R v CD
[2023] SADC 96
•23 June 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CD
Criminal Trial by Judge Alone
[2023] SADC 96
Reasons for the Verdict of her Honour Judge Davison
23 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Charged with two counts of aggravated indecent assault against the same complainant. The offences are alleged to have occurred on one occasion in April 2018. The complainant was present at a wedding with her family members. At the end of the festivities, most of the guests had left. The accused called the complainant into an area in the alfresco space near the shed. He then knelt down, lifted up her shirt and placed his mouth over her nipples. This is the conduct giving rise to Count 1 on the Information. Very quickly thereafter, he touched the complainant's vagina over the top of her clothing. This is Count 2 on the Information.
The accused did not give evidence, but called his wife to give evidence.
The charges are proved beyond reasonable doubt. Verdict of guilty of both counts.
Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA), referred to.
R v Baltensperger (2004) 90 SASR 129 [55], applied.
R v CD
[2023] SADC 96Introduction
The accused, CD, is charged with two counts of aggravated indecent assault. The prosecution case is that on 21 April 2018, the accused indecently assaulted the complainant, SND, by first placing his mouth on her nipples and then touching her on the vagina over the top of her clothing. It is alleged that the offending occurred at the wedding reception for the accused’s daughter.
The accused elected for trial by judge alone.[1] The trial proceeded without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
The Charges
First Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[CD] between the 20th day of April 2018 and the 23rd day of April 2018 at Parafield Gardens, indecently assaulted [SND], by putting his mouth on her nipples.
Circumstance of Aggravation
It is further alleged that [SND] was under the age of 14 years at the time of the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[CD] between the 20th day of April 2018 and the 23rd day of April 2018 at Parafield Gardens, indecently assaulted [SND], by touching her genital area.
Circumstance of Aggravation
It is further alleged that [SND] was under the age of 14 years at the time of the offence.
Elements of the Offence
To prove the offence of indecent assault, there are two elements of the offence the prosecution must prove beyond reasonable doubt:
·that the accused assaulted SND. An assault is the intentional and unlawful application of force to another. The application of force need not be significant; any touching or handling is enough. The application of force need not cause injury. It must be intentional, so purely accidental or unintended touching would not be sufficient; and
·the assault must be accompanied by, or occur in circumstances of, indecency with a sexual connotation. Whether the accused’s conduct is indecent is determined by reference to reasonable contemporary standards of the community.
To establish the circumstance of aggravation, the prosecution must prove beyond reasonable doubt that SND was under the age of 14 years at the time of the offending. It is not in dispute in this trial that she was 8 years old at the relevant time.
Preliminary Applications
The prosecution made an application under s 12AB of the Evidence Act 1929 (SA) (Evidence Act) for a pre-trial special hearing for SND to give evidence. Her Honour Judge Kudelka granted the application on 25 November 2022 at the accused’s arraignment. The matter was listed for an initial hearing and for a pre-trial special hearing. I later vacated the pre-trial special hearing on an application from the prosecution.
The prosecution made two applications under s 13BA(3)(b) of the Evidence Act that the evidence of SND be admitted at trial in the form of audiovisual records made on 28 July 2021 and 20 February 2023 respectively. Counsel for the accused consented to and I granted these applications.
The prosecution made an application under s 13A of the Evidence Act that SND’s evidence be given outside of the trial court by audio-visual link and that SND be accompanied by a court companion. Counsel for the accused consented to and I granted this application. The prosecution made the same application with respect to AKR’s evidence. Counsel for the accused consented to and I granted this application.
Legal Directions
I give myself the following directions.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words “proved,” “established,” or “satisfied,” in each case I mean to an extent which excludes a reasonable doubt.
If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that charge has not been proven beyond reasonable doubt and accordingly, the accused is not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.
There was no police interview led by the prosecution. The accused did not give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.
There is an agreed fact that the accused has no criminal antecedence. There was no other evidence led as to his reputation. I have taken into account his lack of antecedence as it is therefore less likely that he committed these offences as it is not in his nature to have done so. I may however, if I am satisfied by other evidence that he has committed the charged offences, find him guilty.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
The accused is charged with two separate counts. Each of these counts must be considered separately and only in relation to the evidence that is admissible in respect of each.
There was no disclosure in respect of the allegations in this matter to the authorities until 2021. The trial was conducted over 2 days in May 2023. There was no request for a direction in respect of forensic disadvantage.[2] However, I consider that given the nature of the allegations and the circumstances in which they were alleged to have occurred, a significant forensic disadvantage has occurred to the accused. I will therefore take the disadvantage that the accused has had when scrutinising the evidence from the prosecution witnesses. The passage of time is also relevant when I come to assess the evidence of SD, the accused’s wife, as she was asked about the events of the day in some detail. The detail of the day was said to be important in the presentation of both the prosecution and defence cases.
[2] Evidence Act 1929 (SA) s 34CB.
The evidence of the complainant, SND, is critical to this case. Although it is not entirely clear from the final submissions of the accused that they allege she has lied (rather than being mistaken) and I should therefore not accept her evidence as credible, I have reminded myself that it is not for the accused to prove that she is lying. Simply because there is no evidence before me that she has lied does not mean that she has told the truth. To reason in that way would be wrong. I have not done that.
There is evidence as to initial complaint in this matter.[3] This evidence cannot be used for a testimonial purpose. It can however be used to explain how the matter first came to light and to allow me to consider the degree of consistency of conduct on the part of the complainant. I must also take into account that there may be many reasons why she told her friend, AKR, about the alleged offences at the time that she did and why she told AKR rather than another person. Bearing these directions in mind, it is for me to decide what weight I give to this evidence in the circumstances of this case.
[3] Evidence Act 1929 (SA) s 34M.
There was evidence that the complainant was upset at the time she left the wedding with her mother. I accept that this evidence is of limited use but can be used when assessing consistency of conduct. It cannot be used as evidence of guilt.[4]
Prosecution Case
[4] R v Baltensperger (2004) 90 SASR 129 [55].
SND’s Evidence
The prosecution tendered a prescribed interview between SND and Detective Senior Constable Beatrice Liptak dated 28 July 2021, marked P1. The transcript for P1 was marked for identification as MFI P2.
SND was born on 2 November 2009. She was 11 years old at the time of the first prescribed interview.
SND was asked what it means to tell the truth. She said the truth is “what like actually happened and like not saying the opposite or twisting up stories and saying what’s real”. SND agreed to tell Detective Senior Constable Liptak the truth.
At the time of the alleged offending, SND was approximately seven to eight years old and in Year 2 or Year 3 at school.
SND was at the wedding when the accused called her into the corner and said he was going to “show [SND] a trick”.[5] The accused then lifted up SND’s shirt. He held both of her hands up in the air with the shirt. SND indicated that the accused put his mouth on her nipples. SND did not feel comfortable saying the word “nipples”. SND also indicated that the accused touched her on her “private area down [there]” on top of her pants. SND said she did not have another word that she uses for her “private area down [there]”. SND said “he was trying to attempt to go into my pants”.
[5] I raised with the prosecution and counsel for the accused, an issue with the editing of this portion of P1 and MFI P2. It was agreed that a more accurate transcription would be "The day before? The Wedding? Yep. He..", as this more clearly indicates that SND was orienting herself to the day in question, rather than indicating that SND was talking about the day before the wedding. It was agreed that SND was not talking about the day before the wedding, and I accept this.
SND was in a dress at the wedding. She did “dance things” and then had to change. SND indicated that she was in a garage type of area. The accused called SND over from here. The alleged offending occurred at the accused’s house but SND did not know the address. She did know that she was in South Australia. It was the accused’s daughter’s wedding. SND did not know her name.
After the accused touched “it” on top of her pants, SND tried to get away from him. She tried to push the accused to get away. After she said she wanted to go, the accused let her and she went to the bathroom. SND said she did not feel comfortable and “like kind of throwing up”.
SND did not tell anybody for four or five years. It was uncomfortable and hard to tell her parents about it. SND thought her parents “would get mad” at her.
SND was asked what the accused did with his mouth when he put it on her private area indicated on her chest. SND said the accused put his mouth on the “tip part” of her private area. SND said she has two “tips”. The accused put his mouth on one “tip” first and then on the other. SND indicated that the accused kept touching around her neck while doing this. He then tried to go for SND’s pants but “he failed to do that”. SND said he “didn’t get through it”. The accused tried to open SND’s pants. After the accused let her go, he told her “don’t tell anybody”.
SND told the accused she wanted to go to the bathroom because she had no where else to go. Her mum was inside the house with other female guests and her father was in the garage, “drunk with all his friends”. There was nobody else around because all her cousins and friends had already gone home. SND went to the bathroom and when she got out of the bathroom the accused was standing in front of the door.
SND told AKR about what happened. AKR was the first person she told. AKR told SND to tell her parents about what happened, but SND did not. SND was “really scared”. AKR tried to calm SND down and help her. She told SND to go see the school counsellor but SND did not want to tell them because she knew the counsellor would tell her parents.
SND told AKR about what happened a few weeks after the alleged offending occurred. She was at school in South Australia at the time. SND moved to Victoria in March 2020.
SND recalled the address she lived at in South Australia but could not recall the address where the wedding was. She recalled that it was close to her house; just a few minutes away.
SND was wearing black tights and a black T-shirt when she went into the garage area. She did not recall what the accused was wearing.
The alleged offending occurred at 12.00am, 1.00am or 2.00am.
SND was asked to draw a diagram of the area in which the alleged offending occurred.[6] SND indicated that the alleged offending occurred between the heater and the fridge. The accused was on his knees and SND was standing. The accused stood up to “go in [her] pants” before letting her go. SND acknowledged she did not remember the house “that much”.
[6] Exhibit MFI P2.
SND was further questioned about the timing of the alleged offending. SND agreed she was seven years old, possibly turning eight years old. SND said she must have been in Year 2 in school at the time, as she recalled going to Fiji for her grandfather’s birthday when she was in Year 3. The alleged offending occurred “close to the end of the year” in Year 2. SND was six or seven years old at that time.
SND was asked to describe the accused:[7]
[7] Exhibit MFI P2, 13–14.
BL Ok. Can you describe him for me. How would you describe your dad’s uncle.
[SND] Well he was probably like 60 something when it happened.
BL Mmm.
[SND]He had greyish/brownish hair. He, like he had one eye that was like completely white and one eye that was like, browny/blackish. Then he had glasses on top. And he had like a type of face beard type of thing going around. And that’s all I can remember.
BLThat’s Ok. If I asked you to tell me his build, so would you say he was skinny…fat…or just…
[SND]He was like, like some old men, they get like a bit, like heavy-weighted and a bit like fat, so he was about that.
BLOk. Ok. And would you, would you say he’s like…what kind of background would you say he is.
[SND] Umm…like as an Indian.
SND did not tell her parents about the alleged offending because she thought the accused had told her not to do so in “a bit of like a threat type of way”. She was scared because she did not know what the accused was going to do to her if she told her parents about the alleged offending.
The accused spoke to SND in English and in Hindi. He said something like “let me show you something” or “I need help” when he called SND over.
At the end of the first prescribed interview, SND confirmed the particulars of the alleged offending:[8]
[8] Exhibit MFI P2, 16.
BL Yep, Ok. Now I know we spoke about this earlier. I Just – I know – I know it sort of makes you uncomfortable, but if – I know it’s not words you normally would use, but just today with us, just so that we can be clear about exactly where he touched and what he did with his mouth, would you be able to use another word to describe that private area.
[SND] Like, like he used his mouth on my nipple area. And I don’t know what else to call it.
BL That’s Ok. You mean the top rea [sic].
[SND] Yeh.
BL Yeh, that’s Ok. So he touched…he used his mouth on your nipple area.
[SND] Yep.
BLYep. And the when you’re talking about your private area down here, what, what’s another word you know for it to be called.
[SND] Like vagina area.
BLMmm. Ok. And then he, you said he touched your vagina area on the outside of your…
[SND] Yep.
BL …so on the top of your pants, is that right.
The prosecution also tendered a prescribed interview between SND and Detective Sergeant Sam Greenham dated 20 February 2023, marked P4. The transcript for P4 was marked for identification as MFI P5.
SND was again asked what it means to tell the truth. SND said the truth is what “actually happened”. SND agreed to tell Detective Sergeant Greenham the truth. SND recalled the first prescribed interview occurred in 2021.
SND recalled the alleged offending happened in 2018. SND did not know the accused’s name but knew he was her father’s uncle. SND confirmed that the first person she told about the alleged offending was AKR. SND told AR in 2018 or 2019. She told AKR in person at school that she was at a wedding and someone started touching her inappropriately. This was what she told AKR initially.
The prosecution called SND as a witness in the trial and asked brief questions in examination in chief. SND was asked about the first person she spoke to about the alleged offending. SND said she first told AKR that the accused had touched her on her chest area and “down there”.[9] SND was also asked who she saw after she had gone to the toilet and came outside. SND said that when she came out of the toilet, she saw the accused standing outside the toilet. Her father then came from outside to stand in line for the toilet and tried to playfully touch SND.
[9] TS 15.
Counsel for the accused had previously made an application for permission to cross examine SND on certain topics, which I granted.[10]
[10] Evidence Act 1929 (SA) s 13BA(5).
SND agreed that she arrived at the wedding reception just before 7.00pm with her two sisters and her parents.[11] There were about 20 people there when she arrived. By about 7.30pm, there were about 50 people at the wedding reception. A number of attendees were children around the same age as SND.[12]
[11] TS 16.
[12] TS 20.
SND’s father was the MC for the wedding reception. During the wedding reception, she sat with her mother and her sisters in the alfresco area. They were sitting near a gas heater. SND agreed it was not a water heater.[13] There were speeches and dancing during the wedding reception. SND agreed that the formalities lasted about one hour.[14]
[13] TS 21.
[14] TS 22.
There was a garage area next to the alfresco area where there was a bain-marie full of food. SND agreed the food and drinks were being served by the accused and the accused’s family at the wedding reception.[15]
[15] TS 22.
After people finished eating, a dance floor was set up in the alfresco area. SND recalls seeing her father and some of the older ladies dancing. SND agreed that there were still around 50 to 60 guests present at this point.[16] This was at about 10.00pm or 10.30pm. SND said there were still lots of guests present when the dancing finished at about 11.00pm.[17]
[16] TS 23.
[17] TS 24.
After the dancing finished, SND’s mother went into the living room inside the house with some of the female guests, included the accused’s wife. SND stayed in the alfresco area and played with some of the other children. The male guests were in the garage at this time. The tables and chairs had been packed up and removed from the alfresco area by SND’s father and the accused.[18] There were about 10 male guests drinking in the garage.[19]
[18] TS 25.
[19] TS 26.
SND agreed that at some point she went into the living room to tell her mother that she was tired. Her mother sent SND to speak to her father. He said he was not ready to leave yet.[20]
[20] TS 26.
SND agreed that at some point after this she went to the bathroom.[21] She agreed that when she came out of the bathroom she ran into her father and the accused. Her father wanted to joke around with her, but SND brushed him off because she was too tired.[22] SND then went into the living room again to tell her mother that she was tired and wanted to go home. At this time, there were still two other families present.[23]
[21] TS 27.
[22] TS 27.
[23] TS 28.
SND was cross examined about a diagram she had drawn (MFI P3). SND recalled a gas heater, fridge and couch in the alfresco area, which is where she was playing with the other children later in the evening of the wedding reception. SND and other children went around collecting the little stones in the alfresco area which had been used for decorations. SND was running between the alfresco area and the garage to show her father the stones she was collecting.[24]
[24] TS 30.
SND disagreed that she left the reception at about 11.30pm. She confirmed that she left the reception between 1.00am and 2.00am. More than one family was still present at that point.[25]
[25] TS 31.
SND agreed that people had to constantly walk through the alfresco area from the garage to get to the house, or vice versa. There was constant foot traffic back and forth.[26]
[26] TS 31.
SND was cross examined about the location of the fridge. SND recalled that there was a window in the wall above where the fridge is marked on MFI P3. This was the toilet window.[27]
[27] TS 32.
SND was cross examined about the conversation with the counsellor at her old school. SND told the counsellor about the alleged offending because she was learning about “good touch and bad touch” at school, and her friend had encouraged her to speak to the counsellor.[28] SND agreed that in sexual education class, they spoke about digital touching and masturbation. They did not speak about pornography or sexual intercourse. This discussion led to SND telling her friend about the alleged offending, then another friend and eventually her whole friend circle.[29] They all encouraged SND to speak to the counsellor.
[28] TS 33.
[29] TS 34.
This was not the first time SND had told somebody about the alleged offending. AKR was the first person SND told. SND was cross examined about what she told AKR:[30]
[30] TS 35.
Q. Would you agree that what you told her was that your great uncle had hugged you.
A. No.
Q. That he had touched your thighs.
A. No.
Q. That he had touched your back and bum.
A. No.
Q. And that he did all of this over your dress.
A. No.
Q. You don’t agree that you said any of that to [AKR].
A. No.
Q. But that is what you said to [AKR], isn’t it.
A. No.
Q. In any event, the truth is nothing happened between your great uncle and you at any wedding reception.
HER HONOUR
Q. Do you agree or disagree with that.
A. Disagree.
SND was briefly re-examined. Re-examination focused on complaint evidence from SND to her parents. SND said a couple of years after her first complaint to AKR, she had admitted to AKR she had not told her parents about the alleged offending. SND told AKR at the time of the first complaint that she had already told her parents about the alleged offending because she was scared AKR would tell them herself.[31]
[31] TS 36-37.
AKR’s Evidence
AKR was born on 16 October 2009. AKR was 13 years old and in year 8 at High School at the time of giving her evidence.
AKR met SND in year 1 at primary school as they were in the same year level and class. AKR and SND were friends. SND left the primary school AKR was at in year 5.[32]
[32] TS 41.
AKR had a conversation about the alleged offending with SND in year 3. She recalls sitting outside the classroom at lunch time. AKR and SND were on the playground when SND became upset, so they moved to the steps outside the classroom. SND was crying and told AKR that when she attended a wedding when she was six years old, her great uncle came up to her and was forcing himself on her and rubbing his hands up and down her back, bum and thighs. SND told AKR that her great uncle then moved his hands around her waist and was rubbing his hands up and down her waist area, near her vagina.[33]
[33] TS 42-43.
AKR recalls that SND did not say “vagina”, but she assumed this is what SND meant based on her description of the touching. SND used her hands to show how she was touched by her great uncle. She said SND lifted her hands in front of her face and brought them back down to her waist or knee level. As SND was saying “around my waist to the front”, she moved her hands in a circular motion.[34]
[34] TS 44-46.
AKR told SND that she should tell someone, but she did not understand what SND was saying to her.
In cross examination, AKR agreed that she could not remember at what point in the school year her conversation with SND occurred.[35] AKR agreed that SND did not tell her what she was wearing at the time of the alleged offending. AKR agreed that she had told police that SND had said to her that she was wearing a dress at the time of the alleged offending. AKR said she assumed SND was wearing a dress. AKR said she recalls SND telling her that she had told her mother about the alleged offending as well.
[35] TS 47.
In re-examination, AKR said she had never spoken to the police before providing a statement. AKR said she was scared and nervous when talking to the police.
RKM’s Evidence
RKM is the complainant’s mother. She is married to SND’s father, SVD. They have three daughters, including SND who is the eldest. SND was born on 2 November 2009 and is currently in year 8 in High School.[36]
[36] TS 51.
RKM first moved to Adelaide in 2007. Her husband moved to Adelaide in 2012. The family left Adelaide in 2020 to live in Melbourne.
The accused is her husband’s relative. She first met the accused and his wife in 2010. The accused and his wife have four daughters, including AD. After SVD moved to Adelaide, her family would often see the accused and his wife at family gatherings and prayer meets. The accused’s son-in-law, RKL, lived nearby and RKM’s family would often visit him. The accused and his wife would often be there when they visited.[37]
[37] TS 52-53.
She attended a prayer group. The prayer group was established in 2015. The accused and his wife would attend the prayer group 60% to 70% of the time.
Some family gatherings took place at RKM’s house, with others taking place at the accused’s address in Parafield. RKM said that in 2018 she had probably been to the accused’s home multiple times. RKM, her husband and her daughters attended the accused’s daughter’s wedding reception in April 2018 at the accused’s home address.[38]
[38] TS 55.
RKM wore an orange and gold sari to the wedding reception. Her daughters, including SND, wore Indian dresses.[39] They arrived at 6.30pm. The wedding reception started at 7.00pm. RKM’s husband was the MC. About 150 guests attended the wedding reception between 7.00pm and 10.30pm. The wedding reception was held in the alfresco area outside the house.[40]
[39] TS 56.
[40] TS 57.
RKM was shown a floorplan of the accused’s home address (tendered as P6).
SVD’s role at the wedding reception involved starting the ceremony, keeping order in the house and telling the guests about safety. SND was sitting opposite RKM and playing and dancing with her friends throughout the wedding reception.
RKM had to change her attire at about 10.30pm. SND also changed her clothes at this time. SND changed into black tights and a black top with a star on it. After RKM got changed, she started to help the hosting family pack-up the decorations with other female guests. SVD helped pack-up the furniture with other male guests. The male guests finished packing up the furniture at about 11.00pm and then went and sat in the garage. The children were playing in the alfresco area with some of the decorations at this time. RKM went inside the lounge with other female guests. SND was playing with her sister and another girl near the sofa set in the alfresco area. RKM recalled that the sofa was put back in the location illustrated on P6 when the tables and chairs were removed from the alfresco area at about 10.30pm to 11.00pm. RKM did not know where the accused was while she was in the lounge.
Later, SND came into the lounge to say her friend had gone home. SND came inside with some of the decorations and sat with RKM and played with her younger sister. SND stayed in the lounge for 30 to 45 minutes.
When SND’s younger sister started to fall asleep, RKM told SND to tell her father that she was ready to go home. SND was gone for less than one minute. SND returned saying her father had said “in a minute”. RKM was annoyed and told SND to tell her father that she was ready to go home now. SND left the lounge. RKM saw SND go towards the toilet/laundry area. This was the only way to access the garage where SND’s father was.[41]
[41] See Exhibit P6.
RKM was questioned about the layout of the house and the layout of the wedding reception. Food was served in the garage from a buffet table. Tables and chairs were in the alfresco area.
About 20 to 30 minutes after RKM saw SND leave to tell her father that she was ready to go home, she saw SND come out of the toilet. RKM saw the accused with SND and SVD hugging SND outside the toilet. SND was trying to push SVD away and appeared to be distressed. RKM called out to SVD to tell him to “leave her alone”. SND then came and sat behind RKM. She was teary. RKM asked SND what was wrong, to which she replied “I want to go home, I’m tired”. The family packed up their belongings and left at around 1.00am.
In cross examination, RKM was questioned about the timeline of events on the night of the wedding reception.[42] RKM agreed that she arrived at the wedding reception at about 6.30pm. She agreed that more guests started arriving at about 7.30pm, when the ceremony started. When cross-examined about speeches, RKM said that the accused gave a speech. She does not recall whether this occurred from the bridal table. RKM agreed that it is possible the speeches went for about 45 minutes. She disagreed that people were not eating at that stage. She agreed some appetisers were served during the speeches. She agreed there were no professional caterers at the wedding reception.
[42] TS 80-83.
RKM agreed that there were at least 150 to 200 people present at the wedding reception. After the speeches came traditional dancing. Guests then served themselves dinner from the bain-marie set up in the garage. She could not be certain that the formalities took about half an hour.[43] She agreed that at about 10.00pm, the female guests had finished eating but the male guests were still eating in the alfresco area. Guests did not start leaving until 10.30pm. RKM said that the majority of guests left at this time and guests who were closer to the family stayed to help pack up.[44]
[43] TS 85-86.
[44] TS 88.
RKM was cross examined on D9. She agreed that in the photograph on page 7 of D9 there is a power point below the toilet window. She agreed that this is where the fridge was located on the plan she had drawn.[45] She agreed that there was no fridge in the photograph on page 7 of D9. RKM said that the fridge was put there after the clean up occurred. RKM disagreed that the fridge was never there that night.
[45] TS 90.
RKM was cross examined about the events following the alleged offending. SND was gone for approximately 20 minutes before RKM saw her come out of the toilet. RKM did not see SND come back into the main area of the house or go into the toilet. RKM saw SVD and the accused outside of the toilet door with SND.
SVD had been drinking throughout the evening. He did not appear to be so intoxicated as to be unaware of his surroundings.
As RKM and her family left the wedding reception, there were still some guests at the house. They were mostly families. RKM confirmed that she left the wedding reception closer to 1.00am.
RKM was briefly re-examined.[46] RKM confirmed that the sofa set had been put outside in the garden through a door in the garage.
[46] TS 107-108.
SVD’s Evidence
SVD is the complainant’s father. He is married to RKM and has three children. SND is his eldest child and was 13 years old at the time SVD gave evidence. He currently lives in Victoria with his family and has lived there since March 2020. Before then, he lived in Andrews Farm in Adelaide. He migrated to Adelaide in 2012. His wife and SND were already living in Adelaide at that time.[47] He has known the accused since that time. SVD and RKM had started in a prayer group with the accused and his wife.
[47] TS 112.
SVD attended ADʾs wedding reception at the accused’s address in Parafield Gardens in 2018.[48] He arrived at the wedding reception with his whole family “well before time” as he was the master of ceremonies. 10 to 15 people were present when he arrived. He was wearing brown points, a light pint long sleeve shirt and a navy blue blazer.[49]
[48] TS 115.
[49] TS 116.
SVD was shown a floorplan drawn by him.[50] The small marking in the middle of P10 is the hot water system which is permanently fixed to the house. The marquees present for the wedding reception were not normally on the property. There were three marquees in the driveway which guests used during the reception. The room labelled “garage” in P10 had a food table set up in that space. “WC” is the toilet and sink. SVD observed people using the toilet throughout the night.[51]
[50] Exhibit P10.
[51] TS 119.
SVD’s duties as the master of ceremonies including welcoming guests and playing music. He spent time in the “MC area” marked on P10. His duties started at around 7.15pm. The formalities ended after one and a half hours. He did not spend much time with his wife during the evening as he was focused on his duties as master of ceremonies.
He observed SND playing with another girl from the accused’s prayer group. SND came up to SVD twice during the evening saying she wanted to go home.
The formalities included speeches and traditional dancing. The dance floor was then opened to all guests. SND changed from traditional Indian attire into black clothing after the formalities concluded. SVD does not recall the exact time this occurred.[52] There was a point in the evening that the female guests changed before assisting with cleaning the house, while the male guested packed up the tables and chairs. He was unsure where SND got changed in the house, but knew that this occurred after 10.30pm.[53]
[52] TS 124-125.
[53] TS 125.
SVD started cleaning up after the wedding reception with the accused and other guests. This involved putting leftover food in bins, cleaning the kitchen counter and folding all tables. This took 30 to 35 minutes. After cleaning up, he moved to the garage and started to drink with the accused and other male guests. Drinks were provided by RKL. He observed the female guests were in the rumpus room and the dining area of the house while he was in the garage. Before going into the garage, he observed SND playing with another girl where “sofa” is marked on P10.[54] He was in the garage drinking until after midnight and would have left the property at about 1.00am. He cannot recall the exact time he went into the garage.[55]
[54] TS 127.
[55] TS 128.
SND came out to the garage to ask him if they could go home. SVD told SND that he wanted to stay longer and they would leave a bit later. SND came back later and he repeated the same to her.
He later went to go to the toilet but the toilet door was locked. SND came out when the toilet door opened. The accused was also in line for the toilet and SVD offered for the accused to use the toilet first. The accused insisted that SVD go first. When SND came out of the toilet, SVD went to hug her. SND was putting a boundary up and it felt like she was trying to escape him, so he let her go.[56]
[56] TS 129.
In cross examination, SVD said not too many people were present at the house when he arrived. He agreed that his family were some of the earlier guests to arrive because of his role as master of ceremonies.[57] He did not know why the formalities started a little bit later than 7.00pm. He confirmed the formalities started around 7.15pm. He estimated that around 150 guests attended the wedding reception.
[57] TS 131.
SVD agreed that there were no professional caterers present. He was not sure who was serving food and drinks because he was focused on his role as master of ceremonies. He agreed that dinner service started after the formalities. He agreed that most guests had finished eating by 10.30pm.
SVD was cross examined on P7. He agreed that on page 7 there are stacked chairs and several guests mingling in the alfresco area. He agreed that not all guests left at once. He agreed that there was no mass exodus and guests were still dancing in the alfresco area after 10.30pm.[58] He agreed that the packing up of chairs occurred slowly across the evening and as guests left, not all at once.
[58] TS 134.
SVD was cross examined on D8. He could not be certain that he took the photograph. He agreed that it was taken where he and other male guests were sitting around a table drinking at the end of the night.[59]
[59] TS 138.
SVD was cross examined on moving the fridge as part of the clean up process. He agreed that a fridge was moved back into the alfresco area. He said he did not move it and did not know who moved it. He disagreed that the fridge was never moved to where it is marked on P7.[60]
[60] TS 138.
SVD was cross examined on the time he left the accused’s address on the night of the wedding reception. He confirmed he left at about 1.00am. He agreed he was not keeping track of time perfectly but said he clearly remembers it being about 1.30am when he arrived home.[61] He agreed that he had been drinking. He disagreed that he left just before 12.00am.
[61] TS 139.
RKL’s Evidence
RKL is married to the accused’s daughter, KD. His wife has three siblings, including AD. They were married in 2011 and have lived in Adelaide since 2012. When they first moved to Adelaide, they lived with the accused in Parafield Gardens.[62] They lived there for around one year and then moved to Andrews Farm in late 2013.
[62] TS 143.
RKL first met SVD when he was invited to the accused’s house. They became friends. He knows SVD to be married and have three children. RKL knows his eldest daughter is SND.
He attended the wedding reception in 2018 at the accused’s house. He does not recall what time of year it was.
RKL was shown a floorplan of the accused’s address drawn by him.[63] The circle marked “X” is a water heater. The circle marked “F” is the freezer.
[63] Exhibit P11.
He arrived at the wedding reception at 7.00pm. There were roughly 50 people present and he observed the accused.[64] He cannot recall whether SVD was present at that time. He saw SVD and his family later in the evening but cannot recall when. He does not recall whether SVD was the master of ceremonies.[65] RKL saw SND at the wedding reception but cannot recall where. He estimates that around 200 guests attended. After speeches and food was served, he does not recall what happened.[66]
[64] TS 147.
[65] TS 148.
[66] TS 149.
Guests started to leave and at around 11.30pm most of the guests were gone. RKL recalls putting chairs and tables from outside inside at this time. He recalls doing this with the accused but no one else. After cleaning up, he said he put chairs in the garage but could not be sure this was where he put them. SVD was gone at this point. He did not observe SVD or any of his family leave. He cannot recall the last time he saw SVD and his family.
In cross examination, RKL confirmed that the cleaning up occurred between 11.30pm and 12.00am. RKL was cross examined about D9.[67] He recognised the photo on page 7 was taken on the night of the wedding reception. He agreed that there is no freezer depicted on page 7 but it would normally be under the window.
[67] TS 153.
RKL agreed that he was involved in packing up chairs and tables. He did not recall whether he helped take down the marquee.[68] He did not recall whether other guests were present during packing up. He did not recall moving sofas or the freezer.[69] He estimated that he left at about 12.00am. He agreed that him and his family were the last guests to leave.[70]
[68] TS 155.
[69] TS 156.
[70] TS 156.
RKL was also cross examined about whether he and other guests were drinking. RKL said he was not drinking and he did not observe the accused drinking. RKL was not drinking because of his responsibilities for serving food and drinks at the reception. He shared this responsibility with the accused. RKL and the accused never had a drink during the evening.[71] He could not recall sitting around a table in the garage with other male guests towards the end of the night.
[71] TS 157.
Agreed Facts
The prosecution tendered by consent a set of agreed facts:[72]
On 21 April 2018, [CD] hosted a wedding reception for his daughter, [AD], at his residential address at [XXXX], Parafield Gardens.
[RKM] and [SVD], along with their three daughters including [SND], attended the abovementioned wedding reception on 21 April 2018.
[SVD]’s grandmother and SD’s father are siblings.
In 2018, [SND] attended [school] in Adelaide in third grade.
As at 4 May 2023, [CD] has no criminal antecedents.
[72] Exhibit P12.
Defence Case
The accused did not give evidence.
SD’s Evidence
SD is married to the accused. They have four daughters. She lives at Parafield Gardens.[73]
[73] TS 160.
Her daughter, AD, had her wedding reception on 21 April 2018. SD was involved in setting up for the wedding reception at the Parafield Gardens address. She woke up at about 3.30am to do the cooking. She then set up all the tables and the decorations. At about 1.00pm or 2.00pm, the cake arrived and a table was set up for the cake. The set up finished at about 5.00pm. In the garage was the main food and drink table.[74] The tables, chairs and cake were under the pergola and the main table was under a marquee. There were around 28 to 30 tables set up. 180 to 200 guests were invited to the wedding reception.
[74] TS 161.
The freezer was moved into the garage as it was an obstacle and more space was required for tables and chairs. The freezer was used to store foods and did not store drinks.
After 5.00pm, SD showered and got dressed for the wedding reception. After 6.00pm, the photographer arrived and took pictures of the bride’s family.
Guests were staying at the house, including SD’s mother, father and auntie. Others went to RKL’s house after the reception.
The function was supposed to start at 7.00pm. SD told SVD at this time to start his role as master of ceremonies. The formalities included a speech from the accused. This occurred around after 7.30pm. There was then traditional dancing, which went for 15 minutes.
During the dinner service, SD was everywhere greeting guests and making sure that they were happy. There were no professional catering staff hired for the reception. The dinner service occurred after formalities had concluded, which was around 8.30pm.
They did not pack up the pergola area the day of the wedding reception. Bottles and cans were cleaned up at around 11.30pm. After packing up the food inside the garage, SD went inside the house. She was on the sofa in the front lounge and was sitting with RKM and her children, including SND.
RKM and her family left just before midnight. Other guests were still present. SD went to bed at around 12.30am or 12.45am. The accused went to bed around the same time.
The sofa and the freezer were moved out for the wedding reception. They were moved back in two to three days after the reception. SD did not see the freezer getting moved and thinks this occurred at that time.
In cross examination, SD said she was doing “everything” for the set up of the wedding reception. She confirmed that preparation started at 3.30am and she continued setting up until 5.00pm. SD agreed that she spent the entire time setting up the property for the wedding reception. Between 5.00pm and 7.00pm, SD showered and got dressed. She was unsure what time the first guests arrived as she only came out of the house at 7.00pm.
SD recalled that SVD was invited to the wedding reception but she did not recall when he arrived. He was the MC and did not attend to set up. The tables and chairs were hired from friends. They arrived about a day before the wedding reception and were stored under the pergola. The marquees were from SVD and RKL.
SD was cross examined on P10. SD agreed that “Gas HWS” was the hot water system. Around the corner on the wall is a small box with an arrow and labelled “fridge”. SD confirmed this is the freezer and it is normally stored in that location.
SD had another wedding reception for one of her other daughters in 2011. Roughly 120 guests attended. That wedding reception was hosted in the pergola with a similar set up.
SD was cross examined about the pack up on the evening of the alleged offending. SD said the tables and chairs from the marquee were packed into the garage. This occurred before midnight. She observed the accused pressure cleaning two days later. SD used a broom to sweep the water away. The tables and chairs had been moved at this point. SD was unsure who moved the freezer into the garage for the wedding reception. She was unsure when it was moved but said that it was not there when she was setting up the tables for the wedding reception.
SD agreed that there were lots of events going on and that she spoke to lots of guests. SD was focussing her attention on keeping all of the guests happy. SD was not keeping watch of everything SND was doing. SD did not see SND go to the bathroom but agreed it was possible that this occurred. SD saw SND go outside to her father that she wanted to go home. SD agreed that she was not focusing her attention on SND. SD agreed that SVD and his family were still at the house at round midnight.
SD was briefly re-examined. SD said that some guests remained at the house after SVD and his family had left. SD confirmed that what has been referred to as a chest freezer is definitely a freezer, not a fridge.
Addresses
I received written submissions from the prosecution and the defence in substitute of oral closing addresses. I ordered that the prosecution file written submissions by close of business 15 May 2023, with the defence to file written submissions by close of business 19 May 2023.
Ms Taylor provided written submissions on behalf of the prosecution.[75] Ms Taylor submitted that the only direct evidence of the charged acts comes from SND herself in the two prescribed interviews.[76] Acceptance of this evidence is therefore fundamental to the prosecution case. Ms Taylor submitted that I ought to find the accused guilty of both counts if I make a finding that SND’s evidence was both honest and reliable. Ms Taylor submitted that the key question for me to answer is “whether [I] can accept the account given by the complainant of those two offences beyond a reasonable doubt”.
[75] FDN 29.
[76] Exhibit P1 and Exhibit P4.
Ms Taylor submitted that I must consider the circumstances in which SND gave the first prescribed interview.[77] SND was 11 years old at that time. She was asked to discuss sensitive information with an unfamiliar, adult figure in a position of authority. Ms Taylor submitted that despite this, SND gave “a simple and compelling account”. Ms Taylor submitted that the language and gestures used by SND throughout the first prescribed interview are “entirely consistent” with the expectations of a child of SND’s age giving evidence about such sensitive and distressing events.
[77] Exhibit P1.
Ms Taylor advanced several points in support of the submission that SND’s evidence should be taken as honest and reliable. She first submitted that this is demonstrated by the level of detail included in SND’s evidence. SND on multiple occasions provided detailed information to the interviewer without prompt. Second, Ms Taylor submitted that SND was a cautious and considered witness. SND was careful to distinguish between things that happened and things that did not happen, as well as between things within her knowledge and things not within her knowledge. Third, Ms Taylor submitted that SND’s demeanour is consistent with that of an honest and reliable witness.
Ms Taylor put in anticipation that the defence case rests on the proposition that either SND is mistaken about the alleged offending or alternatively SND’s account is not truthful. Ms Taylor submitted that I should reject both of those hypotheses as reasonable possibilities for several reasons. In particular, those hypotheses must be considered against the background of Ms Taylor’s submission that SND was a reliable witness who gave detailed evidence.
On the evidence given in the trial by other witnesses, including RKM, SVD and RKL, Ms Taylor submitted that there are a number of aspects of their evidence which are entirely consistent. Ms Taylor submitted that “where their accounts differ really concern their recollections of the events that followed the reception”.
On the evidence given by SD in the defence case, Ms Taylor submitted that there are two aspects of SD’s evidence which are of some concern to me and which may lead me to have doubts about her reliability and credibility as a witness. Ms Taylor submitted that SD exaggerated the extent of her memory at several stages in her evidence. Ms Taylor asked me to consider that SD accepted in cross examination that she had a very similar wedding reception in 2011 for her eldest daughter, which involved similar set up, guests and pack up, yet SD did not have the same specific memories of this wedding reception that she purported to have in relation to the evening of the alleged offending. Ms Taylor submitted that even if I accept SD’s evidence, it does not remove the opportunity for the accused to commit the alleged offending.
Ms Taylor ultimately submitted that this is a case which hinges on my assessment as to the credibility and reliability of SND’s evidence. If I accept SND’s evidence, Ms Taylor submitted that I ought to find the charges against the accused proved beyond reasonable doubt.
Mr McDonough provided written submissions on behalf of the accused.[78] Mr McDonough submitted that there are many reasons why I should find the accused not guilty. He submitted that these reasons fall into three categories, being: (1) a lack of opportunity to commit the alleged acts; (2) an improbability of the accused committing such acts in the circumstances of the setting; and (3) issues arising from the reliability and credibility of SND.
[78] FDN 30
On the lack of opportunity, Mr McDonough submitted there were many people at the wedding reception. Mr McDonough pointed to D9 in support of the wedding being a busy event. He submitted that it is undisputed across all witnesses that a number of people were remaining at the property at the time when SVD and his family left. Mr McDonough further submitted that SND was mistaken about the number of guests present, recounting that there were 50 guests in attendance. This was far less than that recounted by all other witnesses. There were no professional caterers and the accused was attending to guests, serving food and drinks throughout the evening.
On the improbability of the accused committing the alleged acts, Mr McDonough submitted that no grooming occurred and in those circumstances the alleged acts were “incredibly brazen”. Mr McDonough submitted that this is especially the case when considering that the alleged offending occurred with SND’s father nearby in an area with a direct line of sight, with SND’s mother also nearby and with a number of other people inside the house. Mr McDonough pointed to D8 which shows the view from the table in the garage directly into the area outside the toilet window where the alleged offending occurred. P7 also shows this area to have been well lit.
On the reliability and credibility of SND’s evidence, Mr McDonough submitted that I could not find SND to be a reliable and credible witness for several reasons. Mr McDonough submitted that discrepancies arise in SND’s first complaint to AKR. SND denied in cross examination that the complaint to AKR was as AKR described in her evidence. Mr McDonough further submitted that “errors” in SND’s evidence about where the alleged offending occurred provides indications of reconstruction. In particular, Mr McDonough pointed to the evidence about the location of the chest freezer given by multiple witnesses. Mr McDonough also submitted that SND did not show the emotion one would typically see or expect from a sexual assault victim. [SND] did not cry or become upset. Rather, she gave consistently unemotional responses. Mr McDonough acknowledged that this is only a minor point. Mr McDonough’s final point on the reliability and credibility of SND’s evidence was in relation to SND lying to AKR when telling her that SND had told her mother about the alleged offending. Mr McDonough submitted that this lie should cause me concern, regardless of any explanation proffered by SND.
Mr McDonough ultimately submitted that based on these factors, there is reasonable doubt that the alleged offending occurred and I must therefore find the accused not guilty.
Assessment of Witnesses
Although SND was only 11 years old when she gave her first interview to the police, I was impressed by her maturity and her direct and straightforward manner. She was clearly embarrassed speaking about otherwise private matters. She used her hands liberally to explain her words and thoughts. I accept her evidence that the first person she told was her friend, AKR, when she was in Year 3 at school and still living in South Australia. The family moved to Victoria in March 2020. I accept her evidence that she did not feel comfortable telling her parents because “they’re not really listeners” and she thought they would get angry with her.[79] I also accept that the accused had told her not to tell anyone and she was frightened. I find that the complaint was made in the school year during 2018.
[79] Exhibit MFI P2, 2 [8-11]
When SND gave evidence in court, she appeared to have a good recollection about the events. She did not appear to be exaggerating or fabricating her evidence. I accept that she told AKR that she had told her parents when she had not in fact done so. I also accept that she did not tell AKR everything that the accused did to her.
Whilst I accept the criticism that there may have been some elements of reconstruction in relation to the events of the evening, I do no think that it occurred in relation to the critical features including the alleged offences or the events that followed. The question of whether there was a heater or a water heater I regard as irrelevant. It has no bearing on the question of the credibility of a child in these circumstances. I accept that there was a freezer in the position as indicated by the complainant at some stage. Whether it was there at the time of the alleged offending is a matter that is not clear from the evidence. I can make no finding in relation to that. However, I do not regard that as critical to the overall credibility and reliability of the complainant's account. There is no suggestion that it played any role in the offending nor is it an item that I would expect an eight-year-old child to have paid any particular attention.
I accept that up until that time, this evening had been unremarkable for SND and she had no particular reason to take into account how many people were there, what the adults were doing and other features of what was occurring around her. She did, however, recall what she and other children had done including the games she played and how she felt when the alleged offences were committed. She also recalled accurately and vividly the feeling of needing to get away and being very vulnerable after the events. I accept that she told the accused she needed to go to the toilet in an effort to get away from him and the accused trying to frighten her by telling her not to tell anyone.
I also find that at the time of the alleged offences there were some other people present but that the wedding was over, the alfresco area packed up and most of the women and children inside. Any men who were left were for the most part in the garage and some were drinking alcohol and not paying much attention to what else was happening. It was in this context that the opportunity for the interaction between the accused and SND arose. The offending that she described would have taken a very short period of time. The accused was in a position of power to her and her family being an older and respected relative. He took advantage of an opportunity that presented itself.
I accept the evidence of AKR that SND told her about a sexual assault that occurred at a wedding and find that she was the first person that SND told about the events the subject of the charges. I accept that the complaint was made at a time when the complainant was very upset. I accept that AKR was doing her best to recall what she had been told by SND. However, the way in which SND communicated involved not just a verbal description but also hand movements. It was from a combination of these activities that AKR drew inferences and made assumptions about the complaint that SND was making. I also find that she made an assumption that SND was wearing a dress rather than SND having said that to her. The evidence of AKR must be assessed as evidence given by a young child who was recounting events that occurred many years ago
I am satisfied that the substance of the complaint was consistent with the events that were described by SND, and in particular, that the events occurred at a wedding and that the offender was her great uncle who touched her in a sexual way. I also find that SND told AKR at that time because she was upset about what the accused had done to her. I have considered the submission that the complainant did not give details about the accused having put his mouth on her nipples at that stage. I do not consider that renders the complaint inconsistent from the charged act. SND was describing generally the fact that the accused had sexually interfered with her. There may be many reasons why a person, especially an eight year old does not give specific details about the assault nor is there any requirement to do so. The essence of the complaint is that it was the accused who sexually interfered with her at a wedding and she was upset about it.
I accept the evidence of RKM and SVD about the events of the wedding and the time they left the wedding. I accept that they helped to clean up after the wedding and that they were amongst the last people at the wedding. I also accept the evidence of RKM that SND was teary and upset later in the night. I also accept that SND was holding onto her mother with such a tight grip that it caused her mother to comment on it.
I accept the evidence generally of RKL about the course of the wedding. I accept that he was truthful when he said that he was not sure about a number of aspects of the evidence and that this is a consequence of the events occurring five years ago and many of these matters not being of much significance to him at that time. This includes the positioning of the freezer and whether it was moved back into the alfresco area on the night in question.
The accused’s wife, SD, gave evidence. She was the only witness for the defence. I accept her evidence generally about the events of the day of wedding and the preparations that she undertook. She explained these in great detail. I accept that she was responsible for ensuring that the freezer was moved into the shed for the wedding so that it was out of the way of the guests. I do not accept her evidence that the chairs and tables were not packed up on the night. I find that after the wedding SD went inside the house and sat with the other women and young children in the loungeroom. I accept that the complainant’s family were among the last people to leave the house.
Other than the fact that SND may have underestimated the number of wedding guests, she appeared to have a good recollection of the events of the evening. Her evidence in relation to how the opportunity arose for her to be in the company of the accused at the end of the reception was compelling. It was supported by her mother's and her father’s evidence. I accept that as the evening wore on, the children got tired and the women retired to the loungeroom. It was in that context that the complainant was sent out to tell her father that her mother was ready to go home. Her father was not ready to leave and brushed her off.
Although there were other people in the vicinity, the area in which the events were said to have occurred was away from other guests. Most of the guests had left the wedding by this time. I accept that the toilet window had a net curtain, and if a person had been standing in the toilet and looking out of the window at the time they may have been able to see any interaction between the accused and complainant.
I have considered the submission that the alleged offences were “incredibly brazen” and that there was no “grooming” of the complainant. I accept both of those submissions. The accused having behaved in the manner alleged does seem to be very brazen and opportunistic. However, there are individuals who are prepared to take significant risks to satisfy their sexual desires. For some, it may be a calculated risk. In this case, I am satisfied that the accused took the risk when most of the wedding guests had left and sought to ameliorate the risk by telling the complainant not to tell anyone. The fact that there is no grooming behaviour is no bar to offending such as this.
A further submission was made by Mr McDonough that the complainant did not show the emotion one would typically see or expect from a sexual assault victim. The complainant did not cry or become upset. Rather, she gave consistently unemotional responses. It is acknowledged that this may only be a minor point.
I do not accept this submission. There is no typical or usual response that is seen or should be expected from a sexual assault victim. To expect a typical response and to act on it is not only dangerous but wrong. In the same way it would be wrong to reason that if a person was highly emotional when giving evidence about such matters they are more credible. The way a person feels about events in their life and the way they deal with them in is very personal.
I also reject the submission that the complainant’s evidence should be rejected as a result of the intervening sex education at school having contaminated or influenced her evidence so that she then gave a false or mistaken account. There is simply no basis to make such a finding.
I have had regard to the whole of the evidence in this matter. I have directed myself in accordance with the directions that I have referred to in [9] - [20]. I have scrutinised the evidence of SND. I have taken into account the criticisms that have been made of it individually and in combination.
I make the following findings of fact:
·That the complainant SND and her family attended a wedding at the accused’s home between 20 April 2018 and 23 April 2018. When she attended, she was dressed in traditional Indian clothing.
·After the wedding ceremony and reception, adults who were present attended to clearing away the crockery, cutlery, chairs and tables. I am uncertain whether a freezer that had been moved out of the alfresco area into the garage for the wedding was moved back on that evening or at a later stage.
·The complainant had changed from her traditional clothing into black pants and a black shirt.
·After the clean up most of the women and children had gone inside and the men were in the garage area drinking.
·At a time when there was no one present in the alfresco area, the accused called the complainant over to him.
·He put his mouth on her nipples. He also touched her on the outside of her clothing near her vagina. Both actions were very quick.
·The complainant tried to get away from him and told him that she had to go to the toilet. She left and went to the toilet. She was seen emerging from the toilet by both her mother and her father.
·The complainant was upset when she left the wedding to go home.
·The accused told her to keep his actions a secret. She did not tell anyone until she told her friend AKR later in that year at school when she described an assault upon her by the accused at the wedding.
·By the time the assaults occurred, most of the guests had left the wedding, leaving only close family members and the complainant’s family.
I am satisfied that SND is a credible witness and was reliable in respect of the charged acts. I do not think there is a reasonable possibly that the accused did not commit the charged offences.
I accept the evidence of SND as to the sexual assaults upon her by the accused. I am satisfied that the events took place as she described. I am satisfied that the offences were committed when an opportunity arose at the end of the wedding when most of the guests had left and the balance were either in the house or not in the alfresco area where the accused opportunistically sexually assaulted SND.
I am satisfied beyond reasonable doubt that the accused put his mouth on her nipples and touched her vagina on the outside of her clothing. I am satisfied beyond reasonable doubt that both acts are indecent when committed against an eight‑year‑old girl in these circumstances. I am satisfied beyond reasonable doubt that SND was eight years old at the time the offences were committed.
I therefore find the accused guilty of both counts of aggravated indecent assault.