R v C - [2021] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C
Criminal Trial by Judge Alone
[2021] SADC 137
Reasons for the Verdict of her Honour Judge Chapman
7 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship with his daughter in 2009 when she was 12 or 13. It is alleged the unlawful sexual acts occurred during a period when the family was living at a rental property.
The evidence did not prove that two or more unlawful sexual acts occurred to the standard of beyond reasonable doubt.
Verdict: Not Guilty

R v C
[2021] SADC 137
Criminal

The accused is charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child.[1] It is alleged he maintained that relationship with his daughter during 2009 when she was aged 12 to 13.
[1] Contrary to section 50(1) of the Criminal Law Consolidation Act 1935.
The accused elected for trial by judge alone.
It is alleged that the offending occurred in 2009 when the accused lived with his family in a rental property whilst their house was being built. The complainant was in year 7 at school. The alleged acts occurred on one occasion at the building site for the new house, on two occasions on the couch in the lounge room of the rental property, on one occasion in the hallway of the rental property and on three occasions in the parents’ bed at the rental property.
The complainant gave a statement to the police in 2010 but withdrew the allegations about three weeks later.
In 2018, the complainant decided to proceed with the allegations.
The elements of the offence
The prosecution has the onus of proving each element of the offence beyond reasonable doubt.
The offence has four elements:
1.     That during the period alleged (2009), the accused was an adult.
There is no dispute the accused was then in this late 30s.
2.     That during the period alleged, the complainant was a child.
There is no dispute she was 12 or 13.
3.That during the period alleged, the accused knowingly maintained a relationship with the complainant.
The complainant is the accused’s biological daughter. During 2009, the accused, his wife, the complainant and his son were living as a family at the rental property. The accused was working two jobs to provide financially for the complainant and spent time with the complainant when he was not at work.   There is no dispute he knowingly maintained a relationship with her.
4.That during the period alleged, the accused engaged in two or more unlawful sexual acts with or towards the complainant, namely:
a)     touching her vagina on more than one occasion;
b)     touching her inner thigh on more than one occasion;
c)     touching her chest just above her breasts on one occasion;
d)     kissing her on the lips on one occasion;
e)     making comments designed to make her amenable to sexual activity.
Because the complainant was a child at the relevant time, she is legally incapable of consenting to any of the alleged unlawful acts. Her consent is not an issue.
Issue
I find elements 1, 2 and 3 proved.
The issue is proof of the fourth element.
There is no dispute that each of the allegations, if proved, would amount to an ‘unlawful sexual act’.[2]
[2] As defined in s 50(12) of the Criminal Law Consolidation Act 1935.
The issue is whether the prosecution has proved beyond reasonable doubt that two or more unlawful sexual acts did in fact occur. The defence case is that none of the acts occurred.
Proof
The prosecution has the burden of proving the offence. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty.
The accused participated in two interviews with the police, one in January 2010 and one in April 2019. He denied committing any unlawful sexual acts. By choosing to answer police questions, he took on no onus of proof.
The accused elected to give evidence at trial. I will assess his evidence as I would assess the evidence of any other witness. By electing to give evidence, he took on no onus of proof. He is not required to prove his innocence. The prosecution must prove his guilt beyond reasonable doubt.
The alleged unlawful sexual acts
The prosecution case relied solely upon the complainant’s evidence to prove two or more of the alleged unlawful sexual acts.
At the building site (unlawful sexual acts (d) and (e))
The complainant gave evidence that the family visited the building site for the new house on a weekly basis.
The complainant gave evidence about one incident that occurred during such a visit. The dirt was just dug up ready for the concrete to be poured. It was evening and she was standing with the accused near the yellow fence. Her brother was off playing, out of sight. Her mother was somewhere cleaning up. She assumed her mother was in the shed. In cross‑examination, she said that her memory is that her mother was in the shed but she is guessing that her brother was running around somewhere.
Her father asked her for a kiss. She kissed him on the cheek. He then asked for a kiss on the lips. She gave him a peck on the lips. He then asked to ‘involve tongue’.[3] She froze. She did not kiss him and does not believe she said anything. She wanted to leave and tried getting out of the hug. His arms were around her and she had her arms around his waist. She pulled away. He grabbed her by the arm and said for her to promise she would not tell her mother. She said yes so that he would let her go. She ran off and did not say anything to anyone.
[3] T19-20.
Hallway at the rental property (unlawful sexual act (e))
In 2009, the complainant was enrolled in a modelling course for 12 weeks. She practised walking in high heels up and down the hallway at home. She said her father would make sleazy comments. He made a comment one day when she was cat walking, asking her to turn around and wanting to see if she was wearing a G‑string.
Two occasions on the couch at the rental property
The complainant described two occasions on the couch at the rental property when her father committed unlawful sexual acts, once at night and once during the day.
Night-time (unlawful sexual acts (a) and (c))
The complainant described a time when she fell asleep on the couch, lying on her side facing the TV. It was 3.00am when she woke up to the noise of her jacket being unzipped. Her father’s hand went underneath the bottom of her T‑shirt and up over her breasts. She was wearing a bra. He was trying to caress her breasts, rubbing across her chest. It was a swiping, caressing effect going from side to side across her chest. He lifted her bra up and continued touching her breasts. She was scared and froze. She did not say anything.
Her father then unbuttoned and unzipped her jeans. His hand went into her pants over her underwear to the front of her vaginal area. He was caressing that area with a rubbing effect. He still had one hand on her breast.
The touching went on for about half a minute to one minute. It stopped because she started to get up. The accused grabbed her by her arms and made her promise that she would not tell anyone. She muttered a yes so that he would let her go. She went straight into her mother’s bed. Her mother was fast asleep. Her father slept on the couch that night.
She felt scared and very awkward when she saw her father the next morning.
In her statement on 6 January 2010, she agreed she told the police the accused placed his hands down the front of her top and was rubbing across her chest. His hand on her chest began to lift her bra off and she struggled away from him and got up. She gave evidence that she got the information wrong in her police statement about the accused placing his hand down the front of her top. It is correct to say that he put his hand up underneath the T‑shirt. She said it was hard for her to talk about it in 2010.
In her statement on 8 January 2010, she agreed she told the police the hand was rubbing on her chest just above her breasts and she felt it reach down and try to pull her bra up.
She confirmed her evidence that his hand went up her shirt and lifted the bra up. It is her memory now that he went underneath her T-shirt. She said back then she felt uncomfortable talking to the police about it and now she is remembering the details differently.[4]
[4] T55.
She said at her age when she spoke to the police she spoke differently in the sense that she wanted to get it over and done with.[5]
Day time
[5] T56.
The complainant described another occasion when she got home from school with good news about her maths test. Her mother was not at home and her brother was in his bedroom.
Her father was sitting on the couch watching TV. She sat beside him with a laptop. She was wearing her summer dress school uniform. Her father started caressing her arm and, with a rubbing effect, his hand went up her arm to the left side of her chest and left breast. In the witness box, she indicated a caressing effect across her chest. The accused told her that she should let him touch her to release her hormones to get rid of her pimples.[6] She did not respond, she was ‘freaked out’. She moved to sit on the one‑seater. He asked her to come back, but she did not. She did not say anything. She stayed there for a minute then got up to go to her brother’s room. He grabbed her to make sure she did not say anything to her brother. She told him she would not say anything.[7]
[6] T25.
[7] T25 – 28.
In her parents’ bed at the rental property
The complainant described three occasions in November 2009 when her father touched her when she was sleeping in her parents’ bed. On all three occasions the accused was not in bed before she fell asleep but was in bed by the time he was touching her. She usually went to bed at 10.00pm.
First time (unlawful sexual act (b))
The complainant thought the first time was about a week after the occasion when the accused unzipped her jacket on the couch.
On this first occasion she was wearing shorts and a singlet, lying on her back next to her mother. She woke up with the accused’s hand sliding under her shorts and up her inner thigh trying to weave its way into her underwear. She could feel his hands caressing her thigh trying to move closer to her vagina. His hand got very close to her vagina but did not touch the skin. She scrunched her legs up to make him stop and moved closer to her mother.[8]
Second time (unlawful sexual act (a))
[8] T28 – 30.
The complainant gave evidence that the second time it happened in bed she woke up with his hand further up than it had been previously. His fingers were on top of her vagina inside her underwear. He was trying to rub.[9]
[9] T31.
In cross‑examination, she gave evidence there was one occasion where he had his fingers on her vagina. That was the second occasion in the bed. She agreed that when she gave her statement to the police on 25 March 2020, she referred to her first statement to the police on 6 January 2010 about that occurring the first time, not the second time. Her evidence was that she believes now it was the second occasion.
Third time
There was another occasion when she had her period and was wearing a menstrual pad. That did not deter him. He tried to do ‘the same thing as every other occasion’.[10] She stopped him by fluttering her legs and kicking.
[10] T31.
Evidence of initial complaint
The prosecution led evidence of a complaint made by the complainant to a school friend. The evidence was admissible pursuant to s 34M of the Evidence Act 1929 as an initial complaint.
The complainant gave evidence that she asked her friend if anything like this has happened to her. She just remembered asking her friend about someone sexually doing something inappropriately. Her friend opened up and told her that it happened by her grandpa who had already been charged and gone to prison. The complainant told her friend that it was happening to her but said it was a friend of her dad, not her dad.[11] She could not recall the detail of what was said because of the lapse of time. She said, ‘I just remember telling her about something sexual happening and her opening up to me about her grandpa’.[12] In cross‑examination, the complainant gave evidence she remembered telling her school friend that she was getting touched inappropriately, but she does not remember any more detail.[13]
[11] T32.
[12] T32.
[13] T41.
The complainant now believes she would have told her friend in the month of November. She could not say whether any of the incidents happened after she told her school friend. She recalled that she was the one who brought the subject up, not her school friend.
The complainant’s school friend, Ms SF, gave evidence that she went to school with the complainant in 2009 when they were in year 7. The complainant was then one of her closest friends.
In around year 7 or year 8, she had a conversation with the complainant in the courtyard at school. She does not remember what time of the year it was. She was unsure how the conversation began. She told the complainant that she had been sexually assaulted as a child by her grandfather. The complainant responded to the effect that she knew what she was going through because something similar had happened to her. She said it was a close relative or family member who had touched her inappropriately. She did not give any further detail.
In cross‑examination, Ms SF gave evidence that she saw the complainant at school a lot after the conversation. They would do assignments together. She agreed with the proposition that the conversation would not have been towards the end of the school year, but more likely to be earlier on. They stopped being friends after the complainant left the school. She disclosed to the complainant what happened and then the complainant responded.
Police interview with the accused in 2010
The complainant gave evidence that she moved out of home with her mother and brother soon after Christmas 2009. It was her mother’s idea to move out. They went to live with friends at Salisbury for a month or two. They then moved to another place where one of her brother’s school friends lived and stayed there for up to a month.
The complainant gave evidence that within a few days of moving out they went to the police station for her mother to make a report to the police. The complainant made a police statement. She understood that her father was arrested sometime after that.
The accused was interviewed by Officer Jessica Miller on 7 January 2010. He said he came home on Monday and his family were gone. He said he was working pretty much seven days a week. He said the complainant did not sleep in the bed with her mother very often. She was in the bed sometimes when both he and his wife were in the bed. He denied ever indecently assaulting her in the bed.
Withdrawal of charge
The complainant gave evidence that her mother forced her to drop the charge in 2010. She went to the police station with her mother who told her what to write on the documents.
She gave evidence that after they moved back to the rental property the accused did not sexually abuse her anymore.
Brevet Sergeant Gillian Shaw gave evidence that she was working on 21 January 2010 when the complainant filled out a Form 207B to withdraw charges. She said the complainant’s mother stood at the complainant’s side telling the complainant what to write on the form.
Prosecution of charges
The complainant gave evidence that in 2018 her brother was getting married. She got uninvited to the wedding on the day. Her father would not allow her boyfriend to attend the wedding. In the end, even if she did bring a girlfriend, her father said she was not allowed to go. All of those messages were relayed to her through her mother. She gave evidence that ‘this really triggered me because after all these years he’s still controlling our family and getting to me in a way.’[14]
[14] T36.
The accused gave evidence that his son got married in September 2018. His daughter did not go to the wedding. He did not want her boyfriend to be there. He heard that her boyfriend was a photographer who put some pictures of girls on the internet. He told his son that the complainant could go to the wedding, but not with her boyfriend because the accused did not want to be upset. He said to his son that if he wanted her to bring her boyfriend, that is fine, but the accused would stay home. He said his son chose him.
Police interview with the accused in 2019
The accused was interviewed by Brevet Sergeant Jonathan Hogan on 4 April 2019. He was asked whether there was anything he would like to tell the police in relation to the complainant. The accused responded that he did not know. He said once she wanted to go out to be free and he was too strict and then whatever happened, he was through the courts and then she dropped everything. She stayed with the family another year and then she left.
Sometimes he would fall asleep on the lounge because of his work. He would come home, sleep maybe four hours, and then start work again. He said sometimes he slept in the bed with his daughter and wife. He said he works for the kids. He does anything for them.
He said the complainant always wanted to go out and he did not let her. She always wanted to ‘go party’.
He did not talk with the complainant about the charges when she returned home with his wife and son. He denied the allegations.
Discussion of the evidence
The prosecution case relies solely upon the evidence of the complainant. I have carefully considered her evidence. Based on the evidence of the complainant and the evidence of the accused, there was no dispute that:
i)the family were living at a rental property in 2009 whilst their new home was being built;
ii)the rental property had three bedrooms, with one being used for storage;
iii)the two children were meant to share one bedroom, but the complainant would often sleep in her parents’ bed;
iv)the accused would sleep either on the couch or in the bed with his wife and the complainant;
v)the accused was working two jobs, including Friday and Saturday nights when he would get home from work at 3.00am or 4.00am;
vi)the accused was strict with his children;
vii)the complainant did a modelling course in 2009 which the accused funded;
viii)the accused’s wife and children moved out of the family home in late 2009, the complainant made a statement to the police, the accused was arrested, the charges were withdrawn and then the family moved back to live together at the rental property;
ix)the complainant moved out of home when she was 16.
The prosecution submitted the complainant was an honest, reliable, articulate and careful witness who did not embellish, exaggerate or guess. She was ready to acknowledge the positive aspects about her father, including his hard work and focus on good education for his children.
The defence submitted that the complainant’s credibility was adversely impacted by the initial complaint evidence and her prior inconsistent statements. The defence further submitted that the accused gave honest, compelling and plausible evidence. He was not shaken under cross‑examination nor was he evasive in his answers. In those circumstances, it is not possible to know where the truth lies.
Complaint evidence

For the accused, Mr Mead submitted that the complaint evidence demonstrates a high level of inconsistency on the part of the complainant which damages her credibility to such an extent that no confidence could be had in her evidence in general.
I am not troubled that the complainant and Ms SF have different memories about who raised the topic of abuse. I do not know whether it was the complainant or Ms SF, nor do I consider it is necessary to decide that issue. The conversation occurred over a decade ago and memories fade. Their inability to remember is understandable given the passage of time.
I am satisfied that, in effect, the complainant told Ms SF that she was touched inappropriately by a family friend or a family member/relative. The complainant gave evidence that she told Ms SF that it was a family friend, rather than her father. The prosecutor did not ask her why she said the offender was a family friend. In any event, I find that the effect of her evidence was that it was a deliberate choice she made at the time not to mention her father. Whilst her nomination of a family friend is technically inconsistent with her allegation that the offender was her father, I do consider that it adversely affects her credibility. There is no suggestion that the offender may have been someone else.
Mr Mead referred to the evidence of Ms SF that the conversation occurred earlier on in the school year, being 2009 or 2010. He said it could not have been 2010 because the complainant did not go to that school in 2010. He submitted that on Ms SF’s evidence, the conversation occurred earlier in 2009 which pre‑dates the complainant’s evidence about when the alleged offending occurred. He made the submission that the complainant’s own evidence that she could not say whether it occurred earlier in 2009 or not was an odd piece of evidence. He submitted that it is difficult to understand how she would not be able to dismiss that suggestion out of hand.
In making that submission, Mr Mead was referring to his first question to the complainant after a morning break: ‘I want to suggest that when you had the conversation with your friend, [Ms SF], it is the case that the conversation occurred earlier on in the year in 2009’. The complainant responded, ‘I can’t confirm because I don’t remember when it happened’.[15]
[15] T58.
Earlier on in his cross‑examination, Mr Mead asked the complainant questions about the timing of the conversation with Ms SF. The complainant gave evidence that she could not be exactly sure whether the conversation happened before or after the third incident in the bedroom but said ‘It would have been in the month of November’.[16] She believed the conversation happened while the events were still occurring. She said she could not give an exact answer as to whether the conversation was during or after the incidents, including whether the touching happened again after the conversation with Ms SF.[17]
[16] T41.
[17] T42.
The answer relied upon by Mr Mead needs to be considered in the context of the complainant’s answers during the earlier cross‑examination. The effect of that earlier evidence was that the complainant believed the conversation took place in November but could not be sure. In that context, the subsequent suggestion to her that it occurred ‘earlier on in the year’ was unclear. Because of that lack of clarity, I do not agree with Mr Mead’s submission that her failure to dismiss that possibility out of hand was an ‘odd piece of evidence’. The point that Mr Mead now makes about the significance of that question and answer was never put directly to the complainant. It was not put to her that the conversation with Ms SF took place before any of the alleged unlawful sexual acts in fact occurred.
I do not place any greater weight upon Ms SF’s estimate of the timing of the conversation than the complainant’s estimate. My assessment of Ms SF as a witness was that she had a vague memory of the conversation. She could not say whether it occurred in 2009 or 2010. The agreed fact that the complainant was not at the school in 2010 means that Ms SF’s memory that it could have been 2010 is wrong. Mr Mead based his submission for an adverse finding against the complainant’s credibility on acceptance of Ms SF’s evidence about the timing of the conversation being ‘earlier in 2009’. That evidence from Ms SF, however, was an acquiescence to the following suggestion made in cross‑examination, ‘So it wouldn’t have been towards the end of the school year. It’s more likely to be earlier on’.[18] There were no further questions to explore what was meant by ‘earlier on’. She had said earlier in her evidence that she did not know what time of the year the conversation occurred.[19] The evidence lacked clarity. It does not necessarily amount to evidence that the conversation occurred earlier than November 2009. I do not consider she was able to give a reliable estimate of the timing of the conversation.
[18] T63.
[19] T61.
I am satisfied that the initial complaint made by the complainant to Ms SF is referable to the charged conduct, although it is not possible to refer it specifically to one or more of the alleged unlawful sexual acts.
The evidence is not admitted as evidence of the truth of what was said. Rather, it informs me as to how the matter first came to light. It is evidence of the degree of consistency or inconsistency of conduct of the complainant, as already discussed. There may be varied reasons why the alleged victim of a sexual offence makes a complaint of the offence at a particular time or to a particular person.
Unlawful sexual act (c)
One of the unlawful sexual acts alleged in the charge is set out at (c), namely, that the accused touched the complainant’s chest just above her breasts on one occasion.
The complainant gave evidence about two occasions, not one. Those two occasions were the night‑time occasion on the couch and the day‑time occasion on the couch.
The prosecutor opened on the basis that the night‑time occasion involved the accused ‘moving his hands across her chest’,[20] which is similar to the wording of the unlawful sexual act alleged in (c). When the prosecutor opened on the ‘day‑time occasion’, he stated that ‘the accused began touching the complainant on the arm and he moved his hand up along her arm towards her breasts’.[21] There was no mention of the accused touching the complainant’s chest above her breasts. In her evidence about the day‑time occasion, however, the complainant stated that the accused’s hand went across her chest with a caressing effect.[22] That evidence could form the basis of an unlawful act for the purpose of (c).
[20] T5.
[21] T6.
[22] T26 – 27.
No application was made by the prosecutor to amend (c) in the charge. In fairness to the accused, because of the way in which the prosecution opened the case, I have proceeded on the basis that the unlawful act alleged in (c) is referable to the night‑time occasion on the couch.
In respect to that occasion, Mr Mead referred to the inconsistency between the complainant’s evidence and her prior statements to the police. Her evidence was that the accused put his hand under her top, was trying to caress her breasts and was moving his hand with a swiping, caressing effect going from side to side across her chest. Her prior statements to the police were that he put his hand down her top and was rubbing across her chest, then tried to pull her bra up.
At first blush, the inconsistency about the accused putting his hand down her top rather than up her top may seem insignificant. However, the complainant’s evidence that his hand went up her top and was swiping across her chest (above her breasts) trying to caress her breasts does not make much sense. On that account, his hand must have gone up past her breasts to then swipe across her chest as she indicated. He did not need to swipe across her chest to try and caress her breasts.
Additionally, the complainant’s evidence that the accused did touch her breasts is inconsistent with the portions of the prior statements that were put to her. The prosecution did not allege as part of this charge that the accused touched the complainant’s breasts.
I am concerned about the reliability of the complainant’s evidence about this touching. She disavowed her statements to the police that her father’s hand went down her top. She did concede that she is now remembering the event differently.
I find that the prosecution has not proved that the unlawful sexual act alleged in (c) did in fact occur to the standard of beyond reasonable doubt.
Unlawful sexual acts (a)
The unlawful sexual acts alleged in the charge as set out at (a) is that the accused touched the complainant’s vagina on more than one occasion.
The complainant gave evidence about two occasions. One was the night‑time occasion on the couch. The other was the second occasion in her parents’ bed.
In regard to the first occasion in her parents’ bed, the complainant said the accused did not touch her vagina. She said his hand got ‘very close but didn’t touch the vagina skin on skin’.[23]
[23] T29.
I have already set out my concerns about the reliability of the complainant’s evidence in relation to this occasion regarding the allegation that the accused touched her chest just above her breasts.
My concern about her reliability extends to her account about the accused touching her vagina. She gave evidence that the accused unbuttoned and unzipped her black skinny leg jeans that she usually wore and put his hand into the jeans over her underwear. He had one hand on her breast whilst the other hand was in her pants rubbing her vaginal area over her underwear.
In relation to the second occasion in the parents’ bed, Mr Mead referred to the complainant’s evidence that the accused touched her vagina on the second occasion compared to her police statement that he touched her vagina on the first occasion.
Although that inconsistency does not in itself cause me to doubt the complainant’s evidence, I have considered it in the context of the paucity of evidence about the three occasions in the parents’ bed. The paucity does not arise because the complainant gave evidence she could not remember. Rather, the paucity arises from the absence of any questions being asked on the topic.
The complainant was not asked about the size of her parents’ bed (double, queen or king). She gave evidence that when she went to bed on those three occasions, her father was not in bed before she fell asleep. Her father was in the bed when he touched her on those three occasions. The complainant gave some general evidence that when her father slept in the bed, he would sleep head to toe, so his legs would be to her head.[24] She did not give specific evidence that they were sleeping in that position on the three occasions. Even if I am to assume that they were, there is no evidence about how close they were sleeping or how her father was able to reach into her shorts in that way from his position. There was no evidence about the type of bedding at the relevant time, whether the accused’s head was under or over the bedding when he was trying to touch/touched her vagina, or about whether he was sitting up or lying down. The complainant gave evidence that she stopped him on the first occasion by scrunching up her legs and on the other occasions by doing ‘a little kicking effect, like a fluttering of my legs’.[25] There was no evidence about whether in doing that, her legs made contact with the accused’s body and if so, what part of his body. There is no evidence about what happened after he stopped, for example, whether she went back to sleep or whether the accused stayed in the bed.
[24] T19, 40
[25] T29.
The absence of evidence on those aspects leaves me with more questions than answers, particularly when the accused has given evidence denying these charges.
Overall, the evidence does not satisfy me beyond reasonable doubt that the accused committed the unlawful sexual acts as described in (a).
I do not consider that the complainant’s evidence regarding the third occasion in the parents’ bed could amount to evidence of any unlawful sexual act. The extent of the evidence was that she was wearing a menstrual pad and he ‘would try and do the same thing as every other occasion’. The difficulty with that evidence is that there is no ‘same thing’ as ‘every other occasion’. The first occasion in bed involved touching of the inner thigh. The second occasion involved touching of the vagina.
Unlawful sexual acts (b)
The unlawful sexual acts alleged in the charge as set out at (b) is that the accused touched the complainant’s inner thigh on more than one occasion.
One occasion is referable to the first time in the parents’ bed. The complainant did not give evidence of any other occasion.
For the reason set out above at [83]-[85], the prosecution has not satisfied me to the standard of beyond reasonable doubt that this act did in fact occur.
Mr Mead submitted that the complainant’s evidence about the offending in the bed lacked credibility because she continued to sleep in her parents’ bed at the time of this offending, rather than sleep in the bedroom with her brother. I do not agree with that submission. The complainant was only 12 or 13 at the time of this offending. I do not think it is possible to say what might be ‘expected’ of a child in that situation. I have not reasoned in a way adverse to her credibility because she continued to sleep in her parents’ bed during the period of the alleged offending.
Mr Mead made the submission that the complainant’s lack of memory about where she slept when she returned to live at the rental property was at odds with her memory about events before that time. He submitted she was being evasive about the sleeping arrangements because she knew it did not make sense for her to have returned and slept in the exact same place. I did find the complainant’s complete absence of memory on this topic to be odd.
The accused gave evidence that the complainant slept in that bed when she returned to live at the property, but he did not sleep there because he was too scared to do so after the allegations. If that is the case, then that may well be a valid reason why the complainant did sleep in that bed when they returned home. In any event, I would not have reasoned in a way adverse to the credibility of the complainant’s account if she had given evidence that she continued to sleep in her parents’ bed after the return home. Again, she was only 13 and I do not think it is possible to say what might be ‘expected’ of a child in that situation.
Unlawful sexual acts (e)
The unlawful sexual acts alleged in the charge as set out at (e) are that the accused made comments designed to make the complainant amenable to sexual activity.
One of those comments is said to have been made in the hallway at the rental property when the complainant was practising the catwalk at home as part of her modelling course. It is alleged the accused asked her to turn around to see if she was wearing a G‑string. The accused denied making such a comment.
The complainant gave evidence that her father wanted her to do the modelling course. She disagreed with the suggestion that he was reluctant for her to do it. She said that he would not put her through a modelling course if he had a problem with it.
The accused gave evidence that, at the start, he did not agree with it. He was against it, he is a Christian and ‘it’s not nice’.[26] He said, ‘I told her that day you’re going to be wearing bikini, you know, these things, whatever you call it and I no agree with that and she said ‘No, it’s not going to be about G‑string, it’s going to be about how I wearing, how I step and make-up’ you know, and I have conversation with my wife and then I agree and my wife was going every single time with her up there.’[27]
[26] T81.
[27] T81.
I prefer the evidence of the accused on this topic. I did not find the complainant’s insistence that her father was always in favour of the modelling course to fit with her description of him as a man of very conservative values and practices. There may have been a discussion about G‑strings, but I am not satisfied that it was in the context alleged by the complainant.
The other comment alleged to have been made by the accused was at the building site. The complainant alleges that the accused asked her to kiss him on the lips. After she gave him a peck on the lips, he asked her to ‘involve tongue’. The complainant gave evidence that she was assuming her mother was in the shed cleaning up and her brother was off playing. In cross‑examination she said she had a memory that her mother was in the shed and she was guessing that her brother was running around somewhere. It does seem odd that if there was no structure on the land other than a shed that the complainant has no memory of where her brother was at the time or that the accused would make such a request when potentially visible to his son.
I have already expressed some doubt about the reliability of the complainant’s evidence generally. I am not satisfied to the standard of beyond reasonable doubt that the accused made that comment to the complainant.
Unlawful sexual act (d)
The unlawful sexual act alleged in the charge at (d) is that the accused kissed the complainant on the lips. Strictly, the evidence was that the accused asked the complainant to kiss him on the lips and she gave him a peck on the lips. In any event, I am not satisfied beyond reasonable doubt about the occurrence of this unlawful sexual act for the reason set out above at [99].
Verdict
I find the accused not guilty.