R v Catalano - [2020] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CATALANO
Criminal Trial by Judge Alone
[2020] SADC 61
Reasons for the Verdicts of Her Honour Judge Chapman
22 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
The accused is charged with Communicating to Make a Child Amenable to Sexual Activity and three counts of Indecent Assault between December 2016 and April 2017. He knew the complainant through his involvement in the local soccer club. The prosecution alleged he sent photos of his penis to the complainant via Snapchat and indecently assaulted her once in his car and twice at social functions. The accused denied he committed the offences and called evidence suggesting he had no opportunity to indecently assault the complainant as alleged.
Held: The prosecution has not proved beyond reasonable doubt that the acts occurred. The accused is not guilty of all four counts.

R v CATALANO
[2020] SADC 61

The accused is charged with Communicating To Make A Child Amenable To Sexual Activity contrary to section 63B(3)(b) of the Criminal Law Consolidation Act 1935 (the Act) (count 1) and three counts of Indecent Assault contrary to section 56 of the Act (counts 2 to 4). It is alleged he committed the offences between December 2016 and April 2017 when the complainant (AB) was under the age of 17 years. The accused’s family were friends with the complainant’s family. The families knew each other through a local soccer club.
The complainant met the accused through the local soccer club when she was 11 or 12. The complainant and the accused’s son played soccer for the club. AB gave evidence that when she first met the accused he acted like a dad to her. He was interested in her sport, school and hobbies. They had a similar humour. She saw the accused if he went to soccer training and games. She sometimes saw him at family get-togethers with other families from soccer.
The complainant alleges that she and the accused communicated via Snapchat from about October 2016. She says the accused sent her four or five photos of his erect penis via Snapchat (count 1). She also alleges that he tried to kiss her after driving her and other children to see the Christmas lights in December 2016 (uncharged); that he kissed her on the lips, hugged her and touched her breasts/bottom on New Years’ Eve 2016 (count 2); that he quickly kissed her on the lips after his son and friend got out of the car at the McDonald’s car park in January 2017 (count 3); and that he kissed her on the lips, hugged her, touched her breasts/bottom and moved his hand onto his penis at his house at Easter in 2017 (count 4).
The prosecution called the complainant, her mother, her father, police officers (including a digital evidence investigator from the Electronic Crime Section), Heather McKaskill and Ms KJ-V.
The accused gave evidence in his defence. He agreed he knew the complainant through the soccer club and family social gatherings but denied the occurrence of any unlawful sexual activity with the complainant. The accused also called his wife, Mr AA (his friend), Mr HE (his son’s friend), Ms AD (his sister), Mrs KT (a friend and member of the soccer community) and Ms SS (a friend).
I will assess the evidence of the accused as I would assess the evidence of other witnesses, bearing firmly in mind that he was not required to give or call evidence and he takes on no burden of proof because of his decisions to give and call evidence. The accused is presumed innocent and is not required to prove anything. The prosecution must prove his guilt beyond reasonable doubt.
The offences
In order to prove the offence of Communicating with the Intention of Making a Child Amenable to Sexual Activity (count 1), the prosecution must prove the following elements beyond reasonable doubt:
1.     The accused communicated with the complainant.
2.     The accused made the communication for a prurient purpose.
3.The accused made the communication with the intention of making the complainant amenable to sexual activity.
4.     The complainant was under the age of 17 years.
There is no dispute the complainant was under the age of 17 years. There is no dispute that the alleged facts would make out the elements of the offence. The issue in this case is whether any such communication was made. The accused denies ever sending photos of his erect penis to the complainant.
In order to prove the offence of Indecent Assault, the prosecution must prove the following elements beyond reasonable doubt:
1. The accused intentionally assaulted the complainant.
2.The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
Because of the complainant’s age at the time, her consent to any such act is not a relevant issue. Again, there is no dispute the alleged facts would make out the offences charged for counts 2, 3 and 4. The issue for each count is whether the acts in fact occurred. The accused denies committing any such acts.
Evidence of sexual interest: the accused’s mobile phone
The prosecution case is that an analysis of the accused’s mobile phone reveals that he had a sexual interest in the complainant.
The accused and the complainant communicated using Snapchat. That is an application which enables ‘snaps’ (photos) and ‘chats’ (texts) to be sent between users. A filter can be applied by the sender to a photo to create additions to a photo (such as bunny ears, flowers, glasses, cat noses) or to otherwise distort photos. The sender can set a timer for how long a snapchat remains visible on the receiver’s phone once the receiver opens the message. If the receiver wants to keep the snap or chat, then the receiver needs to screenshot the snap or chat before the timer runs out. If a screenshot is taken, the snap will go into the camera roll or can be placed in a folder in snapchat called ‘For My Eyes Only’ (FMEO) which is only accessible after inputting a passcode. There were 129 photos of the complainant in the accused’s FMEO folder.
There is no dispute that (i) the complainant and her brother showed the accused how to apply filters to photos in Snapchat at a gathering at the accused’s home in September 2016; (ii) the date of evening was 13 September 2016 (an examination of the accused’s phone showed that as the date when AB’s number was created in the accused’s phone contacts); and (iii) the complainant used Snapchat to communicate with the accused.
There is dispute about the extent and nature of the communications from the accused to the complainant. The charged conduct (count 1) is denied.
Evidence of the complainant
The complainant gave evidence that on the night she and her brother were showing the accused how to use filters on Snapchat, the accused took the opportunity to add himself into her Snapchat on her phone.
They initially communicated using Snapchat (sending photos and texts) every couple of days, then that became more frequent to once or twice, even more, per day. They often used filters on their photos.
In late 2016, the accused told her via Snapchat that he liked her more than just a family friend and he thought she liked him that way too. She did not know what to say, so just left it for a while. After this occurred, the regularity of communications via Snapchat increased. He began to compliment her about her soccer abilities, told her she was pretty, that she had a ‘good body’/‘good arse’ and called her his girlfriend.
Eventually, he asked her for ‘boob and arse shots’. Initially, she did not send him those sorts of photos but he kept requesting them and said to her ‘if you were my girlfriend you would do this’. She sent him two photos, both taken using the mirror in her bedroom. One photo was of her in black shorts and a sports bra. In the other she was in silver 2XU leggings and a sports bra.
Around the beginning of 2017, the accused sent her three to five photos of his penis via Snapchat (count 1). His penis was ‘sticking up’ in the photos. He did not say anything when he sent these photos. She did not ask for the photos, was not interested in them and was annoyed at receiving them. She screenshotted some of the photos sent by the accused, but not the photos of his penis.
Analysis of accused’s phone
The accused’s mobile phone was seized on 22 June 2017.
In the FMEO folder in Snapchat, there were:
·129 photos of the complainant which included
-       23 collages, some made from just photos of the complainant and some made up from photos of the complainant and photos of others;
-       35 photos, each of which were in the form of a screenshot taken between 8:59pm and 9:17pm on an unknown date;
-       photos of the complainant with filters applied and text. The text on photos included ‘See fucking blind!’ (the filter added a mouse nose and ears); ‘You should know by now that I take everything you say as a joke except for last weekend’; ‘I look so happy’; ‘Meany’; ‘Catch ya I’m out night xx’; ‘Not so scary hopefully xx’ (filtered nose and ears applied to photo); ‘Fuck that’s scary’; ‘See happy’; ‘I’ll be home around 8:30 by the way if your still around’; ‘I’m actual dead’; ‘Take me George you hunk of a man’; ‘my hot chick xx’; ‘my eyes are looking creepy’; ‘done and dusted’; ‘it’s fucking freezing I’m in a jumper and trackies’.
-       Three photos of the complainant with ‘streaks’ across the photo. In Snapchat, ‘streaks’ was something that happened automatically when there was continual communication over multiple days. A number next to the contact increased if you had contact every day. When the complainant sent a streak photo, she would send it to everyone she had a streak with. By sending the photo, she would continue the ‘streak’ she had with them. She did not write ‘streak’ on all the streak photos.
·32 photos of semi-naked women in sexually suggestive poses and sexual memes.
·One photo from an Instagram post showing a male and a female. The accused gave evidence the male is a friend who he knew through work. The female is a family friend of the male. There was another photo of just that female partner on her own. Ms KJ‑V gave evidence she was in those two photos and did not know the accused. She was 13 or 14 in the photos
·A screenshot of a photo from an Instagram account of one of the girls from the T family (one of the families involved in the local soccer).
·Seven photos in the ‘Memories’ folder in Snapchat. These included photos of the accused and his son as well as photos of the accused’s wife with filters applied.
In the general camera roll on the accused’s phone, there were:
·Thousands of photos but only two of the complainant.
In relation to SMS and MMS, there were:
·three photos of the complainant which had been sent from the accused to himself.
In the Apple Notes section of the accused’s mobile phone, there were
·photos of the complainant, many of which had had filters applied to them.
In the ‘recently deleted’ folder from Apple Notes on the accused’s mobile phone, there were
·photos of the complainant, including three photos matching those described by the complainant that she took using the mirror in her bedroom. The photos were deleted over the period from approximately 30 December 2016 to 9 January 2017.
The defence case
The accused gave evidence that on the occasion when the complainant showed him how to use filters on photos in Snapchat, he did not put his details into Snapchat on her phone, but rather she put her details into Snapchat on his phone.
He had 20 contacts on Snapchat. He was not active in sending out ‘snaps’ or ‘chats’ via Snapchat. He received snapchats from the complainant and snaps of semi-naked women and sexual memes from truck drivers.
Either he or AB set up the ‘FMEO’ folder on his Snapchat, but he did not know when. He was not sure why he set it up but denied setting it up to store photos that he did not want anybody else to see. He did use the folder at a later stage to hide the adult material sent by other truck drivers from his son who used his phone.
He started receiving snapchats from AB not long after she put her contact in his phone. He replied to her but it was ‘nowhere near what she was sending to him’. The contact started off one per day, but by February they were coming ‘thick and fast and then waned off’. He received regular snapchats - somewhere between three and six - from AB when he was driving the truck in the early hours of the morning.
He screenshotted ‘snaps’ that came in while he was driving his truck. This was done to allow him to look at the photos in his downtime when he had stopped driving. He also had to do something to get it off the front screen so it did not light up. He could not leave the notification because it was glowing and it irritated him. It was more distracting to have the phone light up than it was to screenshot the photos while he was driving. He conceded that text messages had the same glow. He would screenshot photos received day or night as it was a habit.
He denied any nefarious usage of the photos. He would screenshot the photos and then save them into either the camera roll or the FMEO folder on Snapchat. When he was driving he did not purposefully select either option, it was simply what his finger pressed when he touched the screen. Whatever snap came in, he treated it the same way. He would ‘pretty much’ just leave the screenshots in the FMEO folder.
The accused gave evidence that AB showed him how to make photo collages on his phone in Apple Notes. He asked her how to make them after she sent him a collage of herself. He wanted to learn how to do this as he wanted to create collages of trucks. She demonstrated how to do this with images of herself. She asked him to use photos of herself when she did this. He had a couple of goes at doing it but was not very good at it so gave up. There were no collages of trucks on his phone when seized by police.
The accused’s wife gave evidence that the FMEO folder with passcode was set up on the night the complainant and her brother were showing the accused how to use Snapchat. As a family, they kept their phones in the kitchen. She had access to the accused’s phone, which was kept in the kitchen, because she helped him with his trucking work. She set up his phone and knew his passcodes, including his passcode to the ‘FMEO’ folder. She said snapchats from the complainant were constant. She saw photos of the complainant in the FMEO folder along with photos of scantily dressed females. She was not concerned and did not discuss any of them with the accused. The photos of the complainant were just filtered photos of her face. She would also view his Apple Notes as the accused would write notes relating to their business in there.
Discussion
The results of the analysis of the accused’s mobile phone raises suspicion about the nature of his interest in the complainant. That suspicion arises from the number of photos of the complainant in the FMEO folder, the accused’s transfer of photos of the complainant to and from Apple Notes, the accused making collages from the photos and the accused’s explanations about those matters.
I did not find the accused’s evidence about how the photos of the complainant came to be in the FMEO folder to be credible. For the prosecution, Mr Mulvihill submitted there are nine reasons why his explanation about screenshotting the photos when driving his truck lacked credibility. I agree with most of those reasons.
Mr Mulvilhill submitted that when the accused’s phone was seized by police, the notification setting for Snapchat had been disabled. That meant the accused would not receive notifications of snaps from the complainant which would ‘illuminate’. The accused gave evidence he had no recollection of changing the settings for Snapchat in that way. There is no evidence about how long the notifications setting had been turned off, but in any event, I consider that would have been an obvious and safe way of dealing with what he said was the distraction of receiving notifications whilst driving.
Mr Mulvihill submitted that the process of saving a screenshot of a snap into the folder is lengthy and requires a series of steps as demonstrated by the investigating officer. There was considerable dispute about that process at trial. The accused suggested it was not a complicated series of steps at all. It may well be that there was a difference between his method and the method demonstrated by the investigating officer. I do not think it matters much. The fact is, there was a manual process involved for a snap to get into the FMEO folder, that is, a process that required his deliberate intervention.
Mr Mulvilhill submitted that what the accused suggested he did was more cumbersome and distracting than waiting for brief illumination of his screen to disappear. I agree. It would make more sense for the accused to leave the snap and view it at a later stage when he was not driving (or turn the notifications off in settings). The accused gave evidence that, on his process for saving the snap, the saving of it into the FMEO folder or the general camera roll was essentially random. I agree with Mr Mulvilhill that that does not seem likely. There were only two photos of the complainant in the camera roll. All the rest were in the FMEO folder. As a matter of common sense, that does not fit with ‘chance’. It suggests a deliberate placing of the photos into the FMEO folder.
Adding to the suspicion about the nature of the accused’s interest in the complainant is the evidence that he transferred some of those photos into Apple Notes and made collages of photos of the complainant. The complainant firmly denied knowing how to use Apple Notes for that purpose and said she did not show the accused. At the same time, I do not think the accused was sufficiently savvy with technology to work it out for himself. Mr Vadasz submitted that the accused’s evidence that the complainant did some collages and he did others is supported, as the accused said, by the appearance of some of the collages as being done well (those done by the complainant) and not so well (those done by the accused). I agree there is a difference between the quality of the collages.
I do not know where the truth lies on that topic but again, it does not matter much. The suspicion is heightened more because of the fact the accused created collages of photos of the complainant, rather than how he found out how to do it. I accept his evidence that there was a lot of downtime in his job when the trucks would be queued up for hours and it gave him something to do. He said he might have also made the collages over the period ending in 2016 and starting 2017 when he was ‘sitting down the beach doing nothing’ and ‘mucking around’. However, his explanation for using photos of the complainant for collages, rather than other photos, was not credible. If his purpose was to be able to put photos of trucks into a collage, then it makes more sense for him to have practised using those photos.
The issue is whether the evidence establishes a sexual interest in the complainant. I agree with Mr Mulvihill to the extent that the number of photos, the transferring of photos into Apple Notes and the making of collages with the photos is demonstrative of an obsession with the complainant. However, I am not sure that it was an obsession of a sexual nature. Almost all of the photos were focused on the complainant’s face with a comical/childish filter applied. They were not of a sexual nature.

Mr Mulvihill relied upon two of the photos of the complainant which had text across them (on one was ‘my hot chick xx’ and on the other was ‘take me George you hunk of a man’) as a further indication of the accused’s sexual interest. The accused denied inserting the text on either of them. There was no evidence from the complainant about the text on the first photo. The complainant said she sent the second photo and the accused wrote the text and sent it back. The accused gave evidence the complainant’s evidence makes no sense because it was a sentence directed to him, not from him. The evidence on this aspect is evenly balanced and I am unable to resolve whether the complainant or the accused wrote the text on one or both of those photos. As there is no evidence from the complainant denying she wrote the text on the first photo, I am not prepared to make a finding that the accused wrote it. The accused made a reasonable point about the text on the second photo.
I do not reason from the existence of the photos of the semi naked women and sexual memes in the FMEO folder that the accused is a bad person or the type of person who would commit these offences. Nor do I reason that because there were other photos of a sexual nature in the FMEO folder that it follows the accused must have a sexual interest in the complainant whose photos were also in that folder. On the prosecution case, the relevance of the existence of those other photos in the folder was to (i) prove the total content of the folder with a view to demonstrating what other types of photos were not in the folder, such as photos of the accused’s wife, son or trucks; and (ii) show it was used by the accused as a secretive folder. All of the photos in the FMEO folder were admissible pursuant to s34P(2)(a). The prejudicial effect of the other photos was minimised because this was not a jury trial. The accused admitted that he ended up using the FMEO folder to make sure that when his son used his phone, he did not see the photos of the semi-naked women and sexual memes. He gave evidence, however, that his wife had access to his phone, including the FMEO folder.
I accept the accused’s wife’s evidence that she had access to the accused’s phone and knew his passcode to the FMEO folder, which was his birthdate (without the year) and also happened to be Dick Johnson’s racing car numbers (the accused was a car racing fan). I found her evidence to be credible. I did not think she was barracking. Because of the setting for the complainant’s evidence, the accused’s wife was in a position to give evidence on relevant aspects of the prosecution case.
The investigating officer was able to guess the passcode to the accused’s FMEO folder. It was not much of a secret. I do not think the accused was using that folder to keep photographs hidden from his wife. That tends to dilute the prosecution submission that the location of the complainant’s photos in FMEO folder was indicative of a need to hide what was a sexual interest in the complainant.
I find that the complainant was a prolific user of Snapchat. She had almost 300 contacts for Snapchat. She agreed she would be up late at night sending snapchats; she said there were other kids who were playing video games who did not sleep and she would send snapchats to a lot of contacts at 1 or 2am. I accept the evidence of the accused’s wife that snaps from the complainant were constant; ‘there was always a message going off that there’s another photo’. She knew AB was playing in Snapchat, ‘like the streaks and trophies’. I think the number of photos on the accused’s phone at the time it was seized was a small percentage of the total photos the complainant had sent to him over the total period of eight months or so. The complainant also admitted sending photos to multiple contacts at the one time. She did not send all the photos solely for the accused, nor do I consider that he solicited them.
The existence on the accused’s mobile phone of the three photos taken by the complainant using a mirror in her bedroom supports the complainant’s evidence that she took those photos and sent them to the accused. The accused gave evidence the complainant told him she had gone shopping for new clothes and then those photos appeared. Mr Mulvihill submitted it would be unlikely for the complainant, who was self-conscious about her body image and lacked confidence, to send such photos without being asked. There is some weight in that submission, however, it does not necessarily follow that the accused asked her for ‘boob shots’ or ‘arse shots’. The photos she sent do not come within either of those categories.
I am unable to draw the inference sought by the prosecution, namely, that this evidence establishes the accused had a sexual interest in the complainant. I find he had an interest in the complainant and it was more than would be expected from a man whose son played soccer in the same local club as the complainant and who was part of group of families, including the complainant’s family, who socialised together. However, I am cautious because the complainant’s father was often working interstate and there is no doubt the complainant and the accused got on very well together and had a close relationship. The complainant’s father gave evidence he witnessed the accused give the complainant a hug and tell her she was like the daughter he never had. My other hesitation in drawing the inference of a sexual interest is because of my findings about the allegations made by the complainant of direct sexual contact from the accused. I have doubt about the reliability of the complainant’s evidence about the setting for the four occasions when she says she was indecently assaulted by the accused, as discussed below.
Evidence of sexual interest: Ms Heather McKaskill
The prosecution called Ms Heather McKaskill who gave evidence about a conversation she had with the accused in which he admitted his sexual interest in the complainant. She said the conversation occurred at her house in March/April 2017 when the accused showed her photos of the complainant and said he wanted to ‘pop her cherry’. The prosecution relied upon this as evidence of the accused’s escalating sexual interest in the complainant. It was submitted the timing of his conversation with Ms McKaskill fitted in with the complainant’s evidence that the accused wanted her to sneak out (see paragraphs [126] – [128]). The prosecution case is that he wanted her to sneak out to have sex with him.
The prosecution submitted Ms McKaskill should be believed because she had esoteric knowledge about certain matters concerning the complainant, who was someone she did not know and had never met, such that the conversation must have occurred as she described.
Ms McKaskill gave evidence that she met the accused in 2016 through her ex-partner, who was also a truck driver and shared a truck depot with the accused. By the end of March 2017, she had separated from her partner. From then to the beginning of June the accused called into her house for coffee in the mid-afternoon a couple of times per week.
At the end of April or beginning of May 2017 the accused visited her house for a coffee and showed her about six to 10 photos of a young girl. He stood next to her and scrolled through them. She did not know where they were stored on his phone. She asked him what he was doing with the photos and told him he had to be careful. The accused replied that there was no need to worry because they were kept on a secret app so nobody would be able to find them. She described the photos as a ‘of a young fair-haired girl, light-blonde, light browney-colour mousey hair, solid build…she was dressed in, looked like a bikini top, some side visions of her, side of her face and there was a couple there exposing her breasts. There was one with either bikini pants or underwear, sort of up her buttocks’. The photos looked like selfies. He mentioned the complainant’s name, said she was only 15 and that she had sent the photos to him. He told her the girl worked at a local bakery and he visited her there. He told her that they met through the same soccer club where his son played.
There are a number of reasons why I am unable to rely upon the evidence of Ms McKaskill.
First, she has a long criminal history of dishonesty offending.
Second, she contradicted herself in her own evidence. For example, initially she said the accused had not spoken about the complainant until he showed her the photos. However, in cross-examination, she said the accused spoke regularly about AB. He said there was a young lady at the soccer club that he believed was flirting with him. He showed her the photos about a week later. Another example is that she gave evidence in examination-in-chief that the conversation upset her so she spoke to her parole officer who told her to go to the police station. She gave a statement to the police about a month later, in June 2017. However, in cross-examination she said that she saw her parole officer on Thursday and then went to the police on the Saturday. She denied there was a month between seeing the photos and going to the police.
Third, she has made prior inconsistent statements. For example, in her evidence she said she did not tell the accused to get rid of the photos but she agreed at the previous trial in October 2018, she said she did tell him to get rid of the photos. Her explanation was that she must have said it to him if she said that in the last trial. In a further example, she denied having an affair with the accused. However, during a proofing session with a prosecutor and the investigating officer, she stated that she had an affair with the accused which was ongoing at the time she was shown the photos. The prior statements are not evidence of the truth of what was asserted. They are admissible for the purpose of assessing the credibility and reliability of the evidence she gave in court.
Fourth, she denied asking the accused for certain types of photographs to put on her ‘Truckie’s wives and girlfriends’ Facebook page. She denied having a Facebook page with photos of semi-naked women. The defence tendered pages from her Facebook page which had those sorts of photos on them. Her attempts to distance herself from posting those photos on Facebook were not convincing.
Fifth, when she spoke to police on 18 June 2018, she made no mention of the accused saying he wanted to be the one to ‘pop her cherry’. She said she completely forgot about that detail. She could only explain that by the fact she does not like speaking to the police. I think that is a very significant matter to leave out and raises doubt about whether it was in fact said by the accused.
Sixth, she denied sending the accused a video of herself masturbating. The E-crime extract from the accused’s telephone included a video showing Ms McKaskill masturbating.
Seventh, she gave evidence in cross-examination that she had spoken to people in the soccer club about the accused and the complainant. She said that was a few months before he showed her the photos. Not only does this further confuse her evidence about the timing of the occasion when the accused showed her the photographs, it robs her supposed knowledge of the complainant as having an esoteric quality.
The accused gave evidence he only went to Ms McKaskill’s house twice. She accessed his phone while they were at the truck depot. She asked the accused for adult material to post on a “Truckers’ Wives and Girlfriends” Facebook page. He showed her his ‘FMEO’ folder. He also had those photographs on other parts of his phone, but he did not remember where. She saw photos of the complainant and asked who it was. He told her it was AB. He denied telling her that AB was attracted to him or saying that he wanted to ‘pop her cherry’. He said he had an affair with Ms McKaskill during which time she sent him a video of herself masturbating. The relationship ended around April or May 2017. He blocked her after that because she kept contacting his wife and himself.
The accused’s wife gave evidence that she was contacted by Ms McKaskill who also placed her into the “Truckers’ Wives and Girlfriends” page. She also received direct communication from her asking about Mr Catalano’s welfare and asking if Mrs Catalano wanted to meet her for a coffee. She did not meet up with her. She blocked her about eight days after Easter Monday 2017. She became aware of the affair before the prior trial in October 2018.
For the reasons set out above, including the evidence of the accused and the accused’s wife, I do not place any reliance on the evidence of Ms McKaskill. In addition, her description of the photos of the complainant that she claims the accused showed her does not support the evidence of the complainant who said she did not send the accused photographs of herself wearing underwear or of her naked breasts.
The only use I make of Ms McKaskill’s evidence is that she did in fact make a report to the police about the accused on 18 June 2017 which then led to the investigation which resulted in these charges. To that extent, she may well have seen photos of the complainant whilst browsing through the accused’s mobile phone and been told her name, but I do not rely on her account of her conversation with the accused.
Summary of findings
Upon hearing the complainant giving her evidence, I found her to be an impressive and credible witness. However, her evidence does not stand alone. Her evidence needs to be considered with all the other evidence.
The defence case on counts two, three and four was that there was effectively no opportunity for the accused to commit the charged and uncharged acts. Apart from his evidence about the photos of the complainant on his phone, I found the accused’s evidence to be sound and supported by evidence of other defence witnesses, all of whom were credible. I am unable to reject the defence case on those three counts and the uncharged occasion. I think it unlikely the accused had the opportunity to commit any of the four acts. That finding has an impact upon the credibility and reliability of the complainant’s evidence such that I am unable to be satisfied beyond reasonable doubt, based on her evidence alone, that the accused sent her the photos as alleged in count 1.
Uncharged act – Christmas lights 2016
There was no dispute that the accused drove the complainant and other children (his son and the three children from the T family) to see the Christmas lights sometime in December 2016. There was a dispute about what happened when they arrived back to the T’s home afterwards, which is when the uncharged conduct is alleged to have occurred.
Evidence of the complainant
The complainant gave evidence that when they returned to the T’s house at about 9.00pm, everyone got out of the car to go back inside but she went back to the car to get her jumper. The accused was still standing around the car. After she got her jumper, the accused started talking to her. They stood and talked but then he held her hand and took her to the side of the house where it was darker and secluded. He hugged her around the waist/hips and then tried to kiss her on the lips. She kept turning her head and moving it down to avoid being kissed. He slightly got her lips and then stopped. She left and went back inside. The accused stayed outside.
The defence case
The accused gave evidence that when they arrived back at the house after the Christmas lights, all the children got out the car together. He assumed the complainant went straight in with the other children. He put the car seats back up and then walked to the house. One of the T children came out with his scooter and showed him a trick. He denied kissing or hugging the complainant.
The accused’s wife gave evidence that she was inside the house when her son, the complainant and another child returned from the Christmas lights around 10.00pm or 11.00pm. The children came bursting through the door. The accused and another child came in a minute or two later. They took the complainant home.
Mrs KT, who lived at the house, gave evidence that she was in the house when the children returned from seeing the Christmas lights with the accused. When her daughter and the complainant came up the front deck, the accused’s son tried to cut across the decking to get to the front door first, but slipped and fell. They were all racing. She remembers the girls coming in because they pushed open the screen door and it slammed against the brick wall which had just been freshly painted and she told them off. The accused’s son hobbled inside after the girls. The accused came in after a bit with her son who had been showing him tricks on his scooter.
Discussion
The complainant’s evidence was that the accused took the opportunity of the complainant returning to the car to try to kiss her. However, the reason she gave for having to return to the car makes it difficult to accept her allegation. She said she returned to the car because she was picked up that afternoon by the accused and ST (one of the children from the T family) and driven to the T’s house. She was unsure of how she was getting home, that is, whether she was going home with the accused’s family or not. Because of that uncertainty, she went back to the car to get her jumper.
Both the accused and his wife gave evidence they did not give the complainant a lift to the T’s house. The complainant’s mother gave evidence she drove her daughter to the T home that day. The complainant’s mother stayed there for a little while and then went home. She said the complainant and ST were swimming in the pool for most of the time that she was there. The accused, his wife and the complainant’s mother gave evidence the accused’s family gave the complainant a lift home that night.
I find the complainant was wrong when she said the accused and ST picked her up from her home and took her to the T household. That causes me some doubt about her explanation for going back to the accused’s car to get her jumper and what then followed.
Further, the accused, his wife and Mrs KT gave evidence about the behaviour of the children when they returned from seeing the Christmas lights. They were criticised by the prosecution for being able to remember that sort of detail. Both the accused’s wife and Mrs KT referred to the children as either bursting through the door or racing to the door. It was a special event (the children being taken to see the Christmas lights) and I do not find it difficult to accept that they might remember that sort of detail. Additionally, Mrs KT gave evidence that she remembers what happened because when the girls came in they slammed the screen door against a freshly painted brick wall. The prosecution has not disproved their evidence. I am not satisfied beyond reasonable doubt about the complainant’s version of events. I am unable to find the uncharged act proved and have not considered it in the assessment of the evidence for the charged occasions.
Count 2 – New Year’s Eve 2016
There is no dispute that the complainant and her family went to the accused’s beach shack at Nene Valley for New Year’s Eve 2016.
Prosecution case
The complainant gave evidence that in the late afternoon, the children were in and out of the house playing different types of games. They ate inside later that evening. As it got darker, one of the children was riding his scooter outside. Bingo was being played inside.
At about 8.00pm or 9.00pm when it was getting dark, the accused sent her a message saying ‘meet me out the front in a few minutes. 10 – 15 minutes’. She was not sure if it was a Snapchat message or a text message. She was inside with the children in the lounge area when she received the message. She did not know where the accused was when the message was sent. She still had a little bit of data on her mobile phone when she arrived but it ran out later that night. She could not remember exactly, but she must have had data when she received the message from the accused unless she had loaded it and then it ran out or she had used a hot spot. She did not reply to the message because she had run out of data.

She gave evidence she went out the sliding back door of the beach house to meet the accused. She met the child who was riding his scooter. The other children had gone back inside. The child went for a ride down the road on his scooter. The accused came out from the side door and started talking to her. He grabbed her hand and led her across the front of the house and down the side where there was a fence to an area which was quite narrow and secluded. He hugged her around the waist or over the shoulders or a mixture of both. He began to kiss her on the lips continuously. He moved his hands from her waist onto her bottom and her breasts repeatedly with both hands whilst kissing her. She had her hands around his waist. He took her hand and pressed it against his penis. She was not able to move her hand away. He was still kissing her. When he stopped, he said things like ‘I missed you’. When they could hear the scooter coming back, he gave her a kiss and a hug and then walked off down the side of the house. She walked out to the road side and met the child who had been on his scooter and started talking to him.
Exhibit photographs were tendered which showed the area at day time and during the night time. The complainant gave evidence that the light at the time of this alleged indecent assault was similar to that in the photographs taken of the shack at night time. There was not much projected light as most of the bedrooms were not occupied. The only lighting was from the front side in the lounge room but there was hardly any lighting at the front of the house where she was.
The complainant’s father gave evidence that during the evening, they played bingo around a table that was set up in the main big front area looking out on to the beach up until about midnight. The accused was the bingo caller. They had some breaks for food and just to talk. It was not straight game after game. They left the beach house at about 1am in the morning.
The complainant’s mother was not questioned about New Year’s Eve by the prosecution. During cross-examination she said that she did not recall breaks in the bingo game. She said they played bingo and some sort of card game.
Defence case
The defence case was that the indecent assault could not have occurred for two reasons. First, the accused could not have sent the message to ask the complainant to meet him outside as there was no telephone coverage or internet access in the house. Second, the accused was the bingo caller for the whole evening and did not go outside between 9:00 and 9:30pm when the indecent assault is alleged to have occurred.
The accused, his wife, Mr AA and Mrs KT, who were present at the shack for all or part of New Year’s Eve 2016, gave evidence to support this defence.
Phone coverage
The accused denied sending a message to the complainant asking her to meet him outside. He said that in 2016 it was not possible to send texts inside or outside the house. There was no internet access in the house. You could only get a signal by going out to the beach by the water.
The accused’s wife gave evidence there was no telephone coverage, internet or wifi inside the house. You could only make a phone call down the end of the backyard or on the beach. The accused did not go down the end of the backyard that night. In cross-examination, it was put to her that she posted on Facebook from inside the house. She denied this. The prosecution tendered Facebook posts from her Facebook page. She said that she had posted them from the end of the backyard or the beach where coverage was available.
The accused called Mr AA, who was present during the afternoon. He gave evidence that he could not get hold of anyone via telephone because there was no reception at Nene Valley. He tried more than once at the house and at a playground near the house. He could not use his phone next to the beach at the end of the backyard. He did not go to the beach itself. He did not remember if he asked anyone if they could get reception.
Mrs KT gave evidence that she tried to send her mother a New Year’s Eve text message, but the message did not send. She did not bother trying to send the message again. She said she could only get coverage down towards the end of the backyard near the beach. The accused and his wife had told her children that they had to go down to the end of the backyard to get coverage.
The accused’s sister was not present at the shack on New Year’s Eve 2016 but gave evidence that there was no telephone coverage inside the shack at Nene Valley. You had to go out the back of the house and to the end of the grass to pick up range to make a phone call.
Bingo
The accused gave evidence he was the bingo caller for the evening until just before midnight. The group almost missed the countdown midnight due to the bingo games. He went out the back by the deck to have three or four smoke breaks in between the games. He remained in view of the others whenever he did this. The breaks did not last longer than five minutes. He denied being outside between 9.00pm and 9.30pm.
The accused’s wife gave evidence they played bingo the entire evening. The complainant congregated more with the adults than the children. The accused went to the sliding door every now and then to smoke with Mr AT. The accused did not leave the table except to have a cigarette.
Mrs KT said that they played bingo the whole night. The accused was the bingo caller. During the evening, her husband (Mr AT) and the accused would smoke together outside the sliding door. The bingo game was continuous apart from the cigarette breaks. The toilet breaks occurred when the cigarette breaks occurred. The breaks were up to 10 minutes. The only time she lost eyesight of the accused was when she went to the bathroom or to check on her youngest daughter in one of the bedrooms.
Lighting
The accused denied the exhibit photographs accurately depicted the level of lighting around the house at the time of the alleged indecent assault. He said the lighting in the exhibit photographs is darker than it actually was. There are floodlights located around the outside of the house.
The accused’s wife also denied the exhibit photographs accurately depicted the level of lighting. The street light illuminated the side of the house. The lights in the bedrooms down that side of the house were on that evening and cast light outside the house.
The accused’s sister gave evidence that the stobie pole illuminated the side of the house.
Discussion
As with the complainant’s evidence concerning the setting for the uncharged act when the accused took the children to see the Christmas lights, there remains doubt on the evidence about the setting in which this act was alleged by the complainant to have occurred.
The evidence from the accused, his wife, the accused’s sister, Mr AA and Mrs KT is that it was not possible for the complainant to have received a text from the accused when she was inside the shack. The prosecution has not presented evidence which satisfies me that their evidence was not credible. I found their evidence to be credible.
The prosecution sought to lead rebuttal evidence from the complainant’s mother on the topic of phone coverage. I refused that application. The prosecution was on notice about lack of phone reception at the shack from October 2018 when the matter first proceeded to trial. Mr Mulvihill acknowledged that the prosecution was on notice but submitted that it had not featured as an issue at the prior trial.
At the end of the defence case the prosecution re-opened its case on the application of Mr Vadasz in order for him to comply with the rule in Brown v Dunn for three of the prosecution witnesses on various aspects of the defence case, including this one. The prosecution did not then apply to re-open its own case on this issue of the mobile phone coverage at the shack; nor did the prosecution re-examine the complainant who gave evidence on this topic when she was further cross-examined on Mr Vadasz’s application; nor did the prosecution seek to lead the evidence from the complainant’s mother after the complainant had given that evidence. Mr Mulvihill submitted that even if Mr Vadasz had cross examined the complainant at the outset and put his case that there was no phone reception, he would not have then sought to lead the evidence he now wanted to lead. In my view, the evidence would have been admissible at that stage. It is not admissible as rebuttal evidence. The prosecution had ample time to gather evidence on this topic. For example, the phone records of the people at the shack that night could have been obtained after the last trial to investigate whether there was activity on their mobile phones.
In any event, I did not find the complainant’s evidence to be persuasive on this topic. Her evidence about running out of data was confused. She said she must have had data when the message came in but then said she did not respond to the message because she had no data by that stage.
When it was put to her that she could not have received a message because the phone could not work inside the house she endeavoured to bolster her evidence by saying that she believed her mother was on her phone that night as well as her brother. She thinks her mother put up a post on Facebook saying Happy New Year and her mother was replying to comments about the post. She said she saw that because her mother was sitting near her, although not next to her. Then she said her mother might have been across the table. Then she said she might have seen what her mother was posting or writing on her phone when she got up during the bingo game to get a drink or to go and get someone else a drink or to see the other kids.
The complainant’s uncertainty about her phone that evening does not ring true given the evidence that she was a prolific user of Snapchat.
There is also undisputed evidence that the accused was calling the bingo that evening inside the house. The complainant gave evidence that the bingo game was proceeding at that time and they were coming close to the end of it. It is difficult to reconcile that evidence with her evidence that she did not know where the accused was when she received the message because if she received it during the bingo game (which is when she said she received it), he must have been there calling the bingo. Further, it does not make sense that he sent the message when he was calling bingo.
I find that there were some breaks during the bingo which went from about 7.30pm or 8.00pm that night through to almost midnight, but there were no breaks long enough for the alleged indecent assault to have occurred and it is likely the accused smoked outside with Mr AT during the breaks.
The evidence about the lighting down the side of the house does not take the matter very far. Light or dark, it would have been very risky for the accused to do what he is alleged to have done on New Year’s Eve when there were other children going in and out of the house. It is also the case that one of the children was outside on his scooter.
I am not satisfied beyond reasonable doubt that the accused committed the act as alleged by the complainant.
Count 3 – McDonald’s in early 2017
The complainant gave evidence there were two occasions when she was invited to the speedway by the accused. On the first occasion, she went with the accused and his son. On the second occasion, she went with the accused, his son and his son’s friend. The first time was at the start of the year 2017. The second time was about six to eight weeks later.
On the second occasion, the accused messaged the complainant asking if she wanted to go to the speedway. He then messaged her mother, asking if it was okay for her to go along with him and the others. Her mother said yes.
In the late afternoon, she was picked up by the accused who was with his son and his son’s friend. She sat in the front passenger seat.
They watched the sprint cars. Later on, in the evening, it started to rain. When the rain did not look as though it was going to stop, they decided to leave. The accused was driving, the complainant was in the front passenger seat and the accused’s son and his friend were on their iPads in the back seat. They went to McDonald’s. The two boys in the back decided to quickly run in. As the complainant was preparing to do the same, the accused placed his hand on hers. She turned around to see what he was after. He leaned in and gave her a kiss on the lips that lasted for a few seconds. She then got out of the car and went inside. The accused followed. She just had a drink because she did not feel very well. The accused drove her home.
Defence case
The accused gave evidence that he attended the Speedway twice with the complainant. On the second occasion, they went with his son and his son’s friend, Mr HE. They left early because of rain and went to McDonald’s. It was raining when they got there. They all exited the car at the same time. He was never alone in the car with the complainant. He did not kiss her in the car.
Mr HE gave evidence that he attended the speedway with the accused, the accused’s son and the complainant. They left the speedway early due to the rain and went to McDonald’s. He remembered this occasion because it was rare for him to go to McDonald’s. His parents did not allow it for health reasons. They all got out of the car and walked to the entrance of McDonald’s together. He has a clear memory of waiting for the accused and the complainant to get out of the car before walking in together. He waited a few seconds. It was raining. He did not remember which direction he was looking when he first stepped out of the car.
Discussion
On the complainant’s account, this was a brazen act by the accused. His son and his son’s friend had just got out of the car. For the prosecution, Mr Mulvihill submitted that the fact that the conduct was brazen and opportunistic does not mean it did not happen. He submitted the evidence from Mr HE did not exclude the opportunity for the accused to have committed the offence. The complainant said the kiss only lasted a few seconds.
I do not agree with the prosecution submission. I consider the evidence of Mr HE raises doubt about the complainant’s version of events which has not been excluded by the prosecution. The fact that the complainant is smiling in a photograph which was taken that evening at McDonald’s does not assist me one way or the other. Mr HE gave evidence that he had cause to remember this evening because he rarely went to McDonalds with his own family. This was a special occasion for him. I am not satisfied beyond reasonable doubt that the accused committed the act as alleged by the complainant.
Count 4 – Easter 2017
The complainant gave evidence that in March or April 2017, there was a get together of various families at the accused’s house. The T family were there. One of the families was leaving, so some people went out to say goodbye. People then started going back inside. The accused started talking to the complainant. When everyone else had gone back inside, the accused held the complainant’s hand and pulled her down the side of the house near the shed.
He started kissing her on the lips and hugging her around the waist with both of his hands. He moved his hands over her breasts and bottom as he continued to kiss her. She had her hands around his waist. He placed her hand on his penis and kept kissing her. He then asked her if she loved him, or whether it was just for attention. She did not answer. He asked her a few more times, but she still did not answer. She looked at the ground and did not want to acknowledge anything. She tried to move away and go back to the group. She did not reply to him. It was very secluded and she did not feel safe or want to be there. He pulled her back in close to him so that she could not go. He gave her a kiss and a hug and walked off to where everyone else was.
She stayed there and did not feel well. She was quite emotional and had a stomach ache. She stayed there until her dad came looking for her. Her dad found her out the front, standing there. He started talking to her and they went inside together, packed up and left quite soon after.
The complainant’s father gave evidence that he and his family attended an Easter get-together at the accused’s house on the Saturday of Easter 2017. The T family were there. The T family had parked their caravan in the driveway. The gathering was held outside. He did not recall that the accused had been in a motor vehicle accident earlier that week. He saw the accused sitting, standing, talking and moving around. When they went to leave, they could not find AB. She had been sick and virtually stayed in the one spot all night. He went to look for her outside but could not find her. He came back and spoke to his wife. He then went outside again but still did not find her. He was on the back decking when AB came in behind him through the back, sliding doors. He said the accused came in the front door around the same time AB came through the back. He had been looking for her for about five minutes.
The complainant’s mother gave evidence that her family, another family (the A family) and Mr AA were invited to a get‑together at the accused’s house over Easter. She denied they went with the purpose of seeing how the accused was after his accident. The T family were not present. They spent the evening both on the deck outside and inside the house. They went to leave around 10.00pm, but could not find AB. Her husband went inside to look for her, then came back outside and went around the house. He could not find her. He then went to the other side of the house to look for her. About a minute later the accused walked onto the deck and said in a jokey manner, ‘it’s alright, it’s alright, it’s alright, I found her but I don’t think she’s very happy with me’. A short time later, AB came onto the deck and sat next to her. The family left shortly after.
She knew that the accused had been in a motor vehicle accident. She denied that he was moving slowly that night. He got up the decking steps quite easily; he did not appear to be limping.
Defence case
The accused gave evidence that the complainant’s family, Mr AA and the A family came over to his house on the Saturday of Easter 2017. The T family were not there. He gave evidence that he had been in a motor vehicle accident four days prior to this. He did not realise he was injured until after the accident. During the Saturday night he was in pain and could barely move. He sat at the table for the entire night. He did not go out the front with AB and did not indecently touch her.
The accused’s wife gave evidence that the family had plans with the complainant’s family, Mr AA and the A family on the day of the accused’s motor vehicle accident. After the accused’s accident, the complainant’s mother insisted on visiting to see how he was. The T family was not there. It was a cold night; the gathering was held inside. She said that the accused was taking Nurofen for his pain. He remained seated the entire night. There was no period of time that the accused was gone from the table. Mr AA was the first to leave. She walked him to the front door and then he walked himself to the car. Everyone else remained sitting at the table. At no time was AB missing. At no time did AB’s father go looking for AB.
The defence also called Mr AA who confirmed that when he left, the only person to see him to the front door was the accused’s wife.
Discussion
As with her other allegations, the complainant’s evidence about the setting for this event is problematic. She gave evidence that the accused took the opportunity to indecently assault her in the context of one of the families having just left the gathering.

The complainant and her father gave evidence that the T family were at the gathering that night. I think they are wrong about that. Mrs KT gave evidence that her family was interstate for Easter that year. The evidence from the accused and his wife was that the complainant’s family, Mr AA and the A family were the only ones there. I have no reason to doubt Mr AA’s evidence that the only person who came out when he left was the accused’s wife. If the A family then left, the complainant’s evidence of the lead up to the indecent assault makes no sense because then only her family remained at the house.
I do not consider the complainant’s father’s memory is reliable regarding this occasion. It is a real possibility that he is conflating this occasion with another. He was incorrect about the people who were present as well as the presence of a caravan. There was evidence that a caravan was there on another earlier occasion. The prosecution has not excluded the possibility he found the complainant outside on another occasion.
It is also possible the accused was in pain that night, even though he did not notice any pain at the time of the accident some days earlier. It is also possible the gathering was a relatively brief one to check on his wellbeing, rather than a festive one as alleged by the prosecution.
The prosecution has not excluded the defence case as a reasonable possibility. This offence has not been proved beyond reasonable doubt.
Count 1 – photos sent via Snapchat
In light of the doubts arising from the defence case in relation to counts 2, 3 and 4, I am unable to rely solely upon the complainant’s evidence that the accused sent her photos of his penis. There is no evidence to support her allegation. The accused denied sending such photos. I do not find the alleged act proved to the standard of beyond reasonable doubt.
Sneaking out
AB gave evidence that the accused asked her to sneak out and meet him three or four times. He asked her via Snapchat. She said that he might ask her a couple of days in advance. She recalled a specific event in March 2017. She was packing to go to Adelaide for a basketball carnival. The accused asked her to sneak out and meet him late at night. She said she went along with it at first as she thought it would be easier to get out of instead of flat out saying no. She then told him that she did not want to risk it. He said that he was risking more and that he could go to jail for this. He said he would drive to her house, she could walk down and meet him and then they would then drive off to be alone. She did not sneak out and meet him.
The accused denied asking AB to sneak out to meet him.
For the same reason as stated above in relation to count 1, I am unable to rely upon this evidence and have not used it in consideration of the charged allegations.
Complaint – 19 June 2017
The prosecution led evidence of a complaint made by AB to her mother on 19 June 2017 before she spoke to the police. The complainant’s mother gave evidence AB told her she sent photos to the accused. She sent the accused photos and he touched her. She indicated having been touched around her breast area and her lower abdominal area. The complainant gave evidence she did not mention the accused during the conversation with her mother.
The evidence is not evidence of the truth of what was alleged. It was admitted to inform me as to how the allegation first came to light and as evidence of the degree of consistency of conduct of AB. I note there may be varied reasons why an alleged victim of a sexual offence makes a complaint of an offence at a particular time or to a particular person.
The evidence is only admissible in regard to counts 2, 3 and 4. The complainant and her mother contradict each other about what was said. I do not consider it shows consistency on the part of AB. I have not made any use of this evidence.
Decision
I find the accused not guilty of counts 1, 2, 3 and 4.