R v BECHARA - [2020] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BECHARA
[2020] SADC 123
Reasons for the Verdict of Her Honour Judge McIntyre
2 September 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with three counts of aggravated indecent assault involving the same complainant and occurring in 2010 to 2011.
Verdict: Not guilty all three counts.
Evidence Act 1929 s34M(3) s34M(4) s34P, referred to.

R v BECHARA
[2020] SADC 123
INTRODUCTION

The accused was charged on information dated 27 July 2020 with three counts of aggravated indecent assault contrary to Section 56 of the Criminal Law Consolidation Act 1935. The particulars of the offences are as follows:
·Count 1: That, between 30 April 2010 and 7 March 2011, at Sellicks Beach the accused indecently assaulted KLT by touching her vagina
·Count 2: That, between 30 April 2010 and 7 March 2011, at Sellicks Beach the accused indecently assaulted KLT by causing her to touch his penis
·Count 3: That, between 8 March 2011 and 10 March 2011, at Sellicks Beach the accused indecently assaulted KLT by rubbing his penis against her vagina.
All three counts are said to be aggravated because KLT was under the age of 14 at the time of the alleged offence.
The accused denied any touching of the type alleged to constitute the indecent assaults. He entered pleas of not guilty and elected to be tried by a Judge without a jury.
For the reasons that follow I find the accused not guilty of all three counts.
LEGAL CONSIDERATIONS AND GENERAL DIRECTIONS
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a Court, having conducted a trial by Judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial Judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until his guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charged offences, then I must give the accused the benefit of doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·There are three charges. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
·I have reminded myself of the usual directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
·I also remind myself of the usual directions given to juries about the topic of prior inconsistent statements given that the complainant was asked about some inconsistencies between her statements to the police and her evidence.
The accused elected to give evidence in this Court. I remind myself of the following matters:
·He was not bound to give evidence.
·He went into the witness box and he took the oath like any other witness.
·He exposed himself to the test of cross examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the same way I assess the evidence of all other witnesses.
·I further note that by entering the witness box the accused did not assume any onus of proof. The onus remains with the prosecution.
I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies then necessarily it means that the prosecution has failed.
ELEMENTS OF THE OFFENCE
An indecent assault is an assault accompanied by or committed in circumstances of indecency.
First, the prosecution must prove an assault. An assault is the intentional and unlawful application of force to another person. The force does not have to be great. A simple touching will suffice. The relevant touching must be deliberate. An accidental touching is not sufficient. In this matter, the touching said to constitute the relevant assaults are the accused touching the complainant’s vagina over her bathing costume whilst they were at the beach (count 1); causing the complainant to touch his penis in the car on the way home from the beach (count 2); and rubbing his penis against the complainant’s vagina one night whilst her mother was in hospital (count 3).
Second, the prosecution must prove that the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an alleged touching is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. Whether the complainant, a child of 7 or 8 years at the time, consented to the alleged touching is irrelevant.
The prosecution has charged the aggravated form of the offence in each count alleging that KLT was under the age of 14 at the time. There is no dispute that KLT was, at all relevant times a child of 7 or 8 years of age.
The key issue in this case is whether the prosecution has proved that the accused touched the complainant KLT in the manner alleged. There is no suggestion of a lawful excuse for the touching rather it is said that it did not happen. If the touching alleged in each count has been proven there is no question in my mind that that it was deliberate and intentional and that it was, in all of the circumstances, indecent.
Background
There is little controversy about the background facts. The accused was in a relationship with KLT’s mother. She and her younger sister did not know their biological father and had grown up regarding the accused as their father. KLT was born in 2003 and her sister in 2004. The accused entered a relationship with KLT’s mother in late 2005. The family mostly lived in Sydney but between early 2010 and mid 2011 the family lived in Adelaide. The accused and KLT’s mother had three children together the youngest being born in Adelaide on 8 March 2011.
The family lived a transient lifestyle. They moved house regularly. KLT’s mother had mental health issues. The family had few possessions and lived in extremely impoverished circumstances. The reasons for this are not entirely clear given that the accused seems by his own account, at least in Adelaide, to have been working long hours as a carpenter and handyman.
The charged offences are all alleged to have occurred in Adelaide when the family was living at a house in Sellicks Beach around the birth of the youngest child. Counts one and two are alleged to have occurred during a family outing to the beach a week or so before the baby’s arrival and count three is alleged to have occurred whilst KLT’s mother was in hospital for the birth.
Admissibility of evidence
The accused challenged the admissibility of evidence sought to be led by the prosecution; specifically, evidence of uncharged acts, complaint evidence, violence and neglect. It was agreed by counsel that, rather than having a voir dire at the outset, it would be preferable to for all the evidence to be adduced and then for submissions to be made at the conclusion of the case. These are my rulings on that evidence:
Complaint evidence
Evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.[1] The evidence is admitted to inform the trier of fact as to how the allegation first came to light and as evidence of the degree of consistency of conduct of the alleged victim. It is not admitted as evidence of the truth of what was alleged and a direction is required that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person.[2]
[1] S34M(3) Evidence Act 1929
[2] S34M(4)
In this matter, the only evidence of initial complaint came from the complainant. She gave evidence of a conversation that she had with her mother in Adelaide as follows:[3]
[3] T [54-55]
A.Well, after school I was on the bed and in my room, she went up to me and she's like 'Is he touching you?', and obviously this is - it's kind of normal when they ask that question 'cos since my other family members, they are like Jihad, they ask me that too, yeah, and I say 'No' and I obviously said 'Yes' at the time 'cos it was after he did it and then she got like - like frustrated sort of thing, yeah, she got like very angry, like she was angry at me instead of him.
Q.And what did she say to you.
A.I don't know, I just remember her getting mad at me, like yeah, like I started crying and stuff and then she would take me to the doctors sometimes and then -
Q.I'll just stop you there for a second KT. You said you were on the bed in your room when you had this conversation.
A.Yeah.
Q.Whereabouts was it that you had a bed in your room.
A.It was in another house I think, yeah.
Q.When it was in another house, can you remember where that house was.
A.It was at like - at Adelaide.
Q.After you told your mum, did she do anything about it.
A.No, she only took me to the doctors, that's it. Like she would get mad and then sometimes like after long periods of time she would start asking me questions again, like she knows the answers, like 'Did he touch you?', I'll be like 'No', 'Yes', it will be mixed up 'cos like I'm scared of her moods and she wouldn't do anything like. That's why I thought like - I couldn't tell my aunty either when they asked me to so.
In cross examination, KLT agreed that when her mother asked if the accused was touching her she sometimes said “yes”, and sometimes said “No”.
It is an agreed fact that the police have been unable to obtain a statement from the complainant’s mother over the course of the investigation.
The terms of the complaint are so vague and so general that there are no details that could be related to a particular charge in this trial or any particular incident that has been alleged. The evidence does not help to explain how the allegations came to light because the complainant’s evidence is that she complained to her mother in Adelaide. These matters did not come to light until some years after the complainant’s return, with her family, to Sydney. Accordingly, the evidence is not capable of demonstrating consistency of conduct nor does it inform me as to how the allegations first came to light. In those circumstances, it is my view that this evidence should be excluded.
Uncharged Acts
On the prosecution case, uncharged acts of a similar nature occurred in NSW following the family’s return to that state. Despite the prosecution opening indicating that the accused “sexually abused” the complainant “countless times” in NSW, KLT gave evidence of more limited offending. The evidence of the uncharged offending in New South Wales was an occasion when KLT said she and the accused were watching the Simpsons on television and the accused rubbed her vagina; another occasion in Cabramatta where he touched her on the vagina and a few occasions in the car where the accused touched her on the legs and thighs. The test for admissibility is set out in s34P of the Evidence Act 1929.
The prosecution say that this offending is uncharged because it occurred in another jurisdiction. If it had occurred in South Australia it would form part of the current information and the time frame would be expanded. It is the same course of conduct and a continuation of that course of conduct in the same relationship. It was submitted that the uncharged offending in New South Wales has both propensity and non-propensity uses. In relation to the propensity use, the prosecution contend that it is circumstantial evidence that demonstrates the accused had a specific sexual interest in the complainant and propensity to act upon it. It is said that the evidence is highly relevant and probative because he pursued the sexual interest in his daughter interstate in different residences and houses. It is said that if the evidence is accepted it makes his conduct in South Australia inherently more likely. Further it provides a motive for the accused’s offending in that the commission of sexual conduct may appear improbable if it is not viewed within the context of the sexual relationship within which it occurs.
The same submissions are made in relation to the non-propensity uses of this evidence. The prosecution contends that the evidence demonstrates that the relationship is not based on the natural instinct, care and protection which one would expect in a father/daughter relationship. It is further said that it demonstrates that the accused had established that there was no complaint and no repercussions from his offending in Adelaide and was therefore emboldened to continue in New South Wales.
There are however several difficulties with the evidence of sexual touching in New South Wales. The incidents in New South Wales post-date the alleged offending in South Australia. There is no allegation that there was sexual offending prior to the Adelaide offending. In those circumstances, it cannot be said that the New South Wales conduct makes the conduct alleged in South Australia more likely although the converse might be true. The New South Wales conduct does not put the charged incidents in a context because it post-dates the charged conduct. Further, the offending described in New South Wales relates to some general touching and two specific incidents which appear to be isolated incidents in much the same way as the offending in South Australia. This cannot therefore be said to be a course of conduct. The complaint evidence, such as it is, is of a complaint made in South Australia. Accordingly, the evidence of offending in New South Wales cannot be used to explain why there was no complaint.
I decline to admit the evidence of uncharged acts in New South Wales.
Discreditable conduct
The prosecution seeks to admit evidence of the accused’s violence towards the complainant and her mother and evidence of neglect. Again, the test for admissibility is that set out in s.34P of the Evidence Act 1929. The prosecution seeks admission of this evidence for non-propensity reasons. The evidence of neglect is said to include evidence of poor living conditions, social isolation, leaving KLT with the responsibility and supervision of younger siblings including two toddlers and a baby, not enabling KLT’s attendance at school and general lack of care. The prosecution says that the charged sexual offending is all part of the violence and neglectful treatment of the complainant by the accused. It is said to explain why the accused was confident that he could exploit KLT for his sexual gratification knowing she would obey him and not tell anyone. The evidence is further said to demonstrate that this was not a normal parent/child relationship. It is my view that evidence on this topic ought to be admitted.
The prosecution case
The prosecution case consisted of evidence from the complainant KLT, her aunt, (MB) her grandmother (ES) and two officers from the Department for Child Protection (CPS) together with some agreed facts (exhibit P1). The prosecution case rests entirely upon the evidence of the complainant. I must accept KLT’s evidence beyond reasonable doubt if I am to convict the accused of all or any of the three charged offences.
The evidence of KLT, ES and MB was given by way of AV links given travel restrictions in place at the time. The quality of the link for KLT posed some initial difficulties but these were ultimately resolved. I have taken into account that these may have been unsettling for KLT and affected her evidence.
KLT was 17 at the time she gave her evidence. She is in year 12 at school and living with her aunt MB and her family together with three of her siblings; JB, MJB and NB. Her sister, KT, sadly died in 2017 from a severe asthma attack. She has not seen her mother since 2016. She does not know where her mother is. Her mother is mentally ill. She has never known her biological father but grew up with the accused as her father. The accused lived with her mother for some years; they had three children together.
KLT spent most of her life in Sydney apart from a period in Adelaide. The family moved houses very often and she went to several different primary and high schools. When the family moved to Adelaide, they did not know anyone; they moved with no connections and no family. When they first arrived, they lived in a house with an old man in the hills before moving into a house near the beach. It is uncontroversial that this house was at Sellicks Beach. It is an agreed fact that the Sellicks beach property was leased from 30 April 2010 and that family lived there until early April 2011.
KLT said that the accused sexually assaulted her whilst she was living at the Sellicks Beach house. KLT said that she was about 7 or 8 at the time and her sister was a year younger than her. KLT’s mother was pregnant with the third of her children with the accused; the other two children of that relationship were toddlers.
KLT’s mother was not working during this time but the accused was. The accused was the only one who had a car and the only one who could drive during that time. He took her and her sister to school but not regularly. KLT thinks the school noticed their absence and called the government department responsible for child welfare. KLT said that the children were taken away from their parents for a period.
The Sellicks Beach house was a small house and the family slept in the living room which also comprised the kitchen. The bedrooms were not used. The whole family slept on two mattresses, that is herself, the accused, her mother and three siblings. The two youngest children wore nappies which KLT would often be responsible for changing. Sometimes her mother would cook but often KLT would feed herself and the children. The two younger children were having bottles around that time and KLT would prepare those on occasions.
If her mother and the accused went out, KLT would look after the children. KLT said that her parents would sometimes go out at night when it was quite late but that they rarely went out together during the day. The accused made the rules at home and KLT would generally abide by those. If she did not she was usually disciplined by her mother but sometimes by the accused. On these occasions, the accused would be violent towards her. KLT said he would hit her with his belt or his hand, anything he could get hold of and on any place on her body. KLT described an incident in which she was hit with a rock and a fishing rod.

KLT her mother and the accused would fight and argue in Adelaide; sometimes it would get physical and they would smash things. Sometimes the accused would hit her mother with his fists. KLT would try and ignore these fights. She would try and keep her sister and the others away from the fighting. KLT was concerned that it was going to escalate and that someone would get hurt.
She told the court about the two incidents that are the subject of counts one and two as follows:[4]
A.Like once, like once it happened all on the one day. Yeah, it was like that one day. My mum was pregnant. Yes. She was, she was pregnant and we were just like at the beach fishing because like occasionally we fish for dinner. Yeah. And then the kids was with my mum and usually I just won't do that much during that day, I wasn't doing that much but like for the first time I wanted to swim and have a little fun. I was at the sandcastle, like at the sand first, before my mum left because it was like the day was ending and it was like the sun was setting, it was getting late, so she took the kids back. So I was like 'Okay, let's have a little swim', and then he approached me in the waters when I was swimming and he didn't say anything. We were just quiet, I didn't say anything either, like there was no interaction, like there's no talking between us and he touched me between the legs, when I was swimming with my swimsuit. Then after that I got away from the water and went into the car and I was waiting for him to finish, like up with the fishing and I was playing with his phone, a Nokia phone, had like a green monkey screen with it and I was playing with the ring tones with it and when he got in the car, like the ring tone, the music, whatever it was inside the phone; I forgot how to use a Nokia. Yes, the music was playing and he asked if I could like dance sexy for him but like obviously I refused, I was like 'No'. Then after that, like after we settled down, I just wanted to go home obviously, get this over with. Yeah, but before we could even - like once we started driving home he stopped the car. Like we were going home and then it was getting dark, so it was already dark, like when we were driving. Then he stopped the car and then he unbuckled himself. He didn't say anything when he was unbuckling himself, but then he's like, he wanted, he asked me to give him my hand. Like he asked me to put my hand on his thing. Yeah. And then when I touched it, it was wet and I told him it was wet and he wiped it, and then I did it and it was wet again and then I told him again it was wet and then I wiped it and we went home. It was already late at night and my mum was pregnant, obviously, and she wasn't feeling well and so he look after us during that time and then it all happened one day. Then my mum needed to go to the hospital. Yeah, and he just stayed to look after us because there was no-one home.
[4] T [35-38]
KLT was asked some further questions to clarify and expand upon this evidence. She said that she was wearing a swim suit and was in the water in the shallows swimming with a paddle board. Her mother and younger siblings were walking home. The accused was fishing. He came over to her in the shallows and touched her vagina between her legs with his hand. It was not clear from her evidence-in-chief whether the touching was said to be over or under her swim suit. In cross-examination, it became apparent that it was over her bathers. KLT did not know how long the touching was for but she said it was “quick”. There was no further detail about this incident and, in particular, the manner in which the accused is alleged to have touched her.
KLT said that she felt uncomfortable following this incident and went and sat in the front passenger seat of the car. The accused got in the driver’s seat and asked for her hand which he then he put on his penis. She described what happened as follows:[5]
[5] T [39-40] line 8
Q.When he put your hand on his penis what did he do with it.
A.Basically he just jerked off basically, like, he showed me first what to do and then I just followed.
Q.And you said that at one stage his penis was wet; is that right. Have I understood that properly.
A.Yes.
Q.And was that before or after -
A.It was kind of wet at first. I thought it was, like, maybe the water because we'd just been at the beach, maybe, yeah.
Q.Was it wet after.
A.Yeah.
Q.Do you know what it was wet from.
A.His penis, like, it was still wet, like, again.
Q.After that had happened did he say anything to you.
A.He just told me to keep quiet, just, obviously, I kept quiet, like, not to tell my mum.
Q.And after that did you go home in the car.
A.Yeah, after that we just go home.
It is not clear whether KLT is indicating that the accused ejaculated because of the touching in count 2 or whether he was wet from being in the sea. This was not clarified. There was no further detail about this incident including what the accused showed KLT to do when he made her touch his penis. KLT did not tell anyone because she was scared, confused and worried. She was concerned that if she said anything the accused would get mad and that he would hit her.
This was not the first occasion she recalled the accused touching her inappropriately in the car. She said usually when she was sitting in the car he would be touching her thighs or making sexual jokes. She said this happened in Adelaide and in Sydney but the timing was not clear from her evidence. Specifically, it was not clear whether this touching in the car happened before and/or after the time in Adelaide.
KLT said that the incident in the beach and the car happened maybe a week or a month prior to her mother giving birth to her sister NB. It is an agreed fact that NB was born on 8 March 2011.
KLT described the third charged incident as occurring overnight when her mother was in hospital having her sister. She and her other siblings were at home with the accused. It is an agreed fact that her mother was admitted to Flinders Medical Centre from about 1 am on 8 March 2011 and that she was discharged at about 10 am on 10 March 2011. KLT gave evidence about this incident as follows:[6]
[6] T [43-46] line 12
Q.What happened.
A.So, I was watching TV but like he went on top of me and then he tried to put his thing on, like inside of me, but he couldn't because I was tiny, like I was too small to fit, and so he just slid it under like - because I was wearing a skirt and he slipped it up and slid it under my underwear. I was only wearing like summer - like it wasn't, it wasn't cold, that's why I was wearing a skirt, that's why it was warm, those days, and yeah. That's when he did it and then after I went like - you know how the living room and the kitchen was close, like it was connected and then after that I went near the TV, like behind the TV near the kitchen, like I just sat on the floor doing paperwork, like trying to distract myself, but he came towards me again, like he just got out of bed again. I was doing my work and then he was already jerking off, yeah. His underwear was like not off but like, it was like it was just down and he was jerking off and he asked me if it tickled and I said 'Yes'. He said - he asked if I wanted to do it again and I said 'No, I'm tired'. That was my excuse and he really wanted to do it and he asked again. I said 'No', and I rushed onto the bed, telling him I was tired. So I tried to sleep and then I - I couldn't sleep properly because he'd woken me up and - like he didn't like tell me to get up, but like he, he woke me up by like moving my body and I could feel him touching me, you know. And like he was lifting up my legs, up to his shoulders, like I don't know why but like he was lifting it up and I was like, I was like a heavy sleeper, but like then it was uncomfortable because like I could feel something, yeah, and like he was looking out and that's when I'd like, like actually woken up and realised what's happening and before he could do anything, like whatever he was trying to do - like my legs were like on his shoulders, like barely, like because I was sleeping on the side and I was facing him, like. I was laying on my left side, yeah and then my right leg was on top of his shoulder and he was trying to lift both my legs on his shoulders, but like I tried to pretend that I was asleep and I turned away, but I could feel his breathing between my legs, like I can feel him, like staring and I tried to sleep, yeah. That was like the end of it, the night.
Q.You've talked about a time when he was sliding him - sliding 'it' underneath your underwear. When you say 'it', what do you mean.
A.His penis.
Q.When you talked about when he was doing that, where did that happen.
A.On the bed. So, there's three kids, okay, and the mattresses are two sides, right. So usually me and KT sleeps together because like we're used to it, because we would always share a bed, but like during that time we were sharing all of us, we were like sleeping on one bed, so. Me and KT were sleeping on the right side and the three kids were sleeping on the left side and he was sleeping on the left side, but unfortunately I was in the middle, like where I meet the right side, so I was closer to him, so I was like in the middle. And there's like no space between us, it's just two mattresses together, so obviously he could reach.
Q.When this was happening, could you see your siblings.
A.Yes. Like I could see, but like it was dark too, when he was - okay, so the kitchen light was on during that time, when he was on top, trying to put it in and then when he was putting my legs on top, that's when the light was on, when the TV was on, like we were trying to sleep. Yeah, it was dark, so all I could see was like his shoulder and his - yeah.
[7]Q. When you talk about when you were sleeping on your side and he had your legs over his shoulder, where did that happen in the house.
A.On the bed. Yeah, I was trying to sleep, it was on the bed.
Q.You said that he said to you he wanted more.
A.Yeah.
Q.Did he say anything else to you.
A.No, he just asked - like he asked the question and then he said - he said that and then I rejected it and pretended I was tired and I wanted to go to sleep. Yeah, that's all he said.
KLT gave evidence that eventually the family returned to Sydney and their living conditions worsened significantly. Her mother became very mentally unwell, the accused effectively abandoned the family and ultimately, she and her siblings went to live with her aunt.
During the course of cross-examination, KLT agreed that she spoke to a police officer in New South Wales in November 2015. It was suggested that she told that police officer things that were inconsistent with her evidence in court. First, it was suggested that she told the police officer that the accused had touched her sexually in Adelaide but not in Sydney. KLT agreed but explained that she did not tell the police officer because she was afraid. It was put to her that she was not afraid to talk about sexual touching in Adelaide. She said she thinks that at the time she was still with her mother and so wasn’t afraid to tell the police officer about sexual touching in Adelaide but she was not confident enough to talk about Sydney. KLT agreed that the police officer asked her on at least three occasions during the interview whether anything else had happened beyond the three incidents that are the subject of the charges. KLT agreed that she told the police officer that nothing else had happened and specifically that nothing had happened in Sydney.[8]
[8] T [57-66]
Second, in giving evidence about the third count, KLT said that the accused put his penis right next to the flesh of her vagina underneath her clothes; of him sliding it underneath her underwear. However, when KLT spoke to the police officer in New South Wales in November 2015 she was asked if he rubbed his penis on her vagina. KLT told the police that the accused did it on top of her clothes and “that’s all”. KLT agreed that she did not say that he put the flesh of his penis against her vagina. She explained that this was because she was still young and afraid so she did not say it.[9]
[9] T [89-91]
In re-examination KLT said that she was feeling overwhelmed when she spoke to the police officer. It was the first time that she had talked about what had happened in detail and she did not like talking about it. It was difficult. She was at the time only 12 years of age.
The evidence of KLT’s grandmother, ES, and aunt, MB, was of limited probative value. They supported the general contention of the prosecution that the family was transient and lived in several houses, that the family’s living conditions were poor and that there was limited contact between KLT, her mother, siblings and the rest of the family. I found both to be genuine witnesses who were doing their best to assist the court. I accept their evidence but unfortunately, there was a lack of context to their evidence. Their evidence did not make it clear whether their descriptions of the family’s living conditions predated the move to Adelaide or whether the descriptions only related to what was observed on their return to New South Wales. Observations about what occurred after the charged events are of limited relevance.
One aspect of ES’s evidence contradicts an aspect of the accused’s evidence. ES said that her pregnant daughter contacted her requesting that she come to Adelaide to assist with the children. ES said that the accused then contacted her saying that she could not come. The accused on the other hand gave evidence that he invited ES to come to Adelaide, even offering to pay for this, but she would not. I prefer ES’s evidence on this topic. Her evidence was that the accused did not encourage her to have contact with the family and that maintaining contact with her daughter and grandchildren was very difficult. This is consistent with the evidence of KLT and her Aunt which I also accept.
I accept the evidence of the two CPS employees who dealt with the family but their evidence is again of limited value. It does corroborate some of KLT’s evidence about the family’s living arrangements at Sellicks Beach. Specifically, the CPS officers confirmed the sleeping arrangements, the family’s isolation or lack of support and the impoverished circumstances of the family. There was no mention of family violence or mistreatment. It was not clear from their evidence what lead to the involvement of CPS with this family and specifically no reference to non-attendance at school by KLT and her sister KT as a trigger for their involvement.
CPS involvement commenced in March 2011 and continued until about May 2011. They made 14 home visits to the family both at Sellicks Beach and a subsequent house at Oaklands Park. The children were removed from the parents on about 19 April 2011. The evidence about the reasons for removal related to the sleeping arrangements and the fact that when the CPS officers went to the Sellicks Beach house on one occasion and the family appeared to have vacated the house coupled with a concern about the circumstances of the family’s departure from New South Wales suggesting that they might be a flight risk. It seems unlikely that these were the only reasons for removal but no further detail was provided. It was further not clear how, when or where the CPS officers located the children to take them into care.
The children were returned to the family on 24 May 2011. The family home had relocated to Oaklands Park and inroads had been made towards improving the sleeping arrangements including a separate bedroom and bunk beds for KLT and KT. There had been a few CPS assessments and 15 or so supervised visits between the parents and the children whilst the children were in care. Ultimately, the department was satisfied that it would be safe to return the children to the parents.
The evidence of the CPS officers falls short of establishing neglect as contended by the prosecution; rather it points to a family in dire financial straits with, possibly, inadequate parenting.
Accused’s evidence
The accused denied that he has ever touched KLT sexually.
He is 54. He was born in Lebanon and came to Australia to live in 1972. He undertook primary school and high school in Sydney. He was educated to year 10. He worked in several occupations before going into carpentry. He has worked in that area for some 20 years specialising in framing and roofing.
He met the complainant’s mother, MAT, in late 2005. She had two children, KLT and her sister KT. KLT was about two and KT was about one. He and MAT decided to move in together. They subsequently had three children together; a boy in 2009, a daughter roughly 11 months later in 2010 and another daughter born in South Australia on 8 March 2011. Shortly after the birth of his first daughter he had an opportunity for work in South Australia. He came to Adelaide to meet with a builder bringing his son JB with him. He returned to Sydney and told MAT that the opportunity in Adelaide was a good one. They decided to move their family to Adelaide.
Initially they lived at Eden Hills with an older man that he met at Centrelink. They then spent two nights in a caravan park at Second Valley and then he found the Sellicks Beach house which was for rent at $24 per day. It wasn’t perfect but they didn’t have very much money. They had no furniture only two mattresses. They bought sheets and doonas. They did not have a T.V. or a fridge until after their daughter was born. The whole family slept in the lounge room on the floor on the two mattresses. They could not sleep in the two bedrooms because they did not have fly screens and there were mosquitos.
On arrival in Adelaide, he got a second-hand van but the motor seized up and he ended up buying an old Commodore which he used for work. The building work that he came to Adelaide to do did not materialise and he advertised for work on a Woolworths board. He was doing any sort of work, handyman, gutter cleaning that he could get. When he was living at Sellicks Beach he was very busy working about 5 or 6 days per week finally ending up even working on Sundays. Generally, he was leaving at 6 to 6:30 in the morning but at first, he couldn’t do that because he had to take the two girls to primary school each day until they were able to catch the school bus. He denied that there was a problem with the children attending school.
He described MAT’s mental health issues in somewhat vague terms. He said that MAT she did not like to go out because of these issues. He gave no evidence about the effect of her illness on her ability to care for the children. They didn’t have any family members in South Australia and only knew one other family who came from his village in Lebanon. His evidence is supportive of KLT’s that the family was isolated in Adelaide.
After living at Sellicks Beach, they moved to Oaklands Park. His father came from Sydney for a week to help them move. His father then had to go and his mother came with one of her friends for a week. It was not clear to me what the timing of this was and how it fitted in with the removal of the children.
Whilst at Sellicks Beach they would go fishing at the beach nearby. There were occasions when he would be there with KLT and other members of the family. This occurred on about 4 or 5 occasions. There was never an occasion when the family went home and KLT stayed on the beach with him. He wouldn’t let the children stay because he fished until late and could not look after them. He denied ever being alone on the beach with KLT.

He always took the car with him to the beach because he would park on the sand to make it easier for fishing. The whole family would not fit in the car because of his work tools. He could only carry four passengers. There were occasions when he drove KLT home from the beach but he would take other children with him at the same time. He denied ever touching her on the vagina over her bathers at the beach and denied that there was an occasion in the car where he asked KLT to touch his penis.
He described the occasion when his youngest daughter was born. He drove his partner to the hospital. They went to Flinders Hospital but he dropped the girls off at the Lebanese family at Darlington. He took his son with him to the hospital. He stayed for a few hours at the hospital but he was sent home. He picked up the girls around 3:00 am and took them home. When he went back to the hospital the next morning he had a lady who lived in the street look after the older children but he took his son and youngest child to the hospital with him. His wife had given birth to his youngest daughter by this stage. MAT stayed in hospital overnight and so he looked after the children that evening. Whilst mat was in hospital the children slept on the mattresses as usual. He denied that he got on top of KLT and rubbed his penis on her vagina. He denied touching KLT inappropriately in any way whilst his partner was in hospital.
The accused denied any violence towards his partner or the children. Usually with the children if he raised his voice that would be enough but if physical discipline was required he would give them a slap on the back of the legs. He did admit slapping KLT on the face on one occasion on their return to New South Wales following an incident where he was locked out of the house. He said that was the only occasion.
He agreed that KLT never complained about sleeping on mattresses on the floor or living out of boxes nor did she complain about moving around a lot. He agreed that she did not like missing school because she liked going to school but denied that this occurred very often.
He denied the evidence from the CPS officers that there were no shopping facilities near the Sellicks Beach house; there was a post office, pizza place and small grocery place nearby within walking distance. I cannot resolve that conflict on the evidence before me. He agreed that the children did not have many toys and that they could not play in the garden which meant that they had to stay inside most of the day.
His evidence concerning the removal of the children was somewhat confusing. He said that the Department of Child Protection visited the family at Sellicks Beach when he was at work. He appeared to be suggesting that he did not know very much about their visits or the reasons for the visits. He was at work when he got a phone call from MAT crying and screaming that the children had been taken. He drove home. He did not specify where “home” was nor was he asked to clarify this. It is unclear whether he was referring to Sellicks Beach or Oaklands Park. The police were there saying that “welfare” had taken the children. Again, he appears to be suggesting that he did not know why this occurred. He denied the evidence that was given by the CPS officer that the family had moved out of the Sellicks Beach house with no warning. His evidence, whilst not clear particularly as to timing, appeared to be that he spoke to someone at CPS on the telephone and told them that the family was moving to a better house at Oaklands Park. This latter evidence is however inconsistent with his other evidence concerning his lack of knowledge of CPS involvement with the family. It is also somewhat inconsistent with the evidence of the CPS officers although their evidence about the removal of the children is lacking in detail.
Discussion
The accused was not an impressive witness. He sought to paint himself as a good, even indulgent, father. This did not sit comfortably with his other evidence about the family’s living situation, the lack of toys and other outlets for the children. His evidence about the family being unable to use the bedrooms at Sellicks Beach was far from compelling. I also found his rejection of KLT’s evidence that she often had look after the younger children, including feeding them, unconvincing. For example, his evidence that his one year old son was able to feed himself strained credulity. Likewise, I do not accept his evidence about contact with KLT’s maternal relatives. He appeared to suggest that he welcomed even encouraged normal family interaction. The evidence of KLT, her aunt and grandmother is otherwise. The evidence of ES in particular, made it clear that the family often moved without keeping family informed. This is consistent with the evidence of the CPS officers. The overwhelming evidence is that this family lived in very difficult, impoverished circumstances and that the children were deprived not only of material possessions but also the nurturing of a functional family.
Notwithstanding my reservations about these, and other, aspects of the accused’s evidence; that does not provide a basis for my finding him guilty of the charged offences relating to KLT. The onus of proving each element of the charges always remains on the prosecution. The prosecution case rests entirely upon KLT’s evidence. It is evidence upon which the accused could be lawfully convicted. As there is no independent corroboration of her account however I must carefully weigh her evidence.
I found KLT to be a compelling witness in many respects but I am troubled by the lack of detail in some aspects of her account and by the two inconsistencies between what she told police and her evidence. The incidents that she described in her evidence as occurring in New South Wales were more proximate in time to the police interview and the police officer was a New South Wales officer. The questioning was fair and directed to establishing whether any offending had occurred in that officer’s jurisdiction. The topic was raised on at least three occasions and the denial of any incident in New South Wales was unequivocal. The different accounts of the incident the subject of count three are also of concern. Both descriptions would amount to an indecent assault. There is however a considerable difference from the description of the accused climbing on top of KLT and putting his penis on top of her clothes given to police and her evidence in court that included the accused sliding his penis underneath her underwear against her naked vagina.
Even making allowances for the circumstances in which KLT gave her evidence, the circumstances of the police interview, the distressing nature of these allegations, KLT’s youth and difficult background, the vagueness and inconsistencies are not minor matters. These matters in combination cause me to doubt the underlying basis of KLT’s evidence and the reliability of the allegations she has made. Whilst I am suspicious that the accused did sexually assault KLT, he ought not to be convicted in circumstances where I remain uncertain about critical aspects of KLT’s evidence. I therefore do not consider that the prosecution has proven the charges beyond reasonable doubt and I acquit the accused of all three counts.