could use the evidence of other acts in the way the Crown asks me to use it I must make findings. The first finding is that one or more of those other acts occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask myself whether I find a particular act relied upon actually took place. If I am not satisfied any of the acts relied on by the Crown occurred. I must put aside any suggestion that the accused had a sexual interest in the complainant as alleged by the Crown and decide the case on the rest of the evidence. I remind myself that I am required to find that each charge in the indictment is proved beyond reasonable doubt before I could find the accused guilty.

74. I am not satisfied the other acts occurred. I prefer the evidence of TV over the complainant. There is a degree of implausibility of the Melbourne allegation of fellatio. It goes against the tendency asserted by the Crown. It is alleged that the act occurred in the presence of the mother, sister and brother while in the bed and that the mother was aware of it and engaged in conversation with the accused while he was at the end of the bed. I apply my common sense and find that such an allegation in the confines of a bed with that many people in it as implausible.

75. My finding does call into question the reliability of the complainant.

Counts 5-7 AB

76. I have looked at the counts individually as I am required to do. The evidence for each count comes from GB the older sister of AB. I have also had regard to the other acts where it is alleged by GB that the accused placed AB on his lap and he pulled AB’s hand towards his penis and on a further undisclosed date the accused was seated on the toilet with his pants pulled down and AB was sitting on his lap.

77. Count 5 Incite a child under 10 years to sexually touch-s66DA(b)

Q207/A “…Joseph said AB, feel my doodle through my pants, and AB put her hands down his pants and felt his doodle.

Q209 (asked what she saw AB do) “Um, touch Joseph doodle”.

Q211 “She put her hands down his pants…”

Q212 “…and felt his doodle”.

78. Count: 6 Sexual intercourse child under 10 years s66A

Q216 “on the same day (same day as count 2) he said that he could make me suck his doodle”.

Q217 “he pulled here to, he pulled her towards him…”

Q218 “…and, um, pushed her face down towards his doodle”.

Q225 (asked how long AB sucked his doodle for) “…Until Mel, mum got back”.

79. Count 7: Indecent assault child under 16 s61M(2) (same day as Count 2)

Q27 “…he was, um, well AB told Joseph to kiss her and then he kissed her and then AB said stop and he didn’t listen”.

Q272 (asked where he was kissing her) “On the lips”.”

80. None of the allegations made by GB are corroborated by AB. AB in her JIRT made the following allegations;

“Joseph tried to stick a rude finger up at me” (Q38/A).

“Joseph tried to take his clothes off around mum” (Q40/A).

81. She was specifically asked if anything else happened. She responded:

“No, that’s all”.

82. Juries are instructed to use their common sense. I give myself that instruction. It is alleged by GB that the accused with force pushed AB face down onto his penis and forcefully fellated her. If this had occurred it is far more dramatic than a rude finger gesture which AB recalled and the taking off of clothes around mum which AB recalls. No expert evidence has been led by the Crown to suggest that if it occurred it was so traumatic that the witness can no longer recall it happening.

83. It defies common sense that if it did happen she was unable to recount it in her JIRT.

84. The accused was interviewed on 31 July 2019. He denied the allegation. He gave evidence before me and adopted his interview as truthful. He was cross-examined. There was nothing in the cross-examination that led me to believe he was untruthful.

85. I direct myself as to his good character in that there is unlikelihood of guilt and it is more likely than not that he is telling the truth.

86. In the absence of corroboration from AB, the application of common sense to the assertions (particularly count 6 forceful fellatio), the evidence of the accused denying the allegations and his good character I am not satisfied beyond reasonable doubt individually of any of the counts involving AB.

87. I find the accused not guilty of counts 5, 6 and 7. Verdicts of acquittal will be entered.

EVIDENCE OF WV

88. It was put to Mr WV that he had coached GB to make the allegations against the accused. He denied having done so. GB also denied that her grandfather had coached her as to what to say about the accused.

89. He had a strong relationship with GB. She used to stay with him every weekend. He had a dislike for the accused. He thought that the accused was there to take his daughters money and he wanted the accused out of the relationship with his daughter. He owned the house in which the accused and TV were living in and he did not want the accused living in his house.

90. TV gave evidence that her father hated Joseph. “Straight out. He hated him. He didn’t want me to be in a relationship with him” (T81).

91. He admitted telling the father of GB and AB two or three months before the accused was charged that there was “some trouble coming” (T120).

92. The father of GB and AB gave the following evidence about that conversation;

“Q. I’m going to ask you about a time roughly about two months before Joseph was charged. Did anybody say anything that stuck in your mind around that time?

A. Yes.

Q. Who said something to you around that time you remember?

A. I clearly remember, I’ll never forget it cause it got me worried and that, Mr WV” (T172 lines 24-31).

“Q. Do you remember anybody saying anything to you that stuck in your mind about two months before Mr Banks was charged?

A. Yes I do.

Q. Who said those things?

A. Mr WV

Q. What did Mr WV say around two months before Joseph was charged?

A. He turned around and told me when I went to his house that everything’s going to be okay, people are going to get hurt, people are going to get in trouble, but everything’s going to be, TV will get her children back…I said, “What are you talking about wv”, he goes “Don’t worry, if I could tell you I would tell you”. As he was telling me this he was pacing up and down the kitchen, like, I’ve never seen it before, I’m going, wow, what’s going on” (T173).

“…he turned around and told me, “We just gotta play the game and everything will be okay”. And I just kept repeating to myself, “What are you talking about”, he’s telling me, “I can’t tell you, I can’t tell you, people are going to get hurt”, and he’s just pacing up and down the kitchen” (T174 lines 11-15).

93. I have some disquiet about the evidence of WV and his involvement in this case. GB was interviewed on 31 May 2019. Two months later the accused was interviewed on 31 July 2019 and charged. In cross-examination of Mr WV it was put that the conversation occurred two or three months before the accused was charged. He agreed that he “told Al there was some trouble coming, yes” (T120 line 36). If the conversation occurred 2-3 months before the accused was charged how did Mr WV know that some trouble was coming.

94. On 25 July 2019 Senior Constable Mantle attended the house at Darlington Point and spoke to WV. Mr WV gave Detective Mantle written and signed crime scene consent to photograph the interior and exterior of the house at Darlington Point. This meeting does not account for Mr WV’s knowledge that “people are going to get hurt” as it happened six days before the arrest of the accused and not two to three months before the arrest of the accused.

95. GB made complaint to her aunt MS on 23 April 2019. There is no evidence that Ms Smith spoke to Mr WV about the complaint or its nature.

96. In cross-examination the following took place;

“Q. Have you ever influenced your daughter’s evidence before?

A. No.

Q. you’ve never told her what she should say in court?

A. No, I’ve just told you exactly what I told her. (Here he was referring to earlier evidence where he said, “I just said if she did the right thing there was a chance she could get her children back” (T123 line 39)).

Q. What did you tell her exactly?

A. As I just told you then tell the truth and stop being like she was. When it first happened, when this first happened, everything that was to do with Joseph, she didn’t seem to care about the children, she just seemed to care about what was happening to Joseph” (T123 lines 41-50, 124 line 1).

97. Mr WV was then confronted with a text message he had sent his daughter. It reads as follows;

“Just remember to say he could have done it but you never seen anything. Don’t say he didn’t as they would ask if you were with him every second of the day”: (Exhibit A).

98. In my view this was an attempt by Mr WV to influence the evidence of his daughter. An attempt he initially denied and no doubt without the production of the text message he would have continued to deny. His conduct reinforces my grave disquiet as to his role in this trial.

THE EVIDENCE OF GB

99. There are several pointers to the unreliability of the complainant GB. They are;

a) The allegations made by her of the accused’s sexual engagement with AB are not supported by AB.

b) She has a motive to give a false account (her dislike of the accused and her wish for her mother and father to be reunited).

c) The implausibility of the Melbourne incident. Her allegation that her mother saw the accused at the end of the bed and spoke to the accused about his conduct is not supported by the mother.

d) Her use of the term doodle as said by the accused. The accused denied ever using this term.

e) Her description and use of the word “humped” (Q234/A, Q235/A, Q238/A, Q259/A,) and her inability to explain what humped means (Q261-Q266, Q276).

100. The evidence culminated with the following;

“Q276 No. OK. So when you say, he picked up AB and he humped her did he do, does that mean he did anything more than pick her up and kiss her on the lips or did he do something else?

A (NO AUDIBLE REPLY)

Q 277 No, OK.

A And that’s all he did to us.

Q 278 OK. And where did you learn the word humped?

A Mmm, I don’t know.

Q279 Don’t know? OK. And have you ever humped him?

A (NO AUDIBLE REPLY)”.

101. GB gave evidence that her ‘pop’ did not like the accused. He thought he was a bad person and he did not like him with her mum. He wanted her mother and Joseph to be apart and has said so on many occasions: T38.

102. She also said that she does not love the accused and she wanted her mummy and daddy to get back together again. She did not want Joseph and her mother to be together: T39.

Count 1 (carpark at doctor’s surgery)

103. GB alleged that she was in the back of the car. Her mother and siblings had gone into the surgery. The accused moved from the front passenger seat into the back and forced her to suck his doodle while he was doing this he saw mum and said get off and by inference returned to the front seat.

104. Ms TV said that when she left the car to enter the doctor’s surgery the accused was seated in the front passenger seat and GB was seated in the back playing with her tablet. When she returned from the surgery they were in the same position and GB was still playing with her tablet. She did not witness any signs of distress from GB nor was any complaint made. The Crown criticised Ms TV because she gave evidence that she wished to continue her relationship with the accused. It was submitted she was unreliable. I found that Ms TV was doing the best she could in trying circumstances. She wanted the return of her children, she had an overbearing father who had attempted to influence the way she gave her evidence and she wanted to continue her relationship with the accused. I am not persuaded that her evidence has any unreliability about it. What is evident is that the accused and the GB were in the same position at time of entry to the surgery and time of exit from the surgery. There was no observation of movement by the accused from back to front of car as asserted by GB when she said the accused said get off because he had seen mum.

105. If this was the first time GB was forced to fellate the accused common sense dictates that one would expect some degree of distress. None was observed by her mother.

106. GB told the police she thought the trip to the doctor’s was because her mum was sick with croup (Q40/A). In cross-examination she could not remember her mother being sick with croup, nor could she remember her mother going to the doctor about croup: T40. She could not remember telling the police that her mother had croup: T41.

107. At T42 lines 40-41 she was asked in cross-examination,

“Okay GB, did you go to the doctor at Coleambally with your mummy when she had croup?

A. No”.

108. This evidence demonstrates unreliability on the part of the complainant. It is inconsistent with what she told the police.

109. I take into account the accused’s denial and his good character. I am not satisfied beyond reasonable doubt that count one occurred. I find the accused not guilty and enter an acquittal in the record.

Count 2 (mum at the shop)

110. GB alleged that her mother had gone to the shop to get Joseph a coke (Q228/A) and she was in her bedroom (Q219/A & Q233/A). She was on her bed (Q239/A) and he said “suck my doodle or I will hurt you” (Q241-242). She said Joseph had his clothes off and he made her suck his doodle for two seconds (Q243/A & Q249/A). He was standing on the floor and she was sitting on the bed (Q253/A & Q254/A). She then recounted that after this happened the accused humped AB in the lounge room. She was unable to explain what she meant by humped.

111. In cross-examination she was asked about the state of clothing of the accused. The following questions and answers occurred;

“Q. When Joseph showed you his private parts, his doodle, did he have his clothes on when he did that? Jumper and pants?

A. Yes.

Q. And he never showed you his doodle when he was wearing no clothes; did he?

A. No but he pulled AB into the toilet with him though”: T43 lines 30-36.

112. She went on further to describe him wearing his shirt and pants: T44 lines 21. The description given was inconsistent with what she told the police.

113. The Crown relies upon the evidence of GB and opportunity on the part of the accused in proof of the count. The accused admitted that Ms TV would sometimes go to the shops to buy him coca cola: T 147. He denied in cross-examination that he had forced GB to suck his penis or threatened to hurt her is she did not.

114. Although opportunity existed, the accused has denied the incident happening. I have taken into account his denial and his good character. I am not persuaded beyond reasonable doubt that count two has been made out. I direct that an acquittal be entered in the records.

Count 3 (mum at hospital)

115. The Crown relies upon the evidence of GB and opportunity on the part of the accused. GB said it happened at night time in her bedroom when her mother was at hospital because she ate “off” ice cream (Q136, 141, 142 & 143). She alleged that he made her get out of mum’s bedroom and go to her bedroom. In her bedroom he lay on top of her and touched her private on the inside of her clothes. It was the inside of her undies (Q115, 117 & 128).

116. The accused admitted that Ms TV went to hospital as a result of eating ice cream. She was taken to hospital by ambulance. He called the ambulance. The ambulance arrived between 4 and 5 am. After the ambulance left he went back to bed as did the kids: T154-155. He denied in cross-examination the allegation: T156. I do not disbelieve the accused’s denial. The version of events given by him is a reasonable possibility; accordingly I cannot be satisfied to the standard of proof beyond reasonable doubt. I find the accused not guilty and enter an acquittal in the record.

Count 4 (mum at the shops to get bread)

117. The Crown relies upon the evidence of GB and opportunity on the part of the accused. GB alleged that he placed her on his lap in the lounge room. He asked her to feel his doodle and she said no. He pulled her hand towards his doodle and she said stop, don’t do that. AB was in the kitchen when it happened. AB said, “Joseph stop” and then he still didn’t listen. AB had walked into the lounge room when she said stop. The accused told AB to go away. Her mother was at the shop getting bread (Q166, 168, 171, 173, 174, 176, 181, 182 & 189).

118. This is a single witness case. There is no supportive evidence from AB.

119. The accused denied the allegation in his police interview. He denied the allegation in cross-examination. He said that GB sat on his lap in the lounge room on one occasion and TV was present. The mother did not like the children sitting on his lap because he was not their father. This was the only time GB sat on his lap and TV made her get off his lap: T156- 158, 160-163, 164-165.

117. The Crown has to satisfy me that the account given by the accused should not be accepted as a version of events that could reasonably be true. The Crown must satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of facts. If the evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence then I am bound in law to bring in a verdict of not guilty. I have previously expressed reservations about the reliability of the complainant GB. This is a single witness case.

118. At the end of my deliberations I find that the Crown has failed to eliminate a reasonable possibility that the version presented by the accused is true, accordingly the Crown has failed in its obligation to persuade me of the accused’s guilt beyond reasonable doubt. I find the accused not guilty and enter a verdict of acquittal in the record.

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Decision last updated: 19 June 2020